Director of Public Prosecutions v Cox

[2019] VCC 1703

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01763

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRADY COX

---

JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	10 October 2019
DATE OF SENTENCE:	16 October 2019
CASE MAY BE CITED AS:	DPP v Cox
MEDIUM NEUTRAL CITATION:	[2019] VCC 1703

REASONS FOR SENTENCE
---

Subject:  CRIMINAL LAW

Catchwords:              Contravention Community Corrections Order – Re-sentencing

Sentence:Contravention proven – CCO cancelled - Re-sentenced to 11 months imprisonment on original charges and one month’s imprisonment on Contravention charge – All sentences to be served concurrently with other sentencing being undertaken – Pre-sentence detention of 212 days declared

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Haban-Beer Ms A. O'Callaghan	Office of Public Prosecutions
For the Accused	Mr. J. Van Arkadie	VLA

HER HONOUR: 

1Brady Lee Cox, you admitted to contravening a community corrections order which was imposed by Her Honour as she then was, Judge Cotterell on 30 March 2016.  She imposed a community corrections order in combination with a sentence of seven months’ imprisonment. 

2You breached the community corrections order imposed by Her Honour by failing to perform various conditions and on 18 March 2017, you were remanded in custody in relation to further offending.

3On 23 May 2017, you were sentenced to one year’s imprisonment with a non-parole period of six months’ imprisonment in relation to the further offending.  Subsequently, on 3 August 2017, you were dealt with for a contravention of the community corrections order and I varied the order in order to allow you to continue on the community corrections order upon your release from custody. 

4On 14 February 2018, you were denied parole and ultimately, you were released from custody on 1 March 2018 and commenced the community corrections order as varied. 

5On 13 March 2018, you provided a urine screen which proved to be positive for meth-amphetamine or amphetamines.  You failed to attend for unpaid community work on three occasions between 19 April and 10 May 2018 and on 11 May 2018, you failed to notify Corrections of a change of address.

6On 12 May 2018, it was alleged that you committed a carjacking offence in New South Wales.  However, the matter is yet to be dealt with and you intend pleading not guilty to the charge at trial.

7You spent about eight months on remand in New South Wales in relation to this matter.  On 7 November 2018, you were released on bail in relation to the matter, however on 16 April 2019, you were remanded in custody in New South Wales for non-compliance with bail conditions.  You then spent about one month in custody between 16 April and 13 May 2019 in New South Wales on remand for the aggravated carjacking charge which is yet to be tried.

8On 13 May 2019, you were released on bail to live with your sister in New South Wales, and in early August this year, you returned to Victoria.  You were remanded in custody in Victoria from 19 August this year, in respect of further offending for which you were sentenced on 21 August 2019, to three months' imprisonment.  I was told that your earliest release date is 21 November 2019.

9On that date, an extradition hearing is listed in relation to an allegation of car theft in New South Wales and there is the prospect of you returning to New South Wales in relation to that matter and, in relation to the trial in respect of the alleged carjacking. 

10The trial for that matter, that is, the alleged carjacking, is expected to take place in May next year.  You face the prospect of further remand in New South Wales but I do not speculate in relation to the matters listed there, or their outcomes.

11You agree that it is appropriate to re-sentence you in relation to the matter which was originally the subject of a combination sentence.  In doing so, I have had regard to the matters which were before Her Honour Judge Cotterell on the original plea hearing, insofar as they are relevant to the sentencing task which I must now perform. 

12The charge of armed robbery has a maximum penalty of 25 years' imprisonment which reflects the seriousness with which Parliament regards the offence and it is a matter that I have to take into account on the re-sentencing exercise.

13The circumstances of your offending were that on 28 June 2015, you and a co-offender, a Darren Reid, attended a petrol station in Kilsyth, parking some distance away from the premises.  You attended the premises just after 1.00pm wearing hoodies with your hoods pulled up over your heads. 

14The sole attendant at the store, a Mr Bruce Volski was standing behind the counter.  You approached him with a drink and placed it on the counter, then asking for some cigarettes.  You showed the victim a silver knife which was hidden up your sleeve.  Mr Volski, on your instructions, then open both cash register tills, while Mr Reid kept watch and paced around the background.  You left the premises with about $672 in cash. 

15After your co-accused was arrested and confessed, you handed yourself in on 10 July 2015.  Each of you were sentenced to seven months' imprisonment with a two-year community corrections order. 

16As Her Honour Judge Cotterell said at the time, your offending was, 'clearly very serious.'  You committed the offence in company and there was a level of planning involved, albeit somewhat crude.  The victim provided a victim impact statement which indicated that he had, in Her Honour's words,

'Endured a chilling experience at your hands on that day, that he was alone in the store and was in a situation where he did not know what would happen to him. He said that although he has suffered from the experience, his life had begun to return to normal and he appeared to have a degree of resilience in coping with the matter as at the time he made his victim impact statement in November 2015.'

17I take into account also that at the time you committed the offence, you were using ice and have been struggling with addiction to the drug.  This is not a matter in mitigation; nor is this an aggravating matter, but it helps to explain your offending. 

18I also take into account that as at the time you were dealt with for the offending, you have no relevant criminal history and had managed to maintain regular employment. 

19You had, and I am told you continue to have a supportive family.  These are positive factors in relation to your rehabilitation.  However, since your offending, you have a number of subsequent matters which concerns me about your prospects of rehabilitation. 

20In re-sentencing you, I take into account matters personal to you, including your family background.  You completed your education to Year 11 then obtained an apprenticeship as a butcher which you did not finish.  However, you were able to obtain work, mainly using your experience in the butcher-trade, to work in abattoirs. 

21However, you ceased work sometime before the offending, for which I now re-sentence you.  In re-sentencing you, I also take into account the psychological report of Dr Aaron Cunningham dated 23 February 2016.  He saw you on one occasion and observed that although you had been previously diagnosed as suffering from bipolar disorder, he is of the view that your proper diagnosis was one of autism spectrum disorder. 

22Dr Cunningham also indicated that at the time of your offending, there had been a breakdown in your life due to the loss of your employment and your relationship which then led you to experience a depressive episode resulting in an escalation of drug use.  This was the context in which your offending occurred.

23I also take into account that you have one child. However you have not seen your child for some time.  In the past, you experienced difficulty in obtaining access through a lack of cooperation with your former partner. 

24However, in more recent times, your offending and drug use as well as periods of incarceration have prevented you from seeing your child who is now ten years old.  If you hope to be a father to your child in the future, it is essential that you abstain from drugs and further offending. 

25Your drug use commenced in your teenage years with the use of amphetamine dating back to this time.  The proceeds of the armed robbery were used to purchase drugs.

26I take into account the entire contents of Dr Cunningham's report.  However, I am somewhat guarded about his diagnosis of you, and the mention of a previous diagnosis, in the absence of further material and substantiation of either of these conditions. 

27It is to be hoped that, in the future, any mental health issues that you are experiencing are properly addressed, having been thoroughly and properly assessed.  It is not argued on your behalf that any Verdins considerations ought come into play in your case, but for your sake, I really do hope that in the future you have your mental health issues explored properly and treated properly. 

28In sentencing you, I also take into account that you pleaded guilty to the matter at an early stage, and voluntarily attended police and confessed to the offending.

29As Her Honour allowed, you are entitled to a significant discount in the sentence that you would have otherwise received, because of the early stage of your plea and cooperation, saving the witnesses, especially the victim, the time and trouble of giving evidence and you saved the community the time and expense of running contested proceedings. 

30In assessing the seriousness of your offending, I have taken into account that your victim was a soft target and that you offended in numbers with a degree of pre-planning.  Strong weight must attach to general deterrence as Her Honour said, in a bid to deter others who are tempted to offend as you have.

31Her Honour was dealing with a person who had a most limited criminal history and one which was not overly relevant to the offence for which she sentenced you.  However, you have committed a number of offences since that time, to the point where I must be guarded about your prospects of rehabilitation, especially in view of your ongoing struggles with drugs and most limited compliance with the community corrections order.  I am also concerned about your mental health, albeit that this needs to be further explored. 

32In the circumstances, I give moderate weight to specific deterrence and the need to protect the community in your case.  Her Honour also had regard to the principle of parity which resulted in you being treated equally with your co-accused, Mr Reid. 

33I have borne this in mind in re-sentencing you, however, in circumstances where I am dealing with you for contravention of a community corrections order in relation to the offence of armed robbery.

34Of course, I have also borne in mind that you served seven months imprisonment in combination with this disposition.  In re-sentencing you I have been mindful of the need to impose a just punishment upon you in all the circumstances of your case as did Her Honour. 

35I must also take into account the degree to which you complied with the community corrections order which as I have said, was rather minimal.

36Mr Van Arkadie who gave an excellent plea on your behalf said, there was some compliance with the community corrections order whereby 21.15 of the 400 hours of unpaid community work were performed, and you attended upon a general practitioner for a mental health care plan.  You also attended two treatment appointments in relation to treatment for drug use. 

37It is unclear as to your level of compliance with a supervision requirement before you were breached on the order however the community correctional services officer at the contravention hearing observed that, in view of the limited period during which you engaged with the order, your attendance for supervision would have been fairly minimal. 

38In re-sentencing you, I have also taken into account that over the past four years, you have spent about two and a half years in custody either here or in New South Wales.  In my view, this is relevant to the question of totality in your case. 

39Although you had fairly limited opportunity to re-engage with the community corrections order, there was a period of six to eight months when you could have re-engaged with the order, but you did not. 

40Your counsel told me that as you were forced to be absent whilst in custody, you are unable to make concrete plans in order to maintain this in the community until such time as you knew when you were being released.  As your counsel said, you need to develop skills in relating to managing your drug issues. 

41In re-sentencing you I am most mindful of the fact that you were 25 years old when you committed the offence for which I now re-sentence you, with no relevant criminal history to speak of.  You were still a relatively young person at the time that you committed the offence and, I should do what I can to promote your rehabilitation, although since this time you have continued to struggle with drugs and committing offences. 

42In saying this, I make it clear, I do not factor in any offences for which you are yet to be dealt with.  I have also taken into account that it is a fairly substantial passage of time since the offence, for which I now re-sentence you, was committed.  However, it could not be said that you have used the intervening period to enhance your prospects of rehabilitation. 

43Having said this, I am mindful of the fact that I am dealing with you for contravention of a community corrections order as varied, whereby the matters which breached the varied community corrections order are seven charges of theft and one charge of bringing stolen goods into Victoria, as well as some charges concerning fraudulent alteration and use in relation to car registration. 

44Your counsel submitted in view of all the relevant circumstances in your case, that a straight sentence which ought be served concurrently with the sentence you are undergoing was appropriate.  The prosecution submitted that their instructions were that the community corrections order ought be cancelled and you be re-sentenced, but nothing further was said insofar as disposition was concerned.

45It is a great pity that you are unable to take advantage of the community corrections order as it may well have helped you in relation to any mental health issues and substance-abuse issues.  However, it is to be hoped that you, who are now 30 years old, develop a resolve to stay off drugs when you are released into the community, whenever that may be. 

46In that regard, I cannot speculate insofar as the New South Wales matters are concerned in particular.  However, in view of all relevant matters including the fact that you have been in custody on and off for significant periods over the past four years, I have arrived at a sentence which, in my view, is appropriate in all of the circumstances.  I will therefore move to sentence you. 

47I find the contravention offence which is alleged proven and you are convicted in relation to that offence.  In relation to the breaching offence, you are sentenced to one month’s imprisonment. 

48In relation to the community corrections order which you contravened, the order is cancelled and the sentence which was originally imposed by Her Honour Judge Cottrell is set aside.

49You are re-sentenced to 11 months’ imprisonment which is to be served concurrently with the sentence you are undergoing, which means that it will run along aside it for the remaining month or so. 

50I declare that you have already served 212 days in relation to this sentence, by virtue of the combination sentence previously imposed by Her Honour.  Is there anything further counsel?

51MR VAN ARKADIE:  Your Honour, if I may, can I clarify with respect to the contravention order of one month’s imprisonment, whether that is concurrent or cumulative?

52HER HONOUR:  It is running concurrently with the order.

53MR VAN ARKADIE:  Thank Your Honour.

54HER HONOUR:  Yes, I should have expressed that, to run concurrently.  All right, is there anything further?

55MS O'CALLAGHAN:  No, Your Honour.

56HER HONOUR:  Did you want to have a word with your client.  I will leave the Bench and the court can be cleared.

57MR VAN ARKADIE:  Your Honour, prior to court I explained that I will have a conference with him either tomorrow or the day after, as soon as a video-link becomes available.

58HER HONOUR:  Very well.  Yes, thank you, all right.  We will turn off the video-link thank you.

59MR VAN ARKADIE:  Thank Your Honour.

60HER HONOUR:  We will now adjourn.

- - -