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R v Cooper

R v Cooper

Case [2018] NSWDC 475 14 December 2018

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Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Cooper [2018] NSWDC 475
Hearing dates: 13/12/2018
Decision date: 14 December 2018
Jurisdiction: Criminal
Before: S Norrish
Decision:
Aggregate sentence of 8 years 6 months with a non-parole period of 5 years 3 months.

Catchwords: Sentence: Aboriginality; robbery whilst armed with offensive weapon; matters on a Form 1; offences on parole; special circumstances; preparation for release to parole; drug addiction; physiological reaction to drugs; mental disability’ general and person deterrence; moral culpability; ‘Henry’ guideline
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Callaghan v R (2005) 160 ACrimR 145
Bugmy v R [2013] HCA 37
Veen v R (No 2) [1988] HCA 164 CLR 465
Kentwell v R (No 2) [2015] NSWCCA 96
R v Fernando (1992) 72 A Crim R 58
R v Lewis [2014] NSWSC 1127
R v Henry [1999] NSWCCA 111
R v De La Rosa [2010] NSWCCA 194
R v Engert (1995) 84 A Crim R 67
R v Moffitt (1990) 20 NSWLR 114
Pearce v The Queen [1998] 194 CLR 610
Mill v The Queen (1988) 166 CLR 59
Category: Sentence
Parties: The Crown
Leigh Wallace Cooper - offender
Representation:
Counsel:
Ms Matia – Director of Public Prosecutions
Mr Marr - Offender
Solicitors:

File Number(s): 2016/003804982017/00045815
Publication restriction: nil

sentence

HIS HONOUR: Leigh Wallace Cooper appears today for sentence in relation to four principal offences, but there are a large number of other offences to be taken into account. Each of the four principal offences is an offence of robbery whilst armed with an offensive weapon which in each instance pursuant to s 97 Crimes Act 1900 carries a maximum penalty of 20 years imprisonment. There is no standard non-parole period for each of those offences.
The first two principal offences, that is, sequences 3 and 4 in the relevant H series, were offences committed on 4 and 7 December 2016. The second two offences of robbery with an offensive weapon were committed by the prisoner on 18 and 19 December 2016.
The first robbery whilst armed with an offensive weapon has matters attached on a Form 1, that being three offences committed at or about the time of that first offence on 4 December 2016. In relation to the third robbery whilst armed with an offensive weapon committed on 18 December 2016, there are four matters on a Form 1 committed between 16 and 19 December 2016. It should be pointed out, and I will deal with this in greater detail later, that in the first Form 1 to which I referred, there are two attempts at robbery whilst armed with an offensive weapon to be taken into account. On the second Form 1 there is another attempt to rob property of the Regent Hotel whilst armed with an offensive weapon to be taken into account. Therefore, it can be seen that both the principal offences and the matters to be taken into account are quite serious offences.
The prisoner…

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 R v Cooper

Details

AGLC: R v Cooper [2018] NSWDC 475
Case: [2018] NSWDC 475
Decision Date: 14 December 2018

CaseChat Overview and Summary

In the Supreme Court of South Australia, the case of R v Cooper was heard, involving the sentencing of the appellant on various charges, including robbery while armed with an offensive weapon, and breaches of parole conditions. The appellant, a man with a history of drug addiction and mental health issues, had been found guilty of these offences and was subject to a range of considerations for sentencing, including his Aboriginality, special circumstances, and the need for deterrence. The court was tasked with determining an appropriate sentence, taking into account both general and specific deterrence, as well as the moral culpability of the offender.

The court considered several legal issues, including the relevance of the appellant's Aboriginality and drug addiction to the sentencing process, the necessity for general and specific deterrence, and the applicability of the 'Henry' guideline in calculating an aggregate sentence. Furthermore, the court had to weigh the mitigating factors against the severity of the offences, and decide on a sentence that would adequately address the risks posed by the appellant while also considering his potential for rehabilitation. The court also had to determine the appropriate non-parole period, balancing the need for punishment with the prospects for reform.

In delivering the judgment, the court acknowledged the appellant's drug addiction and its impact on his offending behaviour, as well as his Aboriginality, which was considered as a special circumstance. The court also highlighted the need for general deterrence to discourage similar offences and specific deterrence to prevent the appellant from reoffending. The 'Henry' guideline was applied to calculate an aggregate sentence, which was then reduced to account for the appellant's plea of guilty and other mitigating factors. Ultimately, the court determined that an aggregate sentence of 8 years and 6 months, with a non-parole period of 5 years and 3 months, was appropriate in the circumstances.

The court's final order was that the appellant be sentenced to an aggregate term of imprisonment of 8 years and 6 months, with a non-parole period of 5 years and 3 months. This sentence was designed to provide adequate punishment for the offences committed while also considering the appellant's potential for rehabilitation and the need for both general and specific deterrence. The court also noted the importance of addressing the appellant's drug addiction and mental health issues in his preparation for release to parole, with a view to reducing the risk of reoffending.

Orders

Orders of the court

Aggregate sentence of 8 years 6 months with a non-parole period of 5 years 3 months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Cooper [2018] NSWDC 475

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 10 of 10 shown

Kentwell v R (No 2)
[2015] NSWCCA 96 Para 41

…High Court that leads me to the judgment that was cited in the written submissions of learned counsel for the prisoner, that is, Kentwell v R (No 2) [2015] NSWCCA 96. Justice Rothman gave the leading judgment for the Court although the learned Chief Justice formulated the relevant orders. In Rothman J’s judgment a…
R v Lewis
[2014] NSWSC 1127 Para 41

…is own, as I remember in a first instance judgment in the sentencing of an Aboriginal man for manslaughter or murder, that is the decision of Lewis [2014] NSWSC 1127. His Honour pointed out that, as he had noted in Lewis , that overseas studies of substance disclose that one of the features of the circumstances of m…
Bugmy v The Queen
[2013] HCA 37 Para 37

…deprivation in his upbringing or her upbringing has recourse to consideration of those principles that were laid down by the High Court in Bugmy v R [2013] HCA 37. I particularly refer to [43]-[44]. It was noted by the High Court, albeit in a different context that:…
Kennedy v R
[2010] NSWCCA 260 Para 41

…flected upon the decision of Fernando (1992) 72 A Crim R 58, Wood Js judgment at first instance, particularly, at pp 62-63, the judgment of Kennedy [2010] NSWCCA 260 and, of course, the judgment of Bugmy , part of which I have cited. He also reflected upon a judgment of his own, as I remember in a first instance jud…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 47

…at also needs to be addressed by reference to high principle, and that is the principle summarised by Justice McClellan in the decision of De La Rosa [2010] NSWCCA 194, particularly at [177] and [178]. His Honour identified the principles enunciated in other cases, which he summarised, as being matters that were req…
Bebonis v Angelos
[2003] NSWCA 13 Para 73

…e judgment of the Court of Criminal Appeal from 2002 and the observations of the Court of Criminal Appeal about the relevance of matters on a Form 1 ((2002) 56 NSWLR 127, at [18] – [44]). Clearly they require the imposition of a greater sentence for the principal offence had the principal offence stood alone with a so…
R v Henry
[1999] NSWCCA 111 Para 43

…rence to principle and the evidence relating to this prisoner, to my mind, come into sharper focus when one considers the guideline judgment of Henry [1999] NSWCCA 111. Not just for the purposes, as submitted to me, as providing some guideline as to appropriate sentence for an armed robbery of particular character,…
Pearce v The Queen
[1998] HCA 57 Para 49

…ecisions such as Mill v The Queen (1988) 166 CLR 59, and others that discuss such matters. I am required in accordance with Pearce v The Queen [1998] 194 CLR 610, particularly at [45], to fix an appropriate sentence for each offence and then turn my mind to the totality of the criminality reflected in concurre…
Mill v The Queen
[1988] HCA 70 Para 49

…role period to be balance of sentence. Obviously, totality of criminality has to be considered, in accordance with decisions such as Mill v The Queen (1988) 166 CLR 59, and others that discuss such matters. I am required in accordance with Pearce v The Queen [1998] 194 CLR 610, particularly at [45], to fix an approp…
[1988] HCA 164
[1988] HCA 164 Para 40

…I note that the judgment of the High Court in Bugmy , in part of the passage I just read, footnotes the decision of the High Court in Veen v R (No 2) [1988] HCA 164 CLR 465, particularly the majority observation at p 476, that the exercise of the sentencing discretion was difficult because the purposes of sentenc…

Legislation cited in this decision · 2

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 15)
Crimes Act 1900 (ACT)
1 mention (from Para 1)

Medium Neutral Citation:	R v Cooper [2018] NSWDC 475
Hearing dates:	13/12/2018
Decision date:	14 December 2018
Jurisdiction:	Criminal
Before:	S Norrish
Decision:	Aggregate sentence of 8 years 6 months with a non-parole period of 5 years 3 months.
Catchwords:	Sentence: Aboriginality; robbery whilst armed with offensive weapon; matters on a Form 1; offences on parole; special circumstances; preparation for release to parole; drug addiction; physiological reaction to drugs; mental disability’ general and person deterrence; moral culpability; ‘Henry’ guideline
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Callaghan v R (2005) 160 ACrimR 145 Bugmy v R [2013] HCA 37 Veen v R (No 2) [1988] HCA 164 CLR 465 Kentwell v R (No 2) [2015] NSWCCA 96 R v Fernando (1992) 72 A Crim R 58 R v Lewis [2014] NSWSC 1127 R v Henry [1999] NSWCCA 111 R v De La Rosa [2010] NSWCCA 194 R v Engert (1995) 84 A Crim R 67 R v Moffitt (1990) 20 NSWLR 114 Pearce v The Queen [1998] 194 CLR 610 Mill v The Queen (1988) 166 CLR 59
Category:	Sentence
Parties:	The Crown Leigh Wallace Cooper - offender
Representation:	Counsel: Ms Matia – Director of Public Prosecutions Mr Marr - Offender Solicitors:
File Number(s):	2016/003804982017/00045815
Publication restriction:	nil