R v Cooper, Michael James

[2016] NSWDC 438

District Court

New South Wales

Medium Neutral Citation:	R v Cooper, Michael James [2016] NSWDC 438
Hearing dates:	Sentence: 18 & 24 November 2016
Decision date:	24 November 2016
Jurisdiction:	Criminal
Before:	KING SC DCJ
Decision:	Convicted of each count. Indicative sentences: Count 1 - Detain for advantage & cause injury to victim - 4 years imprisonment Count 2 - Agg sex assault- inflict ABH on victim - 8 years imprisonment Count 3 - Aggravated robbery & use corporal violence - 3 years imprisonment Aggregate sentence: Sentenced to a term of imprisonment for 10 years, comprising a NPP of 7 years and 6 months to commence on 23 September 2016 and to expire on 22 March 2024, and a balance of term of 2 years and 6 months, to commence on 23 March 2024 and to expire on 22 September 2026. Eligible for release to parole on 22/3/24.
Catchwords:	CRIMINAL – sentence – detain for advantage – inflict actual bodily harm - aggravated sexual intercourse without consent – aggravated robbery – historical offence – delay – DNA – violent assault - Victim Impact Statement – subjective matters
Legislation Cited:	Crimes Act 1900 Crimes (Administration of Sentences) Regulation 2008 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Ho v R [2013] NSWCCA 174 King v R [2010] NSWCCA 202 Langbien v R [2013] NSWCCA 88 R v Fidow [2004] NSWCCA 172 R v Huynh [2003] NSWCCA 239 R v Moffitt [1990] 20 NSWLR 114
Category:	Sentence
Parties:	Regina Cooper, Michael James
Representation:	Counsel: Crown: Mr N Moir Solicitors: Crown: Ms T J Krippner, Ms J Hoy ODPP Cooper: Ms V Taylor, Virginia Taylor Partners
File Number(s):	2013/00334731
Publication restriction:	Non-Publication Order in respect of the name of the complainant and anything that might tend to identify her

Judgment

1. Michael James Cooper appears for sentence in respect of three offences, being, firstly, an offence of detaining TM with intent to hold her for an advantage, that is, to have sexual intercourse with her, contrary to s 90A of the Crimes Act 1900. The maximum penalty provided is 14 years penal servitude. The second offence is aggravated sexual intercourse without consent immediately after inflicting actual bodily harm, contrary to s 61J(1) of the Crimes Act, for which the maximum penalty is 20 years penal servitude.

2. The third offence is aggravated robbery, the circumstance of aggravation being using corporal violence at the time, contrary to s 95(1) and (2)(a) of the Crimes Act 1900. The maximum penalty is 20 years penal servitude. There is no standard non‑parole period in respect of any of those offences.

3. A Statement of Facts for sentence has been provided by the Crown and Mr Moir, counsel for the offender has no disagreement with the accuracy of those facts, so I will utilise those facts, summarising them to some extent.

4. The offender was born on 24 October 1971, and at the time of the offences was 27 years of age. He is now 45 years of age. On 29 December 1998, the victim, TM, drove from her home in East Maitland to collect a younger friend, NP. Together they drove to Newcastle for a night out to celebrate TM's 20th birthday, being 30 December 1998. They attended the Empire Hotel on Hunter Street for four or five hours, consuming some alcohol, though not to the extent that they were intoxicated.

5. Between 2.00 and 2.30am, on 30 December 1998, the two girls left the Empire Hotel, and TM drove her vehicle to Maitland Road, Islington, where she parked in a side street, being in effect a cul de sac, just off the main road. The girls planned to go to a nearby nightclub with the intention of leaving the car where it had been parked so that they could continue drinking and then catch a train home. When the vehicle was parked, NP left to go to a nearby service station.

6. As she left, she saw the offender, who she had known for a few years, standing on Maitland Road near a bus stop speaking to a woman who she assumed was a prostitute. NP did not speak to the offender when walking past.

COUNT 1: DETAIN VICTIM WITH THE INTENTION OF HOLDING HER FOR AN ADVANTAGE - SEXUAL INTERCOURSE

7. When NP left, TM was getting her wallet and keys together and putting her shoes on. She got out of the car and went to the rear of it to retrieve an item and noticed the offender walking across the intersection of the cul de sac and the main road. The offender then turned down the cul de sac in the direction of the vehicle. TM entered the vehicle and was winding up the windows and locking the doors while sitting in the driver's seat, when the offender, having walked around the back of the vehicle to the driver's side leant on the side of the vehicle, and said, "How much are you?"

8. She responded by way of rejecting the approach, "Fuck off." As she continued to wind the driver's side window up, the offender placed his hand on top of the window and forced it back down, and she continued to try and wind it up. However, he leant in the window, yelled at her not to speak to him like that and then punched her with a closed fist to her left cheek and reached down to unlock and open the door. She tried to resist the door being opened. He then took hold of a handful of her hair at the back of her head and told her to get out.

9. At the time, she thought she was just being robbed. She was pulled out of the car to a standing position, while the offender continued to hold her hair. He forced her to walk across the street to a nearby driveway, as she wrestled against him. It was a short driveway, from photographs tendered in the trial, perhaps the length of an average motor vehicle, and there was a side fence about 160 centimetres high of chain mesh along the side nearest Maitland Road.

10. The street was blocked off to traffic a little further down, and the driveway itself was away from public view from Maitland Road. She was pushed against the roller door and told to take her clothes off. She said to the offender, "No, no, you can have my belongings," but he continued to tell her to remove her clothes. She was wearing a very long purple skirt and singlet, a jacket and shoes. Underneath she was wearing what she described as “shape wear”, a bra and a body suit with underpants over the top.

11. She was carrying a handbag which contained her wallet with $40 to $50 cash and her current and previous licenses. She removed her jacket and singlet top and her underpants and crouched down in the corner of the roller door and the fence.

12. Her later description of the offender included that he had a scar running from below the middle of his left eye down half of that cheek and looking like it was a skin graft scar in an “L” shape, and that there was something not right about his left eye.

COUNT 2: AGGRAVATED SEXUAL INTERCOURSE WITHOUT CONSENT - MALICIOUSLY INFLICT ACTUAL BODILY HARM UPON TM IMMEDIATELY AFTER

13. The offender unzipped his jeans and took out a condom, asking the victim to put it on him. She refused, and he placed it over his erect penis. He knelt over her and lifted up her skirt and pulled her body suit aside at the crotch. He had penile vaginal sexual intercourse while she was lying on her back on the ground for a period of 15 to 20 minutes. The intercourse was very rough and forceful and it hurt her.

14. She said, "It was absolutely horrible, he was holding me down, it was by far the most horrendous thing I've ever gone through." She continued telling him "No, stop," and tried to push him off, however, he had her arm pinned under his body weight and was using his arm across her chest and throat to hold her down. At the conclusion of the sexual intercourse, the offender withdrew his penis and while standing over the top of her, removed the condom.

15. Towards the end of the sexual intercourse, she had heard NP's voice calling out to her from the direction of where the vehicle was parked. She did not respond because she was afraid of the offender. Hearing NP, the offender lay back down on top of TM holding his hand over her mouth and telling her to be quiet. He got up and walked to the edge of the fence to look around in the direction of NP's voice and then returned. He told the victim to get dressed, and she put her clothing back on.

16. She had with her her handbag and the strap was over her shoulder and neck. The offender started kicking and punching the victim. She was knocked down to the ground after he had held her shoulders to bring her down towards his knee, whilst he was kneeing and kicking into her. She received blows to the face and the chest and was holding herself up by hanging onto the wire fence whilst lying on the ground. The offender stomped on her head.

17. During this assault, she felt her left eye close up and her teeth go through her lips. Her evidence was that she was then bleeding from her face and under her hair, and that there was blood on her neck and shirt. As a result of being punched and kicked by the offender, TM sustained a bruised and swollen left eye, a split lip and soreness, bruising to the cheeks, jaw, chest, arms, stomach and rib region, as well as to the scalp.

COUNT 3: AGGRAVATED ROBBERY OF THE VICTIM USING CORPORAL VIOLENCE AT THE TIME

18. The Crown relies on the violence I have just described.

19. As a result of the violence, she stopped resisting and played dead on the ground. He reached down and removed her handbag from her. She got up and tried to grab the handbag. The offender told her to walk. He took hold of her left arm and started dragging her further down the cul de sac and walked her a number of blocks before steering her left onto Chinchen Street in Islington.

20. The offender began to say that he was sorry as he walked her along, saying that he was depressed because he had been unable to see his five children. He told her that he was sick with only a month to live. A woman driving past in a motor vehicle called out to the victim asking if she was all right and whether she needed help. The victim had then sunk to her knees and was feeling the blood on her face and responded to the woman, "Yes, I need help."

21. However, the offender told the woman, "She's all right, we're just having a fight," at which the lady in the vehicle drove away. The offender again took hold of the victim's arm and pulled her up and made her walk behind him along the back streets onto Fern Street to the back of Hamilton Railway Station where a pair of locked chain mesh gates were located, being about head height. The offender began climbing over the gates and told the victim to get over them too.

22. The victim attempted to escape by turning and running towards Maitland Road, however, the offender jumped back over the gates and ran to catch her, grabbing her and forcing her back to the gates. He then forced her to climb over them first while he stood and watched her. He then climbed over after her and pushed the victim some metres into the area beyond the gates where there were train tracks and sleepers.

23. Once there, he told her to take all her clothes off and lay down on the tracks. She removed all of her clothing and lay on the tracks. The offender began going through her handbag and the cards in her wallet. He asked her questions about where she came from, and when she told him Maitland he asked her where in Maitland she was from, and if she recognised him or any of his tattoos or marks on his arms. He then began to position his jumper covering the lower part of his face.

24. The offender was in fact also a resident of Maitland at the time. The offender asked the victim whether she had any condoms. She replied, "No, please don't do this again." She told him to look at the date on her licence as it was her birthday, and to look at the picture in her wallet of her nephew, who she described as her son. The offender informed her that he was not going to hurt her anymore and that his train was coming soon.

25. She felt the tracks vibrate and believed the train was coming towards the station and was concerned that she might be run over by a train. She looked up and saw the offender running away from her over the train lines, and, at that point, the Sydney train came in between him and herself, and continued through, and once it was through the offender was gone. The train pulled up at the station, and when it passed was no more than two to three metres away from her.

26. The offender, when he left, took with him her handbag. She put on her skirt and shirt and picked up the rest of her clothing and climbed back over the gates. She ran the short distance to Maitland Road and managed to flag down a passing motorist who took her in the back of his utility back to her car. She informed the motorist, "I have been bashed." The motorist gave evidence at trial, and stated that he had observed that she had blood all over her face.

27. NP was waiting inside the victim's car. NP gave evidence that when she walked back to TM's vehicle from the service station the victim was not there. She had walked back up to Maitland Road, and when she could not find TM she walked back to the car and sat inside it. She had remained in the car for about half an hour, and then the utility with TM sitting in the back of it arrived. NP observed that the victim had blood on her face and was crying, and that her eye was swollen.

28. TM told NP that she had been bashed and raped and that she had seen scars on the face of the offender and that his eye looked funny. TM wanted to go to hospital but instead drove NP at NP's request to Danger Park in Islington where NP purchased and injected some heroin. While in the car, the victim put her body suit and her bra back on under her outer clothing. Her evidence was that at this time she was vomiting blood and that they stayed there for about 20 minutes.

29. The victim then drove her vehicle with NP back in the direction of where the offences had occurred, however, they approached a police vehicle parked at the Caltex Service Station in the near vicinity and informed the officer that she needed to go to hospital. A highway patrol officer, Senior Constable Thomas, gave evidence confirming he had been flagged down at the Caltex Service Station at about 5.30am by TM and NP.

30. He had observed TM had bruising, bleeding and lacerations to her eye, face and lip area, and that she had complained that she had been sexually assaulted nearby. He then drove both women to the Newcastle Police Station where another officer became the officer‑in‑charge of the investigation.

31. Senior Constable Thomas transported both women to the John Hunter Hospital. TM underwent a sexual assault examination commencing at 7.15am. Vaginal swabs and smears and a blood sample were taken, and the body suit worn by her was collected. Semen was later detected on both the high vaginal smears and on the body suit. The semen was stored for later DNA testing. The doctor recorded in an expert certificate tendered at trial that the victim presented with a swollen left eye and that her face was covered in blood, and that she had a small laceration to her left upper side lip. He examined her external genitalia and reported that she was tender in touching the labia minora with no other obvious signs of injury or bruising.

32. Later that morning, a crime scene was established in the driveway off the cul de sac. Blood splatter was located on the ground next to the fence and swabbed. A used condom packet and soiled tissue were located on the driveway near the roller door and were seized. Photographs were taken and retained on the case file. The three items were secured with the SAIK on 30 December 1998.

33. The following day, photographs were taken of TM's facial injuries, but by the time of trial the photographs had been lost. On 30 December 1998, TM's mother took eight photographs of the injuries to her daughter's face, and those photographs were tendered in the trial. The blood swab, tissue, condom packet and SAIK kit were sealed and taken for forensic examination on 10 February 1999.

34. Testing established that the blood swab contained human blood of a type that could not exclude TM. DNA testing was not undertaken at that time. The tissue and condom and packet were not tested. The swab, condom packet and tissue were later returned to police and subsequently destroyed. By the date of trial, the officer who had become in charge of the investigation, Senior Constable Brooks, and the officer who had conducted the crime scene investigation, Senior Constable Hockey, had each retired from the New South Wales Police Service and suffered from medical conditions which made them unavailable to be called as witnesses at trial.

35. TM's evidence was that she had not met the man who had sexually assaulted and robbed her and detained her that night before. Of relevance in relation to her description given to the police was that the offender, as a result of an assault on him in June 1994, had suffered significant facial injuries involving his left eye and cheek, which required surgical repair, leaving him with some facial scarring and an irregular left eyeball.

DELAY

36. Although TM's principal statement was made on 30 December 1998, and NP's statement on 31 December 1998, in which NP identified the offender as being in the vicinity, no attempt was made by the officer‑in‑charge of the investigation to interview or arrest the offender at that time. It appears from the records that he suspended the case on 5 September 2002 and that no further action was taken on it. Considering the description given at the time by the victim and the identification by NP of the offender by name and his similarity in appearance to the description given by TM, it is at the least extraordinary that there was no further investigation prior to the case being suspended in 2002.

37. 11 years later, in March 2013, the case was reopened for investigation. Detective Senior Constable Grob received the case file from the New South Wales Police Forensic Intelligence Team for that purpose. On 7 September 2013, he conducted a video walk‑through of the crime scene with TM at Cole Street, Islington, and at the rail gates at the corner of Fern Street and Ivy Street, Hamilton. Several photographs were taken at that time and were later tendered in the trial, identifying the site where the sexual assault occurred and the area of the train tracks behind Hamilton Station.

38. On 27 September 2013, the offender provided a DNA buccal sample to police. On 28 October 2013, police received confirmation that the DNA recovered from semen detected on the high vaginal swab taken from TM on 30 December 1998 and from her body suit had the same DNA profile as that of the offender. On 6 November 2013, the offender was photographed pursuant to a forensic procedure. The photograph showed a scar under his left eye and an irregular left eyeball.

39. He attended Waratah Police Station on 6 November 2013 when he was charged. At the time, he declined to be electronically interviewed, as was his right. Each of the offences took place within a period of approximately two to two and a half hours from her being removed from her motor vehicle to the time at which she was left naked, lying on the ground near Hamilton Station. The three offences represent, in effect, a continuing course of conduct, the offender violently detaining TM for the purpose of having sexual intercourse with her, having that sexual intercourse and inflicting gratuitous violence on her before continuing the detainment by forcing her during that period to accompany him to the area near the Hamilton Railway Station before again further demeaning her by forcing her to remove all of her clothes, before then departing together with her handbag and identification documents.

40. The victim was, of course, a young woman who turned 20 on the day of the offences. There is no evidence that the offender had pre‑planned his conduct, rather than it being the spontaneous result of finding a young woman alone in a cul de sac and vulnerable, and reacting to the circumstances of her rejection of his inquiry as to whether she was a prostitute by telling him to “fuck off”. It is not difficult to understand and appreciate the terror and stress which the commission of these offences caused to the victim, as well as the infliction of significant injuries.

36. The offences are so interrelated that there is little, if any, purpose in assessing individually the objective seriousness of each offence. Each offence falls at least within the mid‑range of objective seriousness.

37. It is relevant to refer to the history of the offence, the offender having been arrested on 6 November 2013 and changed with the s 61J(1) offence only, and committed for trial at the Newcastle Local Court on 9 April 2014.

38. On 8 May 2014 (referred to as 2015 in the Crown sentence summary), the offender was arraigned in the Newcastle District Court and at that time the further counts were presented ex officio. The matter was then listed for trial to commence on 13 October 2014, at which time it was not reached. It was relisted for trial to commence on 3 August 2015; however, a number of applications were then made on behalf of the accused for a permanent stay and s 293 applications.

39. As a result, the matter did not proceed at that time but was relisted for trial on 18 April 2016. On that occasion, a trial date was vacated as the offender's counsel had a conflict, which it would appear was in relation to having more than one brief on the day. It was relisted to commence on 19 September 2016, when the trial did commence before me and proceeded over five days. On Friday, 23 September 2016, the jury returned verdicts of guilty in respect of each count.

40. On that date, bail was refused and the offender has been in custody solely in relation to this matter since that time.

41. There has, of course, been a considerable delay since the commission of the offences on 30 December 1998. There is nothing particularly unusual about the delay from the time that the offender was charged, particularly taking into account the reason for some of the adjournments. Nonetheless, that constitutes some delay.

42. However, from the date of the offence until 27 September 2013, when the offender provided a buccal sample, the delay is the result of the police having failed to properly investigate the matter when it was first reported. However, there had been no contact with the offender during that period by the police: that is, it is not a case where he was subject to the stress of having offences hanging over him for a substantial period of time. His first awareness of the investigation appears to be from 27 September 2013.

43. The passage of time, however, from the date of the offence is of course still relevant to the question of sentence. I simply note that any stress suffered by the offender could have only been at its worst since September 2013. On 18 November 2016, the sentence proceedings commenced. TM read out her Victim Impact Statement to the Court on that date. Her statement was eloquent as to the stress, suffering and sequelae caused as a result of the offender's conduct.

44. She has in the past received counselling and found the matter difficult to talk about, and felt embarrassed and shameful. She has become untrusting of men, she was embarrassed about her family knowing what had happened to her, she had been unable to return to work, and could not cope with the stress she felt she was placing on her family. She blamed herself, in part, for her parents subsequently separating, and her life, in effect, fell apart and she felt she had no control.

45. Her self‑worth diminished, as did her sense of independence, and she had difficulty sleeping for a period of two years because of nightmares and fear. It affected her appetite and her health suffered. She was fearful about being alone at night, and, as a result, continued in what she described as toxic and abusive relationships, as opposed to being alone. When out at night she was hyper vigilant, always looking for possible threats.

46. Of particular concern to her was that despite having reported the matter to the police, she observed the offender on random occasions in public places at Maitland, and, on occasion, close to her home. Her perception of the police investigation was that they were unwilling to assist her. That reaction, in the light of the failure to properly investigate the matter, would appear to be entirely reasonable. However, that is not the result of anything done by the offender, and there is no evidence that he was aware of her or endeavouring to intimidate her by being seen by her at Maitland.

47. She also said that the assault had impacted her in respect of the way that she raised her children, being overprotective, and fearing that the offender might hurt her children in retaliation for her reporting him to police.

48. I accept that the adverse effects of the offender's conduct on the victim are substantial, but they are, however, entirely within the range of what can unfortunately be expected in relation to offences of this nature.

SUBJECTIVE MATTERS

54. While the offender gave evidence at trial, he did not give evidence on sentence. The subjective matters are taken from the following: a Pre‑Sentence Report by Ms Fimo Gnari, a Community Corrections officer, dated 17 November 2016, an attached case note report being a pre‑sentence consultation due to the nature of the offences, particularly, in relation to risk assessment, the offender's criminal history, a discharge summary, being Exhibit C1, relating to one of the offender's sons, JC; and his discharge referral from John Hunter Hospital in respect of a report of suicidal thoughts - a report by his school when he was confronted by a teacher for misbehaving in class and he indicated that he wanted to die, although, subsequently indicating that he had no such plans to harm himself, and that he was just angry when he had said that to the teacher; a report of Dr Christopher Bench, a forensic psychiatrist, dated 14 November 2016, Exhibit C2. A report of Mr Learmouth, clinical psychologist, dated 17 June 2013, being a report for the purpose of an application for Victim's Compensation in respect of an assault on the offender on 31 December 2010, and an updated report from Mr Learmouth of 5 February 2016, being for the purpose of the current proceedings and being Exhibit C4. In addition, finally, there is a letter to the Court from Chaplain House, being the chaplain at the Metropolitan Remand and Reception Centre, dated 15 November 2016. That report indicates that the offender is a regular at the Sunday chapel service, and is perceived by the chaplain as being helpful and encouraging and of good standing at the centre, with no charges pending.

55. It is perhaps appropriate to first deal with the offender's criminal history, and, although, I have not referred to it, there is a Department of Corrective Services Conviction Sentences and Appeals Report, dated 31 July 2015 - that is, it does not cover the period since bail was refused.

56. The offender was first in difficulty as a juvenile for an offence of assault female in 1988. He received a s 33(1)(b) order to be of good behaviour for 12 months. He had no further difficulties until an offence in February 1990, dealt with in October 1991 at the Newcastle District Court, being three offences of break and enter with intent to steal. He received, in respect of two of them, Community Service Orders of 150 hours, and in respect of the third, a bond of four years with supervision by Community Correction Service in respect of counselling re alcohol.

57. There was a further offence committed in March 1990 of assault with intent to rob also dealt with on the same date in October 1991, at the Newcastle District Court, for which he received a 200 hours Community Service Order. There are further offences in November 1990, dealt with at the Maitland Local Court later in that same month, being offences of common assault and offensive behaviour. In respect of each he received fines.

58. In September 1991, there was a further offence at Maitland, being an offensive manner, also dealt with in the Maitland Local Court in October 1991, for which he received a fine. In 1992, in August, he received a fine and a disqualification period for a mid‑range PCA.

59. The most significant offence of the offender's criminal history is an offence committed on 18 October 1992. On 25 June 1993, he entered a plea of guilty to a charge of manslaughter in the Newcastle Supreme Court. He was sentenced to a term of nine years' imprisonment with a five year minimum term, and at the time there were further matters taken into account on a Form 1, being malicious damage by fire and two counts of assault.

60. Since that time there was one offence of common assault committed in December 2002, in relation to which he received a three year s9 bond at the Maitland Local Court on 30 January 2003, and a further offence dealt with at the Maitland Local Court in March 2015, being drive recklessly, furiously or speed manner dangerous, in respect of which he received a s 10 bond of 12 months.

61. Clearly of relevance in relation to the current offending are the offences involving violence in the past.

62. Since the completion of his sentence in respect of the manslaughter charge, the offender appears to have substantially mended his ways, with the exception of this matter, committed on 30 December 1998. In respect of that offence he first became eligible for parole on 16 October 1997; however, he was not released on that date but was released to parole on 7 October 1998. These offences occurred approximately two and a half months after he had been released on parole and was still subject to parole which did not expire until 16 October 2001.

63. The offences not having been linked to the offender by the investigation, he was of course not breached in respect of the parole period and completed the term of parole otherwise successfully. The Pre‑Sentence Report indicates that when released on parole the Community Corrections records revealed that he satisfactorily completed his order, the case management strategies having focused on his substance abuse issues and anger issues.

64. Although there is no current Corrective Services Conviction, Sentences and Appeals Report before the Court, the Pre‑Sentence Report indicates that he has not incurred any institutional misconduct charges since bail was refused at the conclusion of the trial. The fact that he was on parole at the time does not aggravate the objective seriousness of the offence, but it is clearly relevant to the question of what sentence should be imposed. As referred to by Greg James J in R v Huynh [2003] NSWCCA 239:

"…it is a consequence of having enjoyed conditional liberty upon an undertaking to be of good behaviour that if you breach that undertaking you aggravate your culpability for the offence you commit which constitutes the breach…"

65. In R v Moffitt [1990] 20 NSWLR 114, it was held that the offender should not only suffer the revocation of his parole and the consequent need to serve out the balance of the original sentence (not applicable in the circumstances of this matter) but should also suffer a significant punishment for the later offence to mark the gravity of his conduct and abusing his parole.

66. As previously stated, the offender is now 45 years of age. These offences occurred when he was 27. He was born in Newcastle and raised in the Maitland area; he is the younger of two children; he has an older sister. His father was a labourer with BHP and apparently a hard worker and good family provider, being a kind man and a family man who focused on his children. The offender's father died of a heart attack in 2010, and his mother, who was primarily responsible for the house and childcare, although she had also worked as a cleaner and at a chicken farm, died of cancer in 2000.

67. His parents apparently had a good relationship and there were no domestic violence, drug or alcohol problems or any mental health issues or criminality associated with the family. His adolescence was behaviourally problematic. From the age of five years old, he would occasionally be returned to the family by police after he had absconded. He describes himself as being uncontrollable and oppositional as a child with severe problems with attention and hyperactivity throughout his childhood, requiring various consultations with mental health professionals due to his conduct related issues.

68. He was formally diagnosed with ADHD when he was 21 years of age and in custody. As a child, he had been "flogged weekly" with a jug cord and harshly disciplined, although, he perceived those punishments as being reasonable given the intensity and severity of his behaviour. He was, however, always welcome at home. He has never been married. He had a 15 year de facto relationship which resulted in three children, two boys and one girl.

69. His children have their own problems, having been variously diagnosed with ADHD, learning delays and requiring family intervention by the Child and Adolescent Mental Health Team.

70. The offender completed Year 9 and was expelled from Maitland Boys High due to behavioural problems in Year 10. In Year 3, he had spent six months in a boy's home due to behavioural problems. He was apparently often suspended and was a behavioural problem in both primary and secondary school, having conflict with teachers and below average grades.

71. He has not completed any further training. After leaving school, he worked briefly in a nursery, but was fired due to conflict, and of course spent a significant period of time serving the non‑parole period in respect of the manslaughter charge. He has been unemployed for much of his adult life and since being released on parole. His source of income for many years has been a disability support pension.

72. In 1993, he was assaulted while in the Junee Correctional Centre which required facial surgery to repair fractures. He is said to have suffered multiple facial fractures, his eye popping out of its socket, and he required resuscitation and cranial reconstruction. He had no long‑term neurological problems as a result of that assault but had partial permanent loss of vision on the left side. What is contained in the report of Dr Bench is based on self‑reporting by the offender to Dr Bench.

73. There is no evidence before the Court that the assault, other than leaving him with the discernible features reported by the victim, had any relevant relationship to his offending conduct in December 1998. However, since that time he was the subject of a further assault on 31 December 2010. He was assaulted with a metal pole and suffered a fractured skull and bleeding on the brain, resulting in ongoing difficulties with memory, irritability and symptoms of depression, for which he has been prescribed antidepressants.

74. His decreased vision in the left eye from the assault in 1993 appears to be permanent, and the impairment of his memory as a result of the 2010 assault also appears probable to remain. As a result of the 2010 assault, he required medical rehabilitation specialists and a neuropsychiatry assessment and intervention of the Hunter Brain Injury Services. He has experienced ongoing problems with memory, having deficits in his long‑term memory recall, and also difficulties with his short‑term memory.

75. The report of Mr Learmouth of 17 June 2013 indicates that a neuropsychological report of 22 March 2011, in respect of the 2010 assault injuries included:

"…indicated that the post-assault brain injury did not suggest brain injury with catastrophic effects. Whilst CT scans found a skull fracture with associated extra axial hematoma, he did not require neurological intervention and his recovery was reported to be speedy and uncomplicated…"

76. It was noted that it was difficult for the assessment to disentangle the effects of Mr Cooper's low pre‑injury level of functioning from a pre‑existing attention disorder and also the previous head injury from the effects of assault. It was reported that the opinion was that the traumatic brain injury from the assault appeared to be mild to moderate in degree, and it was unlikely that Mr Cooper had suffered significant cognitive impairment.

77. Mr Learmouth diagnosed him as suffering from significant levels of anxiety and depression, and opined that he presents with a major depressive disorder as well as a post-traumatic stress disorder, the PTSD particularly arising from the combination of the two assaults that I have referred to. Prior to the 2010 assault, he already had pre‑existing symptoms of depression and anger, as well as having been previously diagnosed with ADHD.

78. I accept that since committing these offences in 1998, the offender did suffer from a serious assault which has had the adverse effects referred to. The most recent report from Mr Learmouth of 5 February 2016 was the result of a recent referral from the offender's general practitioner after he had been charged in respect of this matter, and prior to trial, and he noted that the offender, although he was a long‑term client of Mr Learmouth's, that he had a break from treatment and that his current referral was due to the exacerbation of symptoms of anxiety and depression due to current stress associated with court.

79. The offender commenced drinking alcohol at approximately 14 years of age, and he has a history of polysubstance abuse. In his early 20s, prior to incarceration, he was a frequent binge drinker, although by June 2013 he was said to drink no more than three or four beers on a weekend, and to have no current problematic drinking. At 14 years of age, he commenced smoking marijuana, his use increasing until he was first incarcerated.

80. While incarcerated, he occasionally continued to use marijuana. After leaving gaol, he used it only intermittently and since 2008 he had not used it. He has previously used oral and intravenous amphetamines prior to his custodial period, and tried LSD on one occasion. Again, whilst incarcerated, at 37 years of age, he tried ice on two occasions. There was, on the material before the Court, no association of either alcohol or any prohibited drug in relation to the offending behaviour.

81. There is no current indication that he has any continuing problem with alcohol and/or prohibited drugs. Prior to the refusal of bail, he had apparently entered into a new relationship of approximately three months duration, having separated from his de facto partner, the mother of his three children, at some earlier time. At the time of trial, he apparently had the custodial care of his two sons, both of whom, as I have referred to, have significant problems: between them covering ADHD, oppositional defiance disorder and intellectual disability.

82. I note the reference to the offender having been required to assist his sons by way of regular appointments, including occupational therapy, speech therapy, something referred to as “kaleidoscope counselling” and school.

83. I note a difficulty with respect to the psychiatric report provided by Dr Bench is that the material available to him was a bail report, Crown case statement, a document titled Agreed Facts, but unsigned and undated, and a letter by Virginia Taylor, who I presume was the solicitor referring Mr Cooper to Dr Bench. The significant difficulty is that Dr Bench otherwise only had information from the offender. Based on the subjective reports of the offender, of what he described as being a severe traumatic brain injury in 1994, which would appear to be inconsistent with other material, but that report by the offender together with the more recent assault in 2010 enabled a diagnosis of cognitive disorder due to traumatic brain injury. To the extent that that finding was based on a traumatic brain injury from the assault in 1993, it appears to be unsupported. However, I accept the assessment of Mr Learmouth previously referred to.

84. As to the offender's attitude to offending, the Pre‑Sentence Report indicates:

"When discussing the current offences, it was difficult to ascertain the offender's attitude to offending as he could not recall committing the offences. He denied committing the offences and indicated that when he was released from custody in October 1998 he engaged in consensual sexual activity with three prostitutes, believing that the victim was one of them. He was able to display some victim empathy, indicating that he feels sorry for her, however, 'cannot apologise for something he cannot remember doing'."

85. And further:

"…whilst it is noted that he had a previous substance abuse problem, he denied being intoxicated or under the influence of illicit drugs at the time of the current offences. In regard to the current offences, the offender cannot recall the exact details pertaining towards the commission of the offences and denies sexually assaulting the victim."

86. The offender, at trial, gave evidence in short that he could not remember the specific occasion, but, in effect, that it could not have been him that committed the offence because he only ever had consensual intercourse with women. Clearly, his evidence was disbelieved by the jury. The psychological pre‑sentence consultation with the New South Wales Department of Corrective Services assessed his risk of reoffending as being within the moderate risk category, although, the consultation was based on a file review only.

87. The Pre‑Sentence Report refers to him as being at a medium risk of reoffending. The matter was defended at trial, and there is no evidence of remorse or contrition before the Court. When he indicated some victim empathy by saying he "feels sorry for her", it would appear on the basis of the material that he is feeling sorry for her having been the victim of someone other than himself. I will note in relation to the offender's past criminal history that although there are some matters relating to assaults, two assaults, and indeed to assaults on females, with the exception of the commission of these offences in 1998, he appears to have significantly rehabilitated himself during the intervening period.

88. The only offence of violence other than these matters since he was released on parole in respect of the manslaughter offence was a common assault in 2002. He received a s 9 bond of three years from the Maitland Local Court, which would appear to indicate that it was a matter of a relatively minor nature. The matter of drive recklessly, furiously or speed matter dangerous in 2014 is of course not relevant to sentencing in this matter.

89. While I have indicated that there is no evidence of remorse or contrition, I accept in the circumstances, particularly, his lack of relevant criminal history since being released on parole, that there is at worst a moderate risk of reoffending. I further accept that the material indicates, as submitted by Mr Moir on behalf of the offender, that he has essentially in many ways rehabilitated himself since the commission of these offences.

90. For the purposes of sentencing, the Court must have regard to s 3A of the Crimes (Sentencing Procedure) Act 1999, and it must take into account any aggravating and mitigating factors as referred to in s 21A(2) and (3) of the Act as are present, and any other relevant factor. Any sentence imposed must reflect the objective seriousness of the offence as well as the need for both specific deterrence and general deterrence, as well as the fundamental purpose of punishment, that is, the protection of society.

91. I am satisfied pursuant to s 5 of the Act, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. Indeed, in respect of these matters there could not be any possible alternative other than a period of full‑time imprisonment. So much was conceded appropriately by Mr Moir. I note that the offender's incarceration will no doubt occasion some hardship, particularly, to his two sons, but such hardship could not possibly amount to “highly” exceptional circumstances as to justify a non‑custodial sentence; King v R [2010] NSWCCA 202 at 18, in which it was said:

“hardship to an offender's family caused by imprisonment is generally an irrelevant consideration and can only be taken into account in highly exceptional circumstances in justifying a non‑custodial sentence.”

92. I regard both specific deterrence and general deterrence as significant matters to take into account in respect of this matter, although, specific deterrence is perhaps somewhat diminished by the lack of offending since 1998. I have taken into account all of that material.

93. I propose to proceed by way of an aggregate sentence, noting when I do so, as previously referred to, that there is a significant overlap in relation to each of the offences being, in effect, part of a continuing course of conduct of serious offending involving differing types of offending, but overlapping.

94. I will, of course, also take into account the principle of totality. As I propose to proceed by way of an aggregate sentence, it is necessary to indicate the indicative sentence in relation to each of the three offences. Dealing with the indicative sentences in the order that the counts are contained on the indictment, the indicative sentence in respect of detaining TM with intent to hold her for advantage contrary to s 90A is four years.

95. In respect of the offence of having sexual intercourse with TM without her consent, knowing she was not consenting, and at the time immediately after sexual intercourse maliciously inflicting actual bodily harm on her, contrary to s 61J(1), the indicative sentence is eight years' imprisonment. In respect of the third offence of robbing TM of her handbag and its contents in circumstances of aggravation, that is, using corporal violence contrary to s 91(1) the indicative sentence is three years.

96. As previously stated, the offender has been in custody as a result of bail being refused on 23 September 2016. Although the offender was arrested on 6 November 2013, it appears that having been charged, he was released that day. Accordingly, it appears that the appropriate date to commence the sentence from is 23 September 2016. Can I just inquire whether anyone disagrees with that?

NASH: Not for the Crown.

MAKIN: No.

97. HIS HONOUR: All right, thank you. Mr Cooper, would you please stand?

98. You are sentenced to a term of imprisonment with a non‑parole period of seven years and six months, and a balance of term of two years and six months, meaning a total sentence of ten years' imprisonment, the sentence commencing on 23 September 2016. You will be first eligible for parole on 22 March 2024. You can sit down, thank you.

99. If I did not say it, you are convicted, obviously, in respect of the three offences. I have no doubt in view of your past criminal history that you fully understand that when released on parole you will be subject to supervision and conditions, and if you breach the supervision and conditions, you will no doubt expect to find yourself returning to prison.

100. It was submitted on behalf of the offender by Mr Moir that the Court should find special circumstances in sentencing the offender, such special circumstances justifying a variation in the statutory relationship between the non‑parole and the balance of term. It would be obvious from the sentence just imposed I have not accepted that submission. Mr Moir's submission was based, in large part, on an assertion of the need for a greater period of parole to assist in rehabilitation and the offender's children's difficulties.

101. Before a variation is made, it is necessary that the circumstances be sufficiently special; R v Fidow [2004] NSWCCA 172 at 22, Langbine [2013] NSWCA 88 at 54. A sentence of imprisonment is a necessary consequence of such serious offending. Difficulties in respect of the offender's children, whatever the length of the sentence, must of necessity follow, and alternative arrangements must inevitably have been arranged for them.

102. There is nothing in relation to the offender's state of health, although I accept that suffering from PTSD, depression and anxiety are matters that may make his time in custody more difficult for him than otherwise has already been taken into account, that is, both his children and his state of health, by way of reduction in the total term of the sentence. To further provide for a reduction in the statutory relationship between the non‑parole and parole period would amount to double counting and is to be avoided, as referred to in Fidow at (18), Langbine at 54, and Ho [2013[ NSWCCA 174 at 33.

103. I also note that two and a half years of parole is a substantial period of parole indeed. It is close to the practical limit of three years on parole supervision which an offender would receive under cl 218 of the Crimes (Administration of Sentences) Regulation 2008, but, in particular, in relation to the fact that I have taken all the matters referred to into account in imposing the total term it is inappropriate to double count by again allowing for them to reduce the statutory relationship

104. Is there anything that I have omitted or any error that has been detected?

NASH: Not from the Crown's perspective, your Honour.

MAKIN: No, your Honour.

HIS HONOUR: All right.

Decision last updated: 27 February 2018