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DPP v Cooper

DPP v Cooper

Case [2018] VSCA 21 12 February 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0096

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
JONOTHAN COOPER	Respondent

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JUDGES:	WEINBERG, PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 February 2018
DATE OF JUDGMENT:	12 February 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 21
JUDGMENT APPEALED FROM:	[2017] VSC 218 (Justice Jane Dixon)

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CRIMINAL LAW – Crown Appeal – Sentence – Murder, aggravated burglary and theft – Respondent sentenced to a total effective sentence of 16 years’ imprisonment with non-parole period of 13 years – Whether sentence manifestly inadequate – Whether too much weight given to respondent’s assistance to authorities – Appeal allowed – Respondent resentenced to a total effective sentence of 24 years’ imprisonment with a non-parole period of 20 years.

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr B L Sonnet	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent	Mr J Gullaci	Tony Hannebery Lawyers

WEINBERG JA
PRIEST JA
BEACH JA:

Introduction

Kenneth Handford lived alone in a weatherboard house in Springbank. In the early hours of 14 September 2015, the day before his ninetieth birthday, the respondent, Jonothan Cooper, and Adam Williamson, broke into Mr Handford’s home, attacked him in his bedroom and tied him up. Cooper brutally murdered the helpless Mr Handford by stabbing him thirteen times in the back.

Cooper pleaded guilty to Mr Handford’s murder, and to aggravated burglary and theft. Following a plea hearing extending over three days, on 21 April 2017 a judge in the trial division sentenced Cooper to a total effective sentence of 16 years’ imprisonment, upon which she fixed a non-parole period of 13 years.

The Director of Public Prosecutions has appealed against the sentence, relying on six grounds. Grounds 2, 4 and 6 claim respectively that the individual sentences for murder, aggravated burglary and theft are manifestly inadequate, and ground 5 asserts that the orders for cumulation are manifestly inadequate. Although couched in terms suggesting specific error, grounds 1 and 3 in reality are ‘particulars’ relevant to the other grounds. The grounds are:

1.   The judge erred in finding that specific deterrence was not a relevant sentencing purpose in fixing sentence.
2.   The individual sentence imposed on the charge of murder is manifestly inadequate in all the circumstances.
3.   In respect of the offence of aggravated burglary, the judge erred in categorising the offence only as a ‘serious example’.
4.   The individual sentence imposed on the charge of aggravated burglary is manifestly inadequate in all the circumstances.
5.   The order for cumulation is manifestly inadequate in all the circumstances.
6.   The individual sentence imposed on the charge of theft is manifestly inadequate in all the circumstances.

Notwithstanding the fact that there are six separate grounds, we take the Director’s central contention to be that the overall sentence is manifestly inadequate. We agree. For the reasons that follow, we are persuaded that the individual sentences, total effective sentence and non-parole period are each manifestly inadequate, and that this Court’s intervention is warranted.

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 DPP v Cooper

Details

AGLC: DPP v Cooper [2018] VSCA 21
Case: [2018] VSCA 21
Decision Date: 12 February 2018

CaseChat Overview and Summary

In this case, the Director of Public Prosecutions sought an appeal against the sentence of Cooper, who had been convicted of murder, aggravated burglary, and theft. The trial judge had sentenced Cooper to a total effective sentence of 16 years’ imprisonment, with a non-parole period of 13 years. The key legal issue was whether the sentence was manifestly inadequate and whether the trial judge had given too much weight to Cooper’s assistance to the authorities in arriving at the sentence.

The Court of Appeal found that the sentence was manifestly inadequate. It held that the trial judge had placed too much emphasis on the assistance provided by Cooper and had failed to adequately consider the gravity of the offences committed. The Court noted that Cooper had perpetrated a violent crime that resulted in the death of an innocent person and had also committed aggravated burglary and theft. The Court of Appeal considered these factors in light of the need to deter such serious offences and protect the community. The Court also noted that the trial judge had not sufficiently considered the impact of the crimes on the victims and their families.

As a result of the appeal, Cooper was resentenced to a total effective sentence of 24 years’ imprisonment with a non-parole period of 20 years. This reflected the gravity of the crimes committed and the need to adequately deter and protect the community from such serious offences. The Court of Appeal’s decision highlights the importance of considering the full circumstances of a case, including the gravity of the offences and the impact on victims, when determining an appropriate sentence.

Orders