The Queen v Joseph Cockburn

• Jurisdiction: Australian Capital Territory
• Judge: Refshauge J:
• Judgment Date: 15 September 2015
• Court: Supreme Court of ACT
• Date: 15 September 2015
• Docket Number: File Number(s): SCC 212 of 2014

[2015] ACTSC 297

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Refshauge J

File Number(s): SCC 212 of 2014

SCC 213 of 2014

The Queen

(Crown)

and

Joseph Cockburn

(Defendant)

Representation:

Counsel

Ms E Beljic (Crown)

Mr P Bevan (Defendant)

Cases Cited:

Cooper v Corvisy [2010] ACTSC 165

In re: An Application for Bail by Nona [2014] ACTSC 111

In the matter of an application for Bail by Allen [2009] ACTSC 64

In the matter of an application for Bail by Dalton [2013] ACTSC 253

In the matter of an application for Bail by Marsh [2013] ACTSC 16

In the matter of an application for Bail by Massey [2008] ACTSC 145

R v Campbell [2010] ACTCA 20

R v Elphick [2014] ACTSC 377

R v Kristiansen [2015] ACTSC 159

Legislation Cited:

Bail Act 1992 (ACT), ss 6(1)(a), 9A(1), 9B, 9C, 9D, 22

Crimes (Sentencing) Act 2005 (ACT), s. 57(3), Pt 4.4

Human Rights Act 2004 (ACT), ss 18(1), 30

Magistrates Court Act 1930 (ACT), s 90B

CRIMINAL LAW — Jurisdiction, practice and procedure — bail — robbery — common assault — dishonestly drive someone else's motor vehicle without consent — dishonestly ride in someone else's motor vehicle without consent — intentionally cause damage to property — dishonestly appropriate property — making a demand with menaces — further offending whilst on bail — s 9D of the Bail Act 1992 (ACT) — bail attaches to a particular offence — offender seeking rehabilitation — special and exceptional circumstances

Decision:

Joseph Cockburn be granted bail to appear in court on 14 October 2015 on the following conditions:

• (1) that he be released no earlier than 9.30 am on 15 September 2015 into the company of an employee of Karralika Therapeutic Community;

• (2) that he admit himself to the Karralika drug rehabilitation program and remain in that program until he attends court;

• (3) that he obey all reasonable directions of the officer in charge of the Karralika program;

• (4) that, if he is not admitted, is discharged from or leaves the program before 14 October 2015, he is to report of the Registrar of the Supreme Court within one working day with a view to having his bail reviewed;

• (5) that he not consume or be in possession of alcohol or illicit drugs.

Refshauge J:

1 On 13 May 2014, the accused, Joseph Cockburn, was arrested and charged with robbery arising out of dealings he had with the complainant on 12 April 2014 and then bailed to appear in the Magistrates Court on 28 May 2014. He appeared in the Magistrates Court on 28 May 2014 to answer the charge of robbery and was also charged with common assault on the complainant. He was again granted bail. The matters were adjourned on a number of occasions and, on 3 July 2014, Mr Cockburn entered a plea of not guilty to the charges.

2 On 11 September 2014, he was committed to this Court for trial. An indictment was filed, but it contained two counts preferred ex officio, namely, an offence of making a demand on the complainant with a threat to endanger the health, safety or physical wellbeing of the complainant (making a demand with menaces) and of dishonestly taking someone else's motor vehicle without consent. The former offence was clearly intended to replace the offence of robbery on which he was committed to this Court.

3 The charge of common assault on the complainant was transferred to this Court under s 90B of the Magistrates Court Act 1930 (ACT). Subsequently, Mr Cockburn was charged with other offences set out below, alleged to have been committed on the following dates:

1 November 2014 dishonestly drive someone else's motor vehicle without consent;

27 November 2014 dishonestly ride in someone else's motor vehicle without consent;

1 January 2015 dishonestly drive someone else's motor vehicle without consent;

1 January 2015 intentionally cause damage to property;

1 January 2015 dishonestly appropriate property;

5 January 2015 dishonestly appropriate property;

6 January 2015 intentionally cause damage to property;

6 January 2015 dishonestly take someone else's motor vehicle without consent

4 Each of these offences and the offence of robbery and of making a demand with menaces are offences for which the legislature has provided a maximum penalty of at least five years imprisonment.

5 On 1 January 2015, Mr Cockburn was also charged with offences which carried lesser penalties. I do not need to detail them at this point in time. These offences are currently before the Magistrates Court and have not been committed to this Court.

6 Mr Cockburn has now pleaded guilty to all of the offences with which he has been charged. He is to be sentenced on 14 October 2014 for the offence for which he has been committed to this Court and for the offences transferred to this Court. I was informed that all of the offences to which he has pleaded guilty in the Magistrates Court and which are not presently before this Court will, however, be included in a list of additional offences to be filed in Court by the prosecution.

7 Such a list is to be dealt with under Pt 4.4 of the Crimes (Sentencing) Act 2005 (ACT) ( the Sentencing Act). The Court of Appeal has set out in R v Campbell [2010] ACTCA 20 at [50], the way in which such offences are to be taken into account:

When section 57(3) of the Sentencing Act speaks of taking the offences into account, it means taking them into account in the same way as other matters are taken into account for the purpose of sentence. No doubt it will generally have the result of increasing the sentence about to be imposed. It may, in some cases, have the result of altering the nature of that sentence. But apart from those considerations, the additional offences will no doubt be taken into account as part of the sentencing process in assessing the character of the offender and the prospects of rehabilitation. What is clear, of course, is that the offender is not to be sentenced for the additional offences. There may be occasions when it is appropriate for a judge to refer to the effect which he gives to additional offences taken into account in that way, but it is not obligatory for him to do so.

8 It is to be noted that s 57(3) of the Sentencing Act makes it clear that the court, even when taking the offences into account as set out, must not impose a penalty for the offences for which Mr Cockburn is actually being sentenced that exceeds the maximum penalty for those offences.

9 It appears that, when arrested for the further offences in January 2015, Mr Cockburn was remanded in custody. That is unsurprising because he would only have been granted bail if he had been able to show special or exceptional circumstances favouring the grant of bail. This is because s 9D of the Bail Act 1992 (ACT) applied to any bail decision made in the Magistrates Court. That section provides as follows:

9D Bail for serious offence committed while charge for another pending or outstanding

• (1) This section applies if—

  • (a) a person is accused of a serious offence; and

  • (b) the person is alleged to have committed the offence while a charge against the person for another serious offence is pending or outstanding.

    Example

    Claude is served with a summons to attend the Magistrates Court to answer a charge that he has committed the offence of taking a motor vehicle without consent (punishable by 5 years imprisonment under the Criminal Code, section 318 (1), and so a serious offence for this section). Before the court date, Claude is arrested and charged with having committed an aggravated robbery the day after being served with the summons (punishable by 25 years imprisonment under the Criminal Code, section 310, and so also a serious offence for this section). At the time of the alleged aggravated robbery, the charge of taking a motor vehicle without consent was still pending. This section will apply to any decision about the grant of bail to Claude in relation to the aggravated robbery charge.

    Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

• (2) A court or an authorised officer must not grant bail to the accused person unless satisfied that special or exceptional circumstances exist favouring the grant of bail.

• (3) However, even if special or exceptional circumstances are established, the court or officer must refuse bail if satisfied that refusal is justified after considering—

  • (a) for an adult-the matters mentioned in section 22 (Criteria for granting bail to adults); or

  • (b) for a child-the matters mentioned in section 23 (Criteria for granting bail to children).

• (4) Also, if the serious offence mentioned in subsection (1) (a) or (b) is a domestic violence offence, an authorised person must not grant bail to the accused person if satisfied that refusal of bail is required under section 9F (Domestic violence offence-bail by authorised officer).

• (5) This section does not affect the application of section 9F (4) and (5) to the accused person if—

  • (a) the serious offence mentioned in subsection (1) (a) or (b) is a domestic violence offence; and

  • (b) an authorised person grants bail to the accused person.

• (6) In this section:

  outstanding —a charge against a person for an offence is outstanding—

  • (a) until the charge is finally dealt with in any of the following ways:

    • (i) the charge is withdrawn;

    • (ii) the charge is dismissed by a court;

    • (iii) the person is discharged by the Magistrates Court following a committal hearing;

    • (iv) the person is acquitted or found guilty by a court of the offence; and

  • (b) if the person is acquitted or found guilty by a court of the offence charged, but a new trial on the charge (or a charge based on the same facts) is later ordered on appeal-from the date the new trial is ordered until the earliest of the following happens—

    • (i) the charge (or a charge based...