R v Cooksley
[2022] ACTSC 339
•7 December 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Cooksley |
Citation: | [2022] ACTSC 339 |
Hearing Date: | 19 October 2022 |
DecisionDate: | 7 December 2022 |
Before: | Loukas-Karlsson J |
Decision: | See [144] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – historic child sexual offences – maintain sexual relationship with child or young person under special care – indecent assault – where offender sentenced in NSW in relation to offending with same victim during same time period– principles in Mill |
Legislation Cited: | Crimes Act 1900 (ACT) s 56, 81 |
Cases Cited: | Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 |
Parties: | The Queen (Crown) Christopher Gary Cooksley (Offender) |
Representation: | Counsel M Thomas (Crown) G Hoare (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Wilkinson Throsby & Edwards (Offender) | |
File Number: | SCC 177 of 2022 |
Loukas-Karlsson J:
Introduction
The offender, Christopher Gary Cooksley, entered pleas of guilty to the following offences:
(a)Count 1 (CAN 3545/22): An offence of maintaining a sexual relationship with a child or young person under special care contrary to s 56 of the Crimes Act 1900 (ACT) (Crimes Act), between 1 January 1979 and 31 December 1982. The maximum penalty for this offence is 25 years imprisonment. I note this offence has subsequently been renamed as ‘Persistent sexual abuse of child or young person under special care’.
(a)Count 2: (CAN 932/2022): An offence of indecent assault on male contrary to s 81 of the Crimes Act, between 1 January 1979 and 31 December 1981. The maximum penalty for this offence is five years imprisonment.
Exhibits
The following exhibits were tendered into evidence:
(a)Amended Prosecution Tender Bundle, containing the agreed statement of facts, criminal history, Sentencing Assessment Report and accompanying case note, Victim Impact Statement of the complainant, and documents relating to the offender’s foster care arrangements.
(b)Psychological Assessment Report under the hand of the Canberra Clinic Forensic Psychology Clinic authored by Dr Bruce Stevens.
(c)A health summary sheet for the offender.
Agreed facts
Background
The agreed facts are set out in the Agreed Statement of Facts which forms part of the Prosecution Tender Bundle. The agreed facts may be summarised as follows.
In 1978, the offender worked at a Caltex petrol station in Holt, ACT. The victim visited the petrol station and met the offender. The victim was 11 years of age. Thereafter, a friendship began between them, with the victim often attending the petrol station to help the offender with fixing up old cars in the workshop. The offender stopped working at the petrol station at the end of 1978.
The offender also became friends with the victim’s family. At this point in time, the offender lived at an address in Latham, which he sold in November 1980. About a year earlier, he had purchased a house in O’Connor. When he was still living at the Latham house, the victim would often visit on his bicycle to do odd jobs for the offender, which continued when the offender moved to the O’Connor address.
The victim continued to help the offender fix up cars at the petrol station. When they finished, the offender would drive the victim back to the O’Connor address, where they had dinner. Over time, the offender gained the trust of the victim’s family to the extent that he was allowed to sleep over.
First incidence of sexual activity in the ACT (count 2 – indecent assault on male)
The first incident in the ACT occurred sometime in 1980 after the offender had moved into the house in O’Connor, and after he had purchased a Toyota vehicle (in about May 1980). The offender had been driving a silver VW Beetle when the complainant first met him, which he kept after he bought the Toyota.
The victim recalled finding himself laying on his back in the lounge room floor at the O’Connor house during a visit. His pants were down and he felt the offender’s mouth on his penis sucking and licking it. The victim was aged thirteen years at the time.
When asked by the offender if he liked it, the victim replied with words to the effect of liking it, but that it didn’t feel right. The offender said words to the effect of, “Ah well, as long as it feels good.”
10. The victim was confused about what had happened, however the offender made the victim believe this was a normal thing, but that other people would not understand.
Sexual “relationship”
11. Sexual activity became a regular occurrence between the offender and the victim, occurring two to three times a week at the offender’s house until partway through 1981, over a period of approximately nine months.
12. The victim was frequently at the offender’s house, where he would go after school after being picked up by the offender, where he would do his homework, chores, and have dinner.
13. At this time the offender worked as a real estate salesman. When he finished work and on free weekends, the offender and the victim would drive out to Fyshwick to look at cars and then return to the offender’s house, where they would have a meal, after which the offender would perform oral sex on the victim.
14. The sexual activity also included the offender masturbating the victim’s penis and performing oral sex on him, and the victim masturbating the offender’s penis and performing oral sex on him. After this sexual offending occurred, the offender would drive the victim home.
15. The victim performed oral sex on the offender a couple of times. The victim stopped because he didn’t like it. There was no consequence for stopping. The offender continued to tell the victim that their sexual activity felt good, that it was ok to do it, and that the victim shouldn’t tell anyone as people would not understand.
16. Towards the end of the nine-month period of sexual activity, in 1981, the victim rang the offender. He was upset and said words to the effect of, “I want to come and live with you.” The offender drove to meet the victim and they spoke for several hours. The offender took the victim back to his O’Connor house and rang the victim’s mother. Upon finishing her shift at a restaurant, the victim’s mother and father went to the O’Connor house, where they spoke to their son. The offender told them it had been the victim’s choice to move in. The victim stayed that night with the offender in the clothes he was wearing.
17. The following night, the offender received a telephone call from a person who identified himself as a police officer named Cliff Cooke. Mr Cooke warned the offender of the consequences of having the victim stay with him. The victim’s parents came and took him home. There was no further sexual activity between the offender and the victim.
18. The victim continued attending high school in the ACT but failed Year 10 due to escalating behavioural problems. He was sent to live in Bega to live with his grandmother where he recommenced Year 10 at the local high school.
19. The victim contacted the offender years later by telephone when in his late twenties, telling the offender he was in financial difficulty and requesting money. The offender transferred funds to the victim’s bank account. These requests were made about a dozen times over the course of the victim being in his late twenties and early thirties.
20. At some point in the course of the requests, the offender became resistant, which caused the victim to threaten to go to the police. The transfer of funds stopped when the victim stopped making requests.
NSW Offending
21. At about the same time that the offender’s “relationship” started with the victim at the O’Connor house, the offender and the victim would drive over the border into NSW, where the offender would give the victim driving lessons. During the course of these driving lessons, the offender performed oral sex on the victim and masturbated his penis, and the victim masturbated the offender’s penis.
22. Sexual activity also took place between the offender and the victim in NSW later in 1980 when they went on a trip to South Durras for a holiday, where they would engage in mutual masturbation. Around Christmas of 1980 the offender took the victim on a trip to Tweed Heads where they engaged in mutual masturbation.
Reporting the offending
23. The victim first reported the offending to NSW police in 2008, resulting in six charges of indecent assault on a male pursuant to s 81 of the Crimes Act 1900 (NSW) being brought against the offender in relation to the victim in this matter (counts 1 to 6). The offender disclosed offending against another victim, resulting in one charge in relation to that victim (count 7). On 22 July 2009 the offender was sentenced to an overall sentence of 21 months’ imprisonment at the Wollongong District Court, with a 6 month non-parole period.
24. The ACT aspect of the offending could not be prosecuted at the time due to legislative time limitations that were subsequently repealed in 2013. The victim later participated in Evidence in Chief Interviews with the AFP in 2020 and 2021 resulting in the current charges before me.
Victim Impact Statement
25. A Victim Impact Statement was read at the sentencing hearing by the prosecution on behalf of the victim. The statement details the significant impact that the offender’s conduct has had on the victim throughout his life and the flow-on effects on family and loved ones. The statement includes the following:
From having my innocence, trust and realm of reality abused, crushed, I was left profoundly confused. The pillar of life I’d built had been shattered and I had to rebuild my life. Unfortunately, it was into two different persons - the one who had to face society pretending that everything was okay and the rebel loner with no faith on a path of self-destruction. Little did I know that path was to lead me to the ‘dark side’.
…
Although it never left me, shame became a weak emotion and was easily suppressed by hate, confusion, rage, distrust, and anger. All suppressed by inebriation.
I didn’t even know if help was available, let alone know where to look for it. Even if I found help, how do I ask for it? Being the start of the 80’s, you just didn’t talk about ‘those things’ for fear or ridicule at the very least.
…
In the last 44 years, there has been barely a day that doesn't pass without effects directly or indirectly attributed to my childhood abuse and trauma. Life has not turned wounds to scars. The wounds are still open and raw. Time does not diminish the trauma. Time has not made it easier to deal with. Time does not remove the heartache, misery and anguish I have inflicted on the ones I love. Time has not reduced the resentment that burns within.
I hope this statement gives some insight to the route my life has been impacted and the resulting domino effect to my family.
26. The Court recognises the serious, long-lasting and devastating effects of the crimes on the victim. The Court acknowledges the importance of what the victim has expressed in his eloquent victim impact statement.
Summary of Evidence given by the Offender
27. The offender gave sworn evidence in the witness box regarding his offending behaviour and his understanding of the impact of the offences upon the victim. The offender described knowing that “something was wrong” with himself but not knowing what it was. The offender described being a gay man in the 1980s as “very difficult”, however he conceded that his offending was a “problem of preying upon young children” rather than a problem related to his sexuality. The offender gave evidence that he admitted that his offending was wrong “right from the start”, and that he wished it hadn’t happened. The offender described being attracted to the victim and helping him with his schoolwork and that they “simply got too close”. The offender gave evidence that he did not use force against the victim. The offender described how the victim was unhappy at home and that they discussed the victim moving in with the offender. The offender said he now understood the damage he had done to the victim, but that at the time he probably did not understand. The offender gave evidence that he has dealt with his attraction to young children through celibacy. The offender gave evidence that he never sought out any specific therapy or counselling to deal with this attraction.
28. The offender also gave sworn evidence regarding foster caring arrangements undertaken by him in the 1970s and 1980s. The offender gave evidence that he was attracted to young boys and that during this period, he had fostered upwards of 300 young boys. The offender gave sworn evidence as to his reasons for fostering several hundred young males from the 1970s to the 1980s. He described wanting to foster young children “before the damage is already done”, and that he thought he could “do [the children] some good”. The offender admitted he was attracted to some of these children but denied ever offending against any of his foster children.
Objective Seriousness
29. The following matters are relevant to the objective seriousness of the offences. These identified factors are to be considered in the context of the s 33 considerations. It is to be noted in this context that the lack of an aggravating factor is not a mitigating factor.
(a)The prosecution correctly submitted that the age of the victim is a relevant matter. Counsel for the offender submitted that while thirteen years is a ‘highly impressionable age’, this is not as young as is often the case with such offending
(b)The prosecution correctly submitted that the disparity in ages between the victim and the offender is also relevant. Counsel for the offender submitted that the age difference between the victim and the offender, being 13 and 30-31 years respectively, was not as extreme as in many cases.
(c)The period of offending: The prosecution correctly submitted that the offender used his frequent access to the victim to engage in regular offending for a period of nine months, with sexual activity occurring two to three times a week. Counsel for the offender submitted that whilst this demonstrates an ongoing course of conduct, the offending did not go on for years as has been the case in many other matters.
(d)The nature of the offending conduct: The prosecution submitted that the offending behaviour involved the offender masturbating the victim’s penis and performing oral sex on him, and the victim masturbating the offender’s penis and performing oral sex on him. Counsel for the offender did not cavil with this characterisation, but noted that the offending did not involve penile/anal intercourse or penetration.
(e)Where the offending took place: As the offending occurred in the offender’s home, the prosecution submitted this might be said to reinforce the offender’s control. Counsel for the offender conceded that the offender took the victim to his home where offending usually took place in the bedroom, which clearly would have reinforced the victim’s feelings of helplessness and vulnerability. Counsel for the offender submitted that the offending did not take place in the victim’s home or in some secretive location unknown to the victim.
(f)The prosecution submitted that the offences involved a gross breach of trust. The offender was in his early thirties and the victim was thirteen. The offender built a friendship with the victim over a period of approximately two years before the sexual offending commenced. He also worked to ingratiate himself with the victim’s family. The prosecution submitted that the offender essentially established himself as a de facto parent, picking up the victim after school and taking him the offender’s home to do his homework and have dinner. By this time, the victim was already showing the effects of the inner turmoil caused by the offender’s actions.
Counsel for the offender accepted that the relationship between the offender and victim was that of a friendship fostered by grooming. However, counsel distinguished this to a familial relationship or that of a teacher/pupil or coach/pupil.
I note that “special care” is an element of the s 56 offence and a breach of trust is inherent in such offending. Double counting must therefore be avoided: See Beavis v The Queen [2018] NSWCCA 248 at [255]-[256].
(g)The fact that the offending stopped only because the victim’s family took steps to end contact after the victim expressed a desire to live with the offender. Counsel for the offender correctly conceded this prosecution submission.
(h)It is not alleged that the offender used force or ever physically restrained the victim. This is not a mitigating factor. As discussed above, the lack of an aggravating factor is not a mitigating factor.
30. The factors discussed above are all part of assessing objective seriousness.
31. The prosecution correctly submitted that the offender knew, at the time, that the sexual activity with the victim was inappropriate behaviour because he told the victim that “he shouldn’t tell anyone as people would not understand.”
32. Counsel for the offender submitted that the offender denies that he was seeking sympathy from Professor Stevens concerning his sexual identity. As outlined at [27], the offender gave sworn evidence at the sentencing hearing regarding his confusion about his sexuality.
33. The prosecution correctly submitted that the offender was the only one responsible for the offending behaviour and the offender’s inability to see otherwise is troubling. Counsel for the offender accepted this submission. I note that the offender also gave sworn evidence under cross examination that the offending was “all [the offender’s] fault”. The offender gave evidence that he did not force the victim to do anything, but that he knows this is irrelevant “according to the law”.
Personal circumstances of victim as known to offender: s 33(1)(d)
34. The prosecution correctly submitted that the offender had worked over a period of about two years to gain the confidence of the victim and his family. The prosecution further submitted that the offender knew that the victim’s home life was not particularly happy, causing the victim to want to be out of the family home, and that the offender exploited this situation.
Effect on victim, victim’s family and those able to make a VIS: s 33(1)(f)
35. The prosecution submitted that the Victim Impact Statement makes clear that the offending behaviour had a devastating effect on the victim, his family and other relationships. The prosecution correctly submitted that the offender’s confusion about his own sexuality gave him no licence to prevent the victim determining his own sexuality as he grew into adulthood. Nor did the more oppressive mores of the time justify illegal behaviour. Offender’s counsel correctly did not cavil with this submission concerning s 33(1)(f).
Foster caring
36. The prosecution adduced evidence in relation to the offender providing foster care. The evidence included a letter written by the offender dated 4 November 1983 addressed to the ACT Director of Child Welfare Services seeking to make a formal application to foster children. The letter describes the offender having been involved in caring for children in Canberra for 14 years previously and pushing for formal approval.
37. As outlined at [28], the offender gave sworn evidence at the sentencing hearing regarding his fostering upwards of 300 boys between the late 1970s and early 1980s.
38. The prosecution submitted that the offender’s application to foster children was made before the offender had acknowledged that he had a problem and ceased offending. I note that the offences against the second victim, aged 14 (who is not the subject of these proceedings) occurred in the period 1 January 1984 to 1 April 1984. The offender’s preference to foster young males in the age group 10-14 continued through to his foster care work in New South Wales in the period 1986-88.
39. The offender gave sworn evidence that he has not offended against any other young children aside from the two victims, one of whom is the complainant in these proceedings [T32-9-13]. Further, counsel for the offender submitted in written submissions that the court should accept that the offender was truthful in his 2009 police interview, when he stated that these two victims are the only two children against whom he has offended. The offender also told Dr Stevens that he had been able to do some good through fostering nearly 300 children, and that he had never offended against any of the foster children.
40. The relevant principles as to how a Court can take into account facts adverse to the accused were outlined by me in R v Smith (No 2) [2022] ACTSC 246 at [61]-[62]:
A court may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 (Olbrich) at [27] – [28]; Leach v The Queen [2007] HCA 3; 230 CLR 1 at [41]; Filippou v The Queen [2015] HCA 29; 256 CLR 47 (Filippou) at [64], [66]. The offender bears the burden of proving on the balance of probabilities matters which are submitted in his favour: Filippou at [64], [66]; Olbrich at [27] – [28].
Framing the fact-finding process by using terms such as the onus and standard of proof may give a misleading impression that all disputed issues of fact related to sentencing must be resolved for or against the offender: Weininger v The Queen [2003] HCA 14; 212 CLR 629 (Weininger) at [19]. Some disputed issues of fact cannot be resolved in a way that goes either to increase or decrease the sentence that is to be imposed: Weininger at [19]. It is sometimes not possible for the court to ascertain everything that is relevant. Where that occurs the court must proceed on the basis of what is proved and leave to one side what is not proved to the requisite standard: Filippou at [70].
41. I take into account the evidence before me on this issue. As is clear from the authorities, some disputed issues of fact cannot be resolved in a way that either increases or decreases the sentences. I will proceed on the basis of what is proved and leave aside the issue of foster caring as not proven to the requisite standard as either an aggravating or mitigating factor.
Conclusion on objective seriousness
42. The prosecution submitted that the offending behaviour falls above the mid-range, but not close to a “worst case”. Counsel for the offender submitted that the offending falls at the mid-range of objective serious for reasons outlined above at [29].The prosecution further referred to a “trend in this jurisdiction” over recent years to refrain from expressing a view on where offending sits on the spectrum of objective seriousness, and to only identify ‘relevant factors’ to assessing the objective seriousness: see Beniamini v Craig [2017] ACTSC 30 at [117]-[122].
43. In The Queen v Kilic (2016) 259 CLR 256 (Kilic), the High Court held at [19] that unless the maximum penalty for an offence is to be imposed: a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the “spectrum” that extends from the least serious instances of the offence to the worst category, properly so called.
44. In assessing the objective seriousness for each offence, a sentencing judge should give reasons for reaching their view. A recital of the facts and submissions of the parties may not be sufficient: The Queen v Miller [2019] ACTCA 25; Simpson v The Queen [2019] NSWCCA 137.
45. In Forster-Jones v The Queen [2020] ACTCA 31 at [29]-[30] the Court of Appeal observed that the assessment of the objective gravity of an offence is a fundamental part of determining the appropriate sentence for that offence.
46. In assessing the objective gravity of the s 56 offence, both the prosecution and counsel for the offender submitted that this case was not close to the worst case. As the High Court made clear in Kilic, it is best to avoid using the expression “worst category” as lay persons may wrongly take it to mean that a judge has underestimated seriousness: see [20]. The offending is clearly not low range. I have come to the conclusion that the offending falls in the mid-range arising from the following factors discussed earlier in this judgment including:
(a)The age of the victim
(b)The disparity in age
(c)The period of the offending
(d)The nature of the offending
(e)The grooming of the victim and the victim’s family to the extent of the victim asking to move in with the offender; and
(f)The fact that the offending only stopped when the victim’s family intervened
47. Count 2 is also in the mid-range for broadly similar reasons as count 1. I note that the parties addressed the objective seriousness of both counts in a global fashion.
Subjective Circumstances
48. In evidence before me is a Sentencing Assessment Report (NSW) and a supplementary Structured Case Note (NSW) prepared for the offender which includes the following in relation to the offender’s subjective circumstances.
49. The offender is 72 years old. The offender was born in the United Kingdom and moved to Australia with his parents at the age of two. The offender is single and prior to my revocation of the offender’s bail, he resided alone in NSW. The offender was supported in the community by three foster sons and their families.
50. The offender stated that he had worked several part time roles primarily in car maintenance as he spent many years fostering and caring for children between 1985 and 1993 as a registered foster carer for the Department of Community Services (NSW).
51. The offender has been retired for 7 years.
Attitude to offences
52. The report author noted that the offender agreed with the statement of facts and presented in a forthright manner in acknowledging his involvement in the matter.
53. The offender stated during interviews with the author that the victim was a “damaged kid who lived in public housing”. He stated that he extended a friendship to the victim, stating that he was initially nurturing the victim’s absence of family support. The offender stated that he is unable to recall exact timeframes of when the abuse occurred, and accepts the victim’s version.
54. The offender made statements indicating that the victim was a willing participant, that there was no force, and that the sexual relations did not extend further than oral sex and masturbation.
55. During interviews the offender reflected at length on the stigmas around being gay during the 1970s and 1980s. He spoke about being unaware about his sexual orientation during the commission of the offences and being unsure of his sexual orientation today.
Insight into offending
56. The report notes that initially during interviews, the offender did not verbalise any concerns regarding the nature of his offending involving a child, or any psychological damage or trauma the victim may have experienced.
57. In a follow up interview, the offender stated that the victim was financially compensated (referring to the NSW matters), and that he would “work with any order or punishment for what I did to him.”
58. The offender stated during an interview that he knew he “should not have done it and [he] understood it was wrong”
59. When discussing the offence, the offender stated to the report author: “I feel like he [the victim] was upset he could not visit anymore and I’m not referring to the sexual part”.
60. The offender stated that he felt he offered the victim a safe and supported base as he felt the victim was living in a fractured environment.
61. The offender stated that he would be willing to engage in interventions and gain a better understanding of his offending history.
Response to supervision
62. The offender was supervised by NSW Community Corrections in 2010 after his custodial sentence. His risk was rated as Low-Moderate. Records indicate that during his supervision period he engaged well and was compliant with Order and Child Protection Register conditions.
63. The author notes that the offender was cooperative during interviews and stated that he was willing to adhere to any court order.
Risk of reoffending
64. The offender’s risk of reoffending was assessed as within the below average risk range.
65. The report notes that the offender has taken responsibility for his offending and has not sexually reoffended since 1984.
Psychological Assessment Report of Professor Stevens
66. In evidence before me is a psychological assessment report under the hand of Dr Bruce A Stevens. The report provides information about the offender’s family, relationships, and work history as outlined in the Sentencing Assessment Report.
67. The report notes that the offender has never undergone counselling. The report quotes the offender’s comments regarding how he felt post-offending in 1980-81: “I was an absolute mess. I went to Canberra Hospital, depressed, and I was admitted for three days.” The offender told Dr Stevens that he was on Valium for 6 months which did not assist, and that he has had no medication since then.
68. The offender told Dr Stevens that he realised he had a problem and stopped, which was not easy. He told Dr Stevens that he has been celibate since 1985.
69. He described the complainant as a “willing participant”, although noted that “I know it is irrelevant because of the law but it’s important to me that I didn’t force him to do anything.” The offender repeated similar remarks in his sworn evidence at sentence (T28 22-24).
70. The offender told Dr Stevens of his attraction to young males:
I had no outlet. I don’t blame anyone but myself, I was made that way
71. The offender referred to feeling guilt and low self esteem. The offender reported suicidal ideation, and told Dr Stevens of a suicide attempt in April or May this year after the charges before this court were laid. Dr Stevens placed the offender at an exceptionally high score on the suicide ideation scale which indicates a risk of imminent self harm.
72. Dr Stevens diagnosed the offender with major depressive disorder with mild to moderate symptoms. The offender did not report any depressive episodes prior to offending. Dr Stevens did not see the offender’s vulnerability to depression as contributing to the commission of the offences.
73. Dr Stevens stated that the offender expressed clear regret and guilt about his offending.
74. The report notes that the offender appeared to be genuine throughout the interview.
75. Dr Stevens gave sworn evidence regarding the contents of his report at the sentence hearing.
Summary of Evidence given by Dr Bruce A Stevens
76. Dr Stevens gave evidence in relation to the offender’s attitudes towards his offences and his offending behaviour. He gave evidence that the offender did not have particularly high emotional intelligence in terms of his ability to empathise with the complainant, however he did not agree with assertions by the prosecution that the offender only understood that his offending behaviour was wrong when told so.
77. Dr Stevens gave the following evidence as to remorse:
Well, let me say something first of all about regret. Regret is 'I wish I hadn't done it', and he was clear about that. So there was no ambiguity about regret.
Remorse is a more tricky concept because it does rely, at least to a large degree, on empathy and understanding of the impact on the victim, and in that sense he was a little bit confused. I would say that he had some understanding of the impact, but he seemed focused on the issue of power or coercion or force and he was more or less I think seeking to – maybe to preserve his self-esteem or his image of himself, but – and he was also somewhat aware that it didn't make a difference, so it was a little bit confused. But I did feel in the midst of all that that there was reasonable understanding of the impact on the victim.
78. Dr Stevens also gave evidence that the offender meets the criteria for paedophilia. He gave further evidence that the offender’s depression is a reactive depression following the offending and the charges. The offender also gave evidence regarding the offender’s likely experience in prison as a result of his age and suicidal vulnerability.
Subjective matters: s 33 Sentencing Act
Cultural background; Character; Antecedents; Age; Physical and mental condition: s 33(1)(m)
79. As stated earlier, the offender is 72 years old. The offender is not married and has no dependants. The offender has a well-managed thyroid condition and needs to use hearing aids. Professor Stevens has diagnosed the offender as having “Major Depressive Disorder recurrent with mild to moderate symptoms”.
Is offender voluntarily seeking treatment for physical / mental condition: s 33(1)(t)
80. The offender has never undertaken counselling. The Sentencing Assessment Report records that the offender is willing to engage in interventions.
81. The prosecution submitted that the offender has given inconsistent accounts of his mental health. The sentencing remarks of Judge Conlon of 22 July 2009 recorded that “The offender spoke of the onset of depression before the occurrence of the sexual assaults” (at p. 5) whereas Professor Stevens stated that “Mr Cooksley did not report any depressive episodes prior to offending”. Counsel for the offender did not cavil with this submission concerning inconsistency. There was clear inconsistency in this regard.
Reason for offending: s 33(1)(v)
82. The offences were committed for the offender’s sexual gratification.
83. The prosecution correctly submitted that the offender’s claim that he suffered from the morality of the time “does not wash” because his offending behaviour with a child was subject to criminal sanctions at the time. Counsel for the offender correctly accepted this submission.
Remorse
84. There was some disagreement in the submissions as to the degree of remorse and understanding of the impact of his behaviour on the victim on the part of the offender.
85. I note the comments of Professor Stevens in his sworn evidence at [78] that the offender is regretful and had a “reasonable” understanding of the impact of his offending on the victim.
86. I accept that the offender has experienced regret consistent with the evidence of Dr Stevens. I do not accept, on the evidence, that the offender has sufficient insight for there to be true remorse. On the evidence, regret and remorse are not the same thing in this case.
Criminal History
87. In 2009 the offender was convicted of seven counts of Indecent Assault on Male, for which he was sentenced to 21 months imprisonment with a non-parole period of 6 months as referred to earlier at [23]. Six counts concerned the victim in this matter. There are no other convictions on his criminal record.
Pleas of Guilty
88. The offender entered pleas of guilty to charge CC2022/932 (act of indecency) on the first mention in the Magistrates Court and pleaded guilty to charge CC2022/3545 (maintain a sexual relationship with a young person) on the third mention in the Magistrates Court.
89. Pursuant to s 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT), when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard.
90. Counsel for the offender submitted that pleas were entered at the first reasonable opportunity and should result in a 25% discount. The prosecution did not submit against this.
91. Taking into account the relevant matters, in my view, a discount of approximately 25% is appropriate. in light of the fact that the pleas were entered at an early time being at the Magistrates Court.
Time in custody
92. The offender’s bail was revoked at the conclusion of the sentencing hearing. The offender has spent 34 days in custody from 03/11/2022 to 07/12/2022 solely referable to these offences. The sentence will therefore commence on 03/11/2022.
Comparable Cases
93. Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this court relating to offenders who committed similar offences. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 (Dalgliesh) at [4]:
[C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent.
94. The following cases from this jurisdiction provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54].
95. Counsel referred to the following cases:
(a)In The Queen v Ashton (a pseudonym) [2022] ACTCA 45, the offender engaged in a sexual “relationship” with his biological daughter, from the ages of six to 14 years. The sexual contact including digital penetration of the victim’s vagina and possibly of her anus, penile penetration of the vagina and the anus, cunnilingus and fellatio. The first act of penile/ vaginal penetration occurred when the victim was no older than eight. The maximum penalty at the time for this offence was 25 years’ imprisonment. The Court of Appeal held that the original sentence of 12 years imprisonment, with a non-parole period of 7 years and 6 months, was manifestly inadequate. The Court’s resentence of the offender involved a starting point of 20 years’ imprisonment, reduced to 15 years’ imprisonment for a 25% plea of guilty, with a non-parole period of 9 years and 4 months,
(b)In R v Porter (No 3) [2022] ACTSC 235 (Porter), the sentence starting point was 15 years’ imprisonment, reduced to 13 years and 6 months on account of the plea of guilty discount, for one count against s 56. The offender was sentenced to an aggregate sentence of 20 years’ imprisonment, with a non-parole period of 12 years and 6 months in total with different counts concerning other victims. In relation to the s 56 charge, the offender engaged in a sexual “relationship” with a sporting pupil aged between 12 and 15 years whilst the offender was the victim’s volunteer football coach. The number of times sexual activity occurred and the nature of the sexual activity was the subject of a disputed facts hearing: R v Porter (No 2) [2022] ACTSC 50. The offender pleaded guilty following negotiation at the criminal case conference. The offender had no prior criminal history. The prosecution submitted that this case has some features analogous to the present matter as the relationship was built by extensive grooming, the victims were young boys and the offenders’ preferences were for boys in the 11-14 age bracket. The maximum penalty for this offence was 25 years’ imprisonment.
In Porter, there was a three year period of sexual offending, and in the matter before me of Cooksley for sentence today there was a period of approximately 9 months of sexual offending. In Porter, the offending included anal intercourse. The period of grooming prior to the commencement of sexual offending was approximately 12 months in Porter, and approximately 18 months to two years in Cooksley.
(c)In R v Kellan (a pseudonym) [2021] ACTSC 314, the offender was sentenced for 3 counts against s 56 relating to his 3 daughters (referred to by the pseudonyms Julianna, Lillian, and Nicole), and one charge of an act of indecency against his stepdaughter (referred to by the pseudonym of Mia).
The offending against Julianna occurred from 2010-2011 when she was 10-11 years old and involved the offender touching her vagina and surrounding area when she got out of the spa approximately twice per week for 6 months, and three or four other occasions of acts of indecency involving similar offending.
The offending against Lillian occurred between 2015 to 2020 when she was 11-16 years old, involving many different instances of offending including acts of indecency, and incest, which included instances of penetration and other sexual acts.
The offending against Nicole occurred when she was 12 from 2020-2021 and involved the offender touching her in her groin area on one occasion, touching her vagina on another occasion, and inserting his finger into her vagina on another occasion.
Relevant sentencing factors included the age of the victims (10-11, 11-15, and 12), the relationship being between father and daughters, the duration and nature of the offending, and the fact that “acquiescence was achieved not by violence but as a consequence of the exploitation of trust associated with the parental relationship”. The starting point for the sentences imposed for the s56 offences were 5 years’ (Julianna), 11 years’ (Lillian), and 6 years’ (Nicole) respectively, with the offender receiving sentences of three years and nine months, eight years and three months, and four year and six months respectively for each of the offences (and 9 months reduced from 12 months on account of the plea of guilty for the act of indecency charge). The offender was sentenced to an overall sentence of 13 years and 3 months imprisonment with a non-parole period of 8 years and 6 months. The maximum penalty at the time for this offence was 25 years’ imprisonment.
(d)In The Queen v Ware (a pseudonym) ACTCA 14, the offender engaged in a sexual “relationship” with his biological son, from the ages of 11 to 15 years. The offending involved sexual activities including masturbation and tongue kissing. The sentencing judge imposed a head sentence of three years and two months’ imprisonment. The Court found in favour of the respondent that the relevant maximum penalty applying to the offences was the maximum penalty at the time being 14 years, rather than the current maximum penalty of 25 years. However, the Court found that notwithstanding that the sentencing judge did not err in construing the maximum penalty referred to in s 56, the sentence was manifestly inadequate. The Court resentenced the offender for the s 56 offence to a starting point of 6 years’ imprisonment, with an overall sentence of 4 years and 10 months, and a non-parole period of 2 years and 6 months.
(e)In R v KC [2020] ACTSC 94, the offender was charged with three counts against s 56 against three victims, with offending occurring from 1980 to 1989. The offender was found guilty by a jury. The offending occurred whilst the offender was minding the children for their working parents. The victims were variously aged from 9 to 15. The offender was sentenced after trial. The offender was 60 years old at the time of sentence. Bugmy factors were relevant and the Court partially recognised the effects of delay, but only as far as the uncertainty that such delay played upon the mind of the offender. The offender received sentences, in relation to the three counts, of eight years’, six years’, and five years’ respectively, with an overall sentence of 12 years imprisonment and a non-parole period of six years imposed. The maximum penalty at the time for this offence was 25 years’ imprisonment.
(f)R v Degioannis [2019] ACTSC 47 involved 4 offences, including one offence under s 56. These included using the victim to produce child exploitation material and possession of other such material. The offending included supplying the victim with illicit drugs. The offender was a known child sex offender and was on the child sex register. The pleas of guilty were late pleas attracting a 15% discount. For the s 56 offence the offender’s sentence involved a starting point of 9 years’ imprisonment, reduced to 7 years’ and 7 months’ on account of the plea of guilty discount.The maximum penalty for this offence was 25 years’ imprisonment..
(g)In R v Michalopoulos [2020] ACTSC 27 the offender was sentenced for one count contrary to s 56, and other charges concerning breaches of family violence orders and a Good Behaviour Order. The offender was 44 years’ old and befriended a 15 year old female victim. The offender and the victim considered themselves to be in a relationship, engaging in sexual intercourse every few days between July 2018 and September 2018. The offending was characterised by the sentencing judge as being in the mid range of objective seriousness. The offender was sentenced to 61 months imprisonment on the s 56 count reduced from a starting point of 6 years on account of the plea of guilty, with an overall term of imprisonment of 5 years and 5 months and a non-parole period of 37 months imprisonment. The maximum penalty at the time for this offence was 25 years’ imprisonment.
96. The prosecution submitted that KC, Kellan and Ashton involve family members. Degioannis is a case in which the offender had previous been found guilty of sexual offending and the exploitation was facilitated by the provision of illicit drugs.
97. Counsel for the offender submitted that both the head sentence and non-parole period imposed by the Court in this matter should be markedly less than those imposed in the comparable cases discussed in the previous paragraph.
98. I note that the offending in KC involved three counts against three different victims over a nine-year period. In Kellan, the offending involved 4 different victims (with 3 pertaining to the s 56 offence), with offending occurring over a 10-year-period and involving acts of penetration. The offending was committed by a father against his three daughters and stepdaughter. In Ashton, the offender sexually abused his daughter from the ages of six to 14, offending which included approximately 76 acts of penetration. It is important to assess objective seriousness and all other factors, along with the ultimate importance of unifying principles that the cases reveal, when reviewing comparative cases as a yardstick: see Hili; Dalgliesh; Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58.
Statutory and Other Relevant Considerations
99. In sentencing the offender, the court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.
The court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, recognition of harm to the victim, and rehabilitation are important sentencing considerations.
In this case, as in other cases involving sexual offending against a child, deterrence is of particular importance. In 1991 the NSWCCA underlined that the courts have consistently reaffirmed the principle that children are entitled to grow up free from defilement by sexual predators and free from risk of psychological impacts and difficulties in later life caused by such conduct: see R v Dent (unreported) NSWCCA 14 March 1991). Similar statements have been made repeatedly since then by the courts: see CX v The Queen [2017] ACTA 37 at [39]-[40]; see also Porter at [283].
In R v Gavel [2014] NSWCCA 56; 239 A Crim R 469, the Court stated at [110] that:
This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psychological, which premature sexual activity can do". The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39].
As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357. The maximum penalty for the offences are 25 years and 5 years’ imprisonment respectively.
The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. Counsel for the offender properly conceded that nothing other than a sentence of full-time imprisonment is warranted. In this case, an alternative to full-time custody is not appropriate in my view taking into account the seriousness of the offending.
Counsel for the offender submitted that the NSW sentence was the first substantive stage of rehabilitation for the offender, and a major impetus to reducing the likelihood of re-offending. Counsel submitted that this can be factored into the present sentence by reducing the need for specific deterrence. Counsel further submitted that there may not be the same demand for retribution and denunciation in respect of the offending where that has, at least in part, already been achieved. I take that submission into account.
When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v Queen [2016] ACTCA 53 at [64]. In doing so, I must ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: Postiglione v The Queen (1997) 189 CLR 295 at 307-308, Mill v The Queen (1988) 166 CLR 59 at 63, Pearce v The Queen [1998] HCA 57; 194 CLR 610 and R v XX [2009] NSWCCA 115; 195 A Crim R 38.
In relation to concurrency, I refer to the following passage from O’Brien v The Queen [2015] ACTCA 47 at [26], citing Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 4 at [27]:
[W]here offences are not separate and distinct but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent.
In this case it is appropriate, taking into account the above principles, that the sentence imposed for Count 2 be fully concurrent with Count 1.
I also note the authorities concerning crushing sentences: see R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [15]-[18]. See also Porter at [295].
Overlap between ACT and NSW offending and delay
The offender has already served time in custody and on parole for similar offences against the same victim committed at the same general time.
The offences before me in this Court were committed in the period 1980-1981. The victim first reported the offending which occurred in New South Wales to NSW police in 2008. This resulted in the offender participating in an electronic interview with police where he made full admissions of that offending. He also disclosed offending in 1984 against another child victim about which the police had no knowledge.
The offender was subsequently charged with six charges of ‘indecent assault on a male’ pursuant to section 61 of the NSW Crimes Act in relation to offending against the same victim committed in the same period covered by the s 56 offence before this Court. The offender was sentenced on 22 July 2009 in the Wollongong Local Court to imprisonment for 21 months with a non-parole period of 6 months as referred to earlier in this judgment. This sentence related solely to discrete offences committed in New South Wales.
In relation to the sentence remarks in NSW, the prosecution took issue with certain remarks of the sentencing judge. It is trite to observe that I am obviously not sitting as a Court of Appeal in relation to the NSW sentencing remarks. I must sentence in accordance with the evidence in the case before me, regardless of the Prosecution submissions taking issue with certain remarks of the sentencing judge in NSW.
Counsel for the offender accepted that the NSW matters were additional offences that occurred in another jurisdiction, however noted that the offender has also been subject, and still is until 2024, to the strictures of the NSW Sex Offenders Register that requires police knowledge of whereabouts and monthly reporting to police.
As discussed earlier, the offences committed in the ACT could not be prosecuted at the same time as the NSW offences because there was in place a legislative time limit on prosecutions, later repealed in 2013.
In 2020 and 2021, the victim participated in Evidence in Chief Interviews with the AFP that resulted in the charges before this court. The prosecution submitted, in relation to this delay, that it is understandable that the victim might have struggled to initiate another criminal complaint given his view of the sentence in NSW.
The sentencing judge in NSW found that the nature of the delay was such that the offender should be extended a significant degree of leniency.
S 34 A Crimes (Sentencing) Act 2005 (ACT)
In 2009 the NSW parliament had not yet passed s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW) which commenced in 2018. This section is in similar terms to s 34A Crimes (Sentencing) Act 2005 (ACT) which commenced in 2018.
Section 34A provides the following:
34A Sentencing—sexual offences against children
For a sexual offence against a child, a court—
(a) must sentence the offender in accordance with sentencing practice, including sentencing patterns, at the time of sentencing; and
(b) must not reduce the severity of a sentence it would otherwise have imposed on an offender because the offender has good character, to the extent that the offender’s good character enabled the offender to commit the offence.
(emphasis added)
Counsel accepted that the Court must apply s 34A, given that it is “a clear statement from parliament as to the evolving public opinion about the abhorrence of sexual offences against children and the punishment that must be imposed.”
Counsel for the offender pointed to the additional difficulty faced by this Court being the different sentencing principles that applied in 2009 in NSW and today in the ACT. The offender was sentenced in NSW before the enactment of s 25AA and the Court must sentence after the enactment of s 34A, the equivalent provision. I take s 34A into account.
Submissions concerning overlapping offending and delay.
During the sentencing hearing I requested parties provide cases relevant to the question of the correct approach to the sentencing of the offender under s 56, given the offender has already been sentenced in NSW for offending extending over the same period with the same victim.
Counsel for the offender submitted that the effect of the above is that had it been possible to prosecute the present ACT matters in 2009, or had the victim come forward to ACT police between 2013 (when the statute of limitations was lifted for these matters) and 2018, the sentences to be imposed would have been in accordance with the sentencing practices that applied at that time. The offender’s counsel submitted that no part of any delay between 2009 and 2018 was caused by the offender, nor has the delay since 1982 been caused by him.
Counsel for the offender referred to the following comments made by Street CJ in R v Todd [1982] NSWLR 517 at [519]:
… where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense and to what will happen to him when in due course he comes up for sentence on a subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach.
(emphasis added)
This principle was endorsed by the Full High Court in Mill v The Queen (1988) 166 CLR 59 (Mill) at [14] as being a just and principled approach:
The long deferment of the trial or punishment of an offender, with the consequent uncertainty as to what will happen to him, raise considerations of fairness to an offender that must be taken into consideration when the second court is determining an appropriate head sentence. The intervention of a state boundary denies to an offender the opportunity of having the series of offences dealt with together by a sentencing court which can avail itself of the flexibility in sentencing provided by concurrent sentences.
(emphasis added)
Counsel for the offender correctly conceded that this is not authority for the proposition that, whenever there is a stale offence or substantial delay, leniency should always be extended.
At [16] the High Court stated:
In our opinion, the proper approach which his Honour should have taken was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all three offences […] in one jurisdiction and had been sentenced at one time.
This is in my view the correct sentencing principle to apply in the case before me.
The parties further brought the Court’s attention to the decision of Porter v R [2019] NSWCCA 17 (Porter v R). In Porter v R the offender had been originally sentenced for two offences (one of sexual intercourse without consent with the malicious infliction of actual bodily harm; and one of sexual intercourse without consent with the threatened infliction of actual bodily harm by mean of an offensive weapon, a knife) committed on 5-6 January 2002. The offences had been reported at the time, but the offender was not identified until DNA testing occurred in 2015. The sentencing complication was that the offender had been sentenced for similar sexual offending against different victims on two other occasions in February 2001 and February 2002. His sentence for those offences had expired in 2016.
The original decision was appealed on several grounds, including “error in the approach to the principle of totality”. The Court held at [76] to [77]:
When considering totality and the question posed in Mill v The Queen (what would be likely to have been the effective head sentence imposed if the applicant had been sentenced for all the offences at one time), the answer is that the applicant would likely to have received a further sentence for the offences in question that would have been accumulated substantially or completely, upon the other sentences. In addition, he would likely have received a longer sentence in respect of the sentences committed last in time, because at that time he would have had two prior occasions of serious sexual offending, not one. Putting it bluntly it would have been apparent that by the commission of the third set of sexual assaults with the space of the year, the applicant would not have been regards merely as an offender with a prior single occasion of similar offending, but an emerging rapist who posed a significant danger to women. Personal deterrence and protection of the community would have been very significant factors in the assessment of sentence.
The result of all of this is that if the applicant had been sentence for all three of these terrible assaults at one time, the present incident would [have] warranted a significant extension upon the term that would otherwise have been imposed for the other incidents.
The prosecution submitted that the observation above might be considered given that Count 7 addressed by the sentencing judge in NSW related to another victim.
The prosecution pointed to s 56(7) which provides that the sentence for the indecent assault charge cannot be made consecutive on the section 56 offence:
(7) A person—
(a) may be charged on a single indictment with, and convicted of and punished for, both—
(b) an offence against subsection (1); and
(ii) 1 or more sexual offences committed by the person against the same child or young person under the special care of the person during the alleged period of the relationship; but
(b) must not be required to serve the sentences for the offence against subsection (1) and the sexual offences consecutively.
Counsel for the offender correctly submitted that the NSW decision of Porter v R provides some guidance particularly as to that Court’s approach to delay and totality. Nevertheless, counsel properly distinguished those facts from the present case. Counsel further pointed to the fact that the second victim in NSW was not known to police until identified by the offender. Counsel for the offender correctly submitted that this Court cannot simply ignore the punishment in NSW as being for discrete offences and having expired, given that the offending involved the same victim and occurred over the same time frame.
Ultimately the NSW decision of Porter v R is an application of the principle settled by the High Court in Mill. I propose to sentence in accordance with the principles espoused in Mill.
The sexual offending by the offender in the ACT was regular and frequent, representing the majority of the sexual offending by the offender against the victim.
Counsel for the offender submitted the Court may consider a reduction in the non-parole period due to the offender’s age and state of health, including the offender’s diagnosis of Graves disease and a major depressive disorder, as factors which will make incarceration more onerous for the offender. I take these matters into account.
The delay, the lack of reoffending, the time served in custody and continuing rehabilitation of the offender are relevant sentencing considerations. A head sentence must be imposed that reflects the current law and the need for general deterrence along with the other purposes of sentencing.
Head sentence and non-parole period
The head sentence I have determined incorporates an instinctive synthesis of the objective seriousness of the offences, the subjective matters pertaining to the offender, comparable cases, and the relevant sentencing principles discussed above. All the matters which are relevant to the setting of the head sentence are relevant to the setting of the non-parole period, although they will have different weight: Bugmy v The Queen [1990] CLR 525 at [513]. The non-parole period is imposed because justice requires that the offender serve that period in custody: Muldrock v The Queen 244 CLR 120 at [57]. That is having regard to all the elements of sentencing including in the offender’s case, age and progress toward rehabilitation.
In relation to the non-parole period, I note the comments of the Court of Appeal in Henry v The Queen [2019] ACTCA 5 (Henry) at [36]-[37], citing with approval Millard v The Queen [2016] ACTCA 14; R v Bernath (1997) 1 VR 271 and R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo’ua), that the appropriate non-parole period is not decided by some mathematical relationship. Rather, a Court must consider a range of factors in determining the appropriate non-parole period including the need for rehabilitation, and general and specific deterrence. The Court in Henry summarised the view of the Court in Toumo’ua, stating at [37]: “the need for rehabilitation had to be balanced against the requirement that the sentence be of a severity appropriate in the individual case”. I have taken this into account in determining the non-parole period.
It has been stated that the usual range for a non-parole period in this jurisdiction is between 50-70%: Zdravkovic at [74]; Barrett v The Queen [2016] ACTCA 38 at [52]; Taylor v The Queen [2014] ACTCA 9 at [20].
Sentence
It must be recognised by the Court that the offences committed against the victim have had a serious and significant impact upon him. Both the short and long-term consequences of being a victim of the offences must be acknowledged by the Court.
In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offences and subjective matters of the offender.
The appropriate sentence for the s 56 offence is eight years imprisonment, reduced to six years on account of the plea of guilty discount of 25%. The appropriate sentence for the second offence against s 81 is 16 months reduced to 12 months on account of the plea of guilty. The latter sentence will be completely concurrent with the sentence for the s 56 offence. The term of imprisonment will be backdated to commence on 3 November 2022 to account for the time already spent in custody after I revoked the offender’s bail. I set a non-parole period of three years for reasons discussed above.
Orders
I make the following orders:
(a)I record convictions in relation to the offences.
(b)In respect of Count 1 (CAN 3545/2022): maintaining sexual relationship with a child or young person under special care, the offender is sentenced to 6 years’ imprisonment commencing on 3 November 2022 and expiring on 2 November 2028.
(c)In respect of Count 2 (CAN 932/2022): indecent assault on male, the offender is sentenced to 12 months imprisonment commencing on 3 November 2022 and expiring on 2 November 2023.
(d)I set a non-parole period of three years commencing on 3 November 2022 and expiring on 2 November 2025.
I make the following recommendation:
(a)In accordance with the health summary sent on 3 November 2022 (and to be resent again 7 December 2022) HH makes recommendation that Mr Cooksley be examined by a medically qualified doctor as soon as possible. This is arising from his Graves disease which has already been notified in the health summary sent to the AMC. There is urgency as a result of a medical episode that occurred approximately 10 days ago in custody. Mr Cooksley requires urgent medical attention.
| I certify that the preceding one-hundred and forty-four [144] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson Associate: Rebecca Emder Date: 07 December 2022 |
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