Director of Public Prosecutions v Cook
[2016] VCC 1006
•14 July 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-16-00700
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SCOTT COOK |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 1 & 7 July 2016 |
| DATE OF SENTENCE: | 14 July 2016 |
| CASE MAY BE CITED AS: | DPP v Cook |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1006 |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Persistent contravention of family violence intervention order – theft - aggravated burglary – criminal damage – possessing a drug of dependence – assault with a weapon
Legislation Cited: Sentencing Act 1991
Cases Cited: Boulton & Ors v The Queen [2014] VSCA 342
Sentence: 23 months’ imprisonment and 3-year CCO
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APPEARANCES: | Counsel | Solicitors |
| For the DPP at hearing For the DPP at sentence | Ms J. Fallar Mr G. Martin | Office of Public Prosecutions |
| For the Offender | Mr C. Farrington | Paul Vale Criminal Law |
HIS HONOUR:
1Scott Cook, you have pleaded guilty to one charge of persistent contravention of a family violence intervention order, one charge of theft, one charge of aggravated burglary, one charge of criminal damage, two charges of possessing a drug of dependence and one transferred summary charge of assault with a weapon.
2Persistent contravention of a family violence intervention order carries a maximum penalty of five years' imprisonment. Theft and criminal damage each carries a maximum penalty of ten years' imprisonment. Aggravated burglary has a maximum penalty of 25 years' imprisonment. Possessing a drug of dependence has a maximum penalty of five penalty units when the drug is cannabis and 30 penalty units or one year’s imprisonment when the drug is methylamphetamine. Assault with a weapon, in your circumstances, carries a maximum penalty of two years' imprisonment.
3You were born on 10 August 1981, so you are now aged 34, and you were also this age when the offending occurred some eight months ago.
4You have no prior criminal history.
5The background to your offending is as follows - and I note that, as was done in the prosecution opening, I will refer to the parties by their first names.
6By 2015 you had been in an on-and-off relationship with one of the victims in this matter, Ebonie Stewart. You have two children together, a daughter aged nine and a son aged two. In the last two years you have not been together.
7Ebonie commenced a new relationship with the other victim, Darren Wilson. They had known each other for a few years and had been going out at the time of the incident for about five months. In the preceding three months Darren began living with Ebonie and the children at premises in a street in Oakleigh East.
8Ebonie claims the relationship with you was marred with issues relating to your addiction to ice and marijuana.
9At the time of your arrest you informed police that Darren was your former drug and alcohol counsellor, which you also confirmed in your record of interview.
10On 9 November 2015 a full intervention order was granted at the Moorabbin Justice Centre in favour of Ebonie and the two children against you, to expire on 9 November 2016. The order had exceptions regarding child care arrangements by letter, email or text messages. You were served with that order on 14 November 2015.
11The circumstances of your offending are as follows.
12As to Charge 1, persistent contravention of a family violence intervention order: after the intervention order was served, from 14 November 2015 to 24 January 2016 you breached the order by sending numerous SMS messages unrelated to child care arrangements, left voicemails, attended the address and were in excess of the five-metre prohibition. Whilst the general tone of the SMSes was initially friendly, it escalated into threats - especially upon discovering that Ebonie had a new partner. Your SMS messages to Ebonie suggested you had been observing that the other victim, Darren Wilson, drove a Commodore station wagon and that he was dark-skinned.
13On 9 December 2015 Ebonie reported the breaches of the intervention order at Oakleigh police station. From 11 December 2015 you continued to send SMS messages, including accusing Ebonie about rape charges and breaches of the intervention order. You also made reference to Ebonie's new partner.
14I note that there are 37 pages of phone records from 9 November to 28 December 2015.
15On 6 January 2016 you were arrested and interviewed in relation to the persistent breaches of the intervention order.
16As to Charge 1 again, to Charge 3, aggravated burglary and to Charge 4, criminal damage, I note the circumstances are as follows.
17On Sunday 24 January 2016 at about 8.00 am Ebonie, Darren and the two children were at their Oakleigh East premises. Ebonie heard the front doorbell ring. She opened the door and saw you. She told you "No, go" then shut the door. You started screaming and grunting, and said "I'm going to get you". Ebonie called 000. She then heard you move to the side gate then towards the back door near the toilet. You were yelling that she was "fucked" and you were going to kill her. All four barricaded themselves inside the front bedroom, bolted the door and pushed the cot against the front door.
18Your daughter began to shake in fear and your son was also scared. Ebonie heard footsteps inside the house and crashing and banging noises. You were screaming that she and Darren were "fucked" and began to bang forcibly on the door, causing it to move. You stopped. Suddenly Ebonie heard the window smash. The curtain moved and Ebonie saw you outside. You began to climb through the broken window screaming at Darren that you were going to kill him, pointing a crowbar at him. You then said "I'm going to kill you, Ebonie".
19As all four escaped the front hallway Ebonie observed that you made it inside the room up to your torso. The noise stopped again. You were then seen to walk through the kitchen from the back door, still with the crowbar. The others fled and barricaded themselves back again in the bedroom. While these events were happening Ebonie remained on the phone with the police. More smashing of glass was heard.
20During the incident at the house the informant, Constable Bolitho, was also on the street where the house was with Senior Constable Dwyer, attending a welfare check on another matter. After hearing about the commotion over the police radio they walked to the address. As they reached the driveway they heard the sound of a window smashing. They saw you trying to climb through a wooden gate that fell to the ground and move towards them. You were ordered to lie down. You did so and were handcuffed. The informant observed that you had shallow cuts to your legs but with minimal bleeding.
21Back at the house all went quiet. Darren told Ebonie that the police had arrived.
22As to Charge 4, criminal damage, Charges 5 and 6, possess a drug of dependence and Charge 2, theft, the circumstances are as follows.
23You were arrested and searched. You were carrying a grey backpack. Inside the backpack was located a small tin case containing small bags of cannabis and ice. Also located was Darren's mobile phone. Other police officers attended and you were lodged at the rear of a divisional van.
24Ebonie, Darren and the two children stayed in the bedroom a little while longer then emerged to find the house damaged. The back door and lock were broken, wood was split. The side gate was broken, half of the gate was on the ground and wood was split as well. The master bedroom and the lounge room windows were also broken. The bedroom door also had a hole.
25The police informant took photos of the crime scene. Damage was observed in various areas of the house. Also located were the crowbar and a yellow-handled saw.
26Written messages were seen in chalk around the house. Police took photos of the following:
- Written on a side brick wall – “[…] you are not my daughter Darren can have you now.”
- Written on a front brick wall – “Cheaters”; “I hate u all” and “Trators” [sic].
- Written on the letterbox – “Trator” [sic].
- Written out the front of the address – “enjoy ya [sic] new drunk dad”.
- Written on the footpath – “it begins last night”.
27The whole episode caused Ebonie to be scared for herself and for her family's safety.
28As to summary Charge 5, assault with weapon and Charge 2, theft, the circumstances are as follows.
29Darren also disclosed an incident with you which had occurred the day before. On Saturday 23 January 2016 at about 2.00 am Darren was smoking in the back yard when you came up from behind and pushed him. He fell to the ground and saw you swinging what appeared to be a saw. You hit the back of his head with the back of the saw. Darren jumped the side fence and a few more fences before going to the road around the corner. You chased him. Darren stopped. You said you wanted to talk. Darren said if you wanted to talk then why would you bring a saw? Darren flagged a passing car and was able to call the police using the driver's phone. Darren waited for the police to arrive where he was taken back to the house. You were nowhere to be found and neither was his mobile phone.
30Another officer confirmed that police attended on 23 January 2016 at about 4.15 am and spoke with Darren, who disclosed what had happened earlier with you. He was seen to have minor scratches on his palm from jumping the fences.
31As stated earlier, Darren's mobile phone was located inside your grey backpack. The police also located a yellow-handled saw.
32You were later conveyed to the Glen Waverley police station where you participated in a record of interview and made significant admissions as to the circumstances of entering the house, the damage and the assault on Mr Wilson.
33As to the drugs, you said you had bought $20 worth of "choof" and $100 worth of ice and you admitted to the written messages.
34You were first arrested for contravening the intervention order on 9 January 2016 and you were subsequently arrested on 24 January 2016 in relation to the further matters, charged and remanded into custody. You have remained in custody since then.
35This matter resolved on 27 April 2016 when you indicated that you would plead guilty to the current charges.
36I now turn to your personal circumstances.
37As I noted earlier you are now aged 34 and you were also this age when this offending occurred last summer. You are the adopted son of your parents and have a close and positive relationship with your adoptive parents and younger sister. You have also formed a close relationship with your biological family. The testimonials from your families and a friend of the family speak very positively about your otherwise happy, caring and non-violent nature
38You excelled at art and sport at school and left before the end of Year 11 to take up a butcher's apprenticeship. You completed the practical side of this work for four or five years before completing horticultural studies. You worked in that industry, developing your own landscaping business about nine years ago. You have also worked as a tiler, pool builder and in other employment.
39You commenced a relationship with the victim, Ebonie, approximately ten years ago. For a time you stayed at home during the course of that relationship and cared for the children whilst your partner studied psychology at Monash University. She is now a qualified psychologist. It appears that the relationship became strained and there were serious issues concerning your use of cannabis and methamphetamine.
40You admit to a history of cannabis use since the age of 15 and more recent methamphetamine use. You claimed to have been under the influence of methamphetamine during the commission of the offences.
41A psychological report from Ms Carla Lechner, consultant psychologist, was received on your plea. In Ms Lechner's opinion you have a longstanding cannabis use disorder in early remission in a controlled environment. You also have a history of some depression and have previously been prescribed anti-depressant medication. You more recently have had to cope with the emotional effects of having been involved in a car collision in December last year where two of your friends died. You personally pulled them out of the back seat. You evidence symptoms of post-traumatic stress disorder and anxiety. At the time of this offending you were also suffering the anxiety of a possible malignant brain tumour. That issue has, fortunately, now resolved.
42The offending occurred in the context that you had previously voluntarily attended three months of rehabilitation for your cannabis and other drug use, and in the course of that treatment were counselled by Darren Wilson. You were devastated and felt betrayed when you were later discovered that Darren, your counsellor, and Ebonie had formed a relationship.
43In mitigation I take into account the submissions made by your counsel, including:
· your previous good character,
· you are at a mature age of 34 and have no prior criminal history,
· your plea of guilty and the time at which it was made and your expressions of remorse which I accept are genuine,
· your history of employment,
· the efforts made by you whilst in custody to assist your rehabilitation,
· the love and support you have from your family and your extended family,
· your cooperation with the police investigation and frank admissions,
· the conditions of the time that you have currently spent in custody before sentence,
· the context of your offending being out of character and most likely to have been contributed to by a mix of emotionally traumatic experiences,
· your underlying condition of anxiety and mild depression.
44Notwithstanding these significant mitigating circumstances your offending constitutes serious criminal behaviour in the context of domestic violence committed in the home of your former partner and in front of your two young children whom you profess to love dearly. You created a very frightening and traumatic incident which can have long-lasting psychological effect on the victims. The victim impact statement of your former partner gives eloquent testimony to the nature of such emotional injury. Furthermore, you offended whilst being subject to a family violence intervention order. The offending was aggravated by smashing property and threats to harm the victims - at one stage whilst you were also carrying a crowbar.
45The prevalence of this type of terrorising behaviour by a disaffected former partner is well recognised in the community and you would have been well aware of its significance. A great deal of public and private funding has been allocated to publicise the fact that neither the community nor the courts will tolerate the continuance of the levels of domestic violence hitherto experienced.
46Being alcohol- or drug-affected at the time of commission of an offence is not a mitigating factor. The fact that you stupidly and recklessly had consumed what is generally regarded as a dangerous illicit drug is no excuse for the conduct that brings you before the court today.
47However I do accept that some measure of mitigation can be given to the fact that you had a longstanding drug problem and, importantly, had, prior to these incidents, voluntarily engaged in a drug rehabilitation program. This matter can be taken into account as to your prospects of rehabilitation.
48Balancing the various sentencing considerations, in particular the matters set out in s.5 of the Sentencing Act 1991, I am clearly first satisfied that the purposes for which the sentence is imposed cannot be achieved without a sentence of imprisonment.
49Overall I formed the impression, both from the evidence on the plea and from your demeanour in court, that you do very much regret your involvement in this offending. I do accept your expressions of remorse as being genuine.
50Your counsel has submitted that in all the circumstances the purpose or purposes for which a sentence is imposed can be achieved by a sentence that follows your confinement in prison with a suitably directed community correction order. The prosecution concedes that a term of imprisonment tailored with a conditioned community correction order is not outside the appropriate sentencing discretion.
51The basic purposes for which a court may impose a sentence are punishment, deterrence, both specific to you and general to other persons who might be like-minded to offend in a similar way, your rehabilitation, denunciation of a conduct and the protection of the community. In sentencing, I must have regard to a range of matters such as the serious nature of the offending, your culpability for it, its context, your personal circumstances and those of the victims. I am required to balance the interests of the community in denouncing criminal conduct with the interests also of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and re-integrated into society.
52I have given close consideration to the principles expressed in the case of Boulton & Ors v The Queen[1] and the further expressions of those principles by the Court of Appeal in subsequent decisions of that court. I have also carefully considered the tables and summaries of other cases of a like nature as an indication of current sentencing practices and the provisions of the Sentencing Act 1991, in particular, s.5(4C).
[1] [2014] VSCA 342
53On balance, in the particular circumstances of this case I am not persuaded that the purpose or purposes for which a sentence is imposed can be achieved by a sentence that does not involve your confinement in prison for some period. In my view the objective gravity of your offending is too high, despite the mitigating circumstances, to justify that option. In my view the gravity of the offending requires that the retributive and deterrent purposes of punishment in custody must take precedence.
54As I have said before, I also consider that the actual time spent in confinement can be appropriately reduced with the benefit of a combination with a community correction order upon release, given that the community correction order can be imposed for a period of years with conditions attached which are both punitive and rehabilitative, which will militate against the disadvantages of imprisonment to a first offender and give you the opportunity to address the issues in your life that may have contributed to your offending, both to your advantage and to the advantage of the community.
55I accept that you have insight into your issues and with appropriate application on your part the prospects for your rehabilitation are reasonably good. Without being addled by illicit substances, I accept that you are otherwise a very decent individual and it is highly unlikely that you would otherwise have got yourself into a situation like this, or will in the future if you can manage your drug addiction. That is a matter for you to really apply yourself to.
56Mr Cook, could you please now stand.
57On Charge 1 of persistent contravention of family violence intervention order you are convicted and sentenced to six months' imprisonment.
58On Charge 2 of theft, you are convicted and sentenced to one month’s imprisonment.
59On Charge 3 of aggravated burglary, you are convicted and sentenced to 20 months' imprisonment.
60On Charge 4 of criminal damage, you are convicted and sentenced to six months' imprisonment.
61On Charges 5 and 5 of possessing a drug of dependence you are convicted and fined an aggregate amount of $1000.
62On the transferred summary Charge 5 of assault with a weapon, you are convicted and sentenced to three months' imprisonment.
63Charge 3 is the base sentence.
64I direct that one month of each of the sentences imposed on Charges 1, 4 and summary Charge 5 be served cumulatively on the sentence imposed on Charge 3 and on each other.
65The total effective sentence is 23 months' imprisonment.
66The sentence starts today.
67Pursuant to s.18(4) of the Sentencing Act 1991 I declare that the period of 172 days, not including today, be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
68On Charge 3 you are also ordered to serve a community correction order for a period of three years.
69Pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty the total effective sentence that would have been imposed is four years' imprisonment with a minimum period of three years to be served before eligibility for parole.
70As to the community correction order, the order commences immediately upon your release from prison and ends three years from that date. The corrections centre you will attend is the Dandenong Community Correctional Service at 46-50 Walker Street, Dandenong, and you must attend there within two clear working days after the completion of your imprisonment term.
71All the mandatory terms of a community correction order apply and the additional conditions I impose are that:
· you be under the supervision of a Community Corrections officer;
· you undergo assessment and treatment, including testing, for drug abuse or dependence as directed by the regional manager;
· you undergo mental health assessment and treatment including, but not limited to, mental health, psychological, neuro-psychological and psychiatric, if necessary in a hospital or residential facility, as directed by the regional manager; and
· you undergo programs or courses aimed at addressing factors relating to your offending as directed by the regional manager.
72I believe from the pre-sentence report that you have had the mandatory terms of the community correction order explained to you. However it is appropriate that I briefly summarise them here so that you are very clear about them.
73The mandatory terms are that:
· you must not commit another offence for which you could be imprisoned during the time that the order is in force;
· you must comply with the requirements of Regulation 17 of the Sentencing Regulations 2012 which essentially set out your obligations as to your attendance at the community corrections centre - such things as not attending drug- or alcohol-affected, that is what those regulations are about;
· you must report to and receive visits from a community corrections officer;
· you must report to the community corrections centre, that is, the Dandenong Centre, within two clear working days of the order starting, and as I have already indicated, that order commences immediately upon your release from prison;
· you must notify a community corrections officer of any change of address or employment within two clear working days after the change;
· you must not leave Victoria without first getting permission to do so from a community corrections officer; and
· you must obey all lawful instructions from and directions of community corrections officers - such directions may be give either orally or in writing.
74Do you understand and agree to those conditions, Mr Cook?
75OFFENDER: Yes I do.
76HIS HONOUR: If you become sick or if there are exceptional circumstances, the order may be suspended for a period of time. If your circumstances materially alter you may apply for a variation or cancellation of the order. In either case you must notify the Dandenong community corrections centre and I recommend that you obtain legal advice if any of these things happen.
77However I must warn you that if you breach any condition of this order you will be brought back to court and that will be back before me. One of the options open to me is to cancel the community correction order and re-sentence you on the original charge and I may also deal with you for the breach, which is an offence itself, by sending you to prison for up to three months.
78So do you understand the consequences of breaching your community correction order?
79OFFENDER: Yes, I do.
80HIS HONOUR: I will ask you to sign the community correction order shortly. At the plea hearing the Crown sought an order to which you consented for the taking of a forensic sample and I have made that order today for the reasons noted on the order, namely, that the seriousness of the offending warrants the making of the order, the order is by consent and the granting of the order is in the public interest.
81Now I must inform you that if, at the time of the request, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force then the sample to be taken will be a blood sample and police may use reasonable force to enable that procedure to be undertaken. Do you understand that, Mr Cook?
82OFFENDER: Yes, I do.
83HIS HONOUR: At the plea hearing the Crown also sought a disposal order to which you consented and I have made that order today.
84The Crown further sought a compensation order for the sum of $1100 to be paid to Ebonie Stewart to which you also consented and I have also made that order today.
85Now at this stage if the community correction order could be provided to Mr Cook's legal representative and if you could pass it to him and if he agrees, for him to sign it please. Thank you. You may be seated, Mr Cook. Are there any other matters from either counsel?
86MR MARTIN: No, Your Honour.
87MR FARRINGTON: No, Your Honour.
88HIS HONOUR: All right.
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