Director of Public Prosecutions v Coffey
[2022] VCC 1536
•7 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Ballarat CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-02390
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID COFFEY |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 June 2022 | |
DATE OF SENTENCE: | 7 September 2022 | |
CASE MAY BE CITED AS: | DPP v Coffey | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1536 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Attempted armed robbery – robbery – theft – amateurish offending – intellectual disability
Legislation Cited: Criminal Procedure Act 2009; s145, s242
Cases Cited:Worboyes v The Queen [2021] VSCA 169
Sentence: Convicted and sentenced to 166 days imprisonment with a two-year Community Corrections Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Roodenburg | Office of Public Prosecutions |
| For the Accused | Mr J. Anderson | Stary Norton Halphen |
HIS HONOUR:
1David Coffey, on 15 June 2022, you pleaded guilty to the following charges on indictment number M11096490.1:
·Charge 1 is attempted robbery of Bryson Winters. This charge has a maximum penalty of 10 years' imprisonment.
·Charge 2 is theft of two bottles of Corona beer from Bacchus Marsh FoodWorks. This charge has a maximum penalty of 10 years' imprisonment.
·Charge 3, robbery from Lane Spratling of moneys. This charge has a maximum penalty of 15 years' imprisonment.
2You have also consented to the following related summary offences being heard and dealt with pursuant to ss145 and 242 of the Criminal Procedure Act and you pleaded guilty to the following summary offences:
·Charge 7, committing an indictable offence whilst on bail. That charge has a maximum penalty of 3 months' imprisonment.
·Charge 10, contravening a condition of bail. This charge has a maximum penalty also of 3 months' imprisonment.
3You have admitted your prior criminal history; on 4 November 2019, at the Albury Local Court, you were convicted of larceny and using offensive language near a public place which was a school and you were convicted and fined a total of $400. On 28 January 2020, at the Sunshine Magistrates' Court, without conviction, on a charge of recklessly causing injury and stating a false name and address, you were placed on an undertaking to be of good behaviour until 28 January 2021 with a condition of paying $300 into the court fund. The undertaking had expired by the time of the offending in this proceeding.
4You have spent 166 days pre-sentence detention before you were bailed on these charges.
Circumstances of your offending
5The prosecutor tendered a Summary of Prosecution Opening for Plea dated 1 June 2022. It was Exhibit “A”. The summary was read into the record of the court.
6At the time of your offending, you were 24 years old, your co-accused was your younger brother, Cain Coffey, then aged 22. I have previously sentenced him.
Charge 1, Attempted robbery
7On 27 May 2021 at approximately 7 pm, you and your brother Cain have approached Bryson Winters whilst he was using a National Australia Bank ATM on Main Street, Bacchus Marsh. Mr Winters was putting his ATM card back into his wallet when he heard 'Oi' from behind him and then the screeching sound of brakes on a car. Mr Winters turned and saw the two of you running towards him.
8You and your brother made demands of Mr Winters, saying 'Give me money, cunt'. Your brother had mistaken Mr Winters for a person who owed him money. Your brother Cain backed Mr Winters up against the wall of the bank by grabbing his jacket and pushing him backwards. Both you and your brother continued to demand money from Mr Winters. Mr Winters could smell alcohol on the both of you.
9Mr Winters refused to give you money and both of you started slapping the ATM machine in an attempt to access Mr Winters' account. You then stepped back and swapped a can from your left hand to your right hand. Your brother Cain made a fist with both of his hands. You have then said 'Give me the money or we'll lay you the fuck out'. Cain Coffey was making similar demands. Mr Winters was able to get away from the two of you and ran away as fast as possible towards the shopping centre nearby. Mr Winters asked for the police to be called and later that night, made a statement to police about your offending. All of this offending was captured on CCTV at the bank.
Charge 2, Theft
10At approximately 8 pm, you and your brother Cain attended at the FoodWorks supermarket located in Bennett Street in Bacchus Marsh. This location is approximately 450 metres from the National Australia Bank ATM. You stole a couple of Corona beers from the liquor store section and then placed them in your shorts pocket. You then exited the store without making any attempt to pay for the items. CCTV footage captures you on the entry and the exit into and out of the store. The incident was witnessed by FoodWorks employee, Mr Lau, who provided a statement to police on 27 July 2021.
Charge 3, Robbery
11Shortly after leaving FoodWorks, you and your brother Cain were at the intersection of Graham Street and Main Street, Bacchus Marsh. Emily Brimstead was leaving Flanagans Border Inn which is nearby. She observed the two of you pushing and shoving one another and yelling at other passerby in the street. You appeared to be either drug or alcohol affected to her. Ms Brimstead saw you holding a black rectangular device and it was emitting a blue light and making a buzzing noise. Ms Brimstead got in her car and rang the police when she got home.
12At around 8 pm, Lane Spratling left his work at Fruits of Life and walked into Bacchus Marsh to purchase KFC for dinner. At 8.20 pm, he was in the vicinity of the Commonwealth Bank on Main Street, Bacchus Marsh. Your brother Cain approached Mr Spratling. You were nearby. Your brother engaged with Mr Spratling and I'll read directly from the summary because it gives a proper setting to it:
‘Cain: 'Give me twenty bucks cunt'.
Spratling replied: 'Sorry mate, I don't have cash on me'.
Cain: 'Nah, you do cunt, don't fucken be a smartarse'.
Spratling: 'I don't carry cash on me'.
Cain: 'No, you do – put your card straight in the machine'.
Spratling: 'Nah mate, I don't'.
Cain: 'Don't be a smartarse, I'll knock you out right here'.
13Your brother then used his head to nod in the direction of the Commonwealth ATM. Mr Spratling said 'I don't know if you're serious or not – this can't be happening. You must be trolling or something. This is Bacchus Marsh, you guys aren't from here, are you?'. Your brother then said 'I'm not scared, I've just got out of Port Phillip, I'll knock you out right here now'. Mr Spratling has then responded 'You can't be serious'. Mr Spratling saw that your brother was holding the taser in his right hand next to his hip which he flicked on, causing a light to come up and make a taser crackling sound as it was described. Mr Spratling describes the taser as being a pretty big hand-held taser. It was black, maybe 20 centimetres long. The head of it was about 6 centimetres long. Mr Spratling got out his bank card and tried to put it in the ATM. This took him some time because he was shaking due to fear.
14Mr Spratling then told your brother 'Please don't take my card'. Your brother responded 'I just want the twenty bucks'. Mr Spratling withdrew $20 from the ATM. Your brother was standing next to Mr Spratling as he did so and his hand was waiting for the money. As soon as it came out, your brother grabbed the money and the two of you, that is you and your brother, left going toward Gell Street. Mr Spratling followed the two of you for a short time before stopping and then he called the police.
15This incident was captured on CCTV at the Commonwealth Bank as well as from Flanagans Border Inn and the footage was played here in court before me.
16The prosecution concedes that you were not aware of your brother Cain's intention to use the taser during this offending. You have pleaded guilty to robbery. Your brother pleaded guilty to and was sentenced for an armed robbery.
17In relation to the related summary charges, they are Charges 7 and 10, the following are the facts are as follows:
18At approximately 12 am, police attended at an address in Kerr Street, Bacchus Marsh, and knocked on the door. Your brother complied with the police request and opened the door. He then fled out the door and was intercepted by police and arrested. You were also present at the address and you were also arrested upon the entry of police.
19During the search of you, police seized $70.70 which was located in your pocket. Upon entry, the police located the black coloured taser on a dressing table as they walked through the front door. A black Adidas brand bag was located in the front room of the house and contained your brother's wallet and ID. The taser in the bag was seized along with the clothing worn by the two of you. Your arrest was filmed by body-worn cameras. At the time of your arrest, your bail conditions require that you be present at an address in Harrow Court in Kurunjang.
20The offending by you was inept and both you and your brother were always going to be apprehended.
Personal circumstances
21You're 24 years of age, your mother works in an aged care facility, your father died whilst you were on bail for these offences. During your formative years, your father was incarcerated on a number of occasions. Your father had suffered ill-health since 2008.
22You live with your mother. Your mother is your carer and administers your finances. You are on a disability pension due to your intellectual disability. Your education was at Coburg Primary School to Grade 6 level. In Year 8, you attended at Melton Special School for two days a week due to your disability.
23Your mother wanted you to have a normal school experience so the remainder of your high school education took place at Staughton College. At Year 10, you attended Harvester College to study carpentry. Unfortunately, you were unable to do the written work due to your disability. You left that course after being suspended for what was described as 'playing up'.
24Your employment history is short with work in a kebab store, car wash, bakery and in an abattoir up until the time of your offending. You are currently in receipt of a disability pension.
25You have been examined by Gina Cidoni, a forensic psychologist, for the purposes of this plea hearing. Her report dated 26 February 2022 was Exhibit 2. Ms Cidoni’s testing of you revealed you had a full-scale IQ of 67. This places you in the extremely low range of intellectual functioning. Ms Cidoni assessed your ability to concentrate and exhibit mental control is in the borderline range.
26You were placed in custody after your arrest and remain incarcerated until granted bail on 9 November 2021. You have not been charged with any offences whilst on bail for these offences. You were at home when your father died and you tried to revive him. Your mother, in her reference which is Exhibit 3, states that you have not been drinking alcohol and have been assisting her with home duties and cooking.
Sentencing considerations
27The basic purpose for which a court may impose a sentence of just punishment, deterrents both specific and general, rehabilitation and denunciation of your actions and the protection of the community. In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances.
28I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible, that you as an offender are rehabilitated and reintegrated into society.
29I am also required to take into account current sentencing practices in fixing your sentence. That enquiry is directed particularly but not exhaustively to the kinds of sentences imposed in comparable cases and I have had a look at the statistics for those sentences. I have also considered statistics in current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of those cases would be distinguishable from your case as indeed they are from one another. Of course, current sentencing practices is but one of the matters I have to take into account when determining a just sentence for your offending.
30Each of the victims have declined the opportunity to make a victim impact statement in this case. It was submitted that your victim on Charge 1, Bryson Winters, was very shaken by the experience of your offending - so much was obvious from watching the CCTV of that offending. He ran off very quickly leaving his bank card in the ATM. Mr Spratling, the victim of Charge 3 offending, followed you and your brother after you departed the scene of the crime. No doubt it was an upsetting experience for Mr Spratling but he was not panicked by any of your criminal behaviour.
31You offered to plead guilty to the current charges before the committal hearing of 2021. The prosecution rejected your plea offer. A committal hearing was conducted on the single issue of complicity on the ‘armed’ aspect of Charge 3 which was now a charge of robbery.
32After the committal hearing, you repeated your offer to plead guilty to the current charges before the prosecution again rejected your offer. Your brother's case was dealt with in March 2022. Finally, the prosecution accepted your plea offer after a case conference conducted by Judge Riddell of this court. I accept that your pleas of guilty were indicated at the earliest possible time. You have been consistent in your approach to resolving these proceedings.
33Your plea does have the utilitarian value allowing for the orderly and effective administration of justice. There is also a certainty of outcome and the resolution of the substantive issues raised by your offending. Your plea also allows for the preservation of court and police resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect the community.
34Your plea is also a clear acknowledgement by you that you accept your responsibility for your criminal behaviour on this occasion. Your plea also recognised you are willing to facilitate the course of justice in the community and I accept that your plea of guilty to these charges indicates and demonstrates remorse on your part. Further, the victims of your crime have not been subjected to the processes of a court trial.
35You have been on bail since 9 November 2021. You have offered the plea of guilty in pandemic times. The Court of Appeal in Worboyes v R, reported at 2021 VSCA 169 stated as follows at paragraph 36:
'There are and it must be recognised, real disincentives in the current climate for an accused person who is on bail to plead guilty, particularly if a sentence of imprisonment is on the cards. As the judge observed in the present case, a newly sentenced prisoner in times of a pandemic will spend the first two weeks of his sentence in isolation. 'Thereafter, he or she will have very restricted opportunities for contact with family and friends. Further, rehabilitative and other programs within the prison are severely curtailed. That this is so is notorious. These circumstances must render the prospects of imprisonment even more unpalatable than is usually the case and operate as a further deterrent to enter a guilty plea. These disincentives to pleading guilty must be balanced by a proper inducement through the mitigation of sentence to accept guilt'.
36The court went on,
'Self-evidently, the other side of the coin is that there are real incentives for the cynical and unprincipled to exploit the delays resulting from the pandemic. The longer the delay, the more the memory (and enthusiasm) of witnesses dims and the preparedness of witnesses to actively and willingly participate is tested with associated forensic disadvantage to the prosecution. In ordinary times with ordinary delays, the lots of victims and witnesses already is not a happy one. The longer the delays, the more pronounced their plight.
Further and significantly, criminal trials in the times of the pandemic are more resource-depleting than in times where the threat of serious infection is not present. One of the aspirations of encouraging you to entering pleas of guilty must be that scant resources upon which there is great demand will be, to an extent, freed up.
For these reasons, we consider that all other things being equal, a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's affects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any discount, he or she must ensure that the plea of guilty resolves in a perceptible amelioration of sentence'.
37I apply the principles set out in Worboyes' case in fixing the total sentence in your case. You have an intellectual disability. As assessed by Ms Cidoni, you have a full-scale IQ of 67. This places you in the extremely low range of intellectual function. In sentencing terms, this lowers your moral culpability for your offending. The principle of general deterrence must be sensibly moderated when determining your sentence for this offending.
38I accept that your intellectual disability will make any further time in custody more challenging for you than a prisoner of average intelligence.
39The offending by you on 27 May 2021 is serious. The maximum penalties for each of the charges indicate the seriousness of the offending. The features of your offending which are indicative of the seriousness are:
1) the offending was committed in the company of your brother Cain;
2) you were on bail for other offending when you committed these offences;
403) your victims for Charges 1 and 3 were alone at night on a public street;
4) each of the offences were random in nature with little or no planning involved;
5) you did not attempt to disguise yourself during any of the offending when you must have known that the CCTV was in operation where you were offending;
6) you were alcohol-affected at the time of your offending. This does not mitigate your offending;
417) the offending occurs in a compressed timeframe and in a limited geographical area. You were always going to be apprehended;
428) the offending was amateurish in each instance. Charge 1, you allowed your victim to run off before completing the robbery. Charge 2, you put two bottles of beer in your pockets and walked out of a shop. And Charge 3, you asked for $20 when your victim was at the ATM and you did not ask for any more, that is the two of you.
43I assess your level of offending for each of the relevant charges as low-range offending. I take into account your relative youth, that you were then 24 years old at the time and I am required to give proper weight to the principles of rehabilitation in the sentencing process due to your age.
44I take into account your limited criminal history. You have two prior court appearances. As I have said, in the Albury Local Court you were convicted and fined a total of $400 in November 2019 for theft and offensive language. In January 2020, without conviction, you were placed on an undertaking at the Sunshine Magistrate's Court for recklessly causing injury and stating a false name. Your criminal history is very limited and pales into insignificance besides that of your co-accused brother's prior convictions.
45You have served 166 days pre-sentence detention before the grant of bail on 9 November 2021. It was your first time in custody. The circumstances of your custody time were at the height of the pandemic with strict restrictions imposed by corrections due to the COVID-19 pandemic. You could not receive visits from your parents. Relevantly, you could not see your father in the later months of his life.
46You have been on bail since November 2021 and no allegations of offending are made in that time. Your mother states you have embarked on a rehabilitative course and assist her at home cooking meals and other domestic tasks.
47On the sentencing principles of parity, I note the following distinguishing features between yourself and your brother Cain's offending:
1) Cain is clearly the main offender in the CCTV footage. You are, this is my term, the muscle that is physically present with little more involvement;
2) you have a limited criminal history;
3) you have an intellectual disability;
4) your remand time was your first custodial experience;
5) you have made good on a chance of rehabilitation whilst you were on bail; and
6) you are not charged with armed robbery as your brother was.
48These features distinguish you markedly from the sentencing factors relevant to your brother, Cain.
49I assess your chances of rehabilitation as fair with some assistance and supervision under a Community Corrections Order with a justice plan input. Your alcohol abuse problem may be controlled and your risk of reoffending will be reduced. With the moderation of general and specific deterrence principles, just punishment protection of the community dictate that a term of imprisonment is appropriate for the sentence of Charge 3. A supervisory order imposed on Charge 1 will further advance the principles of specific deterrence, rehabilitation and just punishment. In respect of Charge 2, a small monetary penalty is appropriate for what ordinarily would be a shop theft charge dealt with in a Magistrate's Court, a summary jurisdiction.
50I sentence you as follows, Mr Coffey – would you stand please.
51On Charge 1, attempted robbery, you are convicted and placed on a Community Corrections Order for two years. The conditions of that Community Corrections Order are that you are to receive treatment and rehabilitation for alcohol, treatment and rehabilitation basically attached to your justice plan but it is mental health supervision - the justice plan you are to comply with which will be part of the Community Corrections Order and judicial monitoring which is to take place on 17 November this year at 9.30 am and you can attend that judicial monitoring at the Melton CCS which is where you will be based, by video. Do you understand that, yes.
52Secondly, Charge 2, theft – you are convicted and fined $200. On Charge 3, robbery – you are convicted and sentenced to 166 days imprisonment. That's the base sentence. On the Summary Charge 7, you are convicted – this is the offending on bail – you are convicted and sentenced to 14 days and on Summary Charge 10, contravening a condition of the bail, you are convicted and sentenced to 14 days. Those two sentences, the 14-day sentences, are concurrently to be served with the 166 days.
53That is a total effective sentence of 166 days. I declare that you have served the 166 days pre-sentence detention and I would make an order for restitution which will be signed and the other order is in respect of s6AAA. But for your plea of guilty, I would have sentenced you to 3 years with a non-parole period of 2 years imprisonment. So, that is a very long-winded way of telling you that the sentence for your offending on this day, on the day in question, is on the robbery charge, you are being convicted and sentenced to 166 days and you have served them. Today, you sign up to a Community Corrections Order for a period of 2 years from now.
54OFFENDER: So, it's from today, yeah?
55HIS HONOUR: Yes, from today, and together with that will be a justice plan so you will be under the direction of Community Corrections at Melton, all right.
56OFFENDER: How much is the fine, $600 all up, is it?
57HIS HONOUR: No, $200.
58OFFENDER: Oh.
59HIS HONOUR: And otherwise, that's basically, that's a judge's summary of what the punishment is.
60OFFENDER: Yeah.
61HIS HONOUR: Your counsel will give you the full details.
62MR ANDERSON: Will do, Your Honour.
63HIS HONOUR: Thanks. I'll just have – the condition in relation to mental health is really this. It's to comply with directions from the Royal Melbourne Hospital which is, as I understand it, your client is under treatment from the Royal Melbourne Hospital. Do you know about that?
64MR ANDERSON: No, I don't actually, Your Honour.
65HIS HONOUR: All right.
66MR ANDERSON: Is that what will look, Your Honour, under the auspices of the justice plan.
67HIS HONOUR: Yes.
68MR ANDERSON: It will be through Royal Melbourne Hospital?
69HIS HONOUR: No, they're different. That's, the justice plan, that's done through the department that used to be called Human Services, it's now called Family, Fairness and something else.
70MR ANDERSON: Family, Fairness et cetera, yes.
71HIS HONOUR: They do that. Can I ask you just to check with your client whether he's, yes, thanks.
72MR ANDERSON: I think, it's news to us the Royal Melbourne Hospital.
73HIS HONOUR: Yes, so just forget I mentioned the Royal Melbourne Hospital. The conditions are that he undergoes assessment and treatment for alcohol abuse and dependency and otherwise, he's to comply with the justice plan and the services provided under the justice plan which will be part of, which is part of the corrections order.
74MR ANDERSON: So, in the Community Corrections Order assessment report, it does say 'any other program, course of treatment, namely to comply with the direction of the Royal Melbourne Hospital is respectfully recommended'. I'm just wondering whether it's because they were envisaged to supply some of the - - -
75HIS HONOUR: Services.
76MR ANDERSON: - - - offender behaviour programs under the order.
77HIS HONOUR: That would be new to me.
78MR ANDERSON: It's - - -
79HIS HONOUR: That would be new to me. It says here, as you know, 'any other program, course of treatment, namely to comply with the direction of the Royal Melbourne Hospital is respectfully recommended'. But your client's instructions are he hadn't been there for years.
80MR ANDERSON: Yes, and I've just, look I've just searched each of the different documents we've been provided with. I don't think any of the others - - -
81HIS HONOUR: No, don't refer to it.
82MR ANDERSON: - - - refer to the Royal Melbourne Hospital. But if - - -
83HIS HONOUR: Can I - - -
84MR ANDERSON: If Your Honour makes the condition that he attend for other programs and the justice plan condition, if the Royal Melbourne Hospital are to deliver some of that, presumably those - - -
85HIS HONOUR: They're encompassed in it.
86MR ANDERSON: Yes, they'll be encompassed.
87HIS HONOUR: That's right, so first of all, there's the alcohol one and then the second one will be any, directed to participate in any programs consistent with achieving the purpose of treatment, rehabilitation as directed by the Regional Manager. That'll be nice and general and when I say general, it also gives the Regional Manager the power to encompass those things together with the judicial monitoring and the justice plan. That should be it for a period of two years, yes. The justice plan goes for the same period of two years, yes.
88MR ANDERSON: Yes, Your Honour.
89MS ROODENBURG: Thank you, Your Honour.
90HIS HONOUR: I'll just have a couple of copies of that made. One of them is for you, Mr Coffey, so you can take it home and stick it on the inside of your cupboard door. Every time you open it to change your clothes or whatever, you'll have a reminder of what you've got to do.
91OFFENDER: I think I'll remember anyway.
92HIS HONOUR: Yes. Your main job from now on is to look after your mum. Thanks counsel, for your assistance. Thank you – he's free to step out of there.
93MR ANDERSON: Yes.
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