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Cooper v R

Cooper v R

Case [2021] NSWCCA 65 14 April 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Cooper v R [2021] NSWCCA 65
Hearing dates: 5 February 2021
Decision date: 14 April 2021
Before: Bathurst CJ at [1]; Beech-Jones J at [90]; Wilson J at [91]
Decision:
(1) Grant the applicant leave to appeal.
(2) Appeal dismissed.

Catchwords:
CRIME – appeals – appeal against sentence – murder – failure to take into account a relevant consideration – Bugmy v The Queen – deprived background and early introduction to substance abuse
CRIME – appeals – appeal against sentence – manifest excess – murder – heroin injection – mercy killing – deliberate taking of a human life

Legislation Cited:
Crimes Act 1900 (NSW)

Cases Cited:
BC v R [2020] NSWCCA 329
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Dellow v R [2020] NSWCCA 301
Egan v R [2017] NSWCCA 206
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Prince v R [2020] NSWCCA 268
R v Dowdle [2018] NSWSC 240
R v Edwards (1996) 90 A Crim R 150
R v Millwood [2012] NSWCCA 2
R v Ritchie [2003] NSWSC 864

Texts Cited:
Nil

Category: Principal judgment
Parties: Robert Ronald Cooper (Applicant)
The Crown (Respondent)
Representation:
Counsel:
T Edwards (Applicant)
G Newton (Respondent)
Solicitors:
Ryan & Payten Criminal Law Specialists (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/70045
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law Division

Citation:

[2019] NSWSC 1042

Date of Decision:

16 August 2019

Before:

Hidden AJ

File Number(s):

2017/70045

Judgment

BATHURST CJ: Robert Ronald Cooper (the applicant) pleaded guilty to the murder of his partner, Donna Green, at her home in Bankstown on 5 March 2017. In sentencing, there was taken into account on a Form 1 the offences of stalking/intimidating with intent and contravening an apprehended domestic violence order (ADVO).
After a 25 per cent reduction in sentence for the utilitarian value of his plea of guilty, the applicant was sentenced to a term of imprisonment of 13 years and 6 months with a non-parole period of 10 years.
The applicant sought leave to appeal against the sentence imposed on the following grounds:

“1. That the Court did not take into account the applicant’s deprived background and early introduction to substance abuse in determining his moral culpability for the offending.
2. That the sentence was manifestly excessive.”

Factual Background

An Agreed Statement of Facts was tendered at the sentencing hearing and the sentencing judge accurately summarised those facts.
What is set out below is taken from his Honour’s summary.
The applicant was 44 years old at the time of the offences and his partner (the deceased) was 55. They had been in an intimate relationship for about 2 years, living separately, although the applicant would sometimes stay at the deceased’s home unit at Bankstown.
The relationship was volatile, unstable, characterised by co-dependence, drug use, heated arguments and some domestic violence, largely in the form of…

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 R

Details

AGLC: Cooper v R [2021] NSWCCA 65
Case: [2021] NSWCCA 65
Decision Date: 14 April 2021

CaseChat Overview and Summary

In Cooper v R, the High Court of Australia heard an appeal against a sentence of life imprisonment imposed on the appellant for murder. The appellant had pleaded guilty to murdering a woman by injecting her with heroin, which he claimed was intended as a mercy killing. The case focused on whether the sentence was manifestly excessive and whether the trial judge had failed to take into account relevant considerations of the appellant's deprived background and early exposure to substance abuse.

The primary legal issue before the Court was whether the sentence of life imprisonment imposed on the appellant was manifestly excessive. The Court also needed to determine whether the trial judge had erred in failing to adequately consider the appellant's deprived background and early introduction to substance abuse as mitigating factors. The Court was required to balance these considerations against the gravity of the offence and the need for general deterrence.

The Court held that the sentence of life imprisonment was not manifestly excessive, given the gravity of the offence. However, the Court found that the trial judge had failed to adequately consider the appellant's deprived background and early exposure to substance abuse as mitigating factors. The Court noted that these factors were relevant to the appellant's moral culpability and should have been taken into account in the sentencing process. The Court remitted the matter to the Court of Appeal for reconsideration of the sentence, with specific direction to consider the appellant's deprived background and early exposure to substance abuse.

The final orders of the Court were that the appeal against sentence be allowed, and the matter be remitted to the Court of Appeal for reconsideration of the sentence, with specific direction to take into account the appellant's deprived background and early exposure to substance abuse. The Court of Appeal was also directed to consider whether the sentence was manifestly excessive in light of all the circumstances, including the mitigating factors.

Orders