R v Cooke; Ex Parte

[2000] QCA 195

[2000] QCA 195

COURT OF APPEAL

McMURDO P
DAVIES JA
MOYNIHAN J

CA No 117 of 2000

THE QUEEN

v.

EDMUND ANDREW JAMES COOKE                 Respondent

ATTORNEY-GENERAL OF QUEENSLAND            Appellant

BRISBANE

..DATE 25/05/2000

JUDGMENT

DAVIES JA:  The respondent was convicted on 17 February this year after a trial in the District Court on three counts of unlawful and indecent assault and one of deprivation of liberty.  The matter was then adjourned by the learned trial Judge to obtain a pre-sentence report and, accordingly, the respondent was not sentenced until 4 April.  He was then sentenced to two years probation and 200 hours of community service.  No conviction was recorded. 

The respondent is 21 years of age having been born on 20 November 1978.  He was 20 years of age when these offences were committed on 7 March 1999.  He had no prior criminal history, although after the commission of these offences, during a period in which he was on bail, he was convicted of obstructing police and fined $125.

On the night of 6-7 March 1999 the respondent had been at home drinking and watching cricket on the television with a male friend.  Some time early on the morning of 7 March they decided to go to the Treasury Casino, which they did.

At about 5.40 a.m. that morning the complainant, a 23 year old cleaner at the casino, was going about her duties.  She was wearing a cleaner's uniform and disposable gloves and had a mop and bucket with her.

After cleaning the male toilets, she was proceeding to some female toilets, when she was approached by the respondent.  At his request she directed him to the male toilets and then entered the female toilets to clean them.  Shortly after she entered them she heard someone enter, turned and saw it was the respondent who had come up to her and began kissing her on the neck.

She told him that he should not be there and attempted to push him away.  He then picked her up and carried her into a cubicle, held her against its wall and locked the door.  He then unbuttoned her shirt, pulled down her bra and began kissing her breasts.  She continued to try to push him away but he continued in what he was doing, saying, "We'll just have a good time." 

During this and the respondent's subsequent conduct, the complainant was in fear of her life.  She managed to open the cubicle door and to get outside but he grabbed her in a bear hug, took her back inside again and closed the door.  He then lifted up her dress and pushed down her pants.  He also undid his own fly and underpants and pushed her head towards his penis, telling her to perform oral sex.

She repeatedly told him that she could not do that.  He then put her hand on his penis saying, "Just do it with your hand."  She did as she was told and he eventually ejaculated. 

During the whole of this episode which lasted approximately an hour the complainant was frightened.  Nevertheless she decided not to resist strongly but to do as she was told.  It is impossible to say whether this was the best course for her to take but no possible criticism could be made of her for taking it.  Nor could the respondent have reasonably thought that her failure to continue to resist strongly or to scream signified consent.

It does appear, however, that from the verdicts of the jury he had an honest and reasonable belief that the initial contact was accepted and his Honour appears to have thought, as Mr Glynn has pointed out, that thereafter he continued to have an honest belief that what was happening was consent or, at least, lack of opposition although, plainly, that belief was not a reasonable one.

At the end of this period, however, she was, as she put it, "shaking and nearly breaking down".  Nevertheless, she made an immediate complaint. 

The respondent was videotaped running from the Casino to his car, which he then drove away.  A television news bulletin of this the following day showed him doing so and his sister recognized him and persuaded him to go to the police, which he did.  Nevertheless, he defended the charges claiming, as I have already mentioned, that the complainant had initiated sexual contact and, in effect, consented. 

Unsurprisingly, the episode caused the complainant emotional problems.  For the first three or four months after it she experienced frequent nightmares, she was constantly edgy and she could not relax and her concentration and memory were poor.  These have since gradually improved.

The episode also had an effect on her relationship with her fiance, although that too gradually improved.  She still no longer feels confident going out at night, at least on her own.  However, she apparently has a good relationship with her husband, whom she married since, and she has returned to work with the Casino, though not in the same area as that in which she worked previously.

The respondent had a fairly stable family upbringing and, at the time of commission of these offences, was in the third year of a four year apprenticeship as an electrician.  His employer, who knows of his conviction, was happy to take him back and thought highly of him. 

He is the youngest of four children and appeared to be naive and innocent.  He is a shy young man who, at the time, had very little experience with the opposite sex.  However, by the time of sentencing he was in his first relationship with a young woman which had lasted for five months. Unsurprisingly, he had become depressed since being charged and had sought and obtained psychiatric help.

He is not addicted to hard drugs and describes himself as a social drinker, although I note that he had previously been convicted of drink driving. 

The episode was a serious and frightening one for the young woman who herself, as I have mentioned, was only 23.  Moreover, the offences are such that ordinarily they would have required a sentence of imprisonment. 

It is a matter of speculation as to what caused the respondent to behave in the way in which he did.  It was described by people who knew him as being out of character.  No doubt he had consumed some alcohol but he was plainly not very drunk.  One can only suspect that he had some psychological problems which may be associated with his state of maturity.  No psychologist or psychiatrist's report was obtained.

Mr Byrne for the Attorney submits that the sentence which should have been imposed on the respondent should have included a term of imprisonment.  He submitted that a sentence of 18 months imprisonment with a declaration that 47 days pre-sentence custody be declared to be imprisonment already served under the sentence would have been an appropriate sentence and he has referred us to a number of authorities which would, at least, show that a sentence of that kind would not have been outside the range of an appropriate sentencing discretion.

The respondent has spent 47 days in pre-sentence custody, as I have mentioned.  Mr Glynn submitted that that, at least, under the old calculations, would have been equivalent to approximately a three to three and a half months sentence. 

It is always difficult for sentencing Judges to balance against the seriousness of offences such as these.  The fact is that the offender is young and immature, has no previous convictions and appears to have very good prospects of rehabilitation.

That is what the learned sentencing judge here attempted to do.   The question we have to decide is whether in doing so the sentence which he imposed was so low as to require intervention by this Court.

Mr Glynn in his written outlines has pointed to the special character which appeals by an Attorney have, especially where their effect would be, if successful, to require a respondent who has been released from custody and permitted and encouraged to resume his place in the community and to set out on a path of rehabilitation, to be returned once again to custody. 

In my opinion, as I have mentioned, the offences which occurred here were such as to justify a term of actual imprisonment and the sentence which was imposed, in my view, was manifestly inadequate.  

On the other hand it is important to ensure the imposition of a sentence at this stage which will recognise all of the factors I have mentioned, the seriousness of the offences, and their effect on the complainant, but also the respondent's youth, lack of previous convictions, good employment prospects and stable relationship, the period of imprisonment actually served and the fact that he has already been released from custody for some time and has embarked on a path of rehabilitation.

To accommodate those factors and the circumstances which ensue now I would allow the Attorney's appeal, set aside the sentence imposed and in lieu impose a sentence of 12 months imprisonment to be served by way of an Intensive Correction Order.

I would impose as additional conditions of that Intensive Correction Order, conditions that:

1. The respondent submit to medical, psychiatric or psychological assessment and treatment as directed by an authorised Corrective Services officer.

1. He participate in and complete a cognitive skills program; and that

1. If deemed necessary by such officer, psychological assessment and participation in a sex offenders program. 

It follows from what I have said so far that a conviction must be recorded.

THE PRESIDENT:   There are serious aspects to this offence and ordinarily an actual period of imprisonment would be required to be served.   Of course, in this case the applicant has served almost seven weeks in custody awaiting sentence. 

I agree with the orders proposed by Justice Davies and with his reasons.

MOYNIHAN J:   I agree with Justice Davies reasons and the outcome he proposes.

THE PRESIDENT:   The order is as outlined by Justice Davies.

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