Director of Public Prosecutions v Comport

[2020] VCC 1301

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00057

DIRECTOR OF PUBLIC PROSECUTIONS

v

COREY COMPORT

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JUDGE:	HIS HONOUR JUDGE DOYLE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	21 August 2020
CASE MAY BE CITED AS:	DPP v Comport
MEDIUM NEUTRAL CITATION:	[2020] VCC 1301

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence, guilty plea, co-offender, armed robbery, driving vehicle whilst disqualified, youthful offender, intellectual deficiency, COVID-19, combination sentence

Legislation Cited:  s6AAA of the Sentencing Act; s.18 of the Sentencing Act
Cases Cited:

Sentence:12 months imprisonment in combination with 12 month community corrections order            

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. McGarvie	Office of Public Prosecutions
For the Accused	Ms S. Gillahan

HIS HONOUR: 

1Corey Comport, you have pleaded guilty to one charge of armed robbery for which the maximum penalty is 25 years.  You have also pleaded guilty to a summary offence of driving whilst disqualified for which the maximum penalty is two years' imprisonment.  The offending in this case took place on
6 August 2019.  You were aged 20 then, you have since turned 21.  You have now been in custody since 13 August 2019 when you were charged in respect of this matter.  The facts of this matter are agreed and they are contained within the prosecution opening which was read in open court and tendered as
Exhibit 1 on the plea.

2I will describe them briefly.  On Tuesday, 6 August 2019, at around 3.50 pm, Bo Pemberton, the victim, was washing his car at the Gisborne carwash in Robertson Street, Gisborne.  Mr Pemberton was aged 20.  He had parked his car in the wash bay and he was using a pressure washer.  You and your co-offenders arrived in a Holden Commodore, driven by co-offender Dianne Comport.  She parked the car in the wash bay next to the victim's car.  You were in the front passenger seat and Mr Cruz Noonan was in the rear passenger seat.  The three of you sat in the car watching the victim for  short time.  You then got out of the Commodore and spoke to the victim, asking him whether his car was insured and how much he had paid for it before telling him you were going to take his car.

3Whilst this was happening, Dianne Comport drove her  car around the front of the victim's car and parked about 2 metres from it.  Mr Noonan got out and stood with you at the front of the victim's car.  You told the victim that there was a police station down the road and cameras everywhere and to 'just leave and nothing will happen'.  You said you had a knife and you lifted your jumper revealing a silver metal bar with black and white tape wrapped around it.  You said something like, 'don't make me use it'.

4Dianne Comport got out of the car and approached.  You and the victim were standing beside the driver's door of the victim's car.  Dianne Comport said to the victim, 'are these guys trying to take your car?'.  The victim replied that they were.  Dianne Comport then asked him if he had $50.  He walked to the boot of his car to get his wallet to check how much money was in it.  He had $25.  He offered this to you and the others and you said, 'nah, I'm not accepting that'.  Dianne Comport suggested going to an ATM but you told the victim that Dianne Comport would go with him in his car and that you and Mr Noonan would follow in the Commodore.

5On the way to the bank, the victim called his father and asked him to transfer $50 into his account because he had no money in there.  When he arrived at the Commonwealth bank ATM he parked his car.  You parked the Commodore a few spaces behind.  The victim went to the ATM and withdrew $50.  You walked to the driver's side door of the victim's car; he came back from the ATM and handed over the $50 he had just taken out of the bank and $25 he had in his wallet.  He told the victim not to go to the police because you had his car registration details.

6The victim then drove away with Dianne Comport who had refused to get out of the car.  She apparently wanted a lift to the Vic Tavern Hotel.  The victim dropped her off there. 

7At 4.15 pm, the victim called his father and told him what had happened.  He reported the matter to the police about an hour later.  Police obtained CCTV footage from the carwash from which they were able to identify you and Mr Noonan as the offenders.  They also identified Dianne Comport.  You were arrested and charged on 13 August 2019.  Dianne Comport was charged on 20 August 2019.

8By your plea you have spared Mr Pemberton the experience of having to give evidence at a trial and you have saved the community the cost and expense of a trial.  When jury trials ultimately resume in court, there will without a doubt be a very long backlog of trials to be dealt with.  In those circumstances, the utilitarian value of your plea, reducing that backlog is of increased value.  I am prepared to accept that your plea is indicative of some remorse for your offending, however, in assessing your plea, I take into account that you ran a contested committal in respect of this matter and the victim, Mr Pemberton was cross-examined.

9In his victim impact statement, Mr Pemberton says that in the aftermath of your offending he was diagnosed with post-traumatic stress disorder, he suffered broken sleep for a few weeks, he became hypervigilant, paranoid.  He was told that the offenders were from Sunbury so he was worried that people were watching him on the train and that he was being followed.  Soon after the offences, he felt he needed help in coping with what had happened and he engaged a counsellor.  He is still receiving counselling at the time he made the victim impact statement.

10He stayed home for several weeks after the offences and he had time off from work and university.  He says that prior to the offending he was a laid back person who never worried about anything.  Now, he always checks his mirrors when driving and believes people are following him if they are behind him for any length of time.  He hates feeling the way he does and he says everything has changed for him because of what happened.  None of this is surprising.  This was a very unsettling experience for him.  One moment he was washing his car and the next moment he was boxed in by you and your co-offenders and made to travel to a bank to access his account for the benefit of your group fearing an assault if he did not do what he was told.

11This was not a spur of the moment incident over within seconds.  This was a prolonged event.  You were very clearly the major and the controlling offender in the incident.  You made the initial approach and you made the demands.  You dictated the way in which the incident unfolded.  You face a charge of armed robbery whereas it was accepted by the prosecution that the other two offenders were not aware of the weapon that you produced.  Accordingly, in respect of the other offenders, the prosecution accepted pleas to robbery. 

12The production of the weapon elevates the seriousness of the incident and was essential in the victim succumbing to your demands.  There was pre-meditation here.  The offending was in company.  The incident was protracted and the impact on the victim was substantial.

13The central mitigating factor in your case is your age.  You are still only 21.  You were only 20 when you committed these offences.

14I will briefly outline your personal circumstances.  You were born in Melbourne and you are the third child to Nicole Menillo and Drew Comport.  Your father is Aboriginal by way of background.  It is something he found out later in his life.  Your youngest sister, Dianne, was a co-offender in this matter.  As I mentioned, you have two older brothers.  Your parents separated when you were approximately two years old.  Thereafter, you lived primarily with your father.  Your siblings remained with your mother.  Your father had problems with methamphetamine and you had a transient childhood.

15You had reasonably constant contact though with your mother and your siblings and you did float between the two households.  When you were age 13, your father was sentenced to a period of imprisonment and you returned to the care of your mother.  You attended six different primary schools but your attendance was sporadic and there were long periods where you did not go to school at all.  You started year seven at Sunbury special school but you left halfway through the year.

16You had behavioural issues in school which hampered your education.  At the age of 10 you were diagnosed with a mild intellectual disability involving speech and language deficits.  You have poor literacy skills and can have difficulty following conversations involving multiple people.  You have had some employment.  At the age of 19 you worked for Westgate Bobcat Hire as a site cleaner.  This employment ultimately ended when you were assaulted in
July 2019 and sustained a fractured arm.  By that time you had problems with drug use and mental health.  Your drug use was extensively referred to in the CCO assessment report that I ordered.

17I have been provided in this case with a neuropsychological report from
Dr Rachel O'Meara who assessed your full scale IQ as being 72 which she says is 'consistent with a neurodevelopmental disorder and in keeping with a previous diagnosis of a mild intellectual disability'.  She is of the view that your low level of cognitive functioning affects your ability to think clearly and make calm and reasoned decisions and appropriate judgments. 

18There is also, in your case, a background of psychiatric issues and I was provided with a report from a psychiatrist, Dr Padaurangi.  He said that in the weeks leading up to the offending, you had relapsed into the use of methamphetamines.  There were concerns about a deterioration in your mental health approximately some days prior to the offending but you agreed to return to your depot antipsychotic medication and you were not assessed as floridly unwell.

19Dr Padaurangi said there is limited evidence from the information available to suggest there is a direct causal link between his underlying mental disorder and the offending.  But the combination of your psychiatric issues and the drugs affect your ability to make appropriate judgments and calm, reasoned decisions.  Both Dr O'Meara and Dr Padaurangi questioned the direct causal link between your intellectual deficits and your psychiatric state to the offending in this case.  Ms McGarvie on behalf of the prosecution submitted therefore that the Verdins principles do not operate so as to reduce moral culpability and reduce the effect of general deterrence and specific deterrence in sentencing in this case.

20In the end, I think that is right.  But given your constellation of   and psychiatric issues operating in the background, it is my view that those matters affect all of the judgments you make and in a background way, I think they do moderate your general deterrence and specific deterrence to a very modest degree and reduce also to a very modest degree the moral culpability involved in the offending.  So, I do not apply general and specific deterrence with full rigour in this case and there is some reduction of your moral culpability.

21Having said all that, I take into account what Ms McGarvie has submitted in respect of the causal link and it is not a matter of great significance in the sentencing in this case. 

22I do take into account the effect of the pandemic in this case and you have now been in custody during the period of the restrictions, visits have been suspended, lockdowns have been prevalent, programs designed to assist rehabilitation have also been suspended.  All of that increases the burden of your imprisonment and is particularly relevant for a person of your age.  And as I understand it, you have had a difficult time whilst you have been in adult prison at such a young age.

23The principles in respect of youthful offenders are clearly relevant to you.  Of course they have to be balanced against the need for general and specific deterrence in this case.  But ultimately, in my view, in the context of you having served a year of adult imprisonment this period satisfies general and specific deterrence and denunciation and it is now time to look to a penalty which focuses on your rehabilitation.

24Your prior history is in fact significant for someone as young as you.  It involves drugs, dishonesty, assault and breaches of community corrections orders.  So, it is not an encouraging history but you have now had that year in adult prison and it is to be hoped that you will try and look to a different future other than drugs, crime and imprisonment.

25You will need some assistance and I would urge you, Mr Comport, to take advantage of what I intend to offer you today as part of the sentence that I will impose, being a period of supervision on a community correction order.

26In relation to the issue of parity, I sentenced Cruz Noonan, to a straight sentence of 90 days for an offence of robbery.  You have pleaded guilty to armed robbery so strictly considerations of parity do not loom large in this sentence.  However, it is my view that there ought to be some relatively between the sentence and you have now served a period of 12 months in adult imprisonment.

27I had you assessed for a community correction order and you have been found to be suitable.  The original plan was to have you assessed for a justice plan as well but that cannot be done until the end of the year and there is in place a plan that you will live with your brother in Wonthaggi to get away from the negative influences in Sunbury which has not been a successful place for you to live in the past.

28In the community correction order report, the author indicated that upon release, you advised you will live with your brother in Walkerville.  You indicated you will be supported by your mother and brother whilst in the community, both of whom were disappointed with your behaviour but supportive of your rehabilitation.  You want to live with your brother to move away from negative peers in and around Melbourne.  You see your brother as a positive influence.  He sets a good example.

29In the period in which this offending occurred, you reported significant daily use of methamphetamine in the three months up until you were arrested and remanded.  You also indicated you had used GHB prior to your remand.  You indicated that your drug use significantly affected your behaviour at the time of the offending and in the end it does seem to me that the offending was primarily motivated by your involvement with drugs.  The report recommends supervision, programs for mental health or assessment and treatment for mental health, assessment and treatment for drugs, participation in offending programs and judicial monitoring and I intend to impose all of those conditions.

30Balancing all of the matters in this case, the nature and gravity of this serious offending against the mitigating factors in your favour and in particular that at 21 you have now served a year of adult imprisonment, the sentence I impose is as follows.  In relation to the charge of armed robbery, you are sentenced to a period of imprisonment of 12 months and a community correction order for 12 months.  That order will have the following special conditions, supervision, mental health, drugs, offending programs and judicial monitoring.

31Mr Comport, it also includes the mandatory condition which are applicable to all community correction orders.  You cannot commit another offence for which you can be imprisoned during the time this community correction order is in force.  You have to report to and receive visits from Corrections.  You have to attend community corrections within two days of this order.  So, that is two days from now.  You must let a community corrections worker know within two clear days if you are changing your address or your job.  You cannot leave Victoria without getting permission to do so.  You must obey all lawful instructions from and directions of the Secretary.

32I will just repeat the special conditions.  Assessment and treatment for drug abuse or dependency, any mental health assessment and treatment as directed including for neuropsychological or psychiatric treatment, including in a hospital or residential facility as directed and you have to participate in programs or courses that address factors relating to your offending.  As well, I will order judicial monitoring in this case and I will come to that date in a moment. 

33I declare in this matter, pursuant to s.18 of the Sentencing Act, 374 days of pre-sentence detention.  That is greater than the sentence that I have imposed but for the purposes of clarity, I think it is better if it is on the record.  Because one of the things that can happen in - I will come to the disqualified in a moment but, Mr Comport, one of the things that can happen if you breach this order is this, that you can be brought back before me, you are charged with breaching the community correction order.  One of the options open is to cancel this sentence including the gaol sentence and re-sentence you for this armed robbery and if that happened, you could expect to serve some more time.

34In respect of the driving whilst disqualified, you are sentenced to a period of imprisonment of two weeks, that is concurrent, or 14 days concurrent with the armed robbery sentence.  Just bear with me for a moment.

35Pursuant to s.6AAA, I declare that the sentence I would have imposed but for your plea of guilty is a sentence of 30 months with a minimum of 18 months.  Now, are there any other ancillary orders, Ms McGarvie?

36MS McGARVIE:  Yes, Your Honour, there is a disposal order which is sought.  I understand it should have - it would have been e-lodged.

37HIS HONOUR:  All right, is that for the - what is that for, the ‑ ‑ ‑

38MS McGARVIE:  That is for the clothing that Mr Comport wore at the time of the offending that was seized by police.

39HIS HONOUR:  Yes, all right,

40MS McGARVIE:  And that is not opposed.

41HIS HONOUR:  All right, that order will be made in the terms sought by the prosecution.  I don't think there are any other orders to deal with in this matter.  Do you understand all that, Mr Comport.

42OFFENDER:  Yes, I sure do, thank you.

43HIS HONOUR:  All right, Ms Gillahan, do you have any issues you need clarified?

44MS GILLAHAN:  No, Your Honour.

45HIS HONOUR:  All right, thank you, I will adjourn till 2 o'clock.

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