IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
Suitable for Publication	
AT Melbourne
CRIMINAL DIVISION
CR-21-02365

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
MITCHELL COBBY		

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JUDGE:	HIS HONOUR JUDGE MAIDMENT 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	8 March 2022	
DATE OF SENTENCE:	11 March 2022	
CASE MAY BE CITED AS:	DPP v Cobby	
MEDIUM NEUTRAL CITATION:	[2022] VCC 331		

REASONS FOR SENTENCE

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Subject:	Plea – sentencing
Catchwords:		Aggravated burglary - intentionally damaging property - causing injury intentionally - breach conduct condition of bail
Legislation Cited:	Sentencing Act 1991
Cases Cited:		
Sentence:		23 months' imprisonment plus 2-year CCO
	
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APPEARANCES:
	Counsel	Solicitors	
For the DPP 
	Ms D. Hogan	Office of Public Prosecutions	
			
For the Accused	Mr C. Grant	Gallant Law	

HIS HONOUR:

1	Mitchell Cobby, you have pleaded guilty to an indictment charging you with aggravated burglary, for which the maximum penalty is 25 years’ imprisonment; to an offence of intentionally damaging property, for which the maximum penalty is 10 years’ imprisonment; and to causing injury intentionally, for which the maximum term of imprisonment is also 10 years.  
2	You also pleaded guilty to a related summary offence of breaching a conduct condition of your bail in that you associated with Jaye Kaponga and Kayne Walker.  That offence carries a maximum term of three months’ imprisonment.
3	The prosecution has tendered a summary of prosecution opening which is marked Exhibit A and was read to the court.  I am not going to read it again.  But suffice to say that on 18 August 2020 at 1.10 am you attended the premises of a former partner with whom you had been in a relationship for about two and a half years which terminated in December 2019.  At that particular time, your former partner was in a relationship with another man and they were living together at a property in Sunshine West.  You attended that property at 1.10 am on 18 August 2020 and turned off the electricity to the property.  You were in company with Jaye Kaponga and Kayne Walker.  They did not enter the house, but your two victims - that is, your former partner and her new partner ‑ saw you outside the house in possession of a baseball bat which you used to smash a glass window and gain entry to the house.  That is the offence of aggravated burglary.
4	You then attacked the male victim, got on top of him and hit him repeatedly with the baseball bat, including to the head.  You caused him injury intentionally - that is Charge 3 on the indictment.  You struck him a number of times.  Your former partner, the female victim, attempted to intervene, pulling at your clothing and striking you a number of times about the head.  After you had completed your sustained assault upon the male victim, you got off him and endeavoured to leave the property by a back door.  You were unable to do so and went out the front door.  Your female victim then went and turned the electricity back on.  The male victim required stitches to a cut or cuts on his head and he also had other injuries, including a dislocated shoulder.  You were fortunate that you did not cause more severe injuries.
5	On 21 October, you attended the Royal Melbourne Hospital for an appointment for treatment for your diabetes condition.  Police attended the hospital whilst you were there and noted you had a lacerated hand.  I was informed by your counsel that that laceration occurred during the commission of the aggravated burglary and the criminal damage to which you have pleaded guilty.  
6	You were arrested by police and interviewed.  You chose to make no comment to the police in relation to your offending and you were then remanded in custody.  You were later granted bail but because of the breach of the terms of your bail on 18 November 2020, you lost your bail and have been in custody since.
7	Your female victim provided a victim impact statement (which is Exhibit B on the plea) that sets out in clear terms the serious impact that your offending had upon her.  She describes how the crime has affected her: she has been diagnosed with chronic PTSD and major depressive disorder and adjustment disorder with anxiety; she is seeing a psychologist and has constant recurring thoughts of your criminal behaviour.  She goes on to say:
‘Going forward I don't think I will ever be the same again.  It has definitely had a profound effect on my life and the way I think about certain things.  If I do learn to cope with the PTSD and anxiety, I feel that I will always have recurring thoughts about the crime'.
8	That is not an uncommon response to aggravated burglary of the kind in which you engaged.  
9	You are now 28 years of age.  You were 26 years of age at the time of your offending.  Your counsel has provided me with an outline of submissions on the plea dated 5 March 2020 along with a forensic psychology report of Laura Fleming dated 25 October 2021; a letter from Dr Simon Benson, general practitioner dated 28 September 2020; a neuropsychology report from Dr Izabela Walters dated 20 April 2020; a report from Austin Health dated 7 June 2019; a letter from Western Health dated 2 May 2020; a report from Dr Steven Chau, treating psychiatrist dated 12 December 2018; a report of Professor Stephen Davis dated 29 May 2020; character references from Adrian Perumal, from your mother Maggie Stenner and from family friend Kerry Brown; a certificate of completion for 'Ice and Me’ course.  Also, finally, a letter from Karly Doyle, forensic alcohol and other drug specialist, dated 7 March 2022 which describes your cooperative response to treatment that took place upon you being granted bail after your arrest in August 2020 and prior to you being taken back into custody on 18 November 2020.
10	I take into account the content of all of those documents which were exhibited.  Of particular benefit to me in assessing the facts of the offending, your personal circumstances and the facts relied upon in mitigation of sentence by your counsel is the report of Laura Fleming dated 25 October 2021.  I commend Ms Fleming for a carefully drawn, balanced and helpful report on your psychological condition which draws upon a history of your upbringing, education, your mental health and medical history and alcohol and substance abuse.  
11	Dealing briefly with the one court appearance which you have admitted: that involved an offence of contravening a family violence interim intervention order for which you appeared at the Heidelberg Magistrates' Court on 29 May 2020 with an order being made without conviction for the matter to be adjourned to 28 May 2021 and for you to pay $800 into the court fund.  It is a relevant court appearance and it is relevant in the sense that the offending for which I have to pass sentence occurred in circumstances of a previous domestic relationship and one of your victims being your former partner.
12	I note that you seem to have had a very promising start to your life and did well at school.  You had a major setback at the age of 13 when you were diagnosed with Type 1 diabetes for which, of course, you are still receiving treatment.  Despite that, it seems that you had a continuing interest in sport and you participated at least at school level with a good deal of success.  You had another significant setback at the age of 19 years when you were subjected to a serious sexual assault which you did not report at the time and internalised essentially for a number of years before disclosing.  It seems that that had a profound effect upon you and that it led to an increased level of illicit substance abuse and to an exacerbation of mental health issues.  
13	Ms Fleming diagnosed you as suffering from post-traumatic stress disorder, seemingly arising from the sexual assault, stimulant use disorder and an unspecified personality disorder.  It is not suggested on your behalf that those conditions were influential upon your offending, although I note that you report having had a significant quantity of methamphetamine on the day of or prior to the offending taking place.  It seems that despite the fact that after leaving school you were able to qualify as an A-grade electrician and that you worked successfully in that field, ultimately in your own business, the use of drugs - methamphetamine perhaps being the most significant - played a significant role in bringing you down and exacerbating your mental health issues.
14	The fact that you had taken methamphetamine prior to the offending conduct may explain your aggressive and impulsive behaviour.  But it is no excuse and your counsel did not seek to persuade me that I should treat that as a mitigating factor in any way, shape or form.  I was invited to apply two of the Verdins principles, that is, principles 5 and 6 which arise from the proposition that your time in custody serving sentence will be more onerous as a result of your mental health conditions and that there is a significant risk that your time in custody will exacerbate those conditions.  
15	That submission was accepted by the prosecution and there is no dispute that those two principles should be applied in the sentencing process.  However, there is no suggestion that your moral culpability should be mitigated in any way as a result of those mental health conditions.  You enjoy the support of your parents and your referees speak well of you.  I have little doubt that you have the capacity to have a lengthy and productive working life when you are able to get back to your work as an A-grade electrician.  
16	Your counsel pointed to the fact that you pleaded guilty to these offences at an early stage.  That is not disputed by the prosecution.  Particularly in these COVID times you are entitled to a substantial discount in sentence for the utilitarian benefits of your early pleas.
17	A plea of guilty is consistent with remorse and I note that you have most recently expressed significant remorse to the community corrections officer who prepared the report upon you wherein the officer says on the second page of the report:
“When invited to discuss the charges before the Court, Mr Cobby reflected "not a single day goes by where I'm not sorry about [what] I've done".  
18	You reflected that you should have handled the situation differently and appeared to show remorse for your actions.  I am inclined to think that you are remorseful in the cold light of day.  The reason that you put forward for your offending to the psychologist, Ms Fleming, was that you believed your actions were protective of your former partner, you having suspected that she may have been the subject of physical abuse from her then current partner.  
19	Whether there was any substance in your suspicion or not is irrelevant.  This offending is still extremely serious offending and offending which should properly attract a sentence that demonstrates the court's denunciation of offending of that kind, particularly in the domestic context, adequately punishes you for your offending and sends a message to others who might be tempted to offend in the same way that offending of this kind will result in severe punishment.
20	It is also, I think, relevant, as the prosecution points out, that you having appeared in the Heidelberg Magistrates' Court in May 2020 for contravening a family violence interim intervention order indicates a need for an element of individual deterrence in the sentencing process.  It was put on your behalf that the principles that apply to youthful offenders should be applied in your case.  The prosecution does not argue strongly against that, but says that, to the extent that that might be regarded as appropriate, you are really at the outer limits of such application given that you are now 28 years of age.  I am inclined to think that the prosecution is correct and that you would probably fall outside or certainly on the borderline of the application of those principles.  
21	However, it is relevant that you do not have a significant criminal history, and that you have the capacity to work.  You have a good upbringing and family support.  Not only does your own counsel suggest that you have good prospects of rehabilitation but the prosecution has also indicated in their well balanced and helpful response to the defence submissions that you must be regarded as having good prospects of rehabilitation.  
22	There is no doubt that general deterrence must play a significant role in sentencing and particularly of this kind.  There are strong authorities in favour of that proposition.  It is always a difficult balance that a judge in these circumstances has to perform in determining the extent to which the principle of parsimony may nevertheless apply and enable the court to impose a sentence which is designed at the one time to send strong message to would-be offenders and at the same time to promote rehabilitation in someone where there is a good prospect of rehabilitation.  It seems to me that in some respects it has been a good thing that you have been in custody for the last, I think, now 534 days.  Although you have not had the opportunity of the range of programs that might be available to a convicted prisoner, I am satisfied that you do qualify for the balance falling in favour of rehabilitative measures which go beyond those readily available during a parole period.
23	It is important, I think, for the court to ensure as far as possible that the influences within prison do not drive a young person to a social milieu which is dominated by criminal influence.  Whilst, of course, you have had 534 days in which that could have occurred to date, I see no reason to think that that has necessarily occurred.  I think that the time has come now to look to rehabilitative measures in conjunction with a suitable term of imprisonment, to look to a sentence which combines just punishment and denunciation and deterrence with rehabilitative measures that go beyond those available in a parole period.  
24	For that reason I am persuaded that there is capacity for the court to impose a sentence of imprisonment with a community correction order.  Ordinarily in a case such as this, the sentence of imprisonment would be a sentence with a non-parole period.  But a sentence that is under two years permits me to impose a sentence without ordering a non-parole period.  Given that you have already served 534 days in prison, what I propose to do is to impose a term of imprisonment less than two years but without ordering a non-parole period so you will have to serve the whole of that sentence.  But I also combine that with a community correction order which provides both punitive elements and rehabilitative elements.  I will explain that to you in a bit more detail in a moment.
25	It is upon that basis that it seems to me that despite the submission of the prosecution that nothing less than a term of imprisonment that would require the imposition of a non-parole period is the only appropriate sentence in this case, I am persuaded that I can proceed with the sentence I have just outlined.  
26	I cannot impose a community correction order, Mr Cobby, unless you consent to it.  I will give you an opportunity of hearing the terms of the order that I propose, which you, no doubt, have seen in accordance with the recommendation of the community correction assessment report which was provided.
27	Mitchell Cobby, I now propose to proceed to impose sentence upon you.
28	For the offence of aggravated burglary, Charge 1 on the indictment, you are convicted and sentenced to imprisonment for 21 months.  
29	On Charge 2 of intentionally damaging property, you are convicted and sentenced to imprisonment for one month.  
30	On Charge 3 of causing injury intentionally, you are convicted and sentenced to imprisonment for 16 months.  
31	On the related summary offence of contravening a conduct condition of your bail, you are sentenced to imprisonment for one month.  
32	The base sentence is the sentence of 21 months imposed on Charge 1.  
33	I order that two months of the sentence imposed on Charge 3 be served cumulatively upon the sentence of 21 months on Charge 1.  
34	The total effective sentence is imprisonment for 23 months. 
35	I stress again that I do not order a non-parole period so that potentially you serve all of that time.
36	I declare 534 days of pre-sentence detention as time to be reckoned as served and deducted from that sentence administratively.  
37	I also propose to make a community correction order, with conviction, on Charges 1, 2 and 3 for a period of two years which will commence at the conclusion of the sentence of imprisonment that I have imposed.  That order will be the subject of a number of conditions which I will now explain to you. 
38	Within two clear working days after the conclusion of your sentence, you will be required to attend the Broadmeadows Community Correctional Services at 25-27 Dimboola Road, Broadmeadows, Victoria, 3047 and you will then become the subject of a number of other mandatory terms that apply to all community correction orders.  They are that:
•	you must not commit another offence for which you could be imprisoned during the time that the order is in force;  
•	you must comply with any obligation or requirement prescribed under Regulation 7 of the Sentencing Regulations 2011, which include not turning up for supervision sessions and the like affected by drugs or alcohol;
•	you must report to and receive visits from the Secretary or his or her delegate;
•	you must let a community corrections officer know within two clear working days of you changing your address or job;
•	you must not leave Victoria without first getting permission to do so from the Secretary or his or her delegate; and
•	you must obey all lawful instructions from and directions of the Secretary or his or her delegate.
39	In addition to the mandatory terms, there are a number of other terms that I intend to order, as follows:
•	you must perform 250 hours of unpaid community work over the two-year period of the order as directed by the regional manager, and I order that 100 hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition - if you fail to comply with this order, the Secretary of the Department of Justice or his or her delegate may give you a direction to perform additional hours of unpaid community work in accordance with the Sentencing Act;
•	you must undergo supervision by a community corrections officer for the period of two years in which the order is in force;
•	you must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the regional manager;
•	you must undergo any mental health assessment and treatments that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager,
•	you must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager; and
•	you must not associate with Jaye Kaponga or Kayne Walker.  
40	Mr Cobby, have you understood those conditions?
41	ACCUSED:  Yes, Your Honour.
42	HIS HONOUR:  Are you willing to comply with those conditions?
43	ACCUSED:  Yes, Your Honour.
44	HIS HONOUR:  You must appreciate before finally agreeing to this order, that if you breach any condition of this order you are likely to be brought back before this court - probably before me - and one of the options open to the court is to cancel the community correction order and re-sentence you on the original charges.  I need hardly tell you that if that were to occur that it would almost inevitably involve a substantial increase in the period you would be required to remain in custody.  The court may also deal with you by sending you to prison for breaching the order an offence which carries a maximum sentence of three months’ imprisonment.
45	Given those terms, you should, of course, appreciate that they are quite onerous.  You have 250 hours of unpaid community work to perform, albeit that 100 of those hours may be made up of satisfactorily undertaken treatment and rehabilitation.  But it will be burdensome.  It is designed to be both punishment and rehabilitation for you.  It is to be hoped that this will assist you to put your offending conduct behind you and lead a productive life in the future.  Now, having heard all that, do you understand the effect of the order and the conditions of the order and are you willing to consent to it being made now?
46	ACCUSED:  Yes, Your Honour.  Just  to be clear, are you saying that I need to do up to 23 months of gaol time and then my CCO starts?
47	HIS HONOUR:  That's exactly right.
48	ACCUSED:  Yeah.  Okay.  Yeah.
49	HIS HONOUR:  That will, I think, require you to do another, what, five months or so; is that right?
50	ACCUSED:  Yeah.
51	HIS HONOUR:  You'll have to do the rest of that time and then the CCO starts and it will be for two years.   Do you follow all that?
52	ACCUSED:  Yeah.  Yes, Your Honour.
53	HIS HONOUR:  Yes.  All right.  Do you consent to the order being made?
54	ACCUSED:  Yep, Your Honour.
55	HIS HONOUR:  Well, given your agreement via audio-visual link then I treat the order as being signed by you and I will now sign the order myself and that order will then be in effect.  
56	I also order pursuant to s6AAA of the Sentencing Act that, but for your pleas of guilty to these offences, I would have sentenced you to imprisonment for four years and six months with a non-parole period of three years.  
57	I make the disposal order in the terms of the draft with which I have been provided.  Are there any other matters, counsel?
58	MS HOGAN:  Yes, Your Honour.  In drafting the opening, I adopted the summary of offending from police in the hand-up brief which said 40 centimetres for the length of the baseball bat.  But it is clearly not that and I did get instructions from the informant and he advised that it is 65 centimetres.
59	HIS HONOUR:  Yes.  All right.  Well, 65 centimetres, I think, is certainly within the range of a standard sized baseball bat.
60	MS HOGAN:  Yes.
61	HIS HONOUR:  All right.  That's cleared up.  
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