R v Copper*

Pursuant to s578A Crimes Act 1900 there is to be no publication of the victim's name or anything that may lead to identification of the victim. Identifying information has been removed from this version of the judgment to comply with the statute and, in some cases, replaced with pseudonyms.

REMARKS ON SENTENCE 1On 18 April 2012 Dietrich Copper came home from drinking at the [name] Hotel in [place] to find a woman in his bed. She was facing away from him and was dressed. He embraced her and they started to have sex. Dietrich Copper thought at first it was a woman he had been speaking to at the hotel but quickly realised it was not. He did not give the woman an opportunity to agree to his sexual advances. As soon as the woman realised that it was not the man she thought it was she discontinued their intercourse and complained. Dietrich Copper was charged with rape. 2The formal title of the crime is sexual intercourse without consent knowing that the person does not consent. Parliament regards it as a serious crime and under s 61I of the Crimes Act 1900 (NSW) it fixed a maximum penalty of 14 years imprisonment. In addition it has attached a standard non-parole period of 7 years to that crime. Dietrich Copper has pleaded guilty to the crime and it is now my job to sentence him for it. I should briefly say a little more about what happened. 3Mr Copper was living in a house in [place] with a workmate Clark Ash. They were doing [type] work together. They went to the hotel on that night and Mr Ash started talking to a woman there. Mr Copper started talking to another woman. Mr Ash went home to their house with the woman he was talking to and he took her to Dietrich Copper's bedroom. Mr Ash did not occupy a bedroom but normally slept on a mattress on the lounge floor. Mr Ash and the woman talked for half an hour or so and then had sexual intercourse together. Mr Ash left the room and the woman got dressed and stayed in the bed. It was about 10 minutes after that that Dietrich Copper got home and went into his own bedroom. He found the woman there and then, as I said, embraced her and they started to have sex together. 4Understandably, at that initial stage the woman no doubt thought it was Clark Ash. In fact they were having sex for what appeared to be some minutes until the woman realised that it was not Mr Ash. She immediately said "You're not [Clark], what the fuck. Where is [Clark]?" Mr Copper said "No, no I am not [Clark], do you want me to stop". The woman said that she did want him to stop and Mr Copper immediately stopped. He then left the room. The woman quickly dressed and went to her sister where she complained. She later went to the police. 5Mr Copper was interviewed by the police and told them that he thought it was the woman he had been with earlier at the hotel but soon realised when he started to embrace her that it was not her and was somebody else. Nevertheless he went ahead and agreed that he was reckless in doing that and did not consider whether or not the woman was agreeing to have sex with him. 6The woman gave a victim impact statement. She gave it yesterday by reading it out in court from a remote location. The victim impact statement demonstrates how serious an effect this sort of crime has on a person and why Parliament regards the offence so seriously. She said that emotionally it brought on many sleepless nights and affected her ability to work. She did not like seeing her family heartbroken because they apparently felt that they had not protected her. It extended to her social life. She does not feel safe unless she has a trusted male around. In fact she does not trust men generally unless it is somebody close. She has had to have counselling. That is because of her anxiety. That has helped. She feels now that she can move on to a normal life. This is not at all an unusual impact for a crime - such as the one Mr Copper committed - to have on its victim. 7Mr Copper has a criminal record. He is now 22 but his record did not start until he was 20. He was charged with two offences of assault occasioning actual bodily harm and an offence of resisting police. He received a good behaviour bond for the resist police and a suspended sentence of 7 months for one of the assaults. For the other assault he received a community service order. However, during the period of the suspended sentence bond he committed another assault and damaged some property. That breached the bond attached to the suspended sentence so he served 7 months in prison with a non-parole period of 5 months and 10 days. He was also sentenced to 2 months imprisonment for breaching the s 9 bond. For the common assault and the damage to the property which constituted the breach he received, respectively, 3 months and 1 month imprisonment. I will say more about those offences later. 8Mr C Simpson of counsel, who appears for Mr Copper, called his client to give evidence. The first thing he did when asked by Mr Simpson was to apologise sincerely to the woman who was the victim of his crime and who was present in court. He acknowledged how it must have affected her and her family and indicated that it was not his intention to hurt her. It was an impressive apology and Mr L M Shaw of counsel, who appears as Crown Prosecutor, indicated that the DPP Witness Assistance Officer who was present in court had told him that it was the first time that she had heard a sworn apology in a rape case and that it had been appreciated by the woman who was the victim. 9Mr Simpson asked his client some questions about his background. His father left early in his life and he has not seen him for almost all his life. He lived with his mother until he was 12 but she was a drug addict. A great-aunt took him and his two brothers in. He stayed with her until he was 16 and then he moved out of home. However, he continued his secondary education at [school] in [place]. He had to pay fees for that school and did that by getting work after school and at weekends. He put himself through to and including year 12 and completed the Higher School Certificate. He did quite well and qualified with enough marks to enrol at university. However, he could not afford that so he undertook an apprenticeship as a [trade]. He undertook that for three years and had eight months to go when work began to slow and he could no longer to afford to live on the apprentice's wages so he undertook [work type] to build up his capital. He clearly has a good work ethic. 10Mr Simpson asked him about his previous offences. Apparently the original assaults occasioning actual bodily harm and the resist police were as a result of a brawl in a hotel after a football match. Then he had problems in a relationship with a particular woman. He was at a party and threw an empty beer bottle at her and burnt some of her clothes. That resulted in the charge of assault and destruction of property but it also brought about the breach of the bonds attached to the earlier offences and all of that resulted in him spending some 5 or 6 months in gaol. The problems with the girlfriend were the result of an emotional reaction of longstanding. He had developed significant anger problems because of his family background. That is hardly surprising. 11When he received the original suspended sentence Mr Copper attended some counselling and was undertaking that when unfortunately the incident occurred with his girlfriend. Alcohol complicates the problem. He has been in custody for the offence that I am sentencing him for since 7 June 2012, some 4 months and 22 days. Mr Simpson asked him about his future. He wants to develop a successful career and, if possible, go to university. As I said, he obviously has a strong work ethic. He acknowledges that he has blamed people in the past and needs to continue counselling to get further help. He has never taken drugs and acknowledges that alcohol can be a problem for him. 12As it happens, he has commenced another relationship which has lasted through his time in custody. It is with a local woman about his age. He is unsure of the future but hopeful. To his credit, at his request, he has been continuing his counselling whilst on remand waiting to be sentenced for this offence. When he is released he knows that the [type] job is still available. His employer understands his predicament and is prepared to take him back. 13Mr Shaw, in his submissions, pointed out the seriousness with which Parliament regards this offence. However he also acknowledged that the offence was not planned and that Mr Copper had pleaded guilty. The plea was not at the first available opportunity and Mr Shaw suggested that a discount for the plea around 15% would be appropriate. He acknowledged that Mr Copper's prospects of rehabilitation were remarkably good. Like me he expressed some surprise that Mr Copper had received custodial sentences for some of the offences he had committed in the past. 14I can see that Mr Copper's first offence was committed around 17 October 2010 and they were the two assaults and resisting police as a result of the brawl in the hotel. Although I am not familiar with the facts, I am a little surprised that he received a custodial sentence without any prior criminal record at all. That sentence was of course suspended but the difficulty was that he had anger management problems - which he acknowledges - so that when he fell out with his girlfriend and threw a bottle at her, he obviously breached the bond attached to the suspended sentence and ended up serving time in prison. That to my mind was regrettable for a young man who was merely 20. I think it is regrettable that he has spent the time in custody that he did at that early stage. 15I had drawn counsel's attention to two sentences which I imposed in rape cases. One was R v Michael Brown [2010] NSWDC 344 and the other was R v Reyniel Herrera Marcial [2011] NSWDC 119. They were both sentences following trials where the offenders had pleaded not guilty. Mr Shaw acknowledged that I need to bear in mind that the sentences which I had imposed in those cases were imposed before the judgment of the High Court of Australia in Muldrock v The Queen [2011] HCA 39; 244 CLR 120; 212 A Crim R 254. In Muldrock, the relevance of the standard non-parole period was more cogent in fixing the non-parole period of a sentence. Mr Shaw also fairly acknowledged that in Brown the offence involved ejaculation and a breach of trust. Neither of those is present in this case. 16Mr Shaw also acknowledged that the form of the intercourse was of course serious, being penile vaginal intercourse but that the victim was actively involved until she realised it was not the man that she thought it was. Mr Shaw thought that a sentence in the range of 2 to 4 years was appropriate. He submitted that it would not be appellable error to suspend the sentence. Mr Simpson argued that a discount in the range of 20% was more appropriate because the matter came on very quickly and that it was not an overwhelming prosecution case. I agree with that last submission. I think that the case did come on very quickly. However a jury panel was required and was in attendance and Mr Copper pleaded guilty only this week. I propose to discount the sentence that I would otherwise impose by 18% to represent the fact that he has practically assisted the administration of justice by pleading guilty. 17Mr Simpson emphasised the significance of his client's genuine contrition and I propose to put some weight on that. So far as the Marcial case was concerned, Mr Simpson pointed out that there were three significantly serious features about that which were not present in this case. In that case the perpetrator gave the victim no opportunity to prepare herself for the crime. She was asleep when he penetrated her. In that case the intercourse was unprotected. There is no evidence about that in this case. The third aspect was that in that case the offender had ejaculated into the victim. He also emphasised the fact that in both cases the offender had pleaded not guilty. He pointed out the context in which the offence should be seen. His client arrived home after an evening at the hotel and found a woman in his bed. It was not as if he was lying in wait for the victim or preying or lurking in the streets. For one she was actually present but of course then he went ahead and had sex with her regardless of whether or not he thought she was consenting. 18Mr Simpson argued that the offence lies at the lowest, the very lowest end of the scale of seriousness. I do not accept that submission. Because it involved penile vaginal intercourse for some minutes, I regard it as falling towards the lower end of seriousness for crimes such as this but not at the lowest end. Clearly sexual intercourse can be in a way and for a period much less serious than what happened in this case. 19Mr Simpson pointed out that his client is only 22 and was only 21 when this offence was committed. He also argued that his client's prospects for rehabilitation were very good if not excellent. I do accept that submission. He argued that his age and the need for ongoing counselling would amount to special circumstances for adjusting any ratio between a non-parole period and the additional term of a sentence. He pointed out that his client had stopped as soon as she asked. I have taken that into account as well. 20As I said, I regard the crime as falling towards the lower end of the scale of seriousness for crimes such as this but not at the lowest end. I would regard an appropriate prison sentence as one in the region of 3 years for the objective offence but taking into account the strong and unprecedented remorse which Mr Copper has shown, I propose to reduce that to 2 years and 6 months. An appropriate sentence is 2 years and 6 months. However Mr Copper has pleaded guilty. He pleaded guilty not at the earliest opportunity but, as Mr Simpson argued, reasonably quickly given the circumstances. Once I propose, as I said, to discount his sentence by 18% to represent that plea, I will round off his sentence to one of 2 years imprisonment. 21I should add that the crime is such that there is no alternative but to sentence him to a term of imprisonment. Mr Simpson argues, however, that I may suspend the sentence. I could take into account the fact that he has already served time in prison. I do propose to suspend the sentence. I am going to suspend the sentence for three reasons. One is that he has already served well over 4 months, in fact nearly 5 months in prison for this offence. The second is that his prospects of rehabilitation are very good. He has already embarked on a course of counselling and acknowledges the personal difficulties he faces. He needs to be encouraged in this course. Related to that is his age. He is a young man and needs to be given an opportunity. 22The third reason is also related to his youth but linked to his past record. I respectfully think that he has not been given an opportunity which he might have been given at an early age to avoid going to prison. For a young man he has spent too much time in prison. It seems that he is trying to get his life in order and has already spent a good amount of time in prison. I would regard the first and second reasons alone as adequate enough to suspend the sentence. HIS HONOUR: I am now going to sentence you Mr Copper, if you would stand up. 23I convict you of the offence of sexual intercourse without consent, knowing that the victim was not consenting. I impose a sentence of imprisonment of 2 years. Under s 12(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) I make an order suspending execution of the whole of the sentence for the whole of the period. I direct that you be released from custody on condition that you enter into a good behaviour bond for the period of 2 years. HIS HONOUR: What should be the conditions of the bond Mr Shaw, Mr Simpson? SIMPSON: Your Honour he should report to Probation and Parole in [place] and obey all reasonable directions including counselling for anger management issues, alcohol related issues. HIS HONOUR: Anything else Mr Shaw? SIMPSON: And also relationship type issues, that might come under auspice of counselling. SHAW: The only other matter I thought of was, I don't know if they have any programs to do with sex offending but it's not really - sex offending programs are generally for paedophiles your Honour but-- HIS HONOUR: Yes I agree. 24The conditions of the bond are these: (1)That you be of good behaviour. (2)That you appear in court if called upon to do so. (3)That you notify the registrar of this Court of any change in your residential address. (4)That you agree to be supervised by Probation and Parole service at [place] and accept all their reasonable recommendations and directions particularly regarding counselling to do with anger management and relationship issues. For this purpose you are directed to report to the [place] Probation and Parole Office on or before Friday of next week, 9 November 2012. HIS HONOUR: Mr Copper you have got a prison sentence, it is 2 years, okay. That is because of the seriousness of the crime. I have suspended that sentence for the reasons that I gave. Partly you have already served gaol and partly you have impressed me with your efforts to get yourself back on track after a very difficult start. There is a bond which runs along with the suspended sentence and it runs for the whole of the 2 years of the sentence. There are three easy conditions: (1) you have got to stay out of trouble altogether; (2) if you get a notice to come to court you have got to turn up so that the sheriffs officers or the police do not have to come and find you, you have got to come to court and (3) if you change your home address or your residence you have got to write to the registrar or send him an email here so they know where you are. The fourth is the most important and that is you go to Probation and Parole at [place]. You have got to turn up there by Friday of next week so I have given you a week and a bit. Let them help you. You have got to agree with their recommendations that they come up with, particularly counselling. Anger management you have acknowledged yourself and any relationship issues which are probably connected with the anger management. You know about suspended sentences because you have had one before and I have usually got to explain this to offenders but you know. The bond which goes with a suspended sentence is not like a normal good behaviour bond, it is much harder to avoid gaol. If you breach a suspended sentence bond it comes back before me and the law makes it very hard not to send you to gaol, you pretty well have got to go to gaol. You know that from past experience. You threw the beer bottle at the girlfriend, you burn her clothes, you come back up and not only are you charged with that but the magistrate calls up the suspended sentence, the magistrate had very little room to move and sends you to gaol and there you are in gaol. Now you do not want that to happen again, you want this relationship with [name] to develop and you want to get on with your work, you want to get on with your future. You have got a good future, you are a bright young man, it is obvious, and let this all be put behind you and, as I always say to people, let Probation and Parole help you. They know what they are doing and they will help you, do you understand all that? OFFENDER: Yes your Honour. HIS HONOUR: Okay, good luck. You go with Correctives, they will process you and then you have got to sign your bond, do you understand? SHAW: Just one matter, your Honour. Just in terms of your remarks, your Honour didn't refer to the maximum penalty and the actual length of standard non-parole as legislative guideposts but it was implicit in our argument yesterday. HIS HONOUR: No I said it, it carries 14 years and 7 years. SHAW: Sorry, I missed it. HIS HONOUR: No, right at the start, s 61I. Thanks Mr Shaw, thanks Mr Simpson.