R v Cooper

Case [2012] ACTCA 9


R v MICHAEL COOPER
[2012] ACTCA 9 (21 December 2012)

APPEAL – Crown appeal against sentence – manifest inadequacy – general principles

CRIMINAL LAW – Sentencing – child pornography offences – objective seriousness – general deterrence as ‘paramount consideration’

CRIMINAL LAW – Sentencing – child pornography offences – good character – weighting depends on circumstances of offending

Crimes Act 1900 (ACT), s 65
Commonwealth Criminal Code 1995 (Cth), s 474.19

R v Oliver and Ors [2003] 2 Cr App R (S) 15
R v TW (2011) 6 ACTLR 18
R v Jurisic (1998) 45 NSWLR 209
R v Moon (2000) 117 A Crim R 497
R v Mas Rivadavia (2004) 61 NSWLR 63
Kardoulias and Andres v R (2005) 159 A Crim R 252
R v Wall [2002] NSWCCA 42
R v Eisenach [2011] ACTCA 2
Veen v The Queen (1979) 143 CLR 458
Veen v The Queen (No 2) (1988) 164 CLR 465
Hoare v The Queen (1989) 167 CLR 348
Markarian v The Queen (2005) 228 CLR 357
R v Henry (1999) 46 NSWLR 346
Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370
Lodhi v The Queen (2007) 179 A Crim R 470
R v Booth [2009] NSWCCA 89
R v Gent (2005) 162 A Crim R 29
R v Leroy (1984) 2 NSWLR 441
R v Rivkin [2004] NSWCCA 7
Ryan v R (2001) 206 CLR 267
R v Oliver [2003] 1 Cr App R 28
Mouscas v R [2008] NSWCCA 181
Director of Public Prosecutions (Cth) v D’Alessandro [2010] VSCA 60
Minehan v R [2010] NSWCCA 140
R v Elliot [2008] NSWDC 238
Police v Power [2007] NSWLC 1
R v Ireland (1987) 49 NTR 10
R v Fowler [2007] ACTCA 4
Hartman v R [2011] NSWCCA 261
R v Wright (1997) 93 A Crim R 48
R v Verdins (2007) 16 VR 269
R v Thomson; R v Houlton (2000) 49 NSWLR 383
Siganto v The Queen (1998) 194 CLR 656
Tyler v Regina; Regina v Chalmers (2007) 173 A Crim R 458
R v Stroempl 105 CCC (3d) 187
R v Jones (1999) 108 A Crim R 50
R v Tait (1979) 24 ALR 473
Everett v R (1994) 181 CLR 295
R v Wong (2001) 207 CLR 584

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 24 of 2011
No. ACTCA 27 of 2011
No. SCC 346 of 2010

Judges:           Higgins CJ, Refshauge and Cowdroy JJ
Court of Appeal of the Australian Capital Territory
Date:              21 December 2012

IN THE SUPREME COURT OF THE     )
  )             Nos.  ACTCA 24 of 2011
  )  ACTCA 27 of 2011
AUSTRALIAN CAPITAL TERRITORY           )                    SCC 346 of 2010

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:THE QUEEN

Appellant

AND:             MICHAEL COOPER
  Respondent

ORDER

Judge:  Higgins CJ, Refshauge, Cowdroy JJ
Date:  13 February 2012
Place:  Canberra

THE COURT ORDERS THAT:

  1. The appeal…

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R v Cooper [2012] ACTCA 9
Case
[2012] ACTCA 9
Decision Date

CaseChat Overview and Summary

The Court of Appeal of the Australian Capital Territory heard an appeal by the Crown against the sentence imposed on the respondent for child pornography offences. The respondent had pleaded guilty to intentionally possessing child pornography contrary to s 65(1) of the *Crimes Act 1900* (ACT) and using a carriage service to publish child pornography contrary to s 474.19 of the *Commonwealth Criminal Code 1995* (Cth). The Crown contended that the sentence imposed by the sentencing judge was manifestly inadequate, particularly concerning the ACT offence.

The central legal issues before the Court of Appeal were whether the sentencing judge erred in failing to give sufficient weight to the objective seriousness of the offending conduct and the need for general deterrence, and whether the judge correctly assessed the volume of child pornography material seized. The Crown also argued that the sentencing judge incorrectly found the offending conduct to be in the middle range of objective seriousness and made errors in the concurrent sentencing and the manner in which the sentence was to be served.

The Court of Appeal found that the sentencing judge had not given adequate weight to the paramount consideration of general deterrence in sentencing for child pornography offences. It was held that the objective seriousness of the offences, particularly given the vast quantity of material possessed, warranted a stronger sentence. The Court also noted that while good character can be a mitigating factor, its weight is dependent on the circumstances of the offending. The Court determined that the sentencing judge had misapprehended the volume of material seized and that the offending conduct was more serious than assessed.

Consequently, the Court of Appeal upheld the Crown's appeal. The sentence of one year and seven months imprisonment for the ACT offence was increased to two years and seven months. Eighteen months of this total sentence was to be served by periodic detention, with the balance suspended. The good behaviour order was confirmed but extended to two years.

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