R v Bradley Douglas Cooper

Supreme Court of NSW|2005-09-05|Before: Buddin J, Bell J

Solicitors: S Kavanagh R Parkinson (Offender) File Number(s): SC 2004/46

REMARKS ON SENTENCE

HIS HONOUR: Bradley Douglas Cooper (the offender) was convicted by a jury of having murdered Dale Kevin Muldoon (the deceased) on 22 March 2003 at Lithgow. He now stands for sentence in respect of that offence and a further offence to which he pleaded guilty, namely that he disposed of the deceased's body with intent to pervert the course of justice. It is accepted by the Crown that that plea was entered at the first reasonable opportunity. The crime of murder attracts a maximum penalty of life imprisonment whilst the other charge attracts a maximum penalty of 14 years.
The jury by its verdict found that the offender was responsible for the death of Mr Muldoon, which occurred in the premises which he (the offender) shared with his then de facto partner, Julie-Ann Quinn. The following day the offender enlisted the support of Kevin Denne and the offender's 17 year old niece, who was given the pseudonym C for the purpose of these proceedings, to help him dispose of the deceased's body.
Mr Denne was charged with being an accessory after the fact to murder. He was tried separately from the offender. As I understand it, he relied at his trial upon duress at the hands of the offender. He was acquitted. He subsequently gave evidence on behalf of the Crown at the offender's trial. C was charged with being an accessory after the fact to murder. The Attorney-General later provided her with an indemnity from prosecution. She also gave evidence on behalf of the Crown at the offender's trial.

The facts

The offender and the deceased had known each other for some years. Each of them had had an association with a Karen Burley who was the mother of the deceased's three children. After her second child with the deceased was born, Ms Burley moved in with the offender for a period of about 6 - 8 months. She then resumed living with the deceased. It was during that period, which lasted for about 2 years, that Ms Burley and the deceased had their third child. After her relationship with the deceased broke down for the second time, Ms Burley then returned to live with the offender for another 2 years. That relationship ended in 1999 or 2000.
Ms Burley gave evidence that whilst she was living with the deceased on the second occasion, the offender had told her that "if he found out that [she] was running around with Dale again, that he would get Dale". According to Ms Burley's mother, Rose McCann, the offender made a similar remark to her, saying that he would "get Dale" and that "it might take him years but when he did he'd be sorry". She said that the conversation had taken place about 5 or 6 years prior to her giving evidence. She conceded that she told police at the time that she made her statement that she "didn't really take any notice of what he said and took it with a grain of salt". She did say however that she had warned the deceased to be careful and that she had also told his grandmother about the incident.
Those incidents, which were not the subject of serious challenge, clearly suggested that the offender bore some animosity towards the deceased, at least at the time when the remarks were uttered.
It is now necessary to refer to the events immediately preceding the tragic death of Mr Muldoon which, as I have said, occurred on 22 March 2003. For a number of years the deceased had lived at Wallerawang with his grandparents and his uncle, Jeffrey. On the day before his death he went into Lithgow with his uncle in order to collect his social security payment. After he had obtained his money, he went to a friend's place in Lithgow where he and the friend, Darren Harvey, consumed a bottle of bourbon and some marijuana. Subsequently they purchased a carton of beer which they both drank over the course of that night and the following morning. The deceased left Mr Harvey's house at about lunchtime on 22 March 2003.
Somewhere between 1-1.30 pm, the deceased rang home and requested that his uncle come and collect him. His uncle however was unavailable and so the deceased told his grandmother that he would catch the bus home. He asked her to "keep his tea for him".
Some time later a mutual acquaintance of the offender and the deceased, Adrian Selmes, saw them together at a telephone booth. The booth is adjacent to a BP service station which is only a short distance from the offender's premises. Mr Selmes observed that they appeared to be acting normally and that one of them appeared to him to be laughing.
Terrence Theobald, a taxi driver, delivered a cask of wine to the offender's premises somewhere between 4.30 - 5.30 pm that afternoon, which he had collected from Liquorland. Mr Theobald gave the cask of wine to the deceased who paid for it. He then saw him go back into the offender's premises.
Mr Theobald observed that the deceased was "walking slowly and [that] he appeared to be off his head on a mixture of drugs and alcohol". Mr Theobald said that he had seen the deceased on occasions when he was sober. In cross-examination he said that he looked "very different" on that particular day compared with how he appeared when sober.
It is apparent that the deceased had at times been a heavy user of prohibited drugs. The evidence revealed that when using drugs, he would become "agitated and aggressive" and "would have mood swings". There was evidence from his friend, Darren Harvey, of an incident some years previously in which the deceased had threatened to stab him with the screwdriver which he was then holding. He appeared to Mr Harvey to be "pretty irrational" at the time. Mr Harvey said that the deceased maintained that he had been diagnosed as suffering from schizophrenia, although Mr Harvey said that he doubted the accuracy of that diagnosis.

Ms Quinn

The principal Crown witness, as I have said, was Ms Quinn. She said that her son had seen the deceased walking past the house and had waved to him. As a result she invited him into the house at a time which she estimated was around 3.30 - 4 pm.
She said that the three adults - that is, the offender, the deceased and herself - had then begun drinking the wine which had been delivered by Mr Theobald. She said that the wine was consumed at a table which was in the kitchen/dining room area. She gave evidence that the mood appeared normal at first but that things changed after the deceased had consumed alcohol.
Ms Quinn said that after the deceased had consumed a few glasses of wine he seemed "a little disoriented". She said that "he was saying some strange things". She said that he insinuated that the offender was a "rock spider" (that is, a person who interferes with children). That remark caused the offender to become angry. She gave evidence that the deceased continued to "talk strangely" and that the offender told him to be quiet. She said that when the deceased persisted, the offender punched him. She said that the deceased had been punched "once or twice, maybe three times" to the face. She said that the deceased had endeavoured to protect himself.
In cross-examination Ms Quinn agreed with Ms Kluss, who appeared on behalf of the offender, that soon after the deceased arrived at her place he began to act strangely. He "seemed to be speaking in riddles". She agreed that he did not seem to be making much sense. That prompted her to offer him the opportunity to lie down and rest for a while, an offer which he apparently declined.
Ms Quinn also agreed with Ms Kluss that the deceased "expressed concerns about being followed by a black van". He was making statements that appeared to her to be "quite irrational". She agreed that the deceased mentioned "getting a gun" and that he knew people who were "in a bikie group". He also said that "he could get somebody knocked (that is, hurt, injured or killed) if he wanted to". She also agreed that "he was threatening people".
J gave evidence that he had been in the lounge room watching "The Simpsons" on TV when he heard the offender and the deceased yelling at each other in the kitchen area. He then saw the offender punch the deceased on three occasions with a clenched fist. The first punch struck him near the jaw, the second struck his lip and the third punch struck him in the eye. He said that the deceased had responded only by telling the offender to stop. It would seem that "The Simpsons" program was aired between 6 and 6.30 pm.
After observing the deceased being punched by the offender, Ms Quinn said that she then went into the lounge room where she confirmed that her son was watching "The Simpsons" on TV. She took him into her bedroom so that he could be shielded from the events that were taking place in the kitchen. He then remained there for the rest of the night. As a result, J said that he was unable to see or hear anything else that occurred that night.
Ms Quinn said that when she returned to the kitchen the deceased and the offender had resumed their respective positions at the table. The deceased was bleeding from the nose and had a small cut near his left eye.
Ms Quinn said that she then made dinner for J. In due course she took it into him. Whilst she was preparing dinner, she said that she heard the offender and the deceased continuing to argue. She heard the offender say to the deceased "You're not leaving here alive". She then saw him pick up a metal baseball bat, which was in the doorway of the kitchen and the lounge room, and hit the deceased in the back of the head with it. The deceased was struck, she said, "maybe three, four" times. The blows spun him around and by the time the last blow was inflicted the deceased had fallen to the floor and was lying on his stomach. Ms Quinn said that the baseball bat had broken during the course of the attack upon the deceased.
The offender, she said, then indicated that he wanted to go to the toilet. He gave her the bat and instructed her to hit the deceased if he moved. She said that the deceased, who was not moving at the time, was bleeding from the back of the head.
Ms Quinn said that she tried in vain to get the deceased to wake up whilst the offender was in the toilet. She also opened the front door at one stage, presumably in an endeavour to assist the deceased to escape. When the offender returned, she told him that she had to check on J. She then went and did so.
When she returned to the kitchen she said that she saw the offender with an axe in his hand. She saw him strike the deceased two or three times in the temple region with it. She said that when the offender saw her observing him, he threw the axe into the corner of the kitchen.
Ms Quinn said that the offender then instructed her to go to the BP service station where she purchased milk and tobacco. She estimated that this occurred at about 9 pm.
At some later stage, the offender got a blanket and together they wrapped the deceased's body in it. The offender then pushed his body against the wall where it seems it remained until the next day.
Ms Quinn said that sometime later still, the offender went to the phone booth to ring Kevin Denne. Mr Denne, she said, arrived around midnight. She said that the offender told him that he needed his help. The offender also told him that he was going to show him something. The offender then proceeded, she said, to pull back the blanket to reveal the deceased's face. She denied the suggestion that she was the person who had pulled back the blanket. She then went on to say that Mr Denne declined to assist the offender. That prompted the offender to say "No, you will help me, I don't want to have to dig two holes". She said that Mr Denne then left. He appeared to her to be quite shaken. During the period whilst Mr Denne was at the house, she said that she helped mop up the deceased's blood which was on the floor.
At some stage of the evening she said that the offender had said to her "I've known that fuckwit all my life and I killed him like that, I've only know (sic) you for five years imagine what I'll do to you".
Next morning she went with the offender and C in C's car to Mr Denne's house. She remained there with Mr Denne's partner whilst the offender, Mr Denne and C all left in C's car. She said that the offender told her not to return home until midday.
A number of propositions were put to her in cross-examination. She denied that the deceased had struck the offender at any stage with either his fists or with the baseball bat, that he had threatened to injure or kill the offender's children or that he had at any stage produced a knife. She also denied that she had inflicted the injuries to the deceased with the axe. Moreover she denied that she had admitted telling C that she had done so. She maintained that there had not been any discussion about disposing of the deceased's body. She did agree however that when C had arrived back at her premises, C had told her that "the boys would find their own way back".

Mr Denne

Kevin Denne gave evidence that he received a phone call from the offender at about 1 am of what was by then the morning following the incident. Call charge records reveal that a call was made to his premises from the public telephone adjacent to the BP service station at 1.24 am that morning. The offender told him that there was something that he wanted to talk to him about. Mr Denne said that he then went around to the offender's house which was a short distance away. When he arrived, the offender told him that he had "something to show [him] and not to freak out". The offender then showed him a body which was wrapped in a blanket. The body was lying under a table up against the western wall of the premises. The offender moved the body out into the middle of the floor where, Mr Denne said, Ms Quinn pulled down the top end of the blanket. He was then able to see that it was the deceased, whom he knew, and that his face was covered in blood.
Mr Denne said that when he saw the body he said to the offender "What the fuck have you done bro?" The offender told him that they had got into a fight after the deceased had threatened his (the offender's) family as well as Mr Denne's family. There was evidence that the offender was the biological father of one of Mr Denne's daughters but that Mr Denne and his partner have raised that girl as part of their own family. This state of affairs was apparently widely known in that community. The two families, it would appear, had a fair bit of interaction with each other.
Mr Denne also gave evidence that he had observed Ms Quinn cleaning up blood which he said was on the dining room floor and on part of the kitchen wall.
Mr Denne said that the offender then asked him to help dispose of the deceased's body. Mr Denne said that he did not want to assist the offender but that the offender had insisted that he do so. He said that the offender asked him to return at 8 o'clock that morning in order to help him. Mr Denne said that he had then gone home.
Mr Denne gave evidence that the offender arrived at his place together with Ms Quinn the next morning. They had arrived there in C's car. He said that the offender had again asked him to help him dispose of the deceased's body. When he told the offender that he did not want to assist, the offender had said to him in an angry tone "if you don't come and help me I'll put you with him" (which he understood to be a reference to the deceased).
He said that he and the offender then returned to the offender's place in C's car. When they arrived there, he and the offender went inside and collected the deceased's body which they then placed in the boot of C's car. He also observed the offender put a hessian bag in the boot.
From there they travelled out to the Ben Bullen Forest, with C driving. When they got into the forest he and the offender took the deceased's body out of the boot and carried it deeper into the bush. The offender then told C "We'll give you a ring when we need to be picked up". She then left.
Mr Denne said that he began to dig a hole. When it was deep enough the deceased's body was placed into the hole which was then covered up. Mr Denne gave evidence that he had been crying. He said that the offender had told him "to stop my blubbering or he'll put me in there with Dale". He noticed that both of the offender's hands were bruised.
Mr Denne said that they then walked to the Angus Farm tip which was nearby. His attention was temporarily diverted and when he returned to the scene he saw a fire burning. The hessian bag which the offender had been carrying had disappeared. He also noticed that the offender had changed his clothing. Mr Denne said that they then continued to walk back towards Lithgow. Eventually they were able to hitch a ride back home.
Mr Denne took police to the burial site and to the Angus Park tip following his arrest on 18 June 2003.

C gave evidence of having received a phone call from the offender. It would appear from call charge records that the public telephone near the BP service station was used to contact her mobile phone at 10.51 am on the morning after the fatal incident. An unsuccessful attempt had been made to contact her mobile phone from that same public phone at 8.38 pm the previous evening. C said that the offender had asked her to come over and give him a hand. When she arrived at the offender's house, she saw that he was there along with Ms Quinn and J. She said that her uncle asked her to drive them all over to Kevin Denne's house which she then did. At that stage she did not know what assistance the offender required of her.
She said that she remained at Kevin Denne's house for a short while. Then she, the offender and Mr Denne all departed, leaving Ms Quinn behind at Kevin's place. She said that she was asked to drive to a liquor outlet where two bottles of beer were purchased. It seems that the offender and Mr Denne consumed the beer during the course of the morning.
In the car on the way back to the offender's place, the offender told her that "someone had come around threatening the children's lives and that he had put a stop to it".
When they arrived back at the offender's place, the offender asked her to reverse her car up to the side gate. All three of them then proceeded into the house. She saw what she assumed to be a body lying in the kitchen covered with a blanket. The body was then wrapped in a blue tarpaulin and placed in the boot of her vehicle. A bag, from which she saw the handles of a baseball bat and wooden axe protruding, was also placed in the boot, together with a mop and bucket. She said that the offender told her that they had to get rid of the contents of the bag because "it had DNA on it". At some stage she observed that the offender had swollen knuckles on his right hand.
C said that she had driven the offender and Kevin Denne to the Ben Bullen Forest where the offender directed her to reverse into a little clearing. There the offender and Mr Denne removed the body from the car. C said that she was told by the offender to return to Lithgow. She said that she was instructed to tell Ms Quinn that they would find their own way back home.
When she returned to the offender's place she had a conversation with Ms Quinn who informed her that the body was that of Dale Muldoon. Ms Quinn told her that the deceased and the offender had had a fight and that it had got out of hand. She said that Ms Quinn told her that Dale was then struck with an axe in the face. Although C said, initially, that she was uncertain as to whom Ms Quinn had said had struck the deceased with the axe, a little later she said that she "was sure she [Ms Quinn] said that she hit him". It was at that stage that C saw stains on the ceiling and wall of the kitchen. Ms Quinn told her, the witness said, that the stains were caused by blood spraying from the deceased.
C gave evidence that at some later date the offender told her that the police had been to his house and that they had spoken to Ms Quinn. Ms Quinn had told them, apparently, that she did not know C. C said that the offender told her that she was not to tell the police anything and that she was to "pretend that Dale was still here". He told her that he suspected that Kevin Denne had spoken to the police. He went on to say that "whoever tells the police is going to end up in the same place that Dale did".
In cross-examination C's attention was drawn to the conversation she had had with the offender concerning the person who had come around and threatened the children. She agreed that it was not until some months later that she had been first asked to recall the details of it. She agreed that what she had told the court in her evidence in chief was simply the effect of the conversation and that she could not be certain as to the precise words which had been used.
She was then taken to various parts of the interview which police conducted with her on 13 June 2003. In that interview she told police on a number of occasions that Ms Quinn had admitted to her that she (Ms Quinn) had hit the deceased with the axe. For example, she provided police with the following version of their conversation: She said that Dale came around and they were all chummy, talking as friends as they do and then Dale, they got alcohol delivered by taxi, right, and then they were drinking and then Dale said something, I got told Dale said something about the kids and he was going to kill Chantelle and all this sort of stuff which is Coop's daughter … and Coop just - she said Coop just went ballistic and started hitting him and - and Dale started hitting Coop and Ms Quinn didn't know what to do so she grabbed the axe and hit him in the head with it and she said it cut him straight down the face. … …she said, I didn't know what to do because I thought he was going to kill Coop and so that's where it ended.
In the same interview she said that Ms Quinn had told her that after she had hit him with the axe, blood had spurted from the deceased's head onto the roof and all around the house. Ms Quinn also told her that she had used the mop and bucket in an effort to clean the areas in which there were blood stains.
The police received information in March or April which suggested that a homicide may have occurred at the offender's premises. Police went there on 2 May 2003 and spoke to Ms Quinn. However she denied any knowledge of a murder having been committed there. On 5 May the police were informed that the deceased was a missing person.
Police arrested the offender and Ms Quinn on 18 June 2003. They were taken to Lithgow police station where the offender was interviewed in the presence of a solicitor. He denied having killed anybody. He was then charged and remanded in custody where he has since remained. It is therefore appropriate that the sentences that I impose should commence on that date.

Dr Little

Finally it is necessary to refer to the evidence of Dr Little, who conducted the post-mortem. She gave evidence that the deceased had sustained four injuries to his head. She described the first injury as being a large defect (that is, as I understand it, a hole in the scalp and underlying skull) to the right side of the top of the head. The defect was rounded slightly at the front. There was a flap of skin at the back end of the injury and "the flap was joined on the squared back end of the wound".
She described the second and third areas of injury as being fairly superficial lacerations which had only penetrated the outer layers of the skin.
Dr Little then described the fourth area of injury. She said that it was in the form of a star. There were four splits in the skin which radiated out from a central point. Dr Little expressed the opinion that that injury could have been caused by a single blow from a blunt object, although it was also possible that it could have been caused by more than one blow.
She said that a baseball bat could have been responsible for inflicting any of the injuries to areas 2, 3 or 4. In cross-examination she conceded that a baseball bat was only one of a number of blunt objects which could have caused those injuries. She said that a baseball bat could not, however, have caused the injury numbered 1, because such an implement would not have caused the "punched out defect" that appears in that injury. She also said that the area of that injury was too small to have been caused by a baseball bat. Furthermore, she said, a baseball bat would have caused a round injury.
Dr Little was of the opinion that it was "highly likely" that the injury numbered 1 could have been caused by "the back surface of the head of an axe". She gave evidence that she was able to tell from the pattern of the fractures that the injury numbered 4 had occurred before the injury numbered 1. She was unable to say in which order the other injuries had occurred. She said that either of injuries 1 or 4 could have caused death. She also said that the injury numbered 4 could have caused the deceased to lose consciousness, although she conceded in cross-examination that it was possible that he may have still been conscious after having received that injury.
She gave evidence that there were a number of fractures to the skull which were associated with the injuries numbered 1 and 4. She said that the bloodstains to the wall and ceiling were unlikely to have been caused by blood vessels in the scalp spurting. She said that they may have been caused by a phenomenon known as "cast-off blood". That occurs when an implement, which already has blood upon it, is lifted up with the result that the blood is "flung off" it. The blood can, in those circumstances, be propelled quite a distance.
Dr Little said that a minimum of four blows would have been required to inflict the injuries to the deceased's head. None of them could have been caused by the sharp part of an axe. She said that considerable force would have been required to inflict the injuries to the areas numbered 1 and 4.
Finally, she said that the deceased had a blood alcohol reading of 0.101. She explained that that figure was likely to have been higher than the deceased's actual reading at the time of death because alcohol is produced by bacteria during the decomposition process. No examination was conducted to determine if there was any cannabis present in his system.
Dr Little said that other than the serious injuries to the deceased's head, no other injuries were discovered. There were, for example, no fractures to the deceased's face. Nor was there any bruising or swelling or lacerations to any part of his face. She agreed in cross-examination that she would have expected to see such bruising or swelling if there had been significant blows to the face. Dr Little said that there were no injuries to the deceased's body. Nor, she said, were there any defence injuries detected upon the deceased.
The offender declined, as was his entitlement, to give evidence. Nor was any evidence adduced on his behalf.

The essential issue at trial

The only issue upon which the trial was contested was whether or not the Crown could establish beyond reasonable doubt that the offender had, by his act or acts, caused the death of the deceased. The offender's case was that he was not responsible for Mr Muldoon's death. It was accepted that if the jury found that the offender was responsible in law for the death of Mr Muldoon then it would follow that his act or acts were deliberate. Similarly, it was accepted that it would follow that the relevant act or acts were done with an intention to kill or at least with an intention to do grievous bodily harm.
A number of colour photographs depicting the deceased's injuries were tendered in evidence. Notwithstanding the fact that the photographs were taken some months after the fatal injuries were inflicted, the extent of his injuries are graphically depicted in them. They bear out Dr Little's evidence that considerable force would have been required to inflict them. It can be readily inferred from the photographs, and from the other evidence, that the blows were inflicted with at least an intention to inflict grievous bodily harm. After all, the blows were administered to the head of the deceased with weapons each of which was capable of inflicting significant injuries.
The issue of provocation was also left to the jury. However, it received only cursory treatment by the Crown and was not referred to at all by Ms Kluss in her address to the jury. One can readily understand that approach in light of the sole issue upon which the trial was contested. In any event, it is clear from its verdict that the jury was persuaded that the Crown had proved beyond reasonable doubt that the offender was not acting under provocation.
As to the essential issue, the Crown's case was put in either of two ways. First, it urged that it was the offender's act or acts which alone caused the death of Mr Muldoon (that is, that the offender was solely responsible for the death of the deceased). Alternatively, the Crown sought to establish that the offender and Ms Quinn were each by reason of their actions jointly responsible for Mr Muldoon's death. To prove its case upon this basis, the Crown alleged that the offender and Ms Quinn had acted in pursuance of a joint criminal enterprise to commit murder. In other words, it sought to establish that there was an agreement between them to cause the death of Mr Muldoon with the requisite intention.
The Crown's case relied heavily upon the evidence of Ms Quinn. In the first instance, it submitted that the accused first inflicted the star-shaped injury to the back of the deceased's head with the baseball bat, an injury which according to Dr Little was in itself capable of causing his death. Upon that basis alone the Crown contended that the accused was solely responsible for the death of the deceased.
The Crown also relied, in respect of its case that the accused was solely responsible for the fatal injuries, upon the evidence of Ms Quinn that the accused also struck the deceased with an axe. In assessing that latter aspect of the Crown case the jury had to evaluate the evidence of C, who said that Ms Quinn had admitted to her that she had struck the deceased with an axe. The Crown's case was that the jury would reject that evidence either upon the basis that the admission was not made in those terms or upon the basis that if it was made, then it was neither a truthful nor a reliable account, essentially because it was at odds with the other objective evidence in the case. In advancing this submission the Crown pointed to the fact that the suggestion to C by Ms Quinn that the axe had cut the deceased straight down the face and that blood had spurted from the deceased's head, was contradicted by the evidence of Dr Little.
The jury was instructed that if it came to the conclusion, for whatever reason, that the Crown had not established that the accused was solely responsible for the fatal injuries, then it was to consider the alternative basis upon which the Crown case was put, namely that the accused and Ms Quinn had in combination inflicted the fatal blows.
The Crown's case upon the alternative basis was that the accused used the baseball bat, whereas it was Ms Quinn who used the axe. As mentioned previously, the Crown thus contended that in so conducting themselves, Ms Quinn and the accused were each acting pursuant to an agreement to intentionally kill or inflict grievous bodily harm upon the deceased.

Findings

It is against that background that I come to make an assessment of the facts. In approaching that task I must apply the principles enunciated in R v Isaacs (1997) 41 NSWLR 374. I see no reason why I should not accept the evidence of J, C and Kevin Denne respectively, especially as there was no challenge to their evidence, or at least not in respect of matters that assumed any real significance in the trial. Furthermore, so far as C and Mr Denne were concerned, most of their evidence related to the disposal of the deceased's body, a matter to which the offender pleaded guilty.
There was however a significant challenge to the evidence of Ms Quinn. The jury was duly warned about the need for her evidence to be approached with considerable caution. I have exercised a similar degree of caution in relation to my present task. Nevertheless, I am disposed to accept critical aspects of her evidence. For example, her evidence that the offender punched the deceased is supported by the testimony of J. Moreover, it was not disputed. I see no reason in the circumstances not to accept the proposition that it was the offender who initiated the violent conduct. Furthermore, there is no evidence before me to indicate that the deceased reciprocated in any way.
I also accept Ms Quinn's evidence concerning the use of the baseball bat. From C's evidence it can be inferred that the only two weapons used were indeed a baseball bat and an axe. Dr Little's evidence provides support for Ms Quinn's evidence, at least in relation to the sequence in which the two weapons were used. Moreover the cross-examination implicitly accepted the proposition that a baseball bat had been used, although it seemed to be suggested that it was the deceased who had wielded it. That proposition was rejected by Ms Quinn. Moreover it was not suggested to Ms Quinn, who was the only other person there, that she had used it.
It is thus apparent that only Ms Quinn and the offender could have used the two weapons involved. It is common ground that it was the deceased's remarks that prompted the offender to physically react. None of those remarks appear to have been directed towards Ms Quinn. Nor do they appear to have been about her. Certainly there is no evidence that she took any offence as a result of them. Furthermore it was the offender, rather than Ms Quinn, who apparently harboured some resentment towards the deceased. The threats about which Ms Burley and Ms McCann gave evidence confirm that fact. By way of contrast, the evidence does not reveal any reason which would have prompted Ms Quinn to use the baseball bat.
In all those circumstances I find beyond reasonable doubt that the offender inflicted the various blows with the baseball bat, including the blow which caused the star-shaped injury. As I have said, this injury was capable on its own of causing death, and thus upon this basis alone the Crown case is made out. I cannot however be satisfied to the requisite standard, in view of Dr Little's evidence, that the deceased was rendered unconscious as a result of those blows.
There was considerable debate during the course of the sentencing proceedings as to whether Ms Quinn's evidence that the offender also used the axe should be accepted. There was also discussion as to the precise time at which the axe was used. In the final analysis, little turns on the resolution of those issues. Assuming for present purposes that the offender's conviction depended upon his having participated in a joint criminal enterprise with Ms Quinn, then even if Ms Quinn rather than he was responsible for the attack with the axe, that would do little if anything to diminish the extent of the offender's culpability.
Had it been necessary to do so, I would in any event have concluded that the offender also inflicted the blows with the axe. That would of course require the acceptance of Ms Quinn's evidence on this issue. I would be prepared to do so notwithstanding the fact that she may have been motivated to falsely attribute to the offender the use of the axe when she in fact had used it.
Ultimately however I do not accept that Ms Quinn made the admissions in the terms which were attributed to her by C. That is not a reflection on the truthfulness of C. The difficulty lies essentially in the fact that the admissions are, as the Crown points out, significantly at odds with the evidence given by Dr Little. Moreover there is nothing in the evidence to suggest, as was conveyed by the admissions, that the offender required any assistance from her during the course of his altercation with the offender. Further the offender's conduct - including his pre-eminent role in disposing of the deceased's body and the implements which were used to attack him, as well as what he said to Kevin Denne and C - strongly points to the fact that he was the perpetrator of the attacks upon the deceased. It is quite conceivable that the offender used the axe because the baseball bat had, in accordance with Ms Quinn's testimony, broken whilst it was being used to strike the blows to the deceased's head. But, I repeat, it makes no significant difference for sentencing purposes which particular view of the Crown case is accepted.

Sentencing factors

It is trite to say that murder is regarded as the most serious offence in the criminal calendar. As I have already observed, the maximum penalty prescribed by the legislature is life imprisonment. That indicates the seriousness with which the community views the offence. The starting point for any consideration of the appropriate penalty is the fact that a human being's life has been taken.
I have received a victim impact statement from Dale Muldoon's mother. In it she details the impact which his death has had not only upon her but also upon her entire family, including the deceased's children. She expresses her grief, anguish and sense of despair at having lost the son to whom she gave life. She also refers to the particular anguish which she experienced by reason of being deprived of the opportunity to touch her son for a final time. The feelings which she expresses are entirely understandable. I am aware of course that the effect of Mr Muldoon's death upon his relatives is not, for present purposes, a relevant consideration: see R v Previtera (1997) 94 A Crim R 76. Nevertheless the court expresses its profound sympathy to all those who have suffered, and who continue to suffer, by reason of his death.
The Crown did not submit that the murder of the deceased fell within the worst category of case. I accept that the present offence, serious as it is, does not warrant a sentence of imprisonment for life as provided for in s 61 of the Crimes (Sentencing Procedure) Act 1999. That being so, s 21 of that Act, which provides for the imposition of a "sentence of imprisonment for a specified term" in circumstances such as the present, has application. Accordingly I propose to impose a determinate sentence upon the offender.
I am also required to bear in mind the relevant statutory framework that pertains to the sentencing of offenders and to the principles which are enunciated in the authorities that bear upon the issue. That being so, it is common ground that I must have regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999, which is in the following terms: 3A. The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
The Court of Criminal Appeal in R v MA (2004) 145 A Crim R 434 characterised s 3A as being a codification and elaboration of the purposes of criminal punishment, which were described by the High Court in Veen v The Queen (No2) (1988) 164 CLR 465. In a passage which is particularly apposite to the present case, a majority of the court in Veen (No2) said: [S]entencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guide posts to the appropriate sentence but sometimes they point in different directions. (at 476)
In determining the appropriate sentence I must also have regard to the various aggravating factors which are set out in s 21A of the Crimes (Sentencing Procedure) Act 1999. It is apparent from the concluding words of s 21A(1) that the list is not exhaustive. I must also weigh in the balance those matters upon which the offender is entitled to rely in order to mitigate the otherwise appropriate penalty: see s 21A(3) of the Crimes (Sentencing Procedure) Act 1999. As long as I take into account those factors that are relevant and known it is not necessary, as I understand the situation, to deal seriatim with each matter which is identified. I will make specific reference to those matters which I regard as relevant. Suffice it to say that I have had regard to the statutory requirements to which I have just referred, and given due weight to the matters which I consider as being of particular relevance.
It is appropriate that I now refer to the subjective features of the offender's case. The only evidence adduced on behalf of the offender was a psychologist's report prepared by Ms Anna Robilliard. The report sets out the following details about his background, including his education and employment history: The offender was born on the 7th December 1963 at Harris Park in Sydney. He is the youngest in a family of three and he has a 38 year old half sister on his mother's side. His eldest sibling is his 51 year old brother whom Bradley has not seen since he was 16 years old. They had a serious fight as Bradley said his brother was assaulting their mother and he interceded to protect her. His 47 year old sister is handicapped and she lives at Wallerawang with their mother. The [offender] said his birth parents separated when he was just seven months old and he knows nothing about his birth father, as his mother will not entertain discussions about him. For as long as he can remember Bradley's mother has been with Bill, the father of his 38 year old half sister and they are still together. The [offender] described his mother as very hardworking, dedicated to her family and loving. Before he was charged with this offence Bradley said he was very close to his mother and all of his extended family, however, he went on to say "they have cut me off over this". The [offender] has always lived in the Lithgow and Wallerawang areas. He said his mother's partner Bill, who he refers to as "uncle Bill" was "a good bloke". He worked in the coalmines and is now retired. Bradley said Bill was never abusive or violent and he was a good provider and family man. However, Bradley said he never considered Bill a substitute father and they were not particularly close emotionally. Several times during our meeting he spoke of "a void" in his life with regard to a father figure and role model. The [offender] attended Wallerawang Primary School. At the appropriate age he went on to Lithgow High School where he completed Year 10 and achieved his School Certificate. He said there were no major problems during his school years, that he was generally well behaved and he had a good friendship network. The [offender] said he has had 78 different jobs over the years and is competent in 36 trades although he has no formal qualifications. His favourite work is plant operating and he said he could also find employment readily in the building industry. He was fully employed until the birth of his first child Aaron when he was 24 years old. As his partner left him, Bradley stayed at home to care for the baby who was aged three months. Over the years the client has worked when he was able and he has also spent years at home on the Supporting Parents Benefit, caring for his children. He did not hold paid employment around the time of the offence.
Ms Robilliard then detailed the offender's history of relationships. He seems to have had four significant partners, including Ms Quinn, with each of whom he has had children. As I remarked earlier, he was on two separate occasions also involved in a relationship with Karen Burley. It appears that most, if not all, of those relationships have featured a degree of turbulence. The offender's life has also been touched by sadness. His first partner, and the mother of two of his children, died of a heroin overdose in 1998. Further, the son whom he had with Ms Quinn was apparently "surrendered" by her into the care of DOCS.
Ms Robilliard conducted a number of psychological tests upon the offender. She concluded that he was of "average to above average intelligence". She also observed that "his personality profile was unremarkable and [that] no entrenched psychopathology was demonstrated".
The offender has a criminal record which dates back to 1980 when he was placed on probation in the Children's Court for stealing from a motor vehicle. In 1983 he was placed on a good behaviour bond in the Local Court in respect of two offences of break, enter and steal. Over the next 10 or so years he made a number of appearances in the Local Court in respect of offences which in the main attracted pecuniary penalties. The offences in question consisted of possession of drugs, driving offences and matters of dishonesty. In 1994 he was sentenced in the Local Court to a minimum term of 9 months imprisonment with an additional term of 3 months in relation to a number of offences of stealing.
Of greater concern is the fact that the offender also has a record for offences of violence. In 1987, 1991 and 1992 he was convicted in respect of offences of assault. Those matters were dealt with either by way of a fine or community service order.
Of particular significance, for present purposes, is his conviction in the District Court in respect of an offence of aggravated robbery committed in May 2000. For that offence the offender was sentenced to imprisonment for 2 years 6 months with a non-parole period of 15 months. Each term was ordered to commence on 29 January 2001. It is thus apparent that the present offence was committed whilst the offender was on parole. That is a matter of aggravation which I am bound to take into account in sentencing the offender for the present matter: see Crimes (Sentencing Procedure) Act 1999 s 21A(2)(j).
The details of some of those offences were in evidence. It is unnecessary to refer to that material at any length. Suffice it to say that it reveals that the offender is prone to resort to violence when an argument arises and particularly when, as in the present case, the argument occurs against the background of the consumption of alcohol. I do note, however, that the offender told Ms Robilliard that he was not "heavily intoxicated" at the time of the present offence. There was also other evidence given at the trial to the same effect. Nevertheless in resorting to violence on the present occasion the offender employed the use of a weapon or weapons in the circumstances to which I earlier referred.
The offender's criminal record assumes some relevance for present purposes but in having regard to it I have been careful to approach the matter in accordance with what was said by the Court of Criminal Appeal in R v Wickham [2004] NSWCCA 193. For abundant caution I also record the fact that I have not had any regard to the allegations about which I heard evidence at the pre-trial stage, concerning violence said to have been visited upon various Crown witnesses by the offender.
It is highly likely, as I have said, that what caused the offender to behave in the manner in which he did were the remarks made to him by the deceased. Indeed in all the circumstances, the offender's actions should properly be characterised as being spontaneous rather than premeditated. Accordingly, I conclude that his offence does not amount to a "planned activity" within the meaning of s 21A(3)(b). Moreover, I am prepared to find that the offender was provoked by the deceased's words and/or actions. The provocation offered fell short of what is required pursuant to s 23 of the Crimes Act but it is nonetheless of such a kind as to attract the operation of s 21A(3)(c) of the Crimes (Sentencing Procedure) Act.
In all the circumstances, I would be disposed to conclude that the offender still has some prospects of being rehabilitated. He is not however entitled to any mitigation of the otherwise appropriate penalty on account of having expressed remorse for the offence of murder. Indeed, he continues to maintain that he is innocent of that charge. Nonetheless, as I observed earlier, he has admitted his guilt of the offence of attempting to pervert the course of justice. He told Ms Robilliard that he did so because he was endeavouring to protect Ms Quinn. He is entitled to a 25% discount for his early plea in respect of that matter, particularly as his plea meant that the vast bulk of the evidence concerning his conduct following the murder of the deceased was not put in issue at trial.
This offence attracts the operation of s 54A of the Crimes (Sentencing Procedure) Act. Section 54A(2) provides that "the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness in the Table to this Division". The standard non-parole period for the offence of murder is 20 years. Section 54B sets out the mechanism by which the non-parole period is to be determined. It is in the following terms: … (2) When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period. (3) The reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in section 21A. (4) The court must make a record of its reasons for increasing or reducing the standard non-parole period. The court must identify in the record of its reasons each factor that it took into account. …
In construing the section, I have had regard to the principles set out in R v Way [2004] 60 NSWLR 168. In R v AJP (2004) 150 A Crim R 575, Simpson J provided the following helpful summary of those principles: (i) while s54B(2) requires, in sentencing in respect of an offence to which Division 1A applies, unless the sentencing court determines that there are reasons not to do so, that it set the standard non-parole period as the non-parole period for the offence, that obligation exists where the offence in question is an offence in the middle of the range of objective seriousness of offences of that kind; one reason permitting departure from the standard non-parole period is that the offence in question falls outside the middle of that range (para [67]); (ii) the standard non-parole period was intended for a middle range case where the offender is convicted after trial: a plea of guilty might be in itself a reason for departure from the standard non-parole period (para [68]); (iii) a sentencing judge will be required, in relation to any given case, to hypothesise what is an abstract offence in the middle of the range of objective seriousness in order to determine where the subject offence lies in relation to such an offence; such an exercise is, in reality, little different from the traditional sentencing exercise of evaluating objective seriousness of any offence, and should be approached intuitively and based upon the general experience of courts in sentencing for the particular offence (paras [74] - [77]); (iv) circumstances that affect the evaluation of the objective seriousness of any offence include (but are not necessarily limited to) the actus reus, the consequences of the conduct, such factors as impinge upon the mens rea of the offender, matters of motivation, mental state, mental illness or disability (where causally related to the commission of the offence). Factors that affect the circumstances of the offender as distinct from the offence (for example, youth or prior sexual abuse) do not affect the evaluation of objective seriousness (paras [85] - [86]); (v) that an offence is "typical" or "common" does not dictate that it is in the middle of the range of objective seriousness (para [101]); (vi) the numerical frequency with which an offence of a particular kind is committed is not an indicator of the objective seriousness of any individual instance of that offence: (paras [101] - [102]); (vii) where a court determines that there are reasons for departing from the standard non-parole period, the standard non-parole period nevertheless remains of relevance in the sentencing determination, as a reference point, benchmark, sounding board or guidepost (para [122]); see also R v GJ Davies [2004] NSWCCA 319. (at par 13)
The fact that I am sentencing the offender for two separate, albeit related, offences presents something of a dilemma. It is clear that although the offences are different in nature there is nevertheless a significant degree of overlap between them. The offence of attempting to pervert the course of justice is an offence concerned primarily with the interference with the due administration of justice. However, the particulars that give rise to this present offence relate to the disposal of Mr Muldoon's body following his murder. I remind myself that it is thus critical to ensure that there is no "double counting", which could occur if I was, for example, to have regard to the same facts when sentencing for each of the separate offences. I am also of course obliged to have regard to the principles established in Pearce v The Queen (1998) 194 CLR 610 and to questions of totality.
Bearing all those considerations in mind, I am of the view that it is appropriate to first set a fixed term for the offence of attempting to pervert the course of justice. That sentence must take into account the separate features of that offence, including the fact that the offender prevailed upon two other persons to assist him in its commission, as well as the fact that the offender pleaded guilty to it at an early stage of the proceedings. It is then appropriate to fix a determinate sentence for the offence of murder which is partly concurrent with, and partly cumulative upon, the earlier sentence. I am required to first impose the non-parole period which I consider to be appropriate. It was not urged upon me that this was a case which warranted a finding of "special circumstances". In the result, the relationship which the total effective non-parole period which I shall impose bears to the total effective sentence will represent a slight departure from the normal statutory proportion. However in arriving at that outcome I have not overlooked the need, in setting the effective overall non-parole period, to fix the minimum period which the offender must spend in custody: see R v Simpson (2001) 53 NSWLR 704.
It was urged upon me that in arriving at an appropriate sentence, I should give due consideration to the various decisions referred to in R v Hearne (2001) 124 A Crim R 451. I have done so, but it is pertinent to observe that that case was decided before the introduction of the provisions concerning standard non-parole periods.
I have considered at some length the vexed question of whether the present offence is in "the middle of the range of objective seriousness" of offences of this kind. In the final analysis I have decided to impose a non-parole period which is shorter than the standard non-parole period, because in my view there are factors which operate to render the objective seriousness of this offence below "the middle of the range" for such offences. In doing so I have had regard to the combination of matters to which I earlier referred, particularly that there was a measure of provocation which prompted the offender to act as he did, and also that this was not a case involving any planned activity or premeditation on his part.
That said, the death of Mr Muldoon was unwarranted, needless and entirely without justification. The offender's actions were violent and brutal. The community expects that the law will protect the sanctity of human life. That being so, the unlawful taking of life must be met with a salutary penalty.

The Sentences

Bradley Douglas Cooper, for the offence of attempting to pervert the course of justice I impose a fixed term of 18 months to commence on 18 June 2003. For the offence of murder, I impose a non-parole period of 16½ years to commence on 18 December 2003, with the total sentence being 22 years to expire on 17 December 2025. The offender will thus be eligible for release on parole on 17 June 2020.

Amendments 22 April 2020 - coversheet and [105] - replaced symbol with 1/2 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 April 2020

At a glance

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Judgment (12 paragraphs)

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