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Supreme Court 16 August 2019

R v Cooper

[2019] NSWSC 1042

HomicideDrugsDomestic & family violence
CRIMINAL LAW SENTENCE MURDER HEROIN INJECTION MERCY KILLING

Citation: R v Cooper [2019] NSWSC 1042
Court: Supreme Court of New South Wales
Date: 16 August 2019
Judge: Hidden AJ

Background

The offender, a 44-year-old man, pleaded guilty to the murder of his partner, a 55-year-old woman, at her Bankstown home on 5 March 2017. The couple had been in a volatile two-year relationship marked by co-dependency, drug use, domestic violence, and periods of court-ordered separation under an apprehended domestic violence order (ADVO).

The deceased suffered from a range of serious chronic medical conditions, including congestive cardiac failure and chronic obstructive pulmonary disease, and had been hospitalised 24 times in the 13 months before her death. A doctor had given her 12 to 18 months to live.

On the night of her death, the offender administered a fatal heroin injection to the deceased while she was in severe pain and distress. His conduct in the days before her death, including messages to friends describing her suffering and his desire to remain with her, formed part of the agreed facts. Two additional offences (stalking/intimidation and contravening an ADVO, arising from an earlier incident at a hospital) were taken into account on a Form 1.

  • Whether the offender's impairment by abnormality of mind at the time of the offence substantially impaired his responsibility so as to reduce the murder to manslaughter under s 23A of the Crimes Act 1900 (NSW)
  • What sentence was appropriate for murder, having regard to the offender's mental state, the circumstances of the offence, and other relevant sentencing factors
  • Whether special circumstances warranted a departure from the standard statutory proportion between sentence and non-parole period

Decision

Hidden AJ accepted that the offender had acted partly out of compassion, describing the injection as having a "mercy killing" quality. However, the court found that the impairment of the offender's mental functioning by an abnormality of mind did not rise to the level required under s 23A to reduce the offence from murder to manslaughter. The plea of guilty was entered on that basis.

The court identified several mitigating factors, including the offender's genuine compassion for the deceased, his emotional distress at her deteriorating condition, his early admission to police that he administered the fatal injection, and the utilitarian value of his guilty plea. The court also noted the offender's difficult personal history and his mental health circumstances, while acknowledging the serious and volatile nature of the broader relationship.

In assessing the appropriate sentence, Hidden AJ treated this as a case warranting significant leniency given the combination of circumstances, notwithstanding the inherent gravity of any murder. The court declined to apply special circumstances to vary the statutory ratio between sentence and non-parole period, finding that the sentence as structured left a substantial period of parole eligibility that adequately reflected the offender's criminality.

The court set a starting point of 18 years imprisonment before discounting for the plea. A 25 per cent reduction for the utilitarian value of the guilty plea produced a total term of 13 years and 6 months, with a non-parole period of 10 years.

Orders Made

  • The offender was sentenced to imprisonment with a non-parole period of 10 years, commencing 6 March 2017 and expiring 5 March 2027
  • The balance of term was 3 years and 6 months, commencing 6 March 2027 and expiring 5 September 2030
  • Eligibility for parole: 6 March 2027
  • Two further offences (stalking/intimidation and contravening an ADVO) were taken into account on a Form 1

Key Takeaways

  • Substantial impairment by abnormality of mind under s 23A of the Crimes Act 1900 (NSW) requires a sufficiently serious level of impaired mental functioning; the mere presence of such impairment does not automatically reduce murder to manslaughter.
  • A "mercy killing" quality in the circumstances of a murder may be recognised as a significant mitigating factor in sentencing, even where the offence is not reduced to manslaughter.
  • A 25 per cent reduction in sentence for a guilty plea reflects the utilitarian value of that plea, as applied here to a starting point of 18 years.
  • Hidden AJ declined to find special circumstances under the sentencing legislation where the balance of term already left a substantial parole eligibility period sufficient to reflect the offender's criminality.
  • Comparable sentencing decisions, particularly manslaughter cases, are of limited utility when sentencing for murder; the two murder decisions cited were distinguished on their markedly different facts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 23A (substantial impairment by abnormality of mind)

Cases:
- R v Preuss (Barr J, unreported, 26 August 1997)
- R v Ritchie [2003] NSWSC 864