Director of Public Prosecutions v Cooper
[2022] VCC 1477
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00730
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAI COOPER |
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JUDGE: | HIS HONOUR JUDGE D SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 November 2021; 3 March 2022; 28 July 2022 | |
DATE OF SENTENCE: | 8 September 2022 | |
CASE MAY BE CITED AS: | DPP v Cooper | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1477 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Armed Robbery
Legislation Cited: Sentencing Act 1991
Cases Cited:R v Verdins (2007) 16 VR 269
Sentence: 2 days’ imprisonment
18-month Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Roper | Solicitor for Office of Public Prosecutions |
| For the Accused | Ms M. Greener | Gleeson Lawyers |
HIS HONOUR:
Introduction
1Jai Cooper, on 29 November 2021, you pleaded guilty before me to one charge of armed robbery, which carries a maximum penalty of 25 years’ imprisonment.
Circumstances of offending
2The circumstances of your offending were set out in the Summary of Prosecution Opening on Plea dated 18 August 2021, Exhibit 1 at your plea hearing.
3Your offending can be briefly summarised.
4At about 11.55 pm on Thursday, 1 October 2020, your victim, Shane Myers, was at the West Richmond Railway Station, where he boarded the first carriage of a Hurstbridge-bound train. That train arrived at Greensborough Station at approximately 12.28 am on Friday, 2 October 2020. When the train arrived, you were waiting on platform 1. You had a brief conversation with Protective Services Officers (PSOs), where you told them that you were travelling to the next stop at Montmorency to go home. You then boarded the first carriage of the Hurstbridge-bound train occupied by Mr Myers and sat next to him. The train then departed the station.
5A few minutes later, the train arrived at Montmorency Station, where both Mr Myers and you alighted from the train. You both walked through the station carpark, with you walking in front of Mr Myers and looking over your shoulder back at him. You then abruptly turned around to face Mr Myers and pulled out what he described as a large hunting or Bowie knife from the left-hand side of your vest. You raised the knife at Mr Myers and said words to the effect of 'I’m doing it tough mate, hand over your wallet and your phone, cunt'. You then stepped towards Mr Myers and waved the knife at him. Out of fear, Mr Myers took his Samsung Galaxy mobile phone and his brown leather wallet from his pocket and threw them on the ground in front of you. You then picked up the phone and wallet, fumbling with the cards that had fallen out of the wallet, and you then said 'alright that's all I needed', and walked away from the victim. Your conduct in this regard forms the basis of the armed robbery charge.
6After waiting until you had reached the station entrance, Mr Myers walked over to platform 1 and eventually made contact with a PSO to report the matter, who then requested a police unit attend at the Montmorency Station.
7During this time, you had walked through the station and crossed over a ramp to the northern side of the station, when you observed Mr Myers speaking to someone over the duress speaker. You panicked, began to run, and fell, dropping a knife scabbard in the process. You then yelled out something at Mr Myers before running down the pathway and leaving the scene. As you did so, you dropped a $5 note in a nearby street.
8Subsequent police attendance and enquiries resulted in both the knife scabbard and the $5 note being located. CCTV footage was also obtained from both Greensborough and Montmorency Railway Stations from the relevant time periods, capturing the offending and leading to your identification.
9Subsequent investigations also revealed that you had used Mr Myers' Facebook account on the night of the armed robbery, where a message was sent with the words 'Oi I'm bleeding bad I got no phone'.
10You were subsequently arrested on Tuesday 13 October 2020 at the address where you were then residing in Williams Road, Briar Hill. A police search of the unit revealed clothing worn by you as seen on the CCTV footage, together with your Optus mobile phone and a hunting knife. Whilst you provided a 'no comment' interview to police, in the video recorded interview you revealed to police your left sleeve tattoo consistent with the tattoo observed on the offender shown in the CCTV footage and described by Mr Myers.
11Subsequent investigations with regard to the mobile phone seized from you revealed text messages between you and an unknown person, showing photos of an injury to your face, and messages indicating that you had injured yourself on 2 October 2020 when you were running from something.
12Having been arrested on 13 October 2020, you were released on bail after serving two days in custody.
13Your matter resolved to a plea of guilty prior to the conduct of any contested committal proceeding and, accordingly, no witnesses have been cross-examined in relation to this matter. Mr Roper, who appeared for the prosecution at your plea hearing and subsequent hearings, conceded that your plea of guilty was entered at the very earliest stage in proceedings.
14I was informed at your plea hearing that the victim, Mr Myers, had been approached with regard to the making of a Victim Impact Statement, but had declined to do so. In any event, it can be reasonably assumed that the crime to which he was subjected would have been a frightening experience for him, being confronted by a stranger at night holding a knife in a menacing manner and making unwarranted demands for his personal property.
Nature and Gravity of Your Offending and your Level of Culpability
15The gravity of the crime of armed robbery is of course reflected in the statutory maximum penalty of 25 years' imprisonment. In your case, I accept that your offending was probably fairly opportunistic in that you had previously informed the PSOs that you were travelling to Montmorency Station, and you did indeed disembark at that station.
16However, you had no legitimate purpose for carrying a dangerous weapon with you. Whilst you did not initially it seems pursue or follow your victim, at some point you turned around and confronted him, essentially wielding the knife to facilitate the robbery. After producing the knife and making the demand, you subsequently moved towards the victim whilst holding the knife, showing, in my view, a degree of purpose on your part.
17Your victim was alone and isolated in the carpark of a suburban train station and, in that sense, was clearly a vulnerable target for your offending. I accept that in addition to the inherent violence associated with the offence of armed robbery, you did not physically make contact with your victim, and the offence appears to have been relatively short-lived.
18In all the circumstances, whilst this is clearly a concerning example of an armed robbery given the circumstances I have described, in my view, this is certainly not a serious or upper end example of the offence of armed robbery.
19At your plea hearing on 29 November 2021, and notwithstanding the somewhat vague sentiments expressed by forensic psychologist, Laura Fleming, at paragraph 99 of her report dated 27 September 2021, Exhibit B at your plea hearing, your counsel ultimately did not submit that your moral culpability for your offending was in any way reduced through impaired mental functioning pursuant to the Verdins[1] principles. Whilst it seems clear to me that at the time of your offending, you were subject to various psychosocial stressors, including increased financial difficulty due to reduced employment, loneliness due to your father being in custody, drinking alcohol to excess and stopping your medication with regards to depression and anxiety, in my view, your level of responsibility and culpability for your offending remains significant.
[1] R v Verdins (2007) 16 VR 269.
Personal Circumstances
20You are 29 years of age and you fall to be sentenced as a person with a complete absence of any prior criminal history, a matter of some significance to the sentencing exercise. At the time of your offending, you were 27.
21Your background was set out in some detail in the report from Ms Fleming, to which I have earlier referred. Clearly, you have experienced significant trauma, grief and loss in your childhood and adolescence, most notably the sudden death of your mother from a brain aneurism when you were 10 years old. You then resided with your father until he was incarcerated when you were aged 14. Following this, you resided with your maternal grandparents for one year before being placed in a house on your own through government housing when your grandparents could no longer cope with your behaviour. You were effectively therefore left to your own devices as an adolescent.
22You have reported that at the age of 17 your father moved in with you upon his release from custody, however he was again incarcerated for a number of years for subsequent offending, and only returned in January 2021.
23According to Ms Fleming, you have attempted to improve your circumstances through engagement in work. In that regard, after completing Year 10, you commenced, but did not complete, an electrical apprenticeship, and you have been employed as a security guard from the age of 23, although your licence to work in this industry was revoked due to the current charge.
24According to Ms Fleming, you have experienced persistent depression throughout your life. You have been prescribed antidepressants since you were 16 years of age. A letter from Dr McColl from the Rosanna Medical Group dated 19 April 2021, Exhibit E at your plea hearing, refers to your longstanding anxiety and depression, for which you have been prescribed pharmacotherapy.
25You reported to Ms Fleming a history of overuse of alcohol, with you using at least 750ml of Vodka daily in October 2020, the time period of your offending, and that you would drink until you lost consciousness.
26You reported to Ms Fleming a number of psychosocial difficulties at the time of the offending – financial difficulty due to your work as a security guard being reduced drastically due to the COVID‑19 pandemic, loneliness due to living alone as your father was again in custody, your frustration at not having an intimate relationship, and using alcohol to excess. You ceased your use of antidepressant medication without oversight from your general practitioner due to financial stressors, and you referred to the presence of associates in your life at the time whom you described as the 'wrong crowd'. You informed Ms Fleming that you carried the knife at the time of the offending out of concern for your associates' behaviour.
27According to Ms Fleming, at the time of your offending, you met the diagnostic criteria for alcohol use disorder and persistent depressive disorder. Ms Fleming refers to your offending occurring in the context of intoxication and your struggles with the exacerbation of your depressive symptomology.[2]
[2]Psychological Report of Laura Fleming dated 27 September 2021 at [99].
28Your offending took place in the early hours of Friday 2 October 2020, almost two years ago now. You first appeared before me when you were arraigned on 29 November 2021, some ten months ago. You have been on bail for this matter throughout this period. On 3 March 2022, I deferred sentence essentially to enable you to show your rehabilitative bona fides with regards to your progress in the community. To say that your progress since November last year has been slow would be an understatement. As you are well aware, you have appeared before me on a number of occasions, where I have expressed my concerns with regards to your progress in the community and the absence of any cogent rehabilitative material to support your counsel's submission with regards to the appropriateness of a Community Correction Order. However, it does seem to me that whilst your progress has been slow, your overall circumstances have improved and stabilised. Whilst I have been informed that there are a number of outstanding police charges, these all predate your arraignment before me. You have continued to live with your father, who gave evidence before me on 28 July 2022, where he made clear that he remains supportive of you, and in his view you have been making good progress. Your father referred to your employment. In that regard, I have now received and considered a number of pay sheets from Construct Personnel verifying, it seems, fairly regular work on your part in the construction area. Significantly, given that you had ceased medication without oversight from your general practitioner at the time of the offending, you have, it seems, resumed and continued with your pharmacotherapy with regards to your depression and anxiety, as evidenced from the letter from your general practitioner, Dr McColl, dated 26 August 2022. Dr McColl refers to you being alcohol free for the past few months. In that regard, you gave evidence before me on 28 July 2022 where you maintained that you had been abstinent from alcohol for some time. You have also, it seems, maintained contact with alcohol and drug therapeutic counsellor, Tim Marshall, from Banyule Community Health, as evidenced by previous letters provided to the Court, the most recent being on 7 September 2022. Significantly, I was not informed of any pending police charges which postdate the deferral of sentence period before me.
Sentencing Factors
29The Sentencing Act 1991 requires me to have regard to various factors when formulating an appropriate sentence in your case. I have already referred to the maximum penalty for the offence of armed robbery, the nature and seriousness of your offending and your responsibility for it, and your previous character and recent circumstances.
30I have also had regard to current sentencing practices, noting that offending of this nature has frequently resulted in significant sentences of imprisonment in appropriate circumstances. Clearly, denunciation and general deterrence are important sentencing purposes for offending of this type. Given your absence of criminal history, and plea of guilty, specific deterrence is not a primary sentencing purpose.
31Your plea of guilty early in proceedings warrants a sentencing discount for utilitarian reasons. Your plea of guilty represents an acknowledgment of criminal responsibility, and a willingness to facilitate the course of justice. Your victim was not cross-examined in relation to this matter, and the community and the Court have been spared the costs and delays associated with a criminal trial. Particularly given the significant impacts of COVID‑19 on the delays experienced in this Court, there is a need for an increased sentencing discount given your early plea of guilty. This is a matter of considerable significance in the sentencing synthesis.
32Whilst I noted in your plea hearing some concerns with regards to your level of insight in relation to the seriousness of your offending, I am prepared to make a further mitigatory allowance on the basis of your remorse. According to Ms Fleming, you articulated empathy for your victim. In your letter to the Court dated 9 September 2021, Exhibit C at your plea hearing, you expressed your remorse for your 'irresponsible and dangerous actions'. Mr Khoury, in his character reference, Exhibit F, refers to you being extremely remorseful for your actions. In combination with your early plea, I am satisfied that you are remorseful, warranting a further sentencing discount.
33In light of the opinions expressed by psychologist, Laura Fleming, in her two reports, I am satisfied that a further mitigatory allowance is warranted due to Verdins principles 5 and 6 – that is, I am satisfied that in light of your psychological fragilities, a sentence of imprisonment would weigh more heavily on you than it would on a person in normal health, and there is a serious risk of imprisonment having a significant adverse effect on your mental health. This is, in my view, particularly so, given the onerous conditions in the custodial setting at present, due to the impacts of COVID‑19 and the resulting restrictions on freedom of movement, access to employment, access to therapeutic activities, and access to face-to-face visits.
34According to Ms Fleming, you represent a low risk of recidivism. Given your absence of prior criminality, your absence of subsequent criminality, and your generally improved circumstances since being bailed, notwithstanding that you currently have pending matters before the courts, I am of the view that your prospects of rehabilitation are at least reasonable, though you clearly have challenges ahead with regards to specialist interventions regarding your various issues that I have described.
Disposition
35
Your counsel submitted in all the circumstances that an appropriately crafted Community Correction Order would be appropriate. The prosecution submitted that a combined sentence of imprisonment and a Community Correction Order would appropriately reflect the gravity of the offending whilst taking into account the matters in mitigation. Noting that you have served two days in custody by way of pre-sentence detention, the prosecution did not make submissions as to the adequacy or otherwise of this period of imprisonment. According to the
pre-sentence report from Corrections dated 14 February 2022, you have been found suitable with reservations for a Community Correction Order. Concerns were raised by the author of this report with regards to your lack of understanding of the seriousness of being placed on a Community Correction Order given your consistent pattern of being difficult to contact, noting that you missed an earlier assessment appointment with Corrections.
36Having considered all of the relevant matters, I remain somewhat troubled with your inability, it seems to me, to meaningfully grasp the gravity of your legal predicament. It is unsurprising, in my view, that Corrections have reservations with regard to your suitability for a Community Correction Order.
37However, after giving this matter careful consideration, and particularly in relation to the recent material provided on your behalf, I have determined that the various sentencing factors, purposes and principles can be met through the imposition of a combination sentence of imprisonment and a Community Correction Order, not exceeding the time spent on remand by you.
38Accordingly, on the charge of armed robbery, you are convicted and sentenced to two days' imprisonment. Pursuant to s18(4) of the Sentencing Act 1991, I declare a period of two days has been served in that regard.
39In addition, I order you to undergo and complete a Community Correction Order. The order will operate for a period of 18 months. As is the case with regards to all Community Correction Orders, there are a series of mandatory terms that apply to this Order and they are as follows.
(a) You must not commit another offence for which you could be imprisoned during the time that the Order is in force.
(b) You must comply with any obligation or requirement prescribed.
(c) You must report to and receive visits from Corrections.
(d) You must report to the Community Correction Centre nearest you within two clear working days of the Order starting. That location of that Community Correction Centre, given the restrictions imposed by COVID-19, will be the South Morang Community Correctional Centre at 545 McDonald's Road, South Morang.
(e) You must report to and receive visits from The Secretary or his or her delegate.
(f) You must report to the Community Corrections Centre within two clear working days of this Order starting.
(g) You must let a Community Corrections Officer know within two clear working days of you changing your address or job.
(h) You must not leave Victoria without first getting permission to do so.
(i) You must obey all lawful instructions from and directions of The Secretary or his or her delegate.
40In addition to the mandatory terms, you will be subject to the following extra conditions.
(a) You must perform 150 hours of unpaid work over the 18-month period of the Order.
(b) You must be under the supervision of a Community Corrections Officer for the duration of the Order.
(c) You must undergo assessment and treatment, including testing for alcohol abuse or dependency as directed by the Regional Manager.
(d) You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility, as directed by the Regional Manager.
(e) You must comply with judicial monitoring. That is, you must reappear at Court for a review of your compliance with this Order as directed by the Court. In that regard, you must attend for your first review pursuant to judicial monitoring before me on 25 October 2022 at 10 am at the Melbourne County Court.
41I will return to the Community Correction Order momentarily.
42I will also make a disposal order regarding the hunting knife sheath and a compensation order in the amount of $230 regarding the mobile phone, both applications not being opposed by you.
43Finally, pursuant to s6AAA of the Sentencing Act 1991, had you pleaded not guilty but been found guilty at trial, I would have imposed a sentence of two years' imprisonment with a non-parole period of 16 months.
44Before I deal with the signing of the Community Correction Order, firstly Mr Roper, any ambiguities, or have I missed anything with regards to the sentencing orders?
45MR ROPER: No, Your Honour. It is very clear.
46HIS HONOUR: Thank you. Ms Greener, any issues?
47MS GREENER: No, Your Honour.
48HIS HONOUR: Mr Cooper, to be clear, this is an Order that will start today. You will not be returning to prison at this time. You have served the time that I have declared so you will be released on this Community Correction Order to start immediately. If you consent to the Order, the only way you can do that is if you provide informed consent, which means you need to understand what is involved in the Order and what happens if you breach the Order. I have read out the conditions to you and they will be on a document which will make its way back to you for signing in a moment, but I want to inform you of this. If, during the period of the Order, you fail to comply with the Order without reasonable excuse, by way of example, if you commit another offence punishable by jail, or you do not comply with any of these conditions - you do not do the unpaid work, you do not turn up to appointments, you move address and do not tell Corrections, you go interstate without permission - you can be brought back to Court before me for breaching this Community Correction Order.
49The maximum penalty for the charge of breaching a Community Correction Order is three months' imprisonment, but more importantly for you, I also have the capacity to resentence you for the charge of armed robbery if you come back before me on a breach. Be under no illusions, Mr Cooper, if you breach my Order and you come back before me, unless you have an exceedingly good excuse, you can expect a term of imprisonment on resentencing. Do you understand what I have just said to you?
50ACCUSED: Yeah, yes, I understand, Your Honour.
51HIS HONOUR: Knowing all of that, do you agree to comply with this Order?
52ACCUSED: Yeah, yes, I agree. Thank you, Your Honour.
53HIS HONOUR: All right, thank you. The document will make its way back to you now for signing. Ms Greener, would you accompany Mr Davine to the back of the Court. If you wish to speak with your client just to ensure that he understands, that is fine.
54MS GREENER: Yes, Your Honour.
55HIS HONOUR: Mr Cooper, I am going to leave the Bench in a moment. I want to say something to you. You will be seeing me in October for judicial monitoring on this Order and I will continue to bring you back before me for so long as I feel that you are in need of judicial monitoring on the Order. What that means is this, that each time we have a judicial monitoring hearing I will get a report from Corrections about your progress. I expect those reports to be positive. You will need to really – and I am being blunt with you – pull your finger out, so to speak, and make a good start on this Order. This matter has caused me some anxiety and I want you to realise just how close you were to receiving a jail term. Do you understand?
56ACCUSED: Yes, I understand, Your Honour.
57HIS HONOUR: I will expect this Order to be complied with to the letter. If there are problems, I will be, to the extent that I am able, urging the prosecution to bring the matter back on another application. So there will be no mucking around on this order, Mr Cooper. You need to start well and keep going well and I will monitor you closely, do you understand?
58ACCUSED: Yes, I understand, Your Honour.
59HIS HONOUR: Yes, thank you. Adjourn the Court please.
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