Not Restricted
Suitable for Publication
AT Melbourne
CRIMINAL DIVISION
Case No. CR-13-10479
DIRECTOR OF PUBLIC PROSECUTIONSv
SIMON MITCHELL COOPER
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JUDGE: / HIS HONOUR JUDGE NORRISHWHERE HELD: / Melbourne
DATE OF HEARING: / 15 November
DATE OF SENTENCE: / 19 November 2013
CASE MAY BE CITED AS: / DPP v Cooper
MEDIUM NEUTRAL CITATION: / [2013] VCC 1763
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: / Counsel / SolicitorsFor the Crown / Mr J. Pearce QC
with Ms D Mandie / South Australian Director of Public Prosecutions
For the Accused / Mr I. Hill QC
with Ms M. Fox / Galbally & O’Bryan Lawyers
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HIS HONOUR:
Introduction
“The core of the difficulty lies in the complexity of the sentencing task. A sentencing judge must take into account a wide variety of matters which concern the seriousness of the offence for which the offender stands to be sentenced and the personal history and circumstances of the offender. Very often there are competing and contradictory considerations. What may mitigate the seriousness of one offence may aggravate the seriousness of another. Yet from these the sentencing judge must distil an answer which reflects human behaviour in the time or monetary units of punishment.” (Wong v The Queen (2001) 207 CLR 584 at [77])
1. Simon Cooper appears today for sentence in relation to seven charges of indecent assault committed upon two victims between 1 January 1984 and 31 December 1986. The offences committed are contrary to s 44(1) Crimes Act 1958 and each carry a maximum penalty of five years imprisonment. The first six charges relate to the victim AA, to whom I will refer as ‘the first victim’, Charge 7 relates to his younger brother, BB, to whom I shall refer as ‘the second victim’.
2. The offender was aged between 27 and 29 years of age at the time of the offending and is now 56 years of age. The first victim was aged between 17 and 18 at the time of the offences. The second victim was aged also between 17 and 18 at the time of the commission of the crime concerning him.
3. The Court has been provided with an extensive statement of facts as part of the ‘Crown Opening on Plea’ (Exhibit A), which was largely read in open court by learned Senior Counsel for the prosecution. The essential facts relied upon by the prosecution, both as contextual evidence and in respect of the specific offences, are not in dispute. One matter of dispute is whether the conduct of the offender relied upon by the prosecution to provide context to the offending could be categorised as “grooming” the victims in the sense of desensitising them to inappropriate sexual behaviour towards them by the offender.
4. The offender has no convictions or charges at this time.
5. The evidence in the prosecution case includes the above-mentioned ‘Crown Opening’ (which included other material including submissions by the prosecution), the contents of the committal papers which were filed in the Court and three victim impact statements, one from each of the victims and a third from the father of the victims. In the defence case was produced a psychologist’s report by Patrick Newton, who gave oral evidence in the sentence proceedings, a chronology, written and oral character testimonials, copies of media reporting relating to the offender and a statement from an ambulance officer who treated the offender on his arrest as well as detailed written submissions. The Court has also been aided by skilled and helpful oral submissions from both prosecution and defence for which it is most grateful. All evidence, documentary and oral, submissions and other material provided to the Court has been taken into account, although time does not permit reference to all of it directly.
6. The offender did not give evidence in the proceedings, but a number of hearsay representations and admissions were admitted from material tendered in various forms by prosecution and defence.
The Crown Case
7. To understand the offending and the wider context in which it occurred it is necessary to set out a number matters that are established from the evidence. I bear in mind in relation to the issue of fact-finding that I have undertaken that by regard to evidence produced by both prosecution and the defence, which is largely undisputed, in the context of the principles reiterated in The Queen v Olbrich (1999) 199 CLR 270, at [1] and [27]. Given the detail of the exhibited facts there is no need to reiterate them fully.
8. The offender was at the time of the offending a young barrister aged between 27 and 29. During the time of the offending he was regularly a junior to the victims’ father, a prominent Victorian barrister, who was a mentor to him. Since the offending the offender has been appointed as a Crown Prosecutor for the State of Victoria, which position he served with distinction for 16 years and was a prosecutor in the Solomon Islands for approximately two years. He was appointed a Magistrate for the State of Victoria in February 2012. On pleading guilty to these charges he resigned that position in or about August 2013. He is currently unemployed.
9. The offender developed a close relationship with his mentor’s family and became almost part of the family, being regarded by the victims as another brother (one victim referring to him as a “second brother”) and a close friend of the victims’ parents. The relationship between the offender and his mentor developed from the professional to the personal. The offender had much contact with the victims as they grew through their teens and lived from approximately 1983 or 84 nearby to their home, when he purchased a home at which the victims were regular visitors.
10. The victims described over the period of time between 1980 and 1983 the offender making what are now described as inappropriate comments and gestures, using sexual innuendo, touching, allowing himself to be seen naked and the like. In around 1980, when the first victim was 14 years of age, he recounts the offender touching him in a way that at the time appeared to be a’ joke’ but which was later to be seen as inappropriate. Examples of that conduct are set out in the’ facts’ in the Opening. The offender’s inappropriate conduct towards the second victim was not as frequent, but both victims report inappropriate conduct by the offender in 1983 when they travelled interstate to Queensland and New South Wales with the offender (with the permission of their parents) which included intimate touching and/or cuddling in bed.
11. The offender from 1983 also stayed at the home of the victims with the permission of the parents from time to time and there engaged in inappropriate touching of the first victim and the second victim when he stayed overnight. The victims did not complain to their parents. No doubt there was on their part a degree of bewilderment at the offender’s behaviour. He was obviously liked and to some extent admired by the boys, or young men, who were not of an age to assess the inappropriateness of his conduct. Also, the parents of the victims were favourably engaged with the offender and believed that their children were safe with the offender, in whose care their sons were entrusted from time to time.
12. The parents became aware of some of the conduct of the offender brought to their attention by the younger son. Firstly, in about 1985 or 1986, after the offender wrote a note addressed to the second victim, who was then aged 16 or 17, stating: “I love you with all my heart, please fuck me at your earliest convenience”, which was shown to the victim’s father who confronted the offender. After some prevarication as to its authorship the offender broke down and cried and told the father that he had written it under pressure and stress. At a later time as I would understand the evidence, upon the commission of the seventh charge upon the second victim, that victim told his parents to “get that sick fuck out of the house”, causing the offender to leave immediately. Notwithstanding these warning signals, although noting that the offending ceased with this last occurrence, the offender maintained a close personal relationship with the family and continued to be involved in family affairs of the victims. In fact, as I understand it, he was invited to attend the wedding of the first victim. I would assume some years after the offending. It seems clear from the victim impact statements and the ‘statement’ of facts that the first victim has repressed the effects upon him of the offender’s conduct, not making complaint to his parents until very recent years. The offending has had a greater impact upon him than that upon his brother, but he had been subject to more frequent and intense assaults.
13. The first two indecent assaults in time reflected in Charges 1 and 2 were connected events and involved indecent acts described in paragraphs 27 – 28 of the Opening, when the first victim had consumed alcohol that left him passed out, only realising that the offender was indecently assaulting him when he awoke and was semi-conscious. The victim struggled to resist and the offender ultimately desisted. The offender had consumed alcohol on this occasion. For Charge 1 he pressed his penis against the victim’s anus and for Charge 2 he touched the victim’s genitalia.
14. Charges 3, 4 and 5, involve an event in 1984, again when that victim was intoxicated from drinking strong alcohol, as was the offender, and occurred when the offender whilst in bed with a female friend, invited the victim to participate in a somewhat bizarre ménage à trois, during which the victim consensually had sexual connection with the young woman but during which the offender indecently assaulted him in the manner described in paragraphs 31, 32 and 33 of the prosecution’s facts. The acts included touching of the victim’s genitalia and indecent actions directed towards anus of the victim by use of the offender’s penis and finger. On this occasion, at the completion and or during the commission of the offences when the victim resisted, the offender persisted with forceful bodily actions for a period of 10 minutes before the victim got out of the bed and slept elsewhere.
15. The last offence against the first victim involved the offender attempting to masturbate the victim at the offender’s home, when the two of them were intoxicated after a night out with the victim’s mother. The victim found himself with the offender lying in his bed and rubbing himself against the victim and the victim resisting. This event so disturbed the victim that he fled the house in bare feet and hid in a telephone box. Whether he was followed by the offender I am unable to conclude with certainty. The detail of this matter is set out in paragraphs 35 and 36 of the ‘facts’ produced.
16. The last offence in time committed against the second victim involved inappropriate touching of the victim on the genitals and the offender pressing himself against the victim, in the victim’s bedroom at his parent’s house, but not whilst he was in bed and while he was wearing underpants. This was the occasion that that victim told the offender he was a “sick fuck” who needed “help” and complained to his parents that he should leave the house.
17. The details of the offending came to light when the first victim gathered the considerable courage to reveal all to his parents, through his father initially, in late 2011. He then took the next courageous step of giving a statement to the police in late 2012. Police then obtained other evidence, including a statement from the second victim and the parents of the victims, before conducting an operation which involved the first victim participating in pretext telephone calls with the offender and the legal, but surreptitious, recording of a private conversation between the offender and the victim at a cafe on 14 January 2013.
18. The Crown’s ‘Opening’ sets out extracts from the variously recorded conversations with the offender, which show the offender initially in denial when confronted with the allegations of the victim on the first occasion by telephone call on 10 January 2013.
19. The first pretext conversation on 10 January would have come, for the offender, ‘out of the blue’, so to speak. Accepting his subsequent partial remembrance of many of these events, denial outright initially is an understandable defence mechanism in the circumstances in which he was confronted. The next pretext conversation three or four days later would not have come like the thunderbolt that the first one did with its dramatic “revelations” of the victim’s feelings and recollections. The offender on this occasion was more conciliatory, revealed a willingness to accommodate what he could not remember and made statements of consolation and concern for the victim.
20. This victim, in his victim impact statement detailing the profound effect upon him over many years of the offender’s criminal conduct, has difficulty accepting that the offender has genuine concern for him. I appreciate of course, this victim’s bitterness towards the offender, which is understandable and justifiable. Of course, this Court is not aware of the other vicissitudes of life that have impacted upon the victim, as they impact upon all of us, without acknowledgement, or appreciation. But there can be no doubt, whatever be the full story, that the offender’s conduct has had a profound effect upon the first victim especially. I have also had close regard to the impact upon the victims’ parents, expressed movingly by the father, as well as the restrained but compelling statement of the second victim.