Citation: R v Cooper, Michael James [2016] NSWDC 438
Court: District Court of New South Wales
Date: 24 November 2016
Judge: King SC DCJ
Background
The offender, a man aged 45 at the time of sentencing, appeared for sentence in respect of three serious offences committed on 30 December 1998, when he was 27 years old. The offences arose from a violent attack on a young woman, TM, who had parked her car in a side street of Islington, Newcastle, in the early hours of the morning after a night out celebrating her twentieth birthday.
The offender approached TM's vehicle, punched her in the face through the window, dragged her by the hair to a nearby driveway, and then raped her. Following the sexual assault, he subjected her to a sustained beating, stomping on her head and causing significant facial and bodily injuries. He then took her handbag by force and marched her through surrounding streets, including forcing her over locked gates at the rear of Hamilton Railway Station, before she was ultimately able to escape and seek help.
The offences went unsolved for many years. The case was eventually brought to prosecution after DNA obtained from the used condom the offender discarded at the scene was matched to the offender through a database comparison, leading to his arrest and ultimately a conviction at trial.
Legal Issues
- What sentence was appropriate for three serious offences (unlawful detention, aggravated sexual intercourse without consent, and aggravated robbery) having regard to their objective gravity and the offender's subjective circumstances?
- What weight should be given to the significant delay between the commission of the offences (1998) and sentencing (2016)?
- Whether the statutory relationship between the non-parole period and the balance of term should be varied on the basis of special circumstances, including the offender's health (PTSD, depression and anxiety) and the difficulties of his children.
Decision
King SC DCJ found the offences were of the utmost gravity. The sexual assault involved prolonged and forceful rape, and the subsequent beating was severe and gratuitous. The robbery was committed using significant corporal violence. The judge accepted the victim impact statement as reflecting the profound and lasting psychological harm TM had sustained, which continued to affect her nearly two decades later.
In assessing the offender's subjective circumstances, the judge took into account that the offences were historical, occurring nearly 18 years before sentencing, during which time the offender had not offended again. The judge also accepted that the offender suffered from PTSD, depression and anxiety, conditions that would make his time in custody more difficult, and that he had children whose circumstances would be adversely affected. These matters were reflected in a reduction to the total term imposed.
The judge declined to find special circumstances justifying a departure from the statutory relationship between the non-parole period and the balance of term. Relying on R v Fidow, Langbien v R, and Ho v R, the judge held that the matters relied upon had already been taken into account in fixing the total sentence, and to reduce the statutory ratio further on the same grounds would constitute impermissible double counting. The judge also noted that the resulting parole period of two and a half years was itself a substantial term, approaching the practical three-year supervision limit under the relevant regulation.
Orders Made
• Convicted of three offences
• Sentenced to imprisonment with a non-parole period of 7 years and 6 months and a balance of term of 2 years and 6 months (total sentence of 10 years' imprisonment)
• Sentence to commence on 23 September 2016
• First eligible for parole on 22 March 2024
Key Takeaways
- Where a sentencing court has already reduced the total term of imprisonment to account for an offender's health conditions and the impact of custody on dependent children, it will not also vary the statutory non-parole ratio on the same grounds, as this constitutes double counting contrary to principles in Fidow, Langbien, and Ho.
- A significant gap between the commission of offences and sentencing, here approximately 18 years, is a relevant subjective factor that may reduce the total sentence, particularly where the offender has not reoffended during the intervening period.
- DNA evidence obtained from material left at a crime scene can, decades later, produce a valid prosecution match through database comparison, enabling prosecution of serious historical offending.
- The objective gravity of offences remains the primary sentencing consideration; profound and lasting harm to the victim, documented through a victim impact statement, is a significant factor in the assessment of that gravity.
- Under clause 218 of the Crimes (Administration of Sentences) Regulation 2008, the practical upper limit of parole supervision is approximately three years, a consideration relevant to whether a departure from the statutory non-parole ratio would achieve a meaningful additional rehabilitative purpose.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61J(1), 90A, 95(1) and (2)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Administration of Sentences) Regulation 2008 (NSW), cl 218
Cases
- Ho v R [2013] NSWCCA 174
- King v R [2010] NSWCCA 202
- Langbien v R [2013] NSWCCA 88
- R v Fidow [2004] NSWCCA 172
- R v Huynh [2003] NSWCCA 239
- R v Moffitt (1990) 20 NSWLR 114