R v Coogan [2017] ACTSC 238

Crimes Act 1914 (Cth)

R v Barbour (Unreported, Supreme Court of the Australian Capital Territory, Justice Burns, 20 November, 2013)

SCC 283 of 2016; SCC 24 of 2017

1. Adam Coogan has pleaded guilty to six offences as follows:

(a) burglary with intent to steal, arising under s 311 of the Criminal Code 2002 (ACT) and carrying a maximum penalty including imprisonment for 14 years;

(b) two theft offences, arising under s 308 of the Criminal Code and carrying a maximum penalty including imprisonment for 10 years;

(c) common assault, arising under s 26 of the Crimes Act 1900 (ACT) and carrying a maximum penalty including imprisonment for two years;

(d) unlawfully confine a person, arising under s 34 of the Crimes Act and carrying a maximum penalty including imprisonment for 10 years; and

(e) using a carriage service to menace, harass or offend, arising under s 474.17(1) of the Criminal Code 1995 (Cth) and carrying a maximum penalty including imprisonment for three years.

2. These charges arose out of two separate incidents in 2016.

3. The first was a domestic burglary in February, committed during the day at a house in Ngunnawal. Mr Coogan broke a window and entered the house, which he then ransacked. He stole property belonging to the occupants of the house, Ann-Maree Palmer and her son. The property included cash, electronic equipment, and an enormous amount of jewellery, and was valued at around $25,000 in total. Most of the property has not been recovered, but after Mr Coogan read Ms Palmer's victim impact statement, he offered to try to locate her property if he was granted bail. Bail was however refused, and Mr Coogan was not prepared to divulge the possible location of the stolen property to anyone else. Sometime after this, however, a small quantity of jewellery was left at the Gungahlin Police Station; it was subsequently identified by Ms Palmer as several of the least valuable items of jewellery that had been stolen in the burglary.

4. The second incident took place in October 2016 in a suburban street. It involved Mr Coogan dragging his former partner into a car against her will, and assaulting her (specifically, kicking her) in the course of that conduct. Fortunately, the victim was able to escape from the car before Mr Coogan drove away. Part of the incident was observed by a resident of the area, who later checked the recording on the CCTV camera installed in his home, and gave a copy of the recording to police.

5. Some days later, the CCTV footage was released to the media, and the victim approached police. On 20 October, while she was speaking to police, she received at least 10 phone calls from Mr Coogan to her mobile phone. She also showed police a large number of threatening and abusive text messages and Facebook messages that she had received from Mr Coogan. They are set out in an attachment to the statement of facts and do not generally bear repeating, but the following message is typical, although containing less foul language, and a less specific threat of violence, than many of the messages:

... one more Fucking time I'm gonna call and if you don't answer ... Don't think I don't know where ray lives either.

6. Although Mr Coogan's fingerprints on glass broken in the burglary were identified in May 2016, police were unable to locate Mr Coogan, despite several attempts, between May and early September. He was taken into custody on 20 October 2016 as a result of the unlawful confinement and associated offences, and has been in custody ever since.

7. That is, he has now spent nearly 10 months in custody in respect of these charges.

8. Mr Coogan pleaded guilty to the unlawful confinement and associated offences on 13 December 2016, being the fourth mention in the Magistrates Court, and to the burglary and theft charges on 3 February 2017, being the eighth mention in the Magistrates Court.

9. As well as the statement of facts, the following material is in evidence before me:

(a) the victim impact statement, provided by the victim of the burglary and read out in court by her;

(b) a criminal history;

(c) a pre-sentence report dated 8 May 2017;

(d) CADAS reports dated 30 January and 11 May 2017; and

(e) a list of property taken from Ms Palmer, and another list of items returned to her after the beginning of the sentencing proceedings;

(a) information about two drug rehabilitation programs to which Mr Coogan has sought admission, an extract from a pamphlet about one of the residential rehabilitation programs, and three letters relating to offers of admission for Mr Coogan to the residential rehabilitation programs;

(b) a relapse prevention plan prepared by Mr Coogan in March this year;

(c) an undated graduation certificate from the Solaris Therapeutic Community in the Alexander Maconochie Centre (AMC); and

(d) a certificate recording Mr Coogan's completion of most of the sessions of a Marymead program entitled "Being a Man and a Dad."

11. In considering the objective seriousness of the offences, I have had regard to the following matters.

12. The burglary is the most serious of the offences charged by reference to maximum penalties. However, in this particular case the burglary, being a relatively routine burglary, does not seem to me as serious an example of the offence as do the theft and the unlawful confinement.

13. I accept defence counsel's submission that the burglary showed no particular premeditation or planning beyond the planning inherent in a deliberate, unauthorised entry into a person's home, and there is no suggestion that Mr Coogan knew that he would find such a substantial quantity of jewellery in the house.

14. I also accept that, although Mr Coogan's meeting with the victim of the unlawful confinement offence was pre-arranged in that she had agreed to meet him at the relevant location, there was no advance intention to confine her; rather, Mr Coogan and the victim began arguing almost as soon as they met, and this apparently degenerated into the physical struggle that gave rise to the confinement and assault charges. The argument of itself does not justify Mr Coogan's decision to attempt to drag the victim into his car, but it does not enable me to find that Mr Coogan had any such intention when he arranged to meet the victim. On the other hand, Mr Coogan's repeated phone calls and messages to the victim cannot all be explained as being made in the heat of the moment.

15. The prosecutor submitted that the confinement offence was aggravated by being committed in public, and because it involved a physical struggle and threats screamed at the victim. However, I am not convinced that this makes the offence more serious than if it had been committed in private where the victim had no hope of rescue, or if the confinement had been achieved by threats made with less passion but in a way that might have carried more weight. It is almost inherent in the unlawful confinement offence that it can be achieved either by use of physical force or threats, and that it will be frightening to the victim.

16. Defence counsel noted that the incident giving rise to the unlawful confinement charge lasted for a total of four minutes, and that it seemed that the victim was actually confined, in terms of having her freedom of movement restrained, for a period of about 45 seconds. He referred to several unlawful confinement cases including in particular the case of R v Barbour (Unreported, Supreme Court of the Australian Capital Territory, Justice Burns, 20 November, 2013) in which the offender's former partner was confined for two minutes in a cupboard, and suggested this put the objective seriousness of Mr Coogan's offence at the lower end of the scale; Mr Barbour was sentenced, among other sentences, to an 18-month good behaviour order for the confinement offence. On the other hand, counsel conceded that the fact that the confinement involved Mr Coogan's former partner was an aggravating factor.

17. Defence counsel also said that Mr Coogan was taking responsibility and trying to make amends for his offending as part of his rehabilitation, and that accordingly he intended to make further attempts to locate Ms Palmer's jewellery, but that he was not willing to let anyone else look through his property to see if any of it belonged to Ms Palmer. That seems to mean there will be no further attempts made until Mr Coogan is next at liberty.

18. Counsel also submitted that a willingness to take responsibility was shown by Mr Coogan's relatively early pleas to the unlawful confinement and associated offences; he also noted that Mr Coogan expressed embarrassment about the nature of the messages he sent to the victim of these offences, and agreed he should not have sent them. He noted that the rather later pleas of guilty to the burglary and thefts reflected the fact that Mr Coogan has no memory of the offences, and eventually pleaded guilty after receiving advice by reference to the fingerprint evidence linking him with the offences.

19. Ms Palmer's victim impact statement explained her distress about Mr Coogan's invasion of the sanctity of her home and her privacy, and his taking of things that meant a great deal to her and nothing to him. She has been left unable to feel safe in her own home. Ms Palmer noted that she used to love her jewellery but she no longer has a love for jewellery. She mentioned a number of pieces of jewellery that had particular sentimental value to her, and some items of sentimental value that had been given to, or intended for, her son.

20. She also described her distress at what she perceived as being made to feel like a criminal by her insurance company, and the fact her insurance did not cover all the property that Mr Coogan had taken. Ms Palmer also said that the emotional distress caused by the burglary and theft had affected her capacity to keep up with her work, but that she would never let Mr Coogan bring her down.

21. As to the objective seriousness of the offences, I consider the burglary and the theft from Ms Palmer's son are at the lower end of the range, and the theft from Ms Palmer, the unlawful confinement, the common assault and the carriage service offence are all approaching mid-range seriousness for the offences concerned.

22. I have also had regard in this sentencing to Mr Coogan's subjective circumstances.

23. Mr Coogan is now 31. He has an extensive criminal history in the ACT which relevantly includes nine offences of violence (mostly common assaults but including two damage property offences in that category) and 18 dishonesty offences mainly relating to possession of stolen property and not including any burglaries. There are only two drug-related offences on his record, both being apparently minor possession offences.

24. Mr Coogan says he was affected by drugs when he committed the burglary offence and that his drug use had escalated when his children were removed from his care in August last year. However, the fact that Mr Coogan seems to think that he might still have the stolen property somewhere among his possessions suggests that the burglary was not committed to fund immediate drug purchases.

25. Mr Coogan's childhood was somewhat disrupted. His biological father has chosen not to be involved in Mr Coogan's life, and his mother and stepfather separated when he was 12. There is some discrepancy in accounts given by Mr Coogan and his mother to the pre-sentence report author about the stepfather's relationship with Mr Coogan, with his mother alleging that his stepfather was an abusive alcoholic.

26. Mr Coogan's own adult relationships have also been troubled. The victim of the confinement and associated offences was his partner for 10 years, and they have three children, aged 10, 8 and 2. The children are now under the care of Child and Youth Protection Services as a result of the drug use of both parents, and although Mr Coogan is optimistic that he might obtain custody of the children if he completes a residential rehabilitation program, it is clear that there are no guarantees of this.

27. Mr Coogan formed a new relationship in 2015 which has also been troubled, especially after their child was stillborn, but this partner reports she is supportive of Mr Coogan and his wish to deal with his substance abuse issues.

28. Mr Coogan has some vocational qualifications but has not been employed since 2015.

29. The CADAS report notes that Mr Coogan used alcohol from the age of 13 until he was released from prison aged 27, having served out a licence disqualification period while in custody. On his release, he decided that he preferred to be able to drive rather than to drink. Mr Coogan has used cannabis since the age of 16 and methamphetamines on and off for the last three or four years, ceasing only in custody. Over time he has attended various programs and courses related to drug abuse, and accepted drug counselling for about three months in 2013, after which he abstained from alcohol and other drugs for about six months. Since being remanded in custody, he has completed the Solaris program in the AMC, and wishes to undertake further residential rehabilitation in the community.

30. The CADAS report author expressed support for Mr Coogan's rehabilitation plans, and noted that he seemed to have both insight into his plans and genuine motivation to pursue them.

31. The pre-sentence report author assessed Mr Coogan as of medium-high risk of reoffending, given his multiple criminogenic risks including substance abuse and antisocial values and attitudes.

32. General deterrence is relevant for all the offences for which Mr Coogan is to be sentenced, and I have no doubt that personal deterrence is also significant in his case. I note also that Mr Coogan's apparent efforts to organise the recovery of some of the stolen property is commendable, but not unconditional given it depends on his release from custody.

33. I am satisfied that no penalty other than imprisonment is adequate for these offences.

34. Mr Coogan's guilty pleas will be recognised with a sentencing discount appropriate to relatively early pleas. I note the prosecutor's submission that the Crown case on the confinement offence was extremely strong given the CCTV footage, but since the CCTV footage was not shown, I am not in a position to conclude that either the details of the incident or the identity of the driver of the car would have been unable to be challenged in a defended trial.

35. Mr Coogan, please stand. I record convictions for:

(a) one burglary;

(b) two thefts;

(c) one unlawful confinement;

(d) one common assault; and

(e) one offence of using a carriage service to menace, harass or offend.

36. I now sentence you to imprisonment as follows:

(a) for the burglary - to 18 months imprisonment reduced from 2 years for your plea of guilty;

(b) for the theft from Ms Palmer - to imprisonment for 12 months reduced from 16 months, and for the theft from her son - to imprisonment for 6 months reduced from 8 months; both the theft sentences are to be served concurrently with the burglary sentence and with each other;

(c) for the unlawful confinement - to 18 months imprisonment reduced from 24 months, to be served so as to add 12 months to the total sentence;

(d) for the common assault - to 6 months imprisonment reduced from 8 months, to be served concurrently with the unlawful confinement offence; and

(e) for the offence of using a carriage service to menace, harass or offend - to 3 months imprisonment reduced from 4 months.

37. It seems that the easiest way to comply with the requirements of the Crimes Act 1914 (Cth) is to order that the Commonwealth sentence is to be served first, so it will be backdated to 20 October 2016, and therefore it expired on 19 January this year. The burglary sentence will then begin from 20 November 2016, giving two months concurrency with the Commonwealth sentence.

38. The effect of the concurrency and accumulation I have described is a total sentence of 31 months, backdated to 20 October 2016 when you were taken into custody and expiring on 19 May 2019.

(a) for the carriage service offence, from 20 October 2016 to 19 January 2017;

(b) for the burglary, from 20 November 2016 until 19 May 2018;

(c) for the theft from Ms Palmer, from 20 November 2016 to 19 November 2017;

(d) for the other theft, from 20 November 2016 to 19 May 2017, so that in fact has also been served;

(e) for the unlawful confinement offence, from 20 November 2017 to 19 May 2019; and

(f) for the common assault, from 20 November 2017 to 19 May 2018.

40. That gives a sentence running in total from 20 October 2016 to 19 May 2019. The non-parole period will be 15 months commencing when the first ACT offence begins to run, which is 20 November 2016. That period of 15 months is relatively low for a person with your criminal history. It is basically half the sentence, and that has been set so low in recognition of your wish to engage in extended residential rehabilitation after your release. The effect of the backdating and the non-parole period is that you will be eligible for parole, at the earliest, in just over six months, namely 20 February 2018.

41. If you have any particular questions about the effect of these orders, Mr Coogan, please ask Mr Robertson or the court officials.

I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.