Cooper v Corvisy [2010] ACTSC 165

4. The victim swerved to the right, away from Mr Cooper's vehicle, thus avoiding a collision and forcing her to drive on the shoulder of the road. As her car headed for a tree, she swerved back into the right hand lane of the road. While no-one was physically injured the victim was very shaken and scarred.

5. Mr Cooper was arrested at his workplace the next day. He declined to participate in an interview with police.

6. The victim gave a Victim Impact Statement, which, unsurprisingly, expressed the great fear that she had of serious injury or death as a result of Mr Cooper's actions and the ongoing trauma she has suffered. This includes causing her to change her job and as a result to lose close friendships. It also includes ongoing fear especially when she sees Mr Cooper or a car like the one he drives.

7. Mr Cooper had an unremarkable upbringing. He left school when he was 15 years old and has gained a trade qualification as a glazier, but more recently has worked as a backhoe operator, truck driver, steel fixer and plant operator.

8. He started to misuse alcohol when he was 15 years old. He gave it up between 18 and 20 years old but then resumed social drinking, though, the not inconsiderable amount of eight to ten stubbies at a weekend. He says he now rarely drinks alcohol, but has been using cannabis to help him with the stress of the court proceedings.

9. He had, at the time of sentencing, been seeing a psychiatrist for, "a depressive illness" and she had apparently prescribed him Lexapro but he discontinued its use due to bad side effects. He told the author of the Pre-Sentence Report that he regularly suffers from suicidal ideation. I will return to his mental health later.

10. Unfortunately, Mr Cooper has a bad criminal record. Particularly relevant is that since he has been an adult there are five prior charges of violence, including assault occasioning actual bodily harm, together with a breach of a court order, a charge of damaging property and two charges of resisting a Commonwealth official.

11. Some of the assaults involved his previous partner, before the one who was the victim of this offence, and with whom he had had a relationship for about seven years.

12. He has been imprisoned on a number of occasions before for some of the offences of violence.

13. The appeal was commenced when the Notice of Appeal was lodged on 2 November 2010. It cites as grounds:

1. The Learned Magistrate placed inadequate weight upon the appellant's mental illness.
2. Notwithstanding the appellant's mental illness and contrary to law or principle, the Learned Magistrate made the appellant a vehicle for general deterrence.

1. The Learned Magistrate fell into error finding no other sentence than imprisonment was appropriate.

1. The Learned Magistrate made findings inconsistent with the evidence.

14. Since Mr Cooper has been convicted and sentenced to imprisonment, but has appealed the sentence, s 9E of the Bail Act 1992 (ACT) (Bail Act) applies. That section provides:

(1) This section applies if -

1. a person has been convicted of an offence by a court and sentenced to a period of imprisonment for the offence; and

2. an appeal is pending in relation to the conviction or sentence.

(2) A court must not grant bail to the person unless satisfied that special or exceptional circumstances exist favouring the grant of bail.

(3) In this section: "appeal" includes an appeal against a decision on appeal

15. Mr Cooper has to show special or exceptional circumstances favouring the grant of bail.

16. The appeal has been listed for hearing on 8 December 2010.

17. There is now significant body of law about the concept of special or exceptional circumstances in the context of the Bail Act, especially in the ACT.

18. In short, it requires some circumstances affecting the applicant that are in some way unusual or uncommon: see In the matter of an application for bail by Rebecca Massey [2008] ACTSC 145 (at [7]-[8]) (Massey No 1) and In the matter of an application for bail by Allen [2009] ACTSC 64 (at [9]-[10]).

19. It seems to me, too, that they must, of course, be significant or substantial factors, though this almost goes without saying.

20. As I said in Massey No 1, (at [28]), the totality of separate circumstances may amount to special or exceptional circumstances when considered together.

21. In many cases, where bail is sought pending an appeal, the special or exceptional circumstances relied on are either the date, or likely date, of hearing the appeal will mean that all or most of the sentence will have served before the appeal can be heard.

22. While the fact that this occurs in a significant number of cases means one cannot describe it as uncommon or unusual. This relies, in part, on the need to preserve from futility the exercise of the Court's appellate jurisdiction: Chamberlain v The Queen [1983] HCA 13; (1983) 153 CLR 514 (at 518). Similarly, a strong case on appeal can justify the grant of bail: Marotta v The Queen [1999] HCA 4; (1999) 73 ALJR 265.

23. Indeed in the United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165 the court suggested (at [41]) that ordinarily both of these factors should be present.

Mr Cooper's special or exceptional circumstances

24. Ms T Warwick, who appeared for Mr Cooper, relied heavily on Mr Cooper's psychological condition submitting that:

1. this made greater the likelihood of success in the appeal; and
2. it was a personal situation of Mr Cooper that justified bail as, in itself, a special or exceptional circumstance, especially with the other matter.

25. In the Pre-Sentence Report it was recommended that Mr Cooper, "may benefit from having further mental health intervention and continuing to see a Psychiatrist."

26. In the submission to the learned Magistrate, it was put on behalf of Mr Cooper that he had finally come to realise that he had a problem with his behaviour and that on the recommendation of his lawyer, he went to see a psychiatrist. A report from her was tendered.

27. In it, the psychiatrist stated that Mr Cooper "is ashamed of what happened". This is in contrast to the Pre-Sentence Report which stated that Mr Cooper "showed little remorse for the current offences." His psychiatrist also expressed the opinion that he was suffering from Chronic Anxiety and Major Depression. She continued,

In my opinion, at this time, he is not dangerous and not suicidal. In my opinion, if returned to prison he will be suicidal will need good preventative observation. I would request, if he is sentenced to prison, that this report be forwarded to the relevant prison authorities.

28. Strangely and for no apparent reason, the sensible and appropriate request that the psychiatrist's report be forwarded to the prison authorities was not acted upon by the learned Magistrate. I assume that this was not because her Honour did not read that far into the report. In any event, I remedied that by directing that a copy be forwarded to the prison authorities.

29. I also requested an urgent report from the Mental Health authorities at the prison. That was provided and showed:

1. that Mr Cooper had, in fact, had contact with Mental Health ACT on a number of occasions dating back to 2006;
2. an awareness of his diagnosis of depression, though it was not clear whether, as I directed, they had a copy of the Psychiatrist Report that I had directed be made available to that agency;

1. that Mr Cooper had a history of very co-dependent and unstable relationships; and

1. that his mental state had deteriorated while he was in custody.

30. Ms Warwick submitted that the learned Magistrate had, in reality, not taken the psychiatrist's report into account, though she had read it. This, she submitted was an error and made the likelihood of success of the appeal greater.

31. It is true that the prosecutor was rather dismissive of the report. She said:

Except for the appointment that Mr Cooper made on 30 July, 3 September and 20 September, there has been no other information before the court that Mr Cooper is doing anything to address these issues that he clearly has in regards to violence against women and alcohol abuse. It would be my submission that the prime principle of sentencing in this case would be specific deterrence.

The defendant has not been deterred by imprisonment, by suspended sentences and by being given the opportunity to reform his behaviour. And it was within that context that I would say that there is no other option except for imprisonment in this case. This conduct has to be - there has be denunciation as well as the protection of the community.

32. It is, I have to say, odd that a sentencer should be asked to conclude that an offender has not been deterred by imprisonment and then impose imprisonment for specific deterrence.

33. The learned Magistrate took the report into account but in a very limited way. Her Honour said:

He has seen a psychiatrist on three occasions. There is no information that I have apart from what from Mr Saeedi has said that this man has been in ongoing treatment with this Dr Thompson. He simply has seen her on three occasions for a total period of 90 minutes and I suspect that the majority of that has been in relation to the preparation of a report for use by the court.

Now, defendants who commit and are convicted of serious criminal offences and who have a long history of criminal behaviour cannot expect to escape the consequences of their behaviour by the preparation, pretty much at the 11th hour, of the psychiatric report or report from a psychiatrist to the court and there is nothing in that report which correlates his criminal behaviour to his mental condition. He does not have a mental illness, he suffers from depression. Some would regard depression as a mental illness. I would regard depression as a mental illness but in any event he suffers from depression.

34. Ms Warwick noted that it was not agreed that Mr Cooper had only seen his psychiatrist for 90 minutes in total. His lawyer had submitted that Mr Cooper was "certain that it was over 90 minutes that he had seen" the psychiatrist. I had, however, no further information though about that, though it seems that it would be easy enough to ascertain the true position.

35. It is clear, too, that the psychiatrist was treating Mr Cooper. She had prescribed medication and readjusted his medication when it proved to have unsatisfactory side effects.

36. Ms Warwick submitted that Mr Cooper's mental condition was relevant in two ways:

1. it meant that he was unsuitable as a vehicle for general deterrence; and
2. the prediction of mental deterioration following incarceration had been fulfilled.

37. In relation to the first, it is true that mental impairment has been held to warrant in many, though not all, cases a moderation in the contribution that general deterrence plays in sentencing. A recent explanation of the role of mental impairment in sentencing is to be found in the decision of the Victorian Court of Appeal in R v Verdins [2007] VSCA 102; (2007) 16 VR 269 where the court said (at [32]):

Impaired mental functioning, whether temporary or permanent ("the condition"), is relevant to sentencing in at least the following six ways:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or the date of the sentence, or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.

38. As can be seen from the third matter, it is not a matter that general deterrence plays no part at all, but may, in appropriate cases, be moderated though sometimes even eliminated. It seems to me that the fifth and sixth matters are particularly relevant here.

39. The appeal hearing is now just over two weeks away. Mr Cooper has been custody for less than a month. This provides no basis for finding special or exceptional circumstances favouring the grant of bail. Indeed, the proximity of the hearing has been a basis for refusing bail: R v Burton, (1974) 3 ACTR 77. In the context of an application for bail pending appeal, to like effect, see In the matter of an application for bail by Henderson [2008] ACTSC 109 (at [13]).

40. Mr Cooper can, I think, claim with some strength that the learned Magistrate failed to give proper regard to his psychiatric condition, but the offence was one of great seriousness which not only put the life of the victim at risk, but also other road users, who apparently were using the road at that time.

41. His prior convictions do deprive him of leniency that the traumatic breakdown of the relationship may have caused.

42. While I consider that Mr Cooper has a real chance of success in the appeal, that is not so great that it is a special or exceptional circumstance in itself.

43. The only other matter is the fact Mr Cooper's mental condition has deteriorated. That is significant, but it is likely that a person who is incarcerated will experience low psychological moods. This is regrettable, but it is part of the inevitable consequences of imprisonment.

44. In the face of the information that I currently have, I cannot say that it meets the test currently set out in R v Verdens as to raise this issue to a matter of special and exceptional circumstances.

45. All considered, I cannot find special or exceptional circumstances, individually or collectively, in support of Mr Cooper's application for bail, and the application is dismissed.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the prosecution: ACT Director of Public Prosecutions