Director of Public Prosecutions v Cook

[2023] VCC 2433

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-23-01564

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL COOK

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JUDGE:	HIS HONOUR JUDGE GAMBLE
WHERE HELD:	Melbourne
DATE OF HEARING:	6 December 2023
DATE OF SENTENCE:	20 December 2023
CASE MAY BE CITED AS:	DPP v Cook
MEDIUM NEUTRAL CITATION:	[2023] VCC 2433

REASONS FOR SENTENCE


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Subject:CRIMINAL LAW – Sentence.

Catchwords:              Armed robbery, burglary, theft, criminal damage and attempt to commit indictable offence (theft of vehicle) – Sledgehammer used in armed robbery and criminal damage offence – Limited planning – Three incidents involving different victims – Offences committed over relatively short period – Very relevant prior criminal record – Prospects of rehabilitation assessed as being relatively poor.

Legislation Cited:      Crimes Act 1958, ss 74, 75A, 76, 197, 321M, 456AA; Sentencing Act 1991, ss 6AAA, 18.

Sentence:                  Total effective sentence of 5 ½ years with a non-parole period of 3 ½ years.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr C. Glerum	Office of Public Prosecutions
For the Accused	Mr J. Desmond	Giorgianni & Liang Lawyers

HIS HONOUR:

Introduction

1Mr Cook, you have pleaded guilty to an indictment[1] which contains the following five charges:

·Charge 1, burglary;[2]

·Charge 2, theft;[3]

·Charge 3, armed robbery;[4]

·Charge 4, criminal damage (intent to damage and destroy);[5] and

·Charge 5, attempt to commit indictable offence, namely theft of a motor vehicle.[6]

[1] Indictment P10423603.

[2] Laid pursuant to s 76 of the Crimes Act 1958.

[3] Laid pursuant to s 74 of the Crimes Act 1958.

[4] Laid pursuant to s 75A of the Crimes Act 1958.

[5] Laid pursuant to s 197 of the Crimes Act 1958.

[6] Laid pursuant to s 321M of the Crimes Act 1958.

2The respective maximum custodial penalties for those offences are 25 years for armed robbery, 10 years for each of burglary, theft and criminal damage, and five years for attempt to commit indictable offence.

3You have also consented to this court hearing and pleaded guilty to a related summary offence of refuse or fail to state name and address.[7] The maximum penalty for this offence is a fine of five penalty units.

[7] Charged pursuant to s 456AA(3)(a) of the Crimes Act 1958.

4You were 35 years old at the time of the offending. You are now 36, having been born in April 1987.

Circumstances of the offending

5The circumstances of your offending are set out in the amended prosecution opening[8] and were discussed during the plea hearing. CCTV footage of the armed robbery and criminal damage incident was played to the court at the plea hearing.[9] For present purposes, your offending can be briefly summarised as follows.

[8] Exhibit A.

[9] Exhibit 8.

6At about 2:30 pm on 23 February 2023, you drove to an address in Lawborough Avenue, Parkdale, in a Toyota Hilux vehicle that was owned by your mother but solely used by you. After parking, you walked along the street and then jumped over a fence to access the residential property owned by a man named Ken Wood.

7After unlocking the rear garage, you loaded numerous tools and plumbing supplies belonging to another occupant of the house into wheelie bins you located at the property. Your conduct as just described forms the basis for the offence of burglary alleged in Charge 1 on the indictment.

8After retrieving your vehicle, you used bolt cutters to open the front gates to the property and then loaded the wheelie bins containing the stolen items into the rear tray and drove away from the scene. It is that conduct which forms the basis for the offence of theft, alleged in Charge 2 on the indictment.

9The stolen items were numerous and valued at $10,000.

10I interpose at this point to note that after committing those offences and before committing the remainder of the offences before this court, you committed a series of other offences, including the theft of a shopping basket containing various sex toys from a Sexyland store. At the Dandenong Magistrates’ Court on 23 May 2023, you were sentenced to an aggregate term of 6 months’ imprisonment for those offences. A period of 88 days was declared as pre-sentence detention.

11Returning to the charges before this court, at approximately 11.30 pm on 23 February 2023, you parked your vehicle a short distance from Southern Comfort International brothel in Braeside and then entered those business premises in possession of the stolen sex toys.

12After speaking to the receptionist, you were shown into the lounge area by a male named Buchanan to meet with other staff. You made an unsuccessful attempt to sell the stolen sex toys to the staff and then an unsuccessful attempt to trade them for services at the brothel.

13You then exited the brothel and returned to your vehicle. Within a very short time however, you returned to the brothel and claimed that you had left your car keys behind. You became verbally aggressive and demanded your keys from Mr Buchanan. As he did not have them or know where they were, he could not help you. You left a short time later only to return and make further demands for the return of your keys. On this occasion you were verbally aggressive and more agitated. Mr Buchanan helped you to look for the keys without success. You then proceeded to threaten him, saying you would ‘beat’ him and take all of his cash if he did not return the keys.

14You then left the brothel before again returning a short time later. On this occasion Mr Buchanan refused you entry to the lounge area.

15You then retrieved a sledgehammer from your vehicle and returned once again.

16After entering the brothel, you broke open the locked door to the lounge area by hitting it at least twice with the sledgehammer.

17When you asked Mr Buchanan where all the cash was, he let you into the reception area. While still holding the sledgehammer, you threatened him by pushing him up against a wall. You then took around $825 in cash from the cash register. Your conduct as just described forms the basis for the offence of armed robbery alleged in Charge 3 on the indictment.

18After taking the cash, you then asked Mr Buchanan where the safe was. On locating it in the office area, you damaged the handle of the safe in your unsuccessful attempt to open it with the sledgehammer. Your conduct as just described forms the basis for the offence of criminal damage alleged in Charge 4 on the indictment.

19You then left the brothel and drove away from the scene.

20The incident was captured on CCTV footage and reported to Triple 0 by Mr Buchanan and a customer.

21Members of Victoria Police on patrol in the area saw you drive away. A short time later, you were seen driving erratically in the Parkdale area with the lights off.

22At approximately 2.00 am on 24 February, you parked your vehicle in a residential street in Mentone, near a BP service station. You then walked to that service station and approached an unlocked Holden Commodore vehicle parked in the forecourt of the petrol station, which belonged to a female employee, Ms Gupta.

23You then entered that vehicle and remained seated in the driver’s seat for about an hour. At one point, you were joined by an unknown male and female for about two minutes.

24At approximately 3.00 am, Ms Gupta knocked on the store window of the petrol station to get your attention after she noticed that you appeared to be tampering with the broken window of her car. You then attended the store while acting erratically, waving your arms around and kicking the door as you entered. You told Ms Gupta that you owned the car and that you would take it away. You then left the store and got back into the driver’s seat of her vehicle.

25Ms Gupta then pressed the duress button behind the counter and spoke with a Triple 0 operator.

26A short time later, police attended the scene and spoke with Ms Gupta. After locating you in the driver’s seat of her vehicle, police informed you that you were suspected of having tampered with Ms Gupta’s vehicle. When one of the officers asked you for your name, you refused to provide it. That refusal on your part is the basis for the related summary offence of refuse or fail to state name and address.

27When police examined Ms Gupta’s vehicle, they noticed that you had damaged the ignition in an attempt to steal the vehicle. This conduct forms the basis for the offence of attempt to commit an indictable offence alleged in Charge 5 on the indictment.

28On searching Ms Gupta’s vehicle, police located items which did not belong to her, including the $825 in cash you had stolen during the earlier armed robbery, a lock pick and a bottle opener with a knife.

Arrest and interview

29You were arrested at the petrol station and then taken to a nearby police station, where your identity was able to be confirmed. The clothing you were wearing was seized by police as it appeared to match the clothing you had been wearing earlier, including during the incident at the brothel.

30While at the police station, you refused to communicate with the police who noticed that you tensed your muscles whenever they attempted to interact with you. As a result, they were unable to interview you about these matters.

31You were subsequently charged and remanded in custody.

32When your vehicle was later searched by police, they located and seized the sledgehammer, the bolt cutters and the power tools and jerry cans that you had stolen during the burglary, as well as the shopping basket and sex toys you had stolen from Sexyland.

33In addition, a search of a separate vehicle that had been stolen from an address in Keysborough on 24 February 2023 located additional tools and plumbing supplies stolen during the burglary, along with the two wheelie bins.

34All of that property was returned to the respective owners by police.

35Mr Glerum, can I just check one further matter at this point. The $825 in cash that was stolen during the armed robbery and which was found in Mr Cook's possession on his arrest, has that money been returned to the brothel business owner yet or not?

36MR GLERUM:  I don't know the answer to that question, I'll endeavour to find out whether or not.

37HIS HONOUR:  Well I'm very surprised that you're not able to answer that and it should have been made known during the plea hearing. Can I at least proceed on the basis that if it hasn't been yet, it will be?

38MR GLERUM:  Yes, Your Honour.

39HIS HONOUR:  All right, thank you.

Pre-sentence detention and Totality

40Mr Cook, the sentence you received at the Dandenong Magistrates’ Court on 23 May 2023 lapsed on 26 August 2023. Since that time, you have been held on remand solely in relation to this offending. As a result, you have spent a total of 116 days in pre-sentence detention for this matter, up to but not including today’s date. That period will be the subject of a formal pre-sentence detention declaration shortly.

41In a totality context, I must and do take into account the fact that you served the entirety of that sentence while also on remand awaiting sentence on the current charges. The fact that all of the offences were committed by you within a short period makes it appropriate to have regard to the service of that earlier sentence when determining the appropriate sentence to impose on the current matters. The combined effect of those two sentences must be commensurate with the totality of your criminality.

Guilty plea

42I note that this matter resolved at the committal hearing without the witnesses being required to give evidence or be cross-examined. It is therefore appropriate for this court to treat your plea as having been entered at an early stage.

Prior criminal history

43Mr Cook, you have an extensive and very relevant prior criminal history.

44As the result of numerous court appearances over a 15 year period between October 2006 and July 2022, you have been sentenced in respect of 43 offences. The sentences you have received have included a community based order in 2006, a community correction order in 2013 and 2014, a suspended sentence in 2008 and immediate imprisonment in 2015 (on three occasions), 2020, 2021 and 2022. Those periods of imprisonment have ranged from 2 months up to 7 years with a 5 year non-parole period. You breached the community based order (in 2008) and on two occasions, a community correction order (in 2014 and 2015).

45Your prior criminal offences include two offences of armed robbery, as well as burglary, theft and other forms of dishonesty, weapon and ammunition offences, various types of assault, some of which involved the infliction of injury and one serious injury, and a recent offence of refuse or fail to state name and address.

46The longest sentence of imprisonment you have received to date was imposed by Judge Dean in 2015 in respect of the two armed robbery offences. The circumstances of that offending are briefly described in his sentencing reasons.[10] In company with your then girlfriend, you used a handgun to rob a TAB attendant of $2,329 in cash which you later spent on drugs. The offence was witnessed by some members of the public and the principal victim was left traumatised. Three days later, you and the same co-offender used the same weapon, this time possessed by your former girlfriend, to rob a bottle store attendant of $465 in cash. The sentencing judge concluded that both offences were likely instigated by you. He assessed your prospects of rehabilitation to be guarded and in that context, accepted that you required on-going treatment for poly-substance use disorder and underlying impulsivity.

[10] Exhibit 6. [2015] VCC 851 (Judge Dean).

47This court was also provided with the sentencing reasons of Judge McInerney who imposed a sentence of 7 months’ imprisonment on you in 2021 for three assault related offences committed by you against prison officers while you were in custody.[11] He referred in detail to the previous sentencing remarks of Judge Hicks,[12] including the fact that you have always been a good worker and had good prospects of rehabilitation. At the time he sentenced you however, Judge McInerney was more wary about your prospects, concluding that they were guarded. He too recognised the fact that you needed to address your problematic drug use if you were to have any real chance of turning your life around.

[11] [2021] VCC 1692 (Exhibit 7).

[12] Those reasons appear not to have been published and were not provided to this court during the plea hearing.

48The last of your prior court appearances was at the Melbourne Magistrates’ Court on 14 July 2022, at which time you received a 6 month aggregate sentence for which 72 days pre-sentence detention was declared. According to your counsel, Mr Desmond, you were released from gaol after serving that sentence in September or October of that year. In that event, the offending for which you now fall to be sentenced, occurred within only 4 to 5 months of that release.

49Of some significance for current sentencing purposes, is the fact that you have never been released into the community on a period of supervised parole. Apparently, you served the entirety of the 7 year head sentence that you received for the armed robbery offences, most of it in a management unit, without ever being approved for release on parole. To the extent possible, I will afford you the opportunity for release on a period of parole in respect of the current offences. Whether you are so released and if so when, will ultimately be a matter for the Adult Parole Board to consider.

Personal circumstances

50I now turn to consider your personal circumstances, Mr Cook.

51You are now aged 36.

52In many respects, your childhood was unremarkable.

53However, your family history is a sad one. The positive steps that you had been taking while on strict bail were derailed by the death of your older brother in 2021, from a heroin overdose. The news of his death shocked and devastated you. You were very close to your father and his death from cancer in 2004, only three weeks after being diagnosed, was another tragedy with which you had to try and contend.

54You have not had any recent contact with your only surviving sibling, an older sister. Your mother is retired and currently living in Warragul. You have lived with her for much of the time that you have been in the community. I have been told that she continues to support you.

55Although you consider yourself to have been an average student, you completed Year 12 at Haileybury College where you excelled in sport.

56In the years after finishing school, you worked in a butcher’s shop and then with a fruiterer. After that, you worked as a brickie’s labourer for 4 to 5 years with a builder whom you came to view as a father figure. That employer committed suicide in 2012. You failed to cope and blamed yourself for that tragedy. You commenced to use methamphetamines shortly afterwards and soon became addicted. This led to you committing the two armed robberies in September 2012.

57Before you developed an addiction to that drug, you had only ever used cannabis and engaged in binge drinking, intermittently.

58In 2016, you sustained a back injury while in custody, for which you receive regular acupuncture and chiropractic treatment and for which you are on a waiting list to see a neurosurgeon.

59From age 17 to 21, you were in a four-year relationship with a woman named Brooke. You do not have any children and are not currently in a relationship.

60You have been assessed by the psychologist, Jeffrey Cummins, on a number of occasions over the years, initially on 10 June 2021 and most recently on 10 March 2023.

61After you had been released on strict bail conditions, you were initially assessed by Mr Cummins on 10 June 2021 and then treated by him over ten subsequent dates, the last being on 22 September 2021. Mr Cummins confirms his findings at that time in a later report he prepared after re-assessing you on 27 June 2022.[13]

[13] See report of 30 June 2022 at [4]-[5] (Exhibit 3).

62In 2021, he assessed your risk for committing a further offence of violence as moderate and trending towards low, in a context where you were then working full‑time, abstaining from drug use, providing regular urine screens and showing motivation and commitment to receiving mental health treatment. He also noted the circumstances and effects of the earlier deaths of your father and then your employer, the latter of which occurred only two days after you had stopped working for him on learning that he was close to bankruptcy.

63As a result of re-assessing you in 2022, Mr Cummins noted the following in his report of 30 June 2022. You presented and spoke in a manner indicating that you felt you were at risk of becoming institutionalised. Mr Cummins was of the opinion that you most probably suffer from a Major Depressive Disorder of at least moderate severity and recurrent in type. To his observation, you were very reluctant to concede that your reported symptoms of depression and anxiety were severe. He considered you to be at risk of developing a Persistent Complex Bereavement Disorder.

64In terms of treatment, Mr Cummins recommended that you complete an anger management program or a Men’s Behaviour Change Program. He also recommended that you receive grief counselling in relation to your brother’s death but noted in that context that you had expressed some reluctance to speak about it. He doubted that you would be offered the sort of intensive mental health treatment that you require while in custody and also noted that the longer you spent in custody, the more likely it would be that you would become more institutionalised.

65Over three dates in May 2022, you were assessed for suitability for release on CISP bail. In a letter dated 27 May 2022, you were recommended for case management by the indictable stream CISP team.

66You were released from gaol in about September of that year and were remanded in custody on these charges in late February 2023.

67Mr Cummins assessed you for a third time on 10 March 2023,[14] at which time you presented with a heightened sense of vigilance, suspicion and paranoia. You were not taking any medication at that time.

[14] See report dated 17 March 2023 (Exhibit 2).

68You provided Mr Cummins with a history concerning the period from when you were released from gaol in September 2022 until you were arrested and remanded in custody for the current offences in late February 2023. You told him that you were couch surfing at the houses of friends and using various drugs on a daily basis, [15] of which the most problematic was methamphetamine. You were not on any prescribed medication and were not receiving any mental health treatment, and you had lost contact with your mother. You candidly acknowledged that you were a drug addict who needed to undertake a period of residential drug rehabilitation in order to have any chance of rehabilitation.

[15] Including methamphetamine, Diazepam, Xanax, Valium and cannabis.

69In Mr Cummins’ opinion, your dependence on methamphetamine during the five months or so that you were in the community most recently, reached the point where you were experiencing symptoms of methamphetamine induced paranoia and psychosis. By the time he interviewed you in March 2023, you were experiencing symptoms of paranoia, hypervigilance and an elevated sense of frustration and anger. Mr Cummins was prepared to recommend that you undergo a period of residential drug rehabilitation, although he had some doubts as to the chances of you being found suitable in light of your history of violent offending.

70More recently still, on 21 and 23 November 2023, you were assessed by the psychologist, Gina Cidoni, in relation to your current offending.[16] In the history that you provided her, you claimed that you were not under the influence of any substances at the time and that you could not remember anything about the offending other than when you woke up in the back of a police van. You told Ms Cidoni that you had wanted to commit a crime so that you could return to prison where you could get help and be safe.

[16] Her report is dated 23 November 2023 (Exhibit 1).

71Aspects of that history, including the statement that you were not under the influence of drugs when you offended, seem to be inconsistent with what you had earlier told Mr Cummins. When I raised that issue with your counsel, he indicated that the defence position was that you had been using drugs and that if there were any problems with your memory of any of the events, that could well be due to the nature and extent of your drug use at the relevant time.

72As noted by Ms Cidoni, her assessment of you could not be completed on account of your agitated state which she believed may have been due in part to the significant difficulties that you were experiencing in prison. She was unable to arrive at any definitive diagnosis but had concerns about your mental health and behaviour. The erratic behaviour and aggression you demonstrated to the police who arrested and tried to interview you for the current offending was to Ms Cidoni’s mind, indicative of a distressed and unstable mental state. In her opinion, your risk of reoffending seems high.

73I note that at the plea hearing your counsel did not seek to rely on any of the principles in Verdins.

Matters in mitigation

74Your counsel was, however, able to rely on the following matters in mitigation, Mr Cook.

75You entered an early plea in relation to these charges, for which you are entitled to a discounted sentence. By pleading as and when you did, you spared the victims from having to give evidence and saved the community from the cost of a trial. Your plea shows a preparedness to facilitate the course of justice and is to be accorded a somewhat greater utilitarian value given that it was entered during the course of the COVID-19 pandemic, about a month or so before the Chief Judge of this court announced to the profession that the court’s trial backlog had been addressed. In such circumstances, the discount in your sentence based on Worboyes must therefore be a modest one.

76Given your plea and the apologies you made while being arraigned, I am prepared to accept that you have some remorse for your offending.

77The time that you have spent on remand for these charges and at least the earlier part of the remaining period that you will spend serving the sentence you receive today, has involved and will involve more onerous conditions due to the continuing but easing restrictions that Corrections have in place to deal with any COVID-19 safety and health concerns. I was told that you in fact contracted COVID whilst in custody, which no doubt resulted in an additional period of quarantine isolation.

78You have a demonstrated capacity to obtain and maintain paid employment over a significant period and you possess a good work ethic when not using drugs heavily.

79You still have some family support although the strength of it is difficult to gauge.

Gravity of the offending

80This court must also have regard to the objective gravity of your offending, Mr Cook.

81As indicated by the very high maximum penalty, armed robbery is an inherently serious offence. The offence that you committed, although relatively short in duration, was no doubt very frightening for the victim. You threatened to beat the victim and later pushed him against a wall while holding a sledgehammer. Although you did not raise or brandish that weapon beyond ensuring that it was visible, it must have been a very intimidating looking weapon from the victim’s perspective. The amount of money stolen was moderate rather than substantial and fortunately for the business, it has been or will be returned. I accept that this weapon was not in your vehicle on that night in order to commit an armed robbery, but rather you decided to use it after engaging in what must have been only a minimal amount of pre-meditation. I consider the likely explanation for this offending to be a pressing need to fund your serious drug addiction. In all of the circumstances, I consider this to be an offence that falls in the mid part of the spectrum of seriousness for this type of offence. Your level of moral culpability for that offending was relatively significant, particularly in light of your prior convictions for armed robbery.

82The offence of criminal damage which you committed represents neither a trivial nor a serious example of an offence that carries a relatively high maximum penalty. In all likelihood, it was carried out fairly spontaneously when you discovered the presence of a safe. The value of the damage caused to that safe is unknown but not likely to be as significant as some of the examples of this type of offence that come before this court. In my view, this offence falls towards the lower end of the spectrum of seriousness for this type of offence.

83Burglary and theft are also offences which must be viewed as intrinsically serious given the relatively high maximum penalties that attach to those offence types. In your case, the offences involved a greater level of planning than occurred in respect of the later armed robbery. They were carried out at a residential premise, albeit in a garage not a house, and the quantity and value of the items stolen was quite significant. Fortunately for the owner of that property, it was able to be located by police a short time later and returned. I consider it likely that you committed these offences in order to sell or trade the stolen items for drugs. In my view, these offences represent relatively serious examples of their type for which you must bear a significant level of moral culpability.

84The offence of attempting to commit an indictable offence, namely the theft of the service station attendant’s vehicle, was brazen and mean spirited. You displayed a complete disregard for her property rights and were willing to try and take a valuable means of transportation for her just to meet your own selfish desires. This was not a trivial offence by any means.

Relevant sentencing principles

85In this case, there are a number of sentencing principles to which this court must have regard.

86The totality principle assumes some significance in a case such as this. While this offending occurred in three distinct episodes and involved multiple victims, the entire period over which that offending occurred was relatively short and in respect of two of those episodes, multiple offences were committed within a very short space of time. Thus, while there is a basis for ordering a degree of cumulation as between some of those offences in order to recognise each of those victims and the separate criminality involved, the totality principle acts as somewhat of a brake to ensure that the total level of punishment is commensurate with the overall level of criminality involved in by Mr Cook.

87The sentencing principles of denunciation and deterrence, both general and specific, assume considerable importance in this sentencing exercise.

88For the same reasons that specific deterrence assumes prominence, so too does the need to protect the community from Mr Cook.

89This court is required to punish Mr Cook in a manner and to an extent that is just in all the circumstances. Even allowing for parsimony, the nature and seriousness of this offending and Mr Cook’s very relevant antecedents mean that any such punishment must be in the form of a relatively lengthy period of imprisonment.

90It is also important for this court to have regard to Mr Cook’s age and prospects of rehabilitation. Doing the best that I can based on the available material, I have assessed those prospects as guarded, and at best, relatively poor. Mr Cook is already institutionalised to a degree and is perilously close to becoming severely so. That situation will only get worse unless he commits to undergoing a lengthy and intense period of treatment and counselling in relation to his serious drug addiction and mental health issues. I accept that he is of at least average intelligence and has some insight into the need for such treatment, but it remains to be seen whether he can bring the necessary motivation and commitment to ensure that it happens. I will certainly allow for the possibility that he does or will have at some point in the future, and to that end I will fix an appropriate non-parole period so as to try and encourage and foster his somewhat limited prospects.

Sentencing submissions

91In what was a thorough and helpful plea, your counsel, Mr Desmond, acknowledged that your offending was serious and warranted a term of imprisonment with a non-parole period. However, he also highlighted the matters in mitigation upon which you can rely and urged this court to have regard to parsimony and totality principles when determining the length of any sentence.

92For their part, the prosecution submitted that this was serious offending committed by an offender who has a very relevant previous criminal history, that includes convictions for offences involving dishonesty and violence and for whom past sentences of imprisonment have represented an insufficient deterrent. General and specific deterrence were important considerations and nothing other than a head sentence with a non-parole period was open in their submission.

Analysis

93Mr Cook, the sentencing submissions made by your counsel were appropriate but so too were those made by the prosecution. At the end of the day, both parties agree that this court is left with no option but to impose a relatively significant term of imprisonment in this case. I agree with that assessment. But as I have already noted, I will ensure that you at least have the opportunity to be considered for release on a suitably conditioned and tailored period of supervised release into the community by way of parole. It will no doubt be in your best interests to use your time in custody as productively as you can between now and when you first become eligible for release on parole. In that regard I wish you well.

Sentence

94Mr Cook, after having carefully considered, balanced, and weighed all of the relevant sentencing considerations in this case, I have decided to sentence you as follows. You will be convicted and sentenced to the following terms of imprisonment.

95On Charge 1, burglary, 2 years and 3 months.

96On Charge 2, theft, 2 years and 3 months.

97On Charge 3, armed robbery, 4 ½ years.

98On Charge 4, criminal damage, 6 months.

99On Charge 5, attempt to commit indictable offence, 9 months.

100The sentence of 4 ½ years imposed for Charge 3 will be the base sentence.

101The following periods are to be served cumulatively on that base sentence and on each other. Nine months of the sentence for Charge 2 and three months of the sentence for Charge 5.

102The total effective sentence in respect of Charges 1 to 5 on the indictment is therefore 5 ½ years’ imprisonment, in respect of which I fix a non-parole period of 3 ½ years.

103For the related summary offence of refuse or fail to state name and address, you will be convicted and fined the sum of $350.

Pre-sentence detention

104Pursuant to s 18 of the Sentencing Act 1991, I declare that you have served a total of 116 days pre-sentence detention, not including today’s date, in respect of the custodial sentence that you have received today. I order that such period is to be reckoned as already served under that sentence and that the declaration and its details be entered in the records of this court.

Section 6AAA indication

105Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that but for his plea of guilty to the charges for which he has received terms of imprisonment today, Mr Cook would have been sentenced to a total effective sentence of 7 years and 3 months with a non-parole period of 5 years and 3 months in respect of those charges.

Ancillary orders

106I make the forfeiture order and disposal order in the terms sought by the prosecution, pursuant to ss 34(1) and 78(1) of the Confiscation Act 1997, respectively. In exercising my discretion to make those orders, I have had regard to the fact that counsel acting on Mr Cook’s behalf did not oppose the making of such orders.

107Pursuant to s 89(4) of the Sentencing Act 1991, a mandatory licencing order is required in respect of Charge 5. On that charge, I order that any driver’s licences or permits held by Mr Cook are cancelled and he is disqualified from obtaining any further licences or permits for a period of 12 months, effective from today’s date.

Other matters

108Are there any matters that counsel need to raise at this stage in relation to either the sentence or the sentencing reasons, starting with you, Mr Desmond?

109MR DESMOND:  Your Honour, it may be of a smaller moment but either the first or second time you referred to the brother's death, I heard Your Honour read it as 2001, it's 2021.

110HIS HONOUR:  No, I'm reading from my typed sentencing reasons and they definitely have 2021 and I believed I read out 2021 so it may just be an unclear video link audio at that time, Mr Desmond.

111MR DESMOND:  Yes, Your Honour.

112HIS HONOUR:  But I am 100 per cent confident that it appears as 2021 in my sentencing reasons and I believe I read it out as such but you can proceed with confidence that I've taken it into account as being 2021.

113MR DESMOND:  Yes sir, thank you, no other matters to raise.

114HIS HONOUR:  Thank you, Mr Desmond. Mr Glerum?

115MR GLERUM:  Nothing arising, Your Honour.

116HIS HONOUR:  Thank you. Please adjourn the court to 12.45 pm, Mr Tipstaff.

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