R v Cooper

[2022] NSWDC 682

District Court

New South Wales

Medium Neutral Citation:

R v Cooper [2022] NSWDC 682

Hearing dates:

24 May 2022

Date of orders:

03 June 2022

Decision date:

03 June 2022

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

Specify a term of imprisonment of imprisonment of 4 year 6 months with a non-parole period of 2 years 4 months

Catchwords:

CRIME — Violent offences — Robbery intentionally inflicting actual bodily harm

SENTENCING — Penalties — Imprisonment

Legislation Cited:

Children (Criminal Proceedings)Act 1987

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bugmyv The Queen [2013] HCA 37

Callaghan v R [2006] NSWCCA 58

Tepania v R [2018] NSWCCA 247

Category:

Sentence

Parties:

Regina (Crown)
Clayton Cooper (Offender)

Representation:

Jason Lee (Solicitor for the ODPP)
Daniel Thomas (Solicitor for the Offender)

Director of Public Prosecutions (Crown)
Aboriginal Legal Service (NSW/ACT) Limited (Offender)

File Number(s):

2021/00214478

REVISED EX TEMPORE JUDGEMENT

SENTENCE

AUDIO VISUAL LINK COMMENCED AT 9.34AM

1. This is the judgement on sentence for Clayton Cooper. Reference is 2021/00214478. Mr Thomas is on the screen, as is Mr Cooper from his place of confinement, and Mr Lee appears on behalf of the Crown.

INTRODUCTION

2. Clayton Cooper appears for sentence upon one charge. The matter was listed for hearing on 24 May 2022 when I was due to preside at the Bega sittings of the Court but held over in Sydney awaiting a verdict. The hearing was conducted remotely using AVL facilities between the courts in Sydney and Bega. After evidence and submissions, the hearing was adjourned to be concluded in Bega today, June 3, 2022.

THE OFFENCE

3. The offender pleaded guilty in the Local Court at Bega to the following offence. That he:

"On 20 July 2021 at Moruya in the State of New South Wales did rob John Duncan of certain property, namely one set of vehicle keys the property of John Duncan and at the time of the robbery intentionally inflicted actual bodily harm on the said John Duncan."

The offence is contrary to s 95(1) Crimes Act 1900. The offender adhered to his plea before me.

PENALTY

4. The maximum penalty for an offence contrary to s 95(1) Crimes Act 1900 is imprisonment for 20 years. There is no standard non-parole period for the purposes of Part 4 Div. 1A Crimes (Sentencing Procedure) Act 1999.

THE TIMING OF THE PLEA OF GUILTY

5. The offender pleaded guilty in the Local Court at Bega during committal proceedings on 28 February 2022. This is a matter to which Part 3 Div. 1A Crimes (Sentencing Procedure) Act 1999 applies, and in accordance with s 25B(2)(a) the discount for the utility of the plea of guilty is 25% of the sentence that would have otherwise been imposed for the offence if not admitted.

PRE-SENTENCE CUSTODY

6. The offender was arrested on 27 July 2021 and has been in custody ever since. However, the custody to which he was subject was not solely referable to this offence.

7. The offender was released to parole on 25 June 2021, less than one month before this robbery. Thus, he was subject to parole at the time he committed it. Consequently, his parole was revoked with effect from 20 July 2021. The balance of parole will expire on 2 October 2022. Whilst in custody, he assaulted a correctives officer and was sentenced to a term of imprisonment of 18 months, ordered to commence on 26 June 2021 and to expire on 26 December 2022. The non-parole period specified was ten months to expire on 25 April 2022.

8. The Court has discretion as to when the sentence I am about to impose will commence, bringing into account the custody for the other misconduct to ensure that punishment he now suffers is no greater than the totality of his offending requires, and to ensure that the appropriate non-parole period is identified to give effect to the special circumstances which I find established. Also relevant to the discretion is the probability that but for this robbery the offender would not be denied the opportunity to seek a further order for parole prior to the expiration of the balance of parole being served. The principles, stated by Simpson J in Callaghan v R [2006] NSWCCA 58 are regularly applied in the determination of sentences in this State. I shall order the commencement of the sentence on 27 January 2022.

THE FACTS

9. The accuracy and detail of the statement of agreed facts presented by the Crown were acknowledged by and on behalf of the offender who gave evidence when the matter came before me. I am required to assess the objective seriousness of the offence and the moral culpability of the offender upon all the material that was put before me, and his evidence.

10. According to the statement of facts, the offender was born in 1996. His victim, John Duncan, at the time of the offence, was 83 years of age. They were unknown to each other. Shortly before midday on Tuesday, 20 July 2021, the offender entered the Adelaide Hotel in Moruya. The hotel manager spoke to him and asked, "Do you have a mask?" The offender replied, "No I don't have one. I'm just waiting for a bus. Have you got one for me?" The manager said, "No I don't at the moment, we're pretty low." The offender said, "Where can I get one?" The manager directed him to the chemist on the corner near the traffic lights. The offender left the hotel through the front door.

11. He walked to a newsagent nearby. He entered and inquired there with a staff member about obtaining a face mask and was directed to the nearby pharmacy. He left the newsagent and walked a little further along the street and entered the Moruya Pharmacy at the corner of Vulcan and Church Streets in Moruya. There, he inquired with staff about the prospect of the pharmacy dispensing methadone to him. There is an image captured from the closed‑circuit television system in that establishment showing the offender standing behind another patron in the newsagency. I conclude that it is the newsagency from the array of publications that appear to be on the stands nearby to where the offender is in the picture.

12. In the pharmacy the offender said, "I'm away from home and needing a methadone dose just for today." The staff member from the pharmacy said, "Where are you from?" He told her "Sydney". The staff member said, "You've come all this way without a takeaway?" The offender said, "I've come down suddenly for a funeral." The staff member said:

"The likelihood of me helping you is not great. You can present to the hospital and they might be able to help you with a dose. Alternatively, you could contact your case worker or prescriber and they could arrange a dose through us, but that is unlikely."

13. The offender left the pharmacy and returned to the hotel, entering through the front doors, and walking past the front bar towards the poker machine area. Once again, there are two images showing the offender entering the hotel and in the poker machine area of the establishment.

14. About 1.50pm, he was seen by a witness lingering outside the rear entrance to the Moruya Plaza Arcade located at 60 Vulcan Street. Shortly after, the victim, John Duncan, parked his car at the rear of Harris Scarfe near the Moruya Plaza Arcade. The car was a Holden Berlina with a registration number specified in the facts. The victim left his car, together with his wife, and they both walked toward the rear entrance of the arcade. As they came near to it, the victim turned back to his car to make sure that it was locked. His wife went on ahead through the arcade.

15. The victim locked his car and walked back towards the arcade, still holding his car keys in his hand. When he reached the top of the concrete ramp at the arcade rear entrance, he felt someone grab him from behind around the shoulders. At this stage, he was in the vicinity of his car. He felt the person pick him up causing him to fall onto the concrete. The victim put his arms out to protect himself. At that point, he still had the car keys in one hand and his bag in the other. As he hit the ground, he released his bag and his car keys and they landed a short distance away. The offender picked up the car keys and ran down the ramp towards the car park. He was seen by multiple witnesses.

16. The incident was witnessed by a person named Gunn, a female worker from a nearby retail store. She was sitting in her parked car at the time when she saw the offender grab the victim around his mid-section. She saw the victim knocked to the ground. She spoke of the altercation as aggressive. The witness approached the victim and asked whether he was all right, and whether he knew the offender. The victim responded that he was not okay and that the offender had taken his keys.

17. The victim dialled triple-0 at 2.18pm. He had blood dripping from his leg, hand, and elbow. Other members of the public came to the victim's aid. The offender, using the keys he had taken from the victim, took the motor vehicle. Police and ambulance attended. There were several visible injuries to the victim, to the hand, elbow, and knees. There are images of some of those in the facts. He was conveyed by ambulance to the Moruya Hospital for treatment. Items of clothing were secured for forensic examination.

18. The images include the injury to the outer side of the right elbow and upper arm, and apparently of the elbow on the left arm, and an injury to the left knee.

19. The investigation by police began. The offender's movements were tracked, including with access to the closed-circuit television to which I referred. The offender was identified as the individual who attended the pharmacy and the newsagency and the hotel. His arrest was on 27 July 2021 at 3pm at an address in Doonside. He was conveyed to Blacktown Police Station. He was advised of his rights in accordance with Part 9 of the LEPRA provisions. He declined the opportunity to speak with a legal representative and participated thereafter in an electronically recorded interview and submitted to a forensic procedure. He said that he felt bad for his actions. He said that he had attended the South Coast for a funeral and was affected by drugs. He had no way to return to Sydney. He appeared upset that he had caused the injuries to the victim.

20. There is reference here to the victim having suffered a broken arm, but I have no further information regarding that. If that was an accurate description of the outcome, one would have expected a far more serious charge than that which was specified and to which the offender has pleaded guilty. I shall not consider the offender's apparent perception that he caused an injury to that extent.

21. He told the police that the motor vehicle, here described as a stolen motor vehicle, was parked at Westpoint Blacktown shopping centre, and that he had the vehicle key and the victim's mobile phone in his house at Doonside. He called his girlfriend at the Doonside address, had a conversation with her, at the end of which he told the police to go back and she would hand the items to them. The police did so, met the offender's girlfriend and recovered the property. The vehicle was later recovered.

22. I pause to note that the offender was charged with the offence of robbery and with the taking of the motor vehicle, but that second charge was not pursued ultimately after the negotiations leading to the plea of guilty to the robbery charge. However, without increasing the punishment that the offender must face for a robbery offence upon which he is to be sentenced solely, the use of the motor vehicle for the limited purposes that were admitted is part of the factual matrix upon which to determine the objective gravity of this misconduct.

OBJECTIVE SERIOUSNESS

23. Before I turn to the subjective case of the offender in any detail, I will deal with the assessment of objective seriousness.

24. The Crown submits correctly, in my view, that the objective seriousness of this offence is to be assessed at the low to middle range of objective seriousness.

25. The following principles I have drawn from the judgement of Johnson J in Tepania v R [2018] NSWCCA 247, beginning at para [111]. His Honour had before then dealt with the standard non-parole period provisions and continued with general discussion. He expressed the following opinion at paragraph [112], which in my view correctly states the law, that:

"In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence …."

26. His Honour continued at paragraph [113] and following that the assessment of moral culpability to some extent correlates with the assessment of objective seriousness, the term has been used in a somewhat flexible way as part of the general law of sentencing, an mental abnormality may diminish moral culpability and an antecedent criminal history may eliminate moral culpability, and an offender's limited moral culpability may mean that retribution and denunciation do not require significant emphasis. The circumstances of an offender being affected by an environment in which the abuse of alcohol and drugs is common must be considered in assessing personal moral culpability, to be balanced against the seriousness of the misconduct.

27. The assessment of objective seriousness for an offence is often a matter of judgement, upon which minds will differ. It is difficult, if not impossible, to be precise in the specification of the level of objective seriousness in the exercise of the determination of sentence.

28. It is also of note that when determining a sentence, the purposes for which an offender is to be punished are to be brought to account, as expressed in s 3A Crimes (Sentencing Procedure) Act 1999 reflecting the common law principles that have evolved over years. There must be adequate punishment for the offence under consideration. There must be consideration given to the need to prevent crime, both by the offender and other persons who might be tempted into similar misconduct. There needs to be adequate protection for the community from the offender. There needs to be a sentence which will promote the rehabilitation of the offender. He must be made accountable for his actions. His conduct must be denounced, and harm to the community and to the victim must be brought to account.

29. In this case this is not an easy exercise. There must be appropriate punishment, but the measure of that must be assessed according to the personal circumstances of the offender to which I am to come. There is a need to make clear to the community that conduct such as this will not be tolerated and will be met with punishment if it occurs. At the same time, the specific deterrence of the offender from further misconduct must be considered, again to be assessed with prospects, limited though they might be, of the rehabilitation which I hope this sentence might work toward. There must be protection of the community, and the structure and length of the sentence which I have adopted I hope will go some way toward providing protection both in terms of his development whilst in custody, and the opportunity in the community under supervision to continue towards a state of rehabilitation.

30. The fact that he is convicted for this offence and is to be sentenced to imprisonment I believe makes him accountable for what he has done, and I believe it adequately denounces his misconduct and recognises the harm that the victim unfortunately suffered.

THE OFFENDER

31. The offender was born in 1996; clearly he is still a young man. His antecedent record, replete with episodes of violence, extending over 15 pages. His first charge was in October 2011 in respect of which he was required to appear in a Children's Court. This was for entering enclosed lands. The Court dealt with the matter leniently and dismissed the charge pursuant to s 33(1)(a)(i) Children (Criminal Proceedings)Act 1987. He was back, charged with another offence in September 2012, again in a Children's Court. This was for a contravention of an apprehended violence order. He was made subject to a control order of one month commencing on 6 December 2012. He was charged in July 2013, to appear in the Batemans Bay Children's Court. The offence on this occasion was assault occasioning actual bodily harm and damage to property. In respect of each, he received control orders of 12 months duration, including a non-parole period of four months. Both were served concurrently.

32. On 12 September 2013 he was charged with an aggravated break and enter and commit serious indictable offence. He appeared in the Batemans Bay Children's Court. He suffered a control order of 12 months including a non-parole period of four months concurrent with the preceding sentence for the assault occasioning actual bodily harm and damage to property offence. In December 2015, he was charged and appeared in the Local Court. This was for special category PCA for which he was given the benefit of a bond pursuant to s 10 Crimes (Sentencing Procedure) Act 1999. He was called up in respect of that offence in September 2016 and was fined and disqualified. The breach is not known to me on the material I have.

33. In February 2018 he was charged with driving whilst disqualified. He was imprisoned for 18 months, including a non-parole period of six months. That period commenced on 15 March 2018. In March 2019 he was charged with offences of damaging property and armed with intent to commit an indictable offence. He was sentenced to imprisonment of four months each for the damage to property offences, two of them, and 12 months for the being armed with intent to commit the indictable offence with a non-parole period of four months. The sentences were concurrent. In November 2019 he was charged with being carried in a conveyance taken without consent of the owner, and aggravated break and enter and commit serious indictable offence. The aggravation was that he was in company. He suffered an aggregate sentence of three years commencing on 26 March 2020 with a non-parole period of 18 months, concluding on 25 September 2021. In June 2020 in the District Court, the offender successfully appealed from those determinations and the sentence was varied to two years and six months with a non-parole period of 15 months.

34. In October 2009, which is out of sequence but it is how the material is presented in the antecedent report, he was charged with a series of offences as a juvenile: possessing an unauthorised firearm, using an unauthorised firearm, recklessly wounding another in company, and breaking and entering a house. He was given bonds pursuant to s 33(1B) Children (Criminal Proceedings)Act 1987 for a period of two years. There was one for each of those offences. In March 2012, again in the Children's Court for possessing an unauthorised firearm, using the unauthorised firearm, and reckless wounding and breaking and entering. He was called up in breach of the bonds and given probation, in each case for a period of two years, pursuant to s 33(1E) Children (Criminal Proceedings)Act 1987.

35. In October 2012 he was again called up for those offences and suffered control orders of two months in each case concurrent commencing on 6 July 2012. In November 2011 he was charged with breaking and entering a house. He suffered a control order pursuant to s 33(1G) Children (Criminal Proceedings) Act 1987. That was suspended with conditions. He was called up in respect of that in October 2012, and the suspension was converted into a custodial order with a non-parole period of six months. In November 2011 for a common assault in the Children's Court he was given probation for two years. He was called up in respect of that, and that was converted into a control order of two months.

31. In January 2012 he was charged with escaping police custody. He suffered a control order of 69 days in the Children's Court. In June 2012 he was charged with intimidation in the Children's Court. He suffered a control order of 12 months with a non-parole period of three months. In July 2012 he was charged with damaging property in the Children's Court. He was convicted in his absence. Then in October 2012 he was given a control order for that offence of two months. In February 2013 he was charged with damaging property. He suffered a community service order of 100 hours. In July 2016 for a high range PCA offence, a second offence in sequence, he was fined and disqualified. In January 2018 for driving whilst suspended he was fined and disqualified. In February 2018 he was charged with driving whilst suspended. He was imprisoned for 18 months by way of an aggregate sentence, including a non-parole period of six months. In February 2018 he was charged with an offence of driving whilst disqualified. He was sentenced for that offence, part of the outcome in which he suffered the aggregate sentence of 18 months.

32. In March 2018 he was charged with aggravated break and enter dwelling in company with intent to steal. He suffered the aggregate sentence of 18 months to which I referred. The aggregate sentence commenced on 15 March 2018.

33. In November 2018 for contravening an apprehended violence order he was ultimately given a conditional release order. He was charged in January 2019 with goods in custody. He was imprisoned for four months from 26 March 2019. Finally, there is the assault officer whilst in custody, for which he served 18 months imprisonment, to which I referred earlier.

34. For someone of his age, it is a bleak history. The significance of it is reflected in the custodial periods that he suffered as an adult are set forth in the custodial record included in the Crown bundle. This begins in September 2016 when he was imprisoned for one day until he was released. Thereafter he was in custody from 15 March 2018 to 14 September 2018. He returned to custody on 3 December 2018 and remained there until 5 March 2019. He returned to custody on 25 March 2019 and remained until 15 September 2019. He returned to custody on 8 November 2019 and remained there until 25 June 2021. From 27 June 2021 he has been in custody and has remained there since.

35. I have a breach of parole report that brought to attention his failure to comply with conditions, including that he was not to commit any further offences. There is a discussion of his response to supervision. Although he responded initially in the interview process, he failed to attend his scheduled appointment on 15 July 2021. He was followed up with a telephone call and the reporting was changed to a telephone interview each week. On 23 July 2021 contact was made, there were no concerns. He was given a further reporting date for 27 July 2021. He could not respond appropriately to that, apparently having been infected with some illness, was told to get a COVID-19 test and provide the result, but he was arrested later that day in respect of the current spate of offences for which he is now in custody.

36. According to the report, there is a relationship between the alleged breach and risk factors. The new offences are said to be similar to the index offences for which he was currently supervised. He failed to actively engage with Community Corrections upon release, and therefore monitoring his increased risk within the community was limited. There were concerns regarding the risk that he posed to the community. Ultimately when he is released, all efforts will be made to re-engage with him, to ensure that he understands and complies with his responsibility whilst on parole.

37. The material provided on behalf of the offender includes a report from a psychologist, Graeme Randall, written on 9 May 2022. I might say that this report I found particularly helpful. It is not often that one receives a psychologist's report prepared with the obvious care and attention to detail that Mr Randall demonstrated in the service he provided to the offender. He is, according to the demographic information, the second eldest of six children born to his mother. He saw his natural father only four or five times. His father was an alcoholic who died from alcohol-related disease when the offender was aged eight. He was not significantly impacted by his death it would appear because his contact with his father was limited, did not know him well and did not view him as a father figure.

38. Regrettably, his mother re-partnered with a man who became, at least notionally, the offender's stepfather. This man was a heavy drinker and was physically abusive to the offender, to the offender's mother, and his siblings. He reported an occasion when he sought to intervene when the stepfather was beating his mother. The offender was then aged ten; that led to him being severely beaten by his stepfather. He has the perception, according to this, that the abuse by the stepfather has made him strong and he has been able therefore to cope with the stressful circumstances of incarceration. His mother was supportive while he was a child. He does not blame her for not providing greater protection from the stepfather because she was a victim herself of the abuse. The mother has since left that relationship, but this occurred while the offender was in detention as a juvenile.

39. She re-partnered with another, discussed in para 15 of the report. This person introduced his mother to methamphetamines and she subsequently became addicted. The information he provided was said to be somewhat contradictory. His mother ensured that he had his needs met for food and clothes, and he believed that in their own way, his mother and stepfather did care for him, subject to the physical abuse that he suffered, apparently because of alcoholism with which that man was burdened. They moved regularly from home to home because of the work that the stepfather performed. The only good experience at school was when he was in an Aboriginal mission near Kempsey. There were two incidents of sexual abuse he suffered, one when he was in a juvenile detention facility.

40. He left home when he was aged 14, living on the streets or couch surfing with friends, and has unfortunately reached the point in life where he feels safer in gaol than out in the community. Hence the clear risk of him becoming institutionalised as the term is used. His schooling outside of the mission to which I referred was unsatisfactory. He was required to change school regularly as his stepfather changed his jobs. He suffered suspensions from school because of misbehaviour, beginning in year 1. His misconduct at school included theft, carrying a knife in his bag for protection, fighting and regular truanting. He became known as a school bully, for which he now expresses his shame. In juvenile detention, he completed his year 10 certificate, first aid course, a certificate course in plastering, a barista's course, and a small business course. His juvenile detention was for the majority of the time between the ages of 15 and 18.

41. He formed a relationship and the young woman gave birth to a daughter, and this has had an impact upon the offender. He looks to the future so that when he is released, their relationship might be restored and he might advance their circumstances.

42. He has not worked since the age of 22. He was diagnosed with generalised anxiety and persistent depression as a child and has been on medication since he was around 11 years of age. He currently takes Avanza and Venlafaxine for depression and anxiety respectively. There were two confirmed suicide attempts, one when he was 21, and the second when he was 22. The second was after he lost his job and after his best friend apparently attempted an overdose with methamphetamine. The offender sought suicide by overdose of a quantity of different substances stolen from an acquaintance.

43. The relationship with his girlfriend has not been without its challenges. He caused problems because of his heavy drinking, engaged in activities with other women, with occasional violence towards her. He says that she remains supportive of him and he believes they will be able to reconcile and progress, which will help him remain in the community. His history of alcohol use beginning at 11 is discussed. While he used that substance, drinking to excess until he passed out, he began smoking cannabis to help cope with abuse at home. He began using crystal methamphetamine when 15. He used amphetamines twice and MDMA occasionally. Ultimately, ice became his drug of choice until he was 22 years of age, when his best friend attempted suicide. He smoked or injected the drug occasionally, but after that event, the catalytic effect was to have him increase his use to 2 grams a day.

44. The attempt by his friend to take his life had a significant impact upon him. His friend was his sole emotional support and his friend's decision to attempt suicide gave rise to a sense of hopelessness and that the offender's life would never improve. He continued to use ice at that level in the community and recently received methadone as an alternative to address the addiction. Unfortunately he continued to use both ice and methadone. He switched to buprenorphine by injection after he was caught diverting his methadone to other inmates when in custody. He lacks insight into his drugs; he does not believe that his drug use is problematic and told the psychologist he did not need to attend rehabilitation services such as an outpatient facility or Narcotics Anonymous. He sees drugs as beneficial, helping him to cope emotionally with his sense of hopelessness.

45. The offending is explained, consistent with the evidence he gave before me. He went to a family funeral in Moruya. When it was time to go home, those with whom he travelled did not have facility for him to return with them and he was stranded in Moruya. He had no funds with which to buy a train ticket. He also began to develop the thought that he was more secure in gaol and safer in that environment than in the community. The offence upon which he engaged therefore had two purposes, to provide the means of travel to get back home and to facilitate his return to custody. This speaks to the risk of institutionalisation. He said he feels safer in the prison than in the community and has more support there than when he is at large.

46. The psychologist offers the opinion that due to multiple vulnerabilities throughout his childhood, he has suffered a significant impact on his emotional and psychological development. These included regular moves, poor social support, and severe physical violence through his childhood. He has had a high level of social deprivation which set him on the trajectory where he turned to drugs to cope emotionally with what he experienced through his formative years and beyond. He failed to learn the required skills to successfully live in the community, and because of the institutionalisation which seems to be developed, he is not deterred by the prospect of gaol.

47. There is the opinion that he has a number of factors indicating a high risk of future offending, including his criminal history, his poor insight into drug use, his use of violence to achieve goals, his poor coping skills, his abuse history, and lack of an adequate role model. There are few protective factors in his life. He is assessed as having high risk of reoffending.

48. He is attributed with expressions of remorse which were repeated to me in the evidence he gave and which I accept.

49. He is further supported by a very comprehensive report provided by a psychiatrist, Associate Professor Michael Robertson, dealing with the sexual assault that he suffered when in the juvenile justice system. The report is extensive and I will not go to the extent of referring to each and every item, but I shall quote the executive summary which is soundly supported by what Professor Robertson provided as the basis for this summary:

"Mr Cooper is a 24 year old Yuin man currently incarcerated in Goulburn Corrections Centre. Mr Cooper is living with chronic post‑traumatic stress disorder, comorbid with a substance use disorder and possibly tied to bipolar disorder. The latter condition is unclear given the ongoing effects of psychoactive drug use, although it is evident that Mr Cooper has had periods of severe major depression with alarming suicidal behaviour. It is possible that the putative hypomanic or mixed affective states may be drug related. There is an underlying personality disorder with prominent antisocial, narcissistic and borderline traits.

Mr Cooper described a difficult early environment and his personality disorder evolved from this, initially manifesting as a conduct disorder in the context of the maligned influence of an antisocial peer group. It was evident that Mr Cooper had been established on a problematic trajectory from childhood. Mr Cooper was victim to a sexual assault perpetrated when aged 16, whilst detained at Cobham Juvenile Justice Centre (Cobham). This adversely affected his problematic trajectory leading to the evolution of a more severe substance use problem, and the emergence of PTSD, which adversely affected his personality structure."

55. This was prepared for the purposes of compensation and it included toward the end of the report responses to questions posed by the solicitors representing the offender in that pursuit. As I said, all content of the report provides a sound basis for the executive summary. Ultimately, Associate Professor Robertson came to the view that the offender suffers a 37% whole person impairment by reason of his diagnoses.

SUBMISSIONS AND CONSIDERATION

56. The Crown in the submissions referred to the victim's keys and mobile phone, another item that was taken, perhaps from the car when it was driven back to Doonside. The robbery was only the theft of the car keys taken from the victim. The Crown, as I said, assessed objective seriousness, with which I agree, at the lower end of the mid-range. The summary it provides drawing upon the features informing that submission include the age of the victim, the location where the offence occurred, and although this is not vulnerability that is expressly provided in the aggravating factors in s 23(2) Crimes (Sentencing Procedure) Act 1999, clearly the victim was in vulnerable circumstances, sometimes referred to as situational vulnerability in the authorities dealing with this question. I agree that he was to be seen as a vulnerable victim in the circumstances.

57. He suffered injuries as described. I do not include the perception apparently attributed to the circumstances by the offender that he caused a bone fracture. That appears not to be the case. The Crown submits that the offender inflicted actual bodily harm on the victim, and that is the extent of the injury. It is an element of the offence that he inflicted actual bodily harm. The offence does not come before me with that as an aggravating factor, but one needs to assess the extent of the actual bodily harm to determine the level of seriousness of the misconduct. I add this. The offender accepts the circumstances of the victim, but it was not until he was upon the victim that he became aware, according to his evidence, of the age and perhaps frailty of the victim because he approached him from behind when the victim was wearing a hat, but it could not have escaped his notice that when he took hold of him and lifted him, causing him to fall to the ground, that he was dealing with an elderly man clearly incapable of offering an adequate physical defence to the attack upon him.

58. His prior convictions and whilst he was on parole affect the assessment of the objective seriousness as an aggravating factor, but not so as to increase the objective gravity or the proportionate sentence to which the offender is exposed for his misconduct. It informs the extent to which he might have otherwise had leniency and raises the need for appropriate weight to be given to specific deterrence in the assessment of this matter.

59. The Crown concedes the plea of guilty and makes no submission with regard to contrition and remorse but does not challenge that the offender has given evidence of that attitude before the Court. Reference is made to the psychological assessment and the attitude of the offender failing to appreciate the significance of the drug problem and the contribution it makes to his present circumstances. The Crown concedes there is appropriate scope for a finding of special circumstances. Clearly the subjective material that has been presented before me requires an extended period on parole, hopefully to work toward rehabilitation.

60. In the submissions put forth on behalf of the offender, Mr Thomas has, I might say, carefully and persuasively argued for rehabilitation to be given appropriate weight in this case, bringing to bear the matters of deprivation in his background, his mental health issues, and the evolution of drug abuse in that context. I agree with the submission that this is clearly a case for the principles from Bugmyv The Queen [2013] HCA 37.

61. I accept his recognition of wrongdoing and the contrition and remorse that is demonstrated in this matter. I accept the evidence of the circumstances in which the offender clearly made a poor choice when confronted with the difficulty finding his way home and motivated correspondingly by the greater security he feels in a custodial setting.

62. It is said that his misconduct should be seen to be reckless with regard to the injuries suffered by the victim. I do not accept that part of the submission. Apart from anything else, he pleaded guilty to intentionally inflicting actual bodily harm on the victim, and in the circumstances as described to me, he could not have anticipated any other outcome but that some injury would be suffered by the victim as he was lifted and caused to fall to the ground. The extent of the injury though is another matter and I accept that he did not intend to inflict the injury to the extent suffered by the victim.

63. His personal circumstances are summarised in para 10 of the submissions. I have dealt with those with reference to the reports. I accept the proposition that his drug abuse and mental health issues articulated in the material have an impact on the assessment of moral culpability. It is not to be overlooked that he did not cause any damage to the vehicle. The vehicle was in circumstances where it could be recovered, and he readily returned the keys and the victim's mobile phone after an interview with the police where he made frank and full admissions, even after having had the benefit of legal advice from the Aboriginal Legal Service, which I would expect would have included that he need not participate in any interview process for he had no obligation to do so. His extended custodial history is discussed and I have referred to that. I agree that there is a risk of institutionalisation and hence I have approached this sentence with a finding of special circumstances, hopefully to address that problem.

THE SENTENCE

64. The offender is convicted of the offence of aggravated robbery to which he pleaded guilty. I sentence him to imprisonment. The original term of the sentence would have been 6 years but for the plea of guilty, but after applying a discount of 25%, the sentence is one of 4 years and 6 months with a non-parole period of 2 years and 4 months, commencing on 27 January 2022. He will be eligible for parole on 26 May 2024 with a balance of the sentence to expire on 26 July 2026.

65. Therefore, upon conviction, I sentence the offender to a term of imprisonment consisting of a non-parole period of 2 years and 4 months commencing on 27 January 2022. That shall expire on 26 May 2024. I specify a further period of imprisonment of 2 years and 2 months at the expiration of the non-parole period; that will expire on 26 July 2026. The offender will be eligible for parole on 26 May 2024. The exhibits are to remain on file together with the submissions provided by the parties for such use that they might wish to make of them.

64. The sentence was explained to the offender.

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Decision last updated: 14 February 2023