R v Hooper - [2023] VSC 398

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0283

DIRECTOR OF PUBLIC PROSECUTIONS	Crown
v
BRADLEY HOOPER	Accused

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATES OF HEARING:	22 and 23 March 2023
DATE OF SENTENCE:	11 July 2023
DATE OF REVISED REASONS:	12 July 2023
CASE MAY BE CITED AS:	R v Hooper
MEDIUM NEUTRAL CITATION:	[2023] VSC 398

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CRIMINAL LAW – Sentence – Child homicide – Actual circumstances of offending unknown – Whether offender committed uncharged acts – Contextual significance – Plea of guilty – Positive prospects of rehabilitation – No prior convictions – Consideration of principles in R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269 – Sentenced to 11 years’ imprisonment with a non-parole period of 8 years and 6 months – Sections 5(2H) and 5(2HC) Sentencing Act 1991 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S Clancy	Office of Public Prosecutions
For the Accused	Ms H Anderson	Gallant Law

HIS HONOUR:

Introduction

Bradley Hooper, on 31 August 2021, your eight-week-old son Alex died as a result of neurological injuries that you admit were inflicted by you in shaking the child. That incident occurred on or about Sunday 29 August 2021.

On 10 August 2022, you were charged with the offence of child homicide pursuant to s 5A of the Crimes Act 1958. On 2 November 2022, you pleaded guilty to that offence at a committal mention in the Magistrates’ Court. You were then arraigned in this Court on 10 November 2022 and again pleaded guilty to the one count on the indictment of child homicide. Child homicide is a category 2 offence under the Sentencing Act 1991. I will return to the consequences of that in due course.

The prosecution accepts your plea of guilty to child homicide was made at the earliest possible opportunity.

On 22 and 23 March 2023, in this Court, I heard an opening on behalf of the prosecution, a victim impact statement from the mother of the deceased child, as well as submissions from counsel on your behalf and the prosecutor as to the sentence that should be imposed on you.

The maximum penalty for child homicide pursuant to s 5A of the Crimes Act 1958 is 25 years’ imprisonment, increased from 20 years in 2020.

It is now my responsibility to sentence you for this offence.

Circumstances of offending
Background

Your son, Alex, was born on 2 July 2021 at the Royal Women’s Hospital by caesarean section. He was a healthy baby at birth. There are two older brothers. You and Alex’s mother had married in 2015 and ran a family business together concerned with furnishing properties listed for sale.

The method of birth by emergency caesarean section was unexpected and it meant that Alex’s mother required a lengthier recovery than was planned. That in turn meant that you were required to shoulder more of the burden for looking after the children, including Alex. So…

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 Hooper

Details

AGLC: R v Hooper [2023] VSC 398
Case: [2023] VSC 398
Decision Date: 11 July 2023

CaseChat Overview and Summary

The case of R v Hooper involved the defendant, Hooper, who was convicted of a child homicide. The specifics of the offence were not fully disclosed, leaving the actual circumstances of the crime unknown. The Court of Appeal of Victoria reviewed the sentence imposed on Hooper, considering the plea of guilty, the prospects of rehabilitation, and the absence of prior convictions. The appeal focused on whether the court had appropriately considered the actual circumstances of the offending and whether uncharged acts committed by Hooper should have been taken into account in the sentencing process.

The court had to determine if the trial judge had correctly applied the principles outlined in R v Verdins, R v Buckley, and R v Vo, particularly in relation to the circumstances of the offending, the plea of guilty, and the offender's prospects for rehabilitation. The appeal also examined whether the sentence imposed was appropriate, given the unique aspects of the case and the sentencing provisions of the Sentencing Act 1991 (Vic). The key legal issue was whether the trial judge had sufficiently considered the actual circumstances of the offending, including any uncharged acts, when determining the sentence.

The Court of Appeal concluded that the trial judge had appropriately considered the principles and factors relevant to sentencing in this case. The court found that while the actual circumstances of the offending were not fully known, the judge had adequately assessed the plea of guilty, the prospects of rehabilitation, and the absence of prior convictions. The appeal was dismissed, and the original sentence of 11 years' imprisonment with a non-parole period of 8 years and 6 months was upheld. The decision emphasised the importance of considering the offender's prospects of rehabilitation and the plea of guilty, while also acknowledging the unique and tragic nature of the offence.

No further orders were made by the Court of Appeal.

Orders