Cooper v Goodwin

[2024] TASSC 78

[2024] TASSC 78

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Cooper v Goodwin [2024] TASSC 78
PARTIES:	COOPER, Ethan Scott
v
GOODWIN, Kellie (Senior Constable)
FILE NO:	462/2024
JUDGMENT
APPEALED FROM:	Hobart Magistrates Court
DELIVERED ON:	9 December 2024
DELIVERED AT:	Hobart
HEARING DATE:	9 December 2024
JUDGMENT OF:	Marshall AJ
CATCHWORDS:

Criminal law – Appeal and new trial – Appeal against sentence – Sentence manifestly excessive or inadequate – Applicant sentenced to actual term of imprisonment for family violence offences – Notice to review on grounds of manifest excess – Sentence imposed was appropriate and within sentencing discretion of Magistrate.

Aust Dig Criminal Law [3521]

Legislation:

Family Violence Act 2004

Cases:
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1
Director of Public Prosecutions v Foster [2019] TASCCA 15
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Sok v Minister for Immigration and Multicultural Affairs [2005] FCAFC 56, (2005) 144 FCR 170

Miller v McCullogh [2024] TASSC 61

REPRESENTATION:

Counsel:

Applicant:	J Crotty
Respondent:	W Wu

Solicitors:

Applicant:	Crotty Legal
Respondent:	Office Director of Public Prosecutions

Judgment Number:	[2024] TASSC 78
Number of paragraphs:	26

Serial No 78/2024 File No 462/2024

ETHAN SCOTT COOPER v SENIOR CONSTABLE KELLIE GOODWIN

REASONS FOR JUDGMENT MARSHALL AJ 9 December 2024

1             The matter before the Court is a notice to review a sentence imposed by a magistrate after the applicant's conviction on family violence offending. On the morning of the hearing, 9 December 2024, the Court announced the order it intended to make in the proceeding and pronounced that order after a short adjournment, following the conclusion of oral submissions. What follows are the Court's reasons for making that order.

2             The applicant was charged with two counts of emotional abuse or intimidation, one count of common assault, seven counts of breaching an interim family violence order, and one count of breaching bail conditions, on complaints 9613/2023, 1/2024 and 1899/2024.

3             On 19 February 2024, Magistrate Hartnett sentenced the applicant on those complaints to six months' imprisonment, backdated to 26 December 2023, with two months suspended. The suspension was on the condition that the applicant be of good behaviour for a period of two years after his release, not commit any offence punishable by imprisonment and comply with a Community Corrections order. Her Honour also made a family violence order protecting the complainant for a period of three years. There was also one count of driving whilst suspended on complaint 1/2024. That is not the subject of this appeal. The applicant was separately sentenced on that matter. The six month imprisonment sentence, with two months' suspended, was a global sentence taking into account all the other matters which may be described as family violence matters.

4             The background to the matter includes the fact that in 2023, the applicant and the complainant were in a significant relationship within the meaning of the Family Violence Act 2004. The pair lived together and were in business together.

5             On 9 September 2023, a full, no contact, interim family violence order was made with respect to the applicant. On 16 October 2023, the applicant pleaded not guilty to complaint 9613/2023. He also sought to vary the terms of the interim family violence order. Her Honour adjourned the matter to 25 October 2023. The applicant was bailed to appear on 25 October 2023 with conditions, including a condition as to where he must live, and to comply with orders made against him under the Family Violence Act.

6             On 8 December 2023, complaint 9613/2023 was set down for hearing on 21 and 22 March 2024. The applicant was bailed to appear for mention on 19 February 2024. The bail conditions included a condition that the applicant must comply with the requirements of any orders made against him under the Family Violence Act. The interim family violence order was further varied to allow the applicant and the complainant to communicate with each other by way of text messages, SMS or phone calls, only for the purpose of discussing the businesses operated by them.

7            On 31 December 2023, the applicant invited the complainant to come to his address. In so doing, he breached the interim family violence order and his bail conditions. He was arrested on 31 December 2023 and charged on complaint 1/2024. He applied for bail on 2 January 2024 and that application was adjourned to 15 January 2024. On 15 January 2024, pleas of not guilty were entered by the complainant on complaint 1/2024 and the applicant's bail application was refused by the magistrate. Her Honour adjourned both complaints 9613/2023 and 1/2024 to 19 February 2024 for

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mention. When in custody, the applicant breached the interim family violence order by sending three letters to the complainant. He was then charged on complaint 1899/2024, which was then listed for first appearance on 19 February 2024.

8            On 15 February 2024, the applicant changed his pleas of not guilty to guilty on complaints 9613/2023 and 1/2024. On 19 February 2024, pleas of guilty were entered to complaint 1899/2024. Her Honour then sentenced the applicant on that day. The applicant has been on bail since 4 March 2024 pending the outcome of this order to review.

9             By his order to review, the applicant seeks to vary the sentencing order made by her Honour. A finding of specific error is not relied upon. The applicant rather submits that when the circumstances of the offending are assessed, the gravity of the offending is not such as to warrant a length of actual imprisonment of four months.

10           The actual period of imprisonment of four months was backdated with effect to 26 December 2023, taking into account time that the applicant had spent in custody. Should the application to review be dismissed, the applicant would be required to serve approximately an additional 53 days before being released and being subject to a suspended sentence of two months, and also subject to a Community Corrections order on release.

11          The applicant's counsel also raised the matter of her Honour's "apparent failure to address the benefit of a guilty plea". In written submissions, the applicant's counsel said:

"Complaint is not made that her Honour failed to specify what, if any, discount should have been given for the early guilty plea on 1899/24. Similarly for the change of plea. But some discount should have been given."

12           To successfully review the sentence of the magistrate, the applicant must show that the sentence imposed was unreasonable or unjust and so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial sentencing discretion; see Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 58, per Kirby J (with whom Gummow and Gaudron JJ agreed); and Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1; at [8] per Pearce J (with whom Blow CJ and Porter J agreed).

13           It is insufficient to show that a lighter sentence may have been imposed by another judicial officer. It must be shown the sentence was outside the permissible range of options available for the exercise of the sentencing discretion in all circumstances; see Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [54]-[55]. In considering sentencing for family violence offences, it is important to take into account that general deterrence is a significant sentencing consideration. There is a long line of authority which establishes that family violence offences ought to be treated very seriously by courts; see, for example, Director of Public Prosecutions v Foster [2019] TASCCA 15. Those principles apply to all family violence offending, including breach offences and carriage service charges.

14           In seeking to submit that a sentence which involved four months' actual imprisonment was unreasonable, counsel for the applicant emphasised the lack of physical violence in this case. That submission was founded, in part, on the throwing of a mobile phone by the applicant at the complainant, only causing mere bruising. Such a submission overlooks the psychological damage which would be caused by that sort of behaviour. In any event, the complainant's victim impact statement referred to the bruises incurred as a result of the throwing of the mobile phone at her, as extremely painful and that she was sore for several days, but moreover, was shocked by what happened.

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15           As counsel for the respondent submits, there are various forms of family violence and they can be just as hurtful and harmful in the long term, and in many cases, more so than physical acts. See for example the comments of Porter AJ in Miller v McCullogh [2024] TASSC 61 at [27]. The family violence actions taken in this matter by the applicant include placing a petrol can on the bonnet of the complainant's vehicle as she attempted to leave the property she was then at, in circumstances where the applicant has a prior conviction for arson. The complainant reasonably believed that the applicant had the capability to carry out threats he was making. Those threats included one to place his child in a vehicle with him and drive both in to a tree. That threat caused the complainant to take the applicant's seven year old daughter out of her bed and place the child in her car, lock herself in and wait for the police to arrive. This event was terrifying for the child concerned and would have been psychologically damaging for the complainant. The applicant also threatened to commit suicide, got into a car and drove down the road, fishtailing down the street before crashing. The complainant was very frightened and scared by the applicant's conduct, given that her previous partner had committed suicide after she ended their relationship.

16           The psychological and, to a lesser extent, the physical harm caused to the complainant by the applicant was referred to in the complainant's victim impact statement. Her Honour correctly observed that the conduct of the applicant and his offending towards the complainant was appalling. Her Honour was entitled to take into account the psychological harm suffered by the complainant, as well as the physical harm caused by the throwing of the mobile phone.

17           The submission that the throwing of the telephone was reckless and did not cause long term harm focuses entirely on physical and not long term psychological harm. As is clear from cases like Miller v McCullogh, domestic violence is not confined to physical harm. See also Sok v Minister for Immigration and Multicultural Affairs [2005] FCAFC 56, (2005) 144 FCR 170 at [16] per Branson J and at [37] per Marshall J.

18           Counsel for the applicant next referred to the issue of the applicant's coercion of the complainant. He contended that the issue of coercive control is complicated because the applicant and the complainant were in business together and faced financial pressures which affected their behaviour. The fact that life partners are also business partners does not give a life partner greater freedom, or a licence, to exercise coercive control over another partner simply because of difficulties in the business conducted by both of them. Nothing in this submission reveals any error in the sentencing discretion of her Honour. In support of his submission on coercive control, counsel for the applicant relied on a request by the complainant to relax the family violence order to allow the complainant and the applicant to run their business together. Nothing turns on this request. It is not uncommon for some victims of domestic violence to fail to protect themselves from violent persons after being subjected to domestic violence.

19           Counsel for the applicant referred to the fact that the applicant attended Relationships Australia voluntarily in December 2023 and had another appointment booked, which he could not attend because he was in custody. In her sentencing remarks, her Honour recognised that that was a matter relevant to the applicant's prospects of rehabilitation. Her Honour's suspension of part of the custodial sentence was designed to encourage the rehabilitation of the applicant. In any event, any weight that can be attributed to rehabilitation as an ameliorating factor, is far outweighed by the need for general deterrence and denunciation of the conduct of the applicant in this matter. So much is especially so, given that the applicant breached an interim family violence order while he was on bail, subject to a condition that he must comply with an existing interim family violence order made against him. Additionally, the applicant breached the interim family violence order within a month of it being varied to allow him to communicate with the complainant for business purposes. The breaches of that order were the subject of charges on complaint 1899/2024 and they were committed when the applicant was in custody for other family violence matters. Counsel for the respondent submits, and the Court agrees, that this shows repeated disregard for the interim family violence order.

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20           There is no merit in the submission of the applicant that the sentencing discretion miscarried because greater regard should have been had to the lack of physical violence and the nature of the coercive control exercised for the reasons expressed above.

21           Counsel for the applicant also noted that her Honour referred to the guilty pleas, but that she noted that the pleas were not early ones. Counsel submitted that there was a reason for the guilty pleas not being early on matters 9613/2023 and 1/2024 given issues relating to disclosure. Counsel contends that such a matter should have been given greater weight by her Honour. Whether a matter relevant to sentencing should have been given greater weight is not an issue going to whether the sentence was unreasonable or unjust. Counsel for the applicant also referred to the fact that her Honour did not refer to the early guilty plea in matter 1899/2024. It would have been obvious to anyone listening to the sentencing remarks of her Honour, and the timing of 1899/2024 and its relationship to the other charges contained in 9613/2023 and 1/2024, that her Honour was aware that an early guilty plea was entered in that matter. The fact that her Honour did not make specific reference to an early guilty plea on complaint 1899/2024 is not to be interpreted as a failure to appropriately take the early plea into account. Indeed, her Honour accepted that the contents of the letters sent from prison to the complainant were not threatening in nature, but were emotionally manipulative. Having read them, I agree.

22           Moreover, her Honour said that she took into account the pleas of guilty as a mitigating factor. Then she said that the pleas were not early. In saying so, her Honour was obviously referring to 9613/2023 and 1/2024. In relation to those guilty pleas, her Honour did note that they had "saved the victim from having to come to court to give evidence of distressing events". In making those comments, her Honour was effectively saying that she did take the guilty pleas into account. She is not required to state what specific discount she applied. Nonetheless, but for the guilty pleas, it can reasonably be considered that the sentence imposed would have been higher. The failure to go into the reasons as to why the pleas were not early in 9613/2023 and 1/2024 was not a significant matter in the context of the overall considerations relevant to the exercise of her Honour's sentencing discretion, and did not show that thereby the global sentencing imposed was unreasonable or unjust, or the subject of some undefinable error.

23           Counsel for the applicant referred to the course of conduct involved in the offending that constituted the charge of emotional abuse as having occurred over a relatively short period. That does not cease to cause it to constitute a course of conduct. The elements of the charge, such as threats to commit suicide, kill the complainant's children and destroy her possessions, were far more significant factors in the context of that charge when it came to sentencing, rather than the time during which those events occurred.

24           The Court agrees with the submission of counsel for the respondent that the sentence imposed was a significant one, but one that was appropriate and within the sentencing discretion available to her Honour in the circumstances of the applicant's offending. The submission that the individual components of her Honour's sentence were not in tune with the whole, is one that is rejected. It fails to have regard to the gravity of the offending, particularly in the context of the victim impact statement where the complainant refers to the fact that she has trouble now trusting her own judgment and her own instincts, and that the psychological harm is such that she commenced to see a psychologist in February 2024 in order to help her come to terms with what happened to her and build her confidence back up. She noted that the costs of such visits are not inexpensive. It is important to note also the complainant's comment that, "these visits have helped to reassure me that I am not alone in the world and reinforcing that this sort of behaviour is unacceptable and not something that I deserve."

25           Having regard to the foregoing, it can be seen that the applicant has not demonstrated error in the sentencing discretion of her Honour. The learned magistrate's sentence was not unreasonable or

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unjust. It was not affected by some unidentified error in the exercise of her sentencing discretion.
Indeed, the applicant might consider himself fortunate that the sentence was not more severe.

26           The applicant was bailed on 4 March 2024, pending the hearing of this application. He must now return to prison to serve the remainder of his unserved sentence. The order of the Court is that the application to review is dismissed.