Citation: Regina v Terry William Cooper; Regina v Paul Anthony Cooper [2006] NSWDC 202
Court: District Court of New South Wales
Date: 21 September 2006
Judge(s): Nicholson SC DCJ
Background
Paul Cooper and his older brother Terry Cooper were sentenced following two separate assaults on Robert O'Connor at his home in Bexley on 29 March 2004. The events arose from pre-existing family tensions ahead of O'Connor's planned wedding, compounded by a dispute over alleged welfare fraud. Paul Cooper's de facto partner was O'Connor's daughter, and Paul had separated from her but remained in contact.
In the first incident, Paul Cooper punched O'Connor from behind and kicked him while wearing steel-capped boots. After leaving the scene, Paul Cooper made threatening phone calls and then returned with Terry approximately an hour later. In the second incident, the brothers arrived armed with a hammer (Paul) and a police-issue baton (Terry), and a sustained assault followed, seriously injuring O'Connor and a second victim, Hayden Batty.
The sentencing proceedings addressed three counts against Paul Cooper and one against Terry Cooper, all framed as assault occasioning actual bodily harm (AOABH), either alone or in company. The Crown originally presented charges of grievous bodily harm, but the court declined to accept guilty pleas on that basis, and fresh indictments were presented by agreement.
Legal Issues
- The appropriate sentences for each offender, having regard to the objective gravity of the offending and each offender's subjective circumstances
- Whether parity between co-offenders was properly maintained, given the differing roles, criminal histories, and circumstances of each brother
- Whether the sentences should be suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999, and on what conditions
- The weight to be given to forensic reports that had been altered or had material deleted from them before being tendered to the court
- The relevance of each offender's background, including childhood exposure to domestic violence and drug use, to the sentencing exercise
- The need for specific and general deterrence in the context of a domestic violence offence
Decision
The court characterised the offending as seriously aggravated. Paul Cooper's use of a hammer to strike O'Connor's hand and jaw, combined with his prior assault using steel-capped boots, his threatening conduct between the two incidents, and his leading role in returning armed to the scene, all elevated the objective criminality significantly. Terry Cooper's role in the second assault was assessed as less culpable: he attended with a baton and participated, but there was evidence he had earlier attempted to restrain his brother and had been drawn into events partly through family loyalty.
The court examined subjective matters for both men, including their exposure to domestic violence during childhood and their respective histories of drug use. The court noted that the pattern of violence in this offending mirrored, in some respects, the violence each had witnessed growing up. Drug and alcohol issues were accepted as relevant but did not diminish personal responsibility for deliberate, premeditated conduct.
Forensic psychological and psychiatric reports tendered on behalf of Paul Cooper had been altered, with deletions made to the originals. The court criticised this practice in plain terms. The alterations were treated as undermining the weight of those reports, and the court indicated that presenting modified expert reports to a sentencing court is a matter of serious concern.
On parity, the court sentenced Paul Cooper more heavily, reflecting his greater role and the number of charges he faced. The court ultimately suspended all sentences, conditional on each offender entering a good behaviour bond, submitting to supervision by Probation and Parole, and undergoing random drug testing. Paul Cooper was additionally required to engage in anger management counselling and therapy targeting problematic personality functioning.
Orders Made
Paul Cooper:
- AOABH on Robert O'Connor (first incident): 12 months fixed term imprisonment, suspended under s 12
- AOABH on Robert O'Connor whilst in company (second incident): 15 months non-parole period plus 9 months balance of term, suspended under s 12
- AOABH on Hayden Batty whilst in company: minimum 12 months plus 7 months balance of term, suspended under s 12
Terry Cooper:
- AOABH on Robert O'Connor whilst in company: 9 months minimum term plus 5 months balance of term, suspended under s 12
- Assault of Hayden Batty whilst in company taken into account on a Form 1
Conditions for both offenders (bond conditions):
- Good behaviour for the duration of the bond
- Notification of residential address and any changes to the Registry
- Supervision by Probation and Parole
- Random drug testing five times monthly for the first nine months, thereafter at Probation and Parole's discretion
Additional condition for Paul Cooper:
- Anger management counselling and therapy targeting problematic personality functioning, emotional regulation, and erratic thoughts and behaviours
Key Takeaways
- The District Court treated the use of weapons (a hammer, police-issue baton, and steel-capped boots) and the deliberate return to the scene after making threats as significant aggravating factors, elevating what might otherwise have been a lower-level assault into seriously culpable conduct.
- Parity between co-offenders does not require identical sentences where one offender played a more dominant role, initiated the violence on multiple occasions, and faced a greater number of charges.
- Altered or redacted forensic reports received strong judicial criticism: the court reduced the weight given to expert evidence that had been modified before being placed before the sentencing court.
- Childhood exposure to domestic violence and entrenched drug use were accepted as relevant subjective factors, but neither displaced the need for meaningful deterrence where offending was premeditated and involved significant violence against a family member.
- Suspended sentences under s 12 of the Crimes (Sentencing Procedure) Act 1999 remained available even for serious AOABH offending in company, provided appropriate supervision, drug testing, and counselling conditions were attached.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12 (suspended sentences)
Cases:
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Jamison Vincent [2006] NSWCCA 276
- R v Lovelock (1978) 33 FLR 132