State of New South Wales v Cook

Mr Daryl Norman Stanley Cook (the defendant) was born in December 1960, and accordingly is now 57 years of age. Sadly, he was first committed to an institution by the Children’s Court at Blacktown in May 1972, at which time he was 11 years of age. Since that time, he has spent the vast majority of his life in custody, either by way of being detained in a juvenile institution or incarcerated in an adult prison. That is in turn the result of the fact that over many years he has committed many crimes of many kinds, some of them of the utmost gravity.

To expand on that a little, he has committed many offences against property and with regard to driving; they are of reduced relevance to the current proceedings, and do not require further analysis.

As long ago as June 1975, he was committed to an institution by the Children’s Court for unlawfully discharging a firearm.

His first conviction for escape in November 1978 led to him being imprisoned for six months by the District Court at Parramatta; since that time, there have been many entries for that offence.

In September 1981, he was found not guilty at the end of a trial by jury in this Court of the offence then known as rape; although that unproven allegation is not entirely irrelevant, I give it little weight.

In September 1981, he pleaded guilty to an alternative charge of assault occasioning actual bodily harm in full satisfaction of an indictment containing a count of assault with intent to rape, with the result that he was imprisoned again.

In October 1985, he was sentenced in the District Court to a substantial head sentence of imprisonment for five years with a non-parole period of three years for two counts of breaking and entering with intent to steal. The following month, he received a seemingly concurrent sentence for supplying cannabis.

Notably, in March 1989 he was sentenced in the District Court to a head sentence of imprisonment for 10 years with a non-parole period of 7 years for offences that included 18 counts of armed robbery; I believe I am entitled to infer that at the time he was suffering from an addiction to heroin that was out of control.

In May 1996, he was sentenced in the District Court for a further count of armed robbery to a head sentence of three years with a non-parole period of two years.

More significantly, in 2002, the defendant was found guilty at the conclusion of a trial by jury of threatening to inflict actual bodily harm on a person with intent to have sexual intercourse.

In a nutshell, on 5 April 2001, the complainant, a 17 year old girl, was out and about in Port Macquarie in the evening. She met the defendant briefly at a kebab shop. Later, whilst she was walking through that town in the early hours, the defendant followed her into a public toilet. There he produced a large knife and put its blade against her throat. When she screamed he put his hand over her mouth and threatened her. The defendant bizarrely blamed the complainant for his actions, before the two of them left the toilet block with the knife still to her throat and the hand of the defendant still over her mouth. They moved to a grassed area, where the defendant announced “You are going to fuck me right now. We are going to do it”, and took physical steps to effect his intention. At that point the complainant bit his hand, he removed it briefly from her mouth, she was able to scream, and a friend of the complainant rescued her.

At trial, the case for the defendant was that he had indeed met the complainant at the kebab shop, but she had wrongly identified him as the perpetrator. He has always maintained his innocence of that offence, and more recently has blamed it upon a dispute between the complainant and himself about a drug debt, combined with the involvement of some notorious corrupt police.

At the conclusion of that trial, the defendant was sentenced to imprisonment for 12 years with a non-parole period of 9 years. On appeal to the Court of Criminal Appeal, the conviction was quashed, and a new trial ordered. At the conclusion of a second trial, the defendant was found guilty again, convicted again, but sentenced to a lesser head sentence of imprisonment for eight years (to expire on 10 April 2009) with a non-parole period of six years (to expire on 10 April 2007). In the circumstances, I have had regard to the remarks on sentence of the second sentencing judge, Judge Keleman SC, but not the first, simply because the latter have been superseded by events.

The defendant was not released before the expiry of the entirety of that head sentence. That was chiefly because he was not prepared to engage in therapy with regard to sexual deviance. He then lived in the community for over two years until he returned to custody in September 2011. During that period he was not, of course, on parole, though it was accepted by his counsel that he was subject to a bond with supervision for another offence. It is true that he did not re-offend by way of sexual violence, other violence, or dishonesty during that extended period. However, it is not correct to say that he was free of offending entirely during that time, because he was convicted of an offence contrary to the Child Protection (Offenders Registration) Act 2000 (NSW), which applied to the defendant because of the nature of the April 2001 offence. In a nutshell, he chose to be in the company of children when he was clearly prohibited from doing so.

The defendant returned to custody in 2011 because a “cold hit DNA” result had matched him to offences committed on 30 April 1993, again in Port Macquarie.

In short, a young girl of 15 years of age was out and about in the evening, and met the defendant at a cinema. As she was walking home later that evening, she was brutally and penetratively sexually assaulted by a man who used a knife to ensure her compliance. DNA samples taken from the person of the complainant that had undoubtedly emanated from the perpetrator matched those taken from the defendant. Despite the virtually overwhelming Crown case, the defendant pleaded not guilty, but was found guilty and convicted at the end of a trial by judge alone. Judge Flannery SC imposed an aggregate head sentence of seven years with an aggregate non-parole period of five years and three months.

Subsequently, the defendant has admitted his guilt of the April 1993 offences, and claimed that his plea of not guilty was motivated merely by a desire to save his elderly mother, to whom he is devoted, from embarrassment and humiliation.

It is that aggregate head sentence that will expire in its entirety on 13 September 2018.

As for the underlying factors that have led the defendant to commit so many offences, with the result that he has spent many years of his life incarcerated, and with the further result of inevitable institutionalisation, they are not entirely clear. Undoubtedly, addiction to narcotics has played its part, and it is noteworthy that he is still receiving methadone in custody. So has the severe violent abuse the defendant suffered from his father; being sexually assaulted at around age 12 from two staff members at a Boys’ Home; being sexually assaulted and stabbed in an adult gaol by another inmate when aged 17 years; and the death of his son from leukaemia in 1984 shortly after the death of his then-partner. And so has the self-reported surrendering of the defendant to what he has described as the “outlaw lifestyle”. But one is compelled to infer also that some sort of sexual pathology or compulsion underlay the offences of April 1993 and April 2001. It seems that the defendant himself has accepted that, by his recent completion of the well-known CUBIT program.

The final noteworthy matter regarding the criminal record and custodial history of the defendant is that he had been released to parole, with regard to the multiple counts of armed robbery and other offences, on 22 April 1993. The offences of profound sexual violence for which he is currently incarcerated were committed eight days later.

It is in that context that the State of New South Wales (the plaintiff) has moved upon an Amended Summons that ultimately seeks an extended supervision order (ESO) for a period of three years, pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act).

The matter came before me for a preliminary hearing on 3 August 2018, at which the plaintiff sought the appointment of examining psychiatrists or psychologists, and an interim supervision order (ISO) to commence from the date of the expiry of the current head sentence, 13 September 2018.

A question arose on that day as to the mobility of the defendant, as a result of various physical ailments, and the prophylactic effect on offending that could have, bearing in mind the modus operandi of the two sets of offences of April 1993 and April 2001. The proceedings were adjourned until 28 August so that that could be explored.

On the latter occasion, the evidence before me was that the defendant does indeed use a walking stick or a walking frame to move about in prison. On occasion, he uses a wheelchair. He suffers from scoliosis (a no doubt painful deviation of the spine) and from crepitus in one knee (a grating of bone on bone associated with arthritis in older people). But there is no suggestion on the evidence that he is a permanently or even very largely confined to a wheelchair.

In short, the position of counsel for the plaintiff at the preliminary hearing was that the defendant is thoroughly institutionalised; he has committed a multitude of serious offences over some decades; and very disturbing pattern of sexual violence is established.

It was accepted that the last of the sexual offences was committed as long ago as April 2001; having said that, the submission was that, for the vast majority of the years since then, the defendant has been in no position to commit sexual offences against young girls or women, because he has been in prison.

It was also accepted that there was a period of over two years during which the defendant lived quietly, albeit not entirely lawfully, in the community with his mother and her partner. But the points were made that even then he was subject to conditional liberty; that that period was not entirely successful; and that there is a potential for things to “fall apart” if the mother of the defendant were to become seriously ill or pass away.

On the last hearing date, counsel for the defendant (who is very experienced in criminal and quasi-criminal matters) explained that she had explicit instructions not to oppose the making of an ISO by me for a short period. She conceded that all of the mechanistic pre-conditions to the making of such an order to be found in the Act had been established. She also accepted, for the purposes of s 10A of the Act, that it would be open to me to find that, taken at its highest, the material relied upon by the plaintiff at the preliminary hearing could lead to the making of an ESO by a judge of this Court at a final hearing. She submitted, with respect correctly, that of course the question of whether an ISO should be made, along with any ancillary orders, remains a matter for me.

Finally, there was also a dispute at the preliminary hearing about a number of the proposed conditions of the ISO, which was conducted with admirable focus and conciseness.

Turning first to the question of whether an ISO should be made at all, I accept the joint position of the parties that all mechanistic statutory preconditions for the making of an ISO have been established.

And I also consider that the central concession of the defendant and his counsel is soundly based: despite the therapy that has been undertaken recently, the period spent living quietly in the community, and the professed commitment of the defendant to an untroubled and law-abiding life from now on, I am satisfied that the material placed before me establishes that another judge of this Court could subsequently think it appropriate to impose an ESO. I say that for the following reasons.

First, I accept that the defendant is largely institutionalised, and despite the largely successful period spent living in the community, that was many years ago now, and yet another period of re-adjustment will be very difficult.

Secondly, I accept that there has been a longstanding proclivity to sexual violence, and I am not convinced that it has dissipated either through the passage of time or through therapy.

Thirdly, the evidence of a risk assessment conducted earlier this year by a psychologist had some measured, indeed optimistic, aspects to it. But it generally accords with the assessment that I make as a layperson: the whole negative history of the life of the defendant calls for substantial caution about how he will conduct himself in the future.

Fourthly and finally, both the Act and judgments explaining it demonstrate that the test for the making of preliminary orders is not a difficult one for the plaintiff to fulfil. In my opinion, this application cannot be characterised as being so unmeritorious as to deserve to be “filtered out” at this stage.

In short, I consider that an ISO should be made, and for not less than 28 days.

Turning now to the question of conditions, I have reviewed all of those that are not disputed, and consider them appropriate.

As for the disputed conditions, the first three of them pertain to electronic monitoring. Counsel for the defendant submitted that that is simply uncalled for, in light of the passage of time since the commission of the last sexual offences in 2001, the degree of optimism in the risk assessment report, and the period already spent living quietly without incident.

I respectfully accept all of that. But the fact is that, on two separate occasions, whilst out and about in the evening, the defendant inflicted horrific sexual violence on two young females, which unquestionably had grave, perhaps lifelong, psychological consequences for its victims. One of those incidents was denied for a time, and one of them has never been admitted. More generally, over the years the defendant has shown himself capable of other acts of profound violence as well. He also possesses a longstanding proclivity to abscond, demonstrated by his repeated convictions for escape. In all the circumstances, I think that electronic monitoring, in the measured terms proposed, is indeed appropriate.

For the same reasons, I consider that the provision of a schedule of movements is also apposite.

Proposed condition 29 is currently as follows:

The point was made by counsel for the defendant that such a condition is simply unworkable, in that one can readily envisage the defendant seeking to purchase a newspaper in a newsagency in which the only shop assistant is clearly a girl under the age of 18 years. Although there is force in the submission of counsel for the plaintiff that one can rely upon a Departmental Supervising Officer (DSO) to administer conditions of an ISO sensibly, I think that one should be slow to impose conditions that are on their face unworkable, thereby “setting up the defendant to fail”. Quite apart from that, the other conditions that I will impose are rigorous, and will surely have a significant preventative effect. Doing the best I can to find a practical solution, I propose to make an amended condition 29 which prohibits direct contact in private with such persons.

The final conditions that were in dispute pertained to monitoring of access by the defendant to the internet, and his use of other electronic communications. The point was soundly made by counsel for the defendant that neither the internet, nor mobile phones, nor any other electronic or digital device or method of communication were part of the sexual offending of the defendant.

So much may be accepted. But at the time of at least some of that sexual offending, mobile phones were not widely available, and the internet was in its infancy. Quite apart from that, regrettably, over many years, by way of his offending against property, the defendant has shown himself to be a chronically dishonest and untrustworthy person. At least for the period of the ISO that I will impose, I consider that restriction and monitoring of his use of the internet and other forms of electronic communication are indeed appropriate.

Finally, each party contended for the making of an ancillary order in the amended summons designed to advance the rehabilitation of the defendant, not only in his interests but in those of the whole community. I accept that joint submission.

I make the following orders: