Director of Public Prosecutions v Cooper

[2015] VCC 299

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

AT SHEPPARTON
CRIMINAL JURISDICTION

CR 14-10323

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEAH COOPER

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Shepparton
DATE OF HEARING:	10 March 2015
DATE OF SENTENCE:	10 March 2015
CASE MAY BE CITED AS:	DPP v Cooper
MEDIUM NEUTRAL CITATION:	[2015] VCC 299

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D O'Doherty	Office of Public Prosecutions
For the Accused	Ms T Hartnett	Victoria Legal Aid

HIS HONOUR:

1

Leah Cooper, on 23 February 2014, you became angry with a female acquaintance of yours.  It was at the unit of a Mr Spiteri.  You considered that you and Mr Spiteri were in a relationship.  You lived a few doors down from

Mr Spiteri's unit.  You went to that unit frequently. 

2On 23 February 2014, as I said, after you became angry, you went to the unit at 1 am.  You had been drinking alcohol throughout the evening.  You pushed on a fly wire screen and climbed in.  Once in you yelled at the victim.  She was, at the time, drinking a stubby of beer.  You hit the stubby out of her mouth, casing an injury to her lip.  You hit her with a bong on the head and body, causing pain and ultimately swelling and bruising.  She was able to call the police, who arrested you while you were leaving the house.  You made frank admissions in a record of interview.

3Coming into someone's house with an intent to assault and then actually assaulting someone in the house, is serious offending.  Fortunately the injuries were not serious and quickly resolved. 

4The alcohol you had in your system, no doubt, clouded your judgment.  But it is no excuse.  You cannot act violently, even if you feel aggrieved or let down by your boyfriend or any other acquaintance.  But on any analysis, this is at the lower end of the scale for aggravated burglary and also recklessly causing injury, the offences you pleaded guilty to. 

5Your plea of guilty means the penalty will be less than it otherwise would have been.  A plea of guilty, along with other aspects of your personal circumstances, well and truly open up the option of a penalty less than immediate gaol. 

6I note you have done eight days on remand, including days, at least two days in the police cells in Shepparton. 

7You have been in trouble before, but close analysis reveals your history is not that significant and there have been years when you have not offended.  You have offended, however, both in Victoria and New South Wales. 

8All that, as well as the offences before me now, have to be seen in light of your very deprived and unfortunate personal circumstances.  You are a 38 year old Aboriginal  woman.  Your parents were not really up to the task of raising you in a stable family environment.  They separated when you were young.  You were exposed to adults who drank excessively and had a little to offer you to guide you through childhood and adolescence. 

9On the contrary, you were sexually abused from an early age.  You moved houses a great deal.  You had little meaningful education.  You became a mother when still a teenager.  You have had 11 children, all of whom have had Department of Human Services involved and each has been put into State care.  I was told that this has occurred with your youngest daughter just in the last month.  You have had significant grief at not having your children with you.  There have been multiple partners, but little by way of respect and care for you.  You have been exposed to violence and consequentially have had a loss of self-esteem. 

10You have developed very significant mental health problems.  In his psychological report, Dr Jones was of the opinion that you suffer from a major depressive disorder and generalise anxiety and chronic and severe post-traumatic stress disorder.  These are serious mental illnesses.  He also notes your significant problems in the past with alcohol, amphetamines and your ongoing problem with cannabis.  He concluded with a very significant comment in his report.  "Ms Cooper presents as one of the most disadvantaged people for whom I have prepared a forensic psychological report over the last 15 years with my engagement in this professional activity. There are cruel factors described and analysed above, indicate a complexity of adverse impact features that has placed her in the top rankings of cases where capacity to exercise effective and appropriate personal choices is very much impaired.  Physically, psychologically, socially and materially she is disempowered and adversely encumbered by circumstances that are largely beyond her intentional control."

11A High Court in the recent decision in Bugmy v R, emphasised the need for sentencing courts to give full consideration to an offender's deprived circumstances.  The High Court said, "Because the effects of profound childhood depravations do not diminish with the passage of time and repeated offending, it is right to speak of giving full weight to an offender's deprived background in every sentencing decision.  An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated, such that the offender's moral culpability or the inability to control that impulse may be substantially reduced."  I have taken heed and applied what the High Court said and thus see your moral culpability for this crime as lower because of your depravation.

12

Further important considerations arise as a consequence of the Court of Appeal decision in this state in R v Verdins.  Your case is one of the exceptional cases where I can see the resort by you to aggression in all the circumstances of 23 February 2014, that all of that was influenced or causally connected to your mental health problems.  In your circumstances, you were less able to consider things carefully and as such, you judgment was affected.  Also your circumstances with your impaired mental functioning are such that

I do not consider the community would be comfortable at all if I used you as an example to deter others.  Thus I give significantly less weight to general deterrence. 

13

Also because of your impaired mental functioning, is appropriate that

I consider sentencing options other than imprisonment, as I consider that your mental health would suffer if you were gaoled and that is the evidence contained in Dr Jones' report.  These important matters in mitigation led me to consider the option of a Community Corrections Order.  I had you assessed for such an order and your are suitable.

14The Court of Appeal recently gave guidance to sentencing judges that Community Corrections Orders ought be used as punishment and as a practical means to facilitate reform. 

15Your counsel urged that a co-ordinated response to assist you generally ought be undertaken.  Insofar as that is the role of the criminal justice system, I see the value in mandating you undergo treatment and programs to assist you in remaining stable, and thus in all likelihood, crime free.

16You have moved to a farm in recent times and away from excessive alcohol, perhaps in others, poor influences and social problems.  You ought maintain that approach and get the benefits from the Community Corrections programs that I will order. 

17I have considered the eight days you have served and no doubt it has had the effect of making you understand what may lay ahead if you breach this order  you will go back into custody. 

18

For committing the crime of aggravated burglary and recklessly causing injury, I intend to impose an aggregate term.  That term is tailored a bit, but I need to give some effect to the fact that you have done eight days in custody.  So

I sentence you to eight days imprisonment and declare that you have served eight days of the sentence that I have just imposed, and ensure that this is entered into the records of the court.

19In addition, I order that you undergo a 12 month Community Corrections Order.  Within that order you must undergo treatment and rehabilitation for drug use and to undergo treatment and rehabilitation in respect of medical problems.  To undergo treatment and rehabilitation for mental health problems and also undertake programs to reduce the risk of your re-offending.  You are also to undergo supervision.  I think in this case, I will impose upon you a requirement that there be judicial supervision.  That means you come back here and I will see how things are going, and we will do that in three months' time.  It will all be done by video link, but we will T that up once the order is produced.  That order is with conviction. 

20In addition the prosecution has sought that you provide a forensic sample.  Is that the position?  And I considered that application and I intend to grant it due to the seriousness of the offence that you have committed, your prior convictions and it is in the interests of justice that you provide a forensic sample.  What that means is that the authorities will, when you attend for the purposes of providing a forensic sample, you will go to the police station.  They will take a scraping from your mouth and then they will get your DNA from that and it will be kept on a database.  Do you understand that?

21OFFENDER:  Yeah.

22HIS HONOUR:  If you do not co-operate with the taking of that sample, then they are authorised to use reasonable force to get it, and the way through it of course is to co-operate.  Do you understand all that?

23OFFENDER:  Yeah.

24HIS HONOUR:  Righto.  In addition to that, the prosecution has sought disposal of various things, and is there any opposition to those?

25MS HARTNETT:  No, Sir, thank you.

26HIS HONOUR:  Is there a Forensic Sample Order somewhere?

27MR O'DOHERTY:  Yes, Your Honour, they are there.

28HIS HONOUR:  Did you hand that up?  I just do not know that I have got that.  The document will be produced shortly and if you consent to that order, sign it, then you will be taken to the Magistrates' Court directly to have whatever has to be dealt with there, dealt with. 

29Does the first week in June suit for the judicial monitoring?

30MS HARTNETT:  Yes, Sir.

31

HIS HONOUR:  If you are not there it is no difficulty at all, Ms Hartnett, but

if - - -

32MS HARTNETT:  Yes.  No, my instructor will make arrangements.

33HIS HONOUR:  I think we will do it by video link.  Wednesday the 3rd.

34MS HARTNETT:  Thank you, Sir.

35HIS HONOUR:  I do not have a calendar here to see whether the court in Shepparton is sitting, but I do not think they are, so we will press ahead with that date. 

36Ms Cooper, the Community Corrections Order basically will go for 12 months from today until 9 March 2016.  These are all the conditions that apply to everyone who is placed on a Community Corrections Order.  They certainly apply to you.  So you must not commit any offence for which you could be imprisoned during the time the order is in force.  So if for the next 12 month,  you commit any offence, and almost everyone you can think of is punishable by imprisonment, but if you commit any offence, then you breach this order and you will come back before me and the mercy that has been given is not likely to be repeated. 

37You must comply with any obligations or requirements under the sentencing regulations.  I am told that means you have to be - they will have to take your photograph at Corrections to know who you are and so on.  So you have got to comply with all that.  You have got to report to and receive visits from the Office of Corrections.  You must report to the Community Corrections Centre, that is the Shepparton Community Correctional Services around there in Wyndham Street.  You have got to do that within two clear working days.  So do it later today or tomorrow, once the Magistrate matter is sorted out. 

38You must let the Community Corrections officer know within two clear working days if you change your address or your job.  You must get permission to leave Victoria, to go interstate, across the border.  So all of that means just keep them informed of what you are up to.  And you must obey all lawful instructions from the Office of Corrections. 

39So in addition to that, these are the conditions that apply just to you.  I have said them already but I will make them clear again.  You are under the supervision of a Community Corrections officer for 12 months.  That means you might have to come and see them, or they see you.  You must undergo any medical assessment and treatment that they arrange for you.  You must undergo mental health assessments and treatment, including from psychologists or psychiatrists or treatment in hospitals and all the rest of it.  It is very important that you comply with all those treatments, because they will assist you with the serious mental health problems that you have.  You must participate in programs that address offending.  They will sort that out as to the programs, just do them each and every time. 

40You must attend for a review, formally on 3 June 2015, 9.30 am, come to the Shepparton Court and we will see how things are going.  Now I have not included in there as is common, that you have to do some unpaid community work, and I have done that for good reason.  I do not think that it would be in your interests or the community for you to be doing community work.  But it means that each and every one of the things that I have asked you to do has been - you must do.  Do you understand that?

41OFFENDER:  Yes. 

42HIS HONOUR:  Righto.  Now if you are prepared to sign that order, I will sign it and you are free to go to the Magistrates' Court and finalise whatever has to be finalised there. 

43Is there anything else required on this matter?

44MS HARTNETT:  No, Sir, thank you. 

45HIS HONOUR:  Thank you.  Well she remains in custody, as it were, but if the arrangement is that she goes now to the Magistrates' Court, well there it is.  That is so far as these matters are concerned, that completes this.

46MS HARTNETT:  Yes.

47HIS HONOUR:  We will just get you a copy and - the provisions of 6AAA do not require me to give an indication if I give a Community Corrections Order, but I did give a sentence of imprisonment and I just omitted to read it out.  Should you have pleaded not guilty to these matters and been found guilty of them, I would have imposed a sentence of six months, with a two year Community Corrections Order. 

48MS HARTNETT:  As Your Honour pleases.

49HIS HONOUR:  Just bear with me for a moment, Ms Hartnett.

50MS HARTNETT:  Yes, Sir.

51HIS HONOUR:  Thank you Ms Hartnett.

52MS HARTNETT:  Thank you, Sir.

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