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Cooper v The Queen

Cooper v The Queen

Case [2021] NSWCCA 292 10 December 2021

Criminal Liability

Sentencing

Limitation Periods

Unconscionable Conduct

Reoffending Risk

Remorse

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Cooper v R [2021] NSWCCA 292
Hearing dates: 29 November 2021
Date of orders: 10 December 2021
Decision date: 10 December 2021
Before: Bathurst CJ at [1]
Harrison J at [2]
Wilson J at [3]
Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords:
CRIME — appeal against sentence — supply prohibited drug — failure to comply with reporting obligations — question of whether sentencing judge failed to consider mental conditions of applicant — where limited evidence of any mental disorders — question of manifest excess — where applicant in breach of intensive corrections orders and community corrections order at the time of offending — significant criminal history — limited remorse — medium risk of reoffending — poor prospects of rehabilitation — limited utility in comparing other sentences imposed for similar offences — appeal dismissed

Legislation Cited:
Child Protection (Offenders Registration) Act 2000 (NSW)
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Ahmad v R [2019] NSWCCA 198
Blake v R [2021] NSWCCA 258
Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Hayek v R [2016] NSWCCA 126
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Imbornone v R [2017] NSWCCA 144
JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Owen v R [2017] NSWCCA 54
R v Carter [2003] NSWCCA 243
R v Loudon [2020] NSWDC 57
R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353
R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category: Principal judgment
Parties: Peter Cooper (Applicant)
Regina (Respondent)
Representation:
Counsel:
J Brock (Applicant)
A Morris (Respondent)
Solicitors:
Randall Legal (Applicant)
Solicitors for Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2020/93894
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

10 March 2021

Before:

McLennan SC DCJ

File Number(s):

2020/93894

Judgment

BATHURST CJ: I agree with Wilson J.
HARRISON J: I agree with Wilson J.
WILSON J: Pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) Peter Cooper, the applicant, seeks leave to appeal against an aggregate sentence imposed upon him in the District Court sitting at Lismore on 10 March 2021 by his Honour Judge McLennan SC. The sentence, of 3 years and 6 months imprisonment with a non-parole period (“NPP”) of 2 years, reflected two offences, together with a further two crimes taken into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW), as follows.

Count

Offence

Max. Penalty

Indicative Sentence

1

Fail to comply with reporting obligations

s 17(1) Child Protection…

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 [2021] NSWCCA 292
Case: [2021] NSWCCA 292
Decision Date: 10 December 2021

CaseChat Overview and Summary

In Cooper v The Queen, the appellant challenged the sentence imposed by the sentencing judge, asserting that the sentence was excessive. The appellant was found guilty of supplying a prohibited drug and had breached several court orders, including intensive corrections orders and a community corrections order, at the time of the offence. The appellant had a significant criminal history, limited remorse, and a medium risk of reoffending, and the prospects of rehabilitation were poor. The appellant claimed that the sentencing judge failed to consider the appellant's mental conditions, although the evidence of any mental disorders was limited.

The legal issue before the court was whether the sentencing judge failed to consider the appellant's mental conditions, and if so, whether the sentence was manifestly excessive. The court considered whether there was a failure to consider the appellant's mental conditions and if this was a significant factor in the imposition of the sentence. The court also considered whether the sentence was manifestly excessive in light of all the circumstances, including the appellant's criminal history, the nature and circumstances of the offence, and the appellant's prospects of rehabilitation.

The court held that the sentencing judge did not fail to consider the appellant's mental conditions, as the limited evidence of any mental disorders did not establish such a failure. The court also held that the sentence was not manifestly excessive, taking into account the appellant's significant criminal history, the nature and circumstances of the offence, and the appellant's prospects of rehabilitation. The court noted that the appellant had breached several court orders at the time of the offence, had limited remorse, and a medium risk of reoffending, which were significant factors in the imposition of the sentence. The court also held that it was not appropriate to compare the sentence imposed with other sentences imposed for similar offences, as the circumstances of each case were different.

The appeal was dismissed.

Orders