Cooper v R

The applicant's subjective case

1. The sentencing judge dealt extensively with the applicant's subjective case. He noted the applicant was 46 years old at the time of sentencing and had a lengthy, but somewhat sporadic, criminal history. He stated it comprised a variety of offences but, most significantly, a number of entries for domestic violence, including offences of common assault, and one of malicious wounding, together with offences of malicious damage. He said most of those offences apparently arose from the applicant's relationship with Ms Hull.
2. The applicant, an Aboriginal man, has a deprived background. He was born in Gilgandra, the eldest of four siblings. The sentencing judge noted that his father was an alcoholic who died of a heroin overdose. He also noted that two of the applicant's siblings have died: a brother, who was killed in a car accident, and a sister, after an overdose of drugs and alcohol.
3. The sentencing judge noted that whilst the applicant was still of primary school age, his parents separated. His father had generally been a "good provider, but the problem was his abuse of alcohol and philandering". His father kept visiting his mother and was violent towards her in the presence of the children. She herself started drinking heavily and developed what she described as a "serious problem".
4. The applicant's mother arranged for the children to live with an aunt and uncle, the father's sister and her husband, on a mission at Quambone. At the time the applicant was about 8 or 9 years old. For the next few years, the applicant's mother had little contact with the children. She moved to Sydney in the mid-1980s.
5. The sentencing judge described the life of the applicant and his siblings with their aunt and uncle as "not easy". He said neither the aunt nor uncle drank, but they were physically violent towards the children, particularly the applicant. He stated that the applicant was regularly punched and beaten with jug cords and sticks, and on one occasion, when he came home drunk, his uncle knocked him out.
6. The sentencing judge noted the applicant had attended primary school while living with his aunt and uncle but had problems with learning and his behaviour. He came under the influence of other children, some of them older, who had been drinking and sniffing petrol from an early age. The applicant began to sniff petrol when he was about 8 or 9 years old and had begun drinking at the age of 10.
7. The applicant went to high school in Coonamble, but when he was in year 7 he came under the control of the Department of Community Services and went to live in an Aboriginal run hostel in Newcastle. He was there for about 12 months. The petrol sniffing stopped but he continued drinking.
8. The applicant and his siblings then moved in with their father in Molong. There, when he was about 14 years old, he was expelled from school for punching a teacher.
9. Following this, he and his siblings moved to Sydney and re-established contact with their mother. They lived alternately with her and with another aunt, her sister. By this time, his mother had reduced her drinking. The applicant obtained some unskilled work. At the age of 18 he moved to Dubbo and subsequently to Orange, where he remained, on and off, until he was about 28 years old. He worked as a farmhand in Dubbo, but he had no regular work in Orange or upon his return to Sydney.
10. In Dubbo, the applicant met Ms Hull, with whom he maintained a relationship which saw the birth of seven children. After he and Ms Hull parted, he appeared to have lost contact with the children except for one daughter, with whom he had recently made contact.
11. The sentencing judge noted the applicant started using heroin at the age of 16 and maintained the abuse of that drug. He moderated his drinking in his mid-20s, describing heroin thereafter as his "main habit". However, he had regular access to methylamphetamine and also used buprenorphine.
12. The sentencing judge noted the applicant has a history of mental illness. He referred to the applicant's affidavit in which he deposed to the onset of paranoid delusions in 2003, signs of which were observed by his sister and his mother. The sentencing judge referred to the reports of a forensic psychiatrist, Dr Nielssen, who recorded the diagnosis and treatment of schizophrenia from at least 2009. This included several admissions to hospital and community treatment orders. He noted the applicant was not always compliant with the treatment. The sentencing judge noted that over a period leading up to the offence, the applicant was subject to a regime of medication administered by fortnightly injections. However, at the time of the offence he had been unmedicated for over a month.
13. The sentencing judge stated that to both doctors (Dr Nielssen and Dr Jeremy O'Dea, another forensic psychiatrist) the applicant maintained his account that he had administered the heroin to the deceased at her request, and that his intention was to relieve her pain, not to kill her.
14. The sentencing judge noted that in the first of two reports, Dr Nielssen concluded that the applicant had available to him the defence of substantial impairment by abnormality of mind under s 23A of the Crimes Act 1900 (NSW). He considered him to be suffering at the time from positive and negative symptoms of his schizophrenia, leading to an abnormal state of mind likely to have affected his perception of events and his ability to judge right from wrong. Dr O'Dea arrived at a similar conclusion.
15. However, the sentencing judge noted that by the applicant's plea of guilty he had abandoned that defence. He stated that nevertheless, his mental illness remained relevant to sentence.
16. The sentencing judge referred to Dr Nielssen's second report in which he described the applicant's schizophrenia as a "disabling illness, because of the effect of the neurological changes arising from the condition on the capacity for logical thinking and rational decision making". He noted that Dr Nielssen expressed the belief that the applicant's mental illness had "a substantial effect on his offending behaviour".
17. The sentencing judge noted that the day after he was interviewed by police, the applicant was seen in custody by a psychiatrist, Dr Matthew Hearps, who concluded that he was not then displaying acute psychotic symptoms. The sentencing judge stated that he did not consider this to be at odds with Dr Nielssen's opinion which rested upon the continuing neurological effects of schizophrenia.
18. The sentencing judge noted the applicant deposed in his affidavit that he was feeling mentally unwell when he came into custody but had improved since resuming injected medication. The affidavit stated that the applicant had been trying hard to stop using drugs but found it difficult and had continued to use buprenorphine. He noted that the applicant wished to undertake drug and alcohol rehabilitation but was on the waiting list for a program.
19. The sentencing judge stated that in his affidavit, the applicant expressed what he accepted to be genuine remorse for his crime, accepting responsibility for it. The applicant acknowledged the serious effect his crime had had on the deceased's family.
20. The sentencing judge noted that it was common ground that the applicant was entitled to a discount of 25 per cent for his plea of guilty.

The sentencing judge's conclusion

1. The sentencing judge noted that the applicant's plea of guilty was entered on the following basis, agreed on by the parties: 1. He injected the deceased with a lethal dose of heroin intending to cause her death. 2. Although suffering from an underlying condition, he was not so substantially impaired as to justify liability for murder being reduced to manslaughter. 3. He acted as he did because he believed that the deceased wished to die: 1. because of something she actually said; and/or 2. because he drew that conclusion as a result of his own mental processes.
2. The sentencing judge on balance accepted the applicant's account of the deceased telling him that she wanted to get heroin to "put herself to sleep for good" so that she could be with "her mum and Wal". He stated that he was satisfied that account was not a result of misapprehension or a delusional process arising from the applicant's mental illness. He stated that the bearing of that illness was primarily upon his capacity for exercising judgment and rational decision making.
3. The sentencing judge noted that it was common ground that the applicant intended to kill the deceased. He noted that the Crown, for the purpose of assessing the objective gravity of the offence, referred to the fact that it involved the use of a weapon, a syringe, that it occurred in a domestic context, and that it disclosed a degree of planning. The sentencing judge stated that those were inherent characteristics of the offence which were not susceptible to being isolated and considered as aggravating factors bearing upon its objective gravity. He stated that the syringe could hardly be described as a weapon and, while it was true to say the offence occurred in a domestic context, it could not be seen as an act of domestic violence.
4. In that context, he accepted the submission that it was a mercy killing. He described the applicant over the two days leading up to the killing as a "deeply conflicted man in a state of emotional turmoil". The sentencing judge stated that he had no doubt that, despite the turbulent nature of their relationship, the applicant loved the deceased. He said the applicant made an "agonising decision". He stated that it involved no denial of the gravity of the intentional taking of a human life to acknowledge that, in the eyes of the applicant, what he did was an act of love.
5. In that context the sentencing judge reached the following conclusions directly relevant to Ground 1 of the appeal: "[79] The Crown prosecutor submitted that the offence fell slightly above the mid-range of objective gravity. However, in the circumstances which I have outlined, I consider it to be in the low range. His moral culpability is low, whether the deceased did ask him to end her life or he was mistaken in his belief that that is what she wanted. That said, while allowing for the circumstances, my sentence must reflect the fact that the offender was in the presence of the deceased in breach of bail and an ADVO. In addition, the offences on the Form 1 must be taken into account. [80] In accordance with well established authority, the offender's mental illness bears upon the assessment of his moral culpability and reduces the need for the sentence to reflect considerations of denunciation and general deterrence. Specific deterrence remains of importance, particularly in the light of his history of non-compliance with treatment, carrying the risk of a relapse into criminal offending. That said, given his criminal history, I think it unlikely that that would involve very serious offences, particularly an offence as serious as that to which he now stands for sentence. This murder arose from a particular set of circumstances and I find it most improbable that he would reoffend in this way. [81] I take into account the offender's troubled background which, no doubt, is the source of his pattern of offending and substance abuse. Mr Wilson realistically accepted that I must be guarded as to his prospects of rehabilitation. It will hinge very much upon his long-term compliance with treatment for his mental illness and for his substance abuse, and the continuing support of his mother and his sister."
6. The sentencing judge further stated that a promising sign, and a matter in any event to be taken into account in the applicant's favour, is his remorse and acceptance of responsibility. However, he declined to find special circumstances warranting a departure from the statutory proportion between the sentence and non-parole period, stating the sentence he had determined would leave a substantial period of parole eligibility, and any lesser non-parole period would fail to reflect the applicant's criminality.
7. His Honour concluded that, inherently serious as any offence of murder is, in all the circumstances he was satisfied that the applicant was entitled to a significant measure of leniency. In those circumstances, he imposed the sentence to which I have referred above.

Ground 1 - The Court did not take into account the applicant's deprived background and early introduction to substance abuse in determining the moral culpability for the offending.

The submissions

1. Counsel for the applicant accepted that the issue was whether it could be inferred that the sentencing judge took the applicant's deprived background and mental capacity into account in assessing his moral culpability. In his written submissions, it was submitted that paragraph [81] of the remarks on sentence, which I have set out at [61] above, did not adequately deal with the submission that his moral culpability was reduced as a consequence of his deprived upbringing, including his early introduction to drug use.
2. Counsel for the applicant accepted that the sentencing judge found the applicant's moral culpability to be low. However, he submitted that a pre-discount sentence of 18 years was not at "the lowest end by any means".
3. The Crown referred to the conclusion reached by the sentencing judge that the applicant's moral culpability was low. He also noted that the sentencing judge made reference to the conclusion in Dr Nielssen's second report that the applicant's mental state had "a substantial effect on his offending behaviour".
4. The Crown also submitted that it was not necessary for a sentencing court to expressly state that an offender's background has or has not contributed in a certain way in order to make an appropriate assessment of moral culpability. He referred in that context to BC v R [2020] NSWCCA 329 at [127]; Egan v R [2017] NSWCCA 206 at [38]; Prince v R [2020] NSWCCA 268 at [47]; Dellow v R [2020] NSWCCA 301 at [45]-[53].

Consideration

1. It was not in dispute that the applicant's deprived background and early introduction to alcohol and substance abuse was a highly relevant factor in considering the applicant's moral culpability: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [44]; R v Millwood [2012] NSWCCA 2 at [69]. The only question is whether the sentencing judge did in fact take it into account.
2. As has been pointed out, it is not necessary for a judge to state expressly that an offender's background was taken into account if it is apparent from the whole of the judgment that he or she did so. Thus, in Dellow v R, Leeming JA pointed out that there was no obligation to do so when the principles in Bugmy were taken into account in substance. See also the cases I have cited at [67] above.
3. In my view, the sentencing judge did take these principles into account. He set out in detail the applicant's troubled background and his early association with drugs and alcohol (see [37]-[47] above), and referred with apparent approval to the assessment of the applicant's mental condition by Dr Nielssen.
4. These conclusions formed part of the context in which the sentencing judge concluded the applicant's moral culpability was low. I have set out at [61] above his Honour's remarks at [80]-[81] of the sentencing judgment. In my opinion, they show the sentencing judge took the applicant's troubled background into account in the manner required by Bugmy.
5. This ground of appeal has not been made out.

The submissions

1. Counsel for the applicant submitted that it was "difficult to envisage a less morally culpable killing", referring to the fact that the deceased repeatedly said she wanted to die and to the applicant's mental state being causally connected to his inability to make calm, rational decisions. It was submitted that the Form 1 offence would lead at most to a modest increase in the sentence.
2. In the written submissions, the applicant summarised a number of factual findings which he said made the sentence plainly unjust: "a. That the victim expressly expressed to the applicant that she wished to die. b. That the applicant's mental illness bore upon his 'capacity for exercising judgment and rational decision making.' c. That the fact that the offence involved a weapon, occurred in a domestic context, and involved a degree of planning, were 'inherent characteristics of the offence' and were not aggravating. d. That although the applicant should have called an ambulance to facilitate treatment for the victim, 'he would have been entitled to question the utility of that course given the history of her numerous admissions to hospital which do not appear to have given her any relief from her conditions.' e. The offence was in the 'low range' of objective seriousness and his moral culpability was 'low'. f. That the applicant's mental illness 'bears upon the assessment of his moral culpability and reduces the need for the sentence to reflect considerations of denunciation and general deterrence.' g. That in taking into account the need for specific deterrence, His Honour found it was 'unlikely that (any reoffending) would involve very serious offences, particularly an offence as serious as that he now stands for sentence … I find most improbably that he would reoffend in this way.' h. The offender was remorseful and accepted responsibility for his crime. That the 'abandonment of a possible partial defence' was demonstrative of this."
3. The applicant's counsel referred to one case he submitted was comparable, R v Ritchie [2003] NSWSC 864. The offender, then aged 55, killed his 87 year old mother by holding a pillow over her face until she suffocated. She was in very poor health and was well aware she had not long to live. After killing the deceased, the offender hid the body which was only discovered some four months later after he had been arrested and charged with her murder.
4. The Crown refused to accept a plea of guilty to manslaughter and the offender was ultimately tried for and convicted of murder. The sentencing judge rejected the offender's claim that his mother asked him to kill her and that it was a mercy killing, concluding he killed her in reaction to circumstances he felt unable to control or accept. His offence was described as a "hot-blooded" murder, made worse by the vulnerability of the deceased and because it constituted a gross breach of the trust she placed in him.
5. The sentencing judge found there was a degree of remorse and his prospects of rehabilitation were good. He had no relevant criminal record. His health was poor and not expected to improve. He was sentenced to a term of imprisonment of 15 years with a non-parole period of 11 years and nine months.
6. Counsel for the applicant submitted this was a lesser sentence for a more serious offence than was imposed on the applicant.
7. The Crown emphasised that fundamental to the objective of the criminal justice system is the protection of human life. It was submitted that whatever label is attached to murder, the maximum penalty is life imprisonment and the standard non-parole period 20 years. He submitted that it was necessary to take account of the two matters on the Form 1 and the fact that the applicant was on conditional liberty, in respect of which conditions had been imposed which were designed to protect the safety of the deceased. He also pointed to the fact that the applicant had a number of prior convictions which bore on the need for specific deterrence, particularly in the context of domestic violence offending.
8. In that context, the Crown referred to the finding of the sentencing judge (at [80], see [61] above) of the importance of specific deterrence in light of the applicant's history of non-compliance with treatment, carrying with it the risk of a relapse in criminal behaviour.
9. The Crown submitted that the sentencing judge was correct in concluding the circumstances considered in R v Ritchie were markedly different to the present case.

Consideration

1. The principles surrounding this ground were summarised by RA Hulme J in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]. "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]: • Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. • Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. • It is not to the point that this court might have exercised the sentencing discretion differently. • There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. • It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
2. Although the sentencing judge described the homicide as a "mercy killing", the fact remains it was the crime of murder involving the deliberate taking of a human life. It must be remembered that the maximum penalty for the crime is life imprisonment with a standard non-parole period of 20 years. In R v Edwards (1996) 90 A Crim R 150 at 517, Gleeson CJ (referring to R v MacDonald (Court of Criminal Appeal (NSW), 12 December 1995, unrep)) emphasised that unlawful homicide, in whatever form it takes, has always been recognised as a most serious crime, and that the protection of human life and personal safety is a primary objective of the system of criminal justice.
3. In the context of a mercy killing, the remarks of Hamill J in R v Dowdle [2018] NSWSC 240 are apposite. In dealing with what his Honour referred to as a "mercy killing" of a son by his mother, his Honour made the following remarks: "[7] … Fundamental in any sentencing exercise concerning homicide is the need for the law to protect, and to be seen to protect, the sanctity of human life. That is reflected in the maximum penalty and the maximum penalty must always be borne in mind by judges called upon to sentence people for the taking of another person's life. [8] Sympathy which is legitimately aroused, and leniency and compassion that should properly be afforded, must never mask the objective gravity of any offence of homicide, especially a homicide such as this one, where an offender has set about to take human life and acted with an intention to kill. Sentencing in such cases, even in the extraordinary sad and compelling circumstances that apply here, must be seen to send a message to the community that nobody, however desperate things may get, is justified in taking it upon themselves to expunge human life."
4. The matters referred to by the applicant in his written submissions which I have set out at [74] above are, of course, relevant to the sentencing exercise. However, against them it must be remembered first that the crime involved the deliberate killing of another human being by the injection of an illegal drug. Second, it took place whilst the applicant was on conditional liberty and in direct breach of his bail conditions and the ADVO. Third, although it would not loom as a significant issue on sentence, the offences on the Form 1 need to be taken into account. Fourth, as the sentencing judge rightly pointed out, although the offender's mental illness reduced the need for the sentence to reflect considerations of denunciation and general deterrence, specific deterrence remained of importance.
5. In these circumstances, notwithstanding the tragic circumstances surrounding the killing and the applicant's low moral culpability, it could not be said the sentence was unreasonable or plainly unjust.
6. In reaching this conclusion, I have taken into account the decision of R v Ritchie to which I have referred at [75]-[77] above. However, I do not consider a single sentence in a case decided some 17 years ago provides a yardstick against which to measure the present sentence.
7. This ground of appeal has not been made out.

Conclusion

1. I would make the following orders: 1. Grant the applicant leave to appeal. 2. Appeal dismissed.
2. BEECH-JONES J: I agree with Bathurst CJ.
3. WILSON J: I also agree with the Chief Justice.

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