Director of Public Prosecutions v Coolen

[2021] VCC 300

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01401

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW COOLEN

---

JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	16 February 2021; 18 March 2021
DATE OF SENTENCE:	22 March 2021
CASE MAY BE CITED AS:	DPP v Coolen
MEDIUM NEUTRAL CITATION:	[2021] VCC 300

REASONS FOR SENTENCE

---

Subject:  Criminal law

Catchwords:  Aggravated burglary – offensive weapon; contravene   family violence intervention order – intend harm or fear of   safety

Legislation Cited:  Sentencing Act 1991

Cases Cited:Pasinis v The Queen [2014] VSCA 97; DPP v Johnson [2011] VSCA 288; Marrah v The Queen [2014] VSCA 119

Sentence:Total effective sentence of 3 years imprisonment, with a   non-parole period of 22 months

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Pillai	Office of Public Prosecutions
For the Accused	Mr J. Siggins	Buscombe Madden Lawyers

HER HONOUR:

1Matthew Coolen, you have pleaded guilty on indictment to charges of aggravated burglary and contravene family violence intervention order intending to cause harm or fear for safety, both offences having occurred on 16 March 2020.

2In sentencing you for these crimes I must have regard to the maximum sentences for the offences which you have committed.  The charge of aggravated burglary carries a maximum penalty of 25 years imprisonment and the charge of contravene family violence order carries a maximum penalty of five years imprisonment.  These maximum penalties reflect the seriousness with which Parliament regards these offences.

The offending

3The circumstances of your offending are set out in a document entitled 'Summary of Prosecution Opening for Plea' dated 20 January 2020.  Upon an amendment it became an agreed document and represents an acceptance by you of the elements of the offences to which you have pleaded guilty, as well as the factual basis on which I am to sentence.

4In short compass, you had been in an intimate relationship with the victim, Francina Doeland, for about a year.  That relationship ended in October of 2019.

5Seven months earlier, on 26 March 2019, a family violence intervention order was made in the Ballarat Magistrates' Court with you as respondent and
Ms Doeland as protected person.  The conditions of the order permitted contact between you but prohibited you from committing family violence, damaging her property or attending her home whilst drug or alcohol affected.  The intervention order was made for 12 months and was active at the time of your offending.

6At about 11pm on 16 March 2020 you and Emily Addicott rode bicycles to the victim's home in Barkly Street in Mount Pleasant, Ballarat.  At the time, the victim had just returned home and was with a friend, Adam Evans. 

7You knocked at the front security door of the victim's unit.  The victim asked who it was and you answered, 'Who do you think it is?'  The victim recognised your voice and opened the wooden front door, leaving the flywire security door closed.  She saw you and Addicott standing outside and told you it was late and to return the next day. That should have been the end of the matter.

8However, you told Ms Doeland that you wanted your stuff and were repeatedly told by her that you would have to come back the next day.  You argued with Ms Doeland, who observed you to become angry and aggressive.  She feared you were drug affected.  She slammed the wooden door shut.  You then began banging on the lounge room window, saying, 'Let me in you dog.  Don't call the police!’

9Neighbour, Matthew Kiniecki, was sitting in his lounge about 40 metres away from the victim's home.  Despite that distance he heard yelling and screaming.  He heard a female sounding scared saying 'please go away' five or six times, as well as hearing 'leave me alone'.  He heard you repeatedly screaming, 'Let me in bitch'.  

10Kiniecki walked outside.  He saw you open the security door of the victim's unit and move back to the front gate of the property.  He then observed you run towards the victim's wooden front door and give it a flying kick before you ran back to the gate and returned to the wooden door, giving it another flying kick.  You then put on a red bicycle helmet and said 'game on bitch'.  Kiniecki lost sight of you when you went down the side of the premises.  He heard banging sounds.  Meanwhile, Addicott remained at the front door, saying, 'Just let us in'.

11You approached the garage roller door of the victim's unit, which had been secured inside by fishing rods as a makeshift lock.  You forced the roller door open and entered the garage.  You then kicked open the wooden laundry door, damaging the lock, and entered the unit.  At the time you had with you a black hunting knife in a sheath attached by a cable tie to your lower leg.  These facts form the basis for Charge 1; aggravated burglary, entry with an offensive weapon, and an intention to assault.

12You ran into the victim's lounge, where she was attempting to phone 000.  You tried to grab the phone from her hand as she was speaking.  The victim struggled with you to keep her phone before she gave up and ran to the bedroom.  Kiniecki, meanwhile, could hear the victim screaming, 'Get out, leave me alone', and he also called 000. 

13You chased the victim into her bedroom and cornered her.  She was screaming at you to get away and to give her phone back.  You tried to cover her mouth with your hand then threw her onto the bed.  You pinned her face down and placed your knee into the side of her head.  She was screaming at you to get off her.  You then pulled out the hunting knife from the sheath on your leg.  Meanwhile, it would appear that her friend Evans left the premises.

14The victim was struggling to get you off and during the struggle the knife contacted her leg, below her right knee, piercing her jeans and causing a small 2 centimetre cut.  You then brought the knife around and pointed it at her throat.  You told the victim to stop screaming, to 'shut the fuck up' and 'don't call the police'.  The victim understandably was in fear of her throat being cut.  She was in fear for her life.  You told her to 'stop screaming, stop carrying on'.  She instead asked for you to give her phone back and swore on her son's life that she would not call the police. 

15You backed off enough for the victim to push you away.  You were still holding the knife and started yelling 'where's my money'.  

16You then calmed down and walked out of the bedroom and back into the lounge.  The victim followed and told you to get out. By this time Addicott was also in the lounge room.  She took two bags of hers that were on the kitchen bench and then you both left via the front door. 

17The victim shut the door and called 000. 

18Witness Kiniecki went outside again and observed you and Addicott leaving on bicycles and to hearing you say 'don't worry, she'll get hers'.

19Police attended at the victim's address and observed the damage caused by your entry, which included visible shoe marks on the outside of the door.  A minor cut was observed below the victim's right knee, corresponding to the cut on her jeans.

20You were apprehended by police nearby, on your bicycle, at which time a knife sheath cable tied to your lower leg was identified.  You had thrown the hunting knife away, but it was located by police about 200 metres from where you were arrested. 

21You were then taken to the Ballarat police station and participated in a recorded interview.  In that interview you admitted attending the victim's unit but denied the offending, and denied that the knife located by police was yours.

Gravity of the offending

22Through your counsel you seek to explain your offending as essentially an effort by you to retrieve moneys that you had placed in Ms Doeland's account by previous arrangement and then becoming increasingly angry when you were asked to leave without obtaining those monies.  You admit drug use around this time.

23Your offending is serious in its own right and in the context of your relevant criminal history, to which I will later refer.

24As reflected in Charge 2, you clearly entered Ms Doeland's premises in contravention of an existing family violence intervention order.  At the same time you were also subject to a community corrections order, which is an aggravating feature to your offending.

25You were well aware of the constraints imposed upon you by the existing family violence intervention order.  You attended at the victim's premises after 11pm on a Monday night and, despite very clear indications that you were not welcome, persisted in gaining forceable entry, causing damage as you did so.  You entered with a weapon, as particularised in the charge of aggravated burglary.  Your use of a weapon is particularly cowardly.

26Informing your intention on entry, once inside the premises you maintained a threatening, frightening and violent approach to Ms Doeland which – more by good fortune than good management – was limited in its physical impact.  She had good reason to be fearful of you.  You had ample opportunity to desist but it took quite some time for your sheer rage and fury to quell.  This is of obvious concern.

27Whilst no victim impact statement has been filed, I have little doubt that she would have been terrified by your presence in her home on this day.  Your entry was to her private domain; an environment in which Ms Doeland was entitled to feel both safe, and to be safe.

28I note that Charge 2 - contravene family violence intervention order - is put as a continuing offence which, in effect, commences when you enter the premises whilst committing an aggravated burglary with an intention to assault, and then is further particularised as including your actual assault upon Ms Doeland.  It concludes once you leave the premises.  There is therefore some commonality between the behaviour compromising both Charge 1 - aggravated burglary - and Charge 2, which includes that aggravated burglary.  Care needs to be exercised to ensure that you are not doubly punished.

29I do not accept, as submitted by the prosecution, that your offending was necessarily pre-meditated, rather that it unfolded in circumstances where your initial demands were not met and you became enraged.  Either way, your response to this situation is extremely concerning.

30Axiomatically, your offending has occurred in a domestic violence context. 

31In the decision of Pasinis v The Queen [2014] VSCA 97 the Court of Appeal emphasised the importance of general deterrence in sentencing for family violence offences. It stated that:

'The key to protection lies in deterring the violent conduct by sending an unequivocal message to would be perpetrators of domestic violence that if they offend they will be sentenced to lengthy periods of imprisonment so that they are no longer in a position to inflict harm'.

32In DPP v Johnson [2011] VSCA 288 Justice of Appeal Neave stated that:

'Offenders who breach orders and continue to threaten and assault their partners may go on to seriously injure or even kill them'.

33Obviously, intervention orders can only protect victims of threatened violence if they are effectively enforced and if breach of an order attracts an appropriate sentence. 

34In Marrah v The Queen [2014] VSCA 119 the court again emphasised the need for general deterrence, stating that:

'The sentence must convey the unmistakeable message that male partners have no right to subject their female partners to threats or violence.  The sentences must be of such an order as to strongly denounce violence within a domestic relationship'.

35Each of these pronouncements are obviously relevant to your case.

Prior criminal history

36I do now turn to your criminal history, as it is relevant to the assessment that needs to be undertaken as to your prospects for rehabilitation, the weight that should be given to specific deterrence, denunciation and the need to protect the community.  In your case I am of the view that is capable of informing your moral culpability for your offending of 16 March 2020.

37Your criminal history spans some 14 court appearances since the year 2000.  There are gaps in that history, which otherwise includes driving offences, breaches of court orders, dishonesty offending and offences of violence. 

38Relevantly, you appeared at the Melbourne Magistrates' Court on 28 July 2003 in relation to charges of possessing a controlled weapon, unlawful assault and breach of intervention order; offences which occurred in the context of your relationship with a previous partner, a Ms Lawson.  At that time you were convicted and placed on a community based order for a period of 12 months with treatment conditions.  You failed to comply with that order.

39On 2 March 2012 you appeared at the Frankston Magistrates' Court in relation to a charge of recklessly cause injury and were fined.

40After a five year gap you appeared at the Ballarat Magistrates' Court on 2 May 2017 in relation to a charge of recklessly cause injury where you assaulted your ex-partner’s paramour with a baseball bat.  At that time you received a sentence of one month imprisonment in combination with a community corrections order for a period of 18 months, which again had treatment conditions.  You appealed that decision on 6 June 2017.  The Ballarat County Court reimposed orders in similar terms.

41On 1 March 2018 you appeared at the Ballarat Magistrates' Court in relation to persistent contravention of a family violence intervention order, making threat to kill, unlawful assault, contravene family violence intervention order, commit indictable offence whilst on bail and other related matters.  You were convicted and sentenced to three months imprisonment, with 94 days reckoned as having already been served.  This imprisonment was also in combination with a community corrections order for a period of 15 months which, again, included treatment conditions.  That offending also all occurred in a domestic violence context in relation to Ms Lawson and included allegations that you threatened her with scissors and choked her kitten.

42You next appeared at the Melbourne County Court on 25 May 2018 for contravening the community corrections order that had been imposed upon you on 6 June 2017.  At that time the community corrections order was confirmed.  You again appeared for contravening that order at the Ballarat County Court on 15 October 2019.  The community corrections order was cancelled and a further order was imposed for a period of 18 months with treatment conditions.  It is this order to which you were subject at the time of your offending on 16 March 2020. 

43Ultimately you were dealt with for contravening that order by the Melbourne County Court on 30 March 2020, at which time the order was cancelled and you were re-sentenced on the original charge of recklessly cause injury to 14 days imprisonment.

44You also appeared at the Ballarat Magistrates' Court on 4 November 2019 in relation to contravening the community corrections order that had been imposed upon you by the same court on 1 March 2018.  That breach was found proven and the Corrections order confirmed.

45The prosecution has provided summaries of your previous offending, which has occurred in the domestic violence setting.  I cannot be confident that those summaries reflect the exact basis on which you were sentenced at that time.  I can be confident, however, that you have a relevant history of violence, and violence which has occurred in the context of your domestic relationships.  There are some seven prior matters for contravening family violence intervention orders alone.  The aggravated burglary, the subject of this indictment, represents a considerable escalation from your past offending.

46You are not to be punished for your prior offending a second time.  Your criminal history does, as I have said, in my view inform your moral culpability for your offending of 16 March 2020.  Further, it raises very grave concerns of the need to protect the community from you – particularly intimate partners.  It has obvious relevance to the need for specific deterrence.

Your plea of guilty

47This matter resolved to the charges on the indictment at the committal hearing at Ballarat Magistrates' Court on 28 October 2020, prior to any witnesses being called to give evidence. 

48I am obliged to take into account the stage at which you entered your pleas of guilty.  I am satisfied that they have occurred at a relatively early stage.  Further, they provide utilitarian benefit.  The court has been saved the time and expense of contested proceedings and, more importantly, the witnesses – particularly your victim – the need to give evidence and re-live what would be traumatic events.

49I note that your plea has also taken place in the context of the court's response to the COVID-19 pandemic and has additional utilitarian value in offering certainty to these proceedings and for all those involved. 

50These factors will all be reflected in your favour. 

51Evidence of remorse is a little harder to discern.

Personal circumstances

52A report authored by Mr Ian Mackinnon, consultant psychologist, dated
15 September 2020, sets out much of your background.  That report was prepared in the context of a then pending application for bail.

53You are presently aged 41 years. 

54You grew up in the Gippsland area.  When aged approximately two years your parents separated and you and your older brother remained with your mother, moving to Mansfield.  Your mother worked as a hotel room attendant.

55Your mother re-partnered with a man with whom you enjoyed a good relationship.  Your mother, presently aged 62 years, and stepfather, aged 72 years, reside together at a Gisborne address.  You have not maintained a positive relationship with your biological father. 

56You describe your childhood as good, without any significant abuse or trauma.

57You completed your schooling to approximately a Year 8 level before commencing work as an assistant in an automotive panel repair shop at age 14 years and you went on to complete an apprenticeship in that trade.  At age 19 you left your first employer and then worked at several different panel workshops and at an industrial steel company.

58In your youth you were physically active and trained in martial arts, rode motorbikes and played in a local football competition. 

59You commenced using alcohol from the age of 16 years and, by the age of 19 years, spent several months at The Bridge, a residential rehabilitation program, to engage in drug and alcohol counselling.

60When aged approximately 20 years you were the victim of an assault which left you with post-traumatic stress disorder, panic disorder and anxiety.  You returned to the use and abuse of alcohol.  You were also prescribed medications which included benzodiazepines, antipsychotics, antidepressants and mood stabilisers. 

61From the age of 22 you began to use amphetamine-based substances. 

62Your drug use and psychological difficulties impacted on your ability to work and you have not worked since the year 2014.

63You had a long term relationship with Ms Lawson between the ages of approximately 19 to 37 years from which there are three daughters, presently aged 12, 18 and 20.  It is in the context of your relationship with Ms Lawson that your prior criminal matters for domestic violence have occurred.

64You told Mr Mackinnon that during most of 2019 and 2020 you habitually used both ice and GHB.

65In terms of his psychological assessment Mr Mackinnon diagnoses you with post-traumatic stress disorder and polysubstance abuse disorder.  There is no challenge to these diagnoses.  He opines that it is likely that your polysubstance abuse disorder pre-dated the onset of your post-traumatic stress disorder.  The breakdown of your relationship with your previous partner, Ms Lawson, appears to have exacerbated your polysubstance abuse disorder.  Your previous use of alcohol has been replaced by your use of ice and GHB.

66Mr Mackinnon expressed obvious concern as to your risk of relapsing into substance abuse on your return to the community.  He comments that your personal and criminal history and the context of your poor emotional management and the influence of illicit substance and/or alcohol has led to
anti-social impulses.  In this context, combined with your prior history of violence, he regards you as posing a significant risk for further violent offences, particularly in the context of intimate relationships.  He believes this risk would be reduced if you completed a men's behavioural change program and engaged in regular sessions with a psychologist for an extended period of time.  I understand that you have completed a men's behaviour change program during one of the Corrections orders which you have been previously ordered to serve.

67In Mr Mackinnon's opinion your post-traumatic stress disorder and polysubstance abuse disorder are likely to have adversely affected your ability to reason and make sound judgment, eroded your sense of morality and community responsibility, degraded your capacity for consequential thinking, making you more impulsive and prone to aggressive and reckless behaviour, and fuelled anti-social and criminal impulses.

68At the time of your plea hearing on 16 February 2021, in the context of these findings, I expressed some concern as to how I could possibly separate the impact of your offending as being related to your drug use from your diagnosed post-traumatic stress disorder.  The matter was adjourned so that further evidence could be obtained.

69In advance of your further plea a supplementary report dated 8 March 2021 was obtained from Mr Mackinnon.  My express concerns do not appear to be the basis on which that supplementary report was obtained, however Mr Mackinnon does comment that you have benefitted from your time on remand and now present in an improved state of mental health.  He sees your concern for your three children as a strong motivator for change and as a deterrent to reduce your risk of re-offending.  Mr Mackinnon expresses a concern that imprisonment for a further significant period may lead to a deterioration in your mental health.

70Mr Mackinnon was in fact called to give evidence on 18 March 2021.  He is of the opinion that you have largely overcome your polysubstance abuse disorder whilst in custody but would still be at risk of returning to use post-release.  He gave evidence that your post-traumatic stress disorder is now on a mild level and that you are relatively stable.  You have managed to obtain a billet's position in custody.

71I accept that during much of your remand you have been subject to somewhat harsher conditions - given the need for the prison system to respond to the COVID-19 pandemic - resulting, at various stages, in less access to physical visits, some restrictions on movement and more limited access to programs and courses.  I do take this into account in a general sense.

72Mr Mackinnon was not of the opinion that your post-traumatic stress disorder and ongoing polysubstance abuse disorder, which were both in existence at the time of your offending in March 2020, could easily be disentangled, however he was of the view that your post-traumatic stress disorder disabled you, has made you chronically angry and causes you to react out of proportion to the context or situation you face.  This is exacerbated by your use of drugs and alcohol.  You were admittedly using both ice and GHB at the time of your offending.  This reality, referencing your post-traumatic stress disorder condition being amplified by your drug use, goes partway to explaining your offending of 16 March 2020, as it does much of your prior history.  It does not, of course, excuse it.

73I accept that your longstanding conditions have made it extremely difficult for you to negotiate situations that confront you and that you tend to act on emotion.  Mr Mackinnon described you as an angry man – perhaps a particularly apt description.

74On balance, from the reports tendered and the evidence given, I am not of the view that any of the Verdins principles apply, nor were they pressed on your behalf.  Given your relevant history I assess the moral culpability for your offending as high.  Both specific deterrence and general deterrence loom large in the sentencing mix. 

75I note also that your period on remand has been the longest time you have spent in custody.  I am not altogether surprised with Mr Mackinnon's evidence that this has led to a stabilisation of both your post-traumatic stress disorder and polysubstance abuse disorder.  You are probably in a better place now more so than you have been for many years to follow through on your current motivation to have a healthy relationship with your three daughters.

76Medical records were also tendered on your behalf.  Those from 2014 confirm anxiety disorder, post-traumatic stress disorder and a background history of schizophrenia.  Apart from the post-traumatic stress disorder these past diagnoses are not said to be relevant to your offending.  Mr Mackinnon does not refer to schizophrenia.  Medical records tendered also reflect a condition known as polycythemia, which I am told is the overproduction of red blood cells.  This can lead to problematic clotting, for which you have been hospitalised previously, and you remain concerned about managing this condition. This material will all be taken into account in a general sense.

77However, in the circumstances of your relevant criminal history, difficulty in complying with court orders, history of drug abuse, non-response to previous court orders with a therapeutic component and Mr Mackinnon's risk assessment, your prospects for rehabilitation have to be seen as guarded.  Indeed, this was conceded by your counsel.

Sentencing

78In terms of sentencing I do make the ancillary orders, as sought, for forfeiture of the knife and its sheath.

79The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you I am required to have regard to a range of matters such as the seriousness of your offending, your culpability for it, your personal circumstances and those of your victim.  I am also required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, as far as is possible, that offenders are rehabilitated and are reintegrated into society.

80I have taken into account the relevant sentencing guidelines referred to in s.5 of the Sentencing Act, where relevant to your case.  I have taken into account current sentencing practices for the offences to which you have pleaded guilty, as well as the principles of totality and proportionality.

81In relation to Charge 1, aggravated burglary, you are convicted and sentenced to two years and eight months imprisonment.

82In relation to Charge 2, contravene family violence intervention order intending to cause harm or fear, you are convicted and sentenced to 18 months imprisonment, of which four months is cumulative on the sentence imposed on Charge 1.

83This therefore comprises a total effective sentence of three years imprisonment.  I fix a period of 22 months before you are eligible for parole.  356 days are reckoned as having already been served.

84Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed had you not pleaded guilty to the charges.  If not for your pleas of guilty I would have sentenced you to a total effective sentence of four years and two months imprisonment with a minimum of two years and six months before being eligible for parole.  

85HER HONOUR: Thank you, Ms Pillai.  Is there anything I've missed?

86MS PILLAI:  No, Your Honour.  That covers everything.  Thank you.

87HER HONOUR:  Mr Siggins?

88MR SIGGINS:  No, Your Honour, there's nothing there.  Thank you.

89HER HONOUR:  Yes, all right.  I'll stand down in a moment and I'll give you the opportunity to speak with your client in private.

90MR SIGGINS:  Thank you, Your Honour.

91HER HONOUR:  Thank you.  I'll stand down till 2.15, thank you.

---