DPP v Cotchin

[2018] VCC 1894

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01528

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALEX COTCHIN

---

JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	15 November 2018
DATE OF SENTENCE:	16 November 2018
CASE MAY BE CITED AS:	DPP v Cotchin
MEDIUM NEUTRAL CITATION:	[2018] VCC 1894

REASONS FOR SENTENCE
---

Subject:  CRIMINAL LAW
Catchwords:  Theft of firearm, burglary, prohibited person use a firearm.

Cases Cited:Boulton v The Queen (2014) VSCA 342, Verdins; Buckley; Vo (2007) 16 VR 269.

Sentence:Total effective sentence is 2 months imprisonment and convicted and ordered to serve a community corrections order for a period of two years.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms G. Overend	Director of Office of Public Prosecutions
For the Accused	Mr M. Reardon	Victoria Legal Aid

HIS HONOUR:

1Alex Cotchin, on 15 November 2018 you pleaded guilty to the following charges on Indictment No.J11181467:

2Charge 1, was a charge of burglary.  This charge has a maximum penalty of ten years' imprisonment. 

3Charge 2, is the theft of firearms.  This charge has a maximum penalty of 15 years' imprisonment. 

4Charge 3, you are a prohibited person in possession of a firearm.  This charge has a maximum penalty of ten years' imprisonment. 

5You also consented to a related summary charge of possession of cartridge ammunition to be dealt with by this court.  You have pleaded guilty to that charge.  The maximum penalty for that charge is 40 penalty units.

The Circumstances of Your Offending

6Your mother, Maureen Minnette lived at 46 Watersprite Boulevard in Sunbury.  Your mother lived at that address with your auntie, Elyse Cotchin.  Your mother was licensed to own eight firearms which were kept in a locked gun safe at the address of 46 Watersprite Boulevard in Sunbury.

7On 29 November 2017, a family violence order was made in favour of your stepfather, Kevin Minnette.  On 11 January 2018, that intervention order was served on you and thereafter you became a prohibited person to possess a firearm.

8The prosecution tendered an “Amended Summary of Prosecution Opening” upon the plea, which was Exhibit “A”.  I note that you had previously been the registered owner of two of the firearms of the eight that you stole. 

9The summary sets out your offending as follows:

(1) On 3 May 2018, between the hours of 6.15 am and 5 pm you attended at 46 Watersprite Boulevard in Sunbury.  You pushed over a gate that was adjacent to the garage and then entered the garage through a side door, causing damage to the door and lock.  That is the burglary charge.

(2) You have then stolen the gun safe from garage, which contained eight firearms belonging to your mother, Mrs Minnette.  That is the theft of the firearms charge.

(3) Ms Cotchin returned home at 5 pm on 3 May 2018, and discovered the burglary.  She was unaware that the firearms safe or the firearms belonging to her sister-in-law had been stolen from the garage. 

(4) On 5 May 2018, at 11 am your mother returned home for the first time since the burglary.

(5) On returning home she noticed the firearms were missing.  The missing firearms was as follows: 

(a) Mauser 967 by 57 millimetre longarm, serial No.F3886;

(b) Daisy 1894 BB longarm, serial No.91073838;

(c) Lancaster 16 gauge longarm, serial No.06232;

(d) Ruger American 223 longarm, serial No.69218376;

(e) Ruger 77/22.22 calibre longarm, serial No.700-17297;

(f) Harrington and Richardson 12 gauge shotgun, serial No.225763;

(g) TJNHE 28 gauge side by side double barrel shotgun, serial No.1034; and

(h) Crossman Arms Co air rifle, serial No.8141108353.  The last three of those firearms have not been recovered.

(6) Neighbours told Elyse Cotchin that they had seen a blue utility at the house on 3 May 2018. 

(7) Your mother recognised that the blue utility described by the neighbours was a utility that was driven by you.  Your mother then immediately attended at your home address at 3 Kelly Street in Sunbury, where she had the following conversation with you:  

“She said, "Where's the gun safe?"  You responded, "The gun safe is gone".  Your mother asked, "Where are the guns?"  You responded, "Settle down, Mum, settle down.  I've got them, I've got them".

(8) You have then walked into the backyard of the house where you lived at that time.  Your mother followed you.  You have then got under the house and pulled out a golf bag and passed it to your mother.  Your mother then said:

"Are they all here?"  And your response was, "There are five there, three aren't". 

(9) Your mother then looked in the bag and saw that there were only five firearms in the golf bag.  She has then asked you:

"Where are the other three?"  You have responded, "I've got somebody holding them".  Your mother said, "Go and get them, Alex.  Go and get them".  You have then responded, "I can't go and get them.  They are too hot".

(10) Your mother then took the five firearms to a gun shop for storage and then attended at the Sunbury Police Station to report the matter.  She indicated that three of the firearms were outstanding.  They are the ones I referred to earlier.

(11) On 7 May 2018, the police executed a search warrant at 3 Kelly Street in Sunbury where you lived.  A search warrant was also executed in relation to the blue utility located at the property.  Police located in the utility a one round of a 357 calibre ammunition in the driver's side door.  That is the charge of possess cartridge ammunition. 

I note that that calibre is different from any of the guns you have taken. A longarm firearm bolt, serial No.18376, in a paper bag in the glove box, which of course was one of the bolts to the firearms you have taken. The longarm firearm bolt, serial No.18376 is part of the Ruger gun that I referred to earlier and recovered by your mother.

(12) Upon the police attending at 3 Kelly Street in Sunbury you were arrested.  You initially told police that you had hidden the firearms in the Wombat State Forest while you were having a psychotic episode.  You later told police that you had sold the firearms to a mate for “cheap” but that you had not been paid.  You did not disclose to whom you had sold the guns.

(13) On the same day, that is 7 May 2018, you were taken to the Broadmeadows Police Station where you participated in a record of interview.  You exercised your right to make a no comment record of interview.  As I say, three of the firearms have not been recovered by your mother or by the police. 

10On 7 May 2018, you were charged and spent 63 days in pre-sentence detention before being granted bail on 9 July 2018.  You pleaded guilty to these charges on 13 July 2018 at a committal mention stage.  I regard your plea as an early plea.

Personal Circumstances

11At the time of your offending you were 25 years old.  You are now 26.  You have one prior court appearance at Broadmeadows Magistrates' Court on 11 January 2018.  On that day you were placed on an undertaking to be of good behaviour for a period of two years.  This disposition was without conviction for a charge of Intentionally Cause Injury.  On that day the court imposed two conditions.  The first was to continue to see a psychiatrist and the second was to continue with drug and alcohol counselling.  Your offending occurred within four months of that court order.

12You were born in Essendon but grew up in the Macedon Ranges area.  When you were seven years old your biological father, who was a shearer, passed away.  By the time you were nine years old your mother had commenced a relationship with Kevin Minnette.  Your mother worked at that time, and still does, as a disability support carer.  She subsequently married Mr Minnette.  He became your stepfather.

13In February 2016, you reported your stepfather to police for physical and sexual abuse.  Your stepfather has not been charged.  You reported the sexual abuse commenced in childhood and continued through your teenage years.  Your psychological support has commenced after your offences were committed, that is these offences.  I will set this out later.

14You reported the offending by your stepfather to your mother when you were about 17 or 18 years old.  At that time your mother separated from Mr Minnette.  You were then sent to family counselling and it was at that family counselling that your mother first learnt about your “ice” use.  In 2015, you were diagnosed with schizophrenia disorder and major depression and you were referred to a psychiatrist, Dr Jothuibabu. I refer to Exhibit “2” for that information.

15Unfortunately there was not a report from your treating psychiatrist but I accept he is managing your medication regime.  You are receiving trauma counselling from Ruth Wilcox, who prepared a report dated 10 November 2018, which was Exhibit “2” on the plea.  Ms Wilcox diagnoses you as suffering from Major Depressive Disorder.  You are prescribed Cymbalta and Risperidone for your symptoms.

16Your stepfather was interviewed by police on 10 November 2017, some 18 months after your statement to the police.  Your mother in her evidence before me confirmed that your stepfather had admitted to her that he had sexually assaulted you.  Your mother made a statement to the police outlining the admission made by your stepfather.  The police advised you that they were not going to prosecute your stepfather in or about late November 2017.  You assaulted your stepfather, as I understand it, on 29 November 2017 by stabbing him.

17In January 2018, you were placed on an undertaking to be of good behaviour for two years on the conditions that I have set out earlier. The appearance at Broadmeadows Magistrates' Court was your only court appearance prior to these matters.

18As I have previously said, within four months of being placed on that undertaking you committed the offences the subject of this proceeding.  Your motivation for these offences was to get something to sell so you had money to pay for your methylamphetamine addiction. 

19You have a long term history of drug addiction.  You started using cannabis at the age of 11.  That became daily use by the time you were 15 years old.  You started using methylamphetamine at approximately 18 years of age and it became a daily use problem by 22 years old.  Needless to say, your drug addiction has had a negative impact on your ability to maintain permanent employment.

20Your education finished halfway through Year 11 at Gisborne Secondary College.  On my calculation this coincided with your disclosure to your mother about the sexual abuse by your stepfather.  You completed Certificate II in landscape construction.  You obtained an apprenticeship as a landscaper but your employer went broke after about seven to eight months and that opportunity dried up for you.  You have worked as a labourer, odd jobs and maintenance type work with periods of unemployment in between since that time.  I note that you did some volunteer landscaping and maintenance work as Penshurst RSL in the period leading up to your Broadmeadows court hearing.  That's Exhibit “3”.

21Since you were released on bail on 9 July 2018, you have been receiving counselling from Ms Wilcox of “Healing Minds”.  This counselling has taken place over nine sessions, directed at treating the trauma arising from the sexual offending against you by your stepfather.  This treatment is overseen by the national disability insurance agency.  Ms Wilcox opines that you have responded well to the treatment and it is to be reviewed, that is the whole plan is to be reviewed, in May 2019. 

22You presently have casual labouring work.  You have strong family support and currently live with a friend of your mother’s, who is a nurse in the Lancefield area.  As your mother said, that is how she keeps an eye on you.

Sentencing Considerations

23The basic purpose for which a court may impose a sentence are:  just punishment; deterrence, both specific and general; rehabilitation; denunciation of our actions; and the protection of the community.  In sentencing you I must have regard to a range of factors such as:  the seriousness of your offending; your culpability for it; and your personal circumstances.  I am also required to balance the interests of the community in denouncing your criminal conduct with the interest of the community in seeking to ensure, as far as possible, that you as an offender are rehabilitated and reintegrated into society.  In your case that is a very important consideration.

24I am also required to take into account current sentencing practices in fixing your sentence.  That enquiry is directed particularly, but not exclusively, to the kinds of sentences imposed in comparable cases and in the statistics for those sentences.  I have considered the statistics and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances, and many of the cases would be distinguishable from your case, as indeed they are from one another.

25I am also mindful of the provisions of the Sentencing Act and in particular, s.5 (4C), which directs a sentencing court to consider a community corrections order can achieve the purpose for which this sentence is to be imposed. 

26I have reviewed the case of Boulton in considering you for a Corrections Order.  A community corrections order would be appropriate in your case, and I have had you assessed for a community corrections order.  You have been assessed as being suitable.  Of course that is not the end of the matter.

27You have pleaded guilty to these charges.  Your plea of guilty was indicated at an early stage.  Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice.  There is a certainty of outcome and the resolution of substantive issues raised by your offending.  Your plea also allows for the preservation of the court and police resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect the community. 

28Your plea is also a clear acknowledgment by you that you accept responsibility for your criminal behaviour on this occasion.  Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea for these charges indicates and demonstrates remorse on your part and I accept that you are very sorry that you have offended against members of your family.

29Your counsel submitted that due to your diagnosis for Major Depressive Disorder that a term of imprisonment would weigh more heavily on you than a person of normal health.  That enlivens the fifth principle of Verdins case and it has application in the sentencing process in your case. 

30I accept the submission that the appropriate category for your offending as a prohibited person in possession of a firearm, whereas it is not open to conclude your possession of the firearm was for ongoing criminal activity. You have possession of the firearms for the purpose of selling them and to obtain funds for your drug addiction.

31The objective seriousness of the burglary and theft and firearm charges are informed by the following factors: 

(1) You were on an undertaking to be of good behaviour pursuant to a court order made four months earlier;

(2) The burglary was at a premise of a relative where you had recently been a tenant;

(3) The theft was of registered firearms, which were appropriately kept in a locked gun safe;

(4) Your offending has resulted in three of the eight guns being in the community without regulation or control; and

(5) Your offending was driven by your need to obtain funds to purchase ice to feed your addiction.

32I accept that the matters set out in paragraph 13 of McKee's case has some application in your sentencing for these offences.  Your addiction to drugs and, in particular, methamphetamine, arises from the trauma of your sexual assault by your stepfather over an extended period of time amounting to years. 

33Ordinarily, self-induced addiction at an age of rational choice establishes moral culpability for the predictable consequences of that choice.  In your case your addiction commences with cannabis but escalated to “ice” and that has all commenced at a very early age.  These events have led to despair and low self-regard as a result of the sexual assaults upon you.  I find that this factor reduces your moral culpability to some extent and has the effect of moderating the severity of the sentence that would otherwise be appropriate for your offending.

34The sentencing considerations of general deterrence, specific deterrence, just punishment and denunciation of your actions calls for a combination of imprisonment and community corrections order.  In your case you have already served 63 day's imprisonment prior to being released on bail.  Since your release from prison you have actively engaged in treatment for the underlying cause of your addiction to drugs and you have started to address your drug addiction directly.  You have sought out residential rehabilitation but have been unable to be accepted at Odyssey House because of your prior court appearance for violent offending.

35I assess your prospects of rehabilitation as good.  Your family, the victims of your crime, accept you are sorry and they are prepared to support you to recovery.  That process has already started but I find it would be counter-productive for your rehabilitation process to be truncated by sending you back to gaol.  Instead, the protection of the community would be enhanced if your rehabilitation was encouraged and given structure by the imposition of a community corrections order.

36Would you stand please? 

37On charges 1 and 2, you are convicted and ordered to serve a community corrections order for a period of two years.  The conditions are: 

(a) Supervision;

(b) That you perform 250 hours of unpaid community work; that 100 of those hours of community work can be counted in the drug and mental health rehabilitation and treatment;

(c) That you are to attend drug and mental health rehabilitation and treatment;

(d) That you are also to attend offender reduction programs, but also that will be partly directed to your drug use;

(f) That you attend for judicial monitoring on 31 January 2019 at 9.30 am; and

(h) You are to attend at the Office of Corrections at Sunshine within 48 hours.

38On Charge 3, you are convicted and sentenced to two months' imprisonment.  That is a total effective sentence of two months.  I declare that you have served 63 days pre-sentence detention. 

39On Summary Charge 4, you are convicted and fined $1000. 

40I will sign the forfeiture order when I see it, and pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty I would have sentenced you to two years' imprisonment with a minimum of term of 18 months.

41I will get that Corrections order prepared.  Was there a forfeiture order?  I have signed it, have I?

42HIS HONOUR:  You can take a seat, Mr Cotchin.  Mr Reardon, if you could assist your client. 

43MR REARDON:  Yes, Your Honour.

44HIS HONOUR:  You will just get a copy of that order before you go, Mr Cotchin.  Just before I let you step out of there, there are two things.  I know you express great fear about people to whom those three guns may have been sold or gone to.  Sometimes that fear is not properly founded.  So if you were minded to whisper in your mother's ear where those guns subsequently went she will know how to deal with that matter.  That will help the community.  You live in the community.  That is the first thing.

45The second one is drug addiction is very difficult.  I have no doubt about that and you have a long life in front of you.  You beat this and you will have a good life.  You can step out of there.  Thanks, counsel, for your assistance.  Thank you, both.  I will just give you a copy of this order.  You can pin it up on the inside of your wardrobe when you get back to Mum's place in Kelly Street.  Every time you get dressed it will just remind you of what you have got to do and how you have got to behave.  All right, good luck.  You can go.  Thanks.

- - -