Director of Public Prosecutions v Cooper

[2014] VCC 1379

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00962

DIRECTOR OF PUBLIC PROSECUTIONS

v

LINDSAY COOPER

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	25 August 2014
CASE MAY BE CITED AS:	DPP v Cooper
MEDIUM NEUTRAL CITATION:	[2014] VCC 1379

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

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APPEARANCES:	Counsel	Solicitors
For The Director	Mr S. Ballet
For the Offender	Ms K. Blair

HIS HONOUR: 

1Lindsay John Cooper, you have pleaded guilty to one charge of armed robbery, one charge of burglary, one charge of theft.  Those crimes carry maximum penalties of 25 years, ten years and ten years respectively.  You are now almost 40 years of age.  You pleaded guilty at a reasonably early opportunity in that you pleaded immediately prior to a contested committal.  I note from the material before me that you claim to have no memory of what occurred, and I can therefore understand why there was an intention to put the matter to a test.

2Having heard you directly today in Koori Court, I accept that the pleas of guilty are accompanied by appropriate remorse, and I think in your particular situation, shame.  You must also get the utilitarian benefit of those pleas of guilty.  Two victims have been spared the anguish of giving evidence either in a committal or at a trial, and obviously as I said, you must get the benefit for that.

3You do have prior convictions, and they go back a fairly long period of time.  Essentially what occurred was that you started getting adult convictions back in 1993 in Western Australia.  You were given at that point in time on 30 April an overall sentence of five years and 11 months imprisonment for an armed robbery, attempted armed robbery and various other offending.  It is a bit difficult to work out what all of that meant in Western Australian terms back then.  But that was your first outing in an adult court, and you received a very significant sentence indeed.

4What occurs from thereon in is that in Western Australia, you were receiving sentences, some of which were committed, some of which were concurrent.  The end result was that even when you were released on periods of parole, and that is almost unascertainable now, you would be returned to custody fairly soon thereafter.  You were diagnosed with schizophrenia.

5What is important is this; that the last sentence you received was on 3 February 2006, where you received 12 months' imprisonment concurrent for burglary.  It would seem from the material that you have now not offended since around about the middle of 2005.  That is, something in excess of nine years.  That is a long period of time to have not offended for somebody in your situation.  If I am a few months out in that calculation, it is of no real importance.

6You do however have prior convictions, albeit of some antiquity, for the very type of offending that I am called upon to sentence you for today.  I have before me a victim impact statement which relates to the armed robbery, and that victim impact statement, I have taken into account.  It indicates why offending of this nature I am about to describe is regarded as serious and attracts serious gaol sentences.

7The circumstances were that you, on what I am told, had gone looking for a former girlfriend and had come across a Mr Wise that you had known when you were children.  You and he were using ice over an extended period of time.  Your mother has told me that you basically disappeared for about three weeks, and I will be coming to that later on.  At around half past three on 29 October 2013, you and Mr Wise went to the Greensborough Plaza shopping centre.  The plan was to steal a handbag from a female shopper while she was unloading shopping into her car.  The summary gets a bit difficult from that point on because it relies almost upon what Mr Wise has had to say and he has been sentenced to different crimes to what you will be.

8In any event, Mr Wise loitered in the area of the car park, trying to find a suitable victim for the handbag snatch.  At that time of the day, there were women, children and elderly shoppers.  He was to signal you when he found an easy target.  Why you had to do it instead of him, I am not too sure.  It makes little difference at this stage, I suspect.

9In any event, at approximately 4 pm, a Melissa Correa walked down the shopping area to the car park.  She was with her three young daughters and was pushing a shopping trolley.  When she got to her car, she put her daughters in the back seat and the shopping into the boot.  She then got into the driver's seat and was about to shut the driver's door when she was suddenly confronted by you holding a 30 centimetre long knife.  You said to her, "Give me your handbag."  She told you that she did not have a handbag with her, but had a bag in the boot which she would give you.  She got out of the car, opened the boot, took the out the bag and gave it to you.  You apparently then ran back to your car holding the bag.  Wise then joined you, and you both got into the car, driving to the exit of the car park while Mr Wise went through the bag.  I understand that that exercise is captured on CCTV footage.

10You then drove out of the car park and headed towards Reservoir.  It is, I interpolate, a serious example of armed robbery and whilst you were obviously clearly affected by ice at the time of it, there was clearly sufficient premeditation to put it in terms of finding an easy target.  On the material before me, I could not sentence on the basis that you were aware that the three children were in the car and the victim impact statement does not give any information as to whether they have been affected by it, or whether indeed they saw what occurred.

11However, even leaving that out of it, it remains a serious example of the crime of armed robbery.  On your way out to Reservoir, Mr Wise took the victim's IPhone and wallet out of her bag.  You stopped the car at a bridge on Plenty Road in Reservoir, over the Darebin Creek, and Mr Wise threw the bag in the creek.  A police officer intercepted the vehicle, he knew Mr Wise, Mr Wise told a false story and you were left to go on your way.

12Around about two hours later, according to Mr Wise I would imagine, you suggested to him that you break into a house.  The three of you went looking for somewhere to break in and settled on a house in Vigeons Road, Reservoir.  A female offender who was with you, who I have been told nothing about, knocked on the door to check that nobody was home.  You apparently then smashed a front window with a rock, and Mr Wise climbed into the house and unlocked the front door.  You then entered the house and various items were stolen which were put into your car.

13At around about 6.40 pm, the female owner of the house returned home from work.  As she drove into the street, she saw Wise and a female offender loading her TV into your car, which was parked in the street.  She drove to the driveway, got out of the car, and asked them what they were doing.  One of them yelled out, 'Hurry up, she is home.  They both got into the car.  You then came out of the house and walked down the driveway straight past her."  You got into the car, she took a photograph of the car, and that is how the car was identified.

14When she went into the house, it had been ransacked, the windows smashed, security and couch damaged, and in the course of the burglary, a TV, an Apple laptop, a DVD player, some expensive jewellery and watches had all been taken.  The total value of the stolen property has been estimated at between $15,000 and $20,000 and though you are not charged with criminal damage, the cost to repair the damage that was caused was $5,000.  There was no victim impact statement in relation to that matter, but a judge does not need a victim statement to understand the sense of invasion that people feel when their properties are broken into in this way.  It leaves them with a sense of vulnerability, and I have no reason to doubt that anything other than that has been the case here.

15When arrested, Wise, as I have indicated, made various admissions and suggestions that this was all your idea - whether that is true or not, I have got no idea.

16You yourself made a "no comment" record of interview, and I have no reason to doubt what you have told people subsequently and told your mother that you have no memory of the offences, and I have already referred to that.

17The co-accused, Mr Wise, was sentenced by His Honour Judge Chettle for a charge of theft insofar as what occurred at the car park was concerned, and burglary.  He was effectively given a total of six and a half months, followed by a 300 hour community corrections order.  The major difference between the two of you is that the charge of armed robbery in the circumstances described here is a far more serious offence than simply stealing somebody's handbag out of a shopping trolley.  Insofar as the burglary is concerned, and obviously there has to be some parity, but I think the armed robbery takes you out of that situation.  A significant custodial order is the only available option. 

18You have now been on remand for 283 days.  Tendered on your behalf on the plea have been reports from Dr Ball, Dr Ong, and the Victorian Aboriginal Health service.  You did a lot of time in gaol in Western Australia.  You would be no sooner out than you would be back in.  It is clear from the material that during that period of time, which commenced when you were about 18 or 19, and I am not even talking about youth justice dispositions, you were diagnosed with a serious schizophrenic disorder.  It is very much to your credit that you were able, with the circumstances I am about to describe, come back to Victoria and not re-offend for something in the order of nine years.

19I am going to go through your history in a little detail.  It was gone through in more detail in court, and I do not know that repeating these in open court assists anybody really but I have to make some indication of it.

20The first thing is that you appeared in Koori Court, which you have never done before.  I can simply say this, that the elders were very impressed with your openness.  Graham Austin, or Wilkie as we know him, has known you since you were very young.  His concern was that when we started Koori Court, and that is the sentencing conversation with the two elders, that there was a real possibility that you would be very quiet and would say nothing and that it would be something - a waste of time.  Are counsel are aware, he spoke to you very briefly, prior to it commencing and he himself was impressed by the way you were able to participate.

21You yourself have said that it is the longest that you have ever spoken to a group of people.  I note from the material before me that you have a real fear of public places, and a fear of groups of people and it has been I think, and you have indicated, a turning point for you in terms of what can be done.

22Your remorse was evident and your desire to rehabilitate was evident.  Present during the course of that conversation, your mother, your sister, Mr Fitzgerald from the Aboriginal health service, all of whom spoke on your behalf and indicated the circumstances that you had been in.

23Your history is the not uncommon tragic one that we deal with in Koori Court.  Your mother was a member of the stolen generation, taken from her family at a very early age.  Indeed, apparently, one of her siblings had drowned and despite the fact that her family lived in a house and one of the few owned houses in that Aboriginal community, she was taken away.

24Your parents separated when you were about six.  This was living in Victoria.  You have a number of siblings and step-siblings, and some of whom you have not as yet met.  You did not handle the separation of your parents very well at all.  You became difficult at a very young age, and you certainly could not be held responsible for that.  You were put into voluntary placements and ultimately went to a placement in Geelong.  That placement, without denigrating people who have no chance to defend themselves, would appear to have been in your situation something of a disaster.  There was abuse involved in it.  You yourself desisted in running away.

25Ultimately, you began offending at around about the age of nine and were what would have been described 30 years ago, I suppose, as an uncontrollable child.  That is certainly understandable in your situation.  At around about the age of 14, your mother went to Western Australia and you, after a brief sojourn and offending in South Australia, were there with her.  At that point in time, you were offending on a regular basis and over a decade of incarceration followed.

26You began using illicit substances at a very early age.  You are, because of your mental illness, I have no doubt a very poor historian.  I have tried to make sense of a number of these matters.  What I do know is that from a very early age, you were in Baltara, you were in Allambee, all of which places are known to me and were hardly conducive to a young Aboriginal boy blending into a society.

27You have a stepfather who originally you could not bear, but who you now are able to get on well with.  He is presently, as I understand it, in gaol in Western Australia.  You had a de facto relationship.  You had been engaged with the Victorian Aboriginal Health Service.  You, in the times leading up to this offending, had been relatively compliant with medication.  It is a bit hard to work out what you had been doing insofar as illicit substances are concerned.  In one situation you seemed to be saying that you had been using them on a regular basis in the preceding two years, and in another situation, you seemed to say that was not the case.

28But in any event, upon meeting up with Mr Wise,  your use of ice became very heavy indeed.  We discussed during the sentencing conversation the effects of ice.  It is the scourge of the general community at the present time, and is certainly the scourge, from my own personal knowledge of this, of the Aboriginal community. 

29You had been living in a tent at the back of your mother's premises for about a year leading up to this offending.  It was the view of people that for you to be in independent accommodation would be very helpful.  You had clearly been unwell for a significant period of time and the reports indicate that you were unable to deal with the noise, the close proximity of people and it was becoming unpleasant.  It was in those circumstances that you met Mr Wise, and it was in those circumstances that your mother told me that you simply just disappeared for three weeks.  It is sad to know that the probabilities were that accommodation was going to be available to you within a couple of weeks.  However, none of that transpired and this serious offending occurred.

30Over more recent times, while you have been custody, you have been visited by Dr Ball and spoken to by Dr Ong.  Each of those has indicated that you were heavily medicated and on any basis unwell.  Your counsel has told me that you were very unwell and on the material that I have seen, I think that has to be the case.  That was the situation up until quite recently, it would seem, that is simply in July a month and a half or so ago.

31Since then you have - whilst it is not complete, stabilised on medication.  It was clear to me, speaking to you, that you are certainly not unintelligent, that you have a degree of insight into the problems that you have, although you might not be able to expressly describe it all.  You know that you cannot use ice and you know that your offending was wrong.  You have expressed a desire to rehabilitate, you have expressed a desire to get into programs within the gaol and avail yourself of what is available.  I accept that you have a strong cultural awareness and as Aunty Helga said to you, that is I think going to be your main outlet from all this.

32You have now been on methadone for a period of time so that you have been able to avoid using any illicit substances in the custodial environment, and you are aware that you must have in place a supportive situation and protective aspects before your ultimate release.  Upon your ultimate release, you will have the support of the health service.  You are able to go and live with your mother in the short term at least, while one hopes that other accommodation can be made available.  It is to be hoped that you learn from the courses that you will now be able to undertake as a sentenced prisoner, and that you remember the conversations that you had with the elders today and use that as a determination to rehabilitate yourself and not re-offend. 

33Your desire is to be a strong support for your family and that is a most laudable one.  Insofar as Verdins is concerned, the material suggests that you will do gaol harder than would a person who did not have your circumstances and I accept that.  There is no suggestion that it applies to moral culpability.  You may not have been thinking particularly straight but the fact of the matter remains that you have known for a very long time the sort of penalties that are involved in an armed robbery and that is what we have to deal with here.

34I think the prospects of your rehabilitation, if you can maintain your present attitude, are very good and the risk of you re-offending is entirely dependent upkn those prospects.  If you return to ice, I have got no doubt that you will end up in exactly the same position, probably doing a lot more but there is not much I can do about that, and simply trust that the experiences that you have had through this last period of time - that you are determined for that not to occur.

35You have accepted the responsibility for your offending, and I take all those matters into account.  You are fortunate, you may not understand a lot of what I am saying to you here, but a lot of people with schizophrenia are very cold and people do not like them.  You are in a situation where that is not the case with you.  You are warm.  People obviously support you and have come along today.

36You have a real chance despite the crippling illness that you from time to time have.  You have depot medication and other medication as well, at the moment you are on Seroquel.  You, I accept, have an understanding that you must comply with the medication. 

37Accordingly, what you have to be sentenced for, and I understand that they on the same day, is a serious example of armed robbery and what can be described I suppose as a proper burglary where the people came home and a lot of goods were stolen.  This was not just grabbing a computer through a window, it was a properly burglary.  In those circumstances, there has to be a significant custodial sentence, which reflects general deterrence as well as specific deterrence and there must also be appropriate denunciation and an appropriate penalty.

38But doing the best I can on all those matters,  on Charge 1 of armed robbery, you are sentenced to be imprisoned for a period of three years.  On Charge 2 of burglary, 12 months, and on Charge 3 of theft, six months.  I direct that six months of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1, which gives an effective head sentence of three and a half years.

39I direct you to serve the minimum term of two years before becoming eligible for parole and I direct that 283 days be reckoned as having been served under this sentence.  Just so you - and Ms Blair will explain this to you - clearly understand the benefits of your having pleaded guilty in these circumstances, had you pleaded not guilty and this matter gone through a trial, I would have given you five years with a minimum term of three and a half.  So your conduct since your arrest has saved you at least a year and a half in gaol.  Any other orders I have to make?  Ms Blair, that all makes sense to you?

40MS BLAIR:  It does, Your Honour.  You have already made the disposal orders and ‑ ‑ ‑ 

41HIS HONOUR:  Did I?  Yes.

42MS BLAIR:  Thank you.

43HIS HONOUR:  All right.  And if you could - I thank counsel for their assistance in this matter and if you could make it clear to him that insofar as the community's concerned, particularly Uncle Wilkie, who has known him for a long time, have great hopes for him having spoken to him today.  All right?

44MS BLAIR:  All right.  I will do, Your Honour.

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