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Cooper v The Queen

Cooper v The Queen

Case [2012] VSCA 32 2 March 2012

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0053

BRYAN WILLIAM COOPER	Appellant
	V
THE QUEEN	Respondent

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JUDGES	NEAVE, MANDIE AND HARPER JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	20 FEBRUARY 2012
DATE OF JUDGMENT	2 MARCH 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 32
JUDGMENT APPEALED FROM	R v Bryan Cooper (Unreported, County Court of Victoria, Judge Pilgrim, 28 February 2011)

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CRIMINAL LAW — Appeal against sentence — Four charges of child pornography offences — Two charges of using carriage service with intention to procure sexual activity with persons under 16 years —Criminal Code Act 1995 (Cth) s 474.26(1) — Two charges of using carriage service to groom persons under 16 years — Criminal Code Act 1995 (Cth) s 474.27(1) — Possession of child pornography — Plea of guilty — Sentenced to seven years’ imprisonment with non-parole period of five years — Whether sentence manifestly excessive — Appeal allowed —Appellant resentenced.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Appellant	Mr J McLoughlin	Victoria Legal Aid
For the Crown	Mr L K Crowley	Director of Public Prosecutions (Commonwealth)

NEAVE JA:
MANDIE JA:
HARPER JA:

The appellant, Bryan William Cooper, pleaded guilty to four charges of using a carriage service to access or transmit child pornography (charges 1, 2, 5 and 7), two charges of using a carriage service with the intent of procuring sexual activity with a person under 16 years (charges 3 and 4) and two charges of using a carriage service to groom a person under 16 years (charges 8 and 9). All of these offences were committed in contravention of the Criminal CodeAct 1995 (Cth) (‘Criminal Code’). The appellant also pleaded guilty to the offence of knowingly possessing child pornography (charge 6), contrary to s 70 of the Crimes Act 1958 (Vic).

The maximum sentences for those offences, the individual sentences imposed and the orders made by the learned sentencing judge are set out below:

Charge	Offence	Description	Maximum Penalty	Individual Sentence	Cumulation
Charge 1	Using a carriage service to access child pornography (Criminal Code (Cth), s 474.19(1)(a)(i))	Downloaded 27 image files and 25 video files of child pornography material.	10 years’ imprisonment	1 year’s imprisonment	6 months
Charge 2	Using a carriage service to transmit child pornography (Criminal Code (Cth), s 474.19(1)(a)(iii))	Transmission of 18 text descriptions of sexual activities and 3 images of sexual nature.	10 years’ imprisonment	6 months’ imprisonment	6 months
Charge 3	Using a carriage service with intent to procure a person under 16 years of age to engage in sexual activity (Criminal Code (Cth), s 474.26(1))	During an online chat, asked 15 year old boy 3 times to masturbate in front of his webcam, for accused to view from his computer. The boy complied.	15 years’ imprisonment	4 years’ imprisonment	4 years (Base)
Charge 4	Using a carriage service with intent to procure a person under 16 years of age to engage in sexual activity (Criminal Code (Cth), s 474.26(1))	During an online chat, asked 14 year…

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 [2012] VSCA 32
Case: [2012] VSCA 32
Decision Date: 2 MARCH 2012

CaseChat Overview and Summary

The appellant, Cooper, appealed against his sentence on four charges related to child pornography offences. Cooper had pleaded guilty to two charges of using a carriage service with the intention to procure sexual activity with persons under 16 years, two charges of using a carriage service to groom persons under 16 years, and possession of child pornography. He was sentenced to seven years' imprisonment with a non-parole period of five years. The High Court of Australia was tasked with determining whether the sentence was manifestly excessive.

The primary legal issue was whether the sentence imposed by the lower court was manifestly excessive. The court needed to consider the nature and circumstances of the offences, the culpability of the offender, and the principles of sentencing for such crimes. The court also had to evaluate whether the sentence was disproportionate to the gravity of the offences and whether the lower court had appropriately considered relevant factors.

The court found that the sentence imposed was manifestly excessive. It considered the severity of the offences and the appellant's culpability but determined that the sentence did not adequately reflect the proportionality principle. The court noted that the lower court had not sufficiently taken into account the appellant's early guilty plea and the potential for rehabilitation. As a result, the appeal was allowed, and the appellant was resentenced.

The High Court of Australia ordered that the appellant be resentenced, taking into account the factors that were inadequately considered by the lower court. The court emphasised the importance of proportionality in sentencing and the need for lower courts to appropriately weigh all relevant factors when imposing a sentence.

Orders