DPP v Cooper
[2018] VSCA 21
•12 February 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0096
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| JONOTHAN COOPER | Respondent |
---
| 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) |
---
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.
---
| 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.
The Director’s appeal must be allowed and the sentence imposed by the primary judge set aside. We will make orders the effect of which will be to sentence Cooper to be imprisoned for 24 years, and we will fix a non-parole period of 20 years.
Factual background
Kenneth Handford was born in Ballarat on 15 September 1925. He served with the Royal Australian Air Force during the Second World War, and was awarded a number of service medals. Upon his retirement in 1980, at age 55, Mr Handford worked as a potato farm-hand. He moved to Springbank in 1996, and was employed as a potato harvester by the Maher family, who operated potato farms in the area. The Maher family — who regarded Mr Handford as a surrogate grandfather — allowed him to live in a house on their property. Mr Handford had lived alone since the death of his wife some six years before his own death.
Cooper was born on 29 August 1987. When he murdered Mr Handford he was aged 28 years. He resided in Wendouree with his partner, Tracy Shepherd. Cooper was an intravenous user of ‘ice’ (methamphetamine). He associated with Adam Williamson on an almost daily basis.
Adam Williamson was 38 years of age and resided in Ballarat East. Williamson disliked Mr Handford. He had been employed by the Maher family as a potato harvester and worked alongside Mr Handford in 2014. Williamson left the employment of the Mahers after he was suspected of stealing money from Mr Handford’s wallet. He, too, used ice.
On Sunday, 13 September 2015, whilst at Williamson’s residence, Cooper and Williamson planned the aggravated burglary of Mr Handford’s home. Williamson was overheard telling Cooper that he once worked with an old man on a farm, and he believed that the old man had about $20,000 in cash at his premises.
At about 12.47 am, on Monday, 14 September 2015, Cooper and Williamson went to Mr Handford’s house in Springbank, intending to steal. Cooper was armed with a double-edged knife.
Upon entering the house through the rear door, the pair encountered Mr Handford and attacked him in his bedroom. They tied his hands behind his back with dressing gown cord, and bound his ankles together with a yellow nylon cord, which was then anchored to a bed leg. Mr Handford was helpless and powerless to break free.
Whilst Mr Handford was trussed up and defenceless, Cooper callously stabbed him thirteen times in the back.
Cooper, who had been sexually abused as a child, told police that before they decided to do a ‘run through’ of Mr Handford’s home, Williamson had informed him that Mr Handford was a paedophile. That was untrue. In a statement he made to police on 31 January 2017, for the purposes of providing evidence against Williamson, Cooper described the circumstances of the murder as follows:
Adam walked into Ken’s room first and I followed him in. …
As Adam was searching I was looking around the room. Adam made a large noise and woke Ken up. As Ken sat up in his bed, I shined the torch in his face to that he could not see my face. I then swung the torch and hit Ken to the left hand side of his face.
As I struck Ken with the torch he rolled over in his bed face down. I dropped the torch and grabbed his hands and locked them down behind his back.
I remember hearing Ken yelling out, ‘What’s going on? What’s going on?’ and ‘Why are you here?’ It was at this point I started yelling words to the effect of, ‘You are a fucking paedophile, you are a fucking putrid cunt, where is the money and the guns?’ I don’t know why I said where are the guns as Adam never told me that Ken had guns. We were struggling around on the bed, he was fairly strange [scil., strong] and I had trouble holding onto him.
I started to yell out that ‘I am a product of your kind, you cunts made me the way I am and now the devil has come to get you’. I was that angry it felt as though the devil was in my head.
I lost grip of Ken’s arm and grabbed it again, Ken was yelling out ‘Leave me alone, leave me alone, I am a good man. I have not done anything like that’. It was at this point that Adam has come around and gagged him. I don’t know what Adam used but I remember seeing him force an object into Ken’s mount [scil., mouth] and his voice became muffled.
I then observed Adam strip a pillow case off a pillow and he put it over Ken’s head.
I was still going off and yelling at Ken about being a paedophile and this is when Adam left the room and returned moments later with something in his hand and started to tie him up. Adam tied Ken’s feet first and it was at this point that I lost control of Ken’s right arm. He threw his arm forward and tried to grab something, to me it was as if he was reaching over for a gun. I picked up my torch which was on the ground and still switched on. Even though the torch was on its lowers [scil., lowest] setting there was still enough light in the room to see Ken reach over to grab something. There was light in the room to actually see the opposite wall but not behind me.
I grabbed the torch and struck his hand, which forced Ken to retract his hand however he then ripped the pillow case off his head. I leaned forward and grabbed what Ken was reaching for, which was his wallet. Once I recognised what it was I threw it off to the side.
Adam has then leaned in and grabbed Ken’s free hand and forced it behind his back whilst I grabbed a pillow and covered his head so that he could not see us. I used my forearm to hold Ken’s face sideways whilst covering his head with the pillows.
Whatever Adam had used to gag Ken’s mount must have come out when he pulled the pillow cover off his head because at this point I could hear Ken yelling out, ‘please stop, leave me alone, I haven’t done these things…’
I noticed that Ken stopped struggling with his arms and legs so I stood up and changed hands and noticed that he was tied up fairly well by his hands and legs. At this time my torch was on the ground again and still switched on. I noticed that Adam was back over near the draws [sic.] again and going through them. This is when I noticed that he rolled the balaclava up that he was wearing up into a beanie exposing his face.
I was struggling to hold Ken’s face down to the side and he rolled over on his left side and was now facing Adam. The pillow at this point was on Ken’s right side of his head but not covering his face and he looking over at Adam.
It was at this point I pulled my knife out of my back pocket to try and stop Ken from moving around and quieten him up as he was yelling out, ‘please stop. Please stop, I’m a good man…’.
I put the knife to the side of Ken’s body and it was at this time Ken has recognised Adam. I remember hearing Ken yell out ‘Adam. Adam, please stop you are killing me. I did not do this. I am a good man’. It was at this point that I looked over at Adam and could see that Adam with his face exposed was looking down and staring at Ken’s face. Adam was about an arm’s length away from Ken and I could see a shocked look on Adam’s face. There was enough light in the room from both torches that even I could clearly see Adam’s face and his expression of shock that he had been recognised.
Even I was shocked at this point knowing that Ken had recognised Adam. At this point I had my left hand on the side of Ken’s face and my right hand was holding my knife which was pointed into Ken’s side. I was side on looking up at Adam.
Adam was looking back at me and from where he was I would say that he must have seen the knife in my hand, as I was holding it out in the front of me and it was to Ken’s side.
The knife at this point was not stabbed into Ken, the pointy end was just touching him so that Ken knew it was there. Like I explained earlier, the knife had a blade of about 15 cm and it was silver in colour. Most of the glade [sic.] would have been exposed and Adam was standing on a 45 degree angle forward of my right hand.
Adam looked down at me with a look of shock on his face. I looked at Adam and our eyes met. Adam gave me a shrug of his shoulders and a nod and thought that to be an acknowledgement to stab him.
It was at this point I stabbed Ken, however I do not remember how many times I stabbed him. It’s not like I lost count it was just a stabbing action to the side of his body. I knew what I was doing but the comprehension of it had not sunken in as yet.
I remember standing up and taking a step back and looking down at Ken. This is when I realised what I did and remember thinking to myself, ‘what the fuck have I done’? Adam was still standing off to the side, he was looking at what had happened. …
Cooper and Williamson then searched the house, stealing wallets, cash, a gold chain and World War Two medals.
Mr Handford was left seriously injured on the floor of his bedroom, lying on his back bound by his hands and ankles. It took some four hours and 38 minutes for him to die from the injuries inflicted by Cooper.[1] His body was found on his birthday, by Anita Maher. She had gone to check on Mr Handford when birthday phone calls to him had gone unanswered.
[1]Given the presence of a pacemaker which monitored Mr Handford’s heart rate, the time that it took him to die was capable of being determined with some precision.
Post-mortem examination revealed that Mr Handford had sustained 23 injuries, consisting of bruising, skin abrasions and the thirteen stab wounds to the back. The stab injures, which caused Mr Handford’s death, extended slightly downward in orientation. Mr Handford’s left lung and right kidney had been pierced.
When Cooper and Williamson returned to Williamson’s residence, Williamson’s partner saw Cooper drop his ‘hoodie’, which contained a collection of jewellery, war medals, a metallic submarine pendant with engraving on one side that was made from part of a Japanese submarine sunk in Sydney Harbour and several leather wallets. Cooper counted out the money from the wallets, totalling $3,900. Williamson and Cooper said that they entered the victim’s house through the back door and went straight into his bedroom where they tied him up and that he was underneath a mattress. Cooper said that he stabbed the victim, who went stiff and ‘shit himself’.
Sometime following the murder, Cooper confessed to an associate on several occasions that he and Williamson killed someone and ‘it was all over the news’. Cooper said that Williamson knew the victim prior to the killing. He said the victim recognised Williamson and the situation ‘got out of hand’. Cooper said that during the attack the victim said, ‘You are killing me Adam’. He went on to explain that they ‘hog tied’ the victim and that there was a lot of ‘claret’ (blood). Cooper said that he and Williamson ‘terrorised’ the victim. He told his associate that they had stolen some war medals during the attack and that there was not much left for the police to collect as evidence since they had burnt their clothing. Cooper explained that he and Williamson had disposed of everything that they had stolen except for the war medals.
On 27 October 2015, both Cooper and Williamson were arrested and charged.
The plea hearing
Counsel for Cooper acknowledged on the plea before the sentencing judge that his client had pleaded guilty to an exceptionally serious crime, and he was not going to put anything to minimise that fact. The offending, counsel conceded, was ‘despicable and cowardly’. Mr Handford, was a ‘hardworking 90-year-old man’ who was ‘a veteran of the armed forces’. He deserved ‘respect and courtesy’ but ‘he got none of it’.
It was submitted that a head sentence and non-parole period were appropriate. Three arguments were advanced to support that submission: first, the plea of guilty; secondly, Cooper’s offer of assistance; and thirdly, his remorse, demonstrated through his plea and assistance. Counsel conceded that the three charges faced contained different forms of criminality and therefore a measure of cumulation was appropriate.
With respect to the offending, counsel submitted that, once inside Mr Handford’s home, his war medals were taken ‘opportunistically’, the plan initially being to steal $20,000. The aggravated burglary was Williamson’s idea, although it was conceded that Cooper was a ‘very willing participant’.
Williamson had told Cooper that Mr Handford was a paedophile. This was not true, but it was something that Williamson led Cooper to believe. Counsel for the applicant submitted that it was the ‘mistaken belief’ held by Cooper and Williamson that Mr Handford was a paedophile that ultimately led Cooper to stab him. Cooper, it was submitted, as a child was the regular victim of penetrative rapes and other sexual assaults. He was in a fit of rage at the time of the stabbing. It had not been his intention upon entry to assault Mr Handford, the murder being a ‘spontaneous outburst’. The murder was, however, at the ‘higher end’ for this sort of offence.
Counsel told the judge that Cooper was an intravenous ice user. He had not slept for about two or three days before the offending. His prior conviction in 2010 for aggravated burglary was also related to ice use. Drug addiction had been a problem for the respondent since his teen years and it was his ‘dysfunctional childhood’ and lack of supports at a young age which had initially led him to use drugs. He started using cannabis at age 11, amphetamine (‘speed’) and ecstasy at age 16, and ‘ice’ from age 18.
A central plank of counsel’s plea was Cooper’s offer to cooperate with authorities and give assistance in relation to Williamson, including potentially giving evidence against Williamson at trial. This was of real significance. Initially, the prosecution did not know who directly committed the assaults and murder. Cooper’s offer to assist against Williamson clarified the fact that it was Cooper who stabbed Mr Handford. It was Cooper’s willingness to assist and give evidence against Williamson that caused Williamson to resolve the proceedings against him. Counsel submitted that Cooper should therefore be afforded a discount for his assistance.
Cooper, counsel submitted, presented with a ‘limited history’, in the sense that he did not have a large number of prior convictions, and few for physical violence. He presented with no ‘adult’ prior convictions for assault, although he did have a prior finding of guilt in the Children’s Court for recklessly causing injury. His prior convictions as an adult included thefts, burglaries, attempts at obtaining property by deception and driving offences. Of some relevance, he had a prior conviction for aggravated burglary. The circumstances of that offence shared some similar features with those of the current offending, in that it involved the respondent entering a property in the early hours (3.00 am), in possession of a knife.
Counsel told the judge that Cooper was born in Morwell, and was initially raised by both parents together with two older siblings. His parents separated when he was six years old. Cooper and his siblings remained with his mother, the reason for the separation being his father’s violence. After fleeing Morwell with his mother and siblings, Cooper had no contact with his father. More recently, he had acted as father to his partner’s four year old son. He maintained employment over a long period of time, interrupted at times by terms of imprisonment. His employment included painting, engine mechanics, wood cutting and upholstery, plastering, courier driving, being a wall and frame specialist, and mechanical labouring. He had two children who ultimately went into state care.
Cooper remains in protection in prison, visited by his mother and partner each fortnight. Being in protection makes his imprisonment more onerous. He has, however, completed some courses in prison and urine drug screens have been negative for drugs.
Counsel relied upon a report by Ms Gina Cidoni, Clinical Psychologist, dated 2 December 2016. According to Ms Cidoni, Cooper was a ‘troubled man’ and ‘very distressed by his actions that resulted in the death of Kenneth William Handford at age 89’. Cooper presented as a person with clear long-standing issues with anger that seem to be linked to his inability to deal with sexual abuse. His IQ is 86, which places him in the lower average range of people of comparative age. Ms Cidoni was of the opinion that Cooper presented with ‘high psychopathology with signs of disorganisation and indications of acute psychotic stress’, which was common with paranoid schizophrenics (although that diagnosis was not made). Counsel conceded as correct Ms Cidoni’s opinion that Cooper presented a ‘high risk of violent offending’. Although elements of the report could be viewed as raising Verdins[2] issues, no Verdins principles were sought to be relied upon on the plea.
[2]R v Verdins (2007) 16 VR 269.
On 15 February 2017, Cooper gave evidence on the plea. His statement to police, dated 31 January 2017, was tendered. He gave evidence that its contents were true and correct. Cooper gave an undertaking to give evidence against Williamson in accordance with the statement if and when called upon by the prosecution. Counsel submitted that Cooper’s assistance should be considered as middle to high level. It was further relevant to ‘remorse, willingness to facilitate the course of justice and also prospects for rehabilitation’.
The prosecutor conceded that the statement of 31 January 2017 was of significance. Cooper’s assistance, however, needed to be balanced against the gravity of the offending. This should be classified as a ‘high-end murder’. The victim was 89, attacked alone in his home, assaulted, tied up, terrorised, stabbed multiple times and left to die.
The judge’s sentencing remarks
In her sentencing remarks, the judge referred to Cooper’s belief that Mr Handford was a paedophile, stating that Mr Handford was not a paedophile, but a ‘decent law abiding elderly man’, and was a war veteran who had received multiple awards for his service with the RAAF in World War Two.
The judge noted the circumstances of the murder as described by Cooper in his statement dated 31 January 2017. Her Honour noted that at that stage Williamson’s case had not resolved and the specifics of his involvement had not been determined. She accepted, however, that Cooper’s involvement in the aggravated burglary was encouraged by the lies told by Williamson, and that those lies prompted the respondent to stab Mr Handford, although that did not provide an excuse for Cooper’s offending. Whether Williamson gave a nod of encouragement was not determined, but her Honour said that even were that accepted as the truth, it would have provided no mitigation.
It was accepted that Cooper’s ice use had been escalating prior to the offending and adversely affected Cooper’s behaviour in the lead up to his crimes. Her Honour noted Cooper’s general background and personal circumstances, including his childhood sexual abuse, and took note of the report of Ms Gina Cidoni, psychologist, as to Cooper’s psychological state. Ms Cidoni said Cooper suffered intermittent anger as a result of sexual abuse he endured and she noted that although he had some counselling in the past, it was not effective. She noted that Cooper had previously exhibited suicidal ideation and had expressed self-harming ideation since the offending. Ms Cidoni opined that Cooper will need intensive therapy to avoid further offending when he is released from prison.
Cooper, her Honour noted, had significant prior convictions. (He has one prior conviction for aggravated burglary, eight for burglary and eleven for theft, together with convictions for drug, driving and bail offences.)
The judge said that the present was a serious example of aggravated burglary, and a ‘grave’ example of murder, which in the circumstances was especially ‘reprehensible’. Since there were two offenders, and the offending was carried out late at night, upon a solitary elderly man whilst asleep, this case was objectively more serious. The cruel treatment of Mr Handford, and how he was left to die, needed to be ‘strongly denounced’.
From the victim impact statements it was evident, the judge noted, that Mr Handford was held in high regard, and the Maher family and the community were left bewildered by his taking, now feeling unsafe in their own homes.
Her Honour took into account Cooper’s guilty plea and assistance provided to the Crown through the offer to give evidence against Williamson. Cooper’s written statement demonstrated an acceptance of responsibility for his offending. The judge noted that, when Williamson sought to change his plea to not guilty, Cooper provided a statement and further undertaking to the Court to give evidence against Williamson (who was yet to be finally dealt with).[3] Due to the combination of Cooper’s plea of guilty and offer to assist the Crown, a substantially lesser sentence should be imposed. In some cases, the judge noted, such assistance can warrant a fifty per cent ‘discount’. As a result of his assistance, Cooper will have to be housed in protective custody. In light of these factors, the judge said that the Court was ‘bound’ to impose a sentence that recognised the value of the assistance and the flow-on impact and hardship that would follow.
[3]On 10 October 2017, Williamson pleaded guilty to murder pursuant to s 3A of the Crimes Act 1958 — that is, unintentional killing in the course or furtherance of a crime of violence — and to aggravated burglary and theft. He is yet to be sentenced.
Cooper’s plea of guilty and assistance were also taken to be evidence of his genuine remorse. Her Honour accepted that Cooper was ‘deeply remorseful’ and acknowledged the gravity of what he did. Cooper had family support and had made efforts in custody towards drug rehabilitation. The judge accepted that after a lengthy term of imprisonment, Cooper’s prospects for rehabilitation were reasonable. Principles of just punishment, general deterrence, denunciation and community protection, had to be balanced with the mitigatory factors, and weight needed to be given to the principle of parsimony. And the judge specifically stated that she did ‘not regard it as necessary to impose a sentence which includes specific deterrence as a component’ in light Cooper’s prospects of rehabilitation and his assistance to the Crown.
Ultimately, the judge imposed a total effective sentence of 16 years’ imprisonment, with a non-parole period of 13 years, according to the following table:
Charge Offence Sentence Cumulation 1 Murder[4] 15 years Base 2 Aggravated burglary[5] 2 years 1 year 3 Theft[6] 6 months Nil Total effective sentence 16 years’ imprisonment Non-parole period 13 years 6AAA declaration 27 years’ imprisonment with a non-parole period of 25 years Other orders Pre-sentence detention and forfeiture [4]Murder is a crime at common law. By virtue of s 3 of the Crimes Act 1958, the maximum sentence is life imprisonment.
[5]Crimes Act 1958, s 77(1). The maximum sentence is 25 years’ imprisonment.
[6]Crimes Act 1958, s 74(1). The maximum sentence is 10 years’ imprisonment.
Discussion
As we have said, 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.
Although manifest inadequacy is a conclusion that does not depend on the attribution of specific error,[7] and it is thus generally unproductive to endeavour to identify or to isolate a factor (or factors) which might have led a sentencing court to impose an inadequate sentence, we think that the manifest inadequacy in the present case probably is explained by the primary judge having given too much weight to Cooper’s assistance to authorities. True it is that the sentencing judge did not quantify the ‘discount’ on sentence that she gave based on Cooper’s assistance, but she did observe — without stating where the present case was to be placed in the spectrum — that some cases ‘merit a discount of 50 percent or even two thirds’.[8]
[7]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J). See also [49] below.
[8]Pursuant to s 5(2AB) of the Sentencing Act 1991, if a court ‘imposes a less severe sentence than it would otherwise have imposed because of an undertaking given by the offender to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence, the court must announce that it is doing so and cause to be noted in the records of the court the fact that the undertaking was given and its details’. By virtue of s 5(2AC), however, the court is not required ‘to state the sentence that it would have imposed but for the undertaking that was given’.
The present is not, however, a ‘true informer’ case, where a discount anywhere near the order of fifty per cent — let alone two thirds — could have been considered appropriate. As Weinberg JA observed in Cottee:[9]
The extent of any sentencing discount given to an informer will, of course, vary from case to case.[10] Discounts of up to two thirds have been given for the highest level of cooperation,[11] the so-called ‘true informers’.[12] Recently, this Court regarded a discount of 50 per cent as being appropriate for an applicant who had pleaded guilty to murder, kidnapping and trafficking in large commercial quantities of drugs in circumstances where that offender made a statement implicating his co-offenders, and undertook to give evidence against them.[13]
[9]Cottee v The Queen [2010] VSCA 285, [23].
[10]In R v Perrier (No 2) [1991] 1 VR 717, McGarvie J, with whom Murphy J agreed, posited that a discount of the order of two thirds would be appropriate for a drug courier who cooperated fully with the police, informed upon his principal and offered to give evidence against him. Brooking J dissented, expressing the view that such a discount would be excessive.
[11]See, for example, R v Nagy [1992] 1 VR 637.
[12]Judicial College of Victoria, Victorian Sentencing Manual (2010) [11.4].
[13]See R v Johnston (2008) 186 A Crim R 345 (‘Johnston’).
Johnston[14] was a case in which the Crown conceded that the applicant’s cooperation was such that he was ‘entitled to the maximum discount on sentence which proper sentencing practice is able to afford him’. Nettle JA (with whom Buchanan and Ashley JJA agreed) said:[15]
… Although, recognising that the quantification of informer discount involves a degree of arbitrariness which adherents to the shibboleth of intuitive synthesis may prefer to avoid, in the circumstances of this case I would set the discount at 50%.
So to say is not to suggest that the level of discount could not be less or more in another case involving drug-related offences. Each case is unique.[16] Nor is it to say that it is necessarily the only figure to which one could properly come in the circumstances of this case. It goes without saying that, within a given range of acceptability, views may reasonably differ. But, in my view, less than 50% would be an inadequate recognition of the quality of the information which the applicant has provided to authorities in this case, and the risks to which he has subjected himself by agreeing to do so; and more would tend to undermine public confidence in the sentencing process in relation to serious offences which arise out of organised drug trafficking activities on the scale here involved. I am strengthened in that conclusion by the analysis undertaken by Wells J in R v Golding.[17]
[14]R v Johnston (2008) 186 A Crim R 345.
[15]Ibid 350–1 [20]–[21].
[16]R v Schioparlan (1991) 54 A Crim R 294 at 299, 305 (Young CJ, Marks and Brooking JJ).
[17]R v Golding (1980) 24 SASR 161 at 173-174; 3 A Crim R 26 at 37–38.
A discount of fifty per cent on sentence was thought to be justified in Johnston because of the very high level of assistance provided to authorities. It should not be thought, however, that there is a ‘tariff’ or standard discount, or that the assessment of the discount that should be given can generally be approached in a mechanical or mathematical way.[18] The amelioration of sentence to be afforded for cooperation in every case must be determined according to a range of factors, including — but not limited to — the nature and extent of the cooperation; any willingness to give evidence against co-offenders; and any danger flowing from the cooperation. As was said in Freeman, however:[19]
… it is the genuine co-operation of the person furnishing the assistance which is important, whether or not the information turns out in fact to have been effective. The information must be such as could significantly assist the authorities. Any such discount should not be lost, for example, by reason of the offender not having to give evidence because the person the subject of the information pleads guilty.
[18]R v Kohunui [2009] VSCA 31, [25], citing Vincent AJA in R v Cuthbertson (Unreported, Court of Appeal Victoria, 13 November 1995).
[19]R v Freeman (2001) 120 A Crim R 398, 405 [37] (Coldrey AJA, with whom Brooking and Tadgell JJA agreed), citing R v Su [1997] 1 VR 1, 78–9. See also Scerri v The Queen (2010) 206 A Crim R 1, 9 [35] (Maxwell P and Buchanan JA); R v Cartwright (1989) 17 NSWLR 243, 252–3 (Hunt and Badgery-Parker JJ; Mahoney JA agreeing).
As we have said, a ‘discount’ in the order of fifty per cent could not be considered warranted in the circumstances of this case. In an attractive argument, counsel for Cooper in this Court submitted that, although the prosecutor conceded that the statement of 31 January 2017 was ‘of significance’, Cooper’s cooperation should be characterised as being ‘mid to high level’. The real benefit of Cooper’s cooperation is that he identified who had inflicted the stab wounds to Mr Handford and assisted in the resolution of the case against Williamson. Counsel pointed out that, after he had been sentenced, on 7 September 2017 Cooper gave evidence against Williamson in a Basha hearing,[20] following which Williamson pleaded guilty to murder, aggravated burglary and theft.[21] The fact remains, however, that the murder perpetrated by Cooper was an extremely serious example of a very serious offence. In so far as such classifications have any utility, the present murder is at the high end of the spectrum of seriousness for the offence. The elderly victim was attacked whilst alone in his home, assaulted, trussed-up, terrorised, stabbed multiple times and left to slowly die. Given the viciousness and cruelty of the murder, the sentence of 15 years’ imprisonment is, in our view, so disproportionate to the seriousness of the crime as to demonstrate error in principle.
[20]R v Basha (1989) 39 A Crim R 337.
[21]See footnote 3 above.
Moreover, the sentence of two years’ imprisonment for aggravated burglary is little short of derisory. In October 2010, Cooper had been sentenced in the County Court to a total effective sentence of two years’ imprisonment, with a non-parole period of 5 months, for aggravated burglary and theft. That offending involved Cooper entering the home of a person against whom he held a grievance, at night, whilst armed with a knife (albeit nobody was hurt on that occasion).[22] The present case once more involved Cooper entering premises at night whilst armed with a knife — although, unlike the previous aggravated burglary, his intention was to steal — knowing that the premises were occupied by an elderly man. In those circumstances, not only was general deterrence important to sentence, but specific deterrence should also have featured prominently in the exercise of the sentencing discretion. The sentence of two years’ imprisonment first imposed paid insufficient heed to deterrence, both general and specific, and failed adequately to reflect the need for denunciation and the need to punish Cooper for his crime. That sentence can only be explained on the basis that the sentencing judge either devalued the gravity of the offending, or gave too much weight to mitigating factors. In so concluding, we note that counsel for Cooper in this Court, in a disarmingly realistic submission, conceded that he would be hard-pressed to defend the sentence imposed on the aggravated burglary (although he contended strongly that the sentence for aggravated burglary should not lead to the view that the total effective sentence was manifestly inadequate).
[22]Cooper had also previously been sentenced in 2011 to one year and eight months’ imprisonment in the Magistrates’ Court for a number of offences, including burglary and theft.
We are also of the view that the sentence of six months’ imprisonment for theft is manifestly inadequate. The theft of Mr Handford’s money and personal possessions was motivated by greed, not need. Much of what was stolen would have been of inestimable sentimental value, even if judged in purely monetary terms the value of the goods was not great. Furthermore, not only was the theft greedy and mean, but Cooper has a number of prior convictions for theft. The sentence imposed does not reflect the need to specifically deter Cooper from the commission of offences of dishonesty.
In concluding that intervention is necessary, we have reminded ourselves of the relevant principles. They were summarised in Daing:[23]
Manifest inadequacy is a conclusion that does not depend on the attribution of specific error.[24] The ground of manifest inadequacy is a stringent one, difficult to make good.[25] A sentence is, or is not, unreasonable or plainly unjust; and inadequacy is, or is not, plainly apparent.[26] Sentencing is a consummate example of the exercise of discretionary judgment. There is no single correct sentence for a particular offence or particular offender.[27] Thus, this Court may only intervene at the suit of the Director if satisfied that the sentencing judge’s discretion miscarried because the sentence imposed was below the range of sentences that could, consistently with proper sentencing standards, justly be imposed for the particular offending.[28] Intervention is not warranted simply because the individual members of this Court would, if sentencing at first instance, have imposed a different sentence. In the circumstances, it is only if it is ‘plainly apparent’ that the sentence imposed on the respondent is inadequate, as being ‘manifestly … too short’, that this Court may intervene.[29] Put another way, manifest inadequacy will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge.[30]
[23]DPP v Daing [2016] VSCA 58, [42] (Priest JA; with whom Maxwell P and Weinberg JA agreed).
[24]Dinsdale v R (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J) (‘Dinsdale’).
[25]DPP v Karazisis (2010) 31 VR 634, 662–3 [127] (Ashley, Redlich and Weinberg JJA) (‘Karazisis’).
[26]Dinsdale, 325–6 [6].
[27]Bugmy v The Queen (2013) 249 CLR 571, 588–9 [24] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) (‘Bugmy’).
[28]Ibid. See also Munda v WA (2013) 249 CLR 600, 613 [34] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ).
[29]Dinsdale, 325–6 [6].
[30]Karazisis, 662–3.
The individual sentences imposed for Mr Handford’s murder, and for the aggravated burglary and theft, were wholly outside the range of sentencing options available to the sentencing judge in the proper exercise of the sentencing discretion. They cannot be permitted to stand.
On the charge of murder, we would impose a sentence of 22 years’ imprisonment. We make it clear that, had Cooper not pleaded guilty and provided assistance, the circumstances of this murder would have warranted imprisonment for life.
With respect to the aggravated burglary, we would impose a sentence of eight years’ imprisonment, giving due recognition to the plea of guilty and assistance to the prosecution. Were it not for those mitigating features, a significantly more severe sentence would have been warranted. The present was a very serious example of the offence. To enter the home of a frail and elderly person at night, armed with a dangerous weapon, and intent on stealing from that frail and elderly person, puts this particular offence towards the upper end of the scale of seriousness for the offence. Further, the existence of a prior conviction for aggravated burglary when armed with a knife, emphasises an increased need for specific deterrence to be reflected in any sentence imposed.
On the charge of theft, we would impose a sentence of two years’ imprisonment. Cooper’s prior convictions for dishonesty make it plain that, quite apart from other sentencing considerations, there is a need for a strong measure of specific deterrence in any sentence imposed on that charge.
The murder was committed in the course of the aggravated burglary, so that a considerable measure of concurrency is justified between the sentences imposed on those charges. We would order that two years of the sentence on the charge of aggravated burglary be served cumulatively with the sentence on the charge of murder. Given that the theft largely was part and parcel of the aggravated burglary, we consider it to be appropriate that there be complete concurrency of the sentence on the charge of theft with the other sentences.
In light of the above, we would make orders allowing the appeal, setting aside the sentences first imposed, and substituting the sentences discussed. All other orders of the sentencing judge will be confirmed, and we will make an appropriate declaration of pre-sentence detention.
Finally, we are required to make a declaration under s 6AAA of the Sentencing Act 1991. As has been observed on other occasions, s 6AAA requires the Court to indulge in a somewhat artificial exercise, particularly given that any sentence finally arrived at synthesises considerations other than simply the bare plea of guilty.[31] In an endeavour to be faithful to the dictates of s 6AAA, however, we declare that, but for the pleas of guilty, we would have sentenced the respondent to be imprisoned for life, and would have fixed a non-parole period of 30 years.
[31]We endorse the views expressed by Kaye J in R v Flaherty (No 2) (2008) 19 VR 305. See also SD v The Queen (2013) 39 VR 487, 501–2 [63] (Ashley, Redlich and Priest JJA); Youil v The Queen [2013] VSCA 228, [36] (Priest JA); cf [40] (Neave JA).
Our overall intention with respect to the sentences we intend to impose is reflected in the following table:
Charge Offence Sentence Cumulation 1 Murder 22 years Base 2 Aggravated burglary 8 years 2 years 3 Theft 2 years Nil Total effective sentence 24 years’ imprisonment Non-parole period 20 years 6AAA declaration Life imprisonment with a non-parole period of 30 years
----
28
8
0