Cooper v The Queen
[2011] VSCA 319
•20 October 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2010 0369 | |
| IAN GEORGE COOPER | Appellant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | ASHLEY and WEINBERG JJA |
WHERE HELD: | MELBOURNE |
DATES OF HEARING: | 20 October 2011 |
DATE OF JUDGMENT: | 20 October 2011 |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 319 |
JUDGMENT APPEALED FROM: | DPP v Cooper (Unreported, County Court of Victoria, Judge Parsons, 13 September 2010) |
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CRIMINAL LAW – Sentence – armed robbery (one count) – Low IQ, brain injury, chronic schizophrenia and personality disorder – Whether judge erred in not finding that appellant’s mental impairment had a connection with his offending – Whether judge erred in failing to conclude that appellant’s mental impairment would make imprisonment more onerous – Totality – Whether judge erred in dealing with consequences of appellant’s breached parole – Appeal allowed – Appellant re-sentenced – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C B Boyce | Tait Lawyers |
| For the Crown | Mr J D McArdle QC with Mr C Carr | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
The appellant, Ian George Cooper, pleaded guilty in the County Court at Melbourne to one count of armed robbery. On 13 September 2010 he was sentenced to a term of four years and six months’ imprisonment with a non-parole period of fifteen months.
Leave to appeal
On 6 May 2011, Weinberg JA granted the appellant leave to appeal on the following grounds:
Ground 2The sentencing judge erred in finding that the applicant’s mental impairment had no connection to the commission of the offence.
Ground 3The sentencing judge erred in dealing with the issues of the applicant’s breached parole.
Ground 4The sentencing judge erred in failing to take into account that service of a sentence of imprisonment would be more burdensome for the applicant because of his mental impairment and in failing to moderate specific deterrence because of that impairment.
Circumstances of offending
On 21 November 2009, at about 1.00pm, the appellant and a co-offender approached the victim, who was walking along a street in Fitzroy. The appellant blocked the victim’s path. The co-offender stood behind him. The appellant then grabbed the victim by the right wrist and threatened him with an almost full bottle of McWilliams Port. He then demanded all of the victim’s money.
Before the victim could react, the appellant smashed the bottle against the left side of the man’s head, just above his ear. The victim fell to the ground unconscious. He regained consciousness seconds later, to find the appellant and the co-offender rummaging through his pockets. The incident was captured by CCTV footage and the appellant was arrested shortly thereafter. The amount taken from the victim was in the order of $50. Fortunately, the victim did not sustain any significant injuries.
The appellant was intoxicated at the time of the commission of the crime. When first questioned by the police he blamed his co-offender for the robbery, and said that his only involvement in the offence consisted of him having assisted to steal the wallet. When subsequently questioned, he denied any involvement whatsoever in the offence. But he pleaded guilty at the committal mention, and the prosecutor conceded that the plea was made at the earliest opportunity.
Personal circumstances
The appellant was, at the time of sentencing, a 24 year old man of aboriginal descent. His history was one of homelessness, violence, and substance abuse. He suffered from a debilitating range of on-going emotional, physical and psychiatric problems. He had a number of prior convictions, most notably having been dealt with in the County Court in February 2007 for offences of armed robbery, kidnapping, and intentionally causing injury. He was sentenced on that occasion to a term of three years and nine months’ imprisonment with a non-parole period of two years. Prior to that, in November 2005, he had been sentenced to a term of one year and six months’ imprisonment for robbery and recklessly causing injury.
The appellant’s mental illness
A large number of medical and like reports were tendered for the appellant on the plea.[1] They spoke as to the appellant’s physical and psychiatric ill health, and its social consequences. In addition, the judge heard viva voce evidence from Mr Bernard Healey that the appellant was, in his opinion, a psychotic with a very low level of intellectual functioning, who had sustained head injuries in the past and who suffered from Hepatitis C. The witness opined that at time of offending the appellant was in a psychotic state.
[1]Dr F Imeneo, general practitioner, 19 May 2010; Mr B Healey, psychologist, 13 May 2010; Jesuit Social Services, 1 September 2009; Royal Melbourne Hospital, 8 August 2009; Dr D Sullivan, psychiatrist, 26 January 2007; Ms E Warren, psychologist, 6 September 2006; St Vincent’s Correctional Health, 27 October 2005; Mr C Bernard, registered psychiatric nurse, Forensicare, 6 September 2005; Dr P Grech, psychologist, 27 May 2004; Department of Human Services 5 June 2001.
His Honour obtained a further report from Forensicare, dated 22 July 2010. The author, Dr Hannah Mendelson, opined that the appellant was a brain-damaged schizophrenic, with a possible antisocial personality disorder. The author was unable to say whether there was a link between the appellant’s mental illness and presently relevant offending.
The judge was not persuaded that there was any causal link between the appellant’s mental condition and his offending such as to give rise to mitigation under the first limb of Verdins.[2] He referred to a degree of conflict in the opinion of Mr Healey and the later report by Dr Mendelson. He seems to have attached weight to CCTV footage of the incident and its aftermath which, his Honour stated, showed the appellant being ‘sufficiently alert and oriented to try to disguise [his] appearance.’
[2]R v Verdins (2007) 16 VR 269.
Cancellation of parole
The appellant was granted parole on 24 October 2008 in respect of the sentence imposed in February 2007. Parole was cancelled on 28 October 2009 because the appellant had gone on ‘an amphetamine binge’. The unexpired portion of the sentence was one year, eight months and 30 days. The warrant for the appellant’s arrest was unexecuted at the time of the present offending. It was executed on 24 November 2009 – that is, three days after that offending.
In sentencing the appellant, his Honour said that he took into account, as a matter of totality, time that the appellant owed to the Parole Board. He assumed that the appellant would be required to serve all of that time. He accepted, however, the submission made for both the appellant and the Crown that the appellant’s offending, in the circumstances, did not call s 16(1A)(d) and (3B) of the Sentencing Act 1991 into play.
At time of sentence, a little less than 12 months of the parole sentence remained to be served.
Grounds 2 and 4
In my opinion, the weight of opinion was firmly in favour of there being some connection between the appellant’s mental illness and his offending. Mr Healey was firmly of that opinion. Dr Mendelson’s report was of the ‘not proven’ species. The fact that the appellant was ‘sufficiently alert and oriented to disguise [his] appearance’ after the offence had been committed says little as to the quality of his mental functioning at the critical time. At the very least, his various conditions would have impaired his capacity to exercise judgement regarding his actions. The combination of a low IQ (of 72), acquired brain injury, chronic schizophrenia, and personality disorder makes it at least likely that his mental state contributed to his actions on the day in question. Further, his mental disorder was such that the burden of imprisonment would have been greater for him than for a prisoner in normal health. Indeed, the Crown accepted, on the plea, that the appellant’s mental impairment would have had that effect. So, in my opinion, both limbs of Verdins were engaged. I should add that, although the judge referred to the second limb of Verdins during the course of submissions on the plea, he made no reference to that matter in his sentencing remarks; a matter squarely raised by ground 4.
Ground 3
The sentencing judge said that he took into account the time owed to the Parole Board in fixing the sentence for this offence. Based upon the very low non-parole period of fifteen months which he fixed, it seems clear that in sentencing the appellant his Honour must have had regard to the principle of totality, just as he said he had done. With regard to the non-parole period, so much was virtually conceded by appellant’s counsel. He contended, however, that totality was not reflected in the
head sentence – which, in effect, equated to a term of some six years and four months.[3]
[3]That is, the period between 21 November 2009 to date of sentence, the head sentence imposed by the judge, and the balance of the parole sentence remaining as at 13 September 2010.
There was, in my opinion, some force to that submission. Moreover, the effect of s 15(1) and (2) of the Sentencing Act 1991 is that the head term will expire in about April 2016, whereas the appellant will become eligible for parole in about mid December 2011. A potential parole period of that length might be said to be unmanageable.
Even so, I am not persuaded of the merits of this ground.
Disposition of the appeal
I consider that, grounds 2 and 4 having been made out, a lesser sentence should be imposed. I would allow the appeal, and re-sentence the appellant to three years and six months’ imprisonment. I would confirm the non-parole period of 15 months.
WEINBERG JA:
I agree.
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