Director of Public Prosecutions v Cooper
[2017] VSC 218
•21 April 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0076
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JONATHAN COOPER |
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JUDGE: | JANE DIXON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7, 8, 16 December 2016 |
DATE OF SENTENCE: | 21 April 2017 |
CASE MAY BE CITED AS: | DPP v Cooper |
MEDIUM NEUTRAL CITATION: | [2017] VSC 218 |
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CRIMINAL LAW – Sentence – Murder, Aggravated burglary and Theft – Significant cooperation with authorities – Guilty Plea – Elderly victim assaulted and tied up in own home – Stabbed in back whilst restrained – Theft of money and war service medals - Total effective sentence 16 years imprisonment – Non parole period of 13 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr Justin Lewis | Office of Public Prosecution |
| For the Accused | Mr Jason Gullaci | Tony Hannebery |
HER HONOUR:
Jonathan Cooper you have pleaded guilty to the murder of Kenneth Handford and the aggravated burglary which was a prelude to the commission of the murder. You have also pleaded guilty to the theft of money and personal property which belonged to the deceased.
The maximum sentence for murder is life imprisonment and the maximum sentence for aggravated burglary is 25 years’ imprisonment. Theft carries a maximum of 10 years.
The offences to which you have pleaded guilty took place on 14 September 2015 at the home of Kenneth Handford at 1028 Barkstead Road, Springbank.
The deceased, Kenneth Handford, was an elderly widower who lived on his own in the cottage at Springbank.
The Crown opening for the plea hearing was read aloud and tendered before the Court.[1]
[1]Crown Exhibit 1.
I have supplemented my understanding of the Crown case by reference to the depositions and submissions of the Crown and defence as well as the explanation you gave Ms Gina Cidoni, a psychologist in support of your plea in mitigation. Her report dated 2 December 2016 was tendered as part of a plea folder put forward on your behalf by your counsel, Mr Gullaci.[2] I have also taken into account the statement you have provided to police and adopted on oath before me.[3]
[2]Cooper Exhibit 1.
[3]Cooper statement affirmed on oath on 15 February 2017.
The Crown case is that whilst armed with a knife, you broke into the home of the deceased in the middle of the night, in company with your co-offender, Adam Williamson. This was a targeted and pre-meditated aggravated burglary in which you planned to search the house for money and to steal from the deceased.
The charge of aggravated burglary was particularized to include unlawful entry whilst armed with a knife, with knowledge or reckless as to whether a person was present within those premises at the time of entry. In fact, you expected that the deceased would be asleep in his bed at the time you broke in.
You assert that[4] Williamson told you that the deceased would have twenty to thirty thousand dollars at his house, because he did not like banks.[5]
[4]Cooper Exhibit 2, Statement of Jonathan Cooper, 2.
[5]Jessica Tippet, another associate of Williamson, confirmed that he said that there was a lot of money there because the old man did not like banks (Depositions, 123).
You had been associating with Williamson on an almost daily basis. You were an intravenous user of methamphetamine (‘ice’) at that time. Williamson was also a user of ice and shared the pursuit of drugs in common with you.
At your plea hearing the Crown accepted that the original plan was to break into the deceased’s house at night to steal from the deceased and that the knife was carried by you in case you needed to gain compliance. However, in the events that unfolded after the pair of you tied up and gagged the deceased, you inflicted the stab wounds somewhat spontaneously.
You assert that Williamson led you to believe that the deceased was a paedophile and this belief caused you to lose control of yourself and stab the deceased. The deceased was not a paedophile. He was a decent law abiding elderly man.
He was in fact 89 years old at the time of his death and had been widowed for six years. He is survived by an adult son and daughter, five grandchildren and three great grandchildren.
He was a decorated World War II veteran who served with the RAAF. He had been awarded a number of service medals which he kept at home.
He had worked for the Maher family at their Springbank farm after retiring from other work in 1980.
He occupied a weatherboard cottage owned by the Mahers, and resided there, not far from the Maher’s own farmhouse. He still assisted with their farming activities from time to time.
Williamson had also worked as a farmhand for the Maher’s harvesting potatoes but this employment ended dishonourably. In 2014 he was let go on suspicion that he had stolen from the deceased’s wallet during the period that they worked alongside one another. Williamson denied the theft and bore a grudge towards the deceased.
He had communicated his malice towards the deceased to various of his associates.[6] He had told Jessica Tippett that the deceased was a paedophile.[7] Others also heard Williamson denigrating the deceased.
[6]For example, Daniel McDermott (Depositions, 654).
[7]Jessica Tippett (Depositions, 127).
On 13 September 2015 you, your partner Tracey Shepherd and Williamson went to Ormond Road, Springbank, in Tracey’s blue Ford Focus car, to purchase another car for spare parts from some friends of Williamson.
After arranging the purchase, the three of you left and, according to your statement, Williamson directed you to drive past the address where he said ‘paedophile Ken’ lives. You assert that he told you that Ken was the one who touched up Williamson when Williamson was a kid along with other kids in the area.[8]
[8] Cooper Exhibit 2, Statement of Jonathan Cooper, 2.
It was after checking out the premises on that day that a plan was cemented to break into the deceased’s home at night when the deceased was likely to be present but unsuspecting.
You took a double-edged knife and a balaclava from your home and met up with Williamson at his Ford Street address later that night.
Whilst in the presence of Jessica Tippett you discussed with Williamson doing a ‘run through’ of the deceased’s house. You say that you showed Williamson the knife you had with you at this time.[9]
[9] Ibid, 5.
As the night wore on you tapped your watch and suggested to your co-offender that it was time to go.[10] You each put on jackets and you grabbed the knife whilst Williamson took your balaclava.
[10]Ibid, 6; Jessica Tippet (Depositions, 125).
The pair of you left in a car driven by Williamson, which was then parked at some distance from the deceased’s home.
Williamson was wearing the balaclava when the pair of you went towards the house carrying torches.[11] You were armed with the knife.[12] It was around quarter to one in the morning.
[11]Cooper Exhibit 2, Statement of Jonathan Cooper, 7.
[12]Crown opening, [23].
According to your statement[13] the back door appeared to be latched near the top so you gave the knife to Williamson who then used it to pry open the door.
[13]Cooper Exhibit 2, Statement of Jonathan Cooper, 8.
Whilst the pair of you searched the house by torchlight for money, the deceased woke up. You claim that at that moment you and Williamson were in the bedroom where the deceased was still lying in his bed.
You have admitted, against your own interest, that you shone your torch in the face of the deceased and hit the left side of his face with the butt of the torch. When he rolled over in bed you grabbed his hands and locked them down behind his back. As he yelled out in protest, you accused him of being a paedophile, which he denied. You claim that as the deceased struggled, Williamson forced a gag into his mouth.[14]
[14]Ibid, 9.
You then describe a further struggle in which you hit the deceased’s hand with your torch when you saw him reach for his wallet. The pair of you then tied his hands behind his back and trussed his ankles together.
You claim that in the course of restraining him, the deceased recognised Williamson whose face was not concealed by the balaclava at that stage.
Your knife was pointed towards the deceased. You claim that just before stabbing him, Williamson appeared to give a nod of encouragement.[15] You stabbed him repeatedly in the back. You told forensic psychologist, Ms Cidoni that you stabbed the deceased out of anger in response to your own experiences of childhood sexual abuse.[16]
[15]Cooper Exhibit 2, Statement of Jonathan Cooper, 11.
[16]Report of Ms Gina Cidoni, 2 December 2016.
Williamson, disputes that he was present in the room when you stabbed the deceased and denies complicity in the assault on the deceased with a knife. Williamson’s role in the events is yet to be determined.
Nevertheless, you entered a plea of guilty based on a full acceptance that you were armed with your knife throughout the physical encounter with the deceased and that you alone stabbed the deceased multiple times to his back. You claim that at some stage during the attack on the deceased, he ended up on the floor.[17]
[17]Cooper Exhibit 2, Statement of Jonathan Cooper, 12.
He was abandoned by you in that perilous condition and the pair of you removed any items of value you could find from the premises. Kenneth Handford was left tied up on the floor, grievously injured.
The pathologist, Dr Bourke, observed 13 stab wounds to the back of the deceased including penetrating injuries to the left lung and right kidney. His conclusion was that the deceased died at 6.00 am, four hours and 38 minutes after the initial attack on him. The attack is likely to have occurred between 12.47 am and 12.53 am. Precision as to the time of the attack and the time of death was able to be derived from information obtained from the deceased’s cardiac pacemaker.
No one knew of the plight of the deceased and he succumbed to his injuries after suffering his death throes alone and without help.
According to your police statement it was Williamson who took the cash and other stolen property from the house after the stabbing as you had already left and returned to the car. Given your plea of guilty and your acceptance of complicity in the theft, it is unnecessary to decide whether it was you, Williamson or both of you who removed the items from the premises.
The pair of you returned to the Ford Street premises and showed Jessica Tippet your ill-gotten gains. Ms Tippet states that she saw wallets, jewellery, and war medals and witnessed the counting of banknotes in Williamson’s bedroom where she was staying that night. She says you showed her your bloodied clothing and admitted that you had stabbed the deceased and left him tied up, saying that the incident would be on the news.
You told her that you would keep the gold chain. The cash was split between yourself and Williamson. Williamson kept the medals. The Crown alleges that $3,900 cash money was stolen from the deceased along with a gold chain and a number of prized military medals.
Several days later you made some significant admissions to the offending to one of your associates.[18]
[18] Heath Shepherd, the brother of your girlfriend, was told of the killing, and that it was all over the news. You told him about the stolen medals and said that you had burned your clothing to destroy evidence.
You were ultimately arrested and charged with murder and aggravated burglary on 27 October 2015. Mr Williamson was also apprehended on that day.
The war medals belonging to the deceased were discovered by police on the day of your arrest hidden behind a stove at the home of Adam Rowe. Rowe had put them there at the request of Williamson. Rowe was subsequently charged with being an accessory after the fact to murder and has been sentenced for that crime.[19]
[19]R v Rowe [2016] VSC 388R.
Sometime after you abandoned the deceased to his fate, Anita Maher became concerned for the welfare of the deceased. She had unsuccessfully attempted to telephone the deceased on Tuesday 15 September so went to check on him at home.
Tragically, the deceased was to have celebrated his 90th birthday on the day that his body was discovered. There had been plans on foot for a birthday gathering later that day. What should have been a day of celebration was instead a day marked by sadness as friends and relatives learned of the cruel way in which the deceased met his death.
I accept on the balance of probabilities[20] that your involvement in the aggravated burglary was encouraged by the lies Williamson told you about the deceased’s proclivities, which also prompted you to stab the deceased during the carrying out of the aggravated burglary. However, this misapprehension does not provide an excuse for your actions.
[20]The Crown must establish any circumstances of aggravation beyond reasonable doubt, whereas you bear the burden of establishing matters in mitigation on the balance of probabilities: R v Storey [1998] 1 VR 359.
There is also material to suggest that your use of methamphetamine was escalating prior to your offending, and adversely affecting your behaviour in the lead up to your crimes.[21] It is apparent that the pursuit of money for drugs was the motive for the aggravated burglary. However, this fact provides no mitigation in the circumstances of this case.[22] It was also not relied on by the Crown as an aggravating feature.
[21]Heath Shepherd (Depositions, 147, 148); Jessica Tippet (Depositions, 124).
[22]R v Groom [1998] VSCA 146; Hassan v R [2010] VSCA 352.
I do not need to decide whether you received a nod of encouragement from Williamson at the moment you stabbed the deceased, since the gravity of your actions in stabbing the deceased would not be reduced even if that aspect of your account were accepted.
Your offending encompassed a serious example of the crime of aggravated burglary and a grave example of the crime of murder.
Crimes that are committed in company upon solitary victims must be regarded as especially reprehensible.
In Bradley[23] Osborn JA echoed the words of the Court of Appeal in Terrick:[24]
An assault in company is more frightening – and almost always more lethal than an assault by one, not least because the actions of each tends to encourage the others. It is also more cowardly, because of the overwhelming physical superiority of the attackers.[25]
[23]R v Bradley [2015] VSC 768.
[24]DPP v Terrick (2009) 24 VR 457, 477 [82].
[25]R v Bradley [2015] VSC 768, [22].
In this case your crime is objectively more serious, not just because there were two of you, but also because you invaded the peaceful habitation of an elderly man whilst he was asleep in bed late at night when he was entitled to feel quite safe and secure.[26]
[26]In this respect it had features in common with R v Andrakakos; DPP v Arkan; DPP v Andrakakos [2003] VSCA 170.
The moral repugnance felt by the community for crimes of this nature cannot be underestimated. Media reports about violent intrusions to private dwellings causes significant public disquiet. Worse still, in this case you deliberately targeted an elderly and vulnerable victim. Your cruel treatment of the deceased during the final hours of his life must be strongly denounced.
The Court of Appeal in Bux[27] recently dealt with a non-fatal aggravated burglary which involved similar features to your crime.[28] The court in declining the applicant’s appeal against sentence described the offence as encompassing very serious criminality in light of the vulnerability of the elderly victim.[29] The same features are evident in your crime.
[27]Bux v R [2017] VSCA 70.
[28]A break in at night and assault and tying up of an elderly gentleman in his own home and theft of war medals.
[29]See also DPP v Meyers (2014) 44 VR 486.
One important reason for denouncing your conduct in planning and agreeing to commit the aggravated burglary was the obvious risk of an escalation of violence once a confrontation occurred. As it happened once you embarked on this crime your angry and violent impulses took hold and brought out the worst in you.
I have received a large number of victim impact statements from the family and friends of Kenneth Handford,[30] some of which were read in open court and some of which were not.
[30]List of Victim Impact Statements from Anita Maher, Anne Turley, Barbara Carter, Carmel Handford, Courtney Pearce, Doreen Handford, Jackson Handford, Jarrod Handford, Joel Maher, Joel Murray, Kevin Maher, Leah Handford, Margaret Gull, Margaret Murray, Mary Maher, Peter Handford, Peter Maher, Ronald Handford, and Shae Murray.
The universal picture painted by all of those statements is one of bewilderment at the fate suffered by the deceased.
The content and breadth of the victim impact statements was testament to the high regard in which the deceased was held.
Without recounting them in detail, I observe that the murder of Kenneth Handford had a shattering effect on his son and daughter and each member of their respective families, on his surviving brother and sister-in-law, and on the entire Maher family.
Peter and Carmel Handford, son and daughter-in-law of the deceased, have felt unable to grieve properly because of the violent way Peter’s father met his death. Margaret Murray, daughter of the deceased said nothing could have prepared her for the way in which her father died. Each of Kenneth Handford’s grandchildren have had their happy memories of their grandfather tarnished by the knowledge of what was done to him.
Ronald Handford said nothing can take his mind off how his brother was murdered. Anita and Kevin Maher have lost their sense of security at Springbank and Anita Maher is haunted by the image of what she found when she went to check on the deceased.
So many of those who provided victim impact statements have been deprived of the confidence to feel safe in their own homes.
Turning to your personal background, your childhood and life history leading up to your offending were very troubled. Your early years spent in Gippsland were marred by the fact that your father was a violent and abusive alcoholic. Your mother moved frequently to evade him and then fled to Queensland with you and your siblings when you were aged six. She was driven to accept help from a church group and was offered respite care for you and your older brother.
Between the ages of 7 and 9[31] you and your older brother were sent away on weekends for respite care with a man who forced you to endure penetrative sex and solicited the performance of sexual acts between you and your brother. Your mother did not believe your complaint about the abuse at the time, although she has now changed her mind about that.
[31]Whilst the report of Ms Cidoni referred to this happening at the age of 12, Mr Gullaci said this was an error and explained why in the course of his plea.
Disturbing memories of this childhood sexual abuse continued to plague you at the time you reignited your friendship with Williamson and you continued to be traumatised by those memories. You assert that you confided in Williamson about your personal experience as a victim of sexual abuse and your violent dislike of paedophiles.
The Crown does not cavil with your instructions about these matters and you have disclosed the identity of the abuser.[32] It was said to be as a result of the effects of the sexual abuse that you later seriously assaulted your older brother and were removed from your mother’s care at the age of 12.[33] You came under the child protection regime and your schooling was disrupted. You had a speech impediment in your childhood and other medical problems.[34] Ultimately, you ran away from a foster home at the age of 14 and formed a relationship with another teenager who bore you a son. Unfortunately, that son is now also in departmental care. You separated from his mother at the age of 23.
[32]I note that Judge Cotterell did not refer to any sexual abuse in her earlier sentencing at a time when she was in receipt of a psychological report from Ian Joblin: DPP v Morgan [2010] VCC 1410UR. I nevertheless accept on the balance of probabilities that the sexual abuse did occur, and that you may not have mentioned it within the context of those proceedings. For discussion of the potential relevance of a history of sexual abuse to sentence, see Beevers v R[2016] VSCA 271, [35].
[33]You told Ms Cidoni that you and your brother were often violent to one another: Report of Ms Gina Cidoni, 2 December 2016, 3.
[34]Hospitalised twice for enuresis (stool holding): Report of Ms Gina Cidoni, 2 December 2016, 3.
In your favour you managed to obtain employment once you became independent and you worked in a variety of trades, including small engine repairs, timber milling, plastering and painting. You also worked as a courier for a while. However, the stability of your past employment has been interrupted by dysfunction in your personal life and past sentences of imprisonment.
At the time of the offending you were 28 years of age.[35] You had formed a relationship with Tracey Shepherd, who was pregnant and already had a son. She was working as a cleaner and had never been in trouble with the police. She remains supportive of you. Your mother also remains supportive.
[35]Mr Williamson was 38 at the time.
Ms Cidoni, forensic psychologist, who assessed you for the purposes of your plea has set out your history in her report.[36]
[36]Report of Ms Gina Cidoni, 2 December 2016, 3-4.
You told Ms Cidoni that you suffered intermittent anger as a result of the sexual abuse you endured and it was noted that although you have had some counselling in the past, it has not been effective. She noted that you have previously exhibited suicidal ideation and that you had expressed self-harming ideation since the offending in this case. [37]
[37]Ibid, 4.
Ms Cidoni, opined that you will need intensive therapy to avoid further offending when you are released from prison.
You have prior convictions of significance to your sentence.[38] In October 2010 you were sentenced in the County Court to a total effective sentence of two years imprisonment with a minimum non parole period of 5 months for aggravated burglary and theft. This offending involved some similar features to your current matters.[39] However, no one was hurt on that occasion and the motivation was different to the current offending.[40] There have also been other, less relevant convictions.[41]
[38]Sentenced to one year and eight months imprisonment at Ballarat Magistrates’ Court in 2011 for a number of offences, including burglary and theft.
[39]You went at night armed with a knife to the home of a person against whom you held a grievance.
[40] DPP v Morgan [2010] VCC 1410UR.
[41] Sentences imposed for burglary and theft in 2007 aged 20 and 2008 aged 21 at and various convictions for driving offences.
Your counsel put forward a comprehensive plea on your behalf and submitted that, despite the aggravating features of the offending and your prior criminal history, there are some important factors in mitigation.
You offered to plead guilty to Common law murder and Aggravated burglary after the committal on 31 October 2016 and you communicated that offer in writing through your counsel to the Crown, along with an offer to assist by making a statement and giving evidence against Williamson if required.[42]
[42] A number of paragraphs of the previous draft of the prosecution opening were said to be capable of being confirmed by you if you were required to testify.
Your written offer accepted responsibility for inflicting all of the stab wounds to the deceased, despite the fact that at that time the Crown could not discern which of the two of you had done so. Your counsel submitted that you made that admission against your own interests, and favourably to Williamson’s interests, therefore potentially assisting in the resolution of both matters.
The written offer also asserted that you acted jointly with Williamson in planning and carrying out the aggravated burglary, and that Williamson assisted and encouraged the physical restraint and assault of the deceased.
Although Williamson was subsequently arraigned and entered a plea of guilty to s 3A murder, aggravated burglary and theft, the basis for his guilty pleas came under challenge in the course of the joint plea.[43]
[43]His counsel ultimately submitted that Williamson was not party to the physical assault on the deceased and was not present in the room at any stage when the deceased was stabbed.
It transpired that Williamson sought to withdraw his plea.
In connection with Williamson’s application to withdraw his plea you re-enlivened your offer to assist the Crown and provided a detailed statement to police.[44] You have given a sworn undertaking to testify in accordance with that statement if required by the Crown. Some of the details in your police statement go beyond what was set out in the prosecution opening for the joint plea. I am now sentencing you in advance of the final disposition of the case against Williamson.[45]
[44]Signed on 31 January 2017.
[45] Williamson now disputes complicity in the carriage and presentation of the knife and in the physical attack on the deceased.
On the basis of your plea of guilty, admissions and offer of assistance, your counsel submits that you are entitled to a substantially lesser sentence than otherwise. I accept that submission. Your willingness to give evidence on behalf of the Crown will be of very significant value to the Crown in seeking to secure the conviction of your co-offender. Federal and State courts have repeatedly emphasised that offenders who cooperate with prosecuting authorities are entitled to a significant sentencing discount, and that the size of that discount will depend on the nature and seriousness of the crime under consideration and the quality of the assistance.[46]
[46]R v Golding (1980) 24 SASR 161 at 172.
Some cases merit a discount of 50 percent or even two thirds.[47]
[47]R v Johnston (2008) 186 A Crim R 345, [18], [21-2]; R v Perrier (No 2) [1991] 1 VR 717, 726; DPP v AB (2006) 94 SASR 316, [32].
In Cottee v R[48] Weinberg JA said:
It is very much in the public interest that those who commit offences be given every encouragement by the courts to inform upon their co-offenders, and to give evidence against them. If that means that those who are informers receive the benefit of sentences that are significantly lower than they might otherwise merit, that is a price which society must be willing to pay.
[48]Cottee v R [2010] VSCA 285, [25].
In fact there is authority for the position that an offer to assist is worthy of recognition, even if in the end the offer is not effective because a co-offender ultimately pleads guilty.[49]
[49]R v Freeman (2001) 120 A Crim R 398.
The assessment of the value of your offer of assistance includes acknowledging that your admission to being the one who stabbed the deceased lends credibility to your account of what was done inside the premises. Also, much of what you have said about Williamson’s role in planning the aggravated burglary is confirmed by other information available to the Crown. It is also significant that you will experience various restrictions in the service of your sentence by reason of being a Crown witness and you may be at risk of retribution within the prison system due to the prison culture which discourages informers.[50] You are currently housed in protective custody. The burden of being known as an informer will impact on you for the whole of your sentence and you have made this offer in the knowledge that you are facing a lengthy sentence of imprisonment.
[50]R v Rostom [1996] 2 VR 97.
Also, although your offer of assistance was only taken up in a practical sense after the date your plea commenced, you made the offer at a much earlier stage and at that time indicated specific details of the Crown case that could be confirmed by you. Your offer was communicated to the Crown to make use of as they saw fit in their discussions with lawyers for Williamson.
As a consequence, I am bound to impose a sentence that recognises the value of your offer of assistance and the potential hardship flowing to you from your agreement to testify against your co-accused.
In summarising the matters in mitigation your counsel referred to the fact that as well as your offer of assistance there is a benefit to be accorded for your plea of guilty both for the utilitarian benefit and as evidence of actual remorse.[51] The benefit from a plea of guilty includes that it allows earlier closure of the matters for family and friends of the deceased, spares witnesses the ordeal of testifying in a murder trial and provides significant savings in court time and expense.
[51]Phillips v R [2012] VSCA 140, [69].
I accept that you are deeply remorseful and acknowledge the gravity of what you did to the deceased. That you are remorseful is evident from the report of Ms Cidoni.[52] The Court of Appeal has recently said[53] that a favourable finding on remorse is potentially an important sentencing consideration, although the weight to be accorded to it will vary. In this case my positive findings as to your remorse are important to the sentence I am about to impose.
[52]Ms Cidoni said ‘he presented as troubled man, very distressed by his actions that resulted in the death of Kenneth Handford’: Report of Ms Gina Cidoni, 2 December 2016, 1.
[53]Lennon v The Queen [2017] VSCA 85, [28] citing Phillips v R [2012] VSCA 140 [69]-[72] and Barbaro v The Queen (2012) 226 A Crim R 535, 572 [145].
In addition, Mr Gullaci argued that you are still relatively young and stand to spend the remainder of your youth in prison, but that with the support of your mother and partner you have a reasonable chance of reclamation.
It was submitted that your age,[54] ongoing family support, your somewhat limited prior history and your willingness to assist the Crown, your remorse and your commendable behaviour on remand, meant that your prospects for rehabilitation were reasonable. You have undertaken substance abuse and relapse prevention courses on remand, and education and other therapeutic programs as well as producing clean urine samples.[55]
[54]You are presently 29 year of age.
[55]Defence Plea Folder, ss 5, 6.
In the circumstances, based on a global assessment of the risk for re-offending referred to by Ms Cidoni, along with your currently improved attitude and willingness to reform, I accept that your prospects for rehabilitation after a lengthy sentence of imprisonment are reasonable. I do not regard it as necessary to impose a sentence which includes specific deterrence as a component in light of that finding and in light of your assistance to the Crown in this case.
I have considered comparable cases for the crimes of Aggravated burglary and Murder committed in the context of a break in to a private home and the attack on a vulnerable victim. I have also reviewed sentences for murder where that crime was performed in the course of other crimes such as robbery.[56] I have been referred to material from the Sentencing Advisory Council in respect of the crime of murder.[57] I have made reference to the Victorian Sentencing Manual and perused cases involving similar features to this case.[58] In considering the appropriate sentence the objective gravity of the offending in this case is high. Clearly just punishment, general deterrence, denunciation, and community protection must be balanced with your plea of guilty and cooperation with the Crown and your troubled personal history and the need for rehabilitation.
[56]R v Arkan & Andrakakos [2002] VSCA 577; DPP v Pan [2008] VSCA 283; Wu v The Queen [2014] VSCA 79; Giles v The Queen [2014] VSCA 183.
[57]Sentencing Snapshot Sentencing trends in the higher courts of Victoria 2009-10 to 2013-14 for Murder.
[58]Including the Murder Case Collections and the Overview of Murder Sentences in the Court of Appeal.
As was said by Nettle J in Arkan & Andrakakos[59] the courts have a duty to impose sentences appropriate to uphold the sanctity of human life and to deter those who would destroy life by resort to criminal violence.
[59][2002] VSC 577, [60] citing DPP v Heblos [2000] VSCA 229, [33].
However, in this case I am also obliged by law to accord very substantial recognition in your ultimate sentence to your plea of guilty combined with your offer to give evidence in the prosecution of your co-accused.
I am also obliged to give weight to the principle of parsimony in s 5(3) Sentencing Act.[60]
[60]Subject to ss 5(2G) and (2H), a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.
Jonathan Cooper on the charge of Murder, which is the base sentence, I sentence you to 15 years imprisonment.
On the charge of aggravated burglary I sentence you to two years imprisonment and order 12 months to be served cumulatively on the sentence imposed on the charge of murder.
On the charge of theft, I sentence you to six months imprisonment wholly concurrent with the abovementioned sentences.[61]
[61]I note that in fixing the sentences on each charge and orders for concurrency or cumulation, and in determining total effective sentence and non-parole period I have applied the principle of totality. See Postiglione v R (1997) 189 CLR 295; Mill v R (1988) 166 CLR 59.
The total effective sentence is therefore 16 years imprisonment. I fix a non-parole period of 13 years.
Under s 6AAA Sentencing Act I am required to state the sentence I would have imposed but for your plea of guilty. It would be an artificial exercise to allocate a sentence under s 6AAA without also recognising that your offer of assistance is facilitated by your plea of guilty and acceptance of responsibility for your crimes. Those two aspects are inextricably intertwined.
I therefore state under s 6AAA that, but for your plea of guilty and offer to testify for the Crown, I would have imposed a total effective sentence of 27 years with a minimum non parole period of 25 years.
I declare pursuant to s 18(4) of the Sentencing Act, 542 days as time already served excluding today.
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