R v McCook [2013] NSWDC 36

District Court New South Wales

Medium Neutral Citation: R v McCook [2013] NSWDC 36 Hearing dates: 1 February 2013 Decision date: 01 February 2013 Before: Berman SC DCJ Decision: Sentenced to imprisonment consisting of a non-parole period of 3 years and a head sentence of 6years. Catchwords: CRIMINAL LAW - Sentence - Armed robbery - Offender has been in gaol for almost all his adult life Cases Cited: R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R Category: Sentence Parties: The Crown Ashley James McCook Representation: Director of Public Prosecutions Legal Aid Commission - The offender File Number(s): 2012/179626

SENTENCE 1HIS HONOUR: It is easy to feel sorry for Mr Ashley McCook. He had, as was revealed in remarks on sentence when Mr McCook was sentenced earlier, quite a difficult upbringing. His natural parents were involved in only a very brief relationship and he had little contact with his father. His stepfathers did not really play much of a part in Mr McCook's upbringing and it was suggested on an earlier occasion that Mr McCook's mother had put her own personal advantages before those of her children. 2Mr McCook started to use drugs at an early age; cannabis when he was thirteen and then, as is often the case, progressing towards harder drugs until he ultimately developed a heroin habit. Heroin is expensive and Mr McCook resorted to crime in order to obtain the funds to buy that drug. 3He has, since he turned eighteen, been in custody for an enormous proportion of his adult life. Since he turned eighteen he has spent eleven years, one month and nineteen days in custody and his time in the community has been less than eleven months. Some periods of freedom were very short indeed and the longest was five months and twenty days. Mr McCook has not even spent a birthday whilst he is not in custody since he turned eighteen. 4As I said, it is easy to feel sorry for Mr McCook, but it is equally easy to feel sorry for those who are the victims of Mr McCook's many crimes. 5He was last released on 25 May 2012 but committed this offence a very short time afterwards on 6 June 2012. He was arrested the following day and has been in custody since then. When he was released he was on methadone. He was living at Port Stephens with his grandmother and getting his methadone from Newcastle. He had a friend who wanted him to visit in Port Macquarie. His friend put pressure on him to make that visit because they had not seen much of each other over the years, presumably because of Mr McCook's regular incarcerations. So he went to Port Macquarie without making any arrangements as to how he would get his doses of methadone. In order to cope with the absence of methadone he says he bought a bottle of Rivotril off the street whilst in Port Macquarie. There are 100 pills in a bottle and I gather that Mr McCook did not moderate his intake of that drug. What happened after that is something of a blur to him. He eventually ended up committing the offence for which he must now be sentenced. 6He went into a supermarket where he bought a knife. He went to a pharmacist in the same shopping centre and spoke to a pharmacy assistant. He told the assistant that he was looking for a script and that he had been in a fight. This confused the assistant. The pharmacist noticed and approached the counter. She asked Mr McCook if she could help him. He slid over a note with the words "Xanax", "Diazepam" and "Serepax" written on it. He then told the pharmacist, "I have a knife. Just quietly go and get these so nobody gets hurt." She went and got some of the drugs. Whilst this was happening the assistant looked over and saw the offender lift his jacket to reveal the knife handle between his jeans and his skin. Apparently the knife remained in its plastic packaging, the packaging it was in when he bought it from Woolworth's nearby. The pharmacist asked another employee to call the police. She did so. The drugs were put into a brown paper bag by the pharmacist and they were given to Mr McCook. He then asked for money but when the pharmacist told him that the till could not be opened without a sale Mr McCook simply replied, "Oh, okay," and walked out of the shop. 7Passers-by, aware of what had been going on, chased the offender and overpowered him, punching him in the face in the process. He was arrested and then interviewed by police. He told police he had bought the knife in order to defend himself against any stronger males he encountered after robbing the chemist shop but said he never intended to use the knife. He made admissions to his part in the offence. 8The offender has somewhat of a fatalistic attitude towards what is going to happen to him in the short term. He accepts, of course, as he must, that he must serve a significant time in gaol and he realises that his life until now has been largely wasted. He says, for example, that he does not have any children and that unless he changes his ways soon he will become one of those sad people who looks back on his life in his forties or fifties and realises that he has not enjoyed those aspects of life as a free man which are available to those of us who do not commit offences. Not to put too fine a point on it, Mr McCook is growing up and beginning to feel quite keenly that he is missing out on what life should be providing for him. After all, he only has one life and it is terribly sad to see it wasted in the way it has been. 9The offence is, of course, one of armed robbery and that requires that attention be paid to the guideline judgment in R v Henry (1999) 46 NSWLR 346; (1999) 106 ACrimR. There a sentence of four to five years was postulated for an offence which met some common characteristics. The offender is not a young man with a limited criminal history but, on the other hand, his plea of guilty was early rather than the late plea referred to in the Henry guideline. 10This was not really an offence that was planned to any great extent at all and the knife was not pointed to anyone or waved around, as is often the case in offences of this kind. Of course, that does not mean that people were not harmed by the commission of the offence. I am sure that the victims of the offence were very frightened. The offender may well have appeared confused at times but that might have only added to the apprehension felt by the victims of the offence, knowing that Mr McCook was not acting terribly rationally. 11These offences are very serious. They do cause harm to the victims of the offences and they need to be dealt with in an appropriate way by the courts when people come before them for sentence. On the other hand, as Mr McCook's custodial history shows, if there is to be a change in his behaviour it is not going to be one which is easy. He is the type of person who must not only be punished but who also must be assisted in putting his life of crime behind him. 12The offender explained the difficulties in getting access to drug and alcohol counselling in Goulburn gaol. No doubt his misbehaviour whilst in custody has had a lot to do with both where he serves his sentence and also him gaining access to rehabilitation programmes whilst in custody. To that extent, he only really has himself to blame for the predicament he now finds himself in. But there are glimmers of hope and suggestions that Mr McCook might be, at the age of thirty-one, able to comply with the rules inside gaol and gain access to programmes and courses and the like which are desperately needed in his case. 13Unless efforts are made by the prison authorities and, upon release, the Probation and Parole authorities, to rehabilitate Mr McCook then other people will suffer in the future. If Mr McCook is not rehabilitated then he will commit further crimes and there will be more victims of robberies, more victims of break and enters. More than most, Mr McCook should have close attention paid to his rehabilitation whilst in custody and upon his release. 14Although in the past Mr McCook's behaviour after release from custody suggests that a finding of special circumstances in his favour would simply allow him to commit offences earlier than would otherwise be the case, I am going to make a finding of special circumstances in the offender's favour for this reason: He needs to be very closely supervised upon his release from gaol and that needs to take place for a significant period of time. It is possible that what Mr McCook really needs is a period in a residential rehabilitation facility and so whilst in custody efforts must be made by the prison authorities to have the offender in a position where at the expiry of his non-parole period he will be acceptable to a residential drug rehabilitation programme. The parole authorities might consider it appropriate that it be a condition of his release to parole that he enter into that form of quasi custody. It is my recommendation to the parole authorities that consideration be given to Mr McCook's release to parole only on condition that he enter into a residential rehabilitation facility and it is my recommendation to the prison authorities that the offender be considered for entry into the intensive drug and alcohol treatment programme at Windsor gaol. As I keep saying, substantial efforts must be made to assist Mr McCook to do what he now wants to do, that is, live a life outside gaol. 15But I repeat, this was a serious offence and one which needs to be dealt with in a way which punishes Mr McCook for what he has done. 16Taking account of the Henry guideline judgment, as I must, the offender is sentenced to imprisonment. I set a non-parole period of three years to date from 6 June 2012 and a head sentence of six years. The non-parole period will expire on 5 June 2015, on which day he is eligible to be released to parole. Whether he is or not will depend not on me but on the parole board.