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Court of Criminal Appeal 14 April 2021

Cooper v R

[2021] NSWCCA 65

HomicideDomestic & family violence
CRIME APPEALS APPEAL AGAINST SENTENCE MURDER BUGMY V THE QUEEN APPEALS

Citation: Cooper v R [2021] NSWCCA 65
Court: NSW Court of Criminal Appeal
Date: 14 April 2021
Judge(s): Bathurst CJ (with Beech-Jones J and Wilson J agreeing)

Background

The applicant pleaded guilty to the murder of his domestic partner at her Bankstown home on 5 March 2017. The deceased suffered from severe 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. On the morning of her death, she asked the applicant to obtain heroin so she could, in her words, "put herself to sleep." The applicant did so and administered a fatal injection, sending messages to family members in the hours beforehand making his intentions explicit.

The relationship between the applicant and the deceased had been volatile and marked by co-dependency, drug use and domestic violence. At the time of the offence, the applicant was subject to both bail conditions and an apprehended domestic violence order (ADVO) that prohibited contact with the deceased. Two offences, stalking and intimidation and contravention of the ADVO, were taken into account on a Form 1 (a procedural mechanism that allows related offences to be considered in sentencing without a separate conviction being recorded).

Following a 25 per cent discount for the utilitarian value of his guilty plea, the applicant was sentenced to 13 years and 6 months imprisonment with a non-parole period of 10 years. He sought leave to appeal on two grounds.

  • Whether the sentencing judge failed to take into account the applicant's deprived background and early introduction to substance abuse when assessing his moral culpability, as required by the principle in Bugmy v The Queen (2013) 249 CLR 571.
  • Whether the sentence imposed was manifestly excessive having regard to the circumstances of the offending, including its characterisation as a mercy killing.

Decision

Ground 1: Failure to apply Bugmy

The Court of Criminal Appeal held that the sentencing judge did err by failing to take into account the applicant's deprived background and early exposure to substance abuse as a mitigating factor going to moral culpability. Under Bugmy v The Queen, such background circumstances do not diminish with the passage of time and must be given proper weight in every sentencing exercise. The sentencing judge acknowledged the applicant's background in passing but did not give it independent weight when assessing moral culpability, which constituted a relevant error.

Despite finding this error, the Court proceeded to re-examine the sentence afresh and concluded that no different sentence should result. The applicant's genuine care for the deceased, the mercy-killing context, his mental health conditions and his deprived background all went to reduced moral culpability. These factors were weighed against the gravity of a deliberate killing by injection of an illegal drug, committed while the applicant was on bail and in breach of an ADVO.

Ground 2: Manifest excess

The Court rejected the manifest excess argument. Bathurst CJ emphasised that the fundamental sentencing consideration in any homicide is the protection of the sanctity of human life. Even in circumstances of genuine compassion and reduced moral culpability, a sentence must reflect that no person is justified in taking another's life. The Court noted that while specific cases such as R v Ritchie involved lower sentences in superficially comparable circumstances, a single first-instance decision from 17 years earlier does not provide a reliable yardstick. In all the circumstances, the sentence of 13 years and 6 months was not unreasonable or plainly unjust.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that Bugmy v The Queen requires a sentencing court to give independent and explicit weight to a deprived background and early introduction to substance abuse when assessing moral culpability, and that this obligation does not diminish over time regardless of the offender's age.
  • Finding a Bugmy error does not automatically result in a reduced sentence. The Court re-sentenced and reached the same outcome after weighing all relevant factors afresh.
  • The deliberate taking of human life, even in the context of a mercy killing motivated by genuine compassion, remains at the serious end of the sentencing spectrum. The principle of the sanctity of human life continues to operate as a fundamental consideration in homicide sentencing.
  • A single first-instance sentence in an analogous case decided many years earlier does not constitute a reliable benchmark against which manifest excess is to be assessed.
  • In dismissing the appeal, the Court treated the applicant's breach of bail conditions and an ADVO at the time of the offence as an aggravating factor that offset, to a degree, the mitigating features of the mercy-killing circumstances and reduced moral culpability.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- BC v R [2020] NSWCCA 329
- Dellow v R [2020] NSWCCA 301
- Egan v R [2017] NSWCCA 206
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Prince v R [2020] NSWCCA 268
- R v Dowdle [2018] NSWSC 240
- R v Edwards (1996) 90 A Crim R 150
- R v Millwood [2012] NSWCCA 2
- R v Ritchie [2003] NSWSC 864