Director of Public Prosecutions v Cooper and Hay

[2017] VCC 820

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00186
CR-17-00187

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER COOPER
FARLY HAY

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	23 May 2017
DATE OF SENTENCE:	9 June 2017
CASE MAY BE CITED AS:	DPP v Cooper and Hay
MEDIUM NEUTRAL CITATION:	[2017] VCC 820

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Aggravated Burglary – Theft – False Imprisonment – Obtaining Property by Deception – Possession of a Precursor – Negligently Dealing with Proceeds of Crime – Possession of a Silencer – Possession of Ammunition Cartridge

Legislation Cited:  Sentencing Act 1991 (Vic)
Cases Cited:

Sentence:Hay: Total effective sentence of 6 years 10 months’ imprisonment and fine of 50 penalty units.

Cooper: Total effective sentence of 6 years 9 months’ imprisonment and a fine of 40 penalty units.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F. Cockram	Office of Public Prosecutions
For the Offender Cooper	Mr G. Casement	James Dowsley & Associates
For the Offender Hay	Mr N. Leslie	Theo Magazis
Mr G. Casement

1HER HONOUR:  Peter Stuart Cooper and Farly Ira Hay, you have each pleaded guilty to one charge of aggravated burglary, one charge of theft, and two charges of false imprisonment. 

2In addition, you, Mr Hay, have pleaded guilty to five charges of obtaining property by deception and one charge of being in possession of a precursor chemical without authorisation or lawful excuse.  You have also consented to the uplifting of a summary charge of committing an indictable offence, that of aggravated burglary while on bail, and have pleaded guilty to that summary charge. 

3You, Mr Cooper, have also pleaded guilty to one charge of negligently dealing with the proceeds of crime, one charge of being a prohibited person in possession of a silencer, and one charge of possessing cartridge ammunition without licence or permit.

4The circumstances of the offending were set out in full in the Prosecution Opening on the Plea, accompanied by witness statements and a DVD of the relevant CCTV footage.  I sentence you on the basis of the facts contained in that Opening. Those facts may be briefly summarised.

5Charges 1 through 4 concern your joint conduct, along with that of an as yet unidentified co‑offender, who was known to you both, on 24 March 2016, against three victims, unknown to you, who were sharing a house in Abbottsford.

6At around 8.25am, the three of you approached the house, looked in the windows, and loitered around.  You, Mr Cooper, were wearing one black glove, while you, Mr Hay, were carrying a metal pole in a black bag.  Your co‑offender, who was armed with a steering wheel lock, jumped the rear fence of the property, entered the house via an unlocked rear door, and then opened the front door for you both.  You both then entered the house.  This is the subject of Charge 1.

7The three of you went upstairs.  Two of the victims, Robert Grbac and Corey Sullivan, were upstairs in their respective bedrooms.  The third victim, Sylvan Dorney, was not at home. Mr Grbac was getting ready for work, while Mr Sullivan was asleep.  You, Mr Cooper, and you, Mr Hay, forced Mr Grbac to sit on his bed.  This is the commencement of Charge 3.

8When he screamed out to Mr Sullivan, you, Mr Hay, threatened Mr Grbac by putting the end of a metal pole, which was partially wrapped in a towel, to his temple, and making reference to using a gun.  Mr Grbac believed that it was a gun and continued to scream. 

9You, Mr Hay, put a pillow against Mr Grbac's stomach and then put the metal pole against the pillow, saying something to Mr Grbac in a very threatening voice.  He believed he was going to die and pleaded with you, Mr Hay, not to kill him.  Mr Grbac continued to yell out to Mr Sullivan for help.  To silence him, you, Mr Cooper, put your hands around his neck and choked him.  One of you shut the bedroom window. 

10Mr Sullivan awoke to the third co‑offender, who had a steering wheel lock tucked into the rear of his pants, in his room stealing his mobile phone.  That co‑offender then left the third victim's bedroom. Mr Sullivan entered Mr Grbac's bedroom in response to his screams for help and saw him being choked by you, Mr Cooper.  Mr Sullivan was forced by you, Mr Hay, to sit on the bed next to Mr Grbac, and both victims were told not to move.  This is the commencement of Charge 4.

11You then each made demands about the location of items, such as drugs, money, jewellery, and a safe. You, Mr Hay, were the most threatening and demanding, and did most of the talking. You, Mr Hay, told the two victims that if they call the police, you would come back and kill them. You, Mr Hay, directed Mr Cooper to watch the two victims while you left the room to go through the other rooms with the third co‑offender. 

12You, Mr Hay, and you, Mr Cooper, made references to being members of the Hell's Angels motorcycle club and to taking the two victims to the club house to get it sorted, causing fear in Mr Grbac and Mr Sullivan.  You both forced the two victims to remain on the bed in Mr Grbac's room for about 20 minutes while their home was being ransacked and their property stolen. 

13When leaving the premises, you each told the two victims not to move and that if they rang police you would come back for them.  Together with the third co‑offender, you stole property belonging to the three victims with a total value of about $5,500.  The items included laptops, sunglasses, wallets, jewellery, passports, iPhones, bank and credit cards, and luggage bags.  The theft of these items is the subject of Charge 2. 

14On 24 and 25 March 2016, you, Mr Hay, used Mr Sullivan's stolen bank card on five occasions to make various purchases.  This conduct is the subject of Charges 8, 9, 10, 11, and 12.

15On 7 April 2016, police executed a search warrant at your residence, Mr Hay, and located items worn by you on the day of the offending, along with 369.3 grams of a prescribed precursor, namely iodine.  This is the subject of Charge 13.

16On 31 March 2016, police executed a search warrant at your residence, Mr Cooper, and located a number of items, including passports stolen from the victims' premises in the names of Sarah Martin and Peter Hall, which is the subject of Charge 5; a firearms silencer, which is the subject of Charge 6; and a box of assorted ammunition including shotgun cartridges, which is the subject of Charge 7.

17The impact of the offending on the two victims present in the house on that day has been considerable. Corey Sullivan provided a Victim Impact Statement, dated 15 May 2017, which was not read out in court at his request.  In it, he stated that he was affected physically, emotionally, financially, and socially by the home invasion.  He was unable to return to the premises, unable to feel safe on his own at night, and for months had nightmares and trouble sleeping.  He remains anxious in groups on public transport and when seeing any kind of aggression.  He had to spend money on replacing stolen items.  He had to move away from the area where he once felt safe and away from his friends, and had to spend money on locks, et cetera.  He is afraid of returning to that area and of running into the two of you.

18Robert Grbac provided a Victim Impact Statement, dated 24 March 2017, in which he stated that after the home invasion he was depressed, anxious, and withdrawn.  He had to move out immediately from the premises and was highly anxious when he went back once to collect his things.  He still checks that doors are locked at his home and even in other people's homes.  He does not sleep anywhere that is not secured by alarms or deadbolts. 

19He becomes worried if a stranger looks at him, and if that happens on public transport he gets off before his stop.  He finds any displays of conflict in public stressful and takes a detour to avoid them.  He incurred financial loss through having to replace stolen items and for travelling to attend therapy.  He has thought about the home invasion most days in the year up to the date of his Statement, and he is angry that he still thinks about it so much.

20Each of you resolved your matter prior to the committal date of 6 February 2017. 

21You, Mr Hay, have been in custody since your arrest on 6 April 2016, and will have served 399 days in custody, up to but not including 9 June 2017. 

22You, Mr Cooper, have been in custody since your arrest on 31 March 2016 and will have served 435 days in custody, up to but not including 9 June 2017.

23Ancillary orders sought in relation to each of you include disposal orders concerning clothing, footwear, and a passport, and a steering lock.  In relation to you, Mr Cooper, an additional forfeiture order includes two additional items: (a) a silencer; and (b) 2 .22 calibre rifle cartridges.  Through your counsel, you have each indicated that you do not oppose the making of the orders, and I will therefore make them today.  In relation to you, Mr Hay, an additional disposal order is sought for the precursor chemical and I will make that order as well.

24I turn first to you, Mr Hay.  Your personal circumstances may be briefly summarised as follows.  You are 40 years old, were educated to Year 9, and left school to start a diesel mechanic apprenticeship.  You then worked on a tobacco farm as a panel beater, and with your father, who is a retired butcher, as a meat boner.  You were in a relationship for a few years from the age of 19, but it did not last. 

25You suffered extensive orthopaedic injuries in a car accident in 2007 and required extensive pain medication, which include opioids.  You developed an addiction to that medication.  You have a long history of drug and alcohol abuse, dating back to your mid-teens.  You have a young son, aged 17 months, with your current partner, Carly, and hope to have more children.  You would like to make a living from motorcycle restoration. 

26You admitted your prior convictions, which relevantly include convictions for theft in 2007; burglary in early 2014 and again in September 2014; and handling stolen goods in 2012 and 2014.  In early 2014, you were sentenced to one months' imprisonment for burglary, which you committed whilst on bail.  In September 2014, you were sentenced to 12 months' imprisonment with a non‑parole period of four months for dishonesty offenses, including burglary and theft committed whilst on bail. 

27Whilst in custody, you obtained clean urine samples on 20 December 2016 and 26 April 2017, and participated in a substance abuse program and relapse prevention program.  You have also obtained certificates from the Kangan Institute in business, cleaning operations, food safety hygiene, and general education.

28A neuropsychological report of Dr Lauren Fitzpatrick, dated 2 May 2017, noted your drinking which began at age 13 and increased over the years, until you were drinking heavily by 2011.  The report noted that you had been heavily overusing pain medication since 2007, as well as using heroin, cocaine, and ice. 

29Dr Fitzpatrick found that you were of extremely low to borderline intellectual functioning.  However, she concluded that most of your cognitive functions are well within expected levels and there was no evidence of an acquired brain injury, but that any subtle impairments in cognitive function may be due to previous substance abuse. 

30Having perused your previous medical records, she considered that your primary risk factor for offending is your drug and alcohol abuse issues.  She recommended that upon release, you engage in counselling to prevent further substance abuse and engage in a structured program to assist you engage in education or work.

31In his oral submissions on the plea, your counsel conceded that general deterrence will loom large in sentencing, but suggested that specific deterrence could be moderated because of your lack of prior violent offending.  In addition, your plea demonstrates that you take responsibility for your actions, and has utilitarian value in obviating the need for a trial and avoiding distress to the victims, which might be occasioned by revisiting the events of that morning.  Further, you have been busy on remand and have undertaken a number of courses.  You now have a young son and a further reason to avoid reoffending. 

32Finally, your counsel submitted that in all the circumstances, a sentence of time served would satisfy all the relevant sentencing principles.  Alternatively, it was submitted that any further term of imprisonment be made subject to a moderated non‑parole period.  The Crown submitted that the sentencing principles of general and specific deterrence, denunciation, and just punishment, loom large in this case in relation to the conduct the subjects of Charges 1 through to 4. 

33You, Mr Hay, were in possession of the weapon, being the pole, believed by the victims to be a gun.  You, Mr Hay, carried the weapon, used it against the body, temple, and stomach of Mr Grbac; and along with Mr Cooper, you, Mr Hay, used threatening language and made references to biker gangs, threatening to take the victims to the clubhouse.  The prosecution submitted that your offending was a particularly serious example of the offence of aggravated burglary and that of unlawful imprisonment and assault.  You, Mr Hay, committed the aggravated burglary whilst on bail.

34I now turn to your personal circumstances, Mr Cooper.  These were set out in full in the psychological report of Matthew Staios, dated 1 September 2016, and I summarise these briefly.  You are 51 years old, and were raised in Melbourne with your two sisters in difficult circumstances.  Your family was poor, your father was an alcoholic, and you spent some time in Government care.  While in care, you were sexually abused. 

35You resumed living in difficult conditions with your parents and moved schools frequently.  You behaved poorly at school, and were suspended a number of times.  You left school after completing Year 10.  You started using drugs as a teenager, and were abusing cannabis and amphetamines daily.  You abstained from drug use for two years from the age of 19 whilst you were in the Northern Territory. 

36You completed an apprenticeship as a fitter and turner and worked as a driller for a number of years.  However, you continued to be addicted to heroin and methamphetamine.  You married your wife at age 23 and you had two children together.  You and your wife abused drugs together. 

37You tried running your own drilling business, but it failed due to your drug use and other issues.  You and your wife separated in around 2000.  In 2004, you were seriously injured in a motorbike accident and have suffered chronic pain since then.  You have also been on disability support benefits since that time.

38In 2004, your wife suffered an aneurysm, and you had to give permission to switch off her life support.  Around that time, you were diagnosed with depression, but your symptoms have been well controlled with antidepressants since then, although your condition persists. You have since formed a new relationship with a woman who was pregnant with your child, but lost the baby as a result of a car accident which occurred while you were in custody. Mr Staios considered that you have some maladaptive personality traits, including a submissive nature and difficulty asserting yourself against dominant negative peer influence. He found that you are experiencing depressive symptoms due to the current matters.  Mr Staios assessed you as meeting the criteria for a diagnosis of opioid and stimulant abuse disorder in early remission in a controlled environment.

39You told Mr Staios that you attributed your offending primarily to the influence of negative peers whilst intoxicated and in a compromised state of mind.  Mr Staios concluded that you are at moderate risk of reoffending, due to your history of past offending, symptoms of depression, antisocial peers, substance abuse, maladaptive personality traits and maladaptive coping mechanisms.   

40He stated that a further period of imprisonment could exacerbate your psychological vulnerabilities and risk of harm, and may negatively impact on your ability to reintegrate into society in the long run.  You admitted your prior convictions, which, relevantly, include intentionally causing serious injury in 2009, intentionally causing injury in 2002, possessing ammunition in 2008 and 2009, several dishonesty offences from 1991, 2001 and 2005, and dealing with suspected proceeds of crime in 2009. 

41In addition to your conviction for intentionally causing serious injury, which occurred as a result of an altercation you had with a former housemate of your daughter, you were sentenced to five years' imprisonment. The Crown submitted that, as you were complicit with Mr Hay in the commission of the offences the subject of Charges 1-4, the application of appropriate sentencing considerations would result in a sentence involving a further term of imprisonment.

42Your counsel relied on a number of matters in mitigation.  Firstly, your early plea of guilty has utilitarian value and has spared the victims the need to re-live the traumatic events of that night.  Secondly, your plea demonstrates that you have accepted responsibility for your offending, and you have admitted, through your counsel, the drug use which surrounded your offending.

43Thirdly, while imprisoned, you have abstained from drug use, sought counselling, and participated in a number of programs, as mentioned above.  Fourthly, you have insight into the impact that your drug use and difficult personality have had on your offending, and engaged fully with the assessment conducted by Mr Staios. 

44Fifthly, you have some reasonable prospects of rehabilitation, in that you have sought treatment, are at an age where one might expect such offending to cease, and you have a lot to lose outside of prison.  Finally, engaging in psychological treatment, pain management, drug and alcohol counselling and having case management would reduce your risk of recidivism in the future.

45I note that whilst in prison, you have completed a number of courses, including those relating to workplace safety, workplace hygiene, cleaning, access to vocational pathways, business operations, IT, substance use and relapse prevention. Your counsel also tendered negative urine screens provided in September and October 2016, and February and March 2017. 

46I accept that, due to your ongoing depression, time spent in custody will be more burdensome for you than for a person not suffering from this condition. 

47In relation to each of you, the prosecution submitted that a sentence involving a further term of imprisonment was appropriate in relation to Charges 1-4. 

48In sentencing each of you for the offending covered by Charges 1-4, I have taken care to avoid any risk of double punishment in respect of the aggravated burglary and false imprisonment and assault charges, as well as in respect of the aggravated burglary and theft charges.

49I turn first to the offence of aggravated burglary, which carries a maximum penalty of 25 years' imprisonment.  In assessing the gravity of this offence, I take into account that you each committed the offence with the intention of stealing goods.  This was not a spontaneous encounter.  It was a home invasion, committed in company against strangers.   

50The home invasion was planned, in the sense that you and your third co-offender surveilled the domestic premise for some time immediately prior to the offending.  The home invasion was committed in the morning on a weekday, before work hours, when there was a high likelihood of people being at home.

51I acknowledge that in the hierarchy of seriousness for offences of this type, where the most serious cases involve confrontational aggravated burglaries and the least serious involves spontaneous encounters, your offending lies squarely within the mid-range in terms of seriousness.  In terms of your respective roles, Mr Hay and Mr Cooper, there is little to distinguish between you. 

52I note that you each have relevant prior offending for dishonesty offences, and that you, Mr Hay, have two more relevant prior convictions for burglary, both in 2014, the most recent of which resulted in a 12-month sentence of imprisonment imposed in September 2014.  In addition, you, Mr Hay, committed the aggravated burglary subject to these charges whilst on bail. 

53I turn to the offence of unlawful imprisonment and assault, which carries a maximum penalty of ten years' imprisonment, and which concerns the conduct of each of you once inside the victim's home.  This offending took place over 20 minutes or so, although the victim Mr Sullivan was involved for slightly less time than Mr Grbac, as he was asleep in his bedroom when Mr Grbac was first detained by you both. 

54Your conduct was terrifying to both victims.  Mr Grbac in particular had what he believed to be a gun put to his head and his stomach, and was also choked around the neck.  He believed he was going to die, and begged you, Mr Hay, not to kill him.  Mr Sullivan was woken from his sleep by Mr Grbac's cries for help, and entered Mr Grbac's room, where he saw him being choked. 

55You both detained the two victims in Mr Grbac's room for some 20 minutes, and you told the victims before you left not to move, and threatened that if they call police, you would come back for them.  Both victims were traumatised by your offending and continue to suffer the emotional effects of that offending long after the events themselves. 

56In terms of gravity, this was a very serious example of the offence.  The victims identified you, Mr Hay, as acting as the ringleader inside the house, and it was you, Mr Hay, who held the weapon to Mr Grbac's head and stomach and referred to using a gun.  However, you, Mr Cooper were present with Mr Hay at these times, and you choked Mr Grbac around the neck with both hands.  For these reasons, I find you equally responsible for the acts constituting the false imprisonment and assault. 

57On the material before me, I note that apart from the taking of responsibility reflected in the pleas of guilty, there has been no remorse expressed by either of you for your offending and its impact on the victims. 

58You, Mr Hay, are 40 years old and have recently served a four-month sentence in 2014 for burglary and other dishonesty offences. Your offending conduct represents a serious escalation in your offending.  Notwithstanding the programs that you have completed in custody, your prospects of rehabilitation must be viewed as guarded.

59You, Mr Cooper, are 51 years old and have a long criminal history, including a five-year sentence imposed in 2009 for intentionally causing serious injury. Notwithstanding the programs you have completed in custody, your prospects of rehabilitation must also be viewed as guarded. 

60In relation to the offences of aggravated burglary, theft, and false imprisonment and assault, while taking care to avoid double punishment, the sentence imposed must denounce and adequately punish this serious offending, provide general and specific deterrence to you both, and reflect the importance of protection of the community from this type of home invasion.  

61When sentencing each of you on Charges 1-4 and on the remaining charges each of you have pleaded to, I take into the account the principles of totality, proportionality and parity.  I also take into account your pleas of guilty, the personal circumstances referred to above, and the submissions made by your counsel. 

62Mr Cooper, would you please stand.  On Charge 1, aggravated burglary, you are convicted and sentenced to a term of imprisonment of five years.  This is the base sentence.  On Charge 3, unlawful imprisonment and assault of Robert Grbac, you are convicted and sentenced to two years' imprisonment.  On Charge 4, unlawful imprisonment and assault of Corey Sullivan, you are convicted and sentenced to one year's imprisonment.  

63On Charge 2, theft, you are convicted and sentenced to six months' imprisonment.  On Charge 5, negligently dealing with the proceeds of crime, you are convicted and sentenced to three months' imprisonment.  On Charge 6, being a prohibited person possessing a silencer, you are convicted and sentenced to six months' imprisonment.             

64On Charge 7, possessing cartridge ammunition whilst not being the holder of a licence, I note that you have prior convictions in 2008 and 2009 for similar offending, and you are convicted and fined 40 penalty units.  

65I turn to the issue of cumulation.  I direct that 12 months of the sentence on Charge 3, six months of the sentence on Charge 4, and three months of the sentence on Charge 6 be served cumulatively upon the sentence imposed on Charge 1.  The total effective sentence is that of six years and nine months.  I impose a non-parole period of four years and six months.  I declare presentence detention of 435 days, not including today, and direct that this be recorded in the court record as time served and deducted administratively. 

66I indicate, pursuant to section 6AAA of the Sentencing Act[1], that but for your plea of guilty, I would have imposed a total effective sentence of ten years’ imprisonment with a non-parole period of seven years.

[1] 1991 (Vic).

67Mr Hay, would you please stand.  On Charge 1, aggravated burglary, you are convicted and sentenced to a term of imprisonment of five years.  This is the base sentence.  On Charge 3, unlawful imprisonment and assault of Robert Grbac, you are convicted and sentenced to two years' imprisonment.  On Charge 4, unlawful imprisonment and assault of Corey Sullivan, you are convicted and sentenced to one year's imprisonment. 

68On Charge 2, theft, you are convicted and sentenced to six months' imprisonment.  On each of Charges 8, 9, 10, 11, and 12, of obtaining property by deception, you are convicted and sentenced to an aggregate of three months' imprisonment.  On Charge 13, possessing a precursor chemical, you are convicted and fined 50 penalty units.  On the summary charge of commit an indictable offence on bail, you are convicted and sentenced to three months' imprisonment.

69I turn to the issue of cumulation.  I direct that 12 months of the sentence on Charge 3, six months of the sentence on Charge 4, two months of the sentence on each of Charges 8, 10, and 12, and two months of the sentence on the uplifted summary charge be served cumulatively upon the sentence served on Charge 1.  The total effective sentence is that of six years and ten months, with a non‑parole period of four years and seven months.  I declare 399 days of presentence detention, not including today, and direct that this be entered in the court record and deducted administratively.

70I indicate, pursuant to section 6AAA of the Sentencing Act[2], that but for your plea of guilty I would have imposed a sentence of ten years' imprisonment with a non‑parole period of seven years.

[2] 1991 (Vic).

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