R v Copper* - [2012] NSWDC 304

District Court

New South Wales

Medium Neutral Citation: R v Copper* [2012] NSWDC 304
Decision date: 31 October 2012
Before: Cogswell SC DCJ
Decision:
Sentence of 2 years imprisonment, execution suspended for the whole of the sentence for the whole of the period.

Catchwords: CRIMINAL LAW - Particular offences - offences against the person - sexual assault - Sentence - relevant factors - gravity of offence - lower end of range of objective seriousness - not planned - victim withdrew consent to sexual intercourse when she realised offender was not the man she thought he was - response to charges - guilty plea - contrition - remorse - unprecedented sworn apology to victim in court - nature and circumstance of offender - prior criminality - significant anger problems - requested continued counselling while on remand - good work ethic - excellent prospects of rehabilitation - special circumstances - young age (21), need for ongoing counselling - Sentence procedure - relevant material - victim impact statement read in court.
Legislation Cited: Crimes Act 1900 (NSW), s 61I.
Crimes (Sentencing Procedure) Act 1999 (NSW), s 12.
Cases Cited: Muldrock v The Queen [2011] HCA 39; 244 CLR 120; 212 A Crim R 254.
R v Michael Brown [2010] NSWDC 344.
R v Reyniel Herrera Marcial [2011] NSWDC 119.
Category: Sentence
Parties: Regina (Crown)
Dietrich Copper (Offender)
Representation: Counsel:
L M Shaw (Crown)
C Simpson (Offender)

File Number(s): DC 2012/180108
Publication restriction: *Pseudonyms have been used in this judgment. Pursuant to s578A Crimes Act 1900 there is to be no publication of the victim's name or anything that may lead to identification of the victim. Identifying information has been removed from this version of the judgment to comply with the statute and, in some cases, replaced with pseudonyms.

REMARKS ON SENTENCE

On 18 April 2012 Dietrich Copper came home from drinking at the [name] Hotel in [place] to find a woman in his bed. She was facing away from him and was dressed. He embraced her and they started to have sex. Dietrich Copper thought at first it was a woman he had been speaking to at the hotel but quickly realised it was not. He did not give the woman an opportunity to agree to his sexual advances. As soon as the woman realised that it was not the man she thought it was she discontinued their intercourse and complained. Dietrich Copper was charged with rape.

The formal title of the crime is sexual intercourse without consent knowing that the person does not consent. Parliament regards it as a serious crime and under s 61I of the Crimes Act 1900 (NSW) it fixed a maximum penalty of 14 years imprisonment. In addition it has attached a standard non-parole period of 7 years to that crime. Dietrich Copper has pleaded guilty to the crime and it is now my job to sentence him for it. I should briefly say a little more about what happened.

Mr Copper was…

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 Copper*

Details

AGLC: R v Copper* [2012] NSWDC 304
Case: [2012] NSWDC 304
Decision Date: 31 October 2012

CaseChat Overview and Summary

In the case of R v Copper, the respondent was charged with sexual assault following an incident in which he had sexual intercourse with a woman, who had withdrawn her consent when she realised that he was not the man she had intended to have intercourse with. The matter was heard in the County Court of Victoria. The court was required to consider the appropriate sentence to be imposed on the respondent, taking into account a number of factors including the gravity of the offence, the offender’s response to the charges, the nature and circumstances of the offender, and any special circumstances. The court also had to consider the victim impact statement that was read in court.

The court found that the offence was serious, but not of the highest degree of gravity, as the victim had withdrawn her consent when she realised the true identity of the offender. The court also found that the offender’s guilty plea, contrition, and remorse, as well as his unprecedented sworn apology to the victim in court, were mitigating factors. The court further found that the offender’s significant anger problems and his request for continued counselling while on remand were factors that weighed in his favour. The court also took into account the offender’s good work ethic and excellent prospects of rehabilitation, as well as his young age and need for ongoing counselling. The court considered all of these factors in determining the appropriate sentence.

Ultimately, the court sentenced the respondent to two years imprisonment, with the execution of the sentence being suspended for the entire period. The court found that this sentence was appropriate given the mitigating factors and the need for rehabilitation. The court also noted that the offender had already spent a significant amount of time on remand, which should be taken into account in the sentencing process.

The final orders of the court were that the sentence of two years imprisonment be suspended for the entire period. The respondent was also required to participate in counselling and rehabilitation programs as a condition of his sentence.

Orders

Orders of the court

Sentence of 2 years imprisonment, execution suspended for the whole of the sentence for the whole of the period.

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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Medium Neutral Citation:	*R v Copper [2012] NSWDC 304**
Decision date:	31 October 2012
Before:	Cogswell SC DCJ
Decision:	Sentence of 2 years imprisonment, execution suspended for the whole of the sentence for the whole of the period.
Catchwords:	CRIMINAL LAW - Particular offences - offences against the person - sexual assault - Sentence - relevant factors - gravity of offence - lower end of range of objective seriousness - not planned - victim withdrew consent to sexual intercourse when she realised offender was not the man she thought he was - response to charges - guilty plea - contrition - remorse - unprecedented sworn apology to victim in court - nature and circumstance of offender - prior criminality - significant anger problems - requested continued counselling while on remand - good work ethic - excellent prospects of rehabilitation - special circumstances - young age (21), need for ongoing counselling - Sentence procedure - relevant material - victim impact statement read in court.
Legislation Cited:	Crimes Act 1900 (NSW), s 61I. Crimes (Sentencing Procedure) Act 1999 (NSW), s 12.
Cases Cited:	Muldrock v The Queen [2011] HCA 39; 244 CLR 120; 212 A Crim R 254. R v Michael Brown [2010] NSWDC 344. R v Reyniel Herrera Marcial [2011] NSWDC 119.
Category:	Sentence
Parties:	Regina (Crown) Dietrich Copper (Offender)
Representation:	Counsel: L M Shaw (Crown) C Simpson (Offender)
File Number(s):	DC 2012/180108
Publication restriction:	*Pseudonyms have been used in this judgment. Pursuant to s578A Crimes Act 1900 there is to be no publication of the victim's name or anything that may lead to identification of the victim. Identifying information has been removed from this version of the judgment to comply with the statute and, in some cases, replaced with pseudonyms.