Director of Public Prosecutions v Cox
[2016] VCC 1115
•29 July 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-10-01194
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| ANTHONY MICHAEL COX |
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JUDGE: | HIS HONOUR JUDGE DEAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 July 2016 and 20 July 2016 | |
DATE OF SENTENCE: | 29 July 2016 | |
CASE MAY BE CITED AS: | DPP v Cox | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1115 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S. Locke | Office of Public Prosecutions |
| For the Accused | Mr J. Anderson | Balmer & Associates |
HIS HONOUR:
1 Anthony Michael Cox, you have pleaded guilty to the following offences –
2 (i) Aggravated Burglary contrary to s.77(1) of the Crimes Act 1958. The maximum penalty for that offence is 25 years imprisonment;
3 (ii) Recklessly Causing Injury contrary to s.18 of the Crimes Act 1958. The maximum penalty for that offence is five years imprisonment; and
4 (iii) Armed Robbery, contrary to s.75A(1) of the Crimes Act 1958. The maximum penalty for that offence is 25 years imprisonment.
5 Committal proceedings were conducted on 6 July 2010 at which the victim of your offending was cross-examined. You pleaded guilty at an initial directions hearing in this court on 15 October 2010. Following your plea you absconded from bail which is a matter I will return to in these reasons. In such circumstances it is not submitted that your plea should now be characterised as at an early stage in the proceedings. But despite this your plea has saved the community the expense of a trial and it is limited evidence of remorse on your behalf at the time of your plea. I have taken your plea of guilty into account in your favour in mitigation of sentence.
6 You have admitted a criminal history of offences committed prior to your offending in this instance. Those convictions include offences of violence. You have also admitted convictions for offences in New South Wales after you absconded from bail. However you have not offended since 25 November 2010 and this is a matter of significance in the circumstances of this case.
7 A prosecution opening was read to the court and tendered in evidence and your offending maybe summarised as follows -
8 In late 2009 you and the victim of your offending resided in a boarding house in Clayton. In November 2009 the victim complained to the police that you had stolen property from him. The matter was investigated by police and you were charged with theft. Following this you moved out of the boarding house. In the early hours of the morning of 2 March 2010, you telephoned the victim and threatened him. At 6.30 am that day you forcibly entered the victim's bedroom in the boarding house. You were armed with a knife. You threatened the victim and slashed his left arm with the knife causing a deep 8 centimetre long wound. You demanded money from him in an apparent effort to recover $30 that you believed he owed you. You then took his wallet and telephone and left the premises. The police had been notified of the disturbance and you were immediately arrested by them. You were charged and remanded in custody. The victim was conveyed to the Monash Medical Centre where his injury was treated and stitched. I have received in evidence a victim impact statement of the victim dated 15 July 2016 and I accept that your offending has had an ongoing traumatic effect upon him.
9 Plainly your offending is very serious and the sentence that I impose must be calculated to deter you and others from offending in this way. You must also be punished for your terrifying attack on the victim in the safety of his own bedroom. Persons residing in such circumstances must be protected by the courts from violent offending of this type.
10 Before turning to your personal circumstances it is desirable to set out a chronology regarding your absconding from bail as that has given rise to a delay of approximately six years in you coming before a court to be sentenced.
11 As I have observed, you pleaded guilty at an initial directions hearing on 15 October 2010. Your plea hearing was listed for hearing on 1 November 2010. You failed to appear on that date, and a judge of this court issued a warrant for your arrest. You travelled to Queensland and worked there for approximately five months before returning to Victoria in 2011. You absconded with your then partner and child who was nine months old. Your partner was also pregnant with your second child who was born in 2011.
12 The victim of your offending in New South Wales in 2010 was your then partner. Upon your return to Victoria you and your partner separated and you went to live with your mother in Hastings where you continued to reside. In late 2015 you sought legal advice regarding the outstanding warrant for your arrest but it remained extant until 28 March 2016 when you attended Rosebud Police Station to make a witness statement in relation to a boating accident. You were re-bailed after that warrant was executed.
13 I now turn to your personal circumstances -
14 You were born on 17 July 1982 in Gippsland and are now aged 34. You were 27 at the time of your offending. Your father was a prison officer and your mother worked in aged care. You have two siblings. Your parents divorced when you were ten years old and following this your development was significantly disrupted. You spent many of your teenage years with your father who was an abusive alcoholic. His behaviour and its effect upon you no doubt contributed to you developing polysubstance abuse disorder. Your formal education was also disrupted and you attended Caulfield Community School which specialised in teaching children with behavioural difficulties. You left school at the end of Year 10 and began an apprenticeship as a butcher.
15 From the age of approximately 14 in 1996 until your return to Victoria in 2011 you abused a range of illegal drugs of dependence and alcohol. I accept that your offending which is before this court occurred when you were significantly drug affected in all probability by amphetamine. Your criminal history also supports the finding that when intoxicated by alcohol or illicit drugs or both, you are prone to violence.
16 As I observed during the course of the plea in mitigation, it my opinion it is almost inevitable that you would have been sentenced to a term of imprisonment had you been sentenced in 2010. You were no doubt aware of this yourself and it would have been a factor in you absconding and continuing to remain at large for in excess of five years.
17 I heard evidence from Mr Stephen Johnston, your employer, and a reference written by him was tendered in evidence. I accept that you are now drug free and have been so for a number of years although you have recently used small amounts of cannabis in response to the anxiety you are experiencing as a result of these proceedings.
18 I also accept that you are engaged in stable employment and have a close and active parenting role in respect of your three children. In my opinion it may fairly be said that your rehabilitation in relation to your drug addiction and associated violent offending is now virtually complete.
19 During the course of the proceedings an issue arose as to the circumstances of you attending the Rosebud Police Station on 28 march 2016 at which time the warrant for your apprehension was executed. As I have already stated, prior to this, in late 2015, you had received legal advice.
20 Your counsel submitted that I should accept that when you attended the police station you knew that in all probability the warrant would be executed.
21 The prosecution disputed this, submitting that you had taken the chance the warrant would not come to light. On the evidence before me, I am not satisfied that it is probable that you believed the warrant would come to light. In my opinion you continued to hope that it would not, but feared that eventually it would. Nevertheless as I have said, delay is a significant factor in this case.
22 In Marshall v The Queen [2011] VSCA 130, the Court of Appeal said at paragraph 20,
"It is not in doubt that the very fact of delay regardless of its cause is of relevance to the sentencing process. It is of particular importance if the offender has taken steps toward rehabilitation in the period of the delay. But there is also the fact that the offender has had the matter hanging over his or her head during that period. On the other hand if an offender has absconded from bail such rehabilitation as is demonstrated will be accorded less significance. One way of achieving the balancing of considerations is to reflect the rehabilitation in a shorter non-parole period that would otherwise have been imposed."
23 In my opinion these principles are applicable to the circumstances of your case.
24 It was submitted by your counsel that a Community Correction Order is the appropriate sentence to impose in the circumstances of this case. The prosecution accepted that a Community Correction Order is appropriate in conjunction with a term of imprisonment. Accordingly I directed that you be assessed for a Community Correction Order and Corrections Victoria has reported to the court that you are suitable for such a disposition with particular special conditions.
25 Your case poses a difficult sentencing exercise requiring the balancing of a number of competing sentencing considerations. In my opinion that balance requires me to impose a term of imprisonment upon you albeit of considerably less duration by reason of the delay in this case and your successful rehabilitation.
26 In the result, the sentence of the court is as follows -
27 On the charge of Aggravated Burglary you are convicted and sentenced to be imprisoned for six months. I declare that you have served 36 days by way of pre-sentence detention not including today. But for your plea of guilty I would have imposed a term of imprisonment of nine months.
28 On the charges of Recklessly Causing Injury and Armed Robbery, you are convicted and released on a Community Correction Order for a period of 18 months on the core conditions provided for in the Sentencing Act.
29 I further order the following special conditions –
30 (i) You perform unpaid community work of 75 hours during the period of the order;
31 (ii) You undertake testing and treatment in respect of drug addiction;
32 (iii) You undertake testing and treatment in respect of alcohol abuse.
33 HIS HONOUR: Mr Cox, do you agree to entering an order on those terms?
34 OFFENDER: Yes Your Honour.
35 HIS HONOUR: All right. It will be prepared. You will have to sign it. That order will commence upon your release from prison which will be in six months less 36 days from today's date. So you will be required to serve about four months and three weeks or thereabouts before you will be released and then you will commence the Community Correction Order. I have made the ancillary orders sought by the prosecution.
36 MS LOCKE: As Your Honour pleases.
37 MR ANDERSON: As Your Honour pleases.
38 HIS HONOUR: Thank you, we will adjourn until 10.30.
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