Director of Public Prosecutions v Cooper
[2024] VCC 1386
•5 September 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 24-00492
CR 24-00501
CR 24-00502
CR 24-00503
CR 24-00504
CR 24-00782
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL COOPER |
---
JUDGE: | HIS HONOUR JUDGE CARMODY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 August 2024 |
DATE OF SENTENCE: | 5 September 2024 |
CASE MAY BE CITED AS: | DPP v Cooper |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1386 |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW – Sentence
Catchwords: one-man crime wave - nine burglaries on commercial properties, one home invasion, 14 theft charges; four firearm related charges; and an incident of ramming a police vehicle – Verdins – Limbs 5 & 6 enlivened – Bugmy’s principles apply
Legislation Cited: Sentencing Act 1991; s5(4C)
Cases Cited:Boulton v The Queen [2014] VSCA 342; Bugmy v The Queen [2013] HCA 37; 249 CLR 571; R v Verdins [2007] VSCA 102; 16 VR 240
Sentence:Convicted and sentenced to 22 months’ imprisonment with a two-year Community Corrections Order.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms G. Suhren (Plea) Ms K. Farrell (Sentence) | Office of Public Prosecutions |
For the Accused | Mr N. Rolfe | Nicholas Rolfe Criminal Law |
HIS HONOUR:
1Daniel Cooper, on 29 August 2024 at the County Court of Victoria sitting here at Melbourne, you pleaded guilty to charges on three separate indictments and some related summary charges. The first, on Indictment No.C2316220.A:
·Charge 1, home invasion, that is 25 years' maximum;
·Charge 2, intentionally damage property, 10 years' maximum; and
·Charge 3, intentionally damage property, 10 years' maximum.
2The second on Indictment No.C2400292, you pleaded guilty to the following charges:
·Charge 1, burglary;
·Charge 2, theft;
·Charge 3, intentionally damage property;
·Charge 4, burglary;
·Charge 5, theft;
·Charge 6, theft;
·Charge 7, aggravated offence of to expose an emergency worker to risk by driving, that has a 20 year maximum;
·Charge 8, burglary;
·Charge 9, theft;
·Charge 10, burglary;
·Charge 11, theft;
·Charge 12, burglary;
·Charge 13, theft;
·Charge 14, theft;
·Charge 15, burglary;
·Charge 16, theft;
·Charge 17, burglary;
·Charge 18, theft;
·Charge 19, burglary;
·Charge 20, theft;
·Chage 21, theft of firearms, that has a 15 year maximum;
·Charge 22, possession trafficable quantity of firearms.
·Charge 23, theft; and
·Charge 24, reckless conduct endanger serious injury which has a maximum of five years. All the other charges on there have a maximum of 10 years.
3There were three related summary charges to that indictment. You have consented to those being heard here and you have pleaded guilty to the following:
·Summary Charge 7, a fail to stop charge which has a six month maximum;
·Summary Charge 15, fail to stop charge, six months' maximum; and
·Summary Charge 16, unlicensed driving which has 60 penalty units as a maximum.
4The third Indictment No.P11093241, that was an eight charge indictment:
·Charge 1, a charge of burglary;
·Charge 2, a charge of theft;
·Charge 3, handling stolen goods which has a 15 year maximum;
·Charge 4, possession of handgun, that is a seven year maximum;
·Charge 5, possession of drug of dependence, in this case that is a fine;
·Charge 7, recklessly cause injury, a five year maximum;
·Charge 7, theft; and
·Charge 8, intentionally damage property. Each of those have maximums of 10 years.
5On this indictment there were two related summary charges. You also consented to these charges being heard by this court and pleaded guilty to the following:
·Summary Charge 7, possession of ammunition; and
·Summary Charge 14, wilful damage.
6You have a prior criminal history of two matters in the Moama Magistrate's Court where financial penalties were imposed and are of little relevance to the total offending before this court.
7You have spent, on my calculation, 473 days in custody awaiting finalisation of all of these charges.
The circumstances of your offending
8The learned prosecutor read into the record of the court and tendered a Summary of Prosecution Opening on Plea dated 26 August 2024. It was an extensive summary and is attached to these Reasons for Sentence and adopted by me as a fair representation of your criminal activity in these matters. It was Exhibit “A” on the plea.
9Between 9 June 2022 and your arrest on 21 May 2023, you became a
one-man crime wave in and around the Echuca area. In total there were nine burglaries on commercial properties, one home invasion, 14 theft charges; four firearm related charges; and an incident of ramming a police vehicle. In total you offended on 14 separate occasions.10I suspect the reason you were not apprehended earlier is that you had no prior criminal history and were an unknown person to the investigating officers. I note that you had seven different co-offenders, most of whom were well-known to the police. I assess that you were the follower rather than the instigator for most of this offending. So much is clear from a close reading of the summary tendered by the prosecutor.
11The most serious offending in your case is the home invasion charge, the theft of firearms and the related charges, and the ramming of the police vehicle incident are most serious ones. That is not to discount the effect of your burglary and theft charges.
Personal circumstances
12You are now 27 years of age. You were born in Echuca but raised in Cummeragunja Mission, which is near Barmah in northern Victoria. You are an Aboriginal man. You have three sisters. Your parents are separated, your mother now deceased. None of your family have a criminal history.
13At age 17 you moved away from Cummeragunja and partnered with Chantelle, who is the mother of your four children, now aged eight, seven, five and four years of age.
14Your children live with your father and one of your sisters, as I understand it. They live at Cummeragunja.
15Your mother passed away in July 2023, shortly after you were remanded for these offences, and you were unable to attend to her funeral or in what is known as the 'sorry business' concerning your mother's passing.
16Your former partner, Chantelle, has moved away and re-partnered with another person and has a new child with that person. She has ceased contact with your children.
17You attended school to Year 10 level in Echuca. You cannot read and you cannot write. Your only employment was for a period of approximately 12 months where you worked for the Aboriginal Lands Council when you were 16-17 years of age.
18Ms Cidoni has assessed you on two separate occasions. She diagnosed you as suffering from substance use disorder, both of stimulants and cannabis, and ADHD. She assessed your risk of violent re-offending as moderate. In her opinion, you require drug rehabilitation and mental health treatment to increase your chances of rehabilitation, or alternatively reduce your chances of reoffending.
19Dr Tang, a neuropsychologist, has assessed you on two separate occasions. Her reports were Exhibits 4 and 5 in the plea. After extensive testing of you, she has assessed your full scale IQ score as 51, which places you in the extremely low range where 0.1 per cent of the people are equal to you.
20As mentioned, you have spent 473 days on remand for your first term of imprisonment. I have no doubt that has been a very salutary lesson to you. You are currently in Port Philip Prison. At Cummeragunja you have four children, your father and sisters waiting for your return.
21Your grandmother attended court in Bendigo and again in Melbourne, first of all on the day of the plea and she is here again today. She supports you. Upon release from prison, you have the opportunity to live with her in Bendigo, where you can access the services to reinforce your rehabilitation.
Sentencing considerations
22The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions, and the protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it, and your personal circumstances.
23I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, that you, as an offender, are rehabilitated and reintegrated into society.
24I am also required to take into account current sentencing practices in fixing your sentence. That enquiry is directed particularly, but not exhaustively, to the kinds of sentences imposed in comparable cases, and I have had a look at the statistics for those offences.
25I have considered the statistics and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed they are from one another.
26I am mindful of the provisions of the Sentencing Act 1991 and in particular s 5(4C) which directs a sentencing court to consider whether a community corrections order can be achieved for the purpose for which this sentence is to be imposed. I also reviewed the case of Boulton[1] in considering if a community corrections order would be appropriate in your case, and as you know I have had you assessed for a community corrections order. You have been assessed as suitable. Of course, that is not the end of the matter.
[1] [2014] VSCA 342
27You have pleaded guilty to these charges. Your plea was indicated at an early stage. I note you conducted a committal for the home invasion charge but have subsequently pleaded guilty to that charge and the related summary charges as well.
28Your pleas of guilty have the utilitarian value in allowing for the orderly and effective administration of justice. There is a certainty of outcome and the resolution of the substantive issues raised by your offending. Your plea also allows for the preservation of court and police resources to deal with other matters, and your plea vindicates the public confidence in the legal process set up to protect the community.
29Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on these occasions. Your plea also recognises you are willing to facilitate the course of justice in the community, and I accept that your plea of guilty to these charges indicates and demonstrates remorse on your part. As I said, other than the home invasion charges, that group of charges, you have indicated your plea of guilty at a very early stage, which has relieved those victims of your criminality to relive their experiences and of course give evidence in either a committal or a trial.
30You have made full and frank admissions to the police about your part in each of these offences. In some of the charges, your admissions to the police form the evidence upon which you have been prosecuted. An example of the value of your cooperation and the pleas of guilty is, for example, in Indictment No.C2316220.A and in particular the charge of home invasion, the charges against your co-accused, Nikara Edwards, were discontinued due to the lack of evidence against him. He made a no comment record of interview and now he is walking free for the major part of that offending.
31The charges of home invasion and aggravated offence of intentionally expose an emergency worker to risk by driving are subject to the limiting, what I describe as a limiting sentencing, to not allow a combination sentence of a CCO and an imprisonment, unless the prisoner establishes substantial and compelling circumstances that are exceptional and rare and justify not making a head sentence and a non-parole sentence in this case.
32I am satisfied in your case that there are substantial and compelling circumstances that are exceptional and rare. The matters I have taken into account are:
a)Your upbringing at Cummeragunja Mission. Now by that I am not making a criticism of people who are brought up on that Mission, I am just saying 'your circumstances' about it.
b)Your extremely low IQ of 51;
c)Your mental health problems, in particular ADHD;
d)Your offending starts at the age of 26, like a rash, and effectively no prior criminal history. That is a very unusual circumstances; and
e)The burden of imprisonment upon you has been significant and will continue to be, but in particular your mother's death when you were unable to go to her funeral and other matters that you have to do on country. Also combining that with your low IQ and upbringing, you will lack the coping skills in prison life.
33The prosecution accepts, as I do, that Verdins[2] limbs 5 and 6 apply to you, as does the principles set out in Bugmy's[3] case.
[2] [2007] VSCA 102; 16 VR 240
[3] [2013] HCA 37
34Your overall offending is serious. I accept your offending for the burglaries and thefts on commercial premises were not sophisticated or well planned. You were the helper, not the instigator of that offending. You were the lesser role in the home invasion charge and guilty by your physical presence, rather than your co-offender Edwards, who was the protagonist and who got away without punishment.
35The firearms theft charge was the idea of your co‑accused Aweinge, who knew the target and that the guns were there. She lived over the road. The concern is that the guns have not been recovered and have been on-sold to get money for drugs. I note that Ms Aweinge received a combined sentence for that offending and other offending she did with you.
36The car ramming incident is better described as a panic reaction offence by you, to get away from the police. Fortunately, no one was injured as a result of your offending.
37I assess your prospects of rehabilitation as fair. If you can remain drug free and follow the treatment set out in the CCO part of this sentence, because I am going to give you a CCO, your future can be a lawful life. If you breach the CCO you come back to be re-sentenced on that charge, which will be home invasion. So as I have read out to you, that is the most significant charge in terms of maximum penalties.
38The principle of totality has a part to play in the considerations of your overall sentence. I have cumulated some of the sentences in the separate indictments and combined them with a CCO, to reinforce your rehabilitation. The combination sentence satisfies the sentencing principles of general and specific deterrence, just punishment, rehabilitation of you the offender, and the protection of the community.
39Would you stand please.
40Counsel, I am going to go through the sentences by indictment, so when you note down, so it's in the order of the indictments will be C2316220.A. The next one I will deal with will be C2400292 and the third one will be P11093241. That is just so you can keep tabs on what I am sentencing as I go along.
Indictment No.C2316220.A
41On the charge of home invasion, you are convicted and sentenced to 10 months' imprisonment. That is the base sentence for this indictment; together with a two year community corrections order with the following conditions:
a)That you are to be supervised;
b)That you undergo drug treatment and rehabilitation;
c)Alcohol treatment and rehabilitation;
d)Mental health treatment and rehabilitation; and
e)Offence reduction programs.
42Your CCO will commence upon the expiration of your total sentences..
43In Charge 2, intentionally damage property, you are convicted and sentenced to six months.
44In respect of Charge 3, intentionally damage property, you are convicted and sentenced to 6 months.
45In respect of that indictment, the total sentence is 10 months' imprisonment, the total prison time.
Indictment No.C2400292, this is the 24 charge indictment with three attached related summary charges.
46In respect of Charge 1, burglary, you are convicted and sentenced to six months.
47In respect of Charge 2, theft, you are convicted and sentenced to three months.
48In respect of Charge 3, intentionally damage property, you are convicted and sentenced to six months.
49In respect of Charge 4, burglary, you are convicted and sentenced to six months.
50Charge 5, theft, you are convicted and sentenced to three months.
51Charge 6, theft, you are convicted and sentenced to three months.
52Charge 7, aggravated activity in exposing emergency worker charge, you are convicted and sentenced to six months' imprisonment. That is the base sentence for this indictment.
53Charge 8, burglary, you are convicted and sentenced to six months.
54Charge 9, theft, you are convicted and sentenced to three months.
55Charge 10, burglary, you are convicted and sentenced to six months.
56Charge 11, theft, you are convicted and sentenced to three months.
57Charge 12, burglary, you are convicted and sentenced to six months.
58Charge 13, theft, you are convicted and sentenced to three months.
59Charge 14, theft, you are convicted and sentenced to three months.
60Charge 15, burglary, you are convicted and sentenced to six months.
61Charge 16, theft, you are convicted and sentenced to three months.
62Charge 17, burglary, you are convicted and sentenced to six months.
63Charge 18, theft, you are convicted and sentenced to three months.
64Charge 19, burglary, you are convicted and sentenced to six months.
65Charge 20, theft, you are convicted and sentenced to three months.
66Charge 21, theft of firearms, you are convicted and sentenced to six months.
67Charge 22, possession of trafficable quantity of firearms, you are convicted and sentenced to three months.
68Charge 23, theft, you are convicted and sentenced to three months.
69Charge 24, reckless conduct endangering serious injury, you are convicted and sentenced to one month.
70In relation to the related summary charges, Charges 7, fail to stop charge, you are convicted and sentenced to one month.
71Charge 15, another charge of fail to stop at direction of police, you are convicted and sentenced to one month.
72Charge 16, unlicensed driving, you are convicted and fined $100.
73Now on this indictment, the cumulation for those charges are as I said, Charge 7 is the base sentence which is six months; cumulated upon that charge are the following: from Charge 1, one month; from Charge 3, one month; from Charge 4, one month; Charge 8, one month; Charge 10, one month; Charge 12, 1 month; Charge 15, one month; Charge 17, one month; Charge 19, one month; Charge 21, one month. That, on my calculations, a total of 16 months' imprisonment.
74I will come back to the total cumulations at the end.
Finally, Indictment No.P11093241
75On Charge 1, burglary, you are convicted and sentenced to four months. That is the base sentence for this indictment.
76Charge 2, theft, you are convicted and sentenced to three months.
77Charge 3, handle stolen goods, you are convicted and sentenced to four months.
78Charge 4, possess a handgun, you are convicted and sentenced to two months.
79Charge 5, possess a drug of dependence, you are convicted and fined $100.
80Charge 6, recklessly cause injury, you are convicted and sentenced to one month.
81Charge 7, theft, you are convicted and sentenced to three months' imprisonment.
82Charge 8, intentionally damage property, you are convicted and sentenced to four months' imprisonment.
83There are two related summary charges.
84Charge 7, possession of ammunition, you are convicted and fined $100. In respect of wilful damage, convicted and sentenced to one month imprisonment.
85The cumulation in respect of this indictment is as follows. The base sentence is four months in Charge 1. To that is to be cumulated one month from Charge 3; and one month from Charge 8. That is a total effective sentence of that indictment of six months.
86Now the cumulation between the three indictments is as follows.
87I order that nine months of the sentence from Indictment No.C2400292 and three months of the sentence from Indictment No.P11093241 be served cumulatively on each other and on the sentence of 10 months in Indictment No.C2316220.A. That is a total effective sentence of 22 months' imprisonment.
88When you finish that 22 months you have the two year CCO following it on Charge 1 from the first indictment I read out.
89I declare that you have served 473 days pre‑sentence detention in respect of that 22 month sentence.
90That pursuant to s6AAA of the Sentencing Act, but for your pleas of guilty to all of these charges, I would have sentenced you to four years and three months' imprisonment with a two year and nine month non-parole period.
91On Charge 7 in Indictment No.C2400292, all licences are cancelled, and you are disqualified for the minimum period of 24 months from today, 24 months.
92Now, was there a disposal and ‑ ‑ ‑
93MS FARRELL: Yes, Your Honour. There was a forfeiture order for various items.
94HIS HONOUR: Yes.
95MS FARRELL: There was a disposal order for cannabis.
96HIS HONOUR: Yes.
97MS FARRELL: Then a specific firearm forfeiture order.
98HIS HONOUR: Yes. So have you sent those along? Has someone sent them along?
99MS FARRELL: Yes, I believe they have and they were not opposed, as I understood it, by defence.
100MR ROLFE: They are not opposed, Your Honour.
101HIS HONOUR: Yes. Well I will make those orders. Now can I ask can you just one, check the arithmetic and then check the cumulations.
102MR ROLFE: Yes. (To offender) You can take a seat while this happens.
103MS FARRELL: My calculations have it adding up correctly, Your Honour, to
22 months and two years CCO.104HIS HONOUR: They do, yes, thank you.
105MR ROLFE: As do mine, Your Honour.
106HIS HONOUR: Yes, thank you. Mr Rolfe, I will just have that corrections order handed to you and if you could take it down to your client and he can sign, if he consents to it and signs it, I'll ‑ ‑ ‑
107MR ROLFE: Thank you, Your Honour. Excuse my back, Your Honour.
108HIS HONOUR: Yes. No, it's fine. Mr Cooper, I am going to have a couple of copies of this made, this order for the barristers and the like, but one for you so that when you get back to your grandma's place in Bendigo, which is going to be your first port of call, that you hang that up inside the cupboard where you got your clothes, so that every day when you open your door to change your clothes, you know get into your clothes and get about your day, you have got a reminder about this order.
109I want you to understand, I really do want you to understand how serious this order is for you, this CCO. It is your chance to get back to where you were when you were 25. That is the first thing. You have got those kids to look after with your dad and your sister. But if you breach the order, this is what I want to warn you about.
110If you breach the order what happens is, you come back here to be sentenced again on the home invasion charge. Now as I said to you, that carries a 25-year maximum and at the time if you come back, you have only served 10 months of the term on that, okay. So it is sort of like walking up to the wrong end of a shotgun if you breach this order. Are you clear about that?
111OFFENDER: Yes, Your Honour.
112HIS HONOUR: Yes. Is there anything further?
113MS FARRELL: No, Your Honour.
114MR ROLFE: No, Your Honour.
115HIS HONOUR: Yes, thank you. Can you please on, well first of all, Ms Rolfe, thank you for your assistance in this matter. (Indistinct words) been brought together, not a simple task and not a simple process of presenting Mr Cooper's case, so thanks. If you could pass on to Ms Suhren, if that's the way to pronounce her name, thank her very much for her assistance on the day in question and your assistance today.
116MS FARRELL: Yes, Your Honour.
117HIS HONOUR: Thank you. Mr Cooper, it's up to you now. You are going to have to pull up when you get outside and live a straight life and you honour your grandmother's support.
118Remove the prisoner.
‑ ‑ ‑
0
2
0