Director of Public Prosecutions v Cox

[2015] VCC 179

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

AT SHEPPARTON
CRIMINAL JURISDICTION

CR 15-00012

DIRECTOR OF PUBLIC PROSECUTIONS

v

ZACHARY COX

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JUDGE:	HIS HONOUR JUDGE PARSONS
WHERE HELD:	Shepparton
DATE OF HEARING:	24 February 2015
DATE OF SENTENCE:	24 February 2015
CASE MAY BE CITED AS:	DPP v Cox
MEDIUM NEUTRAL CITATION:	[2015] VCC 179

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

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J. Livitsanos	Office of Public Prosecutions
For the Accused	Mr D. Mason	Robert Stary Lawyers

HIS HONOUR: 

1You, Zachary Cox, have pleaded guilty before me to one count of common law assault and one count of attempted armed robbery.  The circumstances giving rise to these offences are fully set out in the summary of prosecution opening, which is an exhibit in the plea before, and that is Exhibit A.  Mr Livitsanos read that document to the court this morning and I will therefore only briefly summarise the salient aspects of it with respect to the two counts.

2On Wednesday 24 September 2014, the two victims were seated in their car in Cobram when you, having consumed excessive alcohol in a nearby house, walked passed their vehicle and asked them for cigarettes.  In due course, you sought further cigarettes and then put on your hand a dog collar which you had earlier purchased and wrapped it around your clenched fist and threatened your two victims with it. You told the driver of the vehicle to leave the vehicle, to turn the car off and leave the keys in the car and get out, and those matters give rise to the attempted armed robbery.  You grabbed the other victim by the shirt and dragged him out of the vehicle and that matter gives rise to Charge 1 of common assault.

3Clearly you were significantly affected by alcohol at the time as your victims observed.  Thereafter, the victim of the attempted armed robbery drove off in the vehicle and you gave chase, but obviously failed to catch up with the vehicle.  The person who was the victim of the assault, took the opportunity to leave the area.  In due course, the driver of the vehicle found her friend and they drove off and reported the matter to the police.  The circumstances concerning your investigation and apprehension are fully set in Exhibit A at Paragraphs 11 to 23 inclusive.  And I do not need to recount that detail at this stage, although it is clear that the police were very shortly able to work out the relevant circumstances and you were arrested, and made relevant admissions insofar as you were able given your state of sobriety.

4There is a victim impact statement tendered in the matter and that is Exhibit B and I have read it and it is clear that the young male was clearly upset given the apprehended violence and remained upset and anxious about the matter even at the time of the writing of the victim impact statement.

5Although of course as was pointed out by your counsel, there are a number of mitigating factors.  You have pleaded guilty and you are entitled to have that fact taken into account in your favour and I do so.  The community has, by your plea, been spared the time and cost of a trial and witnesses have been spared the ordeal of giving evidence upon your trial, and I can tell you the sentence I intend to impose is far less that would have been imposed had you been found guilty after a trial.

6Further, I take it into account in your favour that you intimated early your intention to plead guilty to these charges.  You were relatively quickly apprehended and made such admissions as you were able in the circumstances to your participation in the crime and in the circumstances, I accept that in your case your plea does indicate true remorse for your actions.

7I have been told a little of your personal history and your circumstances.  You are currently aged 23.  Your parents separated when you were aged eight and your father, as you understand it, was an alcoholic, and clearly being in his charge and in the circumstances described, has apparently led you down that similar path.  You attended school and left school at Year 10 from Broadmeadows Technical College and thereafter had a number of labouring jobs.  At present, you are a carer for your partner, who sadly is requiring treatment for some cancer that she has.

8You have had two relationships and children from each.  Your first relationship, there were two children, they both reside in Cobram and you have a child with your current partner who is 17 months old.

9It is clear that your life has been bedevilled by a significant problem with alcohol and that has led you to this offending.

10There is a relevant prior conviction in the sense that it is 2013, although I note that that stalking offence was dealt with by you being released on good behaviour for a period of 12 months and presumably, that reflects that it could not have been a very serious matter.

11Various documents have been tendered on your behalf and they include the fact that there is a letter from your doctor, Dr Yapper, of the Mivo Park Medical Clinic in Cobram, dated 23 February, and it is clear that on 17 February, you told him that you had difficulties with your temper and withdrawal from alcohol and you were seeking his assistance and treatment with respect to those matters, and as I say that if all goes well, no doubt driven in part by the fact that you were going to appear in court fairly shortly, but at least it was better that you acted in that way, than simply leaving it until the day of the court appearance.

12There is also a letter from your partner and also from your mother, and they comprise Exhibit 2, and it is clear that your partner and the recent diagnosis with Stage 4 Hodgkin's Lymphoma has caused great difficulties for both of you and you are currently employed as her carer, and she clearly relies significantly on your assistance.  Your mother has also taken the time to communicate with the court and point out that indeed you have sought to change your life in recent times and deal with your alcoholism.

13You have apparently been in no further trouble since this matter and I am, on balance, satisfied the chances of your rehabilitation depend entirely on your resolve to deal with your alcoholism.

14Of course, as well as those matters personal to you, which I have referred, including the question of your rehabilitation, I must take into account such matters as deterrence and especially general deterrence, which is of considerable importance in a case such as this, involving as it does, two innocent young persons sitting in a car and the threat and violence that was associated with these offences.

15I must also take into account specific deterrence, which I do not regard to be of importance, given the lack of relevant prior convictions.  I also consider the question of the protection of members of the community from you and bear in mind the likelihood of your reoffending, which I find to be entirely dependent on the success with which you approach dealing with your alcoholism and whether you are successful in that regard.

16I will make the orders sought by the prosecution and not opposed by counsel on your behalf, with respect to the confiscation.

17Just one thing, Mr Mason, with respect to the licence, is Mr Cox driving his partner?

18MR MASON:  No, Your Honour, his mother and partner both drive.  I am instructed his mother can help drive him around to his appointments whilst in Cobram and drive him to Shepparton where his supporter will start the first six weeks

19HIS HONOUR:  All right, thank you.  I do not propose, in the circumstances, to order any disqualification.  Is that practicable Mr Livitsanos?  Do I simply order that there is no disqualification?

20MR LIVITSANOS:  Well it depends.  I have indicated, Your Honour, that on a conviction, as opposed to a finding of guilt, Your Honour does not have any powers.  It is discretion ‑ ‑ ‑

21HIS HONOUR:  It is a minimum three months?

22MR LIVITSANOS:  Well there is no minimum.  That is how I read it and that is why I read that to Your Honour that there is actually no minimum.  If Your Honour convicts, and I am assuming Your Honour will.

23HIS HONOUR:  Yes.

24MR LIVITSANOS:  Your Honour must either suspend a licence or permit for a period of time as the court specifies or cancel that licence or permit and disqualify him from obtaining another one for a period of time as the court specifies.  Subsection 5 simply says, if Your Honour then does not specify a period, then the period is three months.

25HIS HONOUR:  All right.

26MR LIVITSANOS:  So Your Honour I do not submit to Your Honour that there is a minimum mandatory.

27HIS HONOUR:  No.  Well I think in the circumstances, what I will do is I will suspend his licence for a period of one week.

28MR LIVITSANOS:  As Your Honour pleases.

29MR MASON:  As Your Honour pleases.

30HIS HONOUR:  And that will commence from today.  It seems to me that the threatened taking of the vehicle, whilst it is a matter that gives rise to the matters that Mr Livitsanos has drawn my attention to, then it does not seem to me to the point to suspend the licence.  Mr Cox, insofar as he utilises his vehicle, will need it to assist his partner and also to ensure that he attends the various appointments and hopefully get some meaningful employment.

31The appropriate order is with conviction, a community corrections order for a period of two years with 200 hours community work and the various conditions, which are recommended by the author of the report.  I agree with those recommendations and Mr Cox, of course, what they all involve is a range of programs and I think it is best worked out between yourself and Mr Billy as to which of those programs are most appropriate in your circumstances.  It may require some expenditure from you as you have of course signed that you understand that, but I just need to remind you that it is a matter that some people do not understand the ramifications of that.  Some courses may be ordered in respect of which you need to pay some fees or costs.

32OFFENDER:  Yeah, that's fine.

33HIS HONOUR:  But as I say, all of those matters are no doubt there to test your resolve to deal with your alcoholism, but as we all understand in the courts, it is an illness and it needs to be approached as an illness and it is a significant illness and it is one which ultimately, fortunately though is curable and entirely curable.  All it needs is you to keep sticking to the decision you have made.

34OFFENDER:  Oh I’m gonna.

35HIS HONOUR:  Which is easy for me to say, but you need to keep on living that each day.

36OFFENDER:  Yeah.

37HIS HONOUR:  And of course, everybody hopes you do and I think particularly your partner, who deserves you to be alcohol free but most importantly, you deserve to be alcohol free.

38OFFENDER:  Yeah.

39HIS HONOUR:  Particularly after you have begun your journey, but it's only beginning and you must remember you have got two years, at least, to make sure you do not default.

40Anything further gentlemen?

41MR LIVITSANOS:  Not in this matter, Your Honour.

42MR MASON:  No, Your Honour.

43HIS HONOUR:  All right, well thank you Mr Cox, you will just need to sign that document at the appropriate stage and then you will be free to go.

44OFFENDER:  All right, thank you Your Honour.

45HIS HONOUR:  Thank you.  Thank you Mr Mason, that completes that matter.

46MR MASON:  As Your Honour pleases.

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