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 to a sentence of four months’ imprisonment imposed on Mr Cooper on 17 July 2012 as an immediate custodial sentence. In fact, that sentence was suspended. In light of this error, the respondent conceded the appeal should be allowed and Mr Cooper resentenced.
Accordingly, I allowed the appeal, set aside the sentence imposed by the Magistrate and heard sentencing submissions on 5 February 2016.
Circumstances of offending
On 11 December 2014, Mr Cooper and the victim were drinking beer together in a converted shed Mr Cooper rented at the rear of the property at Daw Park.
They started drinking at around 5.00pm. At around 7.00pm, the victim received a call from his partner on his mobile phone and went outside to get better reception. While he was outside, Mr Cooper discovered that $130 was missing from his rent book and he believed that the victim had stolen it. Mr Cooper left the shed and confronted the victim accusing him of theft. The victim’s partner heard Mr Cooper say “you’ve got my fucking money cunt”.
Mr Cooper admits he punched the victim once in the face with a clenched fist. He then picked up a hammer and swung it towards him, on the victim’s estimate around 20 times. The victim said he stopped many of the blows by blocking Mr Cooper with his forearm but some of the blows connected. One glancing blow connected with the victim’s head and caused a small cut which bled. At least two blows connected with his chest causing bruising.
Mr Cooper made no attempt to deny the assault when spoken to by police.
Victim impact statement
In his victim impact statement, the victim describes that he suffered fear, distress, and shock for a couple of weeks after the attack. He was distressed at the thought of how someone could turn on him in an instant with unexpected volatile rage. He described that as a result of the assault he sustained a one inch split on the top of his head together with an egg size lump. The morning after the assault he awoke with a tight chest, restrictive breathing, and found two bruises on his chest.
Respondent’s submissions
The respondent relies on the matters that were submitted by the police prosecutor to the Magistrate as deposed to in the police prosecutor’s affidavit.
Assistant police prosecutor Katrina Jean Beck deposes in her affidavit, sworn 7 January 2016, that she appeared before the Magistrate on the hearing of sentencing submissions on 9 November 2015. The prosecutor says she drew the Magistrate’s attention to Mr Cooper’s previous convictions and the penalties that had been imposed. In particular she recalls specifically mentioning the following antecedents:
·4 January 1983 at Elizabeth Magistrates Court: assault police – fined $200;
·28 March 1985 at Tanunda Magistrates Court: common assault – two months imprisonment to be served;
·7 October 1986 at Adelaide Magistrates Court: assault occasioning actual bodily harm – fined $200;
·16 March 1989 at Holden Hill Magistrates Court: common assault – 10 months imprisonment suspended on a three year bond and 70 hours of community service;
·2 July 2003 at Holden Hill Magistrates Court: common assault, resist police refuse name and address – six weeks imprisonment suspended on a 12 month bond;
·11 September 2006 at Adelaide Magistrates Court: offensive language 12 month good behaviour bond;
·27 May 2009 at Holden Hill Magistrates Court: carry offensive weapon, disorderly behaviour and resist police – two months imprisonment suspended on a two-year good behaviour bond; and
·17 July 2012 at Holden Hill Magistrates Court: aggravated assault by use of offensive weapon and property damage – four months imprisonment suspended on a two year bond.
The prosecutor deposes that the thrust of her submissions were that due to the nature of the offending, Mr Cooper’s significant history of similar offending, and the impact of the offending on the victim an immediate custodial penalty was warranted and suspension was inappropriate.
The prosecutor says she was asked by the Magistrate whether it would be appropriate for a portion of the proposed sentence of imprisonment to be suspended. The prosecutor deposes that she submitted it may be appropriate to suspend a portion of the sentence if Mr Cooper entered into a good behaviour bond as it might provide some deterrent to him and also allow the Court to impose conditions that might assist him with his anger and substance abuse issues.
The respondent’s counsel also submitted that given the Magistrate was under the impression that Mr Cooper had served the four month sentence of imprisonment imposed on 17 July 2012, the Magistrate may have imposed a longer sentence than would otherwise have been the case.
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.
I am satisfied it is in Mr Cooper’s interests and that of the community to partially suspend his sentence so that he can access programs in the community to assist in his rehabilitation whilst on a good behaviour bond.
My orders are:
1I allow the appeal.
2The sentence imposed by the Magistrate is set aside.
3I impose a sentence of seven months’ imprisonment, backdated to the date Mr Cooper was taken into custody on 19 November 2015.
4Pursuant to s 38(2a) of the Criminal Law (Sentencing) Act 1988 (SA), I order that upon entering into a supervised bond to be of good behaviour for two years, the balance of Mr Cooper’s sentence will be suspended. Upon entering into that bond Mr Cooper will have spent 13 weeks in custody.