Director of Public Prosecutions v Smith and Cooper
[2014] VCC 807
•23 May 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT SHEPPARTON
CRIMINAL JURISDICTIONCR-13-02266
CR-14-00583
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GARY SMITH & MARK COOPER |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Shepparton |
| DATE OF HEARING: | 20 May 2014 |
| DATE OF SENTENCE: | 23 May 2014 |
| CASE MAY BE CITED AS: | DPP v SMITH & COOPER |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 807 |
REASONS FOR SENTENCE
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Subject: Plea - sentencing
Catchwords: Perjury - attempt to pervert the course of justice (Smith) -
Armed robbery (Cooper)
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence: 15 months' imprisonment, minimum term 9 months (Smith)
15 months' imprisonment, minimum term 9 months (Cooper)
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Cordy | Office of Public Prosecutions |
| For Offender SMITH at hearing For Offender SMITH at sentence | Mr R. Kelly Ms J. Bowman | Joliman Lawyers |
| For Offender COOPER at hearing For Offender COOPER at sentence | Mr S. Lindner Mr Pogue | Tyler Tipping Woods |
HIS HONOUR:
1Mark Cooper, you have pleaded guilty to one charge of armed robbery (Charge 1 on the indictment) that occurred on 5 December 2012.
2Gary Smith, you have pleaded guilty to one charge of perjury (Charge 2 on the indictment) and one charge of attempting to pervert the course of justice between 5 December 2012 and 24 April 2013 (Charge 3 on the indictment) committed by making a number of false statements to police in relation to an armed robbery and assault that took place on 5 December 2012.
- Armed robbery carries a maximum penalty of 25 years' imprisonment,
- Perjury carries a maximum penalty of 15 years’ imprisonment
- Attempting to pervert the course of justice carries a maximum penalty of 25 years' imprisonment.
3Mr Cooper, you are aged 52, having been born on 15 February 1962. At the time of the offending you were aged 50.
4Mr Smith, you are aged 51, having been born on 23 December 1962. At the time of the offending you were aged 49 and 50.
5The background and circumstances of this offending are as follows.
6The victim in this matter, Neil Andrew Jackson, has been in a relationship with Shannon Jackson for 18 years. They were married in 2004 and have five children together. At the time of the offence the Jackson family resided in Girgarre.
7In early 2012 Shannon Jackson commenced an intimate physical relationship with Lee Traill. At this time Lee Traill was married to Sandra Traill.
8On 11 August 2012, Shannon Jackson formally separated from Neil Jackson and moved into a rental property in Rochester. Lee Traill, who had also separated from Sandra Traill, stayed at Shannon Jackson's new residence each night.
9On 16 August 2012 Lee Traill gave Shannon Jackson a black Triton Utility with personalised registration plates. From this date she commenced using the utility as her own.
10On or about 9 October 2012 Shannon Jackson and Neil Jackson decided to reconcile their marriage. Shannon Jackson then moved back into the family home in Barrow Road, Girgarre, taking with her the utility given to her by Lee Traill.
11After this date Lee Traill and Sandra Traill also reconciled their marriage. They commenced attempts to recover the Triton Utility, stating a claim of right over the vehicle with the view of taking it back from Shannon Jackson. After being unsuccessful for two weeks Sandra Traill's employer, Debra Smith, advised Sandra that her husband, you, Mr Smith, often travelled through the Girgarre area, and would assist in recovering what the Traills believed to be their utility.
12On 28 October 2012 Lee Traill and Sandra Traill attended at your residence in Echuca. During this visit Lee Traill gave you a spare key to the Triton utility and described where the Jacksons resided. You gave an undertaking that you would do what you could to locate and “recover” the vehicle.
13Over the proceeding weeks you made several trips into Girgarre but never sighted the vehicle. In mid-November 2012 you spoke to an acquaintance, David Fairbairn, by telephone. You told Mr Fairbairn that you needed assistance to recover a Triton ute that was stolen from you and was in possession of a person in Girgarre. Mr Fairbairn at this time informed you that as he resided in Girgarre he wanted nothing to do with recovering the vehicle. At the time of the telephone call Mr Fairbairn was in the company of an acquaintance, Timothy Marshall. Mr Marshall overheard the telephone call and told Mr Fairbairn that he would recover the vehicle as he had been evicted from his address in Girgarre and would be leaving the area soon.
14Mr Fairbairn then made contact with you, Mr Smith, to inform you that he had “someone” to assist in recovering the vehicle. You told Mr Fairbairn that the key to the vehicle would be at your Echuca business premises for collection. Soon after, an unknown male attended and collected the vehicle key.
15Mr Marshall subsequently recruited a second male, you, Mr Cooper, to assist him in recovering the Triton utility.
16Mr Marshall and you, Mr Cooper, subsequently made several attempts to recover the vehicle whilst it was left unattended in and around the Girgarre area. These attempts were prevented as a result of Neil Jackson having removed engine components which disabled the vehicle engine when he was not with the vehicle.
17At approximately 10.50 am on 5 December 2012 Mr Marshall observed the Triton utility being driven through the Girgarre area. At this time, after becoming increasingly frustrated at the difficulty in recovering the vehicle, he decided he was going to use force to take the utility from the Jacksons. Mr Marshall then obtained a .22 calibre bolt-action rifle and a camouflage-coloured balaclava, and arranged for you, Mr Cooper, to drive him to the Jacksons' residence.
18You drove directly to Barrow Road, Girgarre, and parked out the front of the premises. At the time the Triton utility was in the driveway of the address, Neil Jackson was standing near the Triton, Shannon Jackson was also in the driveway, and three of the five Jackson children were nearby.
19Mr Marshall ran from your vehicle directly towards Neil Jackson, pointed the rifle at him, and yelled, "Step away from the car or I'll shoot you!"
20Mr Marshall, while still pointing the firearm at Neil Jackson, retrieved the key to the Triton utility from his pocket and unlocked the vehicle with the remote sensor. Neil Jackson maintained his position in front of the driver's side door of the vehicle, and Mr Marshall yelled, "I'm gonna shoot you!"
21Neil Jackson then grabbed hold of the barrel of the firearm and a wrestle between him and Mr Marshall ensued. During this wrestle Mr Marshall discharged the firearm, the projectile narrowly missing Mr Jackson's right foot. Mr Marshall then punched Neil Jackson with a fist to the head multiple times, causing Mr Jackson to release his grip on the firearm. Mr Marshall then forcefully struck Mr Jackson to the head with the butt of the firearm on three or four occasions before getting into the Triton and driving away.
22During this period you, Mr Cooper, waited in the car. You then drove, following Mr Marshall to the address of an acquaintance in Kyabram and hid the Mitsubishi, the Triton, in the rear yard of the address. Mr Fairbairn was contacted and advised that you were in possession of the ute. Mr Fairbairn subsequently contacted you, Mr Smith, and you instructed him to take the vehicle to a panel shop known as WG Panels in Rochester and to leave the key in the ignition. Mr Fairbairn conveyed this information to Mr Marshall and Mr Cooper, who drove the vehicle to the workshop where it was left for you, Mr Smith, to be collected.
23On Thursday 6 December 2012 the Triton utility was located partially submerged in the Campaspe River in the Rochester area. The vehicle was subsequently recovered from the river and returned to the registered owner, Lee Traill, after which time it was assessed as being a write-off by Traill's insurance company.
24Mr Cooper, I now turn to your personal circumstances.
25As I noted earlier, you are now aged 52 and at the time of the offending you were aged 50.
26You have an extensive criminal record commencing in the Kyneton Magistrates' Court in 1979 when at the age of 17 you were put on three years' probation for burglary, going equipped to steal and theft. There followed 11 further appearances at various Magistrates' Court until the end of 2010, mostly for violence, driving and theft offences for which, over the years, you have been given a variety of sentences ranging from more probation (which you breached), a stint at Youth Training Centre, fines, licence cancellations and terms of imprisonment, the last being for four months in 2010 for, relevantly, intentionally causing injury as well as driving offences.
27You have had a difficult life, leaving school at 14 and receiving no further training. You commenced drinking alcohol at the age of 12 and report a long history of alcohol and drug abuse, including cannabis and later amphetamines. Up until recently, and including the time of this offending, you were using morphine. You are currently on a daily prescribed dose of Suboxone. You were described by your counsel as a wanderer, and at the time of offending were living in a tent on a riverbank. You have reported several significant head injuries in the context of beatings and motor cycle accidents. Although not currently suicidal you have contemplated suicide from time to time. You have been receiving the disability support pension since 1985.
28A report from Dr Aaron Cunningham, psychologist, was tendered on your plea. In summary Dr Cunningham reported that you meet the criteria for a diagnosis of Major Depressive Disorder. In meeting those criteria you reported symptoms of depressed mood, loss of interest in activities, sleep disturbance, psychomotor agitation, fatigue, feelings of worthlessness, diminished ability to think and concentrate and recurrent thoughts of death. There are also indicators that you may suffer from Acquired Brain Injury.
29
The offence of armed robbery is one of the most serious crimes in our criminal law. It is capable of causing great terror and can often lead to further, often originally unintended, physical injury or even death. Its gravity is reflected in the maximum penalty, being 25 years' imprisonment.
30Considerations of general deterrence, denunciation and the protection of the community weigh significantly in the sentencing discretion as well as specific deterrence to the offender.
31In his victim impact statement Mr Jackson describes the very understandable fears and anxiety felt by both himself and his family. The impact on his emotional state has been high, evidenced by headache, insomnia, fears of vulnerability, depression, difficulty working and general loss of enjoyment of life.
32In mitigation I accept that your involvement was quite limited in time and I am not satisfied beyond reasonable doubt that you had prior knowledge that a firearm was going to be produced and that Mr Marshall was going to act in the manner in which he did. Whilst I am sceptical, there is insufficient evidence to establish that you knew that this attempted recovery was going to be anything more than similar previous attempts by you and Mr Marshall to recover an unoccupied vehicle. I accept that your culpability was remaining at the scene once you became aware of Mr Marshall's actions with the balaclava and rifle in the presence of the victim, then participating in the removal of the Triton to WG Panels, thus assenting to and encouraging the acts of Mr Marshall.
33I also accept in mitigation your plea of guilty, your remorse, your personal circumstances, including your difficult past and long-term poly-substance abuse, and your major depressive illness, which reduces your moral culpability for the offending and which will also mean that a given sentence will weigh more heavily on you than upon a person in normal health.
34
As to parity with your co-offender, Mr Marshall, I accept that whilst your personal backgrounds are similar, your position is distinguished because you have a major depressive disorder and your role in this offending was very different.
35Mr Cooper, Mr Smith and counsel, I am just going to leave the Bench for a moment because of an error I have just noticed in the later construction of these sentencing reasons, and it has to be corrected.
36(Short adjournment.)
37HIS HONOUR: Thank you. Counsel and Mr Cooper, there was just a missing part to my typed-out sentence remarks. I will continue. I had indicated just a moment ago as to matters of parity with the co-offender Mr Marshall, and as I indicated, I accept that whilst your personal backgrounds are similar, your position is distinguished because you have a major depressive disorder and your role in this offending was very different.
38Mr Cooper I now intend to pass sentence on you.
39On Charge 1 of armed robbery, you are convicted and sentenced to 15 months' imprisonment.
40I direct that you serve a period of nine months' imprisonment before being eligible for parole.
41I declare that the period that you have already spent in custody in this matter, namely 156 days, not including today, be reckoned as a period of imprisonment already served under this sentence and is to be deducted administratively.
42For the purposes of s.6AAA of the Sentencing Act, but for your plea of guilty the sentence that would have been imposed is a term of imprisonment of 2 years with a non-parole period of 18 months.
43At the plea hearing the Crown sought an order for the retention of a forensic sample, to which through your counsel you consented, and I have today made that order for the reasons noted on the order, namely the seriousness of the offending warrants the making of the order, your prior convictions warrant the making of the order, the order is by consent and the making of the order is in the public interest.
44Are there any other matters, counsel, with respect to Mr Cooper?
45MR CORDY: No, Your Honour.
46MR POGUE: No, Your Honour.
47HIS HONOUR: Thank you.
48As to the investigation involving you, Mr Smith, on the evening of 5 December 2012 Detective Colliver, an investigator attached to the Campaspe Crime Investigation Unit spoke with you in respect of your possession of the spare vehicle key. During the time you made a formal written statement detailing your knowledge and involvement in the matter.
49At approximately 7.03 pm on that day in the presence of a sworn police member you signed the statement as being true and correct and acknowledged that it was made in the belief that a person making a false statement in the circumstances is liable to the penalties of perjury.
50This statement is now known to contain the following false information:
· that the key was in the console of your work van which at that time was in the possession of your employee, Kane Chapman;
· that you have not given the key to any other person;
· that you are not involved in the Girgarre incident and had no knowledge of the incident until advised by police.
51This conduct constitutes Charge 2, perjury.
52After completing the statement with police you left the Echuca police station with the knowledge that an armed robbery and assault had been committed. You drove immediately to WG Panels in Rochester with the intention of moving the stolen vehicle from that address.
53During the course of the trip to WG Panels you contacted Mr Chapman, who at the time was returning from Melbourne. You arranged to meet Mr Chapman at the work van at approximately 9 pm, suggesting you needed to get a key out of it.
54On arrival at WG Panels, Rochester, you secured your personal vehicle before getting into the stolen Mitsubishi Triton ute and remained in that location. You started the vehicle using the ignition key and drove the vehicle away.
55You drove the vehicle three to four kilometres to an off-road site where you parked it facing the Campaspe river approximately 80 feet from the river bank with the handbrake on. You denied having an involvement in the vehicle coming to rest in the river at that location as it was later found.
56You then walked back to WG Panels and retrieved your personal vehicle before driving to the Kyabram farm for your meeting with Mr Chapman. After a short wait Mr Chapman arrived and unlocked the work van, at which time you pretended to remove the Mitsubishi key from the console area in order to make Mr Chapman believe the key was secured in the vehicle throughout the day, including at the time of the offence.
57This conduct constitutes Charge 3, attempt to pervert the course of justice.
58At approximately 10.10 pm on 5 December 2012, you returned to the Echuca Police Station at which time you presented the vehicle key in question to investigators.
59On 6 December 2012 you were again approached by investigators, at which time you made a second written statement to Detective Young. At approximately 1.15 pm on this day, in the presence of a sworn police member, the statement was signed by you as being true and correct, and again acknowledged that it was made in the belief that a person making a false statement in the circumstances is liable to the penalties of perjury.
60This statement is now known to contain the following false information:
· that the key was in the console of your work van which at that time was in the possession of your employee, Kane Chapman; and
· that you collected the key from the van during your meeting with Chapman.
61That conduct again constitutes Charge 2, perjury.
62On 24 April 2013 you attended at the Echuca Police Station where you were taken into custody by Armed Crime investigators. During a record of interview, after initially maintaining your original version of events, you finally admitted to lying to police throughout the course of the investigation and to providing false statements containing misleading information. You provided a new version of events during the interview and subsequently agreed to make a further written statement to assist police.
63On 24 April 2013, at the completion of the record of interview, you made a third statement to Detective Quinnell. At approximately 3.39 pm on this day, in the presence of a sworn police member, the statement was signed by you as being true and correct and acknowledged that it was made in the belief that a person making a false statement in the circumstances is liable to the penalties of perjury.
64This statement is now known to contain the following false information:
· that after making your first statement to police on 5 December 2012, you met up with Mr Fairbairn near the Echuca tip and collected the key from Mr Fairbairn.
65This again forms part of Charge 2, perjury.
66On 25 April 2013 you contacted Armed Crime investigators, at which time you admitted to having lied once again the previous day during both your record of interview and written statement in respect to the collection of the key.
67On 6 May 2013 investigators returned to the Echuca area, during which time you were again taken into custody and interviewed over your false statement and involvement in the lead-up to the armed robbery incident.
68You again admitted to lying to police throughout the course of the investigation and to providing false statements and misleading information to investigators. You provided a new version of events during the interview and confirmed your new version of events within a fourth and final statement, which included your supply of the vehicle key to Mr Fairbairn with instructions to retrieve the vehicle, directing Mr Fairbairn with respect to the vehicle after the incident and your involvement in the collection and disposal of the stolen vehicle.
69Mr Smith, I now turn to your personal circumstances.
70Again as I noted earlier, you are now aged 51, at the time of the offending you were aged 49 and 50, and you have no prior criminal record.
71You are married with two children aged 14 and 18, and you have worked solidly throughout your life, initially as a labourer, then truck driver for 15 years, and for almost 20 years now with your own business in various aspects of car detailing, accessory sales and vehicle window tinting. Your wife has a bank agency with Westpac. In recent times you have also sought additional work as a driver to supplement family income. You have led a hard-working life, maintained a good marriage and raised a family. You are well respected in your community.
72The crimes of perjury and attempt to pervert the course of justice are very serious offences. The administration of justice depends upon the system operating so that people who commit crimes are pursued, are brought to court in a timely way and are punished, and those who take part in trying to interfere with that system commit a grave injustice insofar as the community is concerned. Perjury is a very serious offence because justice simply cannot be administered unless people speak the truth on oath. Justice inevitably suffers, whatever the motive for the perjury and in whatever circumstance it is committed.
73The police investigation in this case was concerned to follow the movement of the key and to determine where it was. You could have assisted but chose instead to give police false information in sworn statements, and in the process relocated the Triton utility and set up a false scenario where you had pretended to recover the key from a work vehicle. The effect of your conduct was to divert the police inquiries, made the task of the police investigators more difficult and resulted in a waste of resources and a more protracted investigation.
74In mitigation I accept that you originally had no knowledge of the fact of an armed robbery having been committed or having been planned, and acted out of fear to distance yourself from what you had known to be the taking of the law into your own hands to assist in the recovery of the Triton from the Jacksons by use of the key once it had been found.
75I also accept that once you had committed the first false statements you panicked and maintained a pattern of repeated falsity in order not to reveal the initial deception. That panic increased when it was apparent to you that you were yourself at risk of being regarded as being directly complicit in the actual armed robbery and possibly attempted murder.
76I also accept:
· your plea of guilty and the subsequent remorse that you have expressed. I also accept that the plea was made at an early stage because you had a legitimate cause to challenge the charges profferred at the committal which resulted in the reduction of your ultimate charges.
· the absence of any prior criminal offending,
· your stable family background and employment history,
· your otherwise good character as testified by your character witnesses,
· your prospects of rehabilitation, which I regard as very good. I accept that it is very likely that you have experienced a very high degree of stress and anxiety as a result of your very foolish behaviour, and that it is unlikely that you will reoffend.
77Despite your otherwise good character I do regard, however, the objective seriousness of these offences in circumstances which involved the repetition and cumulative acts as not being appropriately amenable to a sentence that does not involve your immediate confinement in custody.
78Mr Smith, could you please now stand.
79On Charge 2 of perjury, you are convicted and sentenced to a term of imprisonment of 12 months.
80On Charge 3 of attempting to pervert the course of justice, you are convicted and sentenced to a term of imprisonment of six months.
81In my view your culpability for the acts constituting the attempt to pervert the course of justice is very much bound up with your false statements. However, it does represent further acts in the process of your deception and accordingly warrants some cumulation.
82Charge 2 is the base sentence.
83I direct that three months of the sentence imposed on Charge 3 be served cumulatively on the sentence imposed on Charge 2.
84The total effective sentence is 15 months' imprisonment.
85I direct that you serve a period of nine months' imprisonment before being eligible for parole.
86For the purposes of s.6AAA of the Sentencing Act 1991, but for your plea of guilty the sentence that would have been imposed is a term of imprisonment of 20 months with a non-parole period of 15 months.
87You may be seated, Mr Smith. Are there any other matters, counsel, in respect to Mr Smith?
88MR CORDY: No, Your Honour.
89MS BOWMAN: No.
90HIS HONOUR: Thank you. Thank you, Mr Cooper. We can now cut that connection.
91OFFENDER COOPER: Thank you.
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