Case Title:	R v Cooke (a pseudonym)
Citation:	[2021] ACTSC 249
Hearing Date:	1 September 2021
DecisionDate:	24 September 2021
Before:	McWilliam AJ
Decision:	See [65]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –Territory offences – commit an act of indecency on a person under the age of 10 years – where the offender was in a position of trust – where the offence was not isolated but other charges not laid – consideration of s 34B of the Crimes (Sentencing) Act 2005 (ACT)
Legislation Cited:	Crimes Act 1900 (ACT) s 61 Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 33, 34A, 34B, 35, 46D Family Violence Act 2016 (ACT)
Cases Cited:	Corby v The Queen [2010] NSWCCA 146 McLeod v The Queen [2018] ACTCA 59 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Anderson (No 2) [2020] ACTSC 98 R v EN [2019] ACTSC 354 R v Fitzpatrick (Supreme Court of the Australian Capital Territory, Nield AJ, 25 June 2013) R v Girvan (Supreme Court of the Australian Capital Territory, Refshauge ACJ, 25 September 2013) R v Hammer [2019] ACTSC 182 R v Kelly (Supreme Court of the Australian Capital Territory, Murrell CJ 28 April 2014) R v KI [2019] ACTSC 292 R v Kilic [2016] HCA 48; 259 CLR 256 R v KNL [2005] NSWCCA 260; 154 A Crim R 268 R v LE [2018] ACTSC 143 R v Leonard Theodore Lam (No 3) [2014] ACTSC 362 R v NT [2017] ACTSC 69 R v PGM [2008] NSWCCA 172; 187 A Crim R 152 R v Simpson [2001] NSWCCA 534 Shannon v R [2006] NSWCCA 39 Veen v The Queen (No 2) (1988) 164 CLR 465
Parties:	The Queen (Crown) Ernie Cooke (a pseudonym) (Offender)
Representation:	Counsel K Lee (Crown) B Rutzou (Offender) Solicitors ACT Director of Public Prosecutions (Crown) ACT Legal Aid (Offender)
File Number:	SCC 159 of 2021

MCWILLIAM AJ:

On 6 July 2021, the offender, Mr Ernie Cooke (a pseudonym), entered a plea of guilty to the charge that he committed an act of indecency on a person under the age of 10 years, in contravention of s 61(1) of the Crimes Act 1900 (ACT) (the Crimes Act).

The offence carries a maximum penalty of 12 years’ imprisonment.

The facts

A statement of agreed facts was before the Court, from which the following factual summary is taken.

The offender had been in a de facto relationship with the child victim’s mother since 2016. They lived together in the ACT with their young daughter as well as the child victim, who was the mother’s eldest child from a previous relationship. Although the offender was not the biological father of the child victim, he was in the position of a stepfather, and the child victim called the offender “daddy”.

The conduct that is the subject of the offence occurred on 26 April…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Cooke (a pseudonym)

Details

AGLC: R v Cooke (a pseudonym) [2021] ACTSC 249
Case: [2021] ACTSC 249
Decision Date

CaseChat Overview and Summary

The case of R v Cooke (a pseudonym) involved the offender, Mr Ernie Cooke, who pleaded guilty to committing an act of indecency on a person under the age of 10 years, in contravention of s 61(1) of the Crimes Act 1900 (ACT). The offence carried a maximum penalty of 12 years’ imprisonment. The offender was in a de facto relationship with the child victim’s mother and had been living with them since 2016. The conduct occurred while the offender was at home looking after his own daughter and the child victim. The child victim reported the incident to her mother later that evening, stating that the offender had touched her “giney” with a finger when she was on her iPad, lying on her bed in her bedroom.

The legal issues the court was required to decide included the appropriate sentence for the offender and the relevant sentencing considerations. The court considered the mandatory considerations set out in the Crimes (Sentencing) Act 2005 (ACT), including the nature of family violence and the context of the offending. The court also took into account the objective seriousness of the offence, the offender's attitude towards the offending, the impact of the offence on the child victim and her family, the offender's criminal history, and comparable cases.

The court's reasoning and outcome involved assessing the objective seriousness of the offence as being above the medium level. The court found that the offender's attitude towards the offending was problematic and that he did not understand the full ramifications of his actions on the child victim. The court also considered the significant impact of the offence on the child victim and her family, as well as the offender's criminal history and character references. The court determined that a sentence of imprisonment was the only appropriate penalty, taking into account the mandatory considerations set out in the Sentencing Act.

The final orders made by the court were as follows:

(a) In respect of the offence of an act of indecency with a person under the age of 10 years (CAN 4406/2021), the offender is sentenced to 23 months’ imprisonment (reduced from 28 months), commencing on 24 September 2021 and ending on 23 August 2023.

(b) The non-parole period is 18 months, to commence on 24 September 2021 and expire on 23 March 2023.

Orders