Director of Public Prosecutions v Cann

[2024] VCC 998

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-02008

DIRECTOR OF PUBLIC PROSECUTIONS

v

JARROD CANN

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JUDGE:	HER HONOUR JUDGE BLAIR
WHERE HELD:	Melbourne
DATE OF HEARING:	28 June 2024
DATE OF SENTENCE:	2 July 2024
CASE MAY BE CITED AS:	DPP v Cann
MEDIUM NEUTRAL CITATION:	[2024] VCC 998

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence

Catchwords:              Sentence indication – extortion with threat to inflict serious injury – recklessly cause injury – theft – possession of a drug of dependence – significant criminal history – long-term drug abuse – complex PTSD

Legislation Cited:      Criminal Procedure Act 2009 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:R v Verdins [2007] VSCA 102; Phillips v The Queen [2012] VSCA 140; Zogheib v The Queen [2015] VSCA 334

Sentence:                  Aggregate term of imprisonment of 9 months combined with a Community Correction Order for a period of 2 years

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P. Triandos	Office of Public Prosecutions
For the Accused	Ms L. Dubroja	May Lawyers

HER HONOUR:

1Jarrod Cann, on 7 June 2024 you appeared before me seeking a sentence indication on one charge of extortion with threat to inflict serious injury, one charge of recklessly cause injury, one charge of theft and one charge of possession of a drug of dependence. In addition, you faced two summary related offences and that was Charge 17, resist emergency worker on duty and Charge 19 which was possess a controlled weapon. The prosecution did not oppose the application.

2I indicated pursuant to s207(1)(a) of the Criminal Procedure Act 2009 that if you were to plead guilty I would impose a combination penalty,[1] that is a term of imprisonment not more than 12 months in length and a community correction order. I adjourned the further hearing of your matter until 13 June 2024 to allow you time to consider whether to accept my indication.

[1] Criminal Procedure Act 2009 (Vic) s 207(1)(a).

3On 13 June 2024 I clarified that I would impose no more than 12 months imprisonment taking into account time served by way of pre-sentence detention as part of the combination. It is on this basis the sentence indication was accepted and on 28 June 2024 you were arraigned on indictment P11147925.2 and entered a plea of guilty to the four charges subject of the sentence indication and the two summary related offences. In addition, you admitted a 19 page prior criminal history. A pre-sentence report from Corrections was ordered and your matter was adjourned for sentence. I have since received the report from Corrections and you have been assessed as suitable for such an order.

Circumstances of offending

4The agreed basis of your offending was detailed in the summary of prosecution opening for plea and that document was tendered on the plea and a summary of your offending is as follows.

5

There are two complainants in this matter, Eugenio 'James' Costanzo

('Mr Costanzo') and Kimberly Coghlan ('Ms Coghlan'). These people were known to your co-accused. Ms Coghlan lived at an address in Bulleen with her three dogs. Mr Costanzo would often stay at her home. On 16 May 2023, Mr Costanzo was staying at Ms Coghlan's home. At around 6 pm, Mr Costanzo called his friend

Mr Kerbatieh and invited him to come over for a drink.

6

At around 11.47 pm, CCTV shows Kerbatieh enter the house first and shake

Mr Costanzo's hand. You then followed. You also shook Mr Costanzo's hand and Mr Di Cello entered the house last and locked the door behind him.

7The four of you left the foyer area and went into the lounge room where Ms Coghlan was asleep. Ms Coghlan was passed out from GHB. At some stage she said that Mr Constanzo had assaulted her that evening. Mr Costanzo gave food and drink to you and your co-accused and Mr Kerbatieh took Mr Costanzo's phone from him.

8

Mr Kerbatieh told Mr Costanzo there was a leaking tap outside the residence, and they went outside. Whilst inspecting the leaking tap, Mr Kerbatieh requested

Mr Costanzo sign his motor car over to him, claiming he needed compensation. Mr Costanzo declined to sign, and Mr Kerbatieh told him, 'You'll see, everyone has to be compensated'.

9

Mr Kerbatieh and Mr Costanzo returned inside, and Mr Costanzo sat next to

Ms Coghlan who was asleep on the couch. Mr Kerbatieh yelled at Mr Costanzo and punched him on the left temple. Mr Constanzo was then hit in the head with a blunt object by an unknown person. He landed on the floor and felt a laceration on his head and he had blood on his hand. You stood over Mr Constanzo armed with a hammer and said 'I'm going to slash your throat you dog, where are your car keys?' You then punched Mr Costanzo in the nose causing it to bleed and forcefully escorted him to the bedroom door.

10At the bedroom door, the following is captured on CCTV:

(a)   Yourself and Mr Kerbatieh standing by the bedroom door with Mr Constanzo. Mr Costanzo is holding a piece of paper. You had a hammer and you were shadow boxing;

(b)   Mr Costanzo tried to unlock the bedroom door and he told Kerbatieh 'I'm not hiding anything, I'm opening it bro' and Mr Kerbatieh said, 'You know what, it just fucking doubled on you just like that, right, it's gonna be two cars, with another car for my mate';

(c)   Once the bedroom door was unlocked three dogs came out of the bedroom, and you told Mr Costanzo to 'put the dogs in the lounge room'. Mr Kerbatieh entered the bedroom and you and Mr Costanzo left the room with the dogs.

11

You and your co-offenders returned to the bedroom with Mr Constanzo. Once inside, Di Cello punched Mr Costanzo to the face and ear area and Mr Kerbatieh found the keys and took them from the wardrobe. You all went to the lounge room where Mr Kerbatieh demanded Mr Constanzo sign the car over for the value of $5,000. Mr Costanzo declined to sign the documents. You together with

Mr Kerbatieh kicked Mr Constanzo in the ribs about six times. You then grabbed a glass from the table and smashed it into Mr Costanzo's head. The glass shattered and caused a cut to his forehead.

12Ms Coghlan woke up and yelled at you and your co-offenders to stop. The three dogs became aggressive and were put back in the bedroom. Mr Costanzo returned to the loungeroom and sat on the couch. You then slapped him to the face with an open palm and as a result he was knocked to the floor.

13

Mr Kerbatieh again demanded Mr Costanzo sign the paperwork to transfer ownership of his car and Mr Kerbatieh provided the paperwork and said if

Mr Constanzo did not find a pen and sign the papers, he would 'get the belting of his life'. Mr Costanzo signed the paperwork.

14At approximately 2.41 pm, CCTV shows Ms Coghlan and yourself standing in the foyer, you are still in possession of a hammer. Yelling and barking dogs can be heard coming from another room. You left the foyer, and Di Cello then stood in the doorway. Mr Kerbatieh entered the foyer and told Ms Coghlan to get Mr Costanzo a towel, which she did and Mr Di Cello nodded at the CCTV camera.

15Mr Kerbatieh returned to the lounge room and told Ms Coghlan to get the hard drive for the CCTV cameras. You went with Ms Coghlan to the garage and she collected a hard drive for the external cameras only.

16

You told Mr Costanzo to change his clothes as they were bloodied and

Mr Costanzo changed his jumper and left the house with you and your co‑offenders. He was returned later that evening. Shortly after he returned home Mr Costanzo went to work. After work he discussed his injuries with his family and he was directed to seek medical attention.

17At approximately 7 pm on 17 May 2023, Mr Costanzo attended the Austin Hospital. Mr Costanzo suffered bruising around the eye, a small scalp wound and tenderness to the chest and upper abdomen.

18On 19 May 2023 Mr Costanzo reported the matter to Doncaster police station and four statements were made by Ms Coghlan.

19At around 11.30 am on 26 May 2023, police observed you at The Old England Hotel inside a vehicle with an unknown male and female. Police approached the vehicle and identified themselves. You left the vehicle and ran through the car park to a Mazda Ute that had false plates. You got into the driver's seat and attempted to start the vehicle. The police were able to force the driver's door open and stop you from driving away. You grappled with the police who managed to take the key from the ignition. You kicked the police member and ran from the vehicle. Another police member approached you and tactically took you down. You thrashed around and resisted before you were able to be secured.

20During your arrest, you dropped a clear snap lock bag containing approximately three grams of methylamphetamine and police searched your satchel bag and located a four inch knife that was concealed in a sheath. You were arrested, interviewed and remanded in custody.

Nature and gravity of the offending

21As conceded by your counsel, Ms Dubroja, the offences to which you have pleaded guilty are inherently serious and this is evidenced by the applicable maximum penalties of 15 years' imprisonment for the extortion, five years' imprisonment for recklessly cause injury and 10 years' imprisonment for the charge of theft.

22In my view, Mr Kerbatieh is the principal offender with regard to the charge of extortion. It was he who made the initial and repeated demands of the victim, and it was he who ultimately took the car keys and had the victim sign the transfer papers for the vehicle. Your role in the extortion involved a direct threat to the victim that you would slash his throat if he did not hand over his car keys and clearly you were present and assisting Mr Kerbatieh throughout the offending period.

23The charge of recklessly cause injury is a rolled up charge and that includes you punching the victim in the nose, hitting him to the head with a glass and slapping him with an open palm. As a result of your actions the victim suffered a bloody nose and a cut to his forehead.

24Although it is apparent you were armed with a hammer at times throughout the offending, it is accepted by the prosecution that you did not actually use the hammer to assault the victim. It is unclear where the hammer came from and I could not be satisfied to the requisite standard that you had brought it with you in anticipation of the offending.

25Your counsel submitted that you were there as the muscle to enforce the offending and your role is something less than Mr Kerbatieh but greater than Mr Di Cello. I accept that you were not the driving force behind the offending, as submitted by your counsel. It would appear that at least Mr Kerbatieh had turned his mind to the offending as he had the paperwork for the transfer of the vehicle to hand. There is not sufficient evidence before me to determine that you were a party to this planning and I accept the submission of your counsel that as far as you were concerned there was a degree of spontaneity to the offending and things unfolded after you attended to have a friendly drink.

26I accept that extortion is ordinarily associated with serious criminal activity and organised crime and is often not the most serious offence charged. That is not the situation here. In your case there was relatively low level violence perpetrated upon your victim. That said, it was of a reasonable duration, there were three offenders and it did occur within his own home. I accept as submitted by your counsel that the theft was a spontaneous attempt to cover up your offending.

27Mr Cann, on the whole I consider this episode of offending to be serious but I do not consider it to be at the highest level of gravity for offending of this type, and although there is no victim impact statement, I consider that the victim would have been scared as a result the offending which was perpetrated in his own home by three men.

Personal circumstances

28You are now 35 years old. The relationship between your mother and father ended before your birth. You are an only child and you were raised by your mother as a single parent. For most of your childhood and adolescence you lived in Sunshine. You rarely saw your father until your late teens and any visits were usually accompanied by disappointment. Although you had little contact with your father you did have a close relationship with his parents, your paternal grandparents. Your father had two daughters from a previous relationship who both live in New Zealand and you have formed a connection with each of them.

29By contrast to the lack of contact with your father, as a youngster you enjoyed a very close relationship with your mother. This close relationship continues and she is a solid support for you in the community. Your three year old daughter, Sienna, is cared for by your mother and you communicate with them every day. It is anticipated that upon release you will return to live with your mother and daughter.

30At around the age of 17 you began to establish a relationship with your father. This was at a time when you had left school and were engaging in risk taking behaviours. The connection with your father allowed you to shift your focus and desist from such behaviour. Your relationship with your father developed and was a positive aspect of your life. Tragically your father received a sudden diagnosis of lung cancer and died in your presence six months later. Notwithstanding the short period of your relationship, no doubt you have treasured this time with your father and his passing has caused you considerable grief.

31In terms of schooling you attended the same primary school from prep to year six. Later you attended a mainstream school for the majority of your secondary education. You finished your education in an alternative education program where you completed Year 11 through the VCAL. You were not a good student. You had trouble concentrating and found school work difficult. As a consequence you displayed behavioural issues at school and would truant regularly. It was around this time in the context of feeling as though you did not belong that you gravitated to a negative peer network and were introduced to illicit substances. In 2007 you left school and started work.

32From the age of 13 you have abused drugs of one form or another. Your substance abuse started with cannabis and you graduated to speed and then methamphetamine. You have used that substance with varying intensity since the age of 17, only ceasing use when in custody.

33Notwithstanding the issues you had during your school years, you were involved in a variety of team sports including football and basketball.

34In your early 20s you developed a stable relationship with your now ex-partner Mel. You completed an apprenticeship in rendering and worked for the better part of a decade in this trade. You enjoyed a stable and productive life. Together you and Mel had two daughters. At the age of 30 you became unemployed and struggled to provide for your young family. You turned to the sale of drugs to support your drug use and provide financially for your family. It was in this context that your relationship with Mel broke down. She left taking your daughters with her which was crushing to you and caused you to lose hope.

35In 2021 you commenced your most recent relationship with Sienna's mother.

36You have now completed tickets in road safety and management and you are ticketed for rail work. You remain a union member and hope to gain employment in traffic control in the future.

Mental health

37A report dated 5 June 2024 authored by psychologist Heidi Lecluse was tendered at both your sentence indication hearing and your plea hearing. Although your counsel did not rely on the principles in the case of Verdins,[2] she did submit that your poor psychological functioning and compromised mental health was relevant to my sentencing task in a general way.

[2] R v Verdins [2007] VSCA 102.

38Ms Lecluse detailed that not only had you experienced the grief and trauma associated with the death of your father but further you were involved in and witness to an horrific car accident where two of your friends were killed. Such were the circumstances of this incident that you still relive this on a daily basis. You have been exposed to further trauma recently as a close friend took his own life.

39In the opinion of Ms Lecluse you suffer from moderate depression and stress levels and low levels of anxiety. In addition, Ms Lecluse considers that you most likely suffer from CPTSD, or complex post–traumatic stress disorder, and ADHD.

40In preparation of the report Ms Lecluse saw you on three separate occasions. I was advised by your counsel that subsequent to the report you have again engaged in psychological counselling with Ms Lecluse and you are keen to continue this in the future.

41I consider that your experiences of trauma and psychological functioning has shaped the person that you have become today. In this sense, I accept the submission of your counsel that it is relevant in a general way to the sentence I intend to impose.

Prior history

42You have admitted a considerable prior history and it is apparent that you have had a long history of drug abuse which has brought you into contact with the criminal justice system. You have been gaoled on several occasions and you have received at least two previous community correction orders and have been subject to parole. It would appear that you are firmly entrenched in a cycle of offending, incarceration, and drug use.

43You were remanded in custody on these matters on 26 May 2023 and you were released on bail on 14 September 2023 after the committal hearing. Your counsel submitted there was little in the way of support available to you at that time. On 20 January 2024 you were again remanded in custody in relation to further offending and this offending was dealt with on 12 February 2024 and you were sentence to a total of three months' imprisonment with 23 days to be reckoned as served by way of pre-sentence detention. This sentence lapsed on 18 April 2024. Your bail having been revoked on this matter you have been on remand since the lapse of that sentence and you have now been in custody for a total of approximately nine months. However, given the February sentence, there are only 187 days referable to this matter as pre-sentence detention.

Plea of guilty

44You were originally charged with several very serious offences and post committal, after cross–examinations of witnesses, a plea was negotiated to the charges that are currently before the court. In those circumstances, despite having run a contested committal, I consider there was utility in that course such that your plea should be considered a plea at the earliest opportunity.

45Further to this, your counsel outlined the significant issues that would have formed the basis of the cross–examination of the two complainants. Ms Dubroja submitted there were very real issues with the credibility and reliability of the two complainants that negatively impacted the strength of the prosecution case.

46The Court of Appeal in the case of Zogheib stated that:[3]

' It is clear on the authorities, and as a matter of common sense, that the strength or otherwise of a prosecution case is a factor which may be relevant, and may be taken into account, in determining the degree and depth of remorse of an offender. As stated in the passage in Phillips to which I have just referred a plea made in the face of an obviously weak prosecution case is strong evidence of the subjective element of remorse, willingness to facilitate the course of justice and acceptance of responsibility on the part of the offender. Equally, it is relevant as demonstrating the extent and sincerity of the remorse of the offender. In such a case, a plea of guilty would be entitled to be accorded additional weight in the manner described by the judge in this case.'

[3] Phillips v The Queen [2012] VSCA 140; Zogheib v The Queen [2015] VSCA 334.

47I accept the submission of your counsel that issues of credibility and reliability of the two main witnesses undermined the strength of the prosecution case. I accept in these circumstances that your plea of guilty is demonstrative of significant remorse, acceptance of responsibility for the offending and a willingness to facilitate the course of justice. Through your plea you have avoided the need for the complainants to give evidence, and in the case of the second complainant evidence that would likely have been humiliating and embarrassing. Further, the court has been spared the cost and time of a trial.

48Accordingly, I propose to allow a significant discount for your plea of guilty.

Sentencing

49I consider the relevant sentencing principles that must be applied in your case are general deterrence, specific deterrence, denunciation, protection of the community, and just punishment. I also consider the principles of totality, parsimony and proportionality are relevant as part of the sentencing exercise. I am of the view that community protection is a relevant consideration in your case in light of the nature of this offending and your prior history. Mr Cann, your involvement in this offending was appalling and it is denounced by this court.

50I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act,[4] where relevant to your case. I have also taken into account as far as possible the current sentencing practices for the offences, particularly the charge of extortion, to which you have pleaded guilty.

[4] Sentencing Act 1991 (Vic) s 5.

51I have considered several cases involving extortion in this court and some from the Court of Appeal. What is clear from those decisions is that extortion can occur in many and varied ways, and the sentence imposed must reflect the seriousness of the particular circumstances of each individual case. I note that a sentence of imprisonment is very often imposed for such offences.

52Your counsel referred to the case of Boulton and submitted that a community correction order may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment.[5] Further, Ms Dubroja submitted general deterrence can be effected by the imposition of a community correction order. I accept the submissions of your counsel in this regard and refer to the relevant sections of Boulton where the Court of Appeal stated:[6]

'In terms of general deterrence, as until now a sentence of imprisonment has been conceived of as providing the greatest degree of general deterrence. A CCO can however, provide substantial general deterrence on account of the punitive effect described above. If a CCO is to operate as an effective general deterrent, it is essential that the sentencing court sufficiently explain its reasons for concluding that the CCO will be sufficient punishment of the offender for the offence.

In many cases, therefore, a CCO will enable all the purposes of punishment to be served simultaneously in a coherent and balanced way. Even in cases of relatively serious offences, which would previously have attracted a medium term of imprisonment, such as for example, aggravated burglary, intentionally cause serious injury, some forms of sexual offences involving minors, some kinds of rape, and in some rare and exceptional circumstances, homicide.

The sentencing court may find that a properly conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, whilst affording the best prospects for rehabilitation.'

[5] Boulton v The Queen [2014] VSCA 42.

[6] Ibid.

Disposition

53So after consideration of what is the right penalty for you in this case, and balancing as best I can, the nature and gravity of the circumstances of your offending, your moral culpability, your prior history, and the circumstances of your plea of guilty, I have come to the conclusion that a community correction order, as I have said, in combination with imprisonment is the appropriate penalty in your case.

54I have had you assessed for such an order, and you have been assessed as suitable. Ordinarily I would ask you to stand but given you are on the link I will just say remain seated, that is fine.

55In relation to the charges of extortion, recklessly cause injury, theft, possession of a drug of dependence and the summary related offences of resist an emergency worker on duty and possess a controlled weapon, you are convicted and sentenced to be imprisoned for an aggregate of nine months.

56Further, you are placed on a community correction order for a period of two years and the conditions of this community correction order include:

(a)   150 hours of unpaid community work over the two year period;

(b)   assessment and treatment for drug abuse;

(c)   assessment and treatment for mental health;

(d)   assessment for offending behaviour programs;

(e)   supervision by the Office of Corrections;

(f)    And judicial monitoring.

57Now with regard to the 150 hours of unpaid community work, I am prepared to offset all of these hours against the treatment.

58You will also be subject to judicial monitoring, so you will see me again and I will make sure that you are doing the order, and I will also make sure that the conditions that I have imposed are being facilitated by Corrections. So it is not all one way, it helps me to keep a bit of oversight and make sure that you are getting the services that you need. So the first date that I propose to do that I will announce in a moment.

59In addition to those conditions I that have imposed, there are some standard conditions that I have got to go through with you. First and foremost, you must not commit any offences punishable by imprisonment during the next two years. So it effectively hangs over your head. It is not a suspended sentence but it is like that in the sense that if you happen to commit an offence punishable by imprisonment within the next two years you will contravene the order and you will come back and the very real possibility is that you will be sentenced to a further term of imprisonment, okay?

60OFFENDER: Yep.

61HER HONOUR: You will need to report to the Sunshine Community Correction Service within two working days of your release from custody, and you are required to advise your supervising Corrections officer of any change of address where you are living and working within two clear working days. It is also a term of all community correction orders that you must submit to visits as directed and obey the instructions and directions of the Community Corrections officer.

62You cannot leave the State of Victoria without prior permission and, if you breach any of those conditions or you do not comply with those conditions, again that would be a contravention or breach of the order and you could be, or very likely will be, brought back before me and you would be dealt with for breach, very likely receive a term of imprisonment, okay? So do not breach.

63OFFENDER: Yep.

64HER HONOUR: I can only place you on a Corrections order if you agree, so do you understand what is involved?

65OFFENDER: Ah yes.

66HER HONOUR: And do you consent?

67OFFENDER: Yes.

68

So pursuant to s6AAA of the Sentencing Act if not for your plea of guilty I would have sentenced you to a term of 18 months' imprisonment with a 10 month

non-parole period.[7]

[7] Sentencing Act 1991 (Vic) s 6AAA.

69I intend to make the orders for disposal that have been sought by the Crown.

70Is there anything further, Ms Dubroja or Mr Triandos?

71MR TRIANDOS: No, Your Honour.

72MS DUBROJA: Not from me, Your Honour.

73So that date for judicial monitoring is 16 December at 9.30, okay? So that will actually appear on the order itself, okay?

74HER HONOUR: So that finalises the matter.

75OFFENDER: Thank you.

76MR TRIANDOS: As Your Honour pleases.

77MS DUBROJA: As Your Honour pleases.

78HER HONOUR: No worries. Can I just thank both counsel for resolving the matter, for all your hard work and the great submissions, so thank you.

79MS DUBROJA: Thank you, Your Honour.

80MR TRIANDOS: Thank you, Your Honour.

81HER HONOUR: All right, we will adjourn. Sorry, as I said during the course of the plea – of my sentence, there was – we did not – nothing was tendered on the plea. So I guess it is really just the defence – so I think the prosecution opening may have been – nothing.

82Prosecution opening will be Exhibit A.

83Report of Heidi Lecluse will be Exhibit 1.

84Defence submissions on sentence indication will be Exhibit 2.

85Sorry, just one moment. I think that is all. Is there anything else that needs – – –

86MS DUBROJA: Your Honour, I'm just quickly looking at what I have sent through.

87HER HONOUR: There was also two letters that I – two letters or one letter that I received from ACSO. There was a letter dated 17 May 2024 in relation to ReStart, so that will be Exhibit 3.

88MS DUBROJA: Yes, Your Honour, I have my written submissions, psychological report, and court support letter.

89HER HONOUR: Yes, okay. So I think we have got all of those. Thanks for the reminder. Thanks, we will adjourn.

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