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District Court 3 June 2022

R v Cooper

[2022] NSWDC 682

Assault & violenceTheft & property

Citation: R v Cooper [2022] NSWDC 682
Court: District Court of New South Wales
Date: 3 June 2022
Judge: Bennett SC DCJ

Background

The offender, a man born in 1996, pleaded guilty to one charge of robbery with intentional infliction of actual bodily harm, contrary to s 95(1) of the Crimes Act 1900. The offence occurred on 20 July 2021 in Moruya, New South Wales, less than one month after the offender had been released on parole.

The victim was an 83-year-old man the offender did not know. The offender grabbed the victim from behind near a shopping arcade, causing him to fall onto concrete and sustain injuries to his hand, elbow, knee, and arm. The offender took the victim's car keys and stole his vehicle. He was arrested a week later in Doonside and participated in a recorded police interview in which he made full admissions.

The offender had a significant custodial history. While in custody on an unrelated assault on a corrections officer (committed prior to this robbery), his parole was revoked. These overlapping periods of custody required the court to carefully consider the commencement date of the new sentence and the application of the totality principle.

  • What was the appropriate sentence for the aggravated robbery, taking into account the objective seriousness of the offence and the offender's moral culpability?
  • What discount applied for the early guilty plea entered during committal proceedings?
  • How should pre-sentence custody and concurrent custodial obligations (revoked parole and a separate sentence for assaulting a corrections officer) affect the sentence structure and commencement date?
  • Did the offender's drug dependency, mental health issues, and risk of institutionalisation establish special circumstances warranting a longer than standard parole period?

Decision

The District Court found the objective seriousness of the offence to be significant. The victim was 83 years old and entirely unknown to the offender. The court accepted, however, that while the offender must have appreciated some injury would result from lifting and dropping an elderly man onto concrete, he did not intend the full extent of the injuries suffered.

The court accepted that the offender's drug abuse and mental health issues reduced his moral culpability to a degree. The court also noted mitigating factors including: the offender's frank admissions in his police interview (given even after receiving legal advice that he was not obliged to participate), the return of both the car keys and the victim's mobile phone, and the absence of any damage to the stolen vehicle.

The guilty plea was entered during committal proceedings in the Local Court, attracting a 25% discount under s 25B(2)(a) of the Crimes (Sentencing Procedure) Act 1999. This reduced the head sentence from six years to four years and six months.

The court found special circumstances existed, given the offender's extended custodial history and the identified risk of institutionalisation. This justified a longer than usual parole period relative to the non-parole period. Applying the principles in Callaghan v R, the sentence was ordered to commence on 27 January 2022 to properly account for the totality of the offender's custodial obligations and to preserve a realistic opportunity for parole.

Orders Made

  • The offender was convicted of aggravated robbery contrary to s 95(1) of the Crimes Act 1900.
  • Sentenced to imprisonment with a non-parole period of 2 years and 4 months, commencing 27 January 2022, expiring 26 May 2024.
  • Balance of sentence: a further 2 years and 2 months, expiring 26 July 2026.
  • Eligible for parole on 26 May 2024.

Key Takeaways

  • A 25% guilty plea discount applied under s 25B(2)(a) of the Crimes (Sentencing Procedure) Act 1999 where the offender pleaded guilty during committal proceedings, reducing a six-year head sentence to four years and six months.
  • Under the totality principle, a sentencing court has discretion to select a commencement date for a new sentence that accounts for overlapping custodial obligations, including revoked parole and a separate sentence for unrelated offending.
  • The District Court confirmed that drug dependency and mental health issues are relevant to the assessment of moral culpability, consistent with the principles in Bugmy v The Queen, even though they do not excuse the conduct.
  • A risk of institutionalisation arising from an extended custodial history can constitute special circumstances, justifying a departure from the standard ratio between the non-parole period and the balance of the sentence.
  • Post-offence cooperation with police, including full admissions in a recorded interview made after receiving legal advice, and the voluntary return of stolen property, remain relevant mitigating factors in sentencing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 95(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 3 Div 1A, s 25B(2)(a); Part 4 Div 1A
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases:
- Bugmy v The Queen [2013] HCA 37
- Callaghan v R [2006] NSWCCA 58
- Tepania v R [2018] NSWCCA 247