Director of Public Prosecutions v Cooper

[2019] VCC 2109

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT GEELONG

CRIMINAL DIVISION

Case No. CR-18-01381

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

BRYAN COOPER

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	12 December 2018
CASE MAY BE CITED AS:	DPP v Cooper
MEDIUM NEUTRAL CITATION:	[2019] VCC 2109

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr A. Moore
For the Accused	Ms M. Brown

HER HONOUR: 

1       Bryan Cooper, you have pleaded guilty to one charge of attempting to pervert the course of justice.  The maximum penalty for this offence is 25 years imprisonment.  The details of the offending are set out in some length in the summary of the prosecution opening prepared for the plea hearing dated 12 December 2018 which is Exhibit A and it shall be appended to these sentencing remarks but I shall now summarise briefly the circumstances.

2       You have been subject to the conditions of an order under the Sex OffendersRegistration Act subsequent to your conviction for sexual offending in recent years.  Sergeant Glenn Bensted of Geelong SOCIT was your compliance manager at the time of your offending.  He had a large number of contacts with you during the time that he was your compliance manager.  On 4 November 2016 he telephoned you to make an appointment for you to attend the police station to be interviewed in relation to an alleged breach of reporting conditions.  You refused to attend for an interview.

3       The same day you attended the Geelong Magistrates' Court to apply for an interview order against Bensted.  You provided staff with a handwritten application form which included details of your complaints against Bensted.  You stated that that day he, Mr Bensted, had threatened to kidnap, torture and kill you and your family if you did not leave Geelong.  In fact, Bensted made a call to you that day from his office and left a voice mail message for you to call back.

4       Shortly afterwards you returned the call at a time when Bensted was standing next to the Department of Health and Human Services child protection worker, Stephanie Jeffries.  She heard Bensted take the call and telling the person on the line that they needed to present themselves at Geelong police station in relation to a breach and if the person did not do so Bensted would have to attend at the person's home.  Bensted repeated this two or three times and at no time did he say anything about kidnapping, torturing or killing anyone nor did he make any threats.

5 In the application form you set out alleged instances of stalking and harassment by him and other threats by him to you, including a threat that you would be taken to the You Yangs and shot in the back of the head. A staff member here at the Magistrates' Court typed these allegations into a formal application and you swore on oath that the contents were true. On the same page and immediately above the signature box the following words appear on that form, "Under s.141 of the Evidence Miscellaneous Provisions Act 1958 a person who makes an affidavit knowing the contents of the affidavit to be false may be punished for the offence or perjury."

6       You appeared in person that day before the Magistrate His Honour Mr Coghlan who asked you for some more detail in relation to the contents of the application and you told him that Bensted had shown you his police issue firearm and had threatened you with physical violence for over 12 months.  The magistrate adjourned the hearing until 15 November 2016 to allow the respondent Benstead to be served, and he declined to make an interim order.

7       At the second hearing before Her Honour Ms McGarvie Bensted was represented by counsel.  Her Honour asked you to provide further and better particulars in relation to your application and the case was adjourned for further hearing on 13 December 2016.  On that day you filed a four page document headed Statement of Particulars which contained details of the allegations you were making against Bensted.  You were asked then to provide a list of witnesses you proposed to call at the contested hearing and the case was listed for 3 March 2017.  You failed to provide that list and at the hearing through your counsel you withdrew the application because you could not locate supporting witnesses.

8       You were spoken to by the police about these matters on 9 April 2017 and you made a no comment record of interview.  Your plea of guilty was indicated during the trial which involved the charge of attempting to pervert the course of justice and the charge of perjury at a stage when the prosecution evidence was almost completed.  So it is a very late plea and warrants little in the way of a discount on your sentence.  All prosecution witnesses except one have had to give evidence and a jury has had to attend for three days.

9       Once your plea offer was accepted the prosecution led no further evidence in relation to the charge of perjury.  A further consequence of your late plea is that you have foregone the opportunity to serve part of any sentence concurrently with the sentence you have just finished serving.  That sentence, a 20 month term of imprisonment, expired on 6 December and you have remained in custody since then only in relation to this trial. 

10      The principle of totality requires that I take into account as part of the intuitive synthesis approach to sentencing, the fact that you have just recently served that sentence and I do take it into account in that general sense.  I understand that you would be confident of being able to complete a community correction order if considered appropriate and if you were assessed as suitable but the charge and the circumstances surrounding it are in my view too serious.

11      The effects on Mr Bensted were quite profound in a personal sense and he has referred to them in his victim impact statement.  He considers that his professional reputation was damaged and the false allegations caused him and his family stress.  In addition, the trial had the effect of diverting his attention from another case he was involved in at the same time.  Mr Bensted also referred to the institutional costs of your false claims.  Victoria Police had to spend extensive resources on disproving your claims at a cost of diverting resources from other work.

12      Clearly the Magistrates' Court was also affected in that there were four hearings which took up valuable court time.  Perhaps more importantly, the court was faced with having to consider carefully the claims you made in your application even before Mr Bensted could respond  False claims made in such applications seriously undermine the system of providing protection for vulnerable people to look to the courts for assistance.  When an application is made for an interim intervention order the court can only rely on the unchallenged information provided at that initial stage in order to make the system accessible to people needing protection.

13      False claims as yours were inevitably divert attention away from genuine cases and potentially threaten to undermine the work of the court.  For those reasons, the charge to which you have pleaded guilty is not of a minor order, nor is it the most serious example but it falls well above the bottom of the range of seriousness.  You have been diagnosed with bipolar type II disorder and it is also likely that you fit the criteria for autism of a high functioning type.  That diagnosis was made last year by a forensic psychologist, Mr Jeremy Parker.

14      Your criminal history mostly consists of sexual offences and the recent sentence you served was for committing an indecent assault on a child under 16, although this was a subsequent offence, not a prior offence.  It is clear that your offending was influenced to some degree by these conditions from which you suffer but it is also clear that you know the difference between right and wrong and you knew that what you were doing was wrong.

15      General deterrence has some relevance to my sentencing task, and the need to address that principle should be moderated sensibly in the circumstances of this case.  The court system which you sought to undermine by your actions should be protected by endeavouring to deter others who might be inclined to make false claims. 

16      You are a 33 year old single man who because of your disability has not been able to work, although it seems you do have some intellectual ability.  Nonetheless you lack that protective factor of employment.

17 However, you do have some family support from your mother. Your prospects for rehabilitation appear to be guarded at best and perhaps depend upon you gaining some insight into your behaviour and the reasons for it. An important protective factor is that you will remain obligated under the Sex Offender Registration Act for the rest of your life and so you will be monitored in that way. Would you stand now, please, Mr Cooper.

18      I sentence you to ten months imprisonment.  In determining the length of that sentence I have taken into account that you could have had some concurrency and that you have only recently finished serving quite a long sentence.  If you had pleaded not guilty I would have sentenced you to 12 months imprisonment.  I declare that the six days of pre-sentence already served are to be taken into account to be reckoned as already served and I shall that on the court record.

19      Are there any other matters?

20      MS BROWN:  No, Your Honour.

21      MR MOORE:  No, Your Honour.

22      HER HONOUR:  Can I take this opportunity to thank you, Mr Moore and you, Ms Brown and your instructors for your assistance during the trial.

23      MR MOORE:  I'm grateful, Your Honour.

24      MS BROWN:  Thank you, Your Honour.

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