Director of Public Prosecutions v Cox

[2017] VCC 1794

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00831

DIRECTOR OF PUBLIC PROSECUTIONS

v

TYLER COX

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	12 September and 29 November 2017
DATE OF SENTENCE:	29 November 2017
CASE MAY BE CITED AS:	DPP v Cox
MEDIUM NEUTRAL CITATION:	[2017] VCC 1794

REASONS FOR SENTENCE
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Subject: Attempted armed robbery. Summary charge: committing indictable offence whilst on bail.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Trotman	Office of Public Prosecutions
For the Accused	Ms H. Cooper	Leanne Warren and Associates

HIS HONOUR:

1Tyler Cox, you have pleaded guilty to one charge of attempted armed robbery.  That is punishable by a 20 year maximum term of imprisonment.  You have also pleaded guilty to one summary offence, committing an indictable offence whilst on bail.  That is punishable by a maximum of three months' imprisonment.

2You are 22 years of age. You have no prior criminal history.  There are some matters that have been dealt with, subsequently, at two court appearances in the Magistrates' Court.

3The details of your offending are set out in Exhibit A, which is the written summary of prosecution opening on the plea, and that is dated 15 August 2017.  Your counsel told me that this was an agreed statement of facts and I will sentence in accordance with that agreed statement.  In those circumstances I really do not see the need to fully re-state the sentencing facts; I will say something briefly about them though.

4As you know, you attended at a Coles Express petrol station at about 6.25 in the morning on 29 January of this year.  You were 21 years of age at that time.  You asked the attendant for some cigarettes.  Your victim got the $19 cigarettes out and asked for payment.  You said that you did not have enough money and you asked if you could have them.  He said without payment he could not give you the cigarettes and you then threatened to stab him if he did not give you the cigarettes.

5You attempted to grab the cigarettes and then you produced a knife.  The console operator then stepped away into a backroom and locked the door whilst you climbed over the counter and through the security wires.  You then rummaged around behind the counter before leaving empty handed.

6You were on bail at the time and handed yourself in a few days later in relation to some outstanding warrants.  That was on 2 February of this year.

7You have been identified from the CCTV footage and also left a fingerprint at the scene.  Your image had been circulated and upon handing yourself in for the outstanding warrant, you then subsequently volunteered to be interviewed, which you were on 6 February of this year.

8You made very full admissions and were clearly very remorseful.  You pleaded guilty at the earliest opportunity.

9There is no victim impact statement in this matter, your victim has chosen, for whatever reason, not to make one.  But it is obvious enough that this was a frightening event, how could it not be?  And you say as much in your interview when you view the event.

10Ms Cooper, who appears for you today also appeared on 12 September and conducted the plea on your behalf on each of these dates.  She raised a number of matters in mitigation, relying primarily upon your early guilty plea, your remorse, your level of cooperation, your youth and your absence of any prior criminal history.  She took me to a discharge plan from the Peninsula Mental Health Service, a letter from your mother, as well as evidence of courses and programs that you had done whilst in custody.  There was a report from Dr Aaron Cunningham and there were some mental health considerations raised in that report that she relied upon as well.

11On 12 September of this year, when the plea originally was conducted before me, she was relying very much on the existence of the subsequently imposed fresh community corrections order and the varied order on that same day.  And the fact that you had spent some time in custody on those matters.

12She conceded that the offence that I had to deal with was serious, of course it was.  I am speaking of the attempted armed robbery, though she was arguing on 12 September that you could be released on community corrections order.  Indeed, on that date, what she was really urging me to do was to defer sentence to see how you were travelling or how you were to travel on the existing order that had been imposed only a short time before.

13I did adjourn the case.  But as you know, I called for an extended pre-sentence report.  And things have not gone well since last I saw you, that much is plain enough.

14Mr Trotman who appeared both - on the first occasion and again today on behalf of the Director of Public Prosecutions had originally argued that it would be open to either imprison you or to release you on a community corrections order.  But that was a matter for the court.

15He made submissions on the last occasion, back in September, as to the serious nature of the crime, the relevant sentencing purposes, including the importance of general deterrence in a case such as this.  He argued back then that one could only be relatively guarded as to your future prospects, given the chronology of offending placed before me.  Including the fact that you were on bail at the time of the offence and that you continued to offend, notwithstanding, being on a community corrections order and having seen the inside of a prison.

16Now, those submissions have materially altered as a result of what has occurred in the interim period since September.  That is owing to your complete lack of response to the existing community corrections orders and your complete lack of engagement with Corrections, since I saw you on 12 September.  Indeed, that included, also, the fact of your failing even to appear at the time of the resumed plea on 17 November.

17The prosecution really were arguing that a community corrections order was no longer an option, given your lack of performance and lack of engagement. That the only appropriate disposition was a term of imprisonment.

Background

18I turn to your personal background that was placed before me, both in the plea and also in the oral submissions addressed by your counsel.  But it was contained, also, in the report of Dr Cunningham.  I have no reason to doubt the material placed before me, as to your personal background.  So I do not see the need to set it out in great detail.  Your actual background does not really explain this offending.

19You are 22 years of age, born in May 1995.  You are one of four children.  Your parents separated about seven or eight years ago, as I understand it.  You completed VCE and you have worked pretty consistently since leaving school.  You have no prior criminal appearances, though as I have said you have been to court since and you have been placed on two community corrections order.  Firstly, in March 2017 and more recently on 23 August.

20On each of those occasions you had spent sizeable amounts of time in custody in the lead up to the order being imposed.  All up, it was about 143 days.  Those orders are now going to be breached, as the pre-sentence report makes plain, that is now Exhibit C.

21It was clear enough to me on the last occasion that you had family support.  Your mother had prepared a very long and detailed letter, and it is clear enough that you were out of control of the time of this offence.  Your mother spoke in her letter of you losing your way, that your conduct was really starkly out of character.  I would have no doubt it was.  Your mother expressed her surprise about what you had done but so too did you in your own police interview.  You seemed shocked that you had sunk to such a level.

22There has been some problematic drug use.  Mainly, following the breakdown of an intimate relationship.  The drug use started when you were about 19 or 20, though there are different accounts, I think, in the materials as to the commencement date.

23Following your release from prison in late March you relapsed into drug use and you developed some mental health issues, including some auditory hallucinations.  Seemingly, it was a drug induced psychosis.  And again, the discharge summary is Exhibit 4 in the materials, and I do not see the need to further traverse it.

24It was following your release that you experienced for the first time what are said to be 'flashbacks' of being sexually abused by your father.  It can have had no connection at all to your offending, which had occurred earlier in January of this year, of course, prior to any such flashbacks.

25I have referred already to the report of Dr Cunningham and that was Exhibit 2 on the plea.  I take into account that report.  As I have said, he sets out your background in great detail.  There was really nothing in that report, in anyway, reducing your culpability for this offending or lessening the weight to be given to general and specific deterrence.  Your counsel was not relying upon the report in those ways.  She made plain in her submissions to me that that was the position.

26Dr Cunningham applied the diagnostic label 'post-traumatic stress disorder' to describe your condition.  That is pertaining to your sexual abuse as a child and your response to those acts perpetrated upon you.  That condition really has no connection to your offending, as far as I can see.  Though, I am prepared to accept your counsel's submissions that it probably increased your custodial burden to a degree.

27The trouble is that these things can be clouded by other aspects.  Including, of course, the very sizable drug use you spoken of in the interview.  In the interview with police you described yourself as being - as you put it, "Off your chops".  That is to say, profoundly affected by a sizable amount of drugs that you had ingested in the lead up to the commission of this offence.  Your drug use and its contribution to your offending, by way of disinhibition, is not mitigatory.

28Your counsel was relying really, in a very limited fashion, upon the psychological issues.  I am ultimately prepared to give some very modest weight to the fifth of the Verdins principles, dealing with the increased custodial burden.  It is a modest allowance; I will give it some weight but not much.  The sixth limb, as far as I can see, is not enlivened in this case at all.  There is no evidence before me supporting that matter and your counsel ultimately abandoned that submission as to the application of the sixth limb.  I believe correctly so.

Guilty Plea

29Turning then to some of the other matters raised in mitigation.  Well, the first of those is your guilty plea.  You have pleaded guilty and I accept that that has a strong utilitarian value here.  It was entered at the earliest opportunity.  Witnesses, including your direct victim have been spared the experience of coming to court to give evidence.  The community has been saved the time, cost and effort of a committal hearing and for that matter a trial up in this court, and that is a matter of some significance.

30In these ways you have taken legal responsibility for your offending. You have facilitated the course of justice and I will be passing a lesser sentence upon you because of your guilty plea and the early stage that it was entered here.  I also do take into account your very full cooperation with the police, which again is something I can have regard to in mitigation.

31As I said a moment ago, you cooperated - I think - very fully with the police.  You agreed to be interviewed when you need not have and then you made very complete admissions.  You identified yourself in the CCTV footage and you expressed your shock at what you had done and conveyed your real regret for the victims predicament; a predicament owing to your own conduct.  You apologised.

Remorse

32You backed that up by pleading guilty at the earliest stage and I must say there is not the slightest hint - to me at least - of your revelling in or downplaying the seriousness of your crime.  I have no doubt at all that you are actually genuinely remorseful for what you have done; for your crime and I take that into account in mitigation.

Youth

33I turn now to your youth.  You were only 21 when you committed these offences and you are still only 22 now.  Very young.  You have no prior convictions at all and I do not lose sight of the fact that you are still so young.  Youth is ordinarily a very important factor in the sentencing exercise and for good reason.  That is because young people are more likely to commit errors of judgement, they are more likely to be impulsive or rash, they are more likely not to consider consequences; they are not fully developed.  As a result they can lack insight and they can lack judgement.

34As importantly, they are capable of rehabilitation and of change for the better.  So rehabilitation is therefore a very important matter, with a real added emphasis in the case of a young offender.  Especially a young first offender, such as you.

35It cannot be forgotten that with rehabilitation of such a person we have protection afforded to the community.  Prison can derail that process.  We all know or those who at least sit up in these courts know that prison can corrupt rather than rehabilitate.

36It is for these and many other reasons that youth is ordinarily a very powerful factor, indeed, and it is here.  The community still has a sizable stake in your rehabilitation, as it does in the rehabilitation of any young offender, and so do the courts.  It is for these reasons and others that ordinarily less weight is given to general deterrence and to punishment and there is a greater emphasis placed on rehabilitation.

37But these principles that are focused on by your counsel, principles set out in cases such Mills and Azzopardi, they do not apply equally in every case where there is a young or youthful offender.  The weight to be given to youth, necessarily, will vary from case to case.  The more serious the crime, the more likely it is that there will be greater prominence given to deterrence, to protection of the community, to denunciation and to punishment.

38So then as the level of seriousness of criminality increases there is therefore, generally speaking, a corresponding reduction in the mitigating effect of youth.  It is a rare case, indeed, where the mitigatory consideration of youth is all but extinguished and this is clearly not such a case, I make that very plain.  Your youth is not unimportant.  Indeed, it is very important to my task and some of the purposes of sentencing surrender some ground to youth and rehabilitation.

39If only you had tried a bit harder on the community corrections order since last I saw you.  But you have not and I do not really know why you have not, just that you have not.

Rehabilitation

40I turn now then to your prospects of rehabilitation.  As you know, your counsel, when you were originally before me was seeking a deferral of sentence.  And one of the reasons underpinning that approach being urged upon the court was because of the fact that you had been placed on that new community corrections order on 23 August, plus the re-sentencing exercise on the variation of the other one on the same day.  So those orders were then in their infancy.  She was arguing at that stage, back in September, that it had hardly been a handful of days really, that it was difficult to make judgements as to your prospects of rehabilitation, difficult to make judgements about how you were travelling on that order.  There was no point calling for a report back then because you had scarcely been seen.

41She recognised the difficulties posed by the chronology of offending, which included the commission of this attempted armed robbery whilst on bail, your then going to prison for 57 days, coming out upon the first community corrections order and then continuing to offend whilst on that order, and then being taken back to court on the breach.

42She was submitting back in September that you had real prospects of rehabilitation, that you were young, you had no prior convictions, you had been employed in the past and there had been, really, a relatively brief running off rails.  The argument, at least back in September, was that you were essentially back on the rails, that you had seen the inside of a prison on those two occasions, that you did not want to go back, you had used your time usefully in prison and that you were at that stage on that recently imposed community corrections order.  One that was so recently imposed that one really at that stage could not gauge your attitude to the order.  That, in combination with the existence of the strong family support, as evidence by your mother's letter, it was argued should lead to the deferral of the matter.

43Well, I did not formerly defer the sentence.  But what I did do is I adjourned the case to mid-November and I called for a extended pre-sentence report to see how you were travelling on the existing orders and whether you were suitable for any fresh order.  As I have said earlier in these reasons that extended pre-sentence report has been marked now as an exhibit (Exhibit C) and it does not make for happy reading.

44The period since I last saw you has been really a bit of a disaster.  You have not complied with the two existing orders, you have not turned up for the judicial monitoring under the new order that was imposed in August, and you have not turned up for the various assessments that you were asked to attend.

45Indeed, the assessment report commences that you had not attended for the assessment to discuss the current offending.  And I was calling for an extended pre-sentence report and you have not really made yourself available.  The assessment officer actually chased you down as a result of your non-compliance and on a home visit caught up with you, gave you an appointment letter to attend in October, which you then failed to attended.  Sent out another letter advising you of another appointment on 17 October, which you failed to attend.  In the meantime, of course, you failed to attend the monitoring on the - I believe - 10 October under the existing order.  And those two orders that were imposed back in August of this year then are going to be brought back for breach in the Magistrates' Court.

46I was also told about the fact of there being some offending pending, it has not yet been dealt with.  It will be dealt with in January of next year.  But your counsel told me about the fact of your driving a vehicle on 8 September, I think, so really a handful of days prior to coming before this court for the plea in mitigation for the attempted armed robbery.

47There are a number of offences other than the driving whilst disqualified.  I do not want to take those other matters into account against you, I should not.  I do not know at this stage know how they will be dealt with.  But I can certainly act on the strength of your having driven whilst disqualified; your counsel concedes as much.

48So what are your prospects then of rehabilitation?  Well I look at the chronology that led into me first seeing you and then I look at what has occurred since I saw you.  You seemingly cannot comply even when you know you are coming back to both this court and to a Magistrates' Court when there is a court order imposed in the Magistrates' Court, one that you are not complying with.

49I made remarks to you back in September, spelling out to you that compliance in the period of the adjournment could not possibly hurt you, could only help you.  And yet, you have steadfastly - for whatever reason - chosen not to comply with t- in the course of the adjournment.  You have really done yourself no favours and the pre-sentence report makes for pretty pessimistic reading, I am afraid, and that extends even to not attending back before me.

50I again, really did everything in my power to avoid issuing a warrant.  I, in fact, abridged the adjournment originally because I was not sitting on the original adjourned date so I abridged it to 15 November.  You did not turn up on 15 November.  I had been told that you had gone out a couple of days before and not been seen since, which, if was true, would have involved you breaching your bail anyway.

51But I did not issue a warrant on 15 November, I was not happy to do that.  I wanted to extend to you every possibility of attending and so I adjourned the case to late on 17 November.  Then in fact had a member of my staff actually go and post an express post letter to you, advising you of that date and the requirement that you attend.  That is a letter that you did receive because on the 17th I had your counsel back in front of me, she was here but you were not.  She had spoken to you on the phone.  You said that you were at home and that you were not coming to court.

52So you really could not have done much more to damage your cause than you have done since I saw you in September.  The only, I suppose, positive is that you have not committed fresh offences.  But in terms of compliance or showing any sort of ability to comply with any order, you have demonstrated that you have no ability.

53Still, I find that you are remorseful and that is significant.  None of this, as to what has occurred since, changes any of that.  You do not like what you have done, it does not sit comfortably with you that you have committed this offence and that is picked up by your mother's long letter.  She would never have expected this of you and maybe you would not have yourself.

54So that is certainly something I can weigh into the mix in making judgements about your prospects of rehabilitation.  But I must say, I am prepared to find that you have some prospects of rehabilitation but they are conditional upon you leaving drugs alone, they are conditional upon you taking prescribed medication - if it is prescribed to you, not making your own judgements about whether you need it or not.  Leaving illegal drugs alone and probably you getting some treatment for some of the issues that probably underpin your drug use.

55But these are all conditional things.  Your prospects, it is difficult for me to be upbeat about them as a result of what I have seen since I saw you in September and the chronology leading into my first seeing you.  And I must say I have, to some extent, downgraded my assessment of your prospects since last I saw you in September.  How could I not, give your display of an inability to comply, even in the face of going back for monitoring, even in the face of coming back to this court.

56I am prepared to find that you have some prospects of rehabilitation, but it is hard for me not to be guarded at this point.  And they do depend upon you leaving drugs alone and getting some treatment.

General

57I take into, as I am required to current sentencing practices. Current sentencing practices is one of a large range of matters that the court must pay regard to but it is not a controlling factor at all.  Consistency of sentencing is an important objective of the criminal law, but there is never one correct sentence.  And so looking at other cases or looking at statistics is of very little guidance.

58What I have to do is pass an appropriate sentence in your case.  And there are some unusual features here, including your youth and your lack of prior history.  The prosecutor conceded as much in the original submissions made to me and spoke of some other matters unique to you, including, of course, the fact that you had spent, at that stage, about 140 days in custody on those other matters for which you had been placed on those two other community corrections order.

59But of course, things have changed since and they have changed for the worse for you.  They are choices you have made, I am afraid, and I do not pretend to understand why you have chosen not to comply with the orders that you are on.

60As to the offending that I have to deal with and I and I am dealing, really, with the attempted armed robbery when I make these remarks.  Your counsel was not suggesting it was a minor offence. It clearly is not.  But I do accept that it was relatively spontaneous and opportunistic.  It was a relatively brief offence.  It is pretty plain there was no detailed planning here. You were affected by drugs. That is not mitigatory, but it might explain the very much shambolic nature of the offence.  You had no disguise at all, you were not making any attempt to cover your face, you did not even have anything on your feet, you had no gloves on your hands.  I mean, apprehension was almost inevitable.

61There was a hopelessness to the offence, as you asked for the cigarettes and then said that you did not have enough to pay.  I do accept the prosecutions submission that you did not just desist, you then slid over the counter.  Your victim by that stage had gone into the backroom.  But this was a soft-target attempted armed robbery.  It is not a minor offence.

62I am prepared to find that your offence falls towards the lower end of offence seriousness, but it is still a serious crime.  And you were on bail at the time, as you know, which is a matter in aggravation.

63It was committed upon a totally innocent victim, as you know, and you express this sentiment in your interview.  What was that person doing?  He was working.  He was just going about his job in his workplace. He should have been safe there.  But he was not.  And he was not because he was confronted by you as he worked one-up within a petrol station in the early hours of the morning.  He was undoubtedly a soft target, which is why you took him on.

64You possessed a real weapon, it was not an imitation, and you recognised from the CCTV footage how feral you looked and how this might impact upon your victim.  It was a serious crime, make no mistake.  But it is obviously a very long way removed from the most serious examples of the crime of attempted armed robbery.

65I have taken into account all of the submissions that have been made and the exhibits that have been placed before me. Obviously sentencing is never a simple task. It is always complicated.  It is complex indeed, when there is a youthful first offender and one who is committing a serious crime as you have.  It is more complex still when there has been the chronology leading into the offence, that is being on bail, and more complex still when we have then the total non-compliance since being placed on the other orders and since I last saw you in September.

66There are a large number of matters that a court must have regard to and one of those is the maximum penalty, which, as you know, is 20 years' imprisonment for the attempted armed robbery.  I have to pay regard to current sentencing practices and the impact of your crime, but there are other matters as well that I have to take into account.

67Your prospects of rehabilitation are, given your age, a highly relevant purpose for me to consider and I do not ignore them.  However, as I have said, it is hard to be upbeat about those prospects, given what I have seen occur since I last saw you.  Those prospects existed then, I am sure, but they are conditional upon your continued abstinence from illegal drugs.

68You must be punished for your serious crime, though, that has to be just and proportionate punishment.  I must denounce your conduct and I do, and I must consider the need to deter both you and others.

69This sort of offence, and I am speaking now - of - the attempted armed robbery, it is a potentially dangerous offence.  You never know in advance how it will pan out.  How will your victim react?  You have no idea.  How would you react to his reaction?  You have no idea.  It is a fluid offence, things can change and escalate.  Especially, when you are in - such as you put it - a feral state.  Disinhibited by the ingestion of a large amount of drugs.  Escalation is not unheard of and nor are tragic outcome's unheard of for victims, for innocent observers, for people who intervene as good samaritans or even for the offender themselves.  This sort of offence can and does end very badly.  Happily though, this one did not and, of course, what I have to do is pass a sentence for what you have done.

70Community protection is also a matter the court must have some regard to.  I believe I can, to a degree at least, reduce the weight to give to community protection and specific deterrence given your age, your lack of prior criminal history, and your having at least some prospects into the future.

71As I say, I think you are really a long way removed from being hardened criminal and your attitude in the interview displays that to me.  But nor can I ignore the chronology placed before me, both in the lead up to my first seeing you and what I have seen since.

72This court must also seek to deter other people who are minded to commit this type of serious offence.  General deterrence is usually a sizable sentencing purpose, if not the principal purpose for this style of offending.  The prosecutor was arguing that it was the paramount sentencing purpose here.  I have my doubts on that score.  I believe that, undoubtedly, it is an important sentencing purpose; no question about that.  But I believe I can moderate that purpose to some extent, given your age and lack of history.  Rehabilitation is still a very important and significant consideration here.

73So whilst general deterrence is far from eliminated in this case, I just do not believe I should give it the weight it would normally be given, owing to your age and lack of relevant history.

74Your counsel argued, at least back in September, that it was ultimately open to place you on a community corrections order, that the case should be deferred to see how you were travelling in the hope that you were travelling well, then to admit you to a fresh community corrections order.

75Well, that made some sense, I suppose, by way of submission when it was made back in September but that was a few months back now.  And I conveyed to you back then that that outcome was far from being in the bag, it was not.  That I would call for the assessment, that you would do yourself no harm by complying completely in the interim and I would see how you went in the interim period.  Well, of course, as you know, you have done yourself no favours and I do not see the need to set out again the pretty hopeless chronology since I last saw you.  But you really failed to attend almost every aspect of the order.

76You have not attended, you have not spoken about this offence, you have not attended for monitoring, you have not even attended court.  So as I say, you have done yourself no favours and counsel is still battling away on your behalf.  She has been handicapped, to some extent, by your non-compliance since last I saw you.  But she is arguing really that it is still open to perhaps call for a full assessment, yet again, and perhaps even call for a Forensicare report.

77They are the submissions now.  What is plain enough to me is that sending any person to prison is always a matter of last resort for any court, it always has been and it always will be.  I am not allowed to confine any person, unless the purposes for which sentences are imposed cannot be achieved by a community corrections order.

78There has been, I think, reference in the course of the plea to the decision of Boulton v The Queen.  That Court of Appeal decision in the case of Boulton in late 2014, in fact reminded judicial officers that community corrections order are not to be used as get out of gaol free cards, and they have spoken about in later cases.  They are not to be used, they are not to be available for every offender, for every crime committed.  One has to have regard to the particular crime, and the particular offender, and the particular circumstances and then pass the appropriate sentence.

79What is plain and is made plain enough by s.5(4C) of the Sentencing Act is that there is a prohibition upon confining any person, unless the court concludes that the purposes of sentence cannot be achieved by a community corrections order, to which specified conditions are attached.

80So a judge obviously has to pay careful consideration to the purposes for which sentence is to be imposed and then consider whether they can actually be achieved by a community corrections order, either on a standalone basis or in combination with a prison term not exceeding 12 months.

81The question then is whether it is open to me in the sound exercise of my discretion to release you on a community corrections order.  Either on a standalone basis or in combination with a prison term.

82I have received that pre-sentence report and it is a very disappointing approach or stance that you have adopted since September of this year.  But these are choices that you have made in the exactly the same way as you have previously chosen to offend on bail and you have previously chosen to offend whilst on the first community corrections order.

83I do not know why you have made those choices, I do not know why you have chosen not to attend for most the appointments.  I do not know why you have chosen to not attend for the monitoring or for that matter, why you chose not to attend the court case, before me, on 17 November.  But they are undoubtedly choices that you have made.  Even though you seem to recognise, at least on a superficial level, the need for treatment and for counselling.

84But it seems to me that your conduct in the interim - that is the failure to attend, failure to engage, failure to attend for the monitoring, in fact taking every step in your power to breach those orders - that placing you on such an order or even contemplating that has been really put out of the equation by your own conduct.  I just do not believe that it is open to me to place you on such an order and I see no utility in dilly-dallying around any further, given that we have had a couple of months since last I saw you, which has been very disappointingly used by you.

85So I believe that the failures that I have observed in that period, when I put them on top of chronology leading into my first seeing you, leaves me really with no choice but to impose an immediate term of imprisonment upon you.

86I do not believe it is open to me to impose a community corrections order in this case.

Sentence

87I think I will get you to stand up now, if you would.

88On the charge of attempted armed robbery, I will convict and sentence you to a period of 16 months' imprisonment.  That is the base sentence, obviously.  On the summary offence of committing an offence whilst on bail, I convict and sentence you to seven days' imprisonment.

Non-Parole Period

89I am going to fix a non-parole period.  Your counsel spoke, perhaps, of the need for structure and routine in your life.  Well, I cannot work on the theory that the adult parole board will release you on parole, that is not something I can consider.  I have to work on the theory you will serve every day of that 16 months that I have imposed.  But I am going to fix a non-parole period and it is one that is going to recognise, as the head sentence does, the matters in mitigation; including your youth and lack of relevant prior history.

90I am going to order that you serve a period of 8 months' imprisonment before becoming eligible for release on parole.  So it is an eight month non-parole period.  You have spent already six days in custody in relation to this matter, so I declare that you have served six days in custody on this matter and this declaration is to be entered into the records of the court.

6AAA

91If you had pleaded not guilty and been found guilty of these offences, I would have sent you to prison for three years.  I would have fixed a non-parole period in those circumstances of 18 months.

92Grab a seat then for a moment and I will just see if there is anything I have overlooked.  Right, so it is a 16 month term with a non-parole period of eight months, with six days declared and I have made that s.6AAA declaration.  Is there anything I have overlooked at all or not?

93MR TROTMAN:  Your Honour, just to confirm, the seven days runs concurrently.

94HIS HONOUR:  Yes, it is running concurrently.  The seven days on the summary offence, if I had not expressed it, it runs concurrently.  Anyway, I thought I did.  But it is my expressed intention that it run concurrently with the other sentence.  So it is a total effective sentence, therefore, of 16 months, with a non-parole period of eight months.  Any other matters that I need to deal with at all, or?

95MS COOPER:  No, Your Honour.

96MR TROTMAN:  No, Your Honour.

97HIS HONOUR:  All right.  So Ms Cooper, he's been in custody and he's been in custody before, of course.  So are there any sort of custody management matters that I really need to deal with or not?

98MS COOPER:  No, I don't think there is, Your Honour.

99HIS HONOUR:  All right.  Let me just look at the order then I'll see if it's in order.  Look, I've signed that order, so - Ms Cooper, are you going to go down and see your client in the cells.

100MS COOPER:  Yes, Your Honour.

101HIS HONOUR:  Yes, all right.  Well that completes the matter then, Mr Cox.  So Ms Cooper will come down and see you downstairs, all right?

102OFFENDER:  Thank you, Your Honour.

103HIS HONOUR:  Righto.

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