Director of Public Prosecutions v Cooper

[2017] VCC 1550

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00728

DIRECTOR OF PUBLIC PROSECUTIONS

v

WARRICK COOPER

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	24 October 2017
CASE MAY BE CITED AS:	DPP v Cooper
MEDIUM NEUTRAL CITATION:	[2017] VCC 1550

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Livitsanos
For the Accused	Ms J. Swiney

Pages 1 - 10

 

 

HIS HONOUR: 

1Warrick Cooper, you have pleaded guilty to one charge or arson and one charge of robbery.  You have admitted your criminal history which runs to four pages of matters in the Shepparton Magistrates' Court in October 2016 and before that in the Shepparton Children's Court and Bendigo Children's Court.  Offences basically of dishonesty, some drugs and some violence. 

2The facts of the matter are set out in the prosecution opening, Exhibit 1.  Counsel does not take issue with those facts.  I have sentenced you upon the basis of those facts.  Any reader of these reasons can refer to that exhibit to place the sentences in their factual context.

3Briefly stated, on 17 December 2016, you were at Unit 1/128 Echuca Road, Mooroopna.  There was a co-occupier of the house, Dianne Beckhurst, and it adjoined a property at 33 Baker Crescent, Mooroopna.  You had been there for about a week.  You had some sort of argument with Ms Beckhurst.  You lost control of yourself.  One witness described you as being drunk and angry.  You argued with a number of people after you left the premises, saying you were going to do various things to the house including burn it down. 

4You returned to the premises.  You had lit some bedding in Ms Beckhurst's room, tipped over the lounge and lit that with a lighter.  The premises was severely damaged as set out in the report of George Zydias and it was given at the last hearing, the value of the damage that you were in as $176,957, and the property next to it $5990.52. 

5After doing that, you armed yourself with a knife and went down to the local fish and chip shop and demanded all the money, brandishing the knife at the person behind the cash register and took $2413.60 and some coins. 

6Two victim impact statements were tendered.  I have read the contents of such and taken them into account. 

7On your behalf, your counsel filed written submissions, made oral submissions and tendered a number of documents.  At the original hearing in Shepparton, Ms Swiney tendered a psychological report from David Ball, dated 5 July 2017.  It sets out some of your history although Mr Ball had difficulty in communicating with you.  It set out your personal background, when you started using alcohol and drugs et cetera.

8It was explained to me by Ms Hazeldene in evidence that she was not surprised by some of the matters in Mr Ball's report because her experience of you, as she had been your case manager for some 12 months when you were 17 to 18, was that you did not relate well to people you did not know or trust and that she expected that some of the problems Mr Ball had were down to that.

9In any event, a Forensicare report has been obtained from Dr Ria Zergiotis, 8 September 2017, and a report from the Department of Human Services headed "The Client Overview Report", the makers of which were Wendy Hazeldene and Pauline Matthew.  That material was obtained so that I could gain some insight as to whether I should put you on a justice plan or not because of some of the problems that you have.

10On your behalf, your counsel relied on in particular: 

11(1), your early of plea of guilty - that is an acceptance of responsibility by you for your offending and has saved the court the time and cost of a jury trial and I have given that the appropriate discount;

12(2), your age - in fact, you turn 20 on 10 November 2017;

13(3), your personal background as set out in the various reports.  It certainly is a tragic and dysfunctional upbringing that you have had and I will not go through it in any detail.  It is clearly recounted by the makers of the reports. 

14You began to use cannabis and alcohol at the age of 12.  You had experienced a significant number of out-of-home care placements as a child because of the breakdown of your family.  You have led a transient lifestyle.  You have had little education and little in the way of work skills.

15As I remarked during the course of the plea, no one should be surprised at your appearance here in court given that sort of background.  How someone could allow you to use crystal methamphetamine at 11 years of age, I just do not know.

16You have had psychiatric admissions to both Bendigo and Shepparton psychiatric units.  As is set out in paragraph 28 of the Forensicare report, you were removed from your mother's care at the age of six.  You were exposed to early trauma in the form of exposure to serious verbal and physical abuse, family violence and severe neglect.

17Whilst in custody, you have been seeing a Koori liaison officer.  At Paragraph 40, the Forensicare psychiatrist says the cognitive difficulties that you have developed are likely to have been multi-functional with your traumatic experience and chronic substance, all impacting on your cognition since childhood.  You are in the range of borderline to low intellectual functioning although there is no evidence of a psychotic disorder.

18You have features of both borderline and anti-social personality disorders. 
Dr Zergiotis says that whilst you have been in custody, you were in a form of remission in the controlled prison environment from drug usage.  She says that you are at a relatively high risk of future reoffending and to reduce that risk, you need a high level of support in the community.  And that is what I have attempted to arrange after you finish the term of imprisonment that I shall impose.

19None of this will make any sense to you, it is legal stuff.  It is submitted to me that I consider your mental health problems under the principles in a case called Verdins.  As I remarked during the course of the plea, I reject that approach except for the problems you are going to have in gaol and probably already have had because of your mental health issues because there is no actual material in the reports that provides the necessary cause or connection between problems that you have and your offending.

20However, she correctly relied on another case of Muldrock v The Queen (2011) 244 CLR 120 to support the proposition that I take into account the matters set out in the various reports.  The prosecutor very helpfully referred me to a case of R vSokaluk [2012] VSCA 167. At paragraph 40, the court considered the case of Muldrock and the part that it plays in a sentencing judge's considerations and I adopt what the court says and at the bottom of p.13, the court says,

"In every case, what is called for is the making of a discretionary decision in light of the circumstances of the individual case, in light of the purposes to be served by the sentencing exercise." 

21And that is what I have attempted to do here.

22I have also considered the issue of parsimony.  That is how long you should spend in gaol.  It should not be forever.  And the issue of rehabilitation and hopefully that is looked at in the justice plan. 

23Taking all those factors into account, in particular your early plea, your age and the issues you have had that I have referred to, and the fact that you are going to need a lot of help when you are released and it seems to me that this at least gives you a chance now.  At some stage, it is up to you. 

24OFFENDER:  It is, yes.

25HIS HONOUR:  People can help you, but basically it is up to you. 

26OFFENDER:  It is, yes.

27HIS HONOUR:  So when I sentence you, I have got to take into account things.  What they call, punishment - well, you understand that ‑ ‑ ‑ 

28OFFENDER:  Yes.

29HIS HONOUR:  General deterrence - that is impose a sentence that might stop other people from doing it; specific deterrence - that is to try and get into your mind you cannot do it again; denunciation - that is what I feel about it.  Well, clearly you cannot go around burning places down and committing armed robberies.  It is very serious.  You could have killed someone in the fire if there had been someone next door or whatever. 

30And protection of the community - I must say it regards a range of matters such as the seriousness of the offending which this is.  Your culpability and your personal circumstances and those of the victims.  I am required to balance the interest of the community and denouncing criminal conduct, the interest of the community to seek to ensure as far as possible offenders are rehabilitated into society, and I have expressed my denunciation of your behaviour.

31Taking all those factors into account and submissions made by both the prosecutor and your counsel and the matters set out in s.5 of the Sentencing Act, I sentence you as follows.

32On the charge of arson, I convict and sentence you to a term of imprisonment of 18 months.

33On the charge of armed robbery, I convict and sentence you to a term of imprisonment of 12 months. 

34They are to be served concurrently.  That means it is a total effective sentence of 18 months.

35Thereafter, you are to be released on a community corrections order which I can give given that the length of that sentence because of - it is an arson charge, I am told.  You must attend at the Shepparton Community Correctional Services within two working days.  You must undergo assessment and treatment for drug abuse or dependency, assessment and treatment for alcohol abuse or dependency.  You must undergo any mental health assessment and treatment.  You must participate in programs relating directly to your offending behaviour and you must participate in the services set out in the justice plan as directed.

36What is the PSD now?

37MR LIVITSANOS:  Sorry, Your Honour, 312.

38MS SWINEY:  Three twelve.

39MR LIVITSANOS:  Not including today.

40HIS HONOUR:  All right.  The 312 days you have already served is to be reckoned as part of the term of imprisonment that I have I just imposed.  So you have got about nine months or so to go ‑ ‑ ‑ 

41OFFENDER:  Yes.

42HIS HONOUR:  ‑ ‑ ‑ if my arithmetic is any good which it usually is not. 

43OFFENDER:  Yes.

44HIS HONOUR:  And then you go on a three-year community corrections order. 

45OFFENDER:  Yes, appreciate that.

46HIS HONOUR:  The important part of that is that the people who were here yesterday want to try and help you.

47OFFENDER:  Yes, they do, yes.

48HIS HONOUR:  So ‑ ‑ ‑ 

49OFFENDER:  They have since I was little, yes.

50HIS HONOUR:  Can I suggest that you continue not using drugs while in gaol?  So that when you get out, you have got a chance ‑ ‑ ‑ 

51OFFENDER:  Yes.

52HIS HONOUR:  ‑ ‑ ‑ and when these people ask you to go to various interviews and assessments and whatever, that you turn up and do it.

53OFFENDER:  Yes.

54HIS HONOUR:  Otherwise, they come back here.

55OFFENDER:  Yes, I understand.

56HIS HONOUR:  And either myself or after the end of April next year, another judge will have to deal with it.

57I declare pursuant to s.6AAA of the Sentencing Act that if you had proceeded to trial and you were convicted by the jury you would have received a sentence in the order of five years with a non-parole period of three years.  Are there any other orders that are sought?

58MR LIVITSANOS:  I do, Your Honour.  Your Honour, I raised yesterday the issue of a 464ZF application, Your Honour, and I will hand that to Your Honour now.  It is in - it is finalised to today's date.  Your Honour, perhaps just to look over, there were two related summary charges.

59HIS HONOUR:  Yes, I had completely forgotten those.

60MR LIVITSANOS:  Your Honour, and that would be these two offences.  These two charges that Your Honour is dealing with were committed whilst the accused was on bail.

61HIS HONOUR:  Yes.

62MR LIVITSANOS: And, Your Honour, that was noted in the opening, Your Honour, the maximum penalty pursuant to s.30B of the Bail Act is 30 penalty units or three months' imprisonment.  So Your Honour can deal with it ‑ ‑ ‑ 

63HIS HONOUR:  In relation to the two summary matters, I impose a sentence on each term of imprisonment of two weeks to be served concurrently with the sentences I have just imposed.

64COUNSEL:  As Your Honour pleases.

65HIS HONOUR:  What did you say was your position on the 464?

66MS SWINEY:  By consent, Your Honour.

67HIS HONOUR:  I am making an order, Mr Cooper, for the taking of a forensic sample.

68OFFENDER:  Yes.

69HIS HONOUR:  Having considered the seriousness of the offending and it not opposed, or by consent, I make the order.  When police come around to take it, if you decide to change your mind and do not consent, they can use reasonable force to enable that procedure to be conducted.  Do you understand that?

70OFFENDER:  I do.

71HIS HONOUR:  All right.  Now, you are going to be asked to sign the community corrections order.  You better make sure you understand it.  Ms Swiney, if you could take it up to him and make sure he understands it. 

72MS SWINEY:  Yes, Your Honour.

73HIS HONOUR:  I am sure you have already been through it with him but - I have not actually referred to what is in it but there is an assessment in which it said you were at risk of high reoffending.  But if you get the supports, something can be done about that.  We better tender that.  Exhibit ‑ ‑ ‑ 

74MR LIVITSANOS:  I have 8, Your Honour.

75#EXHIBIT 8 -   Community corrections assessment report dated 23/10/17.

76HIS HONOUR:  There is the CCO if you would like to take that up, Ms Swiney.  So you understand all that?

77OFFENDER:  I do.

78HIS HONOUR:  Well, I wish you well.

79OFFENDER:  Thank you.

80HIS HONOUR:  You have had a rotten start in life but ‑ ‑ ‑ 

81OFFENDER:  Yes.

82HIS HONOUR:  ‑ ‑ ‑ let us see if you can overcome it.

83OFFENDER:  Yes.

84HIS HONOUR:  And just when you think about committing a crime again, always remember there is a victim.

85OFFENDER:  Yes.

86HIS HONOUR:  This is all about you but if you wave a knife in front of some fish and chip shop owner, how would you like to be that person, serving in a shop and somebody comes in and waves a knife and asks for money?

87OFFENDER:  Yeah.  I understand, yes.

88HIS HONOUR:  You would be pretty scared.

89OFFENDER:  Yes.

90HIS HONOUR:  So think about that as well.

91OFFENDER:  I will.

92HIS HONOUR:  All right.  Nothing else?

93COUNSEL:  No, Your Honour.  

94HIS HONOUR:  You can take Mr Cooper out.  Thanks.  Ten o'clock tomorrow.  Thanks.

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