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Supreme Court 5 September 2005

R v Bradley Douglas Cooper

[2005] NSWSC 791

HomicidePublic order & justice offences
CRIMINAL LAW SENTENCE MURDER RELEVANCE OF STANDARD NON PAROLE PERIOD

Citation: R v Bradley Douglas Cooper [2005] NSWSC 791
Court: Supreme Court of New South Wales
Date: 5 September 2005
Judge(s): Buddin J

Background

The offender was convicted by jury of murdering Dale Kevin Muldoon on 22 March 2003 at Lithgow. The fatal incident occurred at premises the offender shared with his de facto partner, after the deceased had spent the day consuming alcohol and cannabis and had come to the property. Following the killing, the offender enlisted the help of two others, including his 17-year-old niece, to dispose of the body.

The offender also pleaded guilty to disposing of the deceased's body with intent to pervert the course of justice. The Crown accepted that this plea was entered at the first reasonable opportunity. A co-accused, the offender's de facto partner, had been tried separately and acquitted of murder.

The sentencing proceedings required the court to assess the objective seriousness of the murder against the standard non-parole period framework, having regard to the particular circumstances of the killing.

  • Whether the murder fell at, above, or below "the middle of the range of objective seriousness" for the purposes of assessing the standard non-parole period under the Crimes (Sentencing Procedure) Act 1999
  • What weight to give to provocation and the absence of premeditation in fixing the non-parole period
  • How to structure the aggregate sentence across the two offences (murder and perverting the course of justice), including questions of accumulation, concurrency, and special circumstances
  • The relevance of comparable sentencing decisions from before the introduction of standard non-parole periods

Decision

Buddin J found that the objective seriousness of the murder fell below the midpoint of the range for such offences. Two factors were central to that conclusion: first, there was a measure of provocation (the deceased had made an offensive and inflammatory remark directed at the offender), and second, the killing was not planned or premeditated. The court emphasised that these factors did not justify or excuse the killing, describing the death as "unwarranted, needless and entirely without justification" and the offender's actions as "violent and brutal."

On the question of the standard non-parole period, the court engaged with the framework established in R v Way [2004] 60 NSWLR 168, which requires sentencing courts to determine where a particular offence sits relative to the mid-range before fixing a non-parole period. Because the offence was assessed as below that midpoint, a non-parole period shorter than the standard was imposed.

For the perverting the course of justice offence, the court took into account the early guilty plea. The sentence for that offence was made to commence before the murder sentence, reflecting the chronological sequence of events and the principles governing accumulation from Pearce v The Queen (1998) 194 CLR 610. The court noted that the resulting relationship between the total non-parole period and the total head sentence involved a slight departure from the standard statutory proportion, but no finding of special circumstances was sought or made.

Pre-Way sentencing comparisons from cases such as R v Hearne were considered, though the court observed that those decisions pre-dated the standard non-parole period regime and their utility was accordingly limited.

Orders Made

  • For the offence of attempting to pervert the course of justice: fixed term of 18 months commencing 18 June 2003
  • For the offence of murder: non-parole period of 16 years and 6 months commencing 18 December 2003, with a total sentence of 22 years expiring 17 December 2025
  • Eligible for release on parole on 17 June 2020

Key Takeaways

  • The Supreme Court applied the R v Way framework to determine that the murder fell below the mid-range of objective seriousness, justifying a non-parole period shorter than the standard 20-year period for murder.
  • Provocation and the absence of premeditation were the principal factors reducing the objective seriousness of the offence, even though neither factor provided any legal justification for the killing.
  • An early guilty plea to the perverting the course of justice charge was treated as a mitigating factor, consistent with the Crown's acceptance that it was entered at the first reasonable opportunity.
  • Where an offender is sentenced for multiple offences arising from related events, the principles in Pearce v The Queen govern the structure of accumulated sentences and the relationship between the overall non-parole period and the head sentence.
  • Sentencing authorities decided before the introduction of standard non-parole periods retain some relevance but must be applied with care, given the structural changes that regime introduced.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Pearce v The Queen (1998) 194 CLR 610
- R v AJP (2004) 150 A Crim R 575
- R v Hearne (2001) 124 A Crim R 451
- R v Isaacs (1997) 41 NSWLR 374
- R v MA (2004) 145 A Crim R 434
- R v Previtera (1997) 94 A Crim R 76
- R v Simpson (2001) 53 NSWLR 704
- R v Way [2004] 60 NSWLR 168
- R v Wickham [2004] NSWCCA 193
- Veen v The Queen (No 2) (1988) 164 CLR 465