Director of Public Prosecutions v Cokacar

[2018] VCC 1708

IN THE COUNTY COURT OF VICTORIA Revised
Unrestricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHANE COKACAR

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JUDGE:	HER HONOUR JUDGE RIDDELL
WHERE HELD:	Melbourne
DATE OF HEARING:	16 October 2018
DATE OF SENTENCE:	18 October 2018
CASE MAY BE CITED AS:	DPP v Cokacar
MEDIUM NEUTRAL CITATION:	[2018] VCC 1708

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. Burnett	Office of Public Prosecutions
For the Accused	Mr B. Tait

HER HONOUR:

1Shane Cokacar, you have pleaded guilty to one charge of false imprisonment, one charge of intentionally cause injury, one charge of a making a threat to kill and one charge of armed robbery.  The circumstances of that offending were outlined in the summary of prosecution opening which was tendered on the plea.  In summary those facts are as follows.

2You were 20 years old in November 2017 having been born on 3 June 1997.  Your co-offender, Ms Beverley Brooks was 23 years old.  You and she knew each other through a circle of acquaintances who used drugs.  The victim, aged 31, was a friend of Ms Brooks.  On Friday, 17 November 2017 at approximately 5.00 pm he and she exchanged a number of text messages wherein he proposed to pay her for sexual services.  She was affronted by the distasteful content of his messages and shared them with you.  You too were disapproving and out of some sense of misguided allegiance to her, the two of you devised a plan to invite the victim to attend your shared residence with
a view to confronting him.  Clearly that confrontation would be expected to be a violent one. 

3Ms Brooks invited him to attend at a residential address in Mitcham where you and she were living.  She sent a text to him saying "I swear it's only my girlfriend here".  At approximately 7.30 pm the victim attended at that address.  Ms Brooks invited him inside where he took a seat in the lounge. 
She then proceeded to stand over him, verbally abusing him for disrespecting her.  During that verbal altercation you entered the room.  You were dressed in a white jumpsuit and wearing black rubber gloves and sunglasses.  The suit was one of your painting overalls.  Nonetheless it operated as both a disguise and immediately elevated the level of fear for the victim.  You started verbally threatening him.

4At this time Ms Brooks locked the front door.  The victim tried to open it but you locked it again.  You then proceeded to punch him to the face.  Ms Brooks used grey duct tape to secure the victim's hands behind his back and to cover his mouth.  You assisted.  She later took the duct tape off the victim's mouth. 
You repeatedly punched the victim to the head and threatened to kill him and to "cut his dick off".  He also overheard you and your co-offender talking about burning him and taking him to the forest. 

5At one stage Ms Brooks called her ex-partner, a Mr Casey Jennison  Mr Jennison is believed to dislike the victim who had previously propositioned his girlfriend for sexual favours.  Mr Jennison was put on loudspeaker.  He was told in rough terms what was occurring.  Ms Brooks started yelling at the victim to say sorry for asking Jennison's girlfriend for sexual favours.  The victim in his victim impact statement describes hearing a discussion between yourselves and Mr Jennison regarding cutting off limbs and disposing of his body.

6You again started hitting the victim over the head, this time with the back of the meat cleaver and telling him to say sorry.  The victim was crying, terrified and kept saying "Sorry" before the call ended.  Mr Jennison, in a statement to police, described the victim's obvious fear and distress.  Those events constitute the threat to kill and intentionally cause injury.

7Ms Brooks proposed that you go to the bank and take the victim's money. 
You held the meat cleaver to the victim's back and forced him to his own car, a blue Holden Commodore where you then sat in the back seat with him while you were being driven by Ms Brooks to a bank in Whitehorse Road, Mitcham. 
Once parked at the bank you held the meat cleaver to the victim's face and made demands for the bank card and his PIN.  The victim complied with this request, fearing for his life.  Ms Brooks then entered the Mitcham bank and used the victim's card to withdraw $700.  This is the armed robbery.  You all then drove back to the residential address where you again punched the victim at random times. 

8Your victim begged you both to release him and Ms Brooks, in fact, convinced you to let him go on the condition that he not report the matter to the police.  She cut the duct tape from the victim's wrists.  You then proceeded to take the victim's Apple iPhone 7+ and driver's license and forced him to remove his white T-shirt, which was bloodstained. 

9The victim then returned to his home where he was driven to Box Hill Hospital by his girlfriend and her mother as a result of his injuries. 
The matter was then reported to the police. 

10As a result of the incident the victim sustained a cracked lip lining requiring plastic surgery and four stitches, numbness and some nerve damage to his right crown tooth, which still requires dental work, as well as two black eyes and bruising around his body.  He says he feared never being released and feared that he would die.

11You were arrested with your co-offender on Saturday, 18 November 2017, at the residential address.  Used grey duct tape was located on the floor of the dining and kitchen area.  Various areas were swabbed for possible bloodstaining and DNA.  The results of those, however, did not provide any evidence against you. 

12You were interviewed by police and denied any involvement claiming not to have been home at the time of the events.  You claimed the money located in your satchel was from painting jobs and you claimed that you had purchased the mobile phone from another friend.  You were remanded at that time.

13Your matter proceeded through the committal stream initially being listed in May 2018 for committal but perhaps fortunately was not reached.  In July and August of this year your co-offender, Ms Brooks, made a statement to police outlining both of your involvement in the offending.  This was significant as there was no other direct evidence against you.  You were not known to the victim and the events transpired at a house frequented by a number of persons for the purpose of using drugs.  There were question marks surrounding admissibility of an identification made by the victim via Facebook.  Soon after provision of
Ms Brooks' statement you indicated your intention to plead guilty.  The victim was not cross-examined.  The prosecution stated, very fairly, that this was an early plea. 

14False imprisonment, intentionally cause injury, threat to kill and armed robbery are serious offences requiring denunciation, just punishment and general deterrence.  These are relatively serious examples of such offences.  They involved a planned confrontation where the victim was locked inside the house and falsely imprisoned for approximately two hours.  There was application of duct tape to his hands and mouth. 

15Actual violence by way of the repeated and unpredictable assaults committed upon him by you was accompanied by the threat of further violence including by way of the brandishing of the meat cleaver along with what must have been terrifying threats of cutting off parts of his body, burning him and disposing of his body in the bush.  Those threats do not have to have been intended to be carried out for their impact to be real on the victim.  Removal of him to the bank with ongoing assaults and the presence of the meat cleaver in the close confines of the car, as well as the theft of his money and property demonstrate the seriousness of these events. 

16I am not surprised to read in his victim impact statement that the victim suffers flashbacks, is traumatised in particular regarding the threats made to him, is unable to sleep, socially paranoid, looking over his shoulder and does not trust people.  He says he is unable to concentrate and has been engaged with a psychologist to deal with the trauma, anxiety, fear and depression.  He has also suffered financially including having to take time off work, having lost money and property stolen by you, having spent money on medical expenses and security and counselling expenses.  He describes this event as, "the scariest moment of my life".

17As discussed with your counsel, consideration of your plea and whether it is a true reflection of remorse is difficult.  You initially denied involvement, no doubt in part because of the drug addled haze in which you were living.  But even after during a significant period of remand you did not seek to offer an admission of responsibility for some time. 

18I do accept that you more recently were able to express remorse in an assessment with psychology, Gina Cidoni, and by way of a direct letter to the court.  I accept that you admit your responsibility and importantly that you express an understanding of the trauma your actions would have caused for the victim.  To that end you receive the benefit of the remorse you have expressed and of your plea of guilty.  By your plea you have saved the victim from further trauma in reliving these events as well as saving the time and cost involved in a trial.

19Ms Cidoni outlines your background in a report tendered on the plea.  In short you grew up in Chadstone with a brother and a sister.  Your father died when you were six years old leaving your mother on her own to care for you children.  Your mother remains supportive of you and has been in court throughout these proceedings.  You attended school to Year 9 at Glen Waverley High School and later in Camberwell.  You left school and initially commenced a trade as a painter and decorator.  However you did not complete that course.  You have worked as a painter from time to time although your work history has been somewhat patchy. 

20Your inability to finish school and to work consistently is no doubt a reflection of your increasing drug use during those years.  You commenced with cannabis using it daily at age 14, methamphetamine at 15 years of age and which you were using regularly until 18, alcohol abuse at 18 and heroin from 19 until your arrest.  That dangerous slope no doubt saw you spiralling out of control at the time of this offending.  While it offers no excuse at all for commission of violent offences such as these it paints a backdrop to your life at that point. 

21Your drug use is also reflected in your criminal history.  Although a young man, 20 at the time of these offences, you have a reasonably significant prior record.  You have been dealt with in the Children's Court on six occasions since 2011 for relevant offences including assault, assault in company, possession of weapons, burglary, five charges of robbery, criminal damage and contravening a family violence order.  Dispositions imposed on you included a youth attendance order and youth supervision order with attached conditions directed at your rehabilitation.  You breached the youth supervision order and although there was a three year gap between your last court appearance and the commission of these offences, clearly the rehabilitation was unsuccessful in the long term.

22Your current remand represents your first time in custody and in particular in an adult gaol.  You were at Port Phillip Prison for two months at the start of your remand and at a time of the fire occurring at that prison.  More recently you have been at Marngoneet.  You are doing your best to undertake whatever courses are available to you and those should be more accessible once you are sentenced. 

23It was submitted that a combination sentence would be open to me, specifically so that there can be certainty about mandated rehabilitation.  In particular, issues of parity were raised on your plea.  I sentenced Ms Brooks earlier this year to 242 days imprisonment plus a two year community corrections order with conditions including unpaid community work and rehabilitation.  However your counsel sensibly conceded the significant differences between you and your co-offender.

24In summary the difference between you and her are as follows.  At the time of the offending she sought to dissuade you from perpetrating ongoing assaults on the victim.  She persuaded you to let the victim leave.  She admitted her involvement the following day and stated that although she accepted her role she did not anticipate the level of violence you would engage in.  She showed genuine remorse for her offending and in particular because the victim had been a friend.  She pleaded guilty to less serious offences, false imprisonment, common law assault and armed robbery.  Her plea was entered at a very early stage, at committal case conference in February of this year.  She had a diagnosis of bipolar disorder and documented mental health history including a suicide attempt as a result of difficult circumstances in her upbringing.  Leading to these offences she experienced the breakdown of a violent relationship and this, in combination with her mental health issues led her to increased drug abuse.  She had taken up the opportunity of an intensive drug rehabilitation course in custody which including months of counselling and 46 clean urine screens.  She had a Diploma in Childcare and a positive work history in both childcare and aged care and was keen to pursue a career in social work. 
She had the support of her family and a young son and she had only one prior matter in the Children's Court which was of a very different nature to these offences.

25In contrast you escalated his offending first by use of a disguise then by actual and erratic violence committed over some period of hours, by use of the meat cleaver to reinforce your threats of dismembering the victim, by actually using that weapon to hit him, by holding it against his face as he drove in the car, by your nasty and very disturbing threats to kill him.  The victim did actually sustain injury which required plastic surgery and ongoing dental work.  Your moral culpability for this offending is high.  Through your counsel at your plea and no doubt with the sobering effect of imprisonment you accept those matters. 
Given those circumstances and your prior criminal history, in my view the only appropriate sentence is a term of imprisonment with a non-parole period. 
This was ultimately not argued against.

26Having drawn that conclusion I do take into account your age and particularly the sentencing consideration concerning young offenders.  In particular the fact that rehabilitation must be a greater focus.  However I also accept the prosecution submission that such a consideration must yield to other principles when dealing with serious offences such as these.

27I agree that your prospects of rehabilitation are guarded.  They depend on your ability to withstand the temptation to fall back into drug use when you are released.  If you cannot resist that temptation then the way ahead will be obvious.  If, however, you can adhere to the good resolutions you have made in custody, to your current drug free state and can take opportunities to increase your employment prospects, given your young age, your future could be a positive one.

28You have support of your mother and brother who continue to see you in custody and who will have you live with them upon release.  At the time of this offending I note you had broken away from your family.  Your reconciliation with them and their support is significant and important and I agree with your counsel, it is encouraging with regard to your rehabilitation.  Ultimately, of course, your success will be a matter for you but there are some positives.

29Given all the offending arises out of a single episode I propose to impose an aggregate sentence on the four charges.  If you could stand please,
Mr Cokacar.

30On the four charges before me I propose to impose an aggregate sentence of four years and eight months' imprisonment.  I direct that a non-parole period of two years and six months be served. 

31With respect to s.6AAA but for your pleas of guilty in relation to these offences the sentence I would have imposed would have been one of six years' imprisonment with a four year non-parole period. 

32I declare that you have already served 334 days as pre-sentence detention in relation to these matters and I will make the disposal and forfeiture orders which have been consented to.  You can have a seat, Mr Cokacar.

33There was a matter, Ms Burnett, in relation to the suppression order ‑ ‑ ‑ 

34MS BURNETT:  Yes, Your Honour.

35HER HONOUR:  ‑ ‑ ‑ for the co-offender.  I don't know whether you have any instructions in relation to that?

36MS BURNETT:  I don't, Your Honour.

37HER HONOUR:  I don't - I'll just check with my associate.  

38MS BURNETT:  I think that may have been my instructor that made contact with Ms Brooks' solicitor.

39HER HONOUR:  Yes.

40MS BURNETT:  I haven't heard anything further in response.

41HER HONOUR:  All right well that's a matter for them then.  I understand they might make an application to vary the terms of it, which I'd be amenable to but if no application is made then that's where it stays.

42MS BURNETT:  Yes, Your Honour.

43HER HONOUR:  All right.

44MS BURNETT:  Thank you, Your Honour.

45HER HONOUR:  Thanks, counsel, for your assistance.

46MR TAIT:  Thank you, Your Honour.

47MS BURNETT:  Thank you.

48HER HONOUR:  Thank you.  I'll leave the Bench temporarily.

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