District Court New South Wales Medium Neutral Citation: R v Cook [2014] NSWDC 165 Hearing dates: 6 June 2014 Decision date: 06 June 2014 Before: Berman SC DCJ Decision: Sentence to imprisonment. The overall effective sentence I impose consists of a non-parole period of five years and eight months and a head sentence of eight years and eight months. Catchwords: CRIMINAL LAW - Sentence - Form 1 - Aggravated robbery - Corporal violence - Intentionally damaging property - Drive recklessly in a manner dangerous to the public - Demand property with menaces - Cause grievous bodily harm with intent Legislation Cited: Crime Sentencing Procedure Act Cases Cited: Crime Sentencing Procedure Act Category: Sentence Parties: The Crown Cameron Cook Representation: C Watson - Offender Director of Public Prosecutions Kiki Kyriacou Lawyers - Offender File Number(s): 2013/16172 SENTENCE 1HIS HONOUR: On 16 January 2013 the offender, Cameron Cook, committed a number of offences for which he must now be sentenced. Mr Watson, who appears for Mr Cook, accurately described what the offender did that day as "a rampage." 2The offender consumed a substantial quantity of alcohol and probably Xanax on the morning of 16 January. He then got on a motor cycle with another man. They first drew attention to themselves at about 1.45pm. A woman had parked her Ford Festiva motor vehicle in Gymea. She was in the car with her handbag on the front passenger seat. She watched, and so did others, as the offender arrived with his pillion passenger. The offender, then wearing a dark coloured vest with Rebels outlaw motor cycle group insignia on it, approached the woman and said, "Can I have a bottle of water?" When she replied "I haven't got one", the offender became aggressive. He yelled "I want a bottle of water" and began pushing hard on the driver's side window adjacent to the woman several times. This caused the vehicle to rock. Not surprisingly, the woman started to wind up the driver's side window because she feared for her safety. 3At this stage the offender used his right hand to punch the driver's side window causing it to shatter and removed the remaining glass from the door frame and threw it onto the ground. He then raised his right fist again and this time he punched the woman to the right side of her face. She was seated in a motor vehicle. She had no opportunity to defend herself. It was a cowardly attack on a woman who had no idea that she was about to be struck. This caused her, not surprisingly, to feel pain. Her head was thrown backwards and she bit her upper lip. 4The offender was not finished yet. He grabbed her face with his hands and ripped off her glasses. He then reached into the vehicle over the top of the now injured woman and removed her handbag. He then walked back to the motor cycle, passed the handbag to his pillion passenger who resisted attempts to recover the handbag, and they rode away. Fortunately passersby saw what was going on and contacted police, giving them the registration number of the motor cycle upon which the offender and his pillion were travelling. 5What I have just described represents an offence of aggravated robbery, the circumstance of aggravation being that the offender inflicted corporal violence on the victim of the robbery immediately before it. There is also an offence of intentionally damaging property, namely, the driver's side window of the motor vehicle, on a Form 1 attached to the aggravated robbery offence. As the offender rode off he was seen to do so recklessly in a manner dangerous to the public. That is also an offence appearing on the Form 1 attached to the aggravated robbery offence. 6The next particular occasion where the offender drew attention to himself was when he committed another offence, this time of demanding property with menaces. The victim of this offence was driving a motor vehicle. He came to a pedestrian crossing and stopped, allowing pedestrians to cross in front of his vehicle. He heard the sound of the offender's motor cycle coming up behind him. When the motor cycle got adjacent to the victim's car the offender yelled in at the victim saying "Oi". When the victim replied "What?" he was met with this demand from the offender, "Give me your phone and wallet or I will shoot you". Immediately, and again not surprisingly, the offender drove off. All of this was seen by police officers who had responded to the police radio broadcast following the offender's first offence. 7The next thing that happened was the offender drove his motor cycle recklessly, I have already mentioned that matter as being on the Form 1, before the offender then went down to a boat ramp where there were a number of people fishing. One of those was a 65 year old gentleman by the name of Raymond O'Neill. The offender approached him and asked whether he had any jumper leads. Mr O'Neill told the offender that he did not. The offender repeated his request and Mr O'Neill turned his attention to his equipment, intending to go fishing. Without warning the offender punched Mr O'Neill to his head. Mr O'Neill fell to the ground where the offender began kicking into his body and his head. At one stage Mr O'Neill was able to grab the offender's leg. In response the offender then bent over and began punching Mr O'Neill in the head once again. He tried to get away, and almost got to his feet, when he went down again, he presumed because he had been hit once more. And then again the offender began to kick the unfortunate Mr O'Neill while he was on the ground. Mr O'Neill desperately tried to get away crawling 20 or 30 metres, all the time being kicked and punched by the offender. 8At one stage whilst he was trying to crawl away from the offender, the offender said that he was going to shoot Mr O'Neill and kill him. Mr O'Neill thought that if that threat was carried out it was obviously "all over" for him. 9Eventually the offender stopped kicking and hitting Mr O'Neill. He went to seek assistance. He could not find anyone to assist him but when he walked back to where his car was he saw the police had arrived and the offender under control. 10Mr O'Neill was left with injuries which clearly amounted to grievous bodily harm. He had fractures to an eye socket and swelling to his throat which affected his breathing and which required later draining. A photograph was tendered before me in the trial showing what Mr O'Neill looked like after the offender had finished with him. His face is covered in blood. There is a substantial quantity of blood on the shirt that Mr O'Neill was wearing. There is blood all over his left arm. He looks a mess. That the offender could hit Mr O'Neill once is bad enough, that the offender could kick him whilst he is on the ground once is worse, but for the offender to continue kicking, hitting and threatening Mr O'Neill reveals grave criminality indeed. That he could continue to do so despite Mr O'Neill being obviously injured represents criminality of the highest order. 11In his submissions today, the Crown Prosecutor referred to the offender's conduct as involving a horrendous, unprovoked, prolonged and vicious attack. Each of those adjectives is entirely accurate. 12As a result of that conduct the offender stands to be sentenced for an offence of causing grievous bodily harm with intent. There is one further offence for which the offender is to be sentenced as well. When he was on his motorcycle he was unlicensed. He has asked that I sentence him for that matter, the matter coming before this Court on a s 166 certificate. 13All of the offender's wrongdoing came about over a relatively short period on 16 January 2013. It is the one rampage. The offender's conduct was largely inexplicable too. Mr O'Neill did nothing at all, apart from telling him that he did not have any jumper leads. The offender's response is in many respects bizarre. It is largely due to the very high level of intoxication affecting Mr Cook that day. I will return to that issue later in these remarks on sentence. 14The offender pleaded guilty to the aggravated robbery offence and the demand money with menaces offence at an early stage and so the sentence I impose upon him for those matters will be 25% less than they would otherwise have been. The offender did not plead guilty to the offence of causing grievous bodily harm with intent and a trial was held before me without a jury. Notwithstanding that circumstance, there was still a utilitarian benefit in the way the offender ran the trial. The issue for me to decide was very limited and concerned only the mental element - was I satisfied beyond reasonable doubt that Mr Cook intended to cause grievous bodily harm. I found that he did and so the offender stands to be sentenced for that matter, but he is nevertheless entitled to a discount on sentence because of the utilitarian benefit which flows from the way the trial was run and the admissions that were made. The sentence I impose upon him for that offence will thus be 10% less than it would otherwise have been. 15These are obviously serious offences. That is demonstrated not only by a recitation of what the offender did, but also by consideration of the maximum penalties and, in one case, standard non-parole period. The maximum penalty for causing grievous bodily harm to a person with intent to cause grievous bodily harm is 25 years. It has a standard non-parole period of seven years. The maximum penalty for the aggravated robbery offence is 20 years imprisonment and the maximum penalty for demanding money with menaces is ten years imprisonment. I have taken into account the maximum penalties and, where appropriate, the standard non-period in determining the appropriate sentences in this case. My reasons for not imposing the standard non-parole period are to be found in these remarks on sentence. 16The offender was born in Wagga in 1987. He has four brothers and four sisters. His parents separated when he was quite young, about the age of three, and he has had little contact with his mother from that time. His mother was, and may well still be, a heroin addict. 17The offender was left in the care of his father but, and this is a matter of distress to the offender, he had limited contact with his father in his early years. His father was either away at work or involved in activities with an outlaw motorcycle gang and so the offender was largely raised by his paternal great aunt, a woman to whom he feels very close. Indeed, at the time of committing these offences he was her carer. He freely admits that he was not doing a terribly good job of being her carer, getting intoxicated and committing these offences on 16 January. 18He has had problems with drugs and alcohol for some time. He commenced drinking at the age of 14. He became involved with ecstasy and amphetamines at 16 and escalated his drug use to involve cocaine and, more damagingly, ice at 18. He told a psychologist that his drug use was mainly recreational until about six months before these offences. What happened at around that time was that a very close friend committed suicide. Quite irrationally it would seem, the offender feels guilty about his friend's death. Although such feelings, as I have said, may be irrational, they appear to have been genuine, with the offender significantly upset by this tragic turn of events. In those circumstances he began to abuse drugs and alcohol and it was in those circumstances that he committed the offences which I must now sentence him. 19There is no doubt he was very highly intoxicated at the time of these offences. Extracts from an interview with police were played to me during the trial and other extracts were read to me during the course of submissions today. It is clear that police did not interview the offender until he had sobered up and once they did, he learnt for the first time what he had done. His distress at learning of his behaviour and, more importantly, at learning of the harm he has caused was, I am satisfied, genuine. His remorse continues to this day. He told me that he felt disgusted about what he had learnt from police, could not believe that he had done those things and finds it difficult to put into words how bad he feels about such matters. 20The offender does have a criminal history but the only offences involving violence, of affray and assault occasioning actual bodily harm, occurred when the offender was a juvenile. There is nothing remotely approaching the seriousness of these offences on the offender's criminal history. 21As I have already mentioned, the offender's bizarre behaviour can really only be explained on the basis that he was highly intoxicated at the time of his offences. It is to be noted that Parliament has recently amended s 21A of the Crimes (Sentencing Procedure) Act, that self induced intoxication is no longer a mitigating feature. This leads to a curious result in this case. The offender pleaded guilty to the aggravated robbery and demand property with menaces matters before 31 January, so the amendment to s 21A does not apply and so his self induced intoxication can be regarded as a mitigating feature for those offences. But I only found him guilty and convicted him on the more serious offence of causing grievous bodily harm with a person with intent to cause grievous bodily harm after 31 January 2014 and so the amendments do apply to that offence. Thus, for that offence it is not a mitigating feature that the offender was intoxicated. 22I will have to do what Parliament says I must do, despite obvious problems in the approach that Parliament has dictated. Why should I sentence the offender for the most serious offence as if he were stone cold sober? It was his intoxication which has caused him to act out of character, and yet the recent amendments say that I cannot have regard to that as a mitigating feature. I repeat I will do what Parliament requires that I do despite it making no sense to me at all. 23I should note that the pillion passenger was also dealt with in relation to the offence of aggravated robbery, a parity issue arises. I note that he had a more significant criminal history, but on the other hand it is clear that the offender had the more culpable role. The pillion indeed was only charged with aiding and abetting the aggravated robbery and received a head sentence of three and a half years with a non-parole period of two years. I must have regard to that in order to ensure that the offender does not have a justifiable sense of grievance when he compares the sentence imposed on him for that matter with the sentence imposed on his pillion passenger. 24I should also mention that the offender was on a bond at the time under s 9 of the Crimes (Sentencing Procedure) Act. That was a bond imposed for an offence of supplying a prohibited drug. I am not aware of what has happened in regard to that matter, whether he has been called up or if so what penalty was imposed by the Magistrate. 25The offender is, despite everything that I have said so far, an impressive young man. He gave evidence in an articulate manner. He is realistic about what he has done. He is deeply remorseful and has plans for the future. His plans for the future largely involve his family. At the time he committed this offence, although he did not know it, his partner was pregnant with their child. She has given birth to their son. I gather that this was something of a wakeup call to the offender who has now decided that he is determined to be a good father to his son, recognising that that will involve a significant change in his behaviour. He wishes, upon release from custody, to live with his partner and to bring up his son in a proper manner. He does not want to bring up his son as he was brought up. 26I should clear up one thing because of the suspicion that it attaches to members of outlaw motorcycle gangs such as that to which the offender's father belonged. Indeed the very use of the word "outlaw" in that term tends to convey an impression and so I will make this clear: The offender's father has no criminal history. I gather that what the offender is more concerned about is not that his father exposed him to criminality from a young age or was a poor role model to him as regards the committing of criminal offences, but simply that he was absent for significant periods of time. 27The offender is fortunate to have a partner who is capable of having such a positive influence on the offender's life. She will be of substantial assistance to him upon his release from custody as he seeks to put his life back on track. The offender also retains the support of other family members, including his father, who is in court today, his partner's mother and others as well. It is undeniable that others have suffered through the offender's misconduct as well as the victims of his offences and I will turn to the harm that the offender has caused to them in a little while. 28The offender's partner is undergoing hardship, both financial and emotional, because of the absence of the offender. The offender's aunt, for whom the offender was a carer, also misses the offender's attentions and assistance but that hardship is in no way exceptional. It is regrettably commonplace when husbands and carers go to gaol for wrongdoing. I cannot take that hardship into account in deciding the appropriate sentence. 29I can, however, say that the offender will do his time in custody harder knowing that he is the sole person responsible for the predicament that he has put his loved ones in. It is also relevant of course to the prospects of the offender's rehabilitation. I cannot say that those prospects are good given the offender's drug addiction, but there are very positive signs. The offender is doing courses whilst in custody, although of course like all remand prisoners he experiences difficulty getting to those courses. And, particularly because of the birth of his son, the offender is engaged in a reassessment of the lifestyle he has been leading. 30I said I would return to the harm caused to the victims of these offences. It was serious. There is no up-to-date evidence as to Mr O'Neill's condition. I have to make an assessment on what I know as to the likelihood that he will experience ongoing consequences from the bashing he received at the hands and feet of the offender. I cannot say that that harm is out of the ordinary. The actual physical consequences for the victim of the aggravated robbery appear to have been limited, but I am sure that both Mr O'Neill and the victim of the aggravated robbery have experienced significant impacts from what the offender did to them. I am sure that their emotional wellbeing has been damaged as a result of the offender's crimes. 31It must be the case that the offender goes to gaol for a significant period of time, if only to reflect the objective gravity of what he did. General deterrence is of considerable importance in this case as well. People should be able to go to the shops or go fishing or stop at a pedestrian crossing without being the victims of serious crimes such as those committed by the offender. 32There are special circumstances in this case. The offender, as I have said, is an impressive young man who has much to contribute upon his release from custody. He will benefit from assistance for an extended period. That is not done as a favour for the offender at all but simply represents a circumstance that if the offender can be assisted with rehabilitation and thus helped to avoid the commission of further offences the community as a whole benefits. 33The sentences I impose are as follows: 34For the offence of demand money with menaces I impose a sentence of imprisonment consisting of a non-parole period of six months commencing from 16 January 2013 and a head sentence of nine months. 35Taking into account the matters on the Form 1, for the offence of aggravated robbery I impose a sentence of imprisonment consisting of a non-parole period of two years, six months commencing from 16 March 2013 and a head sentence of three years, nine months. 36For the offence of causing grievous bodily harm with intent I impose a sentence of imprisonment consisting of a non-parole period of four years commencing from 16 September 2014 and a head sentence of seven years. 37For the offence of riding a motor vehicle whilst unlicensed under s 10A of the Crimes (Sentencing Procedure) Act the offender is convicted with no other penalty. 38The overall effective sentence I impose consists of a non-parole period of five years and eight months commencing from 16 January 2013 and a head sentence of eight years and eight months. The offender will become eligible to be released to parole on 15 September 2018. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 October 2014