Director of Public Prosecutions v Cox

[2017] VCC 1754

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-17-00851

DIRECTOR OF PUBLIC PROSECUTIONS

v

SIMON COX

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	9 June 2017
CASE MAY BE CITED AS:	DPP v Cox
MEDIUM NEUTRAL CITATION:	[2017] VCC 1754

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Guesdon
For the Accused	Mr S. Moglia

Pages 1 - 6

 

 

HIS HONOUR: 

1Simon J. Cox, you have pleaded guilty to one charge of conduct endangering life, two charges of theft and one charge of obtaining property by deception.  Those crimes all carry a maximum penalty of ten years' imprisonment.

2You pleaded guilty prior to a committal and I regard that as being at a reasonably early opportunity.  I accept that in this scenario, because of a letter that you have written to me, that you are expressing, at least now, appropriate remorse.  I also take into account the milieu in which all this took place.  You must also of course get the utilitarian benefit of that plea of guilty in circumstances where you perhaps - where the main Crown witness was an informer, may have had a chance.

3The co-accused, other than the informer, have not been dealt with and I must be careful what I say in terms of findings of fact because I might have to deal with that trial, so for those reasons this summary of facts will be very brief.

4You do have a significant criminal history.  You had years of drug use and it reflects itself in that history.  Significantly, you have four prior convictions for armed robbery and have been gaoled on a number of occasions.  I am informed from the Bar table, and accept, that those armed robberies did not involve the use of firearms.  However, you do have an extensive history involving dishonesty and at times violence.

5A summary of the offending can be done in very brief compass and I will direct that the Crown opening remain on the court file.

6In early 2016, on the information before me, and these cannot really be findings of fact for the reasons I have outlined, one, Matthew Smith, was having a turf war with one, Ashley Smith, in relation to drug dealing in the Wonthaggi area.  Matthew Smith enlisted the aid of three people to use firearms to intimidate and scare Ashley Smith at his home in White Road in Wonthaggi.

7On the material before me, those people were you, Mr Cox, a Mr Van Able and a Mr Napier.  At approximately 2 am on Sunday 17 April 2016, the four of you arrived at the home of Ashely Smith and fire a number of shotgun charges in shed whilst a number of persons were inside; that gives rise to the conduct endangering life charge. 

8You stole an SS Commodore from the premises, which was subsequently burnt; that is Charge 2, theft of the motor vehicle.  From that vehicle were taken, a credit card in the name of Ashley Smith, which was then used by you, Mr Cox, to obtain approximately $200 worth of property, the petrol and other similar type of items; that gives rise to the third charge of theft the obtain property by deception. 

9In brief, it would appear that the four of you - sorry, that the ones who attended the premises were all carrying sawn-off firearms.  Afterwards, a 12 gauge sawn-off was recovered.  Approximately nine shots were fired into a shed at the back of the premises in those early hours of the morning. 

10I have had a view of the photographs and if they had been sawn-off firearms.  It must have been pretty close to the shed when the shots were fired.  However, it is clear from what I can see in those photographs, you and your co-accused would not have been able to see where people were within that shed if indeed that you knew that they were in there.

11However, the recklessness is persistent in that nine shots were fired and the courts have long regarded the endangerment of others by the use of firearms as serious examples of the offence of reckless endangerment.  I have been given comparable cases by the Crown and I take those into account. 

12I accept that at the time of the offending, you were probably heavily intoxicated with various substances and you later claimed not to remember when speaking to the police.  I have grave doubts about that but the fact of the matter is you have pleaded guilty to all this.  An aggravating feature is that you were a prohibited person at the time from possessing or using a firearm at the time, as were two of your co-accused. 

13In any event, that is what the offending is about.  As your counsel very sensibly has conceded, that a significant gaol term is the only available sentencing option in your particular situation.  I have, before me, materials in mitigation, a report from Arbias, dating back to 2012 and report from psychologist, Pamela Matthews, dating back to around about the same period.

14Also before me is a letter from yourself, expressing your desire to now, at least, endeavour to rehabilitate, and a long letter from your mother which explains your background, the dealings that you had throughout your life and when, the fact, that when you are in a contained, it would seem, situation and drug free, that you are a relatively responsible person. 

15Back in August 2012, you were given a sentence for armed robberies of three and half years, with a minimum non-parole period of two years and six months.  As I understand it, and I accept what your counsel tells me, you had been in a relationship over an extended period of time with a woman who was of great assistance and was helping you in terms of your endeavours to rehabilitate.

16You, because of a dirty drug screening, were breached on your parole and taken back into custody.  You accordingly did the entire sentence.  It was during that last period of time that you were taken back, that is the six months that the lady that I have referred to, who was your main supporter in the community, died.  It was in those circumstances and following your release in January 2016, that this offending occurred.  Your counsel describes it as a relapse and that was probably how it all came about. 

17I am not going to this because of what may occur in the future.  I am not going to start to delineate between the people involved in all this.  The simple fact of the matter is that you cannot do what you did.  The report from R. Bias, which was obtained to see if there was an acquired brain injury said:

"There continues to be evidence of inefficient planning and organisation abilities, as well as reduced speed of thinking when tasks become more complex or place demands on multitasking.  Whilst it's possible Mr Cox may have sustained a mild brain injury following reported overdoses on chrome paint in 2003, the more parsimonious explanation for his pattern of weaknesses is that they were long-standing and reflective of a verbal learning difficulty in combination with ADHD, and exacerbated by his relatively limited schooling."

18It said there is no convincing evidence that you have an acquired brain injury.  Matthews summarised your circumstances as such, and I am not going to go into your whole family history.  She describes you, at that time in 2012 as a
26-year-old man of immature and disorganised presentation with a long history of behavioural difficulties, schoolyard fighting, and she thought it was suggestive of a conduct disorder.

19You commenced using cannabis prior to the age of 12, alcohol around about the same time.  You chromed from the ages of 13 to about 17 and I interpolate that - I mean, dealt with many people in that.  You have chromed over an extended period of time and that certainly affects your capacity for rational thought. 

20She took the view that you met the DSM-IV diagnostic criteria for anti-social personality disorder, and she thought that contributing to that diagnosis were the residual symptoms of attention deficit hyperactivity disorder.  She also said that you presented with an overlay of post-traumatic stress disorder in relation to being attacked with a knife in 2009 and remained hypervigilant and still bothered by ruminative memories of the assault.  Back then, so far as the armed robberies were concerned, it was suggested there was a link between that and the offending. Not so this offending.

21You counsel in this situation does not rely on any of the principles in Verdins, but I sentence you as a person who has had a number of very significant incidents in your life, mental health issues which have clearly been very detrimental to you as the years have gone by. 

22I have discussed the difficulties you may have in getting parole.  I can just simply say this, that what I would ask is if the parole board, when that parole becomes due, take if they can a benevolent view of your circumstances and release you into the community with the appropriate supports.  It seems that when you do have those supports, that your chances of rehabilitation are improved somewhat dramatically. The prospects of your reoffending are totally dependent upon whether you can rehabilitate. You may well be already institutionalised.

23The offending is serious.  It calls for the application of general and specific deterrence as well as denunciation and appropriate punishment.  Drugs and guns simply do not mix, and I think the community and the legal system is getting a bit sick of it. 

24But in any event, doing the best I can, taking into account the mitigating matters on your behalf, on Charge 1 of reckless endangerment, 30 months.  On
Charge 2 of theft of a car which was then destroyed, 12 months.  Charge 3, one month.  Charge 4, one month.  I direct that six months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed upon Charge 1, which gives an effective head sentence of three years. 

25I direct that you serve a minimum term of two years before becoming eligible for parole.  So far as Charge 2 is concerned, I direct that any license to drive a motor vehicle be cancelled and you be disqualified from obtaining a license for six months. 

26I direct that 401 days be reckoned has having been served under this sentence. I say that but for your plea of guilty, pursuant to s.6AAA of the Sentencing Act, I would have sentenced you to be imprisoned for four years with a three year minimum.  There is no other orders I have to make. 

27MR MOGLIA:  Nothing, Your Honour.

28MS GUESDON:  No, Your Honour.

29HIS HONOUR:  No?  It is all right.  Yes thanks, Mr Moglia.

30MR MOGLIA:  As Your Honour pleases.

31HIS HONOUR:  Thank you for that, you are excused.  Thanks, Mr Cox. 

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