THE QUEEN JOHN MICHAEL COCKER. Counsel: K Stone for the Crown I M Antunovic for the Accused

Transcription

1 NOT RECOMMENDED IN THE HIGH COURT OF NEW ZEALAND CRI WELLINGTON REGISTRY THE QUEEN JOHN MICHAEL COCKER Counsel: K Stone for the Crown I M Antunovic for the Accused Sentencing: 15 October 2004 SENTENCING REMARKS OF FRANCE J Charges [1] John Michael Cocker you appear for sentencing today having pleaded guilty on the morning of trial to one count of possession of a Class A controlled drug methamphetamine (s 7(1)(a) and (2) Misuse of Drugs Act 1975) and having been convicted following trial of the following charges: a) Supply of a Class B controlled drug (Ecstasy) (one count) (ss 6(1)(c) and (6)(2) Misuse of Drugs Act 1975); b) Stupefying (one count) (s 197 Crimes Act 1961); and c) Indecent assault (one count) (s 134(2)(a) Crimes Act 1961). [2] At the end of the Crown case you were discharged under s 347 of the Crimes Act 1961 on one charge of abduction (s 208 Crimes Act). You were acquitted at trial

2 on one charge of offer to supply methamphetamine to the complainant in the other charges. Facts [3] The offending relates to events on the evening of Saturday 17 January 2004 and the early hours of the morning on 18 January [4] You rang the 15 year old complainant on the evening of 17 January 2004 hoping to get hold of your step-son. You ended up offering the complainant a ride home. Your account at trial and that of the complainant varied as to what happened after that. On the basis of the jury's verdicts it is clear that at some point during your driving together you gave the complainant half an ecstasy tablet after she said she wanted to try "E". [5] You took the complainant to an apartment/hotel which you paid for in downtown Wellington. After the two of you were in the room, you showed the complainant how to inhale nitrous oxide directly from a canister and it is the inhalation of nitrous oxide that gives rise to the stupefication charge. The complainant inhaled from about eight canisters. You then left the room returning in the early hours of the morning. [6] On the second occasion in the room you gave the complainant another half tablet of ecstasy and some more nitrous oxide. This time you showed the complainant how to inhale the nitrous oxide using a balloon. It is unclear how much nitrous oxide the complainant inhaled on this occasion. The two of you also smoked part of a cannabis cigarette. [7] It was around this time that you indecently assaulted the complainant. The indecent assault involved putting your hand on the complainant's stomach, touching the complainant on her breasts both on top of and under her clothing, and rubbing her vagina on top of her clothing. This went on for a period although the complainant did not have a clear recollection of exactly how long. 2

3 [8] You left the room shortly after that. The complainant then (about 35 minutes later) called the Police. [9] The complainant is someone who has known you all her life. She called you her "Uncle" and you were a family friend. [10] On the evening in question you had consumed methamphetamine, nitrous oxide, ecstasy, as well as cannabis. The complainant willingly consumed the drugs she took from you. Pre-sentence report [11] I turn to consider the pre-sentence report. You are 37 years old, and the youngest of a family of six. You describe having had a very good upbringing and family life. Your father died just before you turned 15, and it is at this time that you started taking drugs: cannabis, and then later diet pills, "speed", and "P". [12] You have worked as a floor sander since leaving school and for the past nine years have been self-employed. However, your business has collapsed since the offending. [13] You have been with your partner for the last 10 years. Together you have two young children, and your partner has a 16 year old son for whom you have acted as a father. You have all had to move out of the Wellington area as a condition of your bail. While on bail you were on a sickness benefit and I have a letter from your doctor about your medical condition. [14] Although your family and partner are devastated about your behaviour, they continue to be very supportive. That is seen in the letters they have written. [15] To the pre-sentence report writer you continued to deny the three charges. However, Mr Antunovic says he has spoken to you and you do now accept the jury's verdicts. 3

4 [16] You have two previous convictions for possessioh of cannabis but both are very dated (1984 and 1993). [17] Imprisonment is recommended. Victim impact report [18] The victim impact statement emphasises the breach of trust involved in your offending and obviously, what has occurred has been very distressing for the complainant. It has caused her difficulties in terms of other familial relationships and has had ongoing effects especially given the closeness of your respective families prior to this offending. Submissions of counsel [19] The Crown submits that I should approach your sentencing by considering what has occurred as a single series of events not a number of isolated incidents. Accordingly, Mr Stone submits that the administration of drugs to the complainant cannot be separated from the sexual activity which followed. In these circumstances, the Crown suggests it is difficult to take one offence as the lead, or most serious, offence. [20] On your behalf, it is acknowledged that offending of this kind normally attracts a prison term and it is accepted by you that a term of imprisonment must be imposed. Various features of the individual counts are then discussed. [21] Taking first the possession of methamphetamine charge, Mr Stone for the Crown submits this may perhaps be treated as a matter of background given this was as a result of a guilty plea you entered at the start of the trial and you were found not guilty of offering to supply methamphetamine to the complainant. Mr Antunovic on your behalf emphasises the latter factor and that this was a small amount intended for personal use. 4

5 [22] Nonetheless, the Crown says you were clearly using the drug or prepared to use it in the presence of a 15 year old girl and on your own evidence you were a user of the drug. It is submitted on behalf of the Crown that the maximum sentence of six months imprisonment is the appropriate penalty. [23] On the charge of supplying ecstasy, the Crown submits this warrants a substantial term of imprisonment. Counsel disagree on the relevance of the fact that the complainant took the drug willingly. Your counsel says it is relevant that supply was to a willing, although young, person. The Crown disputes that but, on the other hand, Mr Stone acknowledges that there is no evidence that you supplied to other persons or to the public in general and so in that sense the offence is towards the lower end of the scale. What, the Crown says, takes this charge into the more serious category is the difference in your ages and your position as "Uncle". Your counsel stresses both the small amount of ecstasy involved and the absence of any commercial element. [24] In terms of the indecent assault charge, while, the Crown says, it is not in itself the most serious of its kind, again it is submitted a serious breach of trust was involved and has caused great distress to the complainant. A sentence of more than two years imprisonment is appropriate as is the case with the stupefying charge under s 197. On the indecent assault charge, Mr Antunovic says the facts speak for themselves and you must accept the jury's verdict as you do. He says you accept your offending involves a breach of trust. [25] On the stupefying count, the Crown says that although the complainant may have been unconscious only very briefly from all the evidence, which the jury clearly accepted, it was your intention to put the complainant into such a state that she could not resist or adequately resist your advances. It is again submitted that this charge justifies a substantial sentence of imprisonment. Your counsel submits any stupefication was of short duration and the complainant was then a willing participant. [26] Mr Stone submits that there are no decided cases which give much guidance here with the cumulative series of events as to the length of any terms of 5

6 imprisonment. However, it is submitted that a total effective term of imprisonment in the range of three years would be by no mean excessive in this case when the whole episode and its effect on the complainant is taken into account. Mr Antunovic accepts that a term in the vicinity submitted by the Crown, or less, would be appropriate. Features of offending [27] I have to look at the aggravating and mitigating features of your offending, that is, the things that make it more and less serious. The aggravating factor is the breach of trust the complainant had known you all her life, you were both a responsible older person and a friend of her family, and someone she trusted. [28] The Crown submits other aggravating features include the fact you were a regular and heavy user of "hard" drugs including methamphetamine. I do not see that as aggravating although it is part of the context of your offending. [29] Contrary to the Crown submissions on this point, in my view there are some mitigating factors: a) Previous good character. Mr Antunovic submits your offending is out of character and submits it is apparent from the material before the Court that you are not someone who would normally be regarded as a sexual predator. He also emphasises that the offending is deeply regretted by you. I have a letter from you in which you express your sorrow for the hurt and suffering your actions have caused the complainant as well as the pain you have caused to her family and your own. I accept your regret is genuine. b) Your guilty plea on the possession of methamphetamine charge. 6

7 Legal principles [30] The purposes of sentencing you include deterrence and denunciation. I have thought about what you say in your letter and about the effects of imprisonment on your partner, your own children, and particularly on your step-son who have both written to me. But, the reality is that those purposes of denunciation and deterrence cannot be met by other than a term of imprisonment and I know you now accept that. [31] I approach your sentencing on the basis that your offending involved a course of conduct over the night. But, it is important to note that I do not sentence you on the basis that the stupefication was for the purpose of enabling the indecent assault. Rather, the indecent assault was opportunistic. It was no doubt out of character and affected by your drug induced state. But, it remains a dreadful thing to have done that has undoubtedly had a significant impact on the complainant. [32] In addition, in terms of the drug-related charges, this involved your possession of drugs which you supplied to a 15 year old girl resulting in her temporary stupefication. A consequence of that was to leave her in a vulnerable state. I bear in mind her complicity in drug taking but also that she was only 15. [33] In terms of comparable cases, reference can be made to R v H (High Court Rotorua, S 1/96, 7 February 1996, Kerr J). H pleaded guilty to one charge of indecent assault, and one charge of stupefying with intent to commit a crime, namely, indecent assault. He gave his two sons, and his son's 14 year old friend, the complainant, alcohol and medication which is ordinarily supplied prior to an operation. Once the alcohol and drugs had taken effect, he engaged in "playfighting" with the complainant and then indecently assaulted him. Whilst the sentencing notes in that case do not describe the nature of the indecent assault, they do state that it was at "the lower end of the scale". In sentencing, the Judge took into account the stupefying as an aggravating feature of the indecency charge. The Judge also acknowledged, as aggravating factors, the fact that he had set the scene for his offence, and that he was in a position of trust. Accordingly, the sentencing Judge considered that the appropriate starting point was three years imprisonment. However, this was reduced to two years imprisonment to take into account the 7

8 mitigating factors, namely, that man was a first offender, 'that he pleaded guilty, that he voluntarily undertook counselling, that he himself had been sexually molested as a child, and that he was genuinely remorseful and of good character. [34] In all of these circumstances, an appropriate starting point for the indecent assault charge would be 18 months imprisonment. On the other offending appropriate starting points would be one year's imprisonment, that term giving some credit for the guilty plea on the possession of methamphetamine charge. That makes a total start point of two and a half years imprisonment. [35] I then give you credit for the fact the offending is out of character, you have been a contributing member of the community through your work, a father to your children and to your step-son, and in a stable relationship with your partner, and importantly I want to recognise your rehabilitation prospects. Accordingly, I impose an effective sentence of two years three months imprisonment. I reach the two year three month figure by imposing a term of one year three months imprisonment on the charge of indecent assault. This is to be served cumulatively on one year terms for each of the charges of supply of ecstasy and of stupefying. The latter two terms are concurrent on each other. On the count of possession of methamphetamine you are convicted and sentenced to four months imprisonment concurrent on the one year terms. [36] Please stand down. E France J Solicitors: Crown Solicitor, Wellington, for the Crown Antunovic Legal, Wellington, for the Accused 8