Director of Public Prosecutions v Lindsay Cooper
[2018] VCC 2020
•20 November 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
KOORI COURT
CRIMINAL DIVISION
Case No. CR-18-01281
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LINDSAY COOPER |
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JUDGE: | HIS HONOUR JUDGE GRANT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 November 2018 | |
DATE OF SENTENCE: | 20 November 2018 | |
CASE MAY BE CITED AS: | ||
MEDIUM NEUTRAL CITATION: | [2018] VCC 2020 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Locke | Office of Public Prosecutions |
| For the Accused | Mr J. Miller | Victorian Aboriginal Legal Service |
HIS HONOUR:
1 Lindsay Cooper, you have pleaded guilty to one charge of robbery and two charges of armed robbery. The maximum penalties for these offences are as follows:
· Robbery: 15 years' imprisonment;
· Armed robbery: 25 years' imprisonment.
2 I have heard a summary of the offending. It is not my intention to repeat that summary. It is Exhibit A in this hearing.
3 Briefly, at about 1.55 pm on 24 March 2018 you entered the Liquorland store at Summerhill Shopping Centre. You spent some five minutes looking in the spirits section of the store and when all other customers had left, you approached the attendant at the cash register and said, “Don’t do anything stupid.” The attendant tried to back away and press the button on the personal alarm that hung around her neck. However, you reached out and pulled the alarm away from her. You repeatedly said “Don’t do anything stupid.” The victim walked to a cash register and opened it. You took $169 in cash.
4 At 5.45 am on 26 March 2018, the second victim was approaching the entrance to her work at Coles, Reservoir, when she heard footsteps behind her. She turned and saw you running towards her. You were carrying a large knife. You said, “I don’t want to hurt you, give me your bag.” As the victim took her bag off her shoulder you grabbed it and ran off. The handbag contained, among other items of property, her engagement ring and a ring that belonged to her mother.
5 Later that same day, you entered the Australia Post outlet at Summerhill Shopping Centre. When all the other customers had left the store, you approached the counter where two employees were standing. You jumped over the counter, produced a metal bar and demanded “money, money, money.” The two men backed away and you removed approximately $1500 from the cash register before jumping back over the counter and leaving the store.
6 You were arrested and interviewed on 26 March 2018. You have been on remand ever since.
7 Two of the victims have provided impact statements. They have both suffered emotional and psychological harm as a consequence of your criminal acts. Their sense of living in a safe community has been radically undermined. Even though the other two victims have not provided statements, I am satisfied that they must, at the very least, have suffered distress.
8 This is serious offending. The first victim was working alone. She was a soft target. Your behaviour was confronting and you pulled the personal alarm from around her neck. The second victim was simply making her way to work when you robbed her. The offending was audacious and threatening. Again, you chose a vulnerable target and you were armed with a knife. The victim was extremely distressed afterwards. No doubt the thought that she had lost her engagement ring and a ring that had belonged to her mother compounded her distress. Fortunately, the handbag and the rings were recovered later that day.
9 The final armed robbery was also against a soft target. On this occasion you produced an iron bar and jumped the counter into the area where the two victims were standing. You got away with $1500.
10 With this offending, general deterrence, that is the need to deter others from behaving in the way that you did, is an important sentencing consideration. Denunciation and just punishment are also relevant.
11 You have a number of relevant prior convictions. They date back to an initial appearance in the Perth Supreme Court for offences that included robbery whilst armed and attempted robbery whilst armed for which you received a significant period of imprisonment. There are further appearances in various courts in Western Australia between 1995 and 2006 for a variety of offences, some of which are offences of violence. The most significant is the appearance in January 2000 for an offence of cause grievous bodily harm for which you received a sentence of four years' imprisonment. There is a gap in your offending between 2007 and late 2013. The offending in 2013, namely armed robbery, burglary and theft, were dealt with in this court in August 2014 where you received a total effective sentence of three years and six months' imprisonment with a minimum non-parole period of two years. Given your criminal history, specific deterrence and protection of the community are also relevant sentencing considerations.
12 Your personal circumstances have been comprehensively described in a report from Dr Nina Zimmerman, a Consultant Psychiatrist, who assessed you on 7 November 2018. Much of what follows is a summary of the material in her report and two other reports that were tendered by your counsel.
13 You are 44 years old. You are an Aboriginal man, born on the Cummeragunja Mission into a family whose members suffered from their experiences as members of the stolen generation. Your early years were incredibly difficult. You recall being sexually abused by an uncle. Your father was an alcoholic and violent towards your mother. When you were very young, your mother separated from your father and moved with your two siblings to South Australia. You were only in South Australia for a short time before your mother moved back to Melbourne. Life was hard. Your mother was using drugs and there were periods of homelessness. You recall sniffing glue and drinking alcohol from the age of eight. You were introduced to the use of cannabis when you were still a child and you were using that drug regularly from the age of 13. You then commenced using other drugs.
14 Your life was chaotic, without direction or support. There were foster placements with other families. In one of those placements you and your sister were subject to brutal abuse. You were frequently running away from those who were supposed to care for you. This background provided the context for your escalating drug and alcohol abuse and your association with other young men who were getting into trouble. You spent time in boys' homes and institutions, including Allambie and Turana.
15 At some stage, your mother moved to Western Australia and you followed her, staying there until you moved back to Victoria in 2010. Your time in Western Australia was marked by a history of drug and alcohol abuse, mental illness and many periods of imprisonment. Your first sentence in Western Australia was in April 1993 and your last in February 2006. You were released, it seems, in early 2007 and it is very much to your credit that there was no further offending from that date until the offending in Victoria in late October 2013.
16 In his report dated 25 June 2018, Dr Michael Gibbons, Psychiatry Registrar at the Victorian Aboriginal Health Service (VAHS), notes that you were originally diagnosed with schizophrenia whilst in custody in Western Australia and that your history of contact with mental health services in that state commenced about 15 years ago. He notes that since 2010, your ‘well established diagnosis’ of schizophrenia has been managed mostly by depot medication provided by VAHS and despite compliance, you have remained symptomatic experiencing persistent psychotic symptoms including paranoia, auditory hallucinations and ideas of reference.
17 He notes that your condition is acutely impacted by substance use – particularly methamphetamine abuse – that often results in an extra level of distress, disorganisation and agitation.
18 Upon your return to Victoria in 2010, you engaged quite well with VAHS as a voluntary client. Unfortunately, in mid to late 2013 you were exposed to the drug ice and your dependency on that drug compromised your compliance with your mental health treatment. In late October 2013 you were charged with the offences dealt with by His Honour Judge Smallwood on 25 August 2014. I have had the opportunity of reading His Honour’s sentencing remarks. One of the offences before him, using a knife to rob a woman of her handbag, is very similar to one of the charges before me today.
19 You continued to receive mental health treatment whilst in custody and, after your release, had brief involvement with the Forensicare, enhanced Forensicare Consultation program. After a short period of time you were then referred back to VAHS for ongoing treatment.
20 Dr Gibbons takes up the story. “Initially after release from custody in 2016 he was settled and engaging, this coincided with his terms of parole and the requirement of regular drug screens. Once his parole had finished he began refusing the depot zuclopenthixol due to side effects and therefore this was switched to risperidone consta depot. There was a notable decline in his mental health state and self-care, which was thought secondary to his methamphetamine use, which had increased after his parole had finished. Between 2016 and 2018 his mental health state varied, often depending on his degree of substance use, he was mostly compliant with treatment although required significant support and prompting to attend.”
21 From February 2018 the staff at VAHS were concerned about your mental state. You has “missed a few depots” and continued to use methamphetamine regularly. You were stressed due to uncertainty about your housing and you had negative interactions with the police. The health service was exploring whether you could return to Cummeragunja.
22 Dr Gibbons reviewed you on 19 March 2018 and an admission to St Vincent’s Hospital psychiatric unit was arranged. According to Dr Zimmerman you were admitted to the unit “because of worsening psychotic symptoms in the context of poor adherence to antipsychotic medication, housing stress and methamphetamine abuse. “ On 23 March you saw a patient kick a basketball that hit another patient in the head. You became very angry and threatened to harm staff and the patient responsible. The decision was made that it was no longer safe for you to remain on the unit and you were discharged. This was, to say the least, not in your best interests. As Dr Zimmerman has said, you were discharged one day prior to the offending with unresolved symptoms of psychosis.
23 You were released into your mother’s care and you were angry and distressed when you were told that you would not be going to Cummeragunja. Very quickly you obtained a significant amount of ice “on credit”. You used the ice before committing the first offence. You told Dr Zimmerman that the armed robberies on 26 March were committed to get more money for ice. There can be no doubt that there is a direct link between your drug use and the offending.
24 However, I also accept that there is an indirect link between the offending and your mental illness that requires some moderation of sentence to reflect your reduced moral culpability and the fact that you are not a good vehicle for deterrence or denunciation. Clearly, you were very unwell when you entered hospital on 19 March and your condition had not stabilised when you were discharged on 23 March. Given this fact, I accept Dr Zimmerman’s opinion that your illness, exacerbated by your ice use, meant that you would have found it difficult on the days of the offending to think in an organised and clear fashion and to think through the consequences of your actions.
25 I am also satisfied, because of Dr Zimmerman’s assessment, that imprisonment will be more onerous for you than it would be for someone without your psychiatric illness.
26 I now discuss other matters in mitigation. First, you have suffered significant hardship and disadvantage in your formative years and for this reason there should be some moderation of the application of the principles of deterrence and denunciation. On the other hand, your background has left you with a legacy that has led to repeat offending. In these circumstances I have to carefully balance the moderation that flows from your disadvantaged background, with the need to protect the community.
27 Secondly, this is one of those rare cases where I can be satisfied that your long history of drug and alcohol abuse comes not from a freely made decision to experiment with drugs but from an early exposure as a child and adolescent and that this has to be weighed in the balance when assessing your moral culpability.
28 Thirdly, you have entered pleas of guilty at a very early stage. In doing so you have accepted responsibility for your offending and saved the victims from the trauma that attaches to giving evidence. In addition, your plea has saved the community the cost and expense associated with a criminal trial. You will be given appropriate credit for all these matters.
29 Fourthly, you consented to having the charges heard in the Koori Court. In doing so you agreed to participate in a process that involves appearing before Elders from the Koori community. The process is described as a “sentencing conversation.” It was obvious to me from the way you participated in the process that you were sorry for what you had done and that you do have insight into the problems in your life that you need to address.
30 However, it is also true that this is not your first appearance in the County Koori Court. The appearance in August 2014 was in the Koori Court and on that occasion you impressed Judge Smallwood with your remorse and your desire to rehabilitate. In his sentencing remarks His Honour said this. “I think the prospects of your rehabilitation, if you can maintain your present attitude, are very good and the risk of re-offending is entirely dependent upon those prospects. If you return to ice, I have no doubt that you will end up in exactly the same position.”
31 Unfortunately that is what has occurred and it helps explain why I am so guarded about your prospects for rehabilitation. Clearly, you need to address your drug addiction. If you were able to stop abusing drugs your prospects for rehabilitation would be greatly enhanced. You have said that you understand this. However, it has been hard for you in the past to act on this understanding.
32 I make this final point in relation to sentencing, I must ensure in sentencing you that I comply with the principle of totality.
33 Mr Cooper, will you please stand.
34 You are sentenced to the following periods of imprisonment. Charge 1, 18 months; Charge 2, four years; Charge 3, four years. I order three months of the sentence on Charge 1 and nine months of the sentence on Charge 2 be served cumulatively on each other and on the sentence imposed on Charge 3. This makes a total effective sentence of five years.
35 I fix a minimum term of three years and six months before you will be eligible for release on parole. I declare that you have served 239 days pre-sentence detention.
36 Had you pleaded not guilty and been found guilty after trial, I would have sentenced you to a total effective sentence of six and a half years with a minimum term of five years.
37 I make the disposal order sought by the prosecution.
38 You can be seated there, Mr Cooper.
39 Are there any other matters, Ms Locke, Mr Miller?
40 COUNSEL: No, Your Honour.
41 HIS HONOUR: Mr Cooper can be removed, thank you.
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