Director of Public Prosecutions v Cobb

[2014] VCC 543

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-00076

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRETT COBB

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	15 April 2014
DATE OF SENTENCE:	15 April 2014
CASE MAY BE CITED AS:	DPP v Cobb
MEDIUM NEUTRAL CITATION:	[2014] VCC 543

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Plummer
For the Accused	Ms R. Champion

HIS HONOUR:

1

Brett Cobb, you have pleaded guilty to an indictment charging you with attempted robbery, and robbery, the offences having occurred on

27th July 2012 and 28 July 2012 respectively, and you have admitted to one summary offence of failing to appear in answer to bail on 17 December 2013.  You have also admitted a number of prior court appearances.

2The prosecution has tendered, and relied upon, a prosecution opening which was read on the previous occasion, and sets out details of the offences which indicate that your behaviour was quite disgraceful.  You carried out the offences with, as the prosecution puts it, a degree of planning, rational motive, and a selection of your vulnerable victims, and you carried out the offences in company, and in public areas.  And there was, indeed, a high risk that the matters would have escalated into more serious offences, and people getting hurt.

3The maximum term of imprisonment for robbery is 15 years imprisonment, and for attempted robbery it is 10 years imprisonment.  Ordinarily, these offences would attract a custodial sentence.  I can indicate now, that I do not propose to impose an immediate custodial sentence.

4

Your counsel provided me with various reports on the last occasion, which included a report of Dr Nicholas Owens dated

14 January 2014, and a neuropsychological report dated 13 January 2014, along with a letter from Judge and Papaleo Pty Ltd dated 5 December 2012, which indicated that there may be need for the exploration of the possibility of a justice plan being made available for the purposes of sentencing.  For that reason I sought the assistance of the Department of Human Services in the provision of a client overview report and a justice plan.

5It is clear from all of this material, that you have had a difficult upbringing, and a background which did not have the kind of supports that are usually available to young people in their formative years.  In addition to that, you have a low level of intellectual functioning.   Without going into the detail of the level of functioning, some of the aspects of your functioning suggests that your level of impulsivity, for example, is of a particularly low level indeed, much of which, no doubt has affected your ability to stay out of trouble in the past, and it seems to me, has impacted on your behaviour on the occasions when these offences were committed.

6The client overview report dated 11 April 2014, along with the justice plan, do suggest to me that there is some cause for optimism, that the assistance that is being offered to you is having some effect upon you, and has a reasonable prospect of achieving further progress towards your rehabilitation, your ability to function within society and to stay out of trouble.

7For that reason, I sought and obtained today, a report from Community Corrections as to your suitability for a community corrections order, with a view to imposing such an order with a condition that you be the subject of a justice plan in the terms of that with which I was provided by the Department of Human Services.  You have, as you are aware, been assessed as being suitable.  The suggested conditions of the community corrections order, in addition to the standard conditions, would require you to be subject of supervision, and also subject to mental health assessment and treatment as directed, and also subject of a justice plan in the terms of the justice plan that has been submitted.

8I cannot impose such an order unless you consent to it.  I think you need to understand, and you will be taken through the full conditions of the order, that  it would be for a period of two years - would require you during that two year period to stay out of trouble; that is, not to commit any other offence punishable by imprisonment.  If you do commit an offence punishable by imprisonment during that time, you will be in breach of the order.

9That will probably result in you being brought back before me, or at least another judge of this court, and for the breach of the order alone, you could be up for three months imprisonment.  In addition, the court would have the power to sentence you all over again for these offences to which you have pleaded guilty on the indictment.  Do you understand?

10MR COBB:  Yes Your Honour.

11HIS HONOUR:  And I have told you, that ordinarily, a term of imprisonment - or at least if you are still eligible - a youth justice centre order, would be the likely result.  So it is a bit like a suspended sentence hanging over your head, and it is deliberately that way, because it is to try and deter you from committing further offences.  And the other conditions are designed to help you to get yourself into a better frame of mind for staying out of trouble in the future, okay.

12Now, there are other ways in which you can breach the order.  One is by failing to obey instructions, one is by failing to turn up for appointments and failing to undergo the treatment that you may be required to undertake.  Do you understand that?  So you are not out of the woods, but this, at least, would give you a chance of staying out of gaol or youth justice centre.

13Ms Champion I take it you have discussed the conditions of the order that are proposed with your client?

14MS CHAMPION:  I didn't Your Honour.

15HIS HONOUR:  You didn't?

16MS CHAMPION:  I haven't done that with him.

17HIS HONOUR:  Would you like a few minutes to do that?

18MS CHAMPION:  Yes Your Honour, thank you.

19HIS HONOUR:  Because I think it is very important that he understand.  Now, we have a draft of the order here.  Would you take a bit of time just to go through that with your client and make sure that he understands what he is up for.

20MS CHAMPION:  Yes Your Honour.

21HIS HONOUR:  I shall leave the court for a few minutes and we will proceed with the sentencing once you have had an opportunity.  So, if you could take him through that document.  The proposed list that he keep the appointment on 17 April is being arranged, apparently, so.

(Short adjournment.)

22HIS HONOUR:  Yes, Ms Champion, you are satisfied that he understands the implications of the order and the responsibilities?

23MS CHAMPION:  Yes Your Honour, thank you for that opportunity.

24HIS HONOUR:  Yes, thank you.  The only reasons that I am even considering a non-custodial sentence is because you have pleaded guilty, because you were only 18 at the times the offences were committed, and you are 20 now, and because there has been a period of, not far short of two years, during which this has been hanging over your head, and you have made some efforts to improve your prospects in that period.  I think that this may be your last chance, do you understand that?

25MR COBB:  Yes Your Honour.

26

HIS HONOUR:  All right.  Well in those circumstances, for the offences of attempted robbery, and robbery, to which you pleaded guilty on the indictment, I think I can probably include the summary offence too, can't I

Mr Plummer?

27MR PLUMMER:  Yes Your Honour.

28HIS HONOUR:  I only need to make one order in respect of all three offences.  And the offence of failing to answer bail.

29MR PLUMMER:  It just needs to have a penalty of at least five penalty units, which it does, so yes.

30HIS HONOUR:  That's the minimum is it, five penalty units?

31MR PLUMMER:  Yes, for a CCO to be able to be in place for an offence.

32HIS HONOUR:  Yes, all right.

33MR PLUMMER:  And the penalty is more than that, so yes Your Honour.

34HIS HONOUR:  Yes, okay.  So I can impose a community correction order for that, yes okay.  Well, all right, I make the order in respect of all three offences and the order will be for a period of two years.  Can I have the order there please?

35

I will just formally read out the conditions of the order.  It will commence today and end on 14 April 2016.  You must attend the Box Hill Community Correctional Services at 703 Station Street, Box Hill, I think on 17 April at

four o'clock.  You have got their card, good.

36You must comply with the following terms:

37You must not commit another offence for which you could be imprisoned during the period of the order.

38You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations; they will be explained to you at the time of induction.

39You must report to and receive visits from the Secretary of Department of Corrections, or his or her delegate.

40You must report to the Community Corrections Centre, as I have indicated.

41You must let the community corrections officer know within two clear working days if you are changing your address or your job.

42You must not leave Victoria without first getting permission to do so from the Secretary or his or her delegate.

43You must obey all lawful instructions from, and directions of, the Secretary or his or her delegate.

44In addition, you will be under supervision of a community corrections officer for a period of two years and you must undergo mental health assessment and treatment, including, but not limited to, mental health psychological, neuropsychological and psychiatric assessment, and treatment in a hospital or residential facility, as directed by the regional manager.  And you must participate in the services specified in the justice plan for that two year period, okay?

45Now, I understand that you have had all of that explained to you.  Are you willing to comply with the terms of that order?

46MR COBB:  Yes I shall do Your Honour.

47HIS HONOUR:  And I stress again, that you will be back again in this Court if you breach the terms of the order anyway.

48MR COBB:  Yes Your Honour.

49HIS HONOUR:  I am inclined, on this occasion, not to make the s.464ZF order that is sought, and I do so on the basis of the age of the offender.  And I am not convinced, on this occasion, the granting of the order is in the public interest, but I make the disposal order in the terms of the draft, which has been provided.

50Now Mr Travis would you take the order to the accused.  Ms Champion would you just go with Mr Travis and supervise the signing of the order.

51MS CHAMPION:  Yes Your Honour.

52HIS HONOUR:  Thank you.

53MR PLUMMER:  Sorry, Your Honour, can I just - I mean, yes, it is with conviction, yes Your Honour.

54HIS HONOUR:  I'm sorry I didn't specify that, but it is with conviction and I will make a s.6AAA declaration I think.

55MR PLUMMER:  I think because Your Honour has imposed a community corrections order ‑ ‑ ‑

56HIS HONOUR:  I don't need to?

57MR PLUMMER:  No.

58HIS HONOUR:  No, all right, well I won't then.  I think I have already made it clear what the consequences of a breach are.

59MR PLUMMER:  Yes you have.

60HIS HONOUR:  All right.  That order is now signed and it is in place.

61MS CHAMPION:  As Your Honour pleases.

62HIS HONOUR:  Thank you.

63MR PLUMMER:  Your Honour, So, just in relation to the forensic sample.

64HIS HONOUR:  Yes.

65MR PLUMMER:  I couldn't recall if it was imposed in part in previous occasions.

66HIS HONOUR:  I'm not sure it was.

67MR PLUMMER:  But, I mean, the Crown's position would be that they are serious offences and on that basis an order would be justified, but I understand Your Honour stated why Your Honour is not making the order.

68HIS HONOUR:  Yes.  You have made the Crown position.

69MR PLUMMER:  Thank you Your Honour.

70HIS HONOUR:  I think you can rest assured that if he commits another serious offence that there will be an order on the next occasion.

71MR PLUMMER:  Yes Your Honour.

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