Director of Public Prosecutions v Cousins
[2024] VCC 1906
•26 November 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. 23-01388
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v JOSHUA COUSINS |
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JUDGE: | HER HONOUR JUDGE CARLIN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 November 2024 | |
DATE OF SENTENCE: | 26 November 2024 | |
CASE MAY BE CITED AS: | DPP v Cousins | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1906 | |
REASONS FOR SENTENCE
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Subject:Criminal law
Catchwords: Causing injury intentionally – robbery – supermarket worker punched in the eye during robbery.
Legislation Cited: Sentencing Act 1991
Cases Cited:Worboyes v The Queen [2021] VSCA 169; R v Verdins & Ors [2007] VSCA 102; Nguyen v The King [2023] 210.
Sentence: Aggregate sentence of 8 months imprisonment followed by a 12-month Community Correction Order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms F. Holmes | Office of Public Prosecutions |
| For the Accused | Ms B. Proud | Victoria Legal Aid |
HER HONOUR:
Introduction[1]
[1]Summary based on the agreed facts set out in the Summary of Prosecution Opening and marked as Exhibit A.
1.Joshua Cousins, just before 6 pm on 2 February 2023 you and two other males drove to the Altona Gate Shopping Centre. While your friends waited outside, you entered the Coles supermarket with a shopping trolley which you proceeded to load up with items until it was full. You then attempted to push the full trolley out of the one-way entrance but were approached by a store duty manager who had heard a loud bang. You told him you were just shopping but his suspicions were aroused. When a bottle of olive oil dropped from your trolley and smashed on the ground another duty manager, Mark Frankland, approached. You were calm and compliant and reassured the two duty managers that you were going to pay for the groceries before heading back into the store with the trolley.
2.Clearly this was a lie. Soon after that conversation you attempted to leave again without paying but the two duty managers saw you. They walked up to you when you were past the cash registers but still inside the store. Mr Frankland grabbed hold of the trolley, and you called him a 'fucking cunt' before punching him to his face with your right hand, striking his left eye. I will return to Mr Frankland's injuries shortly but suffice to say he felt immense pain and was immediately blinded in his left eye which allowed you to escape with the trolley.
3.Shopping centre CCTV captured you and your two friends pushing the trolley back to the car where you and one of your friends transferred all the items into the car and then drove away.
4.You were subsequently identified from the CCTV footage by police and arrested at your then home in Werribee on 22 February 2023. You made a no comment record of interview and were charged with intentionally cause serious injury, recklessly cause serious injury, and theft and remanded. You spent 36 days in custody until you were released on bail on 29 March 2023.
5.There was a short, contested committal on 28 June 2023 with two witnesses cross-examined, being the informant and a physician from the Victorian Institute of Forensic Medicine. The focus of the cross-examination was the seriousness of the injuries sustained by Mr Frankland. You pleaded not guilty and were committed to this court on the original charges. Then followed negotiations between your lawyers and the prosecution in an attempt to resolve the matter, with you eventually pleading guilty on 20 February 2024 to one charge of intentionally cause injury and one charge of robbery on the basis that you neither intended nor foresaw the probability that your punch would cause serious injury.
6.Your plea in mitigation proceeded before me on 21 November 2024 and it now falls to me to sentence you for your conduct. Your counsel, Ms Proud, submitted that a Community Correction Order was appropriate and within range whereas the prosecutor, Ms Holmes, submitted that a term of imprisonment was called for, albeit it could be combined with a Community Correction Order.
7.In determining your sentence, the law requires me to have regard to a variety of factors which often pull in different directions. Some tend towards leniency, and some point the other way. No one factor automatically prevails over any other. Rather, I must have regard to them all and give each the weight it deserves to arrive at a just sentence.
Your personal circumstances
8.Turning first to your personal circumstances which were outlined in defence submissions and the psychological report of Mr Simon Candlish. Mr Candlish consulted with you in-person on three occasions, for a total of two hours and 15 minutes and also administered a psychometric test called the Personality Assessment Inventory.
9.You are 37 years of age. You grew up in a 'very-loving, very-caring' home with your mother, father and younger sister. Both of your parents were gainfully employed, and you acknowledge that you were 'treated very well' although you say you were also constantly criticised. Your parents separated for approximately two years when you were 15 years of age, which had a 'big impact' on you. You also told Mr Candlish that both your parents regularly consumed alcohol and that your father would 'carry on' when intoxicated.
10.Despite your comfortable upbringing, you did experience a number of traumatic events early in life. When you were seven or eight years old, you were sexually assaulted by an older man at Government House, your father’s then place of employment. Then, when you were about 15 years old, you witnessed a suicide attempt by your father who was, at that time, psychotic.
11.You moved schools in Year 7 as a result of bullying. You describe this experience as a 'turning point', changing you into someone who was rebellious and defensive. You attended school until Year 11 and then worked as an apprentice plasterer until your mid-20s. You also worked as a security guard, delivery driver and apprentice electrician before starting on a Disability Support Pension for mental health reasons at age 29.
12.You were in a long-term relationship with a woman named Lucy between the ages of 18 and 29. You have been in a relationship with your current partner, Tiani, since November 2023 and on 12 October 2024 welcomed your first child together. Tiani and your son, whose name is George, live at a residential rehabilitation service for women with children in Preston.
13.During your teens and early 20s, you lived either with your parents or the family of your ex-partner, Lucy. When you separated from Lucy in 2017, your drug use increased significantly. In 2018 your parents told you that you could no longer reside with them due to your behaviour when substance affected. Since this time, you have lived in crisis accommodation across various locations, including at a unit in Werribee, where there were several incidents including an aggravated burglary and assault in November 2022 in which you were the victim. According to written defence submissions:
This left Mr Cousins feeling unsafe in Werribee so he elected to sleep rough or in his car instead. This is where he was living at the time of the offence in early 2023.
14.In response to a query sent from my chambers after the plea hearing about the fact you were arrested at that unit in Werribee on 22 February 2023, I was advised via email from your solicitors that:
… while you formally leased 1/12 Lyrebird Court Werribee from July 2022 including at the time of the offence in February 2023, [you] only stayed there sporadically and instead chose to sleep rough or in [your] car because of the state of the property and due to safety concerns.
15.Since 16 May 2024, when your bail was varied to add the Court Integrated Services Program (CISP) as a condition, you have lived in accommodation funded by CISP and the Salvation Army and have been working with them to secure stable accommodation from the Department of Housing.
16.You started using cannabis and drinking alcohol when you were 16 years old. By age 17 you had started experimenting with other drugs including methamphetamine and GHB. Since 2017 you have used methamphetamine daily and admit to regularly using GHB and cannabis. You have made many attempts over the years to address your drug use, including 23 admissions to the Melbourne Clinic's rehabilitation program, most recently in September this year. You are fortunate that your parent's private health insurance has funded those admissions. Since being on CISP bail you have also had counselling from a CISP Alcohol and Drug worker. Unfortunately, your engagement with this worker has been less than ideal. From the start your attendance was inconsistent and the last report dated 18 November 2024 described it as 'minimal'. You missed scheduled appointments without providing explanations and ultimately became uncontactable. Ms Proud attributes this drop off to your anxiety and responsibilities as a new parent. You claim that your drug use reduced after George was born, but the Correction's assessment that I ordered indicates you are currently using ice and GHB.
17.Based on his interviews and tests, Mr Candlish considers that you meet the criteria for 'a moderate personality disorder, a severe stimulant disorder and a persistent depressive disorder of moderate severity'. I shall return to the significance of these diagnoses later.
18.You are currently prescribed anti-depressant and mood stabilisation medication, and Valium. When you are not an inpatient at the Melbourne Clinic, you do not have any psychological support in the community.
Objective Gravity of your offending and moral culpability
19.Critical to determining any sentence are the objective gravity of the offending and the moral culpability of the offender. Parliament has prescribed a maximum penalty of 15 years' imprisonment for the crime of robbery and 10 years for the crime of intentionally cause injury, placing them somewhere in the mid-range of seriousness of offences in our State. That said, there is obviously a wide spectrum of seriousness within any offence and your two crimes are no exception.
20.In this regard the injuries sustained by Mr Frankland are highly relevant.
21.Following your assault Mr Frankland was driven by a colleague to the Footscray Hospital, from where he was transferred to the Eye and Ear Hospital. He could only recognise hand movements and nothing more. It was discovered that your punch had caused a previous corneal graft to detach. Mr Frankland had received that graft in 2005 due to a medical condition called keratoconus. Your punch also caused the loss of his intraocular lens and most of his iris and an accumulation of fluid in his eye. Mr Frankland had emergency surgery that evening in an attempt to repair the damage and more surgery a few days later. He was in hospital for four days. Twenty-two days after your assault, on 24 February 2023, he developed a retinal detachment which was repaired by a third surgery on 2 March. On 17 March he had a fourth surgery to again repair the corneal graft. Specialist opinion as at 22 March 2023 was that his prognosis was uncertain and close monitoring and further surgeries were required.
22.On 20 July 2023 a review at the Eye and Ear Hospital indicated further surgery due to uncontrolled intra ocular pressure. Medical records from 17 June 2024, the last obtained, indicate that Mr Frankland's vision has not improved.
23.Despite the seriousness of the injury Ms Proud submitted that yours was only a mid-range example of the offence of intentionally cause injury as it was:
a)Spontaneous and did not involve any pre-planning;
b)Did not involve the use of a weapon;
c)Did not occur in the context of family violence or towards an otherwise vulnerable victim; and
d)Involved a single strike.
24.In relation to the charge of robbery she submitted it was a low range example because it was opportunistic and was committed when you were homeless and unable to afford food.
25.Ms Holmes did not argue against the categorisation of the robbery offence, noting that you stole groceries, but submitted the intentionally cause injury fell within the mid to high range.
26.I have watched and rewatched the CCTV footage. In my view having regard to the whole of the circumstances, including that footage, and the injuries you caused, your offending falls within the mid to upper range of seriousness for both offences. It was brazen and determined offending. I am sure you did not enter the store intending to assault anyone, but you were so intent on stealing a trolley full of groceries you were clearly prepared to do so if the situation arose. You knew the duty managers were onto you when they first spoke to you, but instead of giving up at that point you tried to exit the store without paying for a second time. You must have known there was a good chance they would intercept you and when they did, you still did not think better of what you were doing. As well as calling him a 'fucking cunt', CCTV footage shows that when Mr Frankland put his hand on the trolley you immediately swung around and forcefully punched him to his face. You could easily have abandoned the trolley and tried to run away. Instead, you punched him in the face, not in the arm or elsewhere on his body, but in his face, before running away with the trolley.
27.Mr Frankland was a man who was just doing his job. He did not tackle you or provoke you in anyway. He simply put his hand on the trolley and as a result of your reaction he now wakes up every day not being able to see out of one eye.
28.You told Mr Candlish that your aggression was not intentional and that you responded to being grabbed. You said something similar to the CISP case manager and claimed you did not intend to harm anyone.
29.Mr Candlish was asked to comment on the relationship between your psychological conditions and your offending. He answered in generalities, however, to the extent he was saying that your personality disorder, which causes difficulty in emotional regulation and impulsive and risk-taking behaviour, contributed to your behaviour on this day, I am not satisfied that it had anything other than a minimal effect on your moral culpability. This is because you were heavily intoxicated at the time of your offending, a matter Mr Candlish only adverted to briefly. Further, whilst I accept that your decision to punch Mr Frankland was not premeditated, it was also not entirely impulsive. So intent were you on stealing that trolley full of groceries you were not going to let anything, or anyone, stop you.
30.Further, as to the claim you were homeless and stealing because of need, it must be said that this was not an act of desperation motivated by immediate hunger. You were doing more than stealing a night's meal, you had a whole trolley full of groceries. There is no evidence before me as to what the trolley comprised other than the fact that at one stage it had a bottle of olive oil which, it must be noted, seems an unlikely product for someone living rough or in their car.
31.Finally, I consider that Bugmy principles have no application in your case.
32.All up I consider your moral culpability for the offending to be high.
Impact of your offending[2]
[2]I am required to take into account is the impact of your offending on your victims and their personal circumstances - Section 5(2)(daa), (da) and (db).
33.Mr Frankland has declined to provide a victim impact statement, however one does not need a victim impact statement to appreciate that the effect on him of your actions would have been profound.
Current Sentencing Practices
34.I am required to have regard to current sentencing practices which may be gleaned from statistics or sentences imposed in other cases or both. The reason is to promote consistency of approach in sentencing.
35.The most recent Sentencing Advisory Council Statistics of the higher courts indicate that 86 per cent of charges of intentionally cause injury over the five years between 1 July 2018 and 30 June 2023 resulted in a term of imprisonment ranging from less than one month to six years, with one to two years being the most common non aggregate sentence at 35 per cent. For the same five year period 76 per cent of charges of robbery resulted in a term of imprisonment ranging from less than one month to five years, with one to two years being the most common non aggregate sentence at 43 per cent.
36.Of course, statistics are of limited assistance because they never tell you anything about the details of the case. That said, the range of terms of imprisonment could be expected to broadly reflect the full spectrum of seriousness of the cases involved. It is also likely that some of the sentences may have been reduced because of the combined effect of the Worboyes’[3] principle and the increased burden of imprisonment during COVID.
[3]Worboyes v The Queen [2021] VSCA 169.
37.I was not referred to any comparable cases by either counsel. In any event no two cases are ever truly the same and sentences imposed in other cases are not binding. Ultimately my duty is to impose a just and appropriate sentence on you in the unique circumstances of this case.
Plea of Guilty, co-operation and remorse
38.You are entitled to a discount in your sentence for the fact you have pleaded guilty. I also take into account that you indicated a willingness to plead guilty at an early stage, although not to the charges which ultimately proceeded.
39.In pleading guilty you facilitated the course of justice, took legal responsibility for your crimes and avoided the need for a trial.
40.I also accept that you are remorseful, albeit you have tended to downplay your culpability in your repeated claims that you did not intend to be aggressive or harm anyone, a claim you also made to me in your letter of apology. It is also notable that in that letter you blame your conduct on your mental health without even mentioning your drug taking. You did, however, acknowledge that you were heavily intoxicated on GHB, ice and alcohol at the time of the offending during your Community Correction Order assessment as well as expressing your remorse. As I say I do accept that you feel sorry for the harm you caused and which you clearly did not intend.
Your character and risk of reoffending
41.You have only two prior court appearances which are not particularly relevant. One of them was from 2009 and the other was in 2021 and neither involved violence, nor indeed dishonesty. You have the support of your parents, and your mother was in court for your plea and is here today for your sentence. You also have a relationship and have become a father. You have not been in any further trouble since you have been on bail. These are all positive factors. Ms Proud submitted your prospects of rehabilitation are good.
42.I am not so optimistic. Your ability to remain offence free is inextricably linked with your ability to remain drug free. You are apparently very anxious about returning to prison, and yet, with your liberty at stake, you still only managed a sporadic or moderate engagement with CISP and the Alcohol and Drug counsellor. In fact, you disengaged from Alcohol and Drug counselling altogether prior to the plea hearing and according to the corrections assessment have resumed taking drugs. You have displayed some insight as to the deleterious effects of drugs to Mr Candlish and have also said the right things to the CISP workers and the Office of Corrections assessor, but so far you have failed to follow through. Your efforts at rehabilitation are perhaps best summarised by the words of your CISP case manager in her September 2024 report. She said that:
While Mr Cousins does verbalise gratitude and motivation to address his treatment needs, his behaviour suggests a certain reluctance. This is exampled by his multiple admission and subsequent self-discharges from detox days after. In that regard Mr Cousins appears to be in the contemplative stage of change, characterised by an acknowledgement of a problem however, a general unreadiness to make change.
43.Mr Candlish assessed you as being a moderate risk of further violence and as being highly vulnerable to ongoing substance abuse.
44.I would assess your prospects of rehabilitation as moderate at best.
The burden of imprisonment
45.In determining the appropriate sentence I must consider how a term of imprisonment would be likely to impact you. I accept that your time in custody will be harder because of your mental health conditions and I take that into account as a mitigating factor. I am not however satisfied that limb 6 of Verdins[4] applies. All that Mr Candlish said is that your depressive disorder 'could' worsen in nature and severity if you were to be imprisoned. This falls short of what is required to enliven limb 6 which is not only that the risk of deterioration be serious but also that the decline be significant.[5]
[4]R v Verdins & Ors [2007] VSCA 102
[5]Nguyen v The King [2023] 210 at [16].
Purposes of Sentencing
46.I am obliged not to impose a more severe sentence than is necessary to achieve the sentencing purposes of just punishment, deterrence, rehabilitation, denunciation, and protection of the community. A custodial sentence must only be imposed as a last resort and then must be the absolute minimum required.
47.Further, when there are multiple charges the total effective sentence must not offend the principle of totality, meaning you must not be punished any more than is proportionate and appropriate to your overall criminality. This is particularly relevant here as your two offences arise from the same conduct, although they have different elements. Indeed, as I foreshadowed with counsel, given the two offences arise from the same facts I consider an aggregate sentence to be appropriate.
48.I have had you assessed for a Community Correction Order and you have been found suitable and indicated your consent. The central issue for me is whether to impose that on its own or in combination with a term of imprisonment.
49.I have already set out in full the matters in your favour and against, in the course of these reasons. There is no need to repeat them. After weighing these competing considerations, I have concluded that all the relevant sentencing purposes cannot be met in your case by the imposition of a Community Correction Order alone.
50.In my view, your offending was just too serious and your mitigating factors too few to do anything other than impose a term of imprisonment in combination with a Community Correction Order. Not only that, I consider the term of imprisonment must exceed that which you have already served by way of pre-sentence detention.
51.Even allowing for a modest moderation of the principles of general and specific deterrence because of your mental health, the need to denounce your behaviour, to deter others from acting as you did, and to deter you from doing something similar again is still very important. Community protection also has a role to play.
52.Of course my sentence must also be just and I will allow for your rehabilitation by the corrections order that I impose.
Sentence
53.Mr Cousins, just stand up please.
54.I convict and sentence you on the two charges to an aggregate term of imprisonment of eight months and I declare that you have already served 36 days imprisonment, not including today in respect of this sentence and I order that this declaration be entered in the records of the court and the period deducted administratively.
CCO
55.On the two charges I also convict and sentence you to a single Community Correction Order. The order will last for one year. You are to report to the Melbourne Justice Service Centre within two clear working days after the commencement of this order and the order will start once you are released from prison.
56.The order has mandatory terms which apply to all Community Correction Orders:
i.Not committing other offences;
ii.Complying with certain obligations or requirements that are imposed on you;
iii.Receiving visits from the Secretary;
iv.Reporting to the Corrections Centre within two clear working days of the order starting;
v.Letting a Community Corrections Officer know within two clear working days if you change your address or a job;
vi.Not leaving Victoria without first getting permission from the Secretary; and
vii.Obeying all lawful instructions and directions from the Secretary.
57.But I have also imposed some special conditions.
i.You must be under the supervision of a Community Corrections Officer for a period of one year;
ii.You must undergo assessment and treatment including testing for drug abuse or dependency, as directed by the Regional Manager;
iii.You must undergo assessment and treatment including testing for alcohol abuse or dependency, as directed by the Regional Manager;
iv.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;
v.You must participate in programs and/or courses that address factors relating to the offending, as directed by the Regional Manager.
58.Now, Mr Cousins, Ms Proud will explain the order to you in more detail, that is the Community Correction Order and the eight month term of imprisonment, but I want to tell you that you must make sure that you comply with the Community Correction Order because breach of the order is an offence. It is an offence to breach the order and in addition you will come back before me and are liable to be resentenced on the original charges. In that event, prison is an option, a real option, so you need to make sure you comply with the order.
Section 6AAA
59.If you had not pleaded guilty to these charges and been found guilty by a jury, I would have sentenced you to a total effective term of imprisonment of three years with a non-parole period of two years.
60.Mr Cousins, do you understand the sentence that I have imposed.
61.OFFENDER: Yes.
62.HER HONOUR: I am going to hand down the corrections order. I will hand it to Ms Proud first of all and then once she has checked it, to you, to sign. Mr Cousins, you can be seated.
63.MS PROUD: Your Honour, insofar as custody management issues are concerned, if it could be noted that Mr Cousins will need to see a mental health nurse as a matter of priority.
64.HER HONOUR: Yes.
65.MS PROUD: Also there is a list of medications in the MHARS report, if that could be provided to Corrections - - -
66.HER HONOUR: Yes.
67.MS PROUD: - - - so that his medication regime is known, that would be appreciated.
68.HER HONOUR: Yes. And should I also note that he will be withdrawing from substances of abuse?
69.MS PROUD: Yes.
70.HER HONOUR: All right. I will do that. Now normally I would ask Mr Cousins be taken straight into custody. Do you want a little bit of time?
71.MS PROUD: I'd be grateful. I'd be grateful, thank you.
72.HER HONOUR: I know his mother is here too, so I'll leave the Bench.
73.MS PROUD: Yes, thank you. Thank you, Your Honour.
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