Director of Public Prosecutions v Jordan

[2016] VCC 2064

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00707
CR 16-00708

DIRECTOR OF PUBLIC PROSECUTIONS

v

JORDAN COOK

and

DIRECTOR OF PUBLIC PROSECUTIONS

v

JACK HOGAN

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	12 July 2016
DATE OF SENTENCE:	5 September 2016
CASE MAY BE CITED AS:	DPP v Jordan
MEDIUM NEUTRAL CITATION:	[2016] VCC 2064

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:              Sentence – Plea of guilty – Attempted armed robbery – Aggravated burglary – Theft – Co-accused – In both cases clear link between offending and drug use – Youthful offenders - Rehabilitation

Cases Cited:              Boulton v The Queen (2014) 46 VR 308; R v Mills (1998) 4 VR 235

Sentence:Both convicted and sentenced to Community Corrections Order of 3 years’ duration with mandatory and other conditions – Ancillary order – Forensic Sample Order – Compensation Order – s.6 AAA Sentencing Act 1991 declaration

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. French	Solicitor for Public Prosecutions
For Accused Jordan	Ms K. Ballard	Doogue, O’Brien, George
For Accused Hogan	Mr D. Gray	McNamaras

HER HONOUR:

1Jordan Edmund Cook and Jack Francis Hogan, each of you have pleaded guilty to one charge of attempted armed robbery, aggravated burglary and theft.

2Attempted armed robbery has a maximum penalty of 20 years imprisonment; aggravated burglary has a maximum penalty of 25 years imprisonment, and theft has a maximum penalty of 10 years imprisonment.

3At the time of the offences, you, Jordan Cook, were 22, and that is your current age, and you, Jack Hogan, were 23, and that is your current age.

4The facts giving rise to Charge 1 are that on 26 January 2016 at about 8pm the victims, a Mr Ricciardo and a Ms Gooey, were sitting on the side of Mr Ricciardo's Hiace van which was parked in a street in Sunbury.  The sliding door was open and they were having some coffee.

5You both drove up in a black car with tinted windows and the registration plates were covered by foil.  You, Mr Cook, parked the car in front of the van.  You, Mr Hogan then got out of the car with your face partially covered by a T-Shirt.  You were holding a baseball bat.  You approached Mr Ricciardo and said in an agitated state,

"Give me all your money, I’m not fucking around."

6Mr Ricciardo told you that he did not have any money and walked around to the driver’s door where he showed you his mobile phone case which only contained cards.  Ms Gooey came around and told you, Mr Hogan, not to harm Mr Ricciardo.  You told Ms Gooey to get back in the van.

7You, Mr Hogan, then looked at Mr Ricciardo and said "fuck" as it appeared that you were of the belief that Mr Ricciardo had recognised you.  At about this time you, Mr Cook, got out of the car.  You also had your face covered, were shirtless and you were holding a crowbar.  You, Mr Hogan, yelled at Mr Cook to get back in the car. You both returned to the car and drove off.

8At about 8.16pm you both drove to a milk bar in Sunbury.  You entered the milk bar with your heads covered and your faces partially covered.  You, Mr Hogan, were carrying a baseball bat and you, Mr Cook, were carrying the crowbar.  At this time Ms Ali, who owned the milk bar, was sitting in a room adjoining the shop.  She heard the front door buzzer and saw you from the CCTV screen in this room.  When one of you looked towards this room Ms Ali hid.

9The CCTV footage shows both of you jumping over the front counter and removing the cash register from the counter.  Ms Ali could see this happening on the TV screen.  You fled to the car and drove away.

10Ms Ali estimated that the till had $2,800 in it.  As you drove away she took a photo of the back of your car.

11You were eventually identified by various witnesses and through the CCTV footage.

12You were both arrested on 29 January 2016 at your respective homes.  Each of you made "no comment" records of interview.

13There was a level of pre-planning, albeit crude, which involved you bringing weapons, obscuring the number plate of your car and hiding your appearance when you committed each of the offences.  I was shown photos of each of you which were taken by you on the night before the offending.  These show you obscuring your faces and holding weapons, taking up rather threatening poses.  

14While one of the weapons in the photo was not used by you the next day it does appear to me that you were rehearsing for the next day, although you instructed your counsel that you were just fooling around.  However, I cannot exclude as a reasonable possibility that you decided to offend on the day in question, and to take on the ‘personas’ that you were modelling the night before.  Therefore I do not sentence you on the basis that your pre-planning commenced the previous evening, even though I would have been satisfied of this on the balance of probabilities.

15However, not only did you terrorise three innocent people on 26 January, you gloated about your behaviour by taking photos after the offending, looking like thugs and proudly displaying the money you had stolen.

16Mr Cook and Mr Hogan, your offending is serious and calls for a punishment which is just in all of the circumstances, and your criminal conduct must be denounced.  Strong weight must be given to general deterrence in a bid to deter others from behaving as you have.

17Your offending has impacted on the life of Ms Ali most profoundly, as you would expect.  She watched on as you entered her shop with your weapons and took the cash register.  I have seen footage of this incident and it is a most frightening one.  While you might not have been aware of her being in the next room you entered the shop prepared to intimidate with the softball bat and the crowbar.  

18It was fortunate for Ms Ali that she was in the next room, but she must have been very frightened in circumstances where she was very close by and could not have known what you were going to do.

19She says that she now feels stressed and angry, helpless and tense and that she cannot sleep.  She is fearful when she hears the slightest noise and feels weak and drained.  She has had to stop working which has meant that she and her husband have had to pay for others to cover her shift.  Her relationship with her husband has now been placed under strain.  She is afraid to go out alone which has impacted on the rest of her family.

20No doubt the victims of the attempted armed robbery were also frightened by your conduct.

21I take the impact on the victims in sentencing you, although I note that victim impact statements have not been made by the first two victims.

22In sentencing each of you there is nothing of great substance to distinguish your roles in the offending.  While you, Mr Hogan, were the one who approached the first two victims, you, Mr Cook, were clearly approving of what he was doing, and so I sentence you on the basis that your roles were equal.  No one submitted otherwise.  I was told that you committed the offences after you had run out of money and you had run out of ice, having been imbibing ice and alcohol over a number of days leading to the offending.

23In assessing the seriousness of your conduct I have taken into account that neither of you used your weapons in the course of either of the two incidents and that in respect of the second incident you did not confront anyone in the shop, although this was more a matter of good luck than any plan on your part.  

24I also factor in that the aggravated burglary was on a commercial premises rather than a home, although there is not much in this by way of mitigation in circumstances where you targeted a small shop where soft targets would be expected to be working.  In fact this was a shop attached to the victim’s home in any event.

25To your credit each of you have entered pleas of guilty at an early stage which entitles each of you to a significant discount in the sentence you would otherwise receive as you have saved the witnesses the time and trauma of giving evidence at committal and trial, and you have spared the community the time and expense of contested proceedings.

26I am also satisfied that the course that you have taken is reflective of remorse, albeit that you did not exhibit these sentiments earlier on when you took part in the ‘after’ photos and made no comment records of interview.  

27In saying this I make it clear that you are entitled to exercise your right to silence and I do not punish you for doing so.  You may well have done so on the basis of legal advice, but such a stance is not reflective of remorse as at that time.  However, your early guilty pleas and genuine expressions of remorse to family members and to others indicate appropriate insight into your offending and being sorry for what you have put the victims, your family and close friends through.

28You, Mr Hogan, have no prior convictions and you, Mr Cook, have one prior matter in August 2013 in the Magistrates' Court for trafficking and use and possession of ecstasy.  You received a without conviction adjournment which involved drug treatment and counselling.  Obviously such treatment did not do enough to prevent you from returning to drug abuse.  However, such a prior matter is consistent with the drug problems of which I have been told and this is essentially its only relevance to the matters before me. 

29Each of you have now engaged in drug rehabilitation programs in circumstances where you were both addicted to ice.  Each of you have done well on those programs and have been able to address your drug problems, although each of you has slipped up on one occasion along the way, which is seen in the drug screens tendered.  However, it is still early days and the challenge for each of you will be to maintain abstinence. If you do not, then you will inevitably commit further offences.

30I have received further material today which is most encouraging in relation to each of you and the progress that you have made since the original plea hearing.  The material confirms that you are both pursuing a positive trajectory in relation to your rehabilitation.

31I accept that there was a clear link between your offending and drug abuse.  I also accept that your drug abuse clouded your judgement in committing these offences. This is no excuse.  The fact that you abused drugs made your actions all the more dangerous, but I make it clear that I do not treat this factor as aggravating, nor could I.

32However, let me make this very clear, Mr Hogan and Mr Cook, there is a very clear link between your offending and drug abuse, if you did not know that already.  If you choose to take drugs in the future and commit offences whilst under their influence then your decision to take drugs may well be treated as an aggravating factor by a judge dealing with you in the future.  That means that you will be exposed to a higher sentence than would otherwise be the case.  That judge will have access to these sentencing remarks where you have been placed on express notice in that regard.

33When you committed these offences you were young and immature.  You are still young, but there are some signs that you are becoming somewhat more mature now that you are taking responsibility and addressing your drug problems.  While you are not young offenders as such you are not far off this and it is clearly in your interests and the community’s that you achieve complete rehabilitation.

34You each come from most loving and supportive backgrounds.  The court was filled with your supporters at the plea hearing and I see that it is pretty much filled today again with your supporters.

35Unlike many people who come before me in this court you are blessed with loving families and supporters.  It could be said that you have less excuse to have behaved as atrociously as you did, but putting that aside the fine support that you each have is a positive factor in your rehabilitation. 

36Further, each of you are skilled in a trade and are employed; you, Mr Hogan, as a bricklayer and you, Mr Cook, as a plumber.  Each of you has a solid work ethic and each of you have the benefit of stable accommodation, each of which are matters which should assist in your rehabilitation.

37It could well be said that you had the benefit of these supports when you committed the offences before me, but the difference now is that each of you is addressing your drug problems.

38In sentencing you I have taken into account your respective backgrounds:

39You, Mr Hogan, started to abuse alcohol when in Year 9 or 10, then you abused cannabis.  By the time you left school, having completed VCAL, you had escalated to ice use which became a drug that you binged on.  I understand that you used ice to address emotional issues that you were experiencing and also through peer pressure.

40I note that you had tried to address your problems with ice as well as your problems with anxiety and depression about 12 months before the offending by consulting Dr Partridge at that time.  I have taken this report and that of Dr Cody, psychiatrist, into account in sentencing you in a general way.  

41You have seen Dr Cody on a number of occasions at monthly intervals from 18 February this year.  It was not submitted that you suffered any impairment of mental function which impacted on your moral culpability or any other sentencing principles; nor was it submitted that time in gaol would be harder for you because of any impairment of mental function.  However, I have taken into account that you are a young man who has a history of anxiety and depression and that any time in gaol would be harsher for you than for someone without such mental health issues.

42You had not disclosed your drug problem to your family or partner, and spent your joint savings on ice in the period leading to the offending.  As at that time you were spending $800 a week on ice.  Despite this your partner has stood by you and was in court at the plea hearing.

43Following the offending you re-engaged with Dr Partridge in conjunction with a psychiatrist and you recently took part in a residential care program to help you address your drug problems.  According to Dr Warhaft, who is involved in the program at the Malvern Private Hospital, you have actively participated in all aspects of the program and you have good insight into your addiction.  Upon exiting the program after four weeks you have engaged in further treatment and have had ongoing drug screens, all of which have been clear, save for one fairly early in the piece.

44I accept that you are of otherwise good character and have the potential to turn your life around.  The key to this will be to continue abstinence from drugs.

45You, Mr Cook, are the youngest of three children. Your parents were both hard working people and you were brought up in a loving home.  The only difficulty was that your parents' relationship started to falter over time and they separated when you were 14 years old.

46You met Jack Hogan when at a private secondary school in the Sunbury area.  You became good friends. You began drinking alcohol when you were 12 or 13 and experimented with cannabis and other drugs when a teenager. Whilst at school you excelled at sport, especially football, but injuries meant that you had to abandon this when you were 16.

47You completed a plumbing apprenticeship in 2011 and in 2015 you started working with your brother who runs a successful plumbing business.  Unfortunately when you were 18 ice use escalated, however you were able to hide the extent of your problems from your family, although at one stage you spoke to your brothers about this.  

48Your brothers each gave evidence in support of you and spoke of their efforts to help you and also support their mother.  They are very fine young men, who have taken your rehabilitation in hand.  They have paid for private treatment for you at great expense and have taken you into their homes to take care of you since the offending.  

49You presently live with one of your brothers and his partner.  Theirs is a strictly drug free home.  You contribute to the household both financially and practically.  I accept your brothers’ evidence that you are of otherwise good character and that you are making a good deal of headway with overcoming your drug problem.

50Like Mr Hogan you attended a residential rehabilitation facility for four weeks, then self-referred to a non-residential treatment service which you regularly attend.  Like Mr Hogan you provided drug screens which are clear, save for one screen which showed you briefly relapsed shortly after leaving the residential facility.  The most recent drug screens which were provided today indicate the presence of codeine which I accept was associated with you taking cold and flu tablets when you had the flu.

51You also attended Narcotics Anonymous and your sponsor from this organisation was also in court to support you at the plea hearing.  You have strong support from your mother and brothers and enjoy an open and honest relationship with each of them.  You continue to work for one of your brothers on a full-time basis and he spoke highly of your skills and work ethic.

52It was accepted by the prosecution that Mills’ case applied to each of your situations – see R v Mills (1998) 4 VR 235. However, in the next breath the prosecutor submitted that an immediate term of imprisonment in combination was warranted, but a community corrections order on its own was not.

53The principles of Mills’ case are as follows:

54Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.

55In the case of a youthful offender rehabilitation is usually more important than general deterrence. This is because punishment may in fact lead to further offending.  Thus, for example, individualised treatment focusing on rehabilitation is to be preferred. Rehabilitation benefits the community as well as the offender.

56A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender and where the offender has not previously been incarcerated a shorter period of imprisonment may be justified.

57In Boulton’s case – (Boulton v The Queen (2014) 46 VR 308) – it is made very clear that community corrections orders can be utilised to adequately address all relevant sentencing principles and ought be used to do so in appropriate cases even where offenders may have committed serious offences. A good deal of focus was placed on the desirability of using such dispositions in cases involving young people, although it was also recognised that gaol in combination with a community corrections order might be warranted in more serious matters.

58In each of your cases I find that your prospects of rehabilitation are very good and that I only need to place minimal weight on specific deterrence and the need to protect the community.  While your offending is serious it is not so serious that your rehabilitation ought not be treated as a primary consideration, and I have done so.

59I accept that you have made every effort since your offending to reform.   These are still relatively early days and you must be mindful that there will be great challenges ahead where you may be sorely tested in your resolve to remain drug free, but you must continue on the path that you have commenced taking.  If you do not you are choosing a dark and destructive path for yourselves, for your loved ones, and for the community.

60Each of your counsel urged me to impose an appropriately crafted community corrections order.  The learned prosecutor today accepted that each of you had continued in a positive way, but was unable to obtain revised instructions in relation to her original submission that gaol and a community corrections order was the only appropriate submission.

61I arranged for a detailed assessment to be conducted by Community Corrections and you have both been deemed suitable for a community corrections order. The question for me is whether this ought be undertaken with or without a gaol term.

62In my view it would be a regressive step both for you and the community to imprison you. It would compromise all of the progress that you have made to date.

63Therefore I am going to place each of you on a community corrections order, but it will be a demanding one which serves to punish you and denounce your conduct as well as to help you with your rehabilitation.

64I considered imposing a condition that you not associate with each other, but in view of your long standing friendship I have decided against this; but be warned you have gone very close to going to gaol on this occasion.  So if you even think of egging each other on to commit any further offences or to take drugs which is an offence in itself, or to breach the community corrections order in any way you are going to be looking down the barrel of a gaol term.  Do you understand this?  All right.  You are both nodding your heads, I will record for the transcript.

65Would you please stand up. Each of you are convicted in respect of the charges.  Firstly I make ancillary orders in each of your cases.  In respect of each of you I make an order for a forensic sample to be taken by way of a scraping of saliva from the mouth.  I make the order in each of your cases because of the seriousness of your offending, because the orders are not opposed, and because it is in the public interest to do so.

66I warn that if you do not cooperate in the taking of the sample that reasonable force can be used by the authorised officer to take the sample from you.

67In each of your cases I also make a compensation order in the terms that are set out in the document provided to me by the Crown, which is not opposed.

68In each of your cases I intend to place you on a community corrections order, but I can only do this with your consent so please listen carefully to the order that I propose.

69In each of your cases the community corrections order would run for a period of three years.

70The conditions of the order would be as follows:

71Firstly, the mandatory terms that apply to all community correction orders, which are:

72You must not commit another offence for which you could be imprisoned during the time that the order is in force.

73You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011.

74You must report to and receive visits from the Secretary to the Department of Justice, or his or her delegate.

75You must report to the Broadmeadows Corrections Centre before 4 pm within two clear working days of today.

76You must let a Community Corrections officer know within two clear working days of you changing your address or job.

77You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice, or his or her delegate.

78You must obey all lawful instructions from and directions of the Secretary to the Department of Justice, or his or her delegate.

79The conditions that apply in addition to the mandatory terms are as follows:

80You must undergo 200 hours unpaid community work within the next two years.

81You must be under the supervision of a Community Corrections officer for three years.

82You must undergo assessment and treatment including testing for drug and alcohol abuse or dependency as directed by the regional manager.

83You must undergo mental health assessment and treatment including, but not limited to, mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility if needs be as directed by the regional manager.

84You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the regional manager.

85You must attend at court to be monitored by me when required to do so.  Ahead of each appointment I will receive a progress report from Community Corrections and I will discuss your progress with you as set out in that report.

86Your first judicial monitoring appointment, Mr Hogan, will be Friday 9 December 2016 at 9.15 am.  Your first judicial monitoring appointment, Mr Cook, will be Friday 9 December at 9.30 am.

87Having heard the proposed community corrections order I am going to ask each of you in turn whether you consent to the terms and conditions of the order.  Mr Hogan?

88OFFENDER HOGAN:  Yes.

89HER HONOUR:  Mr Cook?

90OFFENDER COOK:  Yes.

91HER HONOUR:  I should tell you that if you do not comply with all of the requirements of the community corrections order then you will face breach proceedings before me.  You will be sentenced in relation to the breach and you will be re-sentenced in relation to the charges, in which case you may well be sentenced to a period of imprisonment.  I will regard a breach of the community corrections order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order.  Do each of you understand this?

92OFFENDERS COOK AND HOGAN:  Yes.

93HER HONOUR:  Do each of you still maintain your consent to the order?  Mr Hogan?

94OFFENDER HOGAN:  Yes.

95HER HONOUR:  Mr Cook?

96OFFENDER COOK:  Yes.

97HER HONOUR:  Therefore in relation to each of the charges you are convicted and sentenced to a community corrections order in the terms that I have just set out.

98If not for your pleas of guilty I would have sentenced you to a total effective sentence of three years’ imprisonment with a non-parole period of two years’ imprisonment.  You can now leave the dock and come and sit behind your counsel in the front row somewhere and they will assist you with the signing of the order.

99Now the immediate temptation for both of you rekindling your friendship will be going out and having a big booze up don’t; don’t even think of it.  All right.  Just keep any celebration in complete and utter moderation and just think about what you can face if you breach the orders.  Anything further?

100MR GRAY:  No, Your Honour.

101MS BALLARD:  No, Your Honour.

102MS FRENCH:  No, Your Honour.

103HER HONOUR:  All right, thank you.

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