Director of Public Prosecutions v Cook and McCarthy

[2014] VCC 679

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 12-02371
CR 12-02375

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSHUA COOK
RICHARD MCCARTHY

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	2 May 2014
DATE OF SENTENCE:	5 May 2014
CASE MAY BE CITED AS:	DPP v Cook & McCarthy
MEDIUM NEUTRAL CITATION:	[2014] VCC 679

REASONS FOR SENTENCE
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Subject: Criminal law-sentence.         

Catchwords: Two accused - aiding & abetting in group attack – dysfunctional childhood and extensive criminal history including violence (Cook) – both accused, long-term heavy abuse of drugs and alcohol – prospects for rehabilitation guarded.     

Sentence: Cook – 15 months, non-parole period 9 months. McCarthy – 13 months, non-parole period 7 months.            

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms D Manova	OPP

For the First Accused For the Second Accused Mr C Pearson Mr M McGrath Revill & Papa Lawyers Matthew White & Associates

HER HONOUR:

1Mr Cook and Mr McCarthy, you may remain seated for the moment.  I will ask you to stand later.

2Joshua Cook and Richard McCarthy have each pleaded guilty to one charge of recklessly causing serious injury.  The maximum penalty for this offence is 15 years' imprisonment.  I shall make a number of general remarks and then turn to each offender separately before proceeding to pass sentence.

3The trials in relation to this offence and other charges were due to start on 3 March, but following discussions each of the accused entered pleas of guilty to the charge when arraigned that day, and with an agreed set of facts.  These are that on 9 January 2012 in the early hours, what is known as a run-through occurred at the home of the victims.  The offenders were looking for drugs and money.  The victims did not report the matter to police, but one of them told the local Maternal and Childcare nurse that same day.  Both accused were known to the victims and had visited their home.  The male victim had been working in Mr McCarthy's plastering business.

4On 4 February 2012 the victims were at home with two friends having a barbecue.  All four were drinking heavily and smoking marijuana.  The male victim took a telephone call in which he was informed as to the names of those alleged to have been responsible for the run-through.  He telephoned Cook and had a conversation with him, and not long afterwards the other victim observed their friend Simon Cox to be passed out in the back yard of the house,  such was the level of drinking at that address.  The male victim left to go to a neighbour's house. 

5Soon after that, the female victim heard a commotion at the front of the house.  She looked over the fence to the street, and saw Cook, McCarthy and another man.  She yelled at them, "What the fuck do  you want?  What are you doing here?"  She ran inside and grabbed an abattoir knife and rang the male victim, telling him to come home as, "Josh had arrived with his friends."

6A group of men including Cook and McCarthy advanced upon the house and the female victim yelled out to them again saying, "You pack of dogs, coming to my fucking house causing trouble.  Why don't you be a man and show me what you've got?"  The male victim  then came running towards the men in the street with two knives in his hands.  The female victim ran back inside and called 000, identifying Mr Cook during the call as one of the men.  An independent witness said she saw one of the group carrying a golf club and another male carrying an object.  The male victim was heard to yell repeatedly, as he ran towards the group with a knife, "Come on, you fucking bastards."  He swung the knife at members of the group, and missed, following which some in the group began to hit and kick him.  It has not been possible to attribute these actions to any particular person, and there was insufficient evidence upon which to charge any others in the group.

7Accordingly, the accused are to be sentenced as having been present, encouraging those who made physical contact with the injured man.  He  was assisted by a neighbour and taken to hospital suffering a depressed occipital skull fracture, a right forearm ulna fracture and a broken nose.

8Mr McCarthy, you were arrested and remanded in custody for two days, then released on bail until 23 July 2012 when you returned to custody until 19 December 2012.  That is a total of 151 days or five months.  You have never served a custodial sentence before.  Your criminal history extends over a decade, consistent with the time during which you have been abusing drugs and alcohol, and have committed various crimes, although not including any crimes of violence. 

9You are aged 28, and you live in Nambucca Heads, New South Wales, with your girlfriend Jessica Hickton, who is Mr Cook’s half-sister.  You grew up in Melton, Victoria, in a conventional family, and left school at the end of Year 10.  You had done well at school, and you completed two years of an electrical apprenticeship.  However, by the age of 19 you had commenced using drugs, and this affected your capacity to work, thus bringing a premature end to your apprenticeship.  However, you continued to work until recently, albeit in unskilled jobs. 

10You used a range of illicit drugs, particularly amphetamines to which you rapidly became addicted, and you were on a Buprenorphine program at the time of your arrest.  In custody you were placed on a Methadone program, and you succeeded in gradually reducing the dosage so that on your release you were able to cease altogether, with the assistance of your general practitioner, and after a short period of prescribed Valium use.

11You left Melton in order to break with previous associations and went to live in Nambucca Heads.  You still used cannabis several times a week but in smaller quantities than previously.  You used to drink alcohol heavily, and you were a binge drinker from about the age of 22.  You no longer use other drugs but still over-indulge in alcohol quite regularly.

12You have an eight-year-old daughter, born when you were 19, and have had little contact with her due to your lifestyle.  Recently you sought to make amends, and you are now permitted to have regular telephone contact with her.

13In terms of rehabilitation you have made considerable progress since your release from custody.  Ms Hickton gave evidence that whilst she has seen you drunk during the 12 months or so of your relationship, you do not behave violently or aggressively when under the influence of alcohol.  However, given your two failed attempts at drug rehabilitation, your prospects for rehabilitation remain guarded.  In any event, Ms Hickton said your plans are to return to Nambucca Heads and obtain employment, and in the long term to marry and have a family.  She gave that evidence two months ago at the initial stage of the plea hearing, and I have not heard that anything has changed since then.

14On the day of this offence you had been obliged to leave a residential rehabilitation program because of having used drugs.  This was your second unsuccessful attempt at rehabilitation, and you were very dispirited as a result.  You went to Mr Cook's house to celebrate his 30th birthday with a number of other men, and you all drank heavily.

15That evening, the male victim had received the telephone call I referred to earlier, informing him of the alleged identities of those who had conducted the run-through of his house.  He rang Mr Cook, and you understood that he had made threats to Cook.  You and Cook and the other men walked the short distance from Cook's house to a point a few doors away from the victims’ house in Myrtle Street.  You intended this to represent a show of bravado, even though one of your group was armed with a golf club.

16As your group approached the victims’ house the female victim came from the house armed with a cricket bat, and the events I have already described in Paragraphs 4 to 6 of these remarks took place. 

17Mr Pearson on your behalf, and Mr McGrath on behalf of Cook have each described the actions of the group as self-defence initially until the point when the male victim was disarmed, but have conceded that the approach to the location of the victim's residence was ill-judged and should not have happened.

18You have both conceded that although you did not physically attack the victim, you encourage those who did, and are therefore responsible.  In the light of that you have pleaded guilty following extensive negotiations, I am told, and that is to be taken as the first reasonably available opportunity.  It calls for a discount on your sentence, recognising its value to the criminal justice system, in terms of saving the time, expense and inconvenience of a trial, and as an indication of remorse, which I understand you have also expressed to your counsel.

19There has been delay by reason of the other charges and the need to negotiate, but you have put the delay period to good use by furthering your rehabilitation.  The delay is to be taken into account as is the effort you have made.  You have achieved a stable lifestyle without having committed any further offences.

20This is a serious offence, and the victim suffered painful injuries.  Drunken violent behaviour such as that demonstrated by your group that day deserves stern punishment and firm denunciation by the court.  Specifically, your punishment must be appropriate to your involvement and reflective of your progress towards rehabilitation so far with a view to preventing further criminal behaviour by you.  Would you stand up, please, Mr McCarthy. 

21Accordingly, I sentence you to 12 months imprisonment.  I order that you serve nine months before being eligible for parole.  You were in custody for 151 days, which I declare as having already been served, and I shall cause that to be noted on the court record.

22You must therefore return to prison to serve a further four months.  This is considerably more lenient than it otherwise might have been but for the mitigating factors that I have mentioned.  I add that you spent time in police cells and were moved around the detention system as a remand prisoner during that time, experiencing isolation and without the benefits that fall due to a sentenced prisoner.

23If you had pleaded not guilty to the charge, I would have sentenced you to 15 months' imprisonment with a minimum period of six months.  I will ask you to be seated for the moment, thank you, Mr McCarthy.

24Mr Cook, you are now aged 32, living in a long-term partnership and the father of two young daughters.  You and your family moved to Nambucca Heads after the incident when you were fearful or reprisals after hearing of threats made.  Since then, as you have said, you have turned your life around, ceased using hard drugs and found work first as a landscaper and more recently as a removalist.  Your employer has written a reference stating that you are a good worker.  Your partner is working and caring for her mother and the children are settled at school.

25You had a very dysfunctional and difficult childhood following your mother's psychiatric breakdown when you were five, resulting in the end of your parents' marriage.  You and your three brothers were cared for by your father initially, but later you were placed in foster care while one brother lived with your mother and the other two remained with your father.  You were moved from one foster carer to another and attended different schools until the age of 15 when  you left and started living on the streets.  You abused drugs, drank alcohol very heavily and had no employment and no home for three years from 1996 until 1999. 

26You have a very extensive criminal history dating from the age of 17 and for a range of offences including violence.  At age 18 you were employed and then began your relationship with your partner. Soon after this you moved to Burrell in New South Wales where your mother was living, and you lived with her while working at a local sawmill.  You returned to Victoria and were unemployed for a time using drugs and alcohol.  Your criminal behaviour escalated, but apparently eased around the time of the birth of your first child in 2004.

27Ms Pamela Matthews, the psychologist who assessed you recently helpfully set out your history in relation to your mental health.  You have suffered from depression for many years from boyhood whilst in foster care.  Around 2006 you were hospitalised twice for psychiatric issues, and ever since you have been prescribed a significant variety of medication to control your mood and deal with such symptoms as irritability and hypervigilance.

28You pleaded guilty at the committal hearing, and it is put by way of explanation that because you were living interstate you had had limited contact with your legal representatives and arrived late for court.  Your barrister resolved the case in much the same way as it is now being presented, but having entered the plea you later wished to change your plea to not guilty.  As I have said in relation to Mr McCarthy you have now both pleaded guilty following extensive negotiations conducted immediately before the trial was due to begin.  In view of the difficulties existing at the time of the committal, your residence interstate and your mental health, I am prepared to accept your plea as having been made in the same circumstances as Mr McCarthy was operating under, that is at the first reasonably available opportunity.

29Applying the same sentencing principles to your situation as I have for Mr McCarthy, I must take into account that the only sentencing options realistically available are immediate imprisonment or a Community Corrections Order.  You have been unsuccessful in completing community based orders in the past, and although it was submitted by Mr McGrath that your circumstances are now far more stable than previously, I am not persuaded that a community order is appropriate.  I am told you are prepared to come and live in Victoria, living apart from your family, to complete a Community Corrections Order if you were sentenced in that way, but that carries considerable risks that you might reoffend and breach the order. 

30I must also consider the principle of the need for parity as between two co-offenders.  Your mental illness is a marked difference between you and Mr McCarthy, but on the other hand you have a relevant prior history of violence which Mr McCarthy does not have.  You are not to be punished for that, but its relevance goes to your prospects of rehabilitation making them more guarded, particularly when your previous history of drug and alcohol abuse is taken into account.

31Your recently achieved stability indicates some reasonable prospects for rehabilitation, which could warrant a period of parole after a relatively short term of imprisonment.  The report from Ms Matthews suggests that according to your own account you are still drinking heavily each day and using marijuana heavily.  Your account is that since then you have further reduced your drinking and cannabis use.  Ms Matthews concluded that your risk of violent reoffending is high, partly because of the substance abuse problems and partly because of other background factors, including your history of not being compliant with the need to take medication.  She set out a number of carefully thought out therapeutic recommendations, which she considers you are unlikely to take up unless mandated by the court.  My comment is that some of them may be achievable in prison, and those that remain unaddressed should ideally be addressed by your parole conditions.  That of course is not a matter for the court.

32Would you stand now, please, Mr Cook.

33I sentence you to 15 months' imprisonment.  I fix a period of nine months which you must serve before being eligible for parole.  If you had pleaded not guilty I would have sentenced you to 18 months with a minimum period of 12 months.  Be seated for a moment, please, Mr Cook.

34I think there is a problem with the 6AAA order in relation to Mr McCarthy.

35MR PEARSON:  Yes, I was going to bring that to Your Honour's attention.

36HER HONOUR:  Yes.  Just one moment while I correct that.  The 6AAA order for Mr McCarthy should be 15 months' imprisonment with a minimum of 12 months.

37MR PEARSON:  If Your Honour pleases.

38HER HONOUR:  Mr Pearson, I checked with the Parole Board on Friday, and it seems that the transition, if Mr McCarthy becomes eligible for parole, the transition to New South Wales can be done.

39MR PEARSON:  Yes.

40HER HONOUR:  So that he can serve his parole there, but apparently that takes three months in the process of whatever bureaucracy is in place.

41MR PEARSON:  I think he'll probably stay with his parents here in Melbourne and do his three months of parole if he gets paroled, Your Honour.

42HER HONOUR:  I see.  Well, whatever he wishes to do.  He needs to know that it will take some time.

43MR PEARSON:  Yes, I understand that.  I'll go and see him, and I'll make sure he's aware of that, Your Honour.

44HER HONOUR:  Very well.  Thank you, Mr Pearson.  Were there any other matters that I - - -

45MR PEARSON:  Not for my part, Your Honour.

46HER HONOUR:  Ms Millar?

47MS MILLAR:  No, Your Honour.

48HER HONOUR:  There were no ancillary orders sought, were there?

49MS MILLAR:  No, Your Honour.

50HER HONOUR:  Thank you.  Anything else, Mr McGrath?

51MR McGRATH:  No, Your Honour.

52HER HONOUR:  The prisoners may be taken now, thank you, officer.   

53(Prisoners removed.)

54(Short adjournment.)

55MR P. ATKINSON APPEARED ON  BEHALF OF THE DPP

56HER HONOUR:  Mr Pearson, I understand.  I think I know what the problem is.

57MR PEARSON: Yes. Your Honour, I should have brought it to Your Honour's attention earlier, and I apologise I didn't, but immediately afterwards I went down and spoke with Mr McCarthy and reflected upon it, and it seems to me that the sentence Your Honour imposed is in breach of s.11(3) of the Sentencing Act. There's a differential of six months between the head sentence and the minimum term.

58HER HONOUR:  That's right.

59MR PEARSON: So my submission for what it's worth, Your Honour, is that Your Honour has found that 12 months is in application of the intuitive synthesis, have decided that 12 months is the appropriate sentence, and in my respectful submission the non-parole period should be six months. In other words, Your Honour should bring the sentence in conformity with s.11(3) by reducing the non-parole period rather than by increasing the head sentence. So that's my submission, Your Honour. If 12 months is the appropriate sentence, then six months should be the minimum term.

60HER HONOUR:  Well, I have to consider parity as well.

61MR PEARSON:  Your Honour does, yes.

62HER HONOUR:  In terms of the non-parole period as well.

63MR PEARSON:  Well, that's right, Your Honour.

64HER HONOUR:  It may be there needs to be some - - -

65MR PEARSON:  But that would be accomplished, Your Honour, by resentencing Mr Cook if that be necessary, and reducing his minimum term rather than increasing Mr McCarthy's head sentence, is my submission.

66HER HONOUR:  I see.  I'll just take a moment to consider that, Mr Pearson, thank you.

67All right.  Mr McCarthy, will you stand, please.  In order to satisfy the various sentencing requirements as I have already set out this morning in my remarks in respect of both you and Mr Cook, I am going to resentence you now to a head sentence of 13 months' imprisonment and make a further order that you serve seven months before being eligible for parole.  The s.6AAA order, it follows from that, will be that if you had pleaded not guilty I would have sentenced you to 16 months with a minimum period of nine months before being eligible for parole.

68MR PEARSON:  If Your Honour pleases.

69HER HONOUR:  Thank you, Mr Pearson.  Apologies for that inconvenience.

70MR PEARSON:  I apologise I didn't bring it to Your Honour's intention when Your Honour invited me to make comments.

71HER HONOUR:  Not at all.  That's all right.

72MR PEARSON:  It only occurred to me later.

73HER HONOUR:  Thank you.

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