Director of Public Prosecutions v Cook

[2015] VCC 116

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-02079

DIRECTOR OF PUBLIC PROSECUTIONS

v

PAUL COOK

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JUDGE:	HIS HONOUR JUDGE JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	13 February 2015
DATE OF SENTENCE:	16 February 2015
CASE MAY BE CITED AS:	DPP v Cook
MEDIUM NEUTRAL CITATION:	[2015] VCC 116

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:  Sentence – ARMED ROBBERY ( 1 charge) – plea of guilty
Legislation Cited: Sentencing Act 1991, s.6AAA, s.18
Cases Cited:

Sentence:Convicted and sentenced – 3 YEARS and 6 MONTHS imprisonment, non parole period 2 YEARS and 6 MONTHS

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APPEARANCES:	Counsel	Solicitors
For the Accused	Ms L. Torres	Revill & Papa Lawyers
For the Director of Public Prosecutions	Mr S. Zebrowski	Office of Public Prosecutions

HIS HONOUR:

1Paul Cook, you have pleaded guilty to one charge of armed robbery.  The maximum penalty for this offence is 25 years' imprisonment.  You pleaded guilty at the earliest opportunity and I take that into account. 

2The circumstances of your offending are graphically illustrated in the CCTV footage, Exhibit A.  The statement of facts, which is admitted, further illustrates the events, Exhibit B.

3On 4 August 2014 you attended the IGA supermarket in Melton.  You approached a male staff member.  You pointed the knife at his stomach.  He ran from you and jumped over a shop counter in his flight.  You then climbed over a counter and confronted a female shop assistant.  She was also threatened, with a knife pointed at her abdomen.  You took off with about $800 cash.  You said to people working at the shop that you had a drug problem.  The words you used were:  "Sorry, I've got a really bad drug problem."  I take that statement together with your early plea of guilty as showing remorse.

4You were arrested about one month later when police visited your home.  In the record of interview you said you did not remember the incident on 4 August 2014, nevertheless you pleaded guilty from the outset.  That early plea is of particular weight when viewed against the three victim impact statements.  Your saving the three victims the ordeal of giving evidence at a trial is particularly pertinent when it is recalled one victim wished to remain nameless and another did not want the statement read out in court.

5The effects on the victims are considerable.  Giving evidence would have been a real ordeal you have spared them by pleading guilty.  The male IGA employee, who was the first to be threatened by you, has nightmares and daily recollections of a very frightening event, Exhibit D.  He needed time off work and psychiatric treatment as well as a lot of support from his partner.  Impact on his social and family life has occurred.  The statement speaks for itself about the ongoing effects on this man.

6Exhibit C is another victim impact statement that the victim did not wish to be read out in open court.  This is understandable.  In view of that wish I will not repeat it in detail.  Your crime has impacted on this victim in some very personal ways.  The statement is self-explanatory, I do not need to elaborate further.  That shop assistant still cannot get away from the image of you shaking the knife and yelling at the victim.

7The third victim was less directly involved in the robbery. Nevertheless this shop assistant described being very fearful of certain people coming into the shop.  That shop worker has suffered a loss of confidence and trust in people, Exhibit E.

8It is only a little over six months since your crime, but it is clear from these very recent statements that all the victims are still suffering very considerably.  Having seen the CCTV footage it is also a realistic and fair inference these victims will have to endure some of the effects of the circumstances of your crime into the future.

9You are 35 years of age.  Your admitted criminal history starts in 1997, when you were 17 years of age. It continues up to a robbery dealt with in February 2014 and then the crime before me in August 2014.  You have served a number of terms of imprisonment.  The first appears to have been in 1998.  You were placed on a community corrections order for robbery and burglary as recently as 10 February 2014.  You have breached that.  I do not need to elaborate on your criminal record any further save to say it is extensive and involves serious offending.  There have been a number of opportunities given to you by sentencing courts that saw you avoid immediate imprisonment.

10In terms of your background you went to school until only Year 7, which you did not complete.  You grew up in a violent household and your father served imprisonment.  He introduced you to drugs and crime.  Growing up you lived at something like 30 different addresses.  Substance abuse commenced in early teen years and spiralled from there to be out of control by your mid-20s.  You have had problems holding down any lengthy employment.  You have two children, aged ten and 14 years, that you have lost contact with.

11Of particular relevance is that you have clear mental health issues.  At the time of offending, and before that date, you had brain damage.  You have suffered permanent brain injuries since at least 2009 following major seizures affecting cognition.  The Crown sensibly conceded this was established on the evidence.  I find there is a realistic causal relationship between this mental disability and your offending.  In my opinion it impacts, to a degree, on your moral culpability.  Mental ill health is thus a particular relevance in your case.

12Four reports were tendered on your behalf.  The first was Dr E.Leder, general practitioner, Exhibit 1.  It reported a brain condition following seizure becoming severe from 2009 onwards.  This was in addition to drug addiction.  The neurology report from St Vincent's Hospital in December 2010 also records some marked cognitive impairment.  That includes problems with planning and daily living as a result of your organic brain disorder, Exhibit 2.

13A detailed neuropsychology report of 7 November 2011 reported a number of important cognitive deficits due to the temporal lobe seizures, Exhibit 3.  In addition to this you have had substance abuse problems.  I accept the specialist evidence that you have had a serious brain injury since at least 2009.  A lengthy report from Dr M.Crewdson, psychiatrist, dated 11 February 2015 is Exhibit 4.  It was accurate, in my view, when it stated there was a compounding interaction between your drug dependence, pre-existing cerebral deficits including cerebral aneurysms, dysfunctional background, and to a much lesser extent, the long standing leg and spinal physical symptoms you suffer from.

14I find there is a complete set of circumstances that is realistically connected to your offending.  These circumstances include your mental disabilities.  You are not, on the evidence, a person who makes a choice to take drugs and then violently offends in circumstances where there is no pre-existing mental illness.  The circumstances of your behaviour are far more complex than that.  You have a pre-existing mental illness.  This impacts on the question of your moral culpability and on general deterrence.  The Crown quite properly conceded this.

15Some mercy should be shown to you in spite of the seriousness of this offence.  I hold out some hopes for your rehabilitation.  It is not contested that your prison time of nearly six months now seems to have been a positive influence on your health and well-being.  You are apparently making efforts working in the prison laundry and addressing your drug problem that are commendable.

16In spite of what I have said about your brain damage in the context of general deterrence the community cannot, and will not, tolerate offending which so seriously compromises a person's right to feel safe working out in a suburban retail shop.  Similarly, it will not tolerate the significant consequences for victims such as the three I have referred to.  The message must be clear and consistent.  It must show the community's denunciation of your conduct and impose just punishment.  I must protect the community from such conduct as you are guilty of.

17In all the circumstances the plea for a term of imprisonment with a community corrections order is not the appropriate sentencing option in my view.  I have considered all the circumstances of the offence and of the offender in arriving at the appropriate sentence.

18I have no option but to impose an immediate servable term of imprisonment of three years and six months. I direct that two years and six months be served before you are eligible for parole. I declare 167 days of pre-sentence detention pursuant to s.18 of the Sentencing Act 1991. Pursuant to s.6AAA of the Act I declare that but for your plea of guilty I would have imposed four years and six months imprisonment with a non-parole period of three years and three months. Are there any other orders sought, Mr Prosecutor?

19MR ZEBROWSKI:  No, Your Honour.

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