Regina v Terry William Cooper; Regina v Paul Anthony Cooper

[2006] NSWDC 202

CITATION:	Regina v Terry William Cooper; Regina v Paul Anthony Cooper [2006] NSWDC 202
JUDGMENT DATE:	21 September 2006
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	TERRY COOPER – 04/11/1138; Convicted.; Sentence 9 months N.P.P. and 5 months balance of term.; Suspended pursuant to s12 C(SP)A. Conditional upon entry into s12 Bond with conditions.; PAUL COOPER 04/11/1140; Convicted.; AOABH on Robert Connor - Sentence 12 months fixed term imprisonment.; AOABH to Robert O'Connor whilst in company - Sentence 15 months non-parole and 9 months balance of term; AOABH to Hayden Batty whilst in company - Sentence minimum 12 months and 7 months balance of term; Suspended pursuant to s12 C(SP)A. Conditional upon entry into s12 Bond with conditions.
CATCHWORDS:	Criminal Law - Sentencing - co-offenders - assault occasioning actual bodily harm in company - objective criminality - aggravating features - use of hammer, police baton, steel capped boots to advance assault - domestic violence offence - subjective features - domestic violence figures in childhood - drug issues - alterations to and deletions from forensic reports criticised - deterrence - issues of parity - suspended sentences
LEGISLATION CITED:	Crime (Sentencing) Procedure Act 1999
CASES CITED:	R v Thomson and Houlton (2000) 49 NSWLR 383 R v Jamison Vincent [2006] NSWCCA 276 R v Lovelock (1978) 33 FLR 132
PARTIES:	Regina Terry William Cooper Paul Anthony Cooper
FILE NUMBER(S):	04/11/1138; 04/11/1140
COUNSEL:	J. Bowers - appearing for the Crown J. Stratton S.C. - appearing for Paul Cooper
SOLICITORS:	Mr G. Murray appearing for Terry Cooper

Sentence

1 HIS HONOUR: Paul Anthony Cooper is six years younger than his brother Terry. For several years his partner had been Rochelle O’Connor. Her father, Robert O’Connor was planning to marry for a second time. His intended bride was Joan Murray. The events that are the focus of these sentencing proceedings occurred about two weeks before the intended marriage.

2 In submissions it was suggested the origin of the dispute leading to Robert O’Connor and another man being significantly injured, centred around who was to be the flowergirl at the wedding. While the agreed facts do not support that submission, the proposition really advanced by the submission is that big events, such as weddings, carry with them significant tensions within a family. In this case there were also pre-existing tensions between Paul Cooper and his de-facto father-in-law. All of these tensions exploded into unacceptable, indeed criminal conduct by Paul Cooper and his older brother, Terry.

3 There were two incidents that occurred about an hour or so apart on 29 March 2004 at the home of Robert O’Connor. Arising out of these incidents, Paul Cooper has been charged with assaulting Robert O'Connor, thereby occasioning to him actual bodily harm. He has further been charged that later that afternoon while in the company of his brother Terry he assaulted Robert O’Connor thereby occasioning to him actual bodily harm and finally he has been charged that at the same time and place as the second assault, still in the company of his brother Terry he assaulted Hayden Batty thereby occasioning to him actual bodily harm.

4 Arising out of the incidents Terry Cooper has been charged that he, in the company of his brother Paul, assaulted Robert O’Connor thereby occasioning to him actual bodily harm. He has also asked me to take into account, on a Form 1, his acceptance of guilt in the matter of assaulting Hayden Batty whilst in company, thereby occasioning to him actual bodily harm.

5 Those charges were the subject of fresh indictments presented by the crown this morning. There were charges similarly framed, excepting that the latter two charges against Paul Anthony Cooper were expressed to be grievous bodily harm occasioned to each of the victims, and the same situation applied for Terry Cooper. I had indicated my reluctance to accept a plea of guilty to allegations of occasioning grievous bodily harm and as a consequence of that and by agreement between the parties, the fresh indictment was presented.

FACTS

6 The facts in the matter are the subject of agreement between the respective parties. I have sought to embody them into one set of facts.

7 Terry Cooper is the older brother of Paul Cooper. Terry Cooper was born in October 1996. His younger brother was born in November 1972. Paul Cooper was in a de facto relationship with Rochelle O'Connor, who was the daughter of Robert O’Connor. Robert O’Connor was born in October 1948. In March 2004 Paul Cooper was no longer living with Ms O’Connor but they had, between them, three children and were, in March 2004, still on friendly terms.

8 Robert O’Connor was living with Joan Murray at Abercorn Street, Bexley. They planned to marry on 10 April 2004. In mid March 2004 a dispute arose between Rochelle O’Connor and Joan Murray concerning Paul Cooper’s use of a motor vehicle. Robert O’Connor spoke to his daughter about that matter and it affected, it is said, the arrangements for the wedding.

9 By Monday, 29 March 2004, Rochelle O’Connor, incorrectly as it turned out, assumed that Joan Murray had falsely raised issues with CentreLink about Rochelle O’Connor’s entitlement to benefits from that organisation or indeed the Commonwealth Government. Rochelle discussed the matter with Paul Cooper and decided to confront Ms Murray at her Bexley home.

10 Paul Cooper and his brother, Terry, went with her. The two brothers and Rochelle O’Connor arrived at about 4.30pm. It would seem Ms O’Connor spoke to Robert O’Connor at the back of the house. It is not clear, but I am assuming that Paul Cooper was there. Rochelle O’Connor and the offender were abusive to Robert O’Connor. Joan Murray arrived home from shopping, was taking groceries from the back of her own car when Rochelle O’Connor ran up to her and abused her verbally.

11 It would seem Rochelle O’Connor, in the course of that verbal assault, also physically assaulted Ms Murray by punching her. Mr O’Connor took hold of his daughter. I have inferred he did so to restrain her. Paul Cooper then hit Robert O’Connor in the head from behind, knocking him to the ground. Paul Cooper, who was wearing steel capped boots kicked Robert O’Connor in the head and back, while verbally abusing him. Moments later Terry Cooper intervened and Paul Cooper pulled his brother away from Mr O’Connor.

12 Mr O’Connor sustained red abrasions to his head and lower back as a result of the assault. Shortly the two Cooper men and Rochelle O’Connor departed in Cooper’s white Holden Commodore. Before leaving, Paul Cooper made threats to return saying “It’s not over.” and “It’s not finished.” and “I’ll fix you up.” It is said he also threatened to harm Joan Murray’s daughter, Toni Fong, who was involved in the initial dispute concerning Paul Cooper.

13 Mr O’Connor was sufficiently concerned to telephone the police to report the incident at 4.53pm. That assault constitutes the first count in the indictment against Paul Cooper.

14 After speaking to the police Mr O’Connor called his daughter to let her know that the police were involved. Paul Cooper answered this call. O’Connor said to him “Don’t come back” and told him that other people, including several young men, were with him (O’Connor). Paul Cooper continued to be abusive over the phone, saying, “I don’t care, I’ll come and fix you up.” Following that call O’Connor again called the police to indicate what he regarded as a continuing threat.

15 That conversation and Paul Cooper’s intent to drive back must have come to the attention of Rochelle O’Connor, because she spoke to Terry Cooper indicating that she was worried that Paul Cooper might hurt her father. Indeed Paul Cooper had determined to go back to Bexley to continue the confrontation. He took Terry Cooper with him. When they arrived at the house it was now about 5.45p.m. A neighbour saw them alighting from their car holding weapons which were identified as a hammer, in the hands of Paul Cooper and a police issue type baton, in the hands of Terry Cooper.

16 Paul Cooper then walked up to Robert O’Connor, who was outside the front of his home. Terry Cooper was close by holding the baton. Paul Cooper was abusive and swinging the hammer down into the palm of his hand as he approached Robert O’Connor. O’Connor went to grab the hammer from Cooper, Paul Cooper swung the hammer down hard on O’Connor’s left hand causing immediate and severe pain. Paul Cooper then swung the hammer into O’Connor’s left jaw and O’Connor fell to the ground. By that stage other people, including Toni Fong and several young men, who were friends of Mr O’Connor’s and his intended wife were at the house. They came outside to help him. Paul Cooper, still aggressive, was close to O’Connor swinging the hammer and calling out “Come on, who wants to be next?” Terry Cooper was holding the baton in the air, moving it at the others. He used his arm to prevent them from coming to O’Connor’s aid. He was saying things like “Don’t come near them, it’s got nothing to do with you. This conduct constitutes the second count in Paul Cooper’s indictment and the sole count in Terry Cooper’s indictment.

17 Among the young men was one Hayden Batty, born in December 1980, making him then twenty-three years old. He came to O’Connor’s aid. Batty punched Terry Cooper in the face. Batty also punched Paul Cooper, who then swung the hammer into Batty’s hand and then into the back of his head sending him to the ground. A short time later the steel baton was taken off Terry Cooper and he and Paul Cooper then headed for their car, followed by the young men, some of whom were holding wooden bats.

18 Paul Cooper went to Rochelle O’Connor’s home and told her that he had hit Hayden Batty. Police were again contacted, they arrived at the house about ten minutes after the offenders had decamped. Robert O'Connor and Hayden Batty were found at the rear of the house, bleeding and injured. They were conveyed, by ambulance, to St George Hospital. Police found the steel baton and wooden bats used during the incident. A photograph of those was exhibited. What is described as a wooden bat in the photographs and the agreed facts would, it seemed to me, be better described as a pick handle or mattock handle.

19 A short time later police located the offenders, who were arrested. The white Holden Commodore was searched, police found two hammers, one beneath the driver’s seat and one under the front passenger’s seat. One of those hammers has been exhibited, at least a photograph of it has been exhibited. It’s not a normal claw hammer, but rather a hammer having two flat circles at each end, I would think used in a blacksmith 's or farrier’s shop for flattening things out or driving nails into hooves.

20 Coincidentally, so far as the surname is concerned, a Dr Terrence O’Connor treated both victims, at St George Hospital. He diagnosed a fractured left wrist, laceration and contusion to the left side of O'Connor's face, cuts to his right finger and lower back. The injury to O’Connor’s wrist required surgery and the insertion of a pin.

21 Hayden Batty sustained a laceration to the back of his head, requiring suturing. He also received a contusion to his left hand a sprained left finger.

OBJECTIVE CRIMINALITY

22 From the facts as he finds them to be the sentencing judge is required to assess the objective criminality of the offences before the Court as an essential step in assessing the seriousness of the criminal behaviour of each of the offenders. That is done by comparing objectively the criminality exhibited by each in the instant offences with criminality of offences of a similar genre. It is in this way that the seriousness of the criminality of these offences can be evaluated. The objective criminality obviously has an important impact upon the overall sentencing outcome.

23 These offences have, at their heart, the administration of violence to the person of Robert O’Connor and to a man, Hayden Batty, who appears to have come to his aid. O’Connor was twice attacked by Paul Cooper. The first attack would appear to have occurred in circumstances of escalation of tension between Paul Cooper and O’Connor, as a result, perhaps of O’Connor’s physical handling of his daughter. However the second attack upon O’Connor appears to have been premeditated by at least Paul Cooper.

24 Terry Cooper’s motive in attending the second incident was, at least in part, at the request of Rochelle O’Connor, who expressed concern for her father to him. It would appear his involvement occurred in circumstances where he was supporting his brother, notwithstanding any undertaking he may have earlier made to Ms O’Connor. There is no evidence that he contributed in any way to the injuries sustained by Robert O'Connor. It is true he was in the company of Paul Cooper, not just in arriving with him but in the presentation of weapons to him, that is towards Robert O’Connor and in ensuring or seeking to ensure that Paul Cooper had his way with Robert O’Connor without interference from any other source.

25 Paul Cooper’s infliction of injuries to Robert O’Connor’s wrist and left side of his face was done with a very dangerous weapon. Both attacks upon Robert O’Connor occurred on his property or least on the property he lived, if he didn’t own it. Citizens are entitled to feel more secure on their property and within their homes than anywhere else. In the normal course of events entry upon another’s property is by licence. It seems to me a fundamental condition of any licence would be that no harm would come to the grantor of such a licence. It must be a circumstance of aggravation that physical harm comes to one who abuses permission extended to him to enter the land or home of another.

THE USE OF WEAPONS

26 A hammer in the case of Paul Cooper and a US police style baton, in the case of his brother Terry, aggravates the seriousness of the second assault upon Robert O’Connor and the assault upon Hayden Batty. The fact that the hammer was used to the head is particularly serious given the risk of traumatic brain injury.

27 As to the assault upon Batty it should be noted that assault occurred in circumstances where an undisclosed number of young men came to assist Robert O’Connor. Terry Cooper was seeking to keep these persons away from O’Connor and Paul Cooper. I am satisfied some of these men were holding bats and one, at least, the pick handle which has been exhibited before me. I am satisfied Batty struck the first blow in his encounter with Terry Cooper and the first blow in his encounter, subsequently with Paul Cooper.

28 I am satisfied these blows were struck in defence of Robert O’Connor. However, it is open to find, and I do find, that Paul Cooper would not have struck Batty but for this intervention. In that sense the assault upon Batty was unpremeditated and spontaneous. There was, of course, always a strong likelihood, particularly given the warning that had been made on the telephone by O’Connor that someone would come to his rescue. Again the injuries to Batty’s head and hand were occasioned solely by Paul Cooper.

29 Paul Cooper’s criminality is greater than that of his brother Terry. There are two bases for so holding. Firstly, he was involved in all three assaults. Secondly, the level of his involvement in the last two was far greater than his brother Terry. Specifically it was he who occasioned the most serious injuries to the two victims. This appears to have been a situation where the initial ill will felt by Paul Cooper was focused originally through Rochelle O’Connor, upon Ms Murray. As with many domestic situations the physical violence however, was focused upon Robert O’Connor who appears to have little to do with the initial matters of contention causing the Cooper boys to go to the O’Connor household on the first occasions.

30 The question of intent is not an ingredient of assaulting, occasioning actual bodily harm. However, I am satisfied in respect of each assault that some bodily harm was intended. The continuation of the first assault, once Robert O’Connor was on the ground targeting his head and back with steel capped boots must be seen as an aggravating feature of that offence. It can also be seen as cowardly although that is something not punishable by the criminal law.

31 However, targeting the head exposes the victim to real risk of traumatic brain injury. Targetting the back of a victim exposes that victim to real risk of spinal and/or kidney and/or liver injury.

32 So far as the remaining offences were concerned, the use of weapons and the viciousness with which they were used bespeaks a serious level of violence. Having said that, however, it should be noted the level of violence by comparison with other indictable assaults is not as great, nor as sustained as is experienced by this Court in many of the cases it deals with.

33 The fact that the last two offences were done in company is not an aggravating factor, as the crown has argued, correctly in my view, because their being done in company is an element of each of the offences. The Crown sought to argue there was a disregard for public safety, if I have understood the arguments correctly. There were others in the vicinity. However a number of those young men were armed. As to the second group of assaults there is no proof any of the women were present in the front yard, although there is some evidence that Toni Fong did seek to intervene later in the fight.

34 It was argued, again by the crown, because of the age disparity the victim must be regarded as vulnerable. Paul Cooper is twenty-four years younger than O’Connor then aged 56. While there was an age disparity, fifty-six to thirty-two, I have not seen Robert O’Connor other than a photo of his upper body, demonstrating him after he had been injured. I am not prepared to accept the crown has proved this feature of aggravation beyond reasonable doubt.

35 I have had regard to the matters of aggravation enumerated in s 21A of the Crime (Sentencing) Procedure Act. The approach that I have adopted has sought to deal with all matters of aggravation by reliance upon the Common Law and relevant factors of aggravation when assessing the objective criminality. This is not a case where I would regard factors of aggravation enumerated in 21A being so prominent as to require them to be considered anew by reliance up on those statutory provisions.

SUBJECTIVE MATTERS

36 I turn now to the subjective factors. I am both entitled and required to do that, not only am I sentencing for the criminal offence but I am also sentencing each of these two offenders for their part in them. Each offender coming before the court varies from other offenders who stand or who have stood for sentence. Circumstances personal to an offender may offer to the Court some explanation and insight into commission of these offence by each offender; or some reason why a more or a less sentencing outcome is appropriate for that offender.

37 I commence by looking at the subjective matters for Paul Anthony Cooper.

BACKGROUND AND FAMILY DYNAMICS

38 Paul Cooper is today a single thirty-three year old man. He is the father of three daughters. The maternal grandfather of the daughters was the principle victim of his criminal conduct. His girls are aged eleven, nine and seven. Noelle O’Connor, the maternal grandmother says they have been living with him since Christmas of 2005. However Probation and Parole and Peter Ashcar put the date of continuous living with their father as February 2006. Paul Cooper was born in Newcastle, in November 1972. His co-offender is also his older brother. There are three sisters and an eleven-year old or perhaps now twelve year old brother. His parents separated when he was young, his father spent time in prison. He was raised by his mother and stepfather. His mother was subjected to daily physical abuse. His siblings, too occasionally experienced physical abuse at the hands of the stepfather. While he was not personally subjected to physical abuse, it would be obvious that the presence of such abuse must impact upon a young boy, learning how to interact with others.

39 Paul Cooper felt unloved, uncared for by his mother and a burdensome son to her as he grew up. Aged eleven he commenced living with his father. He remained in his father’s care until fifteen when he began living independently. From 1991 he was living in a relationship with Rochelle O’Connor, who’s part in these offences has been referred to. She, it seems, has a history of cannabis and amphetamine use. More recently she has formed a relationship with an injecting amphetamine user. That may be a factor in the offender being given full time custody over his three children by the Family Court.

40 Currently Paul Cooper is enjoying a relationship with a partner in her twenties. She has no history of drug abuse, criminal conduct or psychiatric issues. He told Peter Ashcar that he and his children are accepted by her and her family. For the past two years he has resided with his mother who told Ashcar that his relationship with his mother has changed for the better saying, “In the last couple of years she has always been there to help me ... we’re closer than we’ve ever been.”

EDUCATION, WORK SKILLS AND EXPERIENCE

41 Paul Cooper reports a 50 percent attendance at primary school because his parents required him to remain at home for chores and activities. During his high school years he lived with his father who required him to attend school. He still has difficulties with reading and maths. He said during school he was in the “lowest classes”. Given his intelligence is within the average range he may well have been experiencing impoverishment of basic reading and math skills that other children obtain during their primary schooling.

42 He left school, having completed Year 10; thereafter he held numerous positions in a timber yard, mechanic, with State Rail, factory work and a welder. Since February 2006 he has not engaged in paid employment, undertaking full time care of his children.

HEALTH

43 There do not appear to be any significant physical health issues. So far as one can judge from his appearance he is of medium build and appears fit for his age.

MENTAL HEALTH ISSUES

44 Testing has disclosed him to be of average intelligence. He gives a history of childhood neglect. Personality assessment tests suggest the presence of borderline personality characteristics. Such people may have difficulty regulating their emotions. They may present as impulsive, have marked reactivity of mood, inappropriate and intense anger, or difficulty controlling anger, and transient stress related paranoid ideation.

45 Some of those features appear present in the criminal conduct with which I am dealing. The offender told Probation and Parole in February of 2006 that he does not have any issues with aggression and is not inherently violent even though he witnessed violence as a child. He obtained some support for this proposition from his mother. Akker also opined the offender is not inherently violent. Akker thought, Paul Cooper would benefit from treatment targeting his problematic personality functioning. As will be seen shortly it’s not a diagnosis or a position that I agree with.

DRUG ABUSE ISSUES

46 Paul Cooper uses alcohol on rare occasions. He claims a long standing and entrenched history of cannabis abuse using up to 100 cones on most days between age twenty and thirty-two. I should indicate that I regardd 100 cones as a mammoth amount of cannabis for daily consumption. Indeed I regard it as approaching a dangerous level of consumption. His amphetamine abuse began when aged twenty-nine it was, it would seem, confined to week-end use or at least so it was said. The offender, however, told Peter Ashcar he was under the influence of both cannabis and amphetamine at the time of his criminal conduct. That is hard to reconcile with week-end use because 29 March was a Monday. He told Ashcar he had not used amphetamine or cannabis since the end of his relationship with his former partner.

47 It is Peter Ashcar’s opinion that Paul Cooper does not require treatment for problematic substance use, notwithstanding symptoms of craving and psychological dependence associated with the cannabis through a 12 year period. Ashcar’s final position appears to be that the drug use was strongly influenced by his associations at the time. I am not satisfied the offender can be regarded as risk free in respect of either drug.

CHARACTER

48 The offender first came to the attention of police in August 1992 when charged with two counts of assault. In 1996 there was a charge of malicious damage. Between 1995 and 1997 he was before the courts for a series of driving offences. A worrying feature of his record, during this period, is his unfortunate capacity to ignore orders of a court. The court had disqualified him from driving yet he drove within a two month period and again within a further month. In April '96 a court ordered him to serve a six month term of imprisonment by way of periodic detention, it must have been within at least 11 weeks he was no longer complying with that order. He was disqualified from driving yet again in April '96 and again within six months was ignoring that court order. In April 96 he was also given a good behaviour bond, that is a bond extended by the court to him on condition that he would be of good behaviour for three years, within six months he breached that bond.

49 That history does him no favours. To the extent that past behaviour is indicative of future conduct, that past behaviour is a strong, negative to non-custodial sentencing outcomes for him if the Court was to require anything of him as a consequence of the non-custodial orders. However, his overall record of offending is not bad. All of his prior offending conduct has been dealt with at Local Court level, that is to say all of the offences were regarded as summary offences.

50 There are other features of Paul Cooper’s character that can be taken into account. It would appear that he is a devoted father and a good provider to his children. He is well regarded by the material grandmother of the children. There are two other references from community members, one his aunt to support him. He claims his mother has significant health issues and requires his assistance on a regular basis. He is reported to assist in the maintenance of her home including shopping, cooking and caring for an eleven year old brother when his mother is incapacitated.

ATTITUDE TO OFFENDING CONDUCT

51 There was a long history of tension between Paul Cooper and his former partner’s father. The offender’s position is that he acted at the time of the first offence to protect his then fiancée

and his brother at the time of the second offence. He told Peter Ashcar, “I can’t handle someone being beaten ... I had a step-father who was a bit of a bastard ... used to beat my mother every day.” Several things flow from that conversation with Peter Ashcar and how it touches upon Paul Cooper’s assessment of his offending conduct.

52 Firstly, I am inclined to reject his claim to probation and parole in February of this year “that he does not have any issues of aggression and is not inherently violent due to violence his witnessed as a child.” The statement to Ashcar seems to suggest the opposite.

53 Secondly, the agreed facts before me do not fit the offender’s description of “someone being beaten”. Those facts postulate Rochelle O’Connor ran up to Ms Murray and abused her verbally, when Rochelle O'Connor punched Ms Murray, Robert O’Connor took hold of his daughter, as I have inferred, to restrain her. It was then that Paul Cooper hit O’Connor in the head from behind and then kicked O’Connor in the head and back while wearing steel capped boots.

54 Nor am I persuaded he acted to protect his brother, again the agreed facts do not support his claim. Terry Cooper went with Paul Cooper, both men alighted from the car carrying weapons. I note Terry Cooper was certainly under no threat at that stage. Paul Cooper walked up to O’Connor, who was outside his own house. It still does not appear to me that Terry Cooper is under any threat at that stage. Indeed Terry Cooper’s position was driving the others back as though he were ensuring that Paul Cooper was alone and able to act on his own, it does not appear to me that Terry Cooper was under threat at any time during that attack.

55 When others sought to approach, it was Terry Cooper who said, “Don’t come near them, it’s got nothing to do with you.” Meanwhile it was Paul Cooper who was saying to the would be defenders, “Come on, who wants to be next?” I gain no sense from those comments that Paul Cooper was seeking to defend his brother. On this account I can only be satisfied the offender has rationalised and sought to minimise the criminality of his involvement.

56 The offender did not give evidence but relied upon the Probation and Parole Report and the Forensic Personality Profiling Report of Peter Akker. Significantly each report seeks to analyse the offender’s “attitude to the offence”. Each report has a number of lines blacked out under this heading. That appears, to me, a new and questionable practise. None of the alterations was initialled by the author of the report. It must be remembered a report is the opinion of the author given in respect of issues sought by the solicitors to be addressed. In one case the report was completed in response to an order of the court. The deletion of the segments of a report, whatever the ethicality of it may be, must impact adversely upon the weight to be given to the balance of the report because, by virtue of the deletion, the report ceases to be as complete as it was when initially completed. Between the two reports a total of 20 lines of text has been deleted. I cannot speculate upon what was contained in the deleted portions, but I can and do infer that whatever was deleted did not assist Paul Cooper’s case on the issue of “attitude to offence.”

57 Further, the crown concedes in his written submissions, “the offender has shown remorse, he has expressed remorse to the psychologist”. With respect to the crown that is not my view of the evidence. Matters of mitigation must be proved on the balance of probabilities; it is an onus the defence bears. The relevant passage in the report is in these terms and the punctuation is important.

"Paul express regret for the events that transpired: ‘I wish to hell it had never happened …"

thereafter four lines of text is deleted. Significantly the speech quotations referable to Paul Cooper’s remarks to the psychologist are still open. Some or all of that text is a continuation of the speech. Again putting aside the ethics of that deletion and assuming for the moment the opinion expressed by the psychiatrist is properly one within his expertise the foundation material for it is selective.

58 In those circumstances the opinion could not survive, assuming, as I say, it was an opinion based upon his expertise. I find contrition has not been proved. It is likely Paul Cooper went to O’Connor’s residence to support Rochelle O’Connor in her complaint, to be made to Ms Murray. I accept that, against the background of his relationship with Mr O’Connor and in the circumstances of Rochelle O’Connor being physically restrained by her father, the offender “lost it”. It is concerning, nonetheless, his animosity towards Mr O'Connor is inhibiting a correct assessment of his criminal conduct. I have more to say about the use that I can make in fact of absence of contrition when I deal with Terry Cooper’s situation.

REHABILITATION PROSPECTS

59 This offender’s rehabilitation prospects appear reasonably sound.

• He has strong family support.

• Stressors between him and Mr O’Connor senior are minimised by the diminution of the role of the daughter in the life of Paul Cooper.

• Stressors relating to welfare of his children have been minimised because he is more directly involved in their welfare.

• There appears strong support from his new partner who brings or would appear to bring a good influence to his life.

• He enjoys good physical and generally good mental health.

• There appears to be a serious diminution, if not extinguishment of his drug abuse.

• I have assumed a regular cash flow to the offender in his capacity as full time carer to his children.

• His last offending prior to this matter was in 1999.

There are, however, three matters which suggest some caution in approaching his rehabilitation prospects.

• A lack of insight into and remorse for his offending conduct probably motivated by continued resentment of Mr O’Connor.

• Entrenched, although said to be past, drug history with features of psychological dependence and withdrawal cravings.

• A psychological profile that exhibits symptoms such as difficulty controlling emotion, impulsiveness, inappropriate and intensive anger.

60 One must of course remember that a personality profile is little more than a snapshot of a person on a given day and in given circumstances. No doubt, if the offender continues to refrain from mood altering drugs and drugs that impact upon mental health then the profile observed by Peter Ashcar may ameliorate to a more healthy one.

TERRY COOPER

61 Before I review the subjective features of this offender I should note that there is very little material before me. Indeed, there appears to have been far more material given to Michelle Micallef, from the Probation and Parole Service, than to the Court. She had the benefit of an interview with the offender, his partner, a resume provided by the offender, two employment related references, pay slips, reference from the offender’s mother and an updated reference from the personal support programme client manager dated 21/12/06, it might be 05 (in which case it may not be updated) and a forklift licence. By contrast, tendered by his legal representative was what appears to be a stale report from the personal support person client manager, a pre-sentence report ordered by the Court, a work/personal reference dated 21/01/06 not seen by Probation and Parole and an undated work reference, apparently seen by Probation and Parole from the plant manager.

62 One has to wonder whether Terry Cooper has been well served by a system that puts more material before a Government agency than before the Court determining his sentence.

BACKGROUND AND FAMILY DYNAMICS

63 Terry Cooper aged thirty-nine lives in a relationship with a partner twenty years younger than himself. They have been involved for three years. She reports to Probation and Parole their relationship as loving and stable. Significantly Terry Cooper’s partner presented to Probation and Parole as being anti-drugs. The offender has had two prior long term relationships, one of thirteen years, the other of three years. There are no children from any of the relationships. Although not led in his case I am aware his own parents had five children, three sisters and two boys. His brother is a co-offender.

64 Terry Cooper describes his early upbringing as being “raised in a family plagued with difficulties.” His parents separated when he was nine. His father became his principal carer. He is frustrated by tensions within the family that are still, apparently, ongoing between the parents. He spent fifteen years in Victoria. He told Probation and Parole that was to escape the animosity within the family. He finds the ongoing conflict and bitterness overwhelming. His oldest sister is the sibling to whom he is closest.

EDUCATION, WORK SKILLS AND EMPLOYMENT

65 Terry Cooper left school after completing Year 7. What age he then was is not in evidence, it is likely though that he was under fourteen in which case what pressures brought about him leaving school at that age are undisclosed but not unimportant. Not surprisingly his literary skills are limited. In the absence of a resume there is a longitudinal gap in his work history. I am satisfied there were substantial periods of unemployment. He has an eighteen months period of employment with Yates, at least that was the position when the undated reference was completed. That was a position that came to him as a result of his participation in a personal support programme starting in April 2002. I have what I regard as a stale report from Dennis Woo, his personal support client manager from Mission Australia who wrote

“the personal support programme is a two year programme which helps people overcome non vocational personal barriers to employment or change a long term pattern of behaviour. Mr Cooper is required to see me on a minimum monthly basis throughout the programme and he has been very compliant attending 26 appointments.

My role as Mr Cooper’s client manager is to assist, support and help him overcome his barriers through the programme. Secondly, help him gain employment. In his first six months in the programme I assisted Mr Cooper address the barriers of depression, aggression, alcohol and drug usage, paranoia and increasing his social supports. For the second six months, I assisted Mr Cooper on remain[ing] in his employment. Mr Cooper has been willing to discuss and work on his issues through the programme.

Mr Cooper has been working continuously since November [2004] with Yates and throughout that time he continued maintaining his appointments. Due to the regulations six months after he started employment he is required to exit the programme which occurred on 22 July this year. Since Mr Cooper started employment all his barriers have been reduced and they are no longer [of] major concern for him.”

I note that there is a reference of something occurring on "22 July this year" and that the reference is dated 21 July 2005.

66 One of the references given to Michelle Micallef is also before me. John Bobowski plant manager for Yates wrote

“Terry has been employed by Arthur Yates and Co for approximately 18 months. During this time I have found Terry to be a dependable and reliable person.

Terry was employed as a packer in our manufacturing division. Since then he has progressed to become a machine operator with the ability to operate all of our manual and automatic machinery as well as organising all packaging and quality control requirements and has acquired his forklift and front-end loader licences. Terry also has the ability to teach new employees the job functions required of them.

Terry’s most outstanding characteristics are an exceptional capacity for efficiency and organisation. In addition his diligence and attention to detail enable him to consistently deliver work of an extremely high standard. His skills are highly valued and he has become an asset to our company, as well as his workmates with whom he has built a solid and happy relationship.

Attendance - excellent.

Work attitude - excellent.”

67 Terry Cooper has, through his participation in the personal support programme come to a position where he has changed long term behavioural deficits, addressed significant personal and lifestyle issues, and maintained employment with Yates for at least an 18 month period. He reached a position where he was regarded as a valuable employee, all of that occurred since his offending conduct on 29 March 2004. And not without significance, all of it occurred while supported by his present partner.

HEALTH

68 As far as one can tell from appearances Terry Cooper appears to be fit and in good physical health for a man approaching his forties.

MENTAL HEALTH ISSUES

69 He gave a history of experiencing anxiety and depression to Probation and Parole. Dennis Woo noted depression, aggression and paranoia. He has apparently been on medication, in the past, for some of these symptoms. However, against a history of entrenched drug abuse medication was probably contra-indicated.

70 I should note in passing that paranoia is a by product of cannabis abuse [quite frequently].

ALCOHOL AND DRUG ABUSE

71 Dennis Woo noted “barriers” of alcohol and drug usage. Probation and Parole noted he had a history of poly drug abuse. Initially acid, progressing to amphetamines and cocaine. His most intense period of usage was in his early thirties as he sought to escape the burdens of an unhappy relationship. He tried to detox but was unsuccessful, however, he did maintain counselling “off and on” for a lengthy period. He credits his relationship as instrumental in his decline in and ultimate abandonment of drug use. He dates his cessation of drug use to May 2004.

72 He was honest enough to tell Probation and Parole he continues to struggle with his addiction in that he would find it difficult to refuse a drug if offered.

CHARACTER

73 Terry Cooper has no convictions within this jurisdiction. There are however a number of cannabis, alcohol and driving offences, that saw him before Magistrates’ Courts in Victoria. No convictions were recorded in some of the cannabis matters, however, a charge of trafficking amphetamine and driving whilst disqualified saw him given a seven month suspended sentence on each.

74 At the same time, for possessing amphetamine, he was given a 12 month community based order requiring him inter alia to submit to psychological/psychiatric assessment and treatment. His Victorian antecedent report covers a period from 1998 to October 2001. He has also been dealt with for a drive whilst disqualified in the ACT in February 2004. Overall his offending conduct has been confined thus far to the summary jurisdictions, with basically minor drug offences and driving offences and so far as I can so, no offences of violence.

75 While referring to character I remind myself of what I have already dealt with in his work history and the courage that that change in attitude must have taken.

ATTITUDE TO OFFENCE

76 There is an absence of any expressed contrition. It should be made clear to both this offender and to Paul Cooper an absence of contrition is not punishable by further punishment. It may, of course, mitigate punishment. It is, however, also important in assessing rehabilitation prospects. I am satisfied this offender’s initial motive in travelling with his brother to the O’Connor residence was, at least in part, driven by Rochelle O’Connor’s concerns, on both occasions, but particularly on the second for her concern expressed about her father. However, it would seem his own family loyalty superseded whatever good intentions he may initially have motivated him to attend on that second occasion.

REHABILITATION PROSPECTS

77 I regard this offender’s rehabilitation prospects as strong. In particular I am impressed by

• His commitment to the PSP programme since April 2004 and progress made through that programme.

• His recent employment history and improvement in his employment skill base.

• His claimed rehabilitation in drugs to a point where he says he no longer uses and the fact that his partner is not a user thus removing the “mutual dependence” syndrome.

• The changes that have been made in the past three years whilst being supported by his present partner.

On the negative side though there is the issue of his entrenched and lengthy history of poly drug abuse.

SETTING THE SENTENCE

78 The maximum penalty for the assault occasion actual bodily harm is one of five years. For the assault occasion actual bodily harm whilst in company is seven years. I remind myself that if they were being dealt with at the Local Court the maximum penalty for them would have been two years imprisonment, although there was a capacity to accumulate to three years.

PLEAS OF GUILT

79 The crown submits, and the proposition is not contradicted, that each offender pleaded guilty on the day set for trial. It must be remembered that on that day they pleaded guilty to offences of greater criminality than those presently before me. The pleas by both offenders represent a reluctant and last minute acceptance of responsibility for their participation in the criminal conduct with which they have been charged.

80 During the remand period there was inconvenience occasioned to one of the witnesses, Rochelle O’Connor, in that Paul Cooper was no longer able to access the children as a result of her becoming an intended witness in the crown case.

81 Paul Cooper has also complained on that score, but that is not relevant to any consideration of the utilitarian value of the plea. On the other hand members of the domestic framework that Paul Cooper was then operating in and other civilian and police witnesses have been saved the time and tension associated with being witnesses. Expense has been saved. Resources have been freed for other cases.

82 The case against Terry Cooper on the charge he faced and the Form 1 matter were, in my view, far from overwhelming on the agreed facts. What other facts were available of course is not for me to contemplate. In such circumstances the administration of justice is served by guilty persons acknowledging their guilt and being held accountable for it. By so doing the confidence of the community is maintained in the investigation of crime and the criminal justice system generally.

83 I intend to allow a discount of 20 percent for the plea of guilty made by each offender for each offence.

DELAY

84 This offence occurred in March 2004. The offenders were committed for trial on 7 September 2004. This Court strives to finalise matters within six months to a year of committal. It is now September 2006, two years later. But for four months between February 2005 and June 2005, the balance of adjournments sought were sought by the defence. In those circumstances I do not regard the delay as one amounting to a matter of mitigation.

DETERRENCE

85 In modern Australian society there is a very extensive raft of criminal laws passed by Federal and State parliaments. The chief purpose of the criminal law put in place by parliament is to deter those tempted to breach the provisions of the criminal law. Parliament does that by prescribing maximum penalties for those who engage in conduct prohibited by the criminal law. Consequently when a person is sentenced for a breach of the criminal law he or she is exposed to the possible maximum penalty provided by the statute breached.

86 Sentencing for breaches of the criminal law requires a sentencing judge to keep in mind the general deterrence aims of the criminal law for the community at large, by bearing in mind the maximum penalties available and their deterrent purpose. There is a specific deterrence aimed at individuals like minded to the offenders who, but for such deterrence, would be willing to commit crimes similar to those for which the offender is being sentenced.

87 Finally there is a component of deterrence to be considered personal to the offender, with a view to deterring him or her from re-offending. Clearly, keeping each of those notions of deterrence in mind must impact upon the nature of the sentence imposed and sometimes the quantum of sentence imposed.

88 This is an example of a domestic violence in the sense that the assaults upon Mr O’Connor represent violence administered upon a person whose relationship with the accused, Paul Cooper, was founded upon his domestic contacts. In such a case, given the prevalence of domestic violence within the community, general deterrence does have an important role to play.

FORM 1 OFFENCE

89 Taking a Form 1 into offence has the effect of driving the sentence of the indicted offence upward. The Chief Justice in speaking for the Court of Criminal Appeal in a guideline judgment on Form 1 matters made clear the rationale for the increase in penalty. He said

“The Court does so by giving greater weight to two elements which are always material in the sentence process. The first is the need for personal deterrence which the commission of the other offence will frequently indicate ought to be given greater weight by reason of the course of conduct in which the accused engaged. The second is the community’s entitlement to exact retribution for serious offences which are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they might otherwise be given when sentencing for the primary offence.”

GUIDELINE JUDGMENTS

90 The only other relevant guideline judgment is R v Thomson and Houlton (2000) 49 NSWLR 383. I have applied that judgment in reaching a discount of 20 percent to the sentences I otherwise would have imposed.

PARITY

91 Paul Cooper shares a common offence with Terry Cooper, that is the assault of Robert O’Connor in company. Terry Cooper asks that I take into account, on a Form 1, his involvement in the assault of Hayden Batty, while in company with his brother, that is an offence which Paul Cooper has also been charged with. I have just referred to the approach that I must take in dealing with Terry Cooper’s charge because of the Form 1 matter.

92 In any event from the facts as I have found them to be, the role of Paul Cooper in the commission of each of these offences and the infliction of injury was far greater than the role of Terry Cooper. In those circumstances parity is not called for (see R v Jamison Vincent [2006] NSWCCA 276 , R v Lovelock (1978) 33 FLR 132.

TOTALITY

93 Paul Cooper faces three charges, all offences were committed on the same day in circumstances where each appears to have its origins and aftermath in the initial argument between Ms Murray and Rochelle O’Connor. I intend to give, therefore, concurrent sentences to Paul Cooper in respect of each offence. However, I am required to reflect the total criminality in the overall sentence I impose. I intend to do so when setting the sentence for the most serious of the offences, namely the assault of Robert O’Connor, occasioning to him actual bodily harm while the offender was in the company of his brother.

INTERACTION OF OBJECTIVE AND SUBJECTIVE CIRCUMSTANCES

94 Each assault is particularly vicious for reasons I have given. In the two assaults common to the offenders weapons were used by each. I have determined that each offence calls for a term of imprisonment.

95 Dealing with the sentences to be imposed on Paul Cooper. In respect of the first offence, but for the plea of guilty, I would have imposed an overall sentence of fifteen months. I have reduced that sentence by three months for the plea of guilty, giving an overall sentence of twelve months. In respect of the second offence, but for the plea of guilty I would have imposed an overall sentence of two and a half years. I have reduced that sentence by six months for the plea of guilty, giving an overall sentence of two years. In respect of the third offence I would have set an overall sentence of two years. I discount that figure by 20 percent and I round up the discount to one of five months, giving an overall sentence of nineteen months.

SPECIAL CIRCUMSTANCES

96 There are good reasons for finding special circumstances. Special circumstances impacts upon the relationship between the parole period and the overall sentence. This offender needs to prove, over considerable time, his capacity to or the fact that he has rehabilitated in respect of drug abuse. The orders that I shall make will monitor that aspect of his rehabilitation.

• The offender has not been in full time custody previously. He is somewhat older than the bulk of the prison population, a situation that may become threatening to him.

• He is presently the sole custodian of his children. Once incarcerated other arrangements will need to be made, thereby making his custody time more arduous for him.

97 In respect of Terry Cooper, taking into account the Form 1 matter and bearing in mind his limited role in each of the offences, but for the plea of guilty I would have set an overall sentence of eighteen months. I discount that figure by 20 percent and round it up to four months giving an overall sentence of fourteen months imprisonment.

SPECIAL CIRCUMSTANCES

98 There are good reasons for finding special circumstances. The accused again needs to prove over a considerable time in the community his capacity to or the fact that he has achieved drug rehabilitation. The orders that I shall give will monitor that rehabilitation.

• This offender has not been in full time custody previously. At forty he is even older than his brother in respect of the prison population, a situation that may become threatening to him.

• He has demonstrated a strong capacity to rehabilitate through his participation in the PSP programme. Clearly given that he can rehabilitate in the community he should be given an opportunity so to do.

Paul Cooper – Conviction & Sentence

99 Paul Cooper I convict you of the offence that you on 29 March at Bexley in the State of New South Wales assaulted Robert O’Connor, occasioning to him actual bodily harm. For that offence I set a fixed term of twelve months imprisonment.

100 I also convict you of the offence that you at Bexley in the State of New South Wales on the same date while in the company of your brother Terry assaulted Robert O’Connor occasioning to him actual bodily harm. In respect of that offence I set a fifteen month non parole period and a nine month balance of term.

101 In respect of a third offence, namely at the same time and place and in the same circumstances, that is while you were in the company of your brother, you assaulted Hayden Batty thereby occasioning to him actual bodily harm. For that offence I set a minimum term of twelve months and a balance of term of seven months.

Terry Cooper – Conviction & Sentence

102 Terry Cooper I convict you that you on 29 March at Bexley while in the company of your brother Paul, assaulted Robert O’Connor thereby occasioning to him actual bodily harm. I take into account the matter on the Form 1. I sentence you to a nine months minimum term and a five month balance of term.

Suspending the Sentence

103 Pursuant to s 12 of the Crimes (Sentencing) Procedure Act conditional upon each offender agreeing to enter into a bond to be of good behaviour for the length of the relevant sentence and other conditions which I shall set out I am prepared to suspend each sentence I have just imposed. I will indicate the conditions, you will indicate to your counsel whether you agree to abide by these conditions and if you do then you will be entitled to enter into a bond.

104 The first condition is that you be of good behaviour for the relevant time. The second is that you give to the Registry here your residential address. The third is that you notify the Registry within seven days of any change in your residential address. Nextly, that you will answer any call up in this Court, before me or if I’m not available before any other judge, for any breach of the bond that occurs within the length of that bond. That will be explained to you by your counsel. Each of those conditions is a statutory condition, that is the Crimes (Sentencing Procedure) Act provides for.

105 These are my conditions. That you accept the supervision of Probation and Parole. I indicate that I only require that supervision for a specific purpose. The purpose is this, it’s the next condition. For the first nine months of the bond that you are serving you will submit to random drug testing five times monthly. Thereafter at the discretion of Probation and Parole while ever you are under their supervision.

106 It will be a breach of the bond if either you fail to give a sample, these days it seems to be a saliva sample or give a dirty sample.

107 Paul Cooper is to engage in counselling focused upon anger management and counselling targeting problematic personality functioning aimed at seeking insight into the development of problematic personality functioning and to stabilise erratic thoughts, feelings and behaviours and improving emotional regulation skills. Such counselling to continue at the discretion of his case manager with Probation and Parole.

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