R v COCHRANE [2011] NSWDC 69

District Court New South Wales

Medium Neutral Citation: R v COCHRANE [2011] NSWDC 69 Hearing dates: 7 April 2011 Decision date: 07 April 2011 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to imprisonment consisiting of a non parole period of 2 years and a head sentence of 4 years. Catchwords: CRIMINAL LAW - Sentence - Inflict grievous bodily harm with intent - Previous offences of violence - Influence of alcohol Category: Sentence Parties: The Crown Peter Cochrane Representation: Director of Public Prosecutions Legal Aid Commission (Offender) File Number(s): 2010/21228

SENTENCE 1HIS HONOUR: In January 2010 the offender, Peter Cochrane, was living in an apartment with two other men. One of them, Mr Roger Huis was a heavy drinker. So was Mr Cochrane. There was a great deal of tension in the home to the extent that Mr Huis attacked Mr Cochrane, causing Mr Cochrane to visit his medical practitioner. 2Mr Huis, it would seem, was not a pleasant drunk at all, he would regularly get drunk and pick fights. This had a number of effects on the offender Mr Cochrane, one of which was to make him angry. It is this combination of anger and alcohol which has caused problems for Mr Cochrane in the past, and which has led to him being in custody facing sentence on a most serious offence indeed. 3Mr Cochrane pleaded guilty to an offence of inflicting grievous bodily harm with intent. That is an offence which carries a maximum penalty of twenty-five years imprisonment and a standard non parole period of seven years. Both the maximum penalty and the standard non parole period are clear indications given by the legislature as to the seriousness with which courts should treat offences of this kind. Because of Mr Cochrane's plea of guilty the standard non parole period is not of direct application, but it remains as an important guidepost to the sentence I must impose upon him. 4I should mention also that another consequence of his plea of guilty, coming at an early stage, is that the sentence I will ultimately impose upon him is twenty-five per cent less than it would otherwise have been. 5On 23 January 2010 Mr Huis and another flatmate, Mr Picorni, went to the Central Coast where they spent the day surfing and drinking. They got home at about 3 o'clock. The offender, Mr Cochrane, arrived a couple of hours later. He and Mr Huis continued to drink alcohol together before all three men decided to go and have a game of cricket. They walked the short distance to Storey Park where they played together before coming home at about 7 o'clock. Both Mr Cochrane and Mr Huis continued to drink after they got back. 6Mr Picorni went to bed about ten. At about midnight an argument started between Mr Huis and the offender. Mr Picorni at first could only hear what was happening, but it seems to be the case that Mr Huis picked up the cricket bat, which had been left lying against a wall, and began hitting a wall with it. He even went so far as to break a glass panelled bedroom door. Mr Cochrane did not appreciate this behaviour of Mr Huis. He was concerned about what the landlord would say, and it also angered him. 7He went towards Mr Huis, they struggled, Mr Cochrane came into possession of the cricket bat and he struck Mr Huis twice to the head with that bat. He struck him once, but when Mr Huis was on his hands and knees getting up, he decided to strike him a second time. 8Mr Picorni arrived at this stage. He saw Mr Huis lying in the lounge room. He rendered first aid to Mr Huis and called an ambulance and police. The offender assisted in looking after Mr Huis. 9Police arrived and when they asked what happened Mr Picorni pointed towards Mr Cochrane as the assailant, and Mr Cochrane immediately admitted to police that he had hit Mr Huis with the cricket bat. He told them where the bat was, under his car across the road. Police found the bat, and later examination of it revealed the presence of blood. 10There is some evidence to suggest that the offender struck Mr Huis in fact more than twice. There is a statement in the psychologist's report tendered by Mr Evenden, who appears for Mr Cochrane, that Mr Cochrane used the bat several times, but the preponderance of evidence, which I accept, is that he used it only twice, the second time - I emphasise - while Mr Huis was on his hands and knees in a relatively helpless state. 11It is perhaps appropriate to note at this stage that upon arrival at hospital, when a blood sample was taken from Mr Huis, his blood alcohol level was found to be a remarkable point 41. That he was not dead from alcohol poisoning is testament to the level of alcohol he has consumed on earlier occasions. 12The offender, as I have said, made immediate admissions to police and assisted them in their enquiries by telling them where the cricket bat could be located, however it could not be said that these immediate expressions of responsibility were accompanied by immediate remorse for what he had done. In what Mr Cochrane later described as ranting and raving he spoke to police officers back at the police station. He said, "I don't give a fuck if he dies. Suck shit, he's an arsehole." A little while later, he said, "Hope he dies, he deserves it. He raped a six year old girl. Cunt of a bloke." 13Mr Evenden makes the point that these expressions of opinion were given when the offender himself was significantly intoxicated. Perhaps they were, and indeed the offender gave evidence as to the significant amount of alcohol that he consumed that day, but the statements are a good illustration of something which is perhaps rather obvious from what I have said so far, and what I am about to say, the offender has trouble with alcohol, it causes him to become aggressive, he is not a good drunk. 14This offence was committed whilst the offender was on a bond for offences of violence. The Crown appropriately tendered to me the statement of facts in relation to earlier offences committed by the offender. They reveal disgraceful - and it has to be said - cowardly behaviour in which he assaulted a child by throwing a ladder at her, in which he expressed his anger by picking up the child's television and throwing it against a wall, and then spat at her. When the child's mother intervened the offender assaulted her. 15Not surprisingly, given the circumstances, an apprehended violence order was taken out against the offender, which he breached by later on assaulting the child's mother, punching her with closed fists. On each of those occasions the offender was also significantly drunk. 16As I said earlier, it is obvious that the offender has a problem with alcohol and anger. Evidence to that effect was called on his behalf from Mr Lloyd Babb. Mr Babb has observed Mr Cochrane over many years, they grew up together in the same neighbourhood, and Mr Cochrane's sisters are married to friends of Mr Babb. 17Mr Babb spoke highly of Mr Cochrane, his kindness, his work ethic, and his relationship with his family when he is not drinking, but said that he is a completely different man when he is drinking. Mr Babb has not seen Mr Cochrane physically violent, but gave evidence of things he had seen, such as verbal aggression towards, in particular, his family, when he is drunk. 18Of course the fact that the offender's troubles with the law arise out of his excessive consumption of alcohol is something which affects my assessment of his prospects of rehabilitation, a matter to which I will later return. 19The offender was raised in a loving, stable and supportive family. His parents are still together, a remarkable enough event when an offender appears for sentence. Also Mr Cochrane's relationship with his parents is good. He describes his relationship with his father as really good, and describes his mother as cool. He gets on well with his sisters too, and his brothers-in-law appear to be highly supportive of him. In some senses therefore it is somewhat of a puzzle to find Mr Cochrane in custody awaiting sentence for a very serious criminal matter. It is obvious that the problem is ultimately one of alcohol. 20Mr Cochrane had few troubles at school, although he repeated year six. He was - he described to the psychologist - an average academic student. He left and gained an apprenticeship as a wall and floor tiler. He worked for a while in that occupation before starting his own business. From the material before me it is clear that the offender has a good work history. He has offers of work on his release from custody, and an offer of accommodation too, one of his sisters and her husband offering to take him in. 21The offender went into custody on the day of the offence and says that he has not had a drink since then. In evidence today he said that he recognises his problem with alcohol, and recognises that he must do something about it because he does not want to end up back in gaol. He describes what has happened to him as a wake-up call. 22It is worth commenting that it is unfortunate that this offender did not have the same attitude after realising what he had done to the child and the child's mother, as I referred to earlier. It is unfortunate indeed that it took consequences befalling the offender, that is him going into custody, before he received a wake-up of which he has spoken. One might have hoped that after sobering up after assaulting a child and a mother in the circumstances I have described he might have been in the same position he says he is now, that is recognising he really does have a problem with alcohol. 23Of course because this matter does have a standard nonparole period I am required to assess the objective gravity of the offence in a specific way. I find that in objective terms it is slightly below the mid range of objective seriousness of offences of this type. Of course in assessing the objective gravity of offences a balancing exercise is undertaken. Some matters point to higher objective gravity, while others point to lower objective gravity. 24In explaining why I have formed the view I have about the objective gravity of this offence, all I can really do is list the matters I have taken into account and demonstrate that I have considered them, then express the conclusion I have. But let me say this in that context. There was no premeditation. The offender had not planned to strike Mr Huis, let alone hit him with a cricket bat, when they were drinking together in the lounge room. 25There was considerable disharmony between the victim and the offender, even to the extent that the victim assaulted Mr Cochrane three weeks before this offence. The evidence suggests that it was the victim who was continually aggressive and picking fights, whereas the offender was not someone who would go looking for a fight, there was thus considerable provocation from the victim towards Mr Cochrane. Not to put too fine a point on it, Mr Huis seems to have been a somewhat belligerent drunk. 26Also in the offender's favour as regards the objective gravity of this offence is that the two blows occurred in a relatively brief flash of anger, that the offender was not the first person to use the bat, and that the injuries suffered by Mr Huis were not as serious as many other offences of this type. 27Actually identifying what happened to Mr Huis has been somewhat complicated by the medical terminology used in the statement of facts, but doing the best I can, it appears that Mr Huis suffered a fractured skull, some bleeding in his brain, but did not require surgery, was able to discharge himself against medical advice some three days later, and there is no evidence at all of any permanent injury, apart from the likelihood that Mr Huis has been left with a scar. This would have to be, in terms of the injury inflicted, one of the least serious offences. 28It sounds very bad to say Mr Huis had a fractured skull and bleeding in his brain, but in terms of the consequences for him they appear to have been relatively minor. But it must be remembered that the offender used a weapon, a serious weapon too, not once, but twice, and that the part of Mr Huis' body he attacked with that weapon was his head, whilst Mr Huis was on his hands and knees, highly intoxicated. He was scarcely in a position to defend himself in any meaningful way from the two blows which must have been very forceful. It is the use of the weapon, it is the area that the weapon was used on, the fact that it was used twice, and the fact that the blows must have been forceful, which have prevented me from making a finding that in the objective terms the offence is less serious than the description I have given it, namely slightly below the mid range of objective seriousness of offences of this type. 29Despite the offender's description of his academic performance, the psychologist's report does refer to cognitive difficulties revealed through appropriate testing of the offender. There is an unusual difference between Mr Cochrane's verbal intelligence and his non-verbal intelligence scores, but in each case they demonstrate that the offender is, in intellectual performance terms, performing much worse than most other people in the community. More than most therefore that he finds difficulty coping with abstract or complex demands, especially when intoxicated, and especially when there are competing interests involved. 30His poor verbal capacity is likely to be associated with increased impulsivity, a circumstance of obvious relevance to the offence that brings him before the court today. Because of that circumstance the appropriate sentence in Mr Cochrane's case has less of a component for general deterrence than would otherwise be the case. That is not to say that general deterrence can be completely ignored, drunken violence is of obvious concern, and it is more good luck really than good management that the offender is not facing a murder charge. He is fortunate indeed, as is Mr Huis of course, that Mr Huis' injuries were not much worse than they turned out to be. 31It is not really the offender's fault, but I do note that whilst he has promised to take action to rehabilitate himself he has not been in a position to demonstrate what he will do when he is released from custody. It is not going to be easy for Mr Cochrane to give up alcohol. He has frankly told others that he would like to keep drinking, this excited the attention of the Crown Prosecutor somewhat, but I interpreted what Mr Cochrane was saying as he recognises the desire to drink at the same time as recognising that he must not give in to that temptation. 32Because the offender has been in custody since his arrest he has not been able, as I said earlier, to demonstrate his prospects of rehabilitation. I am unable therefore to say that they are good. It is to be hoped that upon his release from custody Mr Cochrane will recognise that if he does give in to temptation to drink the chances are quite good that he will be back inside, having committed yet another violent offence. 33I cannot make a positive finding in the offender's favour that he is unlikely to re-offend. Given his criminal history and the extent of his problem with alcohol, that finding is not available to me. 34Mr Evenden asks that I find special circumstances in his favour. I will do that. Clearly the offender will benefit from supervision upon his release from custody. It is in the community's interests, as well as Mr Cochrane's, that he is given as much assistance as possible to ensure that this one time in custody is his only time in custody. If the assistance he is given helps him to put alcohol behind him, and helps him to commit no further offences in the future, then not only does he benefit, but the community benefits as well. 35There is a further specific and important aspect relating to special circumstances. The offender wishes to do a residential rehabilitation program. Indeed he was accepted into one, but of course because of the need for the offender to serve a significantly longer period in custody than he has already served he was not able to take advantage of that opportunity. It is my firm recommendation that the offender's release to parole be conditional on him entering and remaining in a residential rehabilitation program, that is a form of quasi-custody, I recognise that, and so I have made an appropriate allowance in setting the relevant non parole period. 36Were it not for the fact that trouble came towards Mr Cochrane, rather than him going looking for trouble that night, I would have sentenced him to a much longer term of imprisonment, but recognising that it was Mr Huis who was the aggressor on the occasion three weeks previously, and it was Mr Huis who was acting like a belligerent drunk using the cricket bat in the manner I have described, I have reduced the sentence. 37Accordingly, the sentence I impose on Mr Cochrane is as follows: I set a non parole period of two years to date from 24 January 2010. It will expire on 23 January 2012, on which day the offender is eligible to be released to parole. I set a head sentence of four years.