Director of Public Prosecutions v Coutts

[2019] VCC 1690

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 19-00672

DIRECTOR OF PUBLIC PROSECUTIONS

V

JOEL COUTTS

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Bendigo
DATE OF HEARING:	14 October 2019
DATE OF SENTENCE:	18 October 2019
CASE MAY BE CITED AS:	DPP v Coutts
MEDIUM NEUTRAL CITATION:	[2019] VCC 1690

REASONS FOR SENTENCE
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Subject: criminal law - sentence             

Catchwords:   pleas of guilty to two charges of theft, one charge of handling stolen goods, one charge of aggravated car- jacking, one charge of unlicensed driving and one charge of  possessing a dangerous article in a public place – threatening use of tomahawk – parity – more serious offending than either co-accused – mandatory minimum non-parole period applies.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Hayward	OPP
For the Accused	Mr D. Sala (For Plea)	Giorgianni & Lang Lawyers
T. Antos (For Sentence)

HER HONOUR: 

1Joel Coutts, you have pleaded guilty to two charges of theft, one charge of handling stolen goods and one charge of aggravated carjacking.  You have also pleaded guilty to two summary charges:  unlicensed driving and possessing a dangerous article in a public place. 

2Most of the offending occurred on 25 October 2018.  In the early hours of that morning you were at the home of an associate Nicole Page in White Hills, exchanging Facebook messages with the two co-accused, Ebony Murphy and Matthew McMahon, who were in California Gully.  At that location Murphy had witnessed McMahon placing rock salt in a bag, intending to pass it off as methylamphetamine.  McMahon messaged you, asking for a car, as he and Murphy needed one in order to 'make some money', as it was put. 

3You replied to Murphy that you could not get a car, but you were intending to get to her location.  You spoke to one of the victims, Mark Rayner, an associate of yours, and asked for a lift.  His partner, Charna Bird, who also knew you, then drove Rayner in her car and picked you up from a car park in White Hills.  You told Rayner and Bird to drive you to Eaglehawk to meet someone and then drive back again.  During the journey you showed Rayner a tomahawk which you had and remarked how sharp it was. 

4Bird drove you to a park in Eaglehawk and there you met Murphy and McMahon and spoke with them briefly.  You returned to the car with Murphy and McMahon, whom neither Bird nor Rayner knew.  You took the tomahawk from the car and removed its protective cover.  McMahon threw the bag of rock salt into the car, then reached into the driver's window where Bird remained seated.  McMahon then pulled the keys out of the ignition.  Bird said words to the effect of 'no way'.  You approached the front passenger seat where Rayner was sitting and you held the tomahawk at him at approximately eye level in a threatening manner.

5You said to him, 'Get out of the car, you fucking dog'.  Rayner said, 'What's all this about?'  Using your hand, which was holding the tomahawk, you then hit Rayner, causing his top lip to split open with a wound approximately 2 centimetres long.  The prosecution does not allege that the injury was caused by the tomahawk but rather was caused by the blow you delivered while holding it.

6McMahon then threw the car keys to you and you walked around the back of the car, still holding the tomahawk.  You shoved Bird away as she tried to get the keys back.  You then got into the driver's seat while Bird said, 'You're not taking my car, no'.  McMahon got into the front passenger seat and Bird tried to get out of the car, but, seeing the tomahawk still in your right hand, she was terrified and in fear of her life.  McMahon told Murphy to get in the car, which she did. 

7Bird asked if she could get her personal belongings out of the boot of the car and you refused and told her to 'fuck off'.  Those circumstances give rise to Charge 3, aggravated carjacking.

8You then drove the stolen car to a service station for fuel.  You were not licensed to drive a car at the time.  That is summary Charge No.10.

9At the service station you and Murphy remained in the car while McMahon pumped fuel worth $96.80 cents into the car and you drove away without paying.  The station attendant saw this and it was recorded on CCTV.  This is the charge of theft, which is Charge 4.

10Bird and Rayner called the police after the car was stolen and Rayner was taken to hospital for treatment of his injury, which was sutured, and he was then discharged.  Meanwhile you drove the car to Spring Gully, where you callously threw Bird's clothing and a suitcase out of the boot.  You then wrote offensive graffiti directed at Rayner on the car.  Several hours later you sent Rayner an extremely abusive Facebook message.

11That evening you and Murphy parked the car in Grace Street, White Hills, near Page's premises, the address from which you had contacted McMahon and Murphy in the early hours of the morning.  You carried bags from the vehicle into the nearby house and then drove the car to a location in the vicinity of the East Bendigo airport. 

12Police had seen the car in Grace Street and a search was commenced for you.  They searched Page's premises and found a tomahawk in a black case which you had brought there the previous night.  That is summary Charge 11, possessing a controlled weapon.

13You were arrested on 1 November and remained in custody, where you have remained.  You were also charged with two earlier instances of offending.  On 1 July 2018 the pro shop at the Belvoir Park Golf Club was burgled and golf equipment valued at between $5,000 and $7,000 was stolen.  During the search at Page's house on 25 October 2018 some of the stolen golf clubs were found and forensic testing showed that you had been in contact with them.  This is Charge 2 on the indictment, handling stolen goods.

14The other offence occurred on 11 September 2018, when you drove into a service station in Strathdale and put petrol to the value of $45.09 cents into the car you were driving and left without paying.  That is the charge of theft, which is Charge 1 on the indictment.

15Ms Bird lost all of her belongings which had been in the car, including clothing, bedding and medication.  In her victim impact statement she described how she had been homeless at the time and relied on her car for shelter as well as transport.  She has not been able to afford to have the car fixed and in a roadworthy condition.  She said her mental health has deteriorated and her self-confidence has decreased dramatically, resulting in isolation and even suicidal feelings.  Your offending, accompanied by a completely wanton disregard for other people, has had a serious impact on Ms Bird.  It indicates a high degree of moral culpability. 

16Aggravated carjacking is a serious crime, punishable by 25 years' imprisonment.  The maximum penalty for theft is 10 years, and 15 years for handling stolen goods.  The possession of the tomahawk elevated the crime to aggravated carjacking, as did the injury to Rayner.  The disregarding of Ms Bird's possessions was part of the circumstances of the crime as well. 

17Under s.10AD of the Sentencing Act I must impose a minimum non-parole period of three years unless a special reason exists as to why that should not apply.  It was not submitted that there were any special circumstances in this case.  As to the summary charges, unlicensed driving and possessing a dangerous article in public, both attract a maximum penalty of 60 penalty units or six months' imprisonment. 

18Your co-accused Murphy pleaded guilty to carjacking, theft and trafficking in a drug of dependence.  She was sentenced to 66 days in prison and an 18‑month Community Correction Order.  She gave an undertaking to give evidence against the co-accused and made a statement implicating you and McMahon in the offending.

19McMahon was sentenced to 12 months' imprisonment with a 12-month Community Correction Order for carjacking, unlawful assault, theft and two charges of trafficking in a drug of dependence.  Although McMahon was sentenced on the lesser charge of carjacking simpliciter, he was much more involved than Murphy and did not have the benefit of a discount for undertaking to give evidence.  As your counsel submitted, the case against McMahon is factually closer to the case against you; however, you hit and injured Rayner as part of the carjacking and you were in possession of the tomahawk, which, as I said before, elevated the offence. 

20You were aged 27 at the time and you are now 28.  You struggled at school and left at 15, although you had excelled at sport.  You began a building apprenticeship which you almost finished, but during a fight you broke both your hands and so could not complete the apprenticeship.  Even so, you were later able to work on construction sites. 

21While working for Boral, you and a friend stole some items from the site and you were sentenced to prison, leading to drug abuse and addiction.  When you committed these crimes you were on two Community Correction Orders and had made little progress, with your focus being on drugs, as you were still associating with other drug users.  Your criminal history is littered with dishonesty charges, amongst others, including some for violence, but all of them associated with drug use. 

22You pleaded guilty at an early stage without witnesses having to be cross-examined.  Following that plea you foreshadowed an intention to change your plea, but it did not eventuate.  That intended course has the effect of weakening somewhat the remorse otherwise indicated by the plea of guilty.  Nonetheless, your plea has avoided the need for a trial and that is of benefit to the criminal justice system warranting a discount on your sentence.

23General deterrence must be a significant focus of your sentence, as well as specific deterrence.  It appears you have responded well to your incarceration, according to your mother's evidence.  She described you as being better mentally and physically, working in prison, writing letters to the family and wanting to be a good role model for your infant daughter.  In reflecting on your past behaviour, she said you should have stayed at school longer, but instead you grew up too quickly, mixing with adult men when you were just 15.

24There is little more than this from which to be confident about your prospects for rehabilitation.  You have breached a Community Correction Order in the past and stand to be charged with a further breach arising out of these charges, which you committed whilst on a Community Correction Order.  There are some protective factors such as your strong family support and your engagement with them, the birth of your daughter and the fact that your criminality is tied only to drug abuse and no other discernible criminogenic factors.

25Overall I agree with the prosecutor that your prospects are no more than guarded; however, it was agreed that, taking into account all relevant factors including totality, the sentence I impose need not exceed by much the mandatory minimum.  Most of this offending occurred effectively during the one episode, except for the charge of handling stolen goods on an earlier date, and Charge 4, theft of petrol on a later date.  Any orders for cumulation will be limited to those charges. 

26Would you stand now, please, Mr Coutts.

27I sentence you to the following terms of imprisonment:  three months for Charge 1, the first charge of theft of petrol; 12 months for Charge 2, handling stolen goods, the golf clubs; four years for Charge 3, aggravated carjacking; three months for Charge 4, the second charge of theft of petrol; two months for the summary charge of unlicensed driving; and three months for the summary charge of possessing a dangerous article.

28The sentence for Charge 3 is the base sentence for the purposes of cumulation.  I order that three months of the sentence for Charge 2 and one month of the sentence for Charge 4 will be served in cumulation upon the base sentence and each other.  That results in a total effective sentence of four years and four months. 

29I fix a period of three years which you must serve before being eligible for parole. 

30I declare that you have spent 351 days in custody as pre-sentence detention, which are to be reckoned as already served. 

31In relation to Charge 3 I must cancel your licence to drive and I make that order cancelling your licence for four years.  That order begins today and will continue for a time after your release on parole, should you obtain parole. 

32The prosecution seeks an order for the disposal of items connected with the offending and forfeiture of the tomahawk.  Mr Antos, I do not believe I heard whether those orders are opposed or not.  Do you know?

33MR ANTOS:  Your Honour, regrettably I'm not in a position to advance that.  At this point I was unaware that that wasn't discussed.

34HER HONOUR:  I see, all right.  I understand you haven't got the opportunity to go to the dock to talk to Mr Coutts about it.  Do you mind if I ask him directly?

35MR ANTOS:  Not at all, Your Honour.

36HER HONOUR:  Mr Coutts, do you have any objection to those orders being made?

37OFFENDER:  No.

38HER HONOUR:  Thank you.  They will be unopposed therefore and I make those orders. 

39MR ANTOS:  As Your Honour pleases.

40HER HONOUR:  If you had pleaded not guilty to these charges I would have sentenced you to five and a half years' imprisonment with a non-parole period of four years.

41Are there any other matters first of all, Mr Hayward, that I've neglected?

42MR HAYWARD:  No, Your Honour.

43HER HONOUR:  Mr Antos, anything further?

44MR ANTOS:  No, Your Honour.

45HER HONOUR:  Very well.  You may take Mr Coutts now, thank you, officers. 

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