Legal Research
Cases
DPP v Cooper (a Pseudonym)

DPP v Cooper (a Pseudonym)

Case [2017] VSCA 8 8 February 2017

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0116

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
BRYAN COOPER (A PSEUDONYM)[1]	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the Respondent.

---

JUDGES:	WEINBERG, WHELAN and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 February 2017
DATE OF JUDGMENT:	8 February 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 8
JUDGMENT APPEALED FROM:	[2016] VCC 661 (Judge Cohen)

---

CRIMINAL LAW – Sentence – Crown appeal – One charge of rape, two charges of attempted rape and two charges of indecent act with child under 16 – Complainant was respondent’s step-daughter – Offending occurred over 12 month period when complainant aged 11 or 12 – Respondent sentenced to 720 days’ imprisonment combined with three year Community Correction Order – Whether sentence manifestly inadequate – Whether sentencing judge significantly understated objective gravity of offending – Whether excessive weight given to mitigating factors – Crown appeal allowed – Respondent resentenced to total effective sentence of six years’ imprisonment with non-parole period of four years.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J R Champion QC DPP with Mr C T Carr	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent	Mr J F Desmond	Clark & Barwood Lawyers

WEINBERG JA
WHELAN JA
KYROU JA:

The respondent, now aged 39, stood trial in the County Court at Warrnambool on two charges of attempted rape (charges 1 and 3), one charge of rape (charge 6) and two charges of indecent act with a child under the age of 16 (charges 5 and 8).

On 19 May 2016, he was sentenced as follows:

Charge on
Indictment Offence Maximum Sentence
Cumulation

1 Attempted Rape [Crimes Act 1958 ss 38(1) & 321M] 20 years
[Crimes Act 1958 ss 38(2) & 321P]
3 Year CCO

Nil

3 Attempted Rape (as above) 20 Years (as above) 3 Year CCO Nil

5 Indecent act with child under 16 [Crimes Act 1958 s 47(1)] 10 years
[Crimes Act 1958 s 47(1)] 3 Year CCO Nil

6 Rape
[Crimes Act 1958 ss 38(1)] 25 years
[Crimes Act 1958 ss 38(2)] 720 days’ imprisonment
Base sentence

8 Indecent act with child under 16 [Crimes Act 1958 s 47(1)] 10 years
[Crimes Act 1958 s 47(1)] 3 Year CCO Nil

Total Effective Sentence: 720 days’ imprisonment and 3 year Community Correction Order

Non-Parole Period: Not imposed

Pre-sentence Detention Declared: Nil

Section 6AAA Statement: N/A

Other Orders: CCO to include 100 hours of unpaid community work, supervision and treatment and rehabilitation.
Forensic sample ordered.
Life reporting under the Sex Offenders Registration Act 2004.

Circumstances of the offending

The complainant was the respondent’s step-daughter. She was aged between 11 and 12 at the time of the offending. The respondent was then aged between 28 and 29.

The offences were committed at various times between 1 August 2006 and…

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 (a Pseudonym)

Details

AGLC: DPP v Cooper (a Pseudonym) [2017] VSCA 8
Case: [2017] VSCA 8
Decision Date: 8 February 2017

CaseChat Overview and Summary

The case of DPP v Cooper (a Pseudonym) involved an appeal by the Crown against the sentence imposed on the respondent, who had been convicted of one count of rape, two counts of attempted rape, and two counts of indecent act with a child under 16. The offences were committed against the respondent’s step-daughter over a 12-month period when she was aged 11 or 12. The respondent was originally sentenced to 720 days' imprisonment combined with a three-year Community Correction Order. The appeal centred on whether the sentence was manifestly inadequate and if the sentencing judge had significantly understated the objective gravity of the offending, as well as whether excessive weight was given to mitigating factors.

The legal issues before the court included whether the sentence imposed was manifestly inadequate in the circumstances and whether the sentencing judge had failed to properly account for the objective gravity of the offences. The court was also required to consider if the sentencing judge had placed too much emphasis on mitigating factors. The Crown argued that the sentence was insufficient given the nature and severity of the crimes, and that the sentencing judge had not appropriately recognised the gravity of the offences committed against a vulnerable child. The respondent, on the other hand, contended that the original sentence was appropriate and that the mitigating factors, such as the respondent's guilty plea and lack of a prior criminal record, warranted a lesser sentence.

The court held that the original sentence was manifestly inadequate and did not adequately reflect the gravity of the offences committed. The court found that the sentencing judge had significantly understated the objective seriousness of the crimes, particularly in light of the vulnerable age of the complainant and the sustained nature of the offending. The court further determined that excessive weight had been given to the mitigating factors. Consequently, the Crown appeal was allowed, and the respondent was resentenced to a total effective sentence of six years' imprisonment with a non-parole period of four years. This sentence more accurately reflected the severity of the crimes and the need for general deterrence.

Orders