New South Wales Court of Criminal Appeal CITATION: Jamie Joseph Cooper v Regina [2005] NSWCCA 428 HEARING DATE(S): 12 December 2005 JUDGMENT DATE: 12 December 2005 JUDGMENT OF: Hodgson JA at 27, 32; McClellan CJ at CL at 31; Barr J at 1 DECISION: Leave to appeal granted. Appeal dismissed. PARTIES: Jamie Joseph Cooper, Regina FILE NUMBER(S): CCA 2005/1444 Applicant: C Davenport SC COUNSEL: Respondent: P Ingram Applicant: Western Aboriginal Legal Service SOLICITORS: Respondent: S Kavanagh LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/61/0133 LOWER COURT JUDICIAL OFFICER: Norrish QC DCJ IN THE COURT OF CRIMINAL APPEAL 2005/1444 HODGSON JA McCLELLAN CJ AT CL BARR J 12 DECEMBER 2005 JAMIE JOSEPH COOPER v REGINA Judgment 1 BARR J: The applicant, Jamie Joseph Cooper, seeks leave to appeal against sentences imposed in the District Court. On 13 August 2004 he pleaded guilty to three charges which may be summarised as follows: 1. On 30 October 2002 at Dubbo he broke and entered a dwelling house and committed a serious indictable offence therein, namely stealing in circumstances of aggravation, being in company; 2. At the same time and place he possessed five firearms, comprising two pistols and three revolvers, without being authorised to do so by licence or permit; and 3. At the same time and place he disposed of the same five stolen firearms. 2 On 23 September 2004 Norrish QC DCJ sentenced the applicant, on the first count, to a non-parole period of two years and a balance of term of one year and six months. On each of the other counts his Honour imposed a term of imprisonment of one year and nine months and declined to fix a non-parole period. The terms were ordered to commence at the same time as the non-parole period on the first count. The effective sentence imposed for all offences was therefore imprisonment for three years and six months with a non-parole period of two years. 3 The applicant was a twenty-six year old man who was residing temporarily in Dubbo. Over a period of weeks he resided in various houses with various people, some of them relatives of his. One of the houses was at 23 O'Donnell Street. While he was living there it came to his notice that firearms were kept in the house next door, number 21. 4 He and his 15-year-old cousin broke into number 21, taking with them a jemmy and a screwdriver, and forced open safes and took the firearms. Their way into and out of the house was through number 23 and that route enabled them to approach and leave the house from the back and remain unobserved from the street. As they escaped through number 23 they left the rifles there and the applicant told the wife of the occupant that he would return to collect them. She informed the police. They attended and that was how the long guns came to be recovered. The five handguns, however, were taken off by the applicant and his companion. Although they told the police a story about what had happened to them, those handguns were never recovered. 5 The applicant was arrested and interviewed by the police. He admitted the part he had played in the break and enter and the stealing of the firearms. He said that he had done so because he had lost his temper, having been informed that the occupant of number 21, presumably the owner of the firearms, had threatened to shoot his cousin. His intention, he said, was to destroy the weapons. 6 The applicant was interviewed by an officer of the Probation and Parole Service, who wrote a Pre-sentence Report for the Court. He told the officer that although he agreed with the police version of the facts, he felt that he was taking more than his fair share of blame for the offences. He told the officer that he did not know that by handling the firearms he was committing an offence. 7 The applicant had had a difficult home life. His parents separated when he was young and he lived sometimes with his mother and sometimes with his father. His father abused him. He told a psychologist who prepared a report for the Court, Ms Pulman, that he still got on well with his mother but had broken off relations entirely with his father. He had been asked to leave high school after two terms of year 10. He had worked with his father for about two years as a kangaroo shooter and then at a piggery before doing council work. He had a Concreters' Certificate and a Bar Certificate. He had most recently done casual work between 2000 and 2002. He used illegal drugs. 8 He had been engaged to a young woman in 2002 and she had given birth to a son. However, the child died in tragic circumstances when he was only three months old. This had a very bad effect on the applicant. He tried to hang himself and entered a period of very heavy drug use. 9 The applicant's relationship with the mother of the dead child had come to an end and he claimed to have an understanding with a woman to whom he had spoken on the telephone on a number of occasions. He told the author of the Pre-sentence Report about that woman and the reporter took the view that his expectations of marriage or any permanent relationship were unreasonable. She spoke about the "illusion" of the woman. The reporter came to the view that the applicant had little insight into his offending. 10 The criminal history of the applicant was by no means as bad is one might have expected of a man of his background. In 1997 and 2001 he was convicted of a number of assaults. During 2002 he committed a number of larcenies and was convicted of shoplifting and having custody of a knife. He had never been sentenced to a period of imprisonment. 11 The applicant had been granted bail pending his trial for the present offences and had committed the offences of possessing implements of housebreaking, having goods in custody reasonably suspected of having been stolen and breaking, entering and stealing, matters relevant to his contrition and his prospects of rehabilitation. 12 The applicant told Ms Pulman that he was in fair health but had a history of blackouts when he got angry. Precisely what the blackouts were was never made clear. Ms Pulman tested the applicant and concluded that his symptoms were consistent with major depression and delusional disorder. He had a "very negative attitude". Having considered the death of the applicant's son, Ms Pulman expressed the opinion that the applicant was showing symptoms of major depression and post-traumatic stress disorder. She recommended counselling to deal with the problems stemming from that disorder. 13 The applicant gave evidence before the sentencing judge. He said that he was sorry that he had broken into the house. He knew that he should not have done so. He was on drugs and depressed and not thinking straight. He told his Honour that he did not know that there were firearms in the premises and that the entry was something done on the spur of the moment because his cousin asked him to do so. He just followed him to the house, affected by drugs, and not thinking. 14 The applicant told his Honour about the principal events of his home and family life, his early resort to the use of drugs and the effect upon him of his son's death, leading to his increased use of drugs. 15 His Honour delivered a long and careful judgment, reviewing these and other facts. He took the view that the applicant was not being frank with the Court. His Honour expressed the view that the version the applicant had given to the police was to be preferred. That version included an assertion of anger at learning of the threat by the occupant of the house to shoot his cousin and the formation of an intention to take the firearms and "wreck" them, that is, destroy them in some way. 16 It may be accepted that his Honour found that that was the applicant's intent when breaking into the house and taking away the firearms. That intent would also extend to the act of the applicant in handing over the firearms to others. 17 His Honour accepted the opinion of the Probation and Parole officer that the applicant's belief in his relationship with the woman he had mentioned was unrealistic and that he had little insight into his offending behaviour. His Honour decided to allow the applicant an extended period of supervision on parole in view of his background of drug abuse and psychological problems and consequent need for counselling. His Honour took into account that this was the first term of imprisonment and that the applicant had never before been subject to parole supervision. His Honour allowed a discount of 10 per cent for the utilitarian value of the pleas of guilty. 18 There is one ground of appeal, namely that the sentence was manifestly excessive. It was submitted that his Honour had acknowledged that the involvement of the applicant and his co-offender was equal, despite their differences in age, that the applicant's criminal history before the offence was relatively minor, that the commission of the offence was directly related to the death of the applicant's son in April 2002, that the offences were uncharacteristic, that the applicant had good prospects of rehabilitation if he was given appropriate assistance and that the applicant required counselling and rehabilitation for his drug dependence. 19 It was submitted that the applicant had never been subject to supervision or counselling to solve the problems that resulted from his upbringing and from the death of his child. It was submitted that the sentence imposed failed to reflect the unusual circumstances that led the applicant to commit the offence at a time when he had embarked upon a course of self-destruction following the death of his son. The subjective material before the Court and accepted by his Honour ought to have resulted in a lower sentence. 20 The maximum sentence for the first offence was 14 years and for the two firearms offences five and 10 years respectively. The offences were serious ones of their kind, not least because one result of them was to enable others in the community to make use of the handguns. His Honour's finding was that it was the applicant's intention not to make the firearms available generally to persons in the community who would not be entitled to possess and use them, but rather to destroy the guns or dispose of them safely. Even so, the fact, unintended or otherwise, that the guns did as a result of the applicant's criminality become available to be so used, was a matter which in my opinion sounded in the sentence. 21 The applicant's criminal history was not a serious one and he did have a most unfortunate history with serious effects upon his personality and a consequent need for professional assistance. However, his Honour took these matters into account particularly in structuring the sentence in the manner that he did. No question of parity arose between the applicant and his cousin, who was only a child. 22 The Crown put before the Court statistics published by the Judicial Commission of New South Wales and both sides tried to draw some comfort from them. The sentencing statistics are necessarily extracted offence by offence. I would accept the statistical base of 354 cases for crimes committed under section 102(2) of the Crimes Act, which corresponds to the first count. I would have considerable caution in attempting to use statistics corresponding to the second and third counts however, namely, possessing the firearms without licence or permit and disposing of them. The statistical base for these offences is 17 and 15 cases respectively. In my view no useful statistical conclusions can be drawn from bases so small. 23 The other difficulty that I have in applying statistical reasoning to the sentences is that his Honour imposed effectively concurrent sentences, taking into account the totality of the applicant's criminality. In a real sense, therefore, the sentence imposed for the first count had to take into account or effectively did take into account the circumstance that I have already mentioned, that the five handguns were by the commission of the offence enabled to be used unlawfully in the community. 24 The Court has commented on a number of occasions upon the difficulties that arise in the direct comparison of statistical results with the results in any given case. In the end I do not think that the statistics give comfort to either the applicant or the Crown and I would not have regard to them. 25 Bearing in mind the totality of the criminality and the concurrency of the sentences, it seems to me that the sentences are on their face unremarkable for offences as serious as these. His Honour was undoubtedly required to give weight to the matters now urged upon the Court but no particular error is pointed to and the Court is invited to infer error from the very length of the sentences. 26 In my opinion the sentences are well within the limits of his Honour's proper sentencing discretion. I would grant leave to appeal but would dismiss the appeal. 27 HODGSON JA: I agree. 28 It was submitted by the applicant that a comparison of the statistics suggested the sentences were excessive, because the sentences were either in the mid range or the high range or even above the high range as indicated by the statistics, and it was put that the statistics included cases where there had not been a plea of guilty or contrition. It was submitted also, in the case of the first count, that they included cases where there were much more serious matters of aggravation than existed in this case. 29 However, the statistics must also have included cases where the offence in question was the only offence for which the sentence was imposed, and in my opinion it is appropriate to take into account that the effective sentence, in the case of three sentences to be served concurrently, should reflect the overall criminality of the three offences. 30 In this case, the offences in question have had extremely serious consequences; and even though the sentencing judge was not satisfied that the applicant intended these consequences, in my opinion the extremely serious consequences can and should be taken into account, particularly where the applicant gave no account of any steps taken to prevent them occurring. 31 McCLELLAN CJ at CL: I agree with Justice Barr. 32 HODGSON JA: So the order is as proposed by Justice Barr. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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