Director of Public Prosecutions v Cocker

[2014] VCC 213

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL COCKER

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	27 February 2014
CASE MAY BE CITED AS:	DPP v Cocker
MEDIUM NEUTRAL CITATION:	[2014] VCC 213

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Taylor
For the Accused	Mr R. Davis

1Michael Lawrence Cocker, you have pleaded guilty to three charges of armed robbery, two charges of theft and one charge of burglary.  Those crimes carry maximum penalties of 25 years, 10 years and 10 years respectively.  You are 24 years of age and were 21 years of age at the time of the offending.  There has been a significant delay between the commission of the offences and it being brought on before me.  That is of course because you were not apprehended.  However, the fact of the matter is, that during that period of time you would have appeared to have significantly rehabilitated, particularly in so far as the use of drugs is concerned.                     Your plea of guilty was at the earliest reasonable opportunity and is, I accept, accompanied by a genuine and deep remorse.  You must also get the utilitarian benefit of that plea of guilty.  You were very cooperative with police when interviewed, and have maintained that position throughout.        The plea of guilty is also added to by the fact that, it would seem on the materials, that certainly two of the charges of armed robbery would have been very much dependent upon those admissions.  There may have been other evidence available but a plea of guilty always takes on greater significance when it is brought about by your own admissions.

2You have no prior convictions although I am told you do have some matters pending.  In your particular situation, with your background, that is quite surprising and very much to your credit.  It gives me greater confidence in your rehabilitation than might otherwise have been the case.

3The next matter, which is of real significance in this sentencing process is, that there is a co-accused.  You have given an undertaking to give evidence against him.  It would seem that, by and large, you are the Crown case against him, and again I have been told there is other evidence, but it would seem very dependent upon you.  That being so, the discount which is to be given for that undertaking to give evidence, must be a real and significant one.  This is not a situation where you offering to give evidence will bring about a plea.  The odds are high that you will have to give that evidence, that you will be at risk in gaol and you will be at risk in gaol for a significant period of time.  All those matters are taken into account in terms of a proper and appropriate discount for that undertaking.

4I am sentencing on the basis that in all probability, despite the way you see it at the moment, you will have to serve this sentence, or at least a significant part of it, in protection.  Once the co-accused becomes aware that you are to give evidence, it will be a matter for the authorities, but I will be very surprised if you are allowed to stay in mainstream.

5The offending is serious.  At the time that it occurred you were 21 years of age.  You were living at the Ambassador Hotel in Frankston.  You were living there with your then partner and an infant child.  One Wayne Garland was, at the time, living there as well.  He was 37 years of age and obviously significantly older than you.  You became known to each other because you were working together and J & K Caravans in Dandenong.  Each of you was at that period of time at least, addicted to the drug ice.  You and he, over a period of a couple of months, committed a number of armed robberies and at least one burglary.

6The first charge of armed robbery relates to 21 July 2011 when you and Garland drove to the Traralgon area using a van, euphemistically described in the Crown opening as 'sourced' by Garland.  Shortly after six o'clock you made your way to the cheesecake shop in Traralgon.  One Karen Bennett was there with her daughter Asta Bennett, and they were preparing to close the shop.

7You drove to the shop and Garland entered from the rear of the premises.  He was carrying a hammer and wearing a balaclava.  He told the Bennetts' something along the lines of "Give me the money".  They directed him to the till draw which had the day's takings.  He then placed all the money in a navy backpack that he had brought with him.  He questioned about whether they had more money, took a $50 note from Karen Bennett's wallet and $330 from Aster Bennett.  He then scanned the shop before leaving the premises.  Police were called to the scene.  A total of $1,100 was stolen during the course of this armed robbery.  Neither of the Bennett family received any physical injuries as a result, but both were extremely traumatised by the ordeal.

8You appear in your record of interview to say that you went inside, but other than that, there is no evidence from either of the complainant's about that.  Indeed, without your admissions, as I understand it, you could not even be placed there.  Still, acting in concert carries the same penalty as being the actual person who goes in and carries out the offence.

9In regard to Ms Bennett and her daughter, victim impact statements were read out and they were very powerful ones indeed.  You, I think, now understand the extreme trauma, emotionally and psychologically, that was caused to each of those ladies, and the ongoing difficulties that they have.  I sometimes, in these situations, summarise from the victim impact statements, but they can remain on file and they speak very much for themselves.  It is a dreadful crime and I think, now at least, you know it.

10Charge 2 of theft relates to the stealing of a Tarago motor vehicle.  In that vehicle you and Mr Garland drove to Traralgon.  At approximately ten past nine on 10 September you both entered Domino's pizza store in Princes Highway, Traralgon.  You were wearing balaclava's and carrying knives.  You directed staff members to the back of the store and asked the manager where the safe was.  Mr Garland accompanied the manager to the front of the store where the safe was opened.  You remained with the other staff members.  Garland removed a number of piles of notes that were held together with bulldog clips and placed them in a black laptop bag he was carrying.  He then asked the manager, Mr Hanlon, was there anything else, to which he replied "There was only the till".  He then took all the money from the till.  Once he had collected all the money, he directed Mr Hanlon to the back of the store to join the other staff members.  He told the staff to "Get in line, get on your knees and count to 50.".  Staff members obeyed his instructions and you both then left the store at 9.15.  Mr Hanlon locked the front door and called police.

11You fled in the Tarago and dumped the Tarago at a Bob Jane T-Mart approximately 500 metres away.  A cigarette butt was located in that vehicle, which was tested for DNA and that was how the matter was related to you and that gives rise to why there was a significant delay, from that point of view, in the processing of this matter.

12It was made very clear to you by the prosecutor during the course of the sentencing conversation which I will refer to in a moment, that people suffer from armed robberies in all sorts of ways.  I think it should only take you a couple minutes, that where you get staff - and I know Garland did it, but you were there - and tell them to kneel down and direct them to stay there and then tell them to count to 50, you would know as a person that the humiliation involved in being treated in that way is extraordinary, and can leave people with all sorts of lasting effects, just by having been so traumatised and humiliated in such a way.  And again, I think you understand that; it was pointed out very clearly to you how that sort of trauma, and that sort of violence, can induce in others long term.  In any event, as the opening says, no one was physically injured, but they were certainly traumatised and scared.

13On 18 September 2011, you and Garland went to the Subway shop on Princes Freeway, Trafalgar.  At 8.35 you entered the store wearing balaclavas and gloves.  In this particular situation one of you was carrying a tomahawk and the other one a dark coloured bag.  As you entered the store, the employee Leonie Smith who had been cleaning at the back of the store, walked into the front serving area.  You and Garland asked where the safe was, she said it was out the front but she couldn't open it, she wasn't the manager.  You then directed she open the till which she did.  After retrieving all the money from the safe she was asked if that was all the money she had.  She then said there was more money at the back of the store and a money bag containing $200 was sitting on a shelf.  You took that money.

14

You then directed her to enter the freezer and lay down.  One can only guess what she thought as going to happen at that point in time.  In any event, she waited for

30 seconds in the freezer before she heard the front door chimes, again.  She got out and was able to call the police.  Once more, whilst she didn't receive any physical injuries however, she was left extremely traumatised by the ordeal.  Again, there is a victim impact statement from that victim which clearly and succinctly and eloquently outlines why people go to gaol for armed robbery.  The effect upon her of that armed robbery has been extremely traumatic, and I have no doubt will affect the rest of her life.  As the Elders said to you in the conversation, "It may well be that you've ruined her life.".

15Charges 5 and 6 relate to burglaries and theft on 25 September 2011.  You each went to Morwell, went into the L.J. Hooker real estate in Rosedale, which apparently Garland realised would be a sub-branch of the Bendigo Bank, and you used screwdrivers to get in.  The safe could not be opened so it was taken.  It was taken back to Garland's address.  Eventually Garland open the safe and informed you it contained $50.  It is clear, that in fact, in contained in excess of $4,000.

16If those offences were on their own, absent the armed robberies, I doubt that I would give an active custodial sentence, but in this situation I am going to for each of those, because it would be ridiculous to try and give you any other form of disposition.  You and Garland I accept, for these sentencing purposes during the course of this offending, were greatly affected by ice.  Ice is - a scourge is the only word to describe it as - on the community.  It can be said sometimes that people are not thinking clearly when on ice. And they do undertake conduct that they would not otherwise do.  The fact of the matter remains however, in most of it, that each of you had enough foresight to be armed, to wear balaclavas, to disguise yourselves.  So clearly, to a level, they were thought through.

17For these sentencing purposes, and this is not to be taken as a finding of fact in relation to Mr Garland who is as yet, indeed may never be, convicted, I accept that he was probably the operator behind all this.  It was his territory, he knew what the targets were, and it would seem that him being older than you, and you having no prior convictions that he was probably the leader in it all.  However, as you made no attempt to escape from the fact that you cannot put on a balaclava and do an armed robbery.  You go to gaol if you do.

18You were arrested, as I have indicated, and interviewed some almost two years later, where you made full admissions to the offending and gave answers about your involvement of which you seem to have certain lack of recollection, but certainly put yourself there.  From the outset you have been prepared to cooperate with police and indeed you have done that to the fullest extent.  The only other matter at that point is that there is a retention of a forensic sample, which I will sign in Chambers.

19MS TAYLOR:  I have it Your Honour.

20HIS HONOUR:  As I have indicated, I do not propose to read out the victim impact statements.  That has been done, and they will be available for anyone who has a genuine interest in them.

21The offending is clearly serious, and in the normal event, calls for the application of general and specific deterrence, as well as denunciation of appropriate punishment.  A custodial sentence of significant proportions is the only sentencing option open, but obviously because of the plea of guilty and the benefits of that to you, and also the undertaking given to give evidence against the others, the sentence I would otherwise impose has been very significantly reduced.

22I then look at matters personal to you in terms of determining what the ultimate active custodial sentence which you must undergo should be.  The first thing is that you participated in Koori Court.  Simply doing that does not get anybody a discount.  But what it does do, is it indicates that you are prepared to face the consequences of what you have done, you were prepared to sit there and have the impact of what you did to those people driven home to you.  A lot of accused sit in the Dock and it just goes past them.  You participated, accepted that and I have no doubt, showed empathy and appropriate remorse.  That understanding gives me confidence that your ability to rehabilitate will be enhanced by understanding what that sort of offending does to people.  Let us hope that you never forget that.

23You accepted responsibility for your actions, as Bronwyn during the course of that I indicate, I thought when you came in, we might be going to get the usual situation that occurs of "It wasn't my fault Uncle, it was the drugs" or something else.  You did not do that.  You sat there and you took it, and that shows that you are a person with qualities, that just simply have to be brought out.

24The participation obviously, as I have indicated, gives me confidence in your remorse and your general sense of shame, and your determination not to do it again.  And you get the benefit of all those matters.  There was a report from a psychologist, Dr Ball, that was filed, and that in essence outlines your history.  And I don't really see there is any need to go into more detail than what he said.  And obviously because it was Koori Court you are of aboriginal descent.

25You told Mr Ball that you were the oldest of four siblings with a younger brother and two younger sisters.  You described to him a grossly dysfunctional family of origin, characterised by frequent domestic violence.  Your biological father left when you were about two and you spent large periods of time of your childhood with your parents.  You moved to Nan and Pop's, and "I moved to Nan and Pop's due to mum getting flogged all the time.  I hated it at home.  "I remember Mum and step-dad always fighting.  Family domestic violence was quite common, I was blamed a lot.".

26You describe an incident where you were whipped with a kettle cord by your mother and how much it hurt and how bruised you were.  You told Mr Ball that when you were about in your early teens you were sexually assaulted when an older male sat on your stomach, got his mates to hold your arms and legs and did things to you.  To this day you still do not know why that happened.  You were asthmatic as a child but reported no other significant injuries.

27You went to school to Year 9 level and had real difficulties at school.  As is often the situation with kids who have been in the circumstances you are, you were the class clown and were eventually expelled before you had even finished Year 10.  Since then you have attempted various jobs, got a certificate in process manufacturing and had a reasonably stable employment history working with mainly Jayco Caravans.  You were actually a team leader on one of the production lines.  More recently, and this is to your credit, you have been working as a deck hand on a fishing boat down at Portland.

28All that has taken place before you are 21.  You do have children and clearly they matter to you and you wish to be a decent father to them.  I will not go into all the detail of that; the Elders discussed it with you during the sentencing conversation.  In your situation I will obviously take into account the principles outlined in Bugmy, which is what experienced criminal judges have been doing for a long time.  That sort of background does not go away in five minutes.  It is very much to your credit that you began using amphetamine by the age of 14 but you got to 21 before the offending commenced.  As I think I have indicated, that shows a real potential to be a worthwhile member of the community.

29You described the amphetamine use as self-medicating as a result of the childhood sexual abuse and domestic violence and you are probably dead right.  What has to happen though, Mr Cocker, is that you cannot do this again, and it is a matter for you how you rehabilitate.  I think you can, you think you can, and the Elders think you can, so it is really up to you.  In that sense I still have to give you a significant custodial sentence but I will give you an opportunity for parole; whether you get it or not is another matter, longer than otherwise might be the case, largely because of the remorse and cooperation that you have engaged in.

30You have done the right thing in gaol.  You are working as a billet, you have done what courses you can and that always gives one confidence.  In the long term, what Mr Ball is concerned about, were aspects of your personality, which I dare say you are well aware of.  That you have got the conduct problems from your mid-teens, and they are explicable.  He said that you still lack the capacity to plan and execute positive and self-sustaining behaviour and that at the time you spoke to Mr Ball, you had minimal insight into your defending behaviour and general psychological functioning.  Can I say this:  I think today may well have been a turning point for you.  I think that your capacity to actually have an insight into what you did, and not in any way minimise what has occurred to those poor people, has increased dramatically, and it is something that you just have to hang on to.

31You have been, I accept, clean from drugs for about 11 months prior to you being arrested for these.  You had been involved in some domestic matters for which there are charges outstanding, and I have got no interest in those, other than you were placed on a CISP program, and it would seem that that confirms that you have been not using the drugs.

32So you are here today with all those matters in your favour.  The prospects of rehabilitation I think, if you can stick with it, are good.  If you rehabilitate, bearing in mind you have got no priors, the risk of you re-offending should be very small indeed.  You have done everything you can subsequently to restore the matters or to mitigate what has occurred, but the fact remains that what you did was very serious indeed, especially the one at Dominos. 

33Now this is the situation where I propose to now pass the sentences.  Can I make this clear:  as I understand it, I have to apply those various principles that exist here to each of the charges, and then accumulate from there.  It will be clear that at the end of this, I will be saying what I would have given you if you had not cooperated and had not pleaded guilty, but it is an almost impossible intellectual task to break it down between all the charges.

34So, the sentence I am giving you for each of these, if you had not cooperated, double them, at least, just so you understand what has a occurred, and anyone who thinks they are lenient knows what has occurred.  Charge 1; 12 months.  Charge 2; one month.  Charge 3 - the armed robbery at Dominos; 18 months.  Charge 4 -again armed robbery; 12 months.  Charge 5 - burglary; six months, and I have to make a comment about that.  And Charge 6 of theft; two months.  On the charge of theft of a motor vehicle, licence suspended for seven days.  I direct that six months of the sentence imposed on Charge 1, six months of the sentence imposed on Charge 4 and two months of the sentence imposed on Charge 5 be served cumulatively upon each other and upon the sentence imposed on Charge 3.  That should give an effective head sentence of two years and eight months.  I direct that you serve a minimum term of 15 months before becoming eligible for parole and I direct that 147 days be reckoned as having been served under this sentence.

35Now, how this works is this, and this is for total transparency.  I operate on a very significant discount for the assistance you have given to police.  Those discounts can vary, but yours is at the higher end for a raft of reasons:  you are the main spring with the Crown case, it would seem that you are the reason he was investigated.  All those matters.  So a discount is given for that and the sentence is reduced by a significant percentage.

36From that point, it is then further reduced by a plea of guilty with remorse and cooperation.  That reduces it by another significant percentage.  Now I don't outline those percentages because I am not allowed to, but let me tell you this.  Had you been convicted of all of this without the cooperation, without the undertaking to police, I would have given you about seven with a five.  So it is clearly understood what you would have got and why you haven't got it.

37As I said to you before, you participated well in Koori Court.  It takes a bit of courage to do that and I think that shows you can be a good person if you want to be, for your family and your kids, and not put those people, like those two poor women at the back of the court, through an ordeal like that ever again.

38HIS HONOUR:  Are there any other orders I have to make.

39MS TAYLOR:  No Your Honour.

40MR DAVIS:  As Your Honour pleases.

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