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Cooper v The Queen

Cooper v The Queen

Case [2020] VSCA 288 19 November 2020

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2020 0014

BRODIE COOPER	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KYROU and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 November 2020
DATE OF JUDGMENT:	19 November 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 288
JUDGMENT APPEALED FROM:	[2019] VCC 2187 (Judge Dean)

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ELECTION TO RENEW APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY THE COURT OF APPEAL PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Appeal – Sentence – One charge of reckless conduct endangering persons, one charge of prohibited person possessing firearm – Applicant fired shot at ground near victim after altercation with victim – Total effective sentence of 4 years’ imprisonment with non-parole period of 2 years and 9 months – Applicant had disadvantaged background and serious criminal history – Whether sentence on charge of reckless conduct endangering persons and total effective sentence manifestly excessive – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R O’Neill	Victorian Bar Duty Barristers’ Scheme
For the Respondent	Mr P Bourke SC	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA
OSBORN JA:

Introduction and summary

The applicant pleaded guilty to the charges set out in the table below and, on 18 December 2019, he was sentenced by a County Court judge as set out in that table:[1]
[1]DPP v Cooper [2019] VCC 2187 (‘Sentencing remarks’).

Charge Offence Maximum Sentence Cumulation

1 Reckless conduct endangering persons [s 23 Crimes Act 1958] 5 years 3 years Base

2 Prohibited person possess firearm [s 5(1) Firearms Act 1996] 10 years 2 years 1 year

Total effective sentence: 4 years’ imprisonment

Non parole period: 2 years and 9 months

Pre-sentence detention declaration: 546 days

Section 6AAA statement: 5 years and 6 months’ imprisonment with a non-parole period of 4 years

Charge	Offence	Maximum	Sentence	Cumulation
1	Reckless conduct endangering persons [s 23 Crimes Act 1958]	5 years	3 years	Base
2	Prohibited person possess firearm [s 5(1) Firearms Act 1996]	10 years	2 years	1 year
Total effective sentence: 4 years’ imprisonment
Non parole period: 2 years and 9 months
Pre-sentence detention declaration: 546 days
Section 6AAA statement: 5 years and 6 months’ imprisonment with a non-parole period of 4 years

Initially, the applicant sought leave to appeal against his sentence on the sole ground that the judge erred in giving ‘insufficient weight to the Applicant’s rehabilitation achieved at the time of sentencing and prospects of rehabilitation’. On 27 April 2020, a judge of this Court refused leave.[2]
[2]Cooper v The Queen (Supreme Court of Victoria, Priest JA, 27 April 2020).

The applicant has elected to renew his application for leave to appeal pursuant to s 315(2) of the Criminal Procedure Act 2009. At the hearing before us, the applicant applied for leave to add a second ground of appeal, namely, that the sentence on charge 1 and the total effective sentence are manifestly excessive. As the Crown did not oppose this application, we granted the applicant leave to add the second ground. The applicant then informed us that he abandoned ground 1 in its present form and would treat the issue of rehabilitation as a sentencing consideration that supported the manifest excess ground.

For the reasons that follow, the application for leave to appeal will be refused.

Circumstances of the offending

In May 2018, the applicant was…

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 The Queen

Details

AGLC: Cooper v The Queen [2020] VSCA 288
Case: [2020] VSCA 288
Decision Date: 19 November 2020

CaseChat Overview and Summary

In the matter of Cooper v The Queen, the applicant sought leave to appeal against the sentence imposed upon him by the Supreme Court of Victoria. The applicant was found guilty of one count of reckless conduct endangering persons and one count of being a prohibited person in possession of a firearm. The dispute centred on the severity of the applicant's sentence, which consisted of a total effective sentence of four years' imprisonment with a non-parole period of two years and nine months. The applicant argued that the sentence on the charge of reckless conduct endangering persons, as well as the total effective sentence, was manifestly excessive. The applicant's background, including his disadvantaged upbringing and extensive criminal history, were cited as mitigating factors in the sentencing.

The primary legal issue before the court was whether the sentence imposed on the applicant was manifestly excessive in light of the circumstances and relevant mitigating factors. The court had to consider the principles of sentencing and proportionality, taking into account the nature of the offence and the personal circumstances of the offender. The court was also required to assess whether the total effective sentence and the sentence for the charge of reckless conduct endangering persons were disproportionate when compared to similar cases.

The court found that while the applicant had a disadvantaged background and a serious criminal history, these factors alone were insufficient to render the sentence manifestly excessive. The court held that the sentence reflected the seriousness of the offences committed, and the need to protect the community from further criminal activity by the applicant. The court further found that the total effective sentence was proportionate to the offending and took into account the applicant's criminal history and personal circumstances. As a result, the court refused the applicant's application for leave to appeal against his sentence.

The court did not make any further orders in relation to the applicant's appeal. The applicant's conviction and sentence remain in place, with the Supreme Court of Victoria's decision upholding the original sentencing determination.

Orders