Cooke v The Queen [2021] VSCA 70

1 Pursuant to leave granted by a judge of the Court,[1] the appellant, now aged 24 years,[2] appealed against a sentence of three years and six months' imprisonment, with a non-parole period of two years, imposed upon him by a judge of the County Court following his guilty plea to one charge of sexual penetration of a child under 16 years.[3]

1. The learned sentencing judge erred in failing to moderate general deterrence when imposing sentence on the [appellant].
2. The sentence imposed on the [appellant] is manifestly excessive.

3 At the conclusion of oral argument on 23 March 2021, we allowed the appeal and resentenced the appellant in the manner set out below.[4] These are our reasons for those orders.

4 It is necessary to provide some detail of the appellant's offending. For convenience, in order to do so we have drawn heavily on the description provided in the Leave Reasons.[5]

1. The appellant and the complainant, 'JMM', became known to each other through associates and the multimedia messaging application 'Snapchat'. At the time of the offending, the appellant was aged 22 years and JMM was aged 14 years. JMM resided at a Department of Health and Human Services Residential Care Unit.
2. On 17 January 2019, the appellant commenced contacting JMM on Snapchat messenger. He continued to contact her until 26 February 2019, having made eleven requests to meet. On ten occasions, JMM declined to meet.
3. During the afternoon of 26 February 2019, JMM was socialising with a friend in a suburb close to where the appellant lived, when the appellant made his eleventh request to meet. The appellant sent JMM a Snapchat message with the address of the bus stop nearest his house. JMM caught the bus and alighted at the designated stop. At about 8.00 pm, the appellant called JMM by voice call on Snapchat to explain how to find him. The appellant then approached JMM, and she followed him to his house, walking ten metres behind (this being captured on CCTV from a nearby home).
4. When they arrived at the appellant's house, nobody else was home. The appellant led JMM to his bedroom and told her to sit on the bed. The appellant then penetrated JMM's vagina with his penis for approximately three to four minutes before ejaculating on her stomach.
5. After he ejaculated, the appellant obtained a towel from a chest of drawers and used it to wipe his penis and JMM's stomach and genital area. The appellant told JMM to get dressed and to not tell anyone what had happened, and he told her to, 'Leave the house and turn left'. JMM then put on her clothes and left. She rang her residential care worker and asked to be picked up from her friend's house. JMM was upset and crying, and was taken back to her residence.
6. The next day, 27 February 2019, JMM told her child protection worker what had happened. As a result, police were notified. On 28 February 2019, JMM attended the Royal Children's Hospital for a full forensic medical examination; and on 1 March 2019, JMM took part in a VARE[6] statement with police, detailing the offending.
7. A few days later, on 7 March 2019, police executed a search warrant at the appellant's home, and he was arrested. Police seized the appellant's mobile telephone and a green towel. In the course of the search, police spoke to the appellant's mother. She said that she had previously warned the appellant about having a relationship with a girl under the age of 16 years.
8. The appellant was taken to the Fawkner Police Station. In the course of a recorded interview he told police that:
   • he knew JMM through social media and that they communicated via Snapchat for approximately 2 months;
   • he told her he was 22 years old, and she had told him she was 14 years old;
   • on 26 February 2019, JMM messaged him and asked if he wanted to meet, telling him that she wanted to have sex and lose her virginity;
   • the same day, he told JMM that his house was free, and arranged for her to catch the bus to his house;
   • JMM arrived on the bus, but missed the bus stop he told her to get off at, so he voice called her via Snapchat, and explained where to walk;
   • when he saw her, he just started walking back to his house, and JMM followed him;
   • all he wanted to do was be civil and get to know her, he did not want to do anything;
   • they went straight to his room and he put on a movie;
   • he asked her what she wanted to do, and she leaned over and started kissing him;
   • he asked her for her age - from what he remembers it was 14 or 15 - and he said, 'This is illegal';
   • he asked if she was comfortable with what was going on, and she said 'I just wanna have sex', prompting him to say, 'I really don't want to. I don't want to do anything';
   • they went back to watching the movie, then she started kissing him again;
   • he said, 'I really don't want to do this', but she pulled him on top, and she grabbed his penis and put it in her vagina;
   • he tried to get up and she kept on pulling him closer;
   • it went for around two or three minutes, until he ejaculated on her stomach;
   • he had asked her 'with or without' a condom, and she said 'without', so he did not use a condom;
   • he was in shock because he did not think that this would happen;
   • he had never been forced to do anything really, apart from one time;
   • he used the towel, they got dressed, and then he told her how to get to the bus stop;
   • he agreed that he was worried that she might tell someone, and he told her not to say anything;
   • he did not want anything to do with her after that, so he deleted her off all social media; and
   • he went and had a shower, and broke down completely.
9. The appellant also told police that his mother had spoken to him about having relationships with young girls, and that he could get in trouble and go to prison. The appellant's mobile phone was later analysed, but no communications between the appellant and JMM were located.

14 The judge's reasons for sentence were summarised in the Leave Reasons. Once more for convenience, what follows is drawn from that summary.[7]

15 In his sentencing remarks, the judge noted that the appellant had indicated his guilty plea at an early stage. The plea had utilitarian value and demonstrated 'some remorse'.

16 JMM's mother had read aloud her Victim Impact Statement (Exhibit B) on the plea. She said that JMM was diagnosed with high functioning autism, attention deficit hyperactivity disorder and complex trauma. The offending, she said, had a 'devastating effect on her and her children'. It is clear, the judge remarked, that the appellant's offending had a 'significant impact' on JMM, her mother, and her family.

17 The judge noted that the appellant had no prior convictions, and that he was a 'youthful offender',[8] so that the appellant's rehabilitation ordinarily should be promoted. And referring to the submission that a community correction order should be imposed, the judge said:

I am mindful of the provisions of the Sentencing Act and in particular s 5(4C), which directs a sentencing court to consider whether a community corrections order can achieve the purposes for which this sentence is to be imposed. I have reviewed the case of Boulton[9] in considering if a community corrections order would be appropriate in your case. I have had you assessed for a community corrections order. You have been assessed as suitable, as you know, that is not the end of the matter.

18 In outlining the appellant's personal circumstances, the judge said that he had 'a stable and supportive family'. He had been born two months premature with the condition of Foetal Hydrops, a condition from which 98 per cent of children die. Physical abnormalities resulting from his birth condition, and his social interaction with other students, made him the target of constant bullying at school. The appellant did not complete VCAL[10] but finished Year 12 with a leaving certificate. After leaving school, the appellant had a number of short-term employment placements. At the time of sentence, the appellant was unemployed and spent most of his time in his room.

19 A psychologist, Ms Kate Gray, gave evidence on the plea, and her report, dated 23 September 2019, was tendered (Exhibit 2). Ms Gray had provisionally diagnosed the appellant with autism spectrum disorder - but was unable to confirm the diagnosis - and considered it also possible that the appellant suffered a traumatic brain injury during his difficult birth. She assessed the appellant as being in the moderate range for depression and anxiety. While the appellant described feelings of guilt over his offending, Ms Gray stated that the appellant felt little remorse of any lasting nature. The appellant placed little importance on his social role and responsibilities and could not feel remorse because of it. Ms Gray assessed the appellant 'as falling into the moderate risk category of sexual reoffending, specifically with underage females'. In Ms Gray's opinion, imprisonment would have two detrimental impacts on the appellant: first, the appellant is the type of person that would be victimised in prison due to his social interaction with others; and, secondly, the appellant's anxiety and depression would be adversely affected by his isolation in custody.

20 Importantly, the judge accepted that, based on Ms Gray's evidence, 'some limited moderation' of the appellant's moral culpability was called for due to his 'compromised conditions'. He did not accept, however, that the appellant's identified conditions had a causal connection to the offending.[11]

21 The appellant's counsel had submitted that, due to his traumatic brain injury and autism spectrum disorder, the appellant's time in prison would be more onerous, and his depression and anxiety would deteriorate. Accepting that Verdins had application, the judge said that the appellant's sentence 'will be moderated to reflect these matters'. As to family hardship, however, the judge found that 'the level of hardship is not of a level where it becomes a sentencing consideration in this case'.

22 Ms Gray's opinion that the appellant presented a 'moderate risk of reoffending particularly with young girls' was noted. The judge expressed the view that the appellant's prospects of rehabilitation were 'guarded', and assessed the appellant's offending as 'less than the mid-range of seriousness for this type of offence'.

23 The judge referred to the available maximum sentence, and noted that the standard sentence for the charge is six years' imprisonment.[12] He concluded his sentencing remarks as follows:

The provisions of s 11 of the Sentencing Act set out in a standard sentencing case such as this, that the non-parole period is at least 60 per cent of the total sentence. In this case, due to the particular and unusual circumstances of the offence and matters relevant to you personally, I am going to impose a non-parole period which is slightly less than 60 per cent of the head sentence.

The circumstances of this offence and your personal circumstances do not admit of any just sentence, other than a term of imprisonment with a non- parole period. The sentencing principles of general and specific deterrence, just punishment, denunciation of your offending and the protection of the community dictate that the only appropriate sentence is imprisonment. Hopefully, you will be granted early parole at an early time, so that the Adult Parole Board can assist you with your rehabilitation.

24 In the written case, the appellant's counsel submitted that the appellant's presentation to Ms Gray was 'consistent with someone who has a traumatic brain injury and Autism Spectrum Disorder'. Ms Gray expressed the view that the appellant's 'capacity to make sound reasoned and responsible decisions is diminished due to difficulties in terms of social comprehension and social reasoning'. There was no indication in the reasons for sentence, however, that the judge moderated the weight to be given to general deterrence.

25 Counsel submitted that while the judge did allow for some reduction in moral culpability when dealing with Verdins[13] principles, and accepted that the appellant's time in custody would be more burdensome, he did not seem to acknowledge the submission that the weight to be given to general deterrence ought to be moderated. Indeed, the length of the sentence imposed, it was submitted, 'would tend to confirm that this necessary moderation of the weight to be given to general deterrence has simply not occurred'. In light of the appellant's 'psychiatric difficulties', counsel submitted, the judge should have recognised that 'the appellant was not a suitable vehicle for the full measure of general deterrence to be applied'.

26 The appellant's counsel submitted that, given 'the particular circumstances of this offending and the unique circumstances of [the appellant] ... the sentence imposed can be described as manifestly excessive'. Thus, the sentencing judge recognised that the appellant's offending fell below the mid-range of seriousness. It was confined to 'one episode' and lacked the aggravating features that may be associated with cases of this kind (such as 'a victim of a very young age', 'a very wide age differential', 'the use of force', and 'a breach of trust'). Moreover, due to his psychiatric difficulties and youth, the appellant was not an appropriate vehicle for the full measure of general deterrence. He had indicated his plea of guilty at an early stage, avoiding the cost of a committal and trial, and sparing the complainant the ordeal of giving evidence. Although his psychiatric difficulties impinged on his ability to feel remorse, the appellant had nonetheless accepted responsibility for his offending, had shown a willingness to facilitate the course of justice and demonstrated some remorse.

27 In oral submissions, senior counsel recapitulated and refined the main aspects of the submissions in the written case. He emphasised the appellant's relative youth and 'complex psychiatric profile', and drew attention to the expert opinion that the appellant's 'social intelligence or social age' are likely to be lower than that of the complainant (and others with whom he connects over the internet). It is difficult to see in the sentence imposed any 'sensible moderation' of general deterrence or specific deterrence, and the sentencing remarks do not reflect that the judge purported to moderate the application of specific deterrence in the appellant's case.

28 In written submissions, counsel for the respondent submitted that, due to the circumstances of the offending, the judge did 'allow for some limited moderation' of the appellant's moral culpability. The judge took a similar approach to general deterrence, in that it was not given full weight. Counsel also submitted that, although the judge 'did not moderate the weight to be given to moral culpability and general deterrence under the rubric of Verdins, the matters relied upon were given appropriate weight'. The judge observed that 'sexual offending against a 14-year-old girl, calls for some measure of general deterrence'.

29 The respondent's counsel submitted that the appellant knew the wrongfulness of his actions, and had been warned by his mother and aunt against pursuing sexual relations with underage girls. Ms Gray had also confirmed that the appellant knew sexual intercourse with JMM was illegal, but he lacked empathy for her or moral understanding of the conduct. In contending that the sentence imposed was within the bounds of sound discretionary judgment, counsel for the respondent relied on a number of factors, including: the age disparity; the appellant's knowledge that JMM was aged 14 years; JMM's vulnerability; the devastating impact of the offence upon her; the appellant's pursuit of her; the level of planning involved; the sexual nature of the appellant's communications with JMM; his failure to wear a condom; and the warnings to the appellant by his mother and aunt not to have relationships with underage girls.

30 In oral submissions, senior counsel among other things drew attention to the sentencing judge's assessment of the appellant's prospects of rehabilitation as being 'guarded'. She submitted that, despite the appellant's psychological condition, protection of the community remained a significant sentencing feature. Counsel also submitted that much of what the appellant had said to Ms Gray, and to police in the record of interview, demonstrated an avoidance of responsibility on the appellant's part.

31 As we have indicated, the judge had the appellant assessed for a community correction order ('CCO'), but, although the appellant was found suitable, the judge ultimately rejected the option of a CCO on the basis that 'the circumstances of this offence and [the appellant's] personal circumstances do not admit of any just sentence, other than a term of imprisonment with a non-parole period'.[14]

33 Notwithstanding the seriousness of the offence as reflected by both the maximum and standard sentences, we regard the sentence of three years and six months' imprisonment, with a non-parole period of two years, imposed upon a relatively youthful offender whose moral culpability is reduced by psychological factors which seem to have an organic origin, as being wholly outside the range of sentences open in the sound exercise of the sentencing discretion.

34 Although it appears that the appellant's offence was to an extent premeditated, and there was a considerable gap in his and JMM's ages,[15] the appellant could not be considered to have been a typical 22 year old male. Indeed, the evidence is that he is not 'neurotypical', undoubtedly having suffered a traumatic brain injury in infancy. It seems clear enough from Ms Gray's evidence that the appellant meets the diagnosis of ASD, and that he did not understand the gravity of his conduct and its moral implications. Thus, in her evidence on the plea Ms Gray said that 'he understands the word of the law, but he doesn't understand the meaning or the impact on somebody'. In a similar vein, Ms Gray also gave the following evidence:

[DEFENCE COUNSEL]: Does he appear to you to understand the gravity of that conduct [viz, sex with people who are underage], and where that can lead in terms of consequences?---He understood the consequences, yes, and I don't believe he understood the more complex side of consent and the moral side. I believe he just knew the word of the law.

For example, is his understanding of why that's unlawful and the seriousness of it, the same as people who present in a neurotypical way of his age?---No, I don't believe [so]. I think it's highly underdeveloped. ... I don't think he understood the gravity, though he knew he could tell you what the word of the law was.

35 In her report, Ms Gray had stated that the appellant

does not present as neurotypical. His presentation is consistent a traumatic brain injury (TBI) due to the difficulties at birth and autism spectrum disorder (ASD), though further assessment for the latter is required. Although previously recommended, an ASD assessment has not been completed. TBI and ASD are lifelong conditions. [The appellant] exhibits associated symptoms of depression, anxiety, emotion recognition difficulties, social loneliness, isolation, communication deficits, an abnormal social approach and social skills deficits. [The appellant's] social intelligence or social age are likely to be lower than that of the victim and those with whom he connects online. Given his social immaturity and history of being significantly bullied by his peers, it is likely that he is more at ease and has more in common with those younger than himself; this does not suggest a specific sexual attraction to underaged females.

36 Furthermore, in other evidence on the plea Ms Gray stated that the appellant meets 'all the diagnostic criteria' of ASD (although that formal diagnosis could not be made until completion of an ADOS - 'Autism Diagnostic Observation Schedule'). Importantly, having conferred with the appellant's paediatrician, Ms Gray was definite in her opinion that the appellant had a brain injury as a result of hypoxia at birth. In Ms Gray's opinion, although the appellant 'knew the word of the law', he did not understand 'the moral side' and did not understand the 'gravity' of his conduct.

37 In light of Ms Gray's opinions - the validity of which we see no reason to doubt - we consider that both general deterrence and specific deterrence needed to be sensibly moderated in the appellant's case. It is difficult, however, to see sufficient sensible moderation reflected in the sentence imposed. As has been said many times, manifest excess is a conclusion that does not depend on identified discrete error. But we consider it to be likely that both general and specific deterrence assumed too much prominence in the judge's exercise of the sentencing discretion.

38 For these reasons we allowed the appeal and set aside the sentence of the County Court. In lieu, we sentenced the appellant to 12 months' imprisonment, to be followed by a CCO of 2 years' duration, with a treatment and rehabilitation condition directed to ameliorating any risk of re-offending,[16] and a supervision condition, permitting the appellant to be supervised, monitored and managed as directed by the Secretary to the Department of Justice and Community Safety.[17] We confirmed all other orders of the County Court. Pursuant to s 18 of the Sentencing Act 1991, we declared that the period of 522 days be reckoned as a period of imprisonment served under the sentence.[18]

39 Pursuant to s 6AAA of the Sentencing Act 1991 we declared that, but for the plea of guilty, we would have sentenced the appellant to 2 years and 6 months' imprisonment, with a non-parole period of 18 months.

[1] Cooke v The Queen (Unreported, Court of Appeal, Priest JA, 24 April 2020) ('Leave Reasons').

[3] Crimes Act 1958, s 49B(1). The maximum penalty is 15 years' imprisonment.

[8] The judge cited R v Mills [1998] 4 VR 235; R v Wyley [2009] VSCA 17; and Azzopardi v The Queen [2011] VSCA 372; (2011) 35 VR 43.

[9] Boulton v The Queen [2014] VSCA 342; (2014) 46 VR 308.

[10] Victorian Certificate of Applied Learning.

[11] Citing R v Verdins [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[12] Crimes Act 1958, s 49B(3).

[14] See [23] above.

[15] Non-use of a condom may also have been considered an aggravating feature: see R v Khem [2008] VSCA 136; (2008) 186 A Crim R 465; Szeto v The Queen [2012] VSCA 155; (2012) 36 VR 47.

[16] Section 48D(3)(f) of the Sentencing Act 1991 permits the Court to specify a treatment and rehabilitation condition, including 'any program that addresses factors related to [an offender's] offending behaviour'.

[17] See s 48E of the Sentencing Act 1991.

[18] The respondent queried whether the Court should declare that a period of 522 days - that is, a period exceeding the sentence of 12 months' imprisonment that the Court imposed upon resentence - should be declared, and referred the Court to DPP v Grech [2016] VSCA 98. In our view, however, the reasoning in Grech does not support the proposition that a declaration under s 18 cannot exceed the length of a term of imprisonment capable of being imposed in combination with a CCO. See Younger v The Queen [2017] VSCA 199, [64]-[67] (Redlich and McLeish JJA, and Croucher AJA).