Director of Public Prosecutions v Cook
[2021] VCC 1692
•28 October 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 17-01934
CR-19-02051
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL CALVERT COOK |
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| JUDGE: | HIS HONOUR JUDGE McINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 September 2021 |
| DATE OF SENTENCE: | 28 October 2021 |
| CASE MAY BE CITED AS: | DPP v COOK |
| MEDIUM NEUTRAL CITATION: | [2021] VCC 1692 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty – 2 x Recklessly cause serious injury – Intentionally cause injury – Prison guards - Imprisonment – non parole period
Legislation Cited: s18 Crimes Act 1958
Cases Cited:Hope v The Queen [2018] VSCA 230 - Hudgson [2016] VSCA 254
Sentence:Total effective sentence of 7 months imprisonment. Pre-sentence detention declared of 5 days.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr N. Goodenough | Office of Public Prosecutions |
| For the Accused | Mr R. Chaudhuri (Sentence) Mr C. Thomson (Plea) | Giorgianni & Liang Lawyers |
HIS HONOUR:
1In this matter, Michael Calvin Cook, who is 34, pleaded guilty to three charges in Indictment number C2114677 on 27 September 2021. For the prosecution on that day, Mr Goodenough appeared, as he does today and for Mr Cook, Mr Campbell Thomson appeared, Mr Chaudhuri appears today.
2That Indictment contained three charges. The first was cause injury recklessly, an offence under section 18 of the Crimes Act 1958 which carries a maximum penalty of 5 years imprisonment. That was carried out at Metropolitan Remand Centre. The victim in the matter was Mr Joel Stachlewski, prison officer. The offence took place on 18 November 2015, in the computer room. There does not seem to have been any issues, Mr Cook was pacing about, indicating some sort of difficulty, but for no apparent reason, the attack was undertaken by way of use of the handcuffs and a headbutt.
3The second charge is the charge under the same section, that is section 18. The second charge is a charge of cause injury intentionally. This matter took place at Lara in Barwon Prison. The maximum penalty under s18 for this offence is one of 10 years imprisonment. Insofar as this offence is concerned, the provisions of the Sentencing Act, s10AA(4) apply to fulfil the will of Parliament that these assaults are dealt with appropriately.
4That provision requires a minimum sentence of six months gaol, unless a special reason is shown, where a person is found guilty or pleads guilty to such a charge. I should indicate that this provision became applicable from 3 October 2016 and both Charges 2 and 3 occurred on 9 October 2016.
5The victim in Charge 2 was a Mr Pantano, prison officer. Both Charges 2 and 3 took place on 9 October 2016 and his injuries were chiefly soft tissue. In the fracas, the circumstances involving Charge 3 occurred. In regard to Charge 3, the victim was Mr Ratan, prison officer. The maximum penalty for that charge of reckless cause injury, as I have already said, is five years, and section 10AA(4) also applies. Mr Ratan was treated in hospital and discharged.
6I have had the benefit of being able to view the CCTV footage which was tendered as Exhibit B. Those offences took place in the Acacia Unit at approximately 8:15 in the morning. The officers were carrying out what I imagine is usual task, to simply open up the cells. As the video displays, as they attempt to open the cell, Mr Cook came straight out, there being no indication of any reason or issue related to the victims and assaulted Mr Pantano by way of a fist to the eye, and then struck him a number of times.
7The subsequent injuries, which I will come to in detail in the victim impact statements, in regard to Mr Stachlewski was soft tissue swelling and abrasions, in regard to Mr Pantano, he received a laceration to the eyes and in regard to Mr Rattan, he received soft tissue injuries to the nose and the elbow.
Prior Criminal History
8Mr Cook is aged 34, having been born in April 1987. Insofar as his prior offences are concerned, I will disregard any matters that are alleged in regard to recent arrest. I also note, and it does have a general impact insofar as the type of sentence I impose, but Mr Cook has also been, subsequent to these crimes, convicted of a subsequent offence, which is not a prior, which was in fact in December of 2020, when he was convicted of assault of an officer on duty that apparently involved an assault by way of kicking to the stomach. Mr Cook received five months imprisonment, three of those were concurrent with the sentence he was serving.
9Coming then to Mr Cook’s priors, the armed robbery conviction in July of 2016, is not a prior for Charge 1 and is a prior only for Charges 2 and 3, given the date. Mr Cook was 30 at that time when convicted of armed robbery and given a sentence of seven years with a minimum of five to serve. The other priors that I mention are priors for all matters. The first of those occurred when Mr Cook was 29 and he was convicted on 26 June 2015 for acting in a disruptive manner in a police gaol, for which he got two months gaol.
10On 22 June 2015, Mr Cook was sentenced in this Court by Judge Dean, for armed robbery and a series of thefts and proceeds matters, for which he was given a sentence of five years, with a minimum of two. Mr Cook was also dealt with in January 2008, before Judge Hicks in this Court, he was sentenced on a number of charges, two of affray, one of cause serious injury, one intentionally cause injury, two offences of that, one of common law assault. He was given in total, for the cause serious injury, 18 months. For the two charges of intentionally cause injury nine months. The aggregate sentence was 27 months which was suspended apparently for two years.
11We then go back to when Mr Cook was 25 in October of 2006, when he had charges of intentionally cause injury and recklessly cause injury, for which he was given a community corrections order.
12Insofar as those prior matters are concerned, I make it clear Mr Cook, you do not come before this Court to be resentenced. That is not the way that things work. As the High Court said in Veen (No 2) (1998) 164 CLR 465, 447:
'The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence'.
13At that page, the High Court also went onto say that such priors are relevant to show:
'... whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind'.
14The Court of Appeal in this State also made comment as to the manner in which a sentencing Court takes into account prior offences and I refer to Berichon v The Queen [2013] VSCA 319, [44]. Without going into the precise details of the paragraph, I note the reference by the Court of Appeal to such priors being used as an animating factor in the sentencing process.
15I come then to the culpability of these offences. In regard to Charges 2 and 3, given s10AA(4), irrespective of the culpability, you must receive a minimum period in gaol of six months for each offence. In regard to Charge 1, as I said, there does not seem to be an indication as to why this occurred. In that matter, I do not have any CCTV footage. Apparently you had been taken to an area where you were able to use the computer. The victim noticed that you were pacing in a particular manner, which perhaps indicated some form of frustration, but there was no indication that you would then attack the victim, as you were being escorted out of the area. There was nothing to indicate that you were acting abnormally in any way except as I said, the pacing.
16Charge 2 and 3 are able to be observed, the attack that you perpetrated was extremely uncalled for. It exposed the victims to quite an amount of viciousness on your behalf. There did not seem to be any reason for that. The video shows that it was necessary for a considerable number of prison wardens, to bring you under control. It is suggested by counsel that given the manner in which you had served your sentences, because of prior matters and assaults upon officers, that I should take the view that the manner in which you burst out of the cell as shown in that video is an indication of the manner in which you had served, and the built up frustration that comes from serving sentences with such restrictions.
17I make the point, however, of course as was made by your own counsel, that those restrictions come about from your own behaviour, but that does not mean the Court does not take into account those particular restrictions. In that regard, while talking of culpability, I want to come to Mr Cummins’ report, which was tendered on your behalf as Exhibit 2. That report talks about you while in gaol being isolated, shackled, having at times a body belt, not being able to be subject to programs, sometimes being placed in solitary and essentially being a difficult prisoner, as these charges demonstrate. As a result, of that sentence in 2016 for the armed robbery for five years, you in fact were required to serve the full period.
18I should say that, as your counsel stressed, there is no suggestion that these difficult circumstances while serving a sentence, and the isolation and perhaps frustration built up thereby, were caused by anyone but yourself. In particular, I want to read, insofar as these types of sentences are concerned, from an authority that was given to me by the prosecution, which is relevant when considering culpability.
19That authority is Hope v The Queen [2018] VSCA 230. I read from paragraph 72:
'The attack on the prison officers was brutal, cowardly and unprovoked', [which is similar to yours]. Crimes of this kind call for stern punishment'.
20Paragraph 73:
'The common law has long recognised that it is an aggravating circumstance to assault a law enforcement or corrections officer while performing his or her duty. Redlich JA explained the reason for this, in respect of police officers in Arvanitidis. His Honour said:
It is incumbent on the Court to impose appropriate sentences to demonstrate support for the authority of police officers who undertake a difficult, and dangerous task in the execution of their duties in maintaining law and order'.
21Equally, those sentiments relate to prison officers. His Honour goes on to say in paragraph 74 the following:
'The same reasoning applies with equal force in respect of prison officers performing the essential public duties that they perform. An inmate of a prison who intentionally inflicts serious injury on a prison officer can ordinarily expect to receive a substantial term of imprisonment in addition to any term then being served. Moreover, denunciation and general deterrence will usually be paramount considerations in the sentencing of offenders who commit such crimes against prison officers'.
22Clearly those principles are relevant and in regard to Charge 2 and 3, you are subject to the provisions of the Sentencing Act, s10AA(4). I will in due course, when I am considering the submission as to special reasons, note that that section at the time of your offending, had not been amended, so that the words 'rare' and 'exceptional' were not present in the Act. It should be, in regard to Charges 2 and 3 also noted, insofar as the assessment of culpability that dramatic and vicious as was the attack, it was, because of the assistance of warders, of somewhat short duration.
23As to the victim impact statements, I come to those which were tendered in this hearing. The first of those was Exhibit E, which was the victim impact statement as to Mr Stachlewski. It is noted that as a result of the soft tissue injuries, the victim was required to take some eight days off work. I note the submission made by the defence at paragraph 13 of Exhibit 1, that those injuries were reported as a mild soft tissue injury, with slight concussion. The circumstances as set out in the victim impact statement certainly indicate a far more consequential injury. The physical injuries are noted on p5, where it is confirmed that there was mild concussion. However, there seems to be, and there is no indication as to why and how this has developed, an exacerbation of symptoms, whether that is to do with some type of mental reaction to the assault or just to being employed in such circumstances, I am not sure.
24There were additional stresses, that Mr Stachlewski says were never upon him before. He has had to, as a result of this attack he says, shift his career path. He has difficulty in relating to people and he notes the social impacts, in particular, where he says on p7:
'…even those close to me, would agree that my reaction and personality is quite different against my very nature'.
25That is, Mr Stachlewski has a heightened awareness apparently and worries about unwarranted attacks. An issue of severe mistrust and disconnect with others. Mr Stachlewski concludes by saying that:
'As a result of this attack, I truly believe that all of my previous life was taken from me on that day'.
26As a result, Mr Stachlewski has had to learn to deal with a new study and career path to assist him in navigating, as he says, the ‘new norm’. I do not in any way question those matters, nor did the defence, except to say that I have no medical evidence as to what appears to be otherwise mild or relatively low key physical injuries having caused such a gross mental reaction.
27Coming then to Charges 2 and 3, as I said, those matters were displayed on video. In particular, Mr Pantano copped the brunt of the initial assault. His victim impact statement is set out in Exhibit D. Mr Pantano, was punched to the face, eyes, and several times to the head. Fortunately, the results physically are relatively minor and he has been left with superficial bruising. However, again, Mr Pantano has had what he calls difficulties in dealing with the matter. His family life has been more difficult because his wife prevailed upon him to seek other safer employment. Mr Pantano said that he broods upon this attack, that he has been financially affected, because he is not able to undertake overtime. In addition, he has lost what he describes as confidence, has ongoing anxiety, in carrying out his jobs. Again, none of those matters are questioned and I accept the propositions put.
28Insofar as Mr Ratan was concerned, his victim impact statement was Exhibit C and again, he received minor contusions and bruising. The impact upon him has been that he has suffered from anxiety. The crimes have affected his relationship with his co-workers and his confidence in being in the service, resulted in sleepless nights, he has been assessed for post-traumatic stress disorder and had to take time off work. In regard to the physical injuries, they were essentially bruises and contusions to the face. There was apparently some internal bleeding to the mouth and nose. Some hyperextension to the right shoulder. There does not appear to be any ongoing impact. As to the future earnings, well whenever you go through such assaults in such type of job, no doubt you wonder as to how long you will be able to continue with such a job and that is expressed by Mr Ratan and further, as to social impact, Mr Ratan says:
'I feel unsafe and concerned now as a result of the attack, both at work, but also generally, in the community'.
So they are the impacts that have been indicated to the Court, as a result of these crimes.
29The prosecution in their submission firstly oppose the deferral of this sentencing, pursuant to s83A. That, however, was not as to not recognise the progress made while on bail by Mr Cook.
30It is of assistance to bear in mind, the comments made in the earlier sentencing. Firstly, the sentence of Judge Hicks, paragraphs 37 to 43. This sentence, as I have said, was pronounced on 31 January 2008. It involved two counts of affray, one count of causing serious injury intentionally, two counts of causing injury intentionally, one count of assault. As was indicated, it is some time ago. However, it is still illuminating. I will start at paragraph 39. There was a psychologist's report tendered, which noted that in the period leading up to the incidents, Mr Cook, you were a person who was easily irritated and had a short fuse.
31Subsequent to your offending, material was placed before the Judge, by way of a psychologist report from Mr Bernard Healey, that you had made great inroads and had dramatically increased your prospects of rehabilitation. Indeed, the Judge was most impressed by the character references, and I have had similar from your mother in this case. It was stated in that case that you have undergone regular counselling, that you no longer participate in drugs and that you were undergoing and had completed a three month course at the Salvation Army as to anger management in October of 2007.
32Insofar as your ability to work, there is no doubt that you have always been a good worker, His Honour noted at paragraph 42 you demonstrate an extraordinary ability to work. At paragraph 43, he noted that it was 14 months, that is the date of sentence, from the time that those incidents occurred, and he noted that it was your desire to do a personal training course, develop your own skills in life that were both rewarding to you and to the community. His Honour went on in that paragraph to say:
'As a result of these offences, you, yourself, realise that you had totally gone too far and you have decided to change your life. It is your own self-motivation which has led me to the conclusion that your prospects of rehabilitation are very good'.
33I simply say that the propositions put in that case to Judge Hicks are very similar to the propositions now put to me. Unfortunately, of course, those expectations of you did not prove correct.
34You were sentenced on 22 June 2015 for armed robbery by Judge Dean, this involved attacks on two TABs. Your offending was characterised as serious examples of armed robbery at paragraph 10. Again, your background, your education at Haileybury College, your above average intelligence, your capability as a sport person, difficulties with your father's death, your ongoing polysubstance disorder were all discussed.
35It was noted, paragraph 12, that you had shown the capacity to engage in steady employment and when you were so employed, drug use did not result in you offending. Again, there were psychiatric reports tendered by Mr Healey, noting the need for you to have polysubstance treatment because of the disorder and your underlying impulsivity. His Honour took the view, at that time when he sentenced you, that any assessment of your prospects for rehabilitation must be guarded, that your history for violence suggests that the community must be protected from you.
36It was for the totality of the circumstances of this offending, not your prior offending, that the prosecution submitted to the Court that the suggestion of a community corrections order for you, was totally out of range. I agree with that. The sentencing principles of specific deterrence, general deterrence and just punishment are important here, as is the need to protect the community. Indeed, the protection of those who act on behalf of the public to control, and carry out their employment in regard to, prisoners sent to various prisons in this State. As was said in Hope, this sentence must vindicate the important purposes of general deterrence and denunciation where crimes are committed against such officers.
37I come then to the defence submission. The defence submission in the plea sought a deferral of sentencing under s83A, to further effect your rehabilitation. Further, it was put to the Court that pursuant to s10A(2)(e), a special reason existed why the mandatory imposition of the six month minimum terms for Charges 2 and 3 should not be imposed.
38To fully understand that provision, one must be astute as to dates. As I have already noted, such mandatory direction as to your sentencing only relates to Charges 2 and 3 and was brought in six days before those crimes were committed. At the time of that offending, in determining the application made by your counsel as to special reasons under s10A(2)(e), sub-s(2B) was not in existence and sub-s(3)(AB) did not include the words 'not less than six months'.
39In regard to such application, Mr Thomson reminded the Court that s10A(2)(e), at the time, did not include the words 'exceptional and rare'. As I advised Mr Thomson, and as referred to in his written submissions, Exhibit 1, the section as it then existed, at the time of this offending, had in fact been subject to consideration by the Court of Appeal in Hudgson [2016] VSCA 254, where the Court considered the meaning of the words 'substantial and compelling'.
40If I read from that judgment at paragraph 111, the Court said:
'…in our view, one thing is clear, it was plainly the intention of Parliament that the burden imposed upon an offender who sought to escape the operation of s10 should be a heavy one, and not capable of being lightly discharged'.
41At paragraph 115, the Court said:
'In addition, the various matters upon which the respondent relies, giving rise to substantial and compelling circumstances and to which Her Honour found to meet that description, fell well short, in our view of doing so. There is nothing compelling about them in the sense required. Nor can it be said that they are rare or unforeseen in cases of this type'.
42Clearly, as I said to your counsel, the addition of the words by Parliament, was a reflection of the determination in Hudgson, as just read by me. The words in the section did not at the time include exceptional and rare. I apply the test as set out by the Court of Appeal in Hudgson.
43I have considered the submission detailed in Exhibit 1, paragraph 1, where the factors (a) to (p) are detailed. I make the point that had the subsequent sub-s(2B) applied to such consideration, the prospects of rehabilitation primarily relied upon by Mr Thomson, as detailed in sub-paragraph (g) to (p) of his submission, could not have been taken into account by the Court. However, the fact is, that those restrictions did not apply at the time, and therefore cannot apply to you, or the application for special reasons.
44In the consideration of s10A(2)(e), I have taken into account all of the relevant factors. However, I do not find that such factors enliven a special reason under s10A(2)(e), for the purpose of an exception to the application of s10AA(4). I of course take all such factors detailed into account in determining the sentence, which given its objective culpability, could otherwise be seen as relatively merciful, after balancing in particular, the seriousness of the offences, the prior history of Mr Cook, the need for a sentence to adequately reflect the objective gravity of the offending, vindicate the wishes of Parliament and the important sentencing purposes of general deterrence and denunciation for these types of attacks, as detailed in Hope [74].
45However, of course, this Court must never give up hope that there is a chance of rehabilitation for a person who is still a relatively young man, so that all of the positive aspects pointed out by your counsel, to the date of your recent arrest, I take into account, in the hope that despite your history and these offences, you can effect rehabilitation in the future.
46In the same light, I did not exercise the discretion sought to defer your sentencing under s83A, as submitted by your counsel. I do not consider that such would be in your interests. In my view, your rehabilitation must be seen to be guarded, albeit that I accept from the matters put to me, that you are seemingly, certainly before you were arrested on warrant, on the right track.
47However, given your history with drugs, and your penchant for violence, it is so important that you continue to take these steps. In the circumstances, I did not consider that it would be in your interest, or that another twelve months would make any substantial difference to you, because your rehabilitation is clearly long term and will require sustained effort to maintain the gains that were demonstrated to the Court, albeit that you have since breached bail, in the sense that you did not turn up for sentencing.
48Given all of those matters, your counsel referred to the impact of COVID-19 upon you, while you were on remand and now, that you are now on remand again, that is the period prior to when you were bailed and the period to when you are now back in gaol, pending the warrant. I take into account all of those impacts. Worboyes [2021] VSCA 169, [35]-[49] was put to me, and the particular circumstances that must be taken into account, where a plea is entered given the stress that the justice system is under at the moment, and therefore the further amelioration of sentence which must be effected.
49As I have already said, I note the restrictions on your bail during the period leading up to the plea. I note the manner in which you, to that date, had complied with those conditions. I note the ongoing support of your mother and the offer of accommodation, hopefully when you are released, and also as was put to me the issue as to totality. You have been, unfortunately, a long term prisoner. You have, albeit, you accept that much of this comes about from your own fault, served not only lengthy terms of imprisonment, but imprisonment under harsh conditions.
50Your history of being a consistent and hard worker was put and confirmed in the letters set out in Exhibit 5 by Mr King and Mr Ma. As part of your rehabilitation, Exhibit 4 was tendered, which were the 15 urine samples from June 2021 to September 2021, and they were all negative.
51In addition, as I have already referred to, Mr Cummins' report was tendered to the Court, Exhibit 2. I refer to p3, where it is noted that you became dependent on methamphetamine, subsequent to your father's unexpected death. You thereafter, unfortunately, got into a situation where you could not control yourself and were involved in fights at nightclubs and parties, leading to the history of sentencing that I have detailed.
52At p5, Mr Cummins said this:
'In summary, at interview, he stated he was of the opinion that because apparently of his large physique, he was regarded as a target, of verbal provocation and intimidation at times'.
53At p6, at paragraph 36, it was noted as follows:
'Based upon all the information currently available to me, it is my opinion his rehabilitation is now well established. In my opinion, he now genuinely and rigorously values his liberty and he reports thoroughly enjoying the discipline of work and the nature of his current work'.
54As I said, those were very similar to the opinions put before Judge Hicks. Unfortunately, your actions since that time, not only made a subsequent Judge sentencing you wary, but clearly makes me wary. As I have already said, there is only one person that can solve your problems, and that is you by changing your life and staying away from drugs.
55Mr Cummins noted further on that page that there is no indication in your history to suggest that you have ever suffered from any psychotic disorder or schizophrenia, despite your dependency on methamphetamine. I come then to p8, he noted that you were 34 and at the time you were residing with your mother as a condition of bail. As to your history, he said that you had been attending his rooms on a regular basis, receiving regular mental health treatment. He assessed your current risk of committing further offences of violence as low-moderate, tending towards the low. This is paragraph 51:
'In my opinion, Mr Cook's mental health would inevitably deteriorate if he was incarcerated, as in my opinion, his rehabilitation is now very well established, as evidenced by him working fulltime, providing evidence through urine samples that he is not using illicit drugs and being very committed and motivated to participate in and receive mental health treatment'.
56As I say, I do not take into account the fact that you have breached your bail, nor the fact that you have been apparently charged with further offences. I simply note that as fact. As I have already said, I take account of all factors put on your behalf. I have already found formally that I do not accept that there is a special reason why the provisions as to mandatory term of gaol should not apply.
57Further, in regard to all of those submissions, I do not accept, albeit the opinions of Mr Cummins, that you should not be subject to a sentence of imprisonment. The only hope of the Court at your relatively young age, given the life that you have in front of you, is that you take the steps, to change your lifestyle, eliminate anger and your reaction to it, and accept the support of your mother. I have taken all of those matters into account and the matters put to me in determining your sentence.
58I am, of course, and as a result of the authorities I have read to you, conscious that in this sentence, I must be aware of the difficulty of a prison officer's life, in carrying out their tasks on behalf of the community and take into account, the factors detailed by the Courts in such sentencing. I apologise for the length of this sentence, however, there are many circumstances related to your sentence, Mr Cook, that were required to be addressed by me. I will allow your counsel to talk to you after this sentencing remotely, to discuss this sentence. Taking all the factors into account and being as merciful as I can, I sentence you as follows.
59You will be convicted of each of the three charges on the indictment. In regard to Charge 1, you will be sentenced to a period of four months imprisonment. In regard to Charge 2, you will be sentenced to six months imprisonment, which is the minimum term imposed by the sections that I have indicated, and in regard to Charge 3, you will also be sentenced to a period of imprisonment of six months.
60Using Charge 2 as the base sentence, I order that one month of the sentence on Charge 1 be cumulated upon the base sentence, and as a result, the total effective sentence imposed by this Court upon you is a straight seven months. There is pre-sentence detention in regard to this matter, which I understand to be the five days since I revoked bail Mr Prosecutor, but you can perhaps confirm that?
61MR GOODENOUGH: Yes, Your Honour, we were - sorry, I was a bit unclear as to whether the bail had been revoked in respect of this matter, but if that is the case, then ‑ ‑ ‑
62HIS HONOUR: Sorry, it has not been - I do not know whether I revoked bail.
63MR GOODENOUGH: If it's not revoked - if it wasn't revoked, Your Honour, then the time spent in custody has, I understand it, been in respect of the new charges. So I don't understand that bail hasn't revoked, that any pre-sentence detention would apply.
64HIS HONOUR: Well he's going back in gaol because of my order.
65MR GOODENOUGH: From the bail yes, but there are the additional charges, Your Honour, ‑ ‑ ‑
66HIS HONOUR: I know but he wasn't ‑ ‑ ‑
67MR GOODENOUGH: ‑ ‑ ‑ (indistinct words).
68HIS HONOUR: He didn't go to gaol as a result of that. He was - I think he was bailed wasn't he?
69MR GOODENOUGH: In respect of the ‑ ‑ ‑
70HIS HONOUR: Additional charges.
71MR GOODENOUGH: ‑ ‑ ‑ home invasion ‑ ‑ ‑
72HIS HONOUR: Yes. He only went to gaol because he breached the warrant, didn't turn up for my sentence.
73MR GOODENOUGH: Yes, if I put perhaps - I'll just clarify that, Your Honour.
74HIS HONOUR: Well I will just continue and we can clarify it.
75MR GOODENOUGH: Yes, Your Honour.
76HIS HONOUR: But as I - I would put it, I think he has already served five days.
77MR GOODENOUGH: Yes, Your Honour.
78HIS HONOUR: Pursuant to s18, I make a declaration that those five days are served as part of this straight seven month sentence and order that declaration be recorded in the records of this Court.
79Pursuant to s6AAA, I note that the Parliament requires me to tell you Mr Cook, what would otherwise have been the sentence, had you not pleaded guilty. Can I indicate that that penalty would have been ten months, a straight ten months and not seven months. Do either counsel have any queries in regard to any of the matters that I have mentioned?
80HIS HONOUR: Yes. All right, thank you all and good luck Mr Cook. I hope you continue to do something about those problems that I have highlighted. Yes, thank you. Yes, Mr Tipstaff.
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