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Judgment handed down in DPP v Cooper (a Pseudonym)

08 February 2017

The Court of Appeal (Justice Weinberg, Justice Whelan and Justice Kyrou) today allowed an appeal by the Director of Public Prosecutions against a sentence imposed upon the respondent in May 2016.

The respondent stood trial in the County Court on one charge of rape, two charges of attempted rape and two charges of indecent act with a child under 16. He was convicted of all these charges. The trial judge had sentenced him to a term of 720 days’ imprisonment on the charge of rape, and a three year Community Correction Order on the charges of attempted rape and indecent act with a child under 16. The offences that were the subject of these charges had been committed against the respondent’s step-daughter in around 2006 or 2007, when the victim was aged 11 or 12. The rape was constituted by digital penetration, and the attempted rapes by attempted digital penetration.

The trial judge, although stating in her sentencing remarks that she had originally been minded to impose a custodial sentence of ‘considerably longer than two years’, had moderated her initial view having regard to the respondent’s personal circumstances. These included evidence that he suffered from a chronic depressive disorder, at least at the time of sentencing. By virtue of that disorder, the principles in Verdins concerning moderation of general deterrence, the burden of imprisonment, and the risk of deterioration were found to be applicable but, according to her Honour, in the case of the first of those principles, not to a substantial degree. Further, she characterised the offences as ‘less than moderate’ in their objective gravity.

The Director appealed on the ground that both the individual sentences and the total effective sentence were manifestly inadequate. In broad terms, the main issues on the appeal related to whether the trial judge had appropriately balanced all relevant sentencing considerations, including deterrence, denunciation and just punishment, with the personal circumstances of the respondent.

The Court upheld the Director’s appeal. The Court said that, when considering current sentencing practice for the offence of rape, and particularly rape of children, the sentence of 720 days’ imprisonment for that offence imposed in this case was seriously out of kilter with sentences imposed in comparable cases, and was itself wholly outside the range reasonably available. The Court rejected the trial judge’s characterisation of the offending, and described it as a serious example of what is always serious offending. The Court noted that there were few significant mitigating factors that could be called in aid, and that her Honour appeared to have given these more weight than they properly merited.

The respondent was resentenced to a total effective term of six years’ imprisonment, with a non-parole period of four years.

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