AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 14 December 2018

R v Cooper

[2018] NSWDC 475

Assault & violenceTheft & propertyFirearms & weapons
SENTENCE: ABORIGINALITY MATTERS ON A FORM 1 OFFENCES ON PAROLE SPECIAL CIRCUMSTANCES PREPARATION FOR RELEASE TO PAROLE DRUG ADDICTION

Citation: R v Cooper [2018] NSWDC 475
Court: District Court of New South Wales
Date: 14 December 2018
Judge: S Norrish DCJ

Background

The offender, a 30-year-old Aboriginal man, appeared for sentence on four principal offences of robbery whilst armed with an offensive weapon, each carrying a maximum penalty of 20 years imprisonment under s 97 of the Crimes Act 1900. A large number of additional offences, including further attempted armed robberies, were taken into account on two Forms 1 (a procedure allowing related offences to be considered at sentencing without separate penalties being imposed).

All offences were committed in December 2016 across various Sydney locations, including petrol stations, a convenience store, and a hotel. The robberies involved the offender using weapons including a hammer and crowbar, and on at least two occasions he acted in company with others. One victim was struck on the head with a hammer, though no injury was reported. Total proceeds across the offences were modest.

Critically, the offender had been released on parole less than a month before committing the first offence, with approximately one year and nine months of his existing parole period remaining. The earlier sentence, imposed in 2015, had itself arisen from four charges of robbery whilst armed with an offensive weapon, making the pattern of offending a significant sentencing consideration.

  • What aggregate sentence was appropriate for four principal armed robbery offences and multiple Form 1 matters, having regard to totality?
  • How should Aboriginality, and the principles from R v Fernando, bear on the assessment of moral culpability and the sentencing exercise?
  • What weight should be given to the offender's drug addiction, including the physiological dimension of that addiction, in assessing moral culpability?
  • How should the offences being committed while on parole affect the sentence?
  • Whether special circumstances existed to justify a departure from the standard ratio between non-parole period and head sentence, given the offender's need for supervised preparation for release.
  • How should Form 1 matters influence the indicative sentences for each principal offence, consistent with the Henry guideline judgment?

Decision

His Honour imposed an aggregate sentence, noting the extensive overlap between offences in time and circumstance. Each guilty plea was entered at the first reasonable opportunity, attracting a 25% discount for the utilitarian value of those pleas. The court took into account that the offences were committed while on parole, a circumstance treated as a serious aggravating factor, particularly because the offender had reoffended in almost identical fashion to the conduct that generated his earlier sentence.

The court applied the principles in Bugmy v The Queen and R v Fernando, recognising that the offender's Aboriginality and its associated disadvantages, including exposure to violence, substance abuse, and social dysfunction, were relevant to moral culpability. His Honour accepted that severe drug addiction, including its physiological dimensions, reduced (though did not eliminate) the offender's moral responsibility for the offending. The court drew on R v Engert and R v Lewis in considering how mental and cognitive factors inform the balance between personal and general deterrence.

His Honour found special circumstances existed, justifying a non-parole period that represented a greater proportion of the head sentence than the statutory default. The offender required intensive supervised preparation for re-entry into the community, including drug treatment and rehabilitation support. The court expressly noted that the Parole Authority should ensure the offender receives professional assistance upon release, rather than being left without support.

The indicative sentences for each principal offence were fixed separately, consistent with the approach required under the Henry guideline and subsequent authority. Form 1 matters increased the weight given to retribution and punishment on the relevant principal offences, but the court was careful not to treat those matters as carrying a separately measurable penalty.

Orders Made

  • Aggregate sentence of eight years, six months imprisonment, commencing 19 November 2017 and expiring 18 May 2026.
  • Aggregate non-parole period of five years, three months, expiring 18 February 2023.
  • Indicative sentences:
  • Sequence 3 (first armed robbery, including Form 1 matters): 5 years, 6 months
  • Sequence 4 (second armed robbery): 4 years
  • Sequence 7 (third armed robbery, including Form 1 matters): 5 years, 9 months
  • Sequence 1 (fourth armed robbery): 4 years, 6 months
  • Disqualification from holding a driver's licence for two years, cumulative upon any existing disqualification.

Key Takeaways

  • Under Bugmy v The Queen and R v Fernando, an offender's Aboriginality and the deprivation associated with it remain relevant to moral culpability at sentence, even where the offending is serious and repeated.
  • Severe drug addiction, assessed with regard to its physiological as well as psychological dimensions, can reduce an offender's moral culpability without excusing the conduct or removing the need for general deterrence.
  • Committing fresh offences while on parole, particularly where those offences closely mirror the conduct that generated the earlier sentence, constitutes a significant aggravating factor in the sentencing calculus.
  • Special circumstances justifying an extended non-parole period can arise where the offender requires structured and supervised preparation for reintegration, including access to rehabilitation programs not adequately available during the custodial phase.
  • Form 1 matters do not attract a separate measurable penalty, but they require a greater sentence for the principal offence than would have been imposed had the principal offence stood alone, with increased weight to retribution and punishment, consistent with the Henry guideline.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A

Cases
- Bugmy v The Queen [2013] HCA 37
- R v Fernando (1992) 72 A Crim R 58
- R v Henry [1999] NSWCCA 111
- R v De La Rosa [2010] NSWCCA 194
- Callaghan v R (2005) 160 A Crim R 145
- Kentwell v R (No 2) [2015] NSWCCA 96
- Veen v R (No 2) [1988] HCA 164 CLR 465
- R v Lewis [2014] NSWSC 1127
- R v Engert (1995) 84 A Crim R 67
- R v Moffitt (1990) 20 NSWLR 114
- Pearce v The Queen [1998] 194 CLR 610
- Mill v The Queen (1988) 166 CLR 59