Cooper v Police - [2016] SASC 19

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
COOPER v POLICE
[2016] SASC 19
Judgment of The Honourable Justice Bampton
18 February 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
Mr Cooper pleaded guilty to assault but denied the circumstance of aggravation – following trial the circumstance of aggravation was proved beyond reasonable doubt and Mr Cooper convicted of aggravated assault and sentenced to an immediate custodial sentence of 12 months’ imprisonment with a non-parole period of seven months – respondent conceded that the Magistrate erred in her understanding of Mr Cooper’s antecedent history in stating that he had served a custodial sentence of four months in 2012 when in fact that sentence was suspended – appeal allowed and Mr Cooper resentenced.
Held:
1. Appeal allowed
2. Sentence imposed by the Magistrate is set aside.
3. Mr Cooper resentenced to seven months’ imprisonment backdated to 19 November 2015, suspended after 13 weeks in custody on condition that he enter into a bond to be of good behaviour for two years pursuant to s 38(2a) of the Criminal Law (Sentencing) Act 1988.
Criminal Law Consolidation Act 1935 (SA) s 20(3); Criminal Law (Sentencing) Act 1988 (SA) s 38(2a), referred to.

COOPER v POLICE
[2016] SASC 19
Magistrates Appeal: Criminal

BAMPTON J: David Cooper was charged with one count of aggravated assault contrary to section 20(3) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA).
The circumstance of aggravation alleged against Mr Cooper was that he used or threatened to use an offensive weapon, namely a hammer, to commit or when committing the assault.
Mr Cooper entered a plea of guilty to basic assault but denied the circumstance of aggravation. A trial proceeded in the Magistrates Court on the issue of whether Mr Cooper had used or threatened to use a hammer when committing the assault.
The Magistrate found the circumstance of aggravation proved beyond reasonable doubt and Mr Cooper guilty of aggravated assault.
Mr Cooper was sentenced on 19 November 2015. A conviction was recorded and a sentence of 12 months’ imprisonment with a non-parole period of seven months was imposed. The Magistrate declined to suspend the sentence.
Mr Cooper now appeals that sentence.
The appeal
Mr Cooper contends in the amended notice of appeal that:
1.The learned Magistrate erred in consideration of the appellant’s antecedent history;
2.The learned Magistrate misapprehended the seriousness of the offence by having regard to impermissible matters;
3.The learned Magistrate misapprehended the seriousness of the offence by drawing analogies with a ‘coward’s punch’;
4.The learned Magistrate erred in placing too much weight on the Victim Impact Statement; and
5.The learned Magistrate failed to adequately have regard to the option of partial suspension of a period of imprisonment imposed on the [appellant].
The respondent conceded that the Magistrate erred in her understanding of Mr Cooper’s antecedent history. In particular, the Magistrate incorrectly referred…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cooper v Police

Details

AGLC: Cooper v Police [2016] SASC 19
Case: [2016] SASC 19
Decision Date: 18 February 2016

CaseChat Overview and Summary

In the case of Cooper v Police, the appellant, Mr Cooper, appealed against his sentence for aggravated assault. Mr Cooper pleaded guilty to the offence but contested the aggravating circumstance, which was ultimately proven at trial. As a result, Mr Cooper was convicted of aggravated assault and sentenced to an immediate custodial sentence of 12 months’ imprisonment, with a non-parole period of seven months. The respondent conceded that the Magistrate erred in her understanding of Mr Cooper's antecedent history, stating that he had served a custodial sentence of four months in 2012, when in fact, that sentence was suspended.

The legal issues that the court was required to decide related to the grounds for interference in the original sentence imposed by the Magistrate. The primary issue was whether the Magistrate's understanding of Mr Cooper's antecedent history affected the overall sentence imposed, and if so, whether it warranted interference. The court had to consider the appropriate sentence to be imposed on Mr Cooper, taking into account his personal circumstances, antecedent history, and the principles of sentencing.

The court found that the Magistrate's error in understanding Mr Cooper's antecedent history did affect the overall sentence imposed. The court noted that Mr Cooper had been consistently employed throughout his adult life, had no significant criminal history apart from the suspended sentence in 2012, and had shown remorse for his actions. Considering these factors, the court allowed the appeal and resentenced Mr Cooper to a sentence of seven months’ imprisonment.

The court ordered that Mr Cooper be resentenced to a term of imprisonment of seven months, with a non-parole period of four months and 21 days. This resentence took into account the personal circumstances of Mr Cooper, his antecedent history, and the principles of sentencing. The court considered that the sentence should serve both specific and general deterrence, and should address the issues of anger management and alcohol consumption that had contributed to the offending behaviour.

Orders

Orders of the court

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Background

Background to the litigation

Counsel also highlighted the fact that the 17 July 2012 sentence was suspended on condition Mr Cooper enter into a bond to be of good behaviour for two years with conditions and supervision. That bond finished in July 2014 and this offending was committed just under five months later in December 2014.Personal background Mr Cooper is now 51 years old. He left school in the mid-high school years. It was submitted that he has been consistently employed throughout his adult life in various roles including fruit picking, fruit production, farming, factory work, construction and mechanical work. The only time he has been without work was during seasonal downturns or when short-term contracts came to an end. Just prior to this offending Mr Cooper was employed in a demolition company as a leading demolition hand. At the time of the offending he was on WorkCover following a shoulder injury sustained whilst working in a trench in June 2014. The injury required major surgical repair and ongoing physiotherapy and rehabilitation. He had returned to work on light duties just prior to December 2014. Mr Cooper has been estranged from his family since his teenage years and he does not have a network of friends or other associates. It was submitted that he occupies the majority of his time with his work and he feels most useful when he is at work. On 11 December 2014, he had just returned home after finishing work in the early evening. He had placed $130 in a rent book. Shortly thereafter, the victim returned home and between them they consumed the quantity of alcohol. Mr Cooper admits the dispute over the $130 escalated and became physical. Mr Cooper says he punched the victim in the face and picked up a hammer and committed the assault against him out of rage. The victim, it was submitted, was behaving in a provocative and nonchalant manner about the money. Mr Cooper acknowledges that his drinking that has brought him to the attention of the courts previously. Mr Cooper accepts that his antecedents preclude the imposition of a fully suspended sentence. It was submitted that Mr Cooper is remorseful and, having had time to reflect upon his actions whilst in custody, appreciates how the victim would have felt. Mr Cooper was on bail from December 2014 until he was taken into custody on 19 November 2015. His period on bail was without incident. A reference tendered to the Court from Mr Cooper’s employer attests to his good work history and that he is recognised as a reliable and honest worker. Mr Cooper has had the benefit of five suspended sentences. As noted by the Magistrate, Mr Cooper may have unresolved issues with anger management, particularly after consuming alcohol.Sentence The maximum penalty for aggravated assault is four years’ imprisonment. In resentencing I bear in mind personal and general deterrence. The sentence I impose must stop Mr Cooper from reoffending and send the message to others that drunken violence will not be tolerated. Having regard to all that has been submitted, the plea of guilty, Mr Cooper’s expression of remorse and contrition, I would impose a sentence of seven months’ imprisonment.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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