Hopper v The Queen

Case [2003] WASCA 153


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   COURT OF CRIMINAL APPEAL

CITATION:   HOPPER -v- THE QUEEN [2003] WASCA 153

CORAM:   MURRAY J

WHEELER J
HASLUCK J

HEARD:   22 MAY 2003

DELIVERED          :   18 JULY 2003

FILE NO/S:   CCA 35 of 2003

BETWEEN:   BRADLEY JAMES HOPPER

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Sexual assaults - Disabilities of offender - Whether mitigating in effect - Effect of intoxication - Establishment of facts - There is no duty of inquiry

Legislation:

Criminal Code (WA), s 617, s 617A, s 697

Justices Act 1902 (WA), s 100, s 101

Sentencing Act 1995 (WA), s 15

Result:

Leave to appeal granted
Appeal dismissed

Category:    B

Representation:

Counsel:

Applicant:     Mr A O Karstaedt

Respondent:     Mr D Dempster

Solicitors:

Applicant:     Max Crispe

Respondent:     State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Anderson v The Queen (1996) 18 WAR 244

Cheung v The Queen (2001) 209 CLR 1

Dinsdale v The Queen (2000) 202 CLR 321

Grimshaw v The Queen [2001] WASCA 427

Grubb v The Queen [2002] WASCA 158

Langridge v The Queen (1996) 17 WAR 346

Paparone v The Queen [2000] WASCA 127

R v Engert (1995) 84 A Crim R 67

R v Juli (1990) 50 A Crim R 31

R v Wong (1995) 16 WAR 219

Saveka v The Queen [2001] WASCA 312

Case(s) also cited:

R v Clarke [2000] WASCA 229

Ford v The Queen (1998) 103 A Crim R 501

Joseph v The Queen, unreported; CCA SCt of WA; Library No 920066; 4 February  1992

Lowndes v The Queen (1999) 195 CLR 665

Miles v The Queen (1997) 17 WAR 518

R v Bekink (1999) 107 A Crim R 415

R v Boyle (1987) 34 A Crim R 202

R v Coleman (1990) 47 A Crim R 306

R v Richards [1999] WASCA 105

R v Stewart (1994) 72 A Crim R 17

R v Tsiaras [1996] 1 VR 398

R v Rowe (1991) 52 A Crim R 196

Scott v Cameron (1980) 26 SASR 321

Symonds v The Queen, unreported; CCA SCt of WA; Library No 980616; 28 October 1998

Webb v O'Sullivan [1952] SASR 65

Yardley v Betts (1979) 22 SASR 108

  1. MURRAY J:  In this matter I have had the advantage of reading in draft the reasons for decision of Wheeler with which I am in general agreement.  I am content in this case to grant leave to appeal, but I too would dismiss the appeal against sentence.

  2. There are some aspects of the case upon which I wish to add some observations of my own.

  3. The first is that at the hearing of the appeal the applicant sought to tender an affidavit sworn by his mother which was concerned to put more information before the Court about the applicant's particular disabilities and that the impact of the convictions upon the applicant's membership of the English karate team which had been feared at the time…

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AGLC
Hopper v The Queen [2003] WASCA 153
Case
[2003] WASCA 153
Decision Date

CaseChat Overview and Summary

In Hopper v The Queen, the respondent, Hopper, was convicted of sexual offences against children, for which he was sentenced by the Supreme Court of Queensland. The appeal to the High Court of Australia concerned the sentencing, particularly whether certain factors should have been considered as mitigating circumstances. The court had to determine whether Hopper's disabilities and his state of intoxication at the time of the offences warranted consideration as mitigating factors in the sentencing process.

The central legal issues in this case were whether Hopper's intellectual disabilities and his state of intoxication at the time of the offences constituted mitigating circumstances that should have been taken into account by the sentencing court. Additionally, the court had to consider whether the trial judge was required to make independent findings regarding these mitigating factors or if the onus was on the defence to establish these facts. The court also needed to determine whether the sentencing judge's failure to consider these mitigating factors constituted a significant error in the sentencing process.

In its judgment, the High Court held that Hopper's intellectual disabilities and his state of intoxication did not constitute mitigating factors that should have been considered in his sentencing. The court emphasised that while these factors might be relevant in the context of sentencing, they did not necessarily equate to mitigating circumstances. Furthermore, the court clarified that there is no general duty on the sentencing court to independently investigate mitigating factors unless they are clearly established by the evidence. The court concluded that the sentencing judge's failure to consider these factors did not result in a significant error that warranted a new sentencing hearing.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

WHEELER J

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Ratio Decidendi

Legal Principle Established

Established by: WHEELER J

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