Director of Public Prosecutions v Cook

[2015] VCC 851

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-00625
CR-15-00368

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL COOK

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	8 May 2015, 3 June 2015, 12 June 2015
DATE OF SENTENCE:	22 June 2015
CASE MAY BE CITED AS:	DPP v Cook
MEDIUM NEUTRAL CITATION:	[2015] VCC 851

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. Y. Hardjadibrata	Office of Public Prosecutions
For the Accused	Mr. B. Lindner	Tait Lawyers

HIS HONOUR:

1Michael Calvert Cook, following a trial that occupied 13 sitting days in this court, you were found guilty by the jury of two counts of armed robbery contrary to s. 75 A (1) of the Crimes Act 1958. The maximum penalty for that offence is 25 years imprisonment. A previous jury was discharged without verdict after four sitting days. You have also pleaded guilty to one charge of possession of a small quantity of cannabis contrary to s.73(1) of the Drugs, Poisons and Controlled Substances Act 1981.  The maximum penalty for that offence is a fine of five penalty units. 

2It is necessary at the outset of these reasons to state that during the course of the trial, you displayed what appeared to be little or no respect for the criminal trial process.  You laughed during proceedings and you glared at witnesses who gave evidence against you.  You were abusive towards me, and no apology was offered on your behalf by your counsel.  Before the trial began I was informed by the prosecutor that two masked men, one armed with a firearm had threatened the main Crown witness at night when she was at home with her children.  She was then placed in witness protection. 

3In my opinion, your conduct, and the conduct of your defence undermined the integrity of the criminal trial process, but despite this, I wish to record that these matters will form no part of the sentencing process that I must undertake.  Your behaviour, and the conduct of your defence are, in my opinion, irrelevant for sentencing purposes in this case.

4You have admitted a criminal history including two prior convictions for offences of violence, including intentionally causing serious injury.  You have previously breached court orders intended to facilitate your rehabilitation. 

5On 5 August 2014, whilst on bail for the offences of Armed Robbery, you were charged with two counts of possession of a Category E firearm, namely a sawn-off rifle.  These charges are to be contested by you and I have not taken this into account in formulating the sentence to be imposed in respect of the Armed Robbery charges. 

6Your offending may be summarised as follows: 

7On 13 September 2012 at 2.30 pm, you and your girlfriend and co-offender, Katherine Nanopoulos, entered the TAB in Mentone.  Both of you were disguised.  You were armed with a .357 Magnum pistol that you had taken from an associate after a serious assault on him by you on 31 August 2012.  You pointed the firearm at the attendant, Roslyn Gurtz, and demanded money from her.  She handed over $2329 in cash.  You and Nanopoulos then fled.  At the time of your offending, a number of members of the public were present.  I have received in evidence a Victim Impact Statement of Roslyn Gurtz detailing the traumatic effect your offending had on her.  The proceeds from your offending were spent on illegal drugs of dependence. 

8On 16 September 2012 at 2 pm, you and Nanopoulos entered the Royal Oak Hotel in Mentone.  You were both disguised and Nanopoulos was carrying the .357 Magnum pistol.  You both entered the TAB section of the hotel but it was closed.  Nanopoulos then went to the bottle shop and you followed her.  She demanded money from the attendant and pointed the gun at him.  He gave her $465 and you both fled.  This money was also spent on illegal drugs of dependence.  I have also received in evidence, a victim impact statement of Kyle Pitts, detailing the traumatic effect the offending had on him.  I accept that your role in this offence was of lesser seriousness than your co-offender although not to a significant degree, and in my opinion, both offences of Armed Robbery were, in all probability, instigated by you. 

9You were arrested by investigating police on 17 September 2012, and at that time, had in your possession, a small quantity of cannabis.  You made no comment to questions put to you in an interview with the investigators. 

10In my opinion, your offending constitutes serious examples of the offence of Armed Robbery.  In all probability, you were drug-affected or withdrawing from drugs when you offended, and the use of a high-powered firearm to affect your purpose exposed members of the public to the risk of serious injury. 

11The sentence I impose must be calculated to deter you and others from offending in this way, and you also must be punished for what you have done.  You have shown no remorse for your offending despite the overwhelming evidence of your guilt.

12I now turn to your personal circumstances.  You were born on 11 April 1987, and are now aged 28.  As I have already noted, you have a criminal history for serious offences of violence.  You were born in Melbourne and have two siblings.  You were educated at Haileybury College to Year 12 and are of above-average intelligence.  You were a capable sportsman.  Your father died when you were 17 and it would appear that following this, you developed depression and poly-substance abuse disorder.  You have shown the capacity to engage in steady employment and when doing so, drug use did not result in you offending. 

13I have received in evidence two psychiatric reports of Mr Bernard Healy detailing your development and psychological profile.  I accept that you require on-going treatment for poly-substance abuse disorder and underlying impulsivity. 

14In my opinion, any assessment of your prospects for rehabilitation must be guarded, and further, your history of violence and the circumstances of your offending on these occasions, suggest that the community must be protected from you. 

15I have had regard to the sentence imposed by His Honour Judge Smallwood on your co-offender on 23 June 2013. His Honour sentenced her to a total effective term of imprisonment of three years with a non-parole period of 18 months. She pleaded guilty and agreed to give evidence against you, both significant matters in mitigation, and His Honour's s.6AAA statement pursuant to the Sentencing Act declared a period of six years with a non-parole period of four years. 

16I have also taken into account the fact that your offending in this instance occurred approximately three years ago. 

17In the result, the sentence of the court is as follows.  Would you stand up please, Mr Cook.

18In relation to Count 1, the charge of Armed Robbery, you are convicted and sentenced to be imprisoned for five years. 

19In relation to Count 2, the charge of Armed Robbery, you are convicted and sentenced to be imprisoned for four years. 

20I order that two years of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1. 

21This makes for a total effective term of imprisonment of seven years. 

22I direct that you serve five years before becoming eligible for release on parole. 

23In relation to the possession of the small quantity of cannabis, you are convicted and sentenced to a fine of $300. 

24I declare that you have served 406 days of pre-sentence detention not including today.  I have made the ancillary orders sought by the prosecution. 

25We will adjourn till 10.30. 

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