Director of Public Prosecutions v Cox

[2018] VCC 1071

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00634

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER COX

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	28 June 2018
DATE OF SENTENCE:	12 July 2018
CASE MAY BE CITED AS:	DPP v Cox
MEDIUM NEUTRAL CITATION:	[2018] VCC 1071

REASONS FOR SENTENCE
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Subject:  Criminal law - sentence

Catchwords:  One charge of aggravated burglary – one charge of 

damaging property

Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S Bruhn (Plea and sentence)	OPP
For the Accused	Mr D McGlone (Plea and sentence)	Ann Valos Criminal Law

HIS HONOUR: 

Introduction

1. Christopher Cox, you have pleaded guilty to one charge of aggravated burglary contrary to s 77 of the Crimes Act 1958, which carries a maximum penalty of 25 years imprisonment and one charge of damaging property contrary to s 197(1) of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment.

2. You have also admitted your prior Criminal Record.

Circumstances of the offending

1. A prosecution opening was tendered on the plea and may be summarised as follows:

2. At the time of the offending you, Christopher Cox were living at a unit in an apartment complex called Ambassador Apartments located at 325 Nepean Highway, Frankston.  The victim in this matter, Ms Lisa Kok also lived in a unit at the same address. 

3. Prior to the offending, tensions existed between some of the residents in the complex (including you) towards Ms Kok's partner, Mr Jamie Moon.

4. On Monday, 16 October 2017 at about 1.30pm you were standing outside
   Ms Kok's apartment. Ms Kok was out on the balcony and you asked her whether ‘Moon’ was at home. Ms Kok said that Mr Moon was at work and asked you "Is everything all good?" You answered "No". Ms Kok replied "What's the go? Is everything all good?" You responded saying "No. He hit two girls on grand final day" and asked Ms Kok to let you know when Mr Moon gets home.

5. Later that evening at about 6.30pm, Ms Kok, her son aged one and a half, her partner Mr Moon and friend Jack left their unit and walked to the Woolworths store in the Frankston Shopping Centre. 

6. As they were walking, they came across you and two other residents from the Ambassador Apartments. Ms Kok and her son continued to the shopping centre however Mr Moon and Jack stayed behind and an altercation took place between Mr Moon and you.

7. About 10 minutes later, Mr Moon and Jack met up with Ms Kok and her son near Woolworths. They were approached by Protective Services Officers (PSOs) investigating the incident between Mr Moon and you. The PSOs obtained their names and conducted a search as the PSOs believed a hammer had been involved in the incident. While the exact details of the altercation are not clear, during your interview with police, you allude to being hit in the face with a hammer as being part of the motivation for your later offending behaviour. The police acknowledged that they observed an injury to your left eye following your arrest.

8. At about 7.10pm, Ms Kok received a phone call from Ms Hayleigh Clark, another resident at the Ambassador Apartment complex who usually visits Ms Kok after work enquiring where she was. Ms Kok told her that she was not at home and asked Ms Clark to keep an eye on the unit as some neighbours had been making derogatory comments about her and Mr Moon during the day and as such, she was nervous about coming back to the unit.

9. At about 7.45 pm, Ms Clark heard the sound of a chainsaw in the complex as well as your voice and the voices of two others. 

10. At about this time you entered Ms Kok's apartment with a chainsaw. While inside the apartment you used the chainsaw to cut the screen of the television located in the lounge room and to saw through the front door. It is these facts that relate to charges 1 and 2 on the indictment. 

11. Ms Clark went to check Ms Kok's apartment. When she arrived she saw that the front door was damaged and the television was destroyed. Ms Clark observed dust everywhere as well as footprints.

12. Ms Clark left Ms Kok's unit and rang Ms Kok to tell her to get home straight away. As she was on the phone, Ms Clark saw you walking with a chainsaw in your hand. Ms Clark then called 000. 

13. Ms Kok, her son, Mr Moon, Jack and his partner all came back to the complex via the back way so as not to attract attention and went straight to Ms Clark's apartment and waited for police to arrive. 

14. Police attended and made contact with Ms Clark who informed them that it was you who had committed the offence and that you may still be present at the apartment block.

15. Police attended at unit 38 and were greeted at the door by one of your friends who let them in. Police then arrested you. They photographed and then seized a red and black chainsaw that was still warm to touch. You were conveyed to the Frankston Police Station for a record of interview. 

16. The interview was initially suspended as you smelt of alcohol and were slurring your speech. Police also observed the injury to your left eye for which you declined medical attention.

17. Upon the recommencement of the interview you initially denied any involvement in the offending. However as the interview progressed you made admissions. It would seem that your motivation to do what you did was a reaction to the altercation you had been involved in earlier with Mr Moon. You said the following: 

A157   When you hit someone in the face with a hammer and across the temple, that’s not just to hurt someone, you know what I mean?

…

A158   So I went there as a warning, yeah, not to hurt anyone. I made sure there was no-one there. I made a warning – yeah. Don’t hurt women and don’t…with hammers to the face – yeah. That’s all I did and left.

…

A162   I made sure there was no-one in the house. I didn’t wanna scare anyone or hurt anyone. I just wanted to show, don’t do that. They were trying to kill someone with a hammer to the face and the temple. That’s not – that’s not on. Women don’t – women don’t like that either.

Objective seriousness of the offending

1. Aggravated burglary is by its nature a serious offence reflected by the fact that Parliament has set a maximum penalty of 25 years imprisonment. The feature of aggravation in relation to charge one is the fact that you entered the apartment with a chainsaw (in this instance being used as an offensive weapon) in order to effect the criminal damage that you ultimately did.

2. Ms Bruhn who appeared on behalf of the Director of Public Prosecutions, highlighted the features of your offending which she submitted should be taken into account in the assessment of the seriousness of it. She drew attention to the fact that there was clearly a level of premeditation in that you obtained a chainsaw before entering the apartment which you ultimately used to damage a door and a television. Ms Bruhn also highlighted the fact that the offending took place in the evening and in an apartment where you knew that the victim was fearful of you.

3. On the other hand, as you stated in your record of interview, you made sure no one was in the apartment before you entered. You further stated that you had no intention to hurt anyone however it seems that what you were trying to achieve was to convey some kind of warning as a result of what had occurred to you. 

4. I accept that in the circumstances it would have been clearly more aggravating if there were persons present in the unit when you entered. That said, you were carrying a chainsaw which was operating and heard by others in the apartment block. It is an extremely dangerous piece of equipment or in this instance, a weapon, which was used ultimately to destroy property. Anyone hearing or seeing a chainsaw in a suburban apartment block would have been alarmed.

5. In the circumstances where the offence is an intention to damage property in combination with a running chainsaw that ultimately was used to cause that damage, in my view represents a serious example of that category of offence. The criminal damage charge also is a serious example of that offence given the type of damage that you caused.

Personal circumstances

1. You are 31 years of age and the younger of two children. Your parents separated when you were about age 15. Shortly after your parents separation, your mother moved to the United States where she commenced a relationship with a man she had met online. Initially, you went with her however you returned to Australia at age 16 as you had difficulty with your new stepfather. Ultimately you lived with your maternal grandmother in Albury and became her carer as she suffered from dementia. You have no contact with your father and indeed there is an intervention order in place preventing contact.

2. Your older sister committed suicide in 2017 while she was visiting your mother in the United States. You were very close to your sister and understandably, have been devastated by her death. 

3. Your mother has been diagnosed with stage three inoperable lung cancer. In a letter provided to the court from her treating medical practitioner, Jonathan Storey, he states that her recent scans show that her condition is worsening and that the condition is terminal.

4. In addition to the trauma that you suffered as a result of your sister dying and your mother being diagnosed with terminal cancer, you also suffered the loss of your dog who had been a great companion and comfort to you. 

5. In your younger years you grew up in Frankston and ultimately attended John Paul College until part way through year nine when you were expelled. You then attended Mount Erin Secondary College until the start of year 11. It was at that point you went overseas with your mother for a period of time. You have not had a very consistent work history and have worked intermittently in various jobs including labouring positions, factories and as a fencer. 

6. You have had unstable accommodation in boarding houses and hotels and have spent time in various psychiatric wards over the years. It would appear that the apartment block that you were living in at the time of the offence, the Ambassador Apartments, was an environment that regularly attracted the attention of police. It was in this environment where you had developed conflict between yourself and some of the individuals living there. 

7. You have had an unfortunately long history of abuse of drugs and alcohol. You began smoking cannabis at the age of 15 on a daily basis and you were consuming about 3 to 4 grams a day prior to being remanded on these offences. Prior to this offending you were also using ice on a daily basis. In relation to the offending, you stated to psychologist Carla Lechner that you had had no sleep for a week and that you were using about 1.7 grams of ice a day. It was in this condition that you decided to enter the unit in the way that you did with the chainsaw. 

8. Ms Lechner prepared a report which was tendered on the plea. While she only assessed you for a short period of time, she is of the opinion that you displayed symptoms of major depressive disorder in the context of acknowledging your personal losses which I have outlined above, the most recent being the suicide of your sister about six months ago. Ms Lechner says that you have some insight in relation to the nexus between your mental health issues, your drug and alcohol issues and your offending behaviour with a desire to engage with proper services to develop more adaptive ways of managing these issues.

Sentencing considerations

1. Mr McGlone who appeared on your behalf, highlighted the formal matters in mitigation.  First and foremost is your plea of guilty which entitles you to a discount on your sentence. In your interview, while initially denying the offence, you were then frank and forthright in explaining your involvement in it. I consider your plea of guilty as an early plea and it reflects a willingness to facilitate the course of justice. Most importantly, it avoids the need for witnesses to give evidence in court.

2. Over and above the plea of guilty, Mr McGlone submitted that there is evidence of genuine remorse. In interview with Ms Lechner you said the following: ‘I was on ice, I had a 1.7 that day and no sleep for a week, I’d given him a television… I thought I’d reclaim the television and on the way I picked up a chainsaw, I thought I’d destroy the television with the chainsaw …then I started crying and I thought I was a dickhead... the door was already kicked in and I cut it on the way out.’  You also said ‘I did a stupid thing, I was there to destroy the television… I took the chainsaw so he wouldn’t come near me’.

3. Ms Lechner also reports that you stated that you were deeply ashamed and that you had no problem with the victim and acknowledged that you were adversely affected by ice and sleep deprivation. 

4. In the circumstances, while it has taken you time in custody to dry out, I accept that you now have insight into your behaviour and that you acknowledge that you were adversely affected by ice which influenced your choices on that night. I accept also that now with the passage of time, you have demonstrated a degree of remorse for your actions. 

5. Mr McGlone also highlighted your difficult background and significant personal losses you have suffered in recent times. I accept that these losses would have a significant impact on you as you were struggling with your other issues. 

6. Mr George Thompson, an addiction specialist and the clinical director of Recoveroz, provided a letter to the court outlining the service that Recoveroz provides. Mr Thompson also gave sworn evidence on the plea. Recoveroz is a residential drug and alcohol rehabilitation facility which provides a structured full-time treatment program.  Mr Thompson assessed you as suitable for the Recoveroz program and has indicated that a place will remain open for you upon your release from prison. 

7. Mr McGlone submitted that the most appropriate disposition in all the circumstances is a community correction order which would address punitive considerations and also therapeutic considerations relevant to your individual circumstances. It is well-settled that a community correction order is a punitive order that enables a flexible approach to incorporate other sentencing considerations and importantly, in cases such as yours, therapeutic conditions. Mr Thompson indicated that he has worked in the past with Corrections Victoria and that his facility is able to be utilised as part of a therapeutic condition attached to such an order.

8. Ms Bruhn quite correctly highlighted the important sentencing considerations in cases such as this, general deterrence being a paramount sentencing consideration.  Further, protection of the community, denunciation of your conduct and just punishment are also important sentencing considerations. In your case, while specific deterrence has a role to play, despite your very difficult background and long-term drug problems, you do not have an extensive criminal history. In fact the only matter on your criminal record is an appearance in 2017 in relation to a breach of a family violence safety notice and some associated charges which is entirely unrelated to this offending. In that instance the victim was your father and I was told on the plea that you have had a difficult relationship with him over the years.

9. The prosecution submitted that a combined sentence pursuant to section 44 of the Sentencing Act 1991 would be an appropriate sentencing disposition however Ms Bruhn submitted that you should serve a further period of custody before being released on the community correction order component of that type of sentence.

10. I have had you assessed for a community correction order and you have been assessed as suitable.

Sentence

1. Mr Cox please stand. 

2. Christopher Cox, in relation to charge 1 on the indictment, aggravated burglary, you will be convicted and sentenced to 10 months imprisonment as part of a combined sentence pursuant to s 44 of the Sentencing Act 1991. Following that period of imprisonment you will be placed on a community correction order for a period of two years. The community correction order will be an order with punitive and therapeutic components. You will be required to complete 150 hours community work and engage in programs to further address your drug and alcohol use and your offending behaviour. There will be further conditions to address your mental health issues and programs to reduce reoffending.

3. On charge 2, damaging property, you will be convicted and placed on the same community correction order. 

4. The intention is that on your release you will directly attend the Recoveroz program and that the program will be utilised as part of the therapeutic component of the order.

5. Because you will be engaging in intensive rehabilitation at Recoveroz, pursuant to s 48CA of the Sentencing Act 1991, I direct that all of the hours that you satisfactorily complete pursuant to the treatment and rehabilitation condition may be credited as hours of unpaid community work.

6. Pursuant to s 18 of the Sentencing Act 1991, I declare that 269 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.

7. While it is difficult and somewhat artificial to make a statement pursuant to s 6AAA of the Sentencing Act 1991 when I have decided to sentence you pursuant to s 44, if not for your plea of guilty I would have sentenced you to a period of imprisonment of 3 years with a non-parole period of 2 years.