Revised
(Not) Restricted
Suitable for Publication
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION
Case No.
DIRECTOR OF PUBLIC PROSECUTIONS
v
ROY COOPER
--JUDGE:
HER HONOUR JUDGE DOUGLAS
WHERE HELD:
Melbourne
DATE OF HEARING:
DATE OF SENTENCE:
15 June 2016
CASE MAY BE CITED AS:
DPP v Cooper
MEDIUM NEUTRAL CITATION:
[2016] VCC 821
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
--APPEARANCES:
Counsel
For the DPP
Ms A. McClure
For the Accused
Mr C. Pearson
COUNTY COURT OF VICTORIA
250 William Street, Melbourne
164036
Solicitors
!Und efined Boo km ar k, I
HER HONOUR:
1
On 4 April 2016, Mr Cooper pleaded guilty to a plea Indictment containing four
charges, namely; Charge 1, stalking Yee Sek Chan between 26 May 2012 and 18 July
2012; Charge 2, stalking Estelle Kingshott between 26 May 2012 and 12 October 2012;
Charge 3, stalking Chamras Soonthornvitit between 26 May 2012 and 24 July 2012;
Charge 4, stalking Huey Shyan Hoh between 26 May 2012 and 20 July 2012.
2
The maximum penalty for the offence of stalking is 10 years’ imprisonment.
3
Mr Batten appeared to prosecute and Mr Pearson appeared on Mr Cooper's behalf.
4
A document “Summary of facts on plea” dated 18 May 2016, was tendered on
behalf of the prosecution. I will attach that document to these sentencing remarks, as it
sets out, comprehensively, the offending which is the subject of the charges on the
Indictment, as well as the complicated context of the offending.
5
On behalf of the defence, a document “Accused’s outline of submissions for Plea”
dated 19 May 2016 and a document chronology of Mr Cooper’s medical issues were
tendered. Further, a report of forensic psychiatrist Dr Danny Sullivan dated 2 August
2011, and a report of forensic psychologist Ian Mackinnon dated 2 May 2016 was
tendered.
6
As to the sentence Mr Cooper is undergoing, on 23 February 2012, His Honour
Judge Wood of this court imposed a sentence of eight years and nine months'
imprisonment, he ordered a non-parole period of five and a half years' imprisonment
before Mr Cooper becomes eligible for parole. He ordered 364 days pre-sentence
detention be reckoned as already having been served.
7
On 8 February 2013, Mr Cooper was sentenced by a magistrate to 15 months'
imprisonment, six months of which was ordered to be served concurrently with the
sentence imposed by His Honour Judge Wood. Consequently, he is undergoing an
additional nine months' imprisonment on the sentence imposed by His Honour Judge
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Wood. I have been informed that the earliest eligibility date for release on parole is 22
May 2017.
8
As to Mr Cooper's criminal history. He has a relevant criminal history which is
attached to the Indictment, from 1 December 1982 to 23 February 2012. The offences
for which he has been convicted include offences of dishonesty, blackmail, and stalking.
The offences for which Her Honour Judge Rizkalla sentenced him on 20 June 2003 and
His Honour Judge Wood on 23 February 2012 arose from related circumstances, in that
the victims of the offences before this court were involved in the prosecution case of the
matter before Her Honour Judge Rizkalla. Further, John Silcott, Estelle Kingshott, her
son John Venier, Yee Sek Chan, and Yee Kar Chan were also victims in the matter
before His Honour Judge Wood.
9
On 1 December 2002, Mr Cooper pleaded guilty to six charges of obtain property by
deception and 25 charges of the Commonwealth offence of imposition.
He was
sentenced to seven and a half years' imprisonment and a non-parole period of five
years was ordered. The State offences, being the offences of obtaining property by
deception included making false claims in various names against insurers.
The
Commonwealth offences were similar offending in that they related to falsely obtaining
benefits from the Commonwealth Government, such as unemployment benefits,
sickness benefits and supporting parents benefit.
10
On 1 September 1988, he was convicted of offences including assault with a
weapon and driving in a manner dangerous, for which he was convicted, and monetary
penalties were imposed.
11
As to the matter before Her Honour Judge Rizkalla. On 20 June 2003, Mr Cooper
pleaded guilty to a number of dishonesty offences before Her Honour Judge Rizkalla,
namely; one charge of dishonestly attempting to obtain property, being cash in the sum
of $59,371 from NRMA; one charge of dishonestly assisting in the handling of stolen
goods, firearms; one charge of dishonestly attempting to obtain from another a financial
advantage; and a number of Commonwealth offences, namely five charges of
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defrauding the Commonwealth, one charge of dishonestly obtaining a gain, contrary to
s.135 Criminal Code Act (Cth) 2008 and four charges of operating an account with a
cash dealer in a false name contrary to s.24(ii) Financial Transaction Report Act (Cth)
1988. As to the offences of dishonestly attempting to obtain a financial advantage for
another, that was a claim a friend Mohina Lata made to an insurance company in
respect of an alleged burglary, in circumstances where Mr Cooper had removed the
property from her premises. Later, various items of that property were located at his
premises and a storage unit. One charge was the making of a false claim that he had
been burgled and that property to the value of $59,371 had been stolen.
12
At the time of the plea hearing before Her Honour Judge Rizkalla, he had served a
lengthy period of pre-sentence detention. Counsel for the prosecution in that case
conceded that in relation to the State charges that the appropriate sentence was time
already served. As to those State charges, Her Honour sentenced him to 20 months’
imprisonment, which is 600 days. As pre-sentence detention already served was 731
days, an order was made that that time be reckoned as having been served for the
entire sentence of 600 days.
13
The Commonwealth offences were in relation to fraudulent claims for unemployment
benefits, job search allowance, sickness benefits and disability support, as well as
partner’s allowance. Her Honour stated that as the Commonwealth offences were
committed over nine years, involving numerous conscious decisions to continue and
falsify documents, and the use of separate identities involved in committing the
offences, the offending was significant and serious, and that the amount involved was in
the top range for that type of offending.
14
Around 1996, Mr Cooper had been involved, or participated, in a Buddhist Temple in
Box Hill and became known to a Buddhist monk, Chamras Soonthornvitit, who was the
complainant in Charge 3 on this Indictment. In the late 1990s, Yee Sek Chan, (Charge
1 on this Indictment), his brother Yee Kar Chan, Yee Kar Chan's wife Huey Shyan Hoh,
(Charge 4 on this Indictment), Estelle Kingshott, (Charge 2 on this Indictment), her son
Marcus Venier, and John Sillcott, met him through the Temple in Box Hill.
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3
It was
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suggested at that time, on behalf of Mr Cooper, that the reason he committed the
offences for which Her Honour Judge Rizkalla was to sentence him, was to financially
assist the Temple. Her Honour agreed with the prosecution that, on the material, there
was no support for that proposition.
15
Her Honour said this:
“It is plain that you have no real rehabilitation by your continuing
offending, irrespective of the time it appears you did not commit
offences. Your prospects of rehabilitation then have to be seen in that
context and thus, in my view, could only be said to be poor.”
16
Consequently, Her Honour sentenced him in respect of the Commonwealth offences
to an effective four and half years' imprisonment, and ordered a non-parole period of
three years. An order was made in respect of 131 days pre-sentence detention as
having been already served.
17
It was some of the offences involved in the matter before Her Honour Judge Rizkalla
that were the catalyst for the offending for which Judge Wood sentenced him, and is
also relevant to the case before me today.
18
As to His Honour Judge Wood's proceeding. On 13 May 2009, a presentment was
filed in the Court in relation to five counts of stalking and four counts of blackmail. On 2
May 2011, His Honour ordered separate trials, namely two trials.
19
The first trial commenced on 27 April 2011. Mr Cooper pleaded not guilty. On 20
May 2011, the jury convicted him of two charges of blackmail and three charges of
stalking: Charge 1, stalking John Silcott; Charge 2, blackmailing John Sillcott; Charge
3, stalking Estelle Kingshott; Charge 4 blackmailing Estelle Kingshott; and Charge 5,
stalking Estelle Kingshott’s son, Marcus Venier.
20
In the second trial before His Honour Judge Wood, which commenced in November
2011, he was convicted of two charges of stalking, one charge in respect of Yee Sek
Chan, and one charge of stalking his brother, Yee Kar Chan.
21
Yee Sek Chan, Yee Kar Chan, Huey Hoh, Ms Kingshott, Mr Chamras and Mr Sillcott
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all gave evidence for the prosecution in the trial before Judge Wood in 2011. All made
statements. Ms Kingshott and Mr Sillcott were also prosecution witnesses in the trial
before Her Honour Judge Rizkalla in 2003.
22
As I stated, the sentence His Honour imposed was eight years and nine months'
imprisonment with a non-parole period of five and a half years. An order was made that
the 364 days pre-sentence detention be taken into account as having been already
served. In sentencing him, His Honour stated:
“The sentencing objectives which must be accomplished are those of just
punishment, specific and general deterrence, rehabilitation, denunciation
and the protection of the community. In the perspective of your
offending, particularly since the year 2000 until 2007, the objectives of
general deterrence, specific deterrence, denunciation and protection of
the community are paramount. Your prospects of rehabilitation, in the
light of your history and the circumstances of your offending, are
considered to be slender.”
23
His Honour stated that he was satisfied beyond reasonable doubt that the offending
against Mr Sillcott and Ms Kingshott was a product of revenge, as both made
statements implicating him in respect of some of the offences to which he pleaded guilty
before her Honour Judge Rizkalla. Mr Cooper’s son, Stephan, gave evidence that Mr
Cooper wanted to get back at those people because they testified against him in the
previous matter, and that he wanted to come up with a scam so he could get interest
back from them. Further, he wanted $100,000 per year of the time he spent in custody,
by way of interest.
Mr Cooper pleaded not guilty and maintained his innocence
throughout each of the trials.
24
During the plea hearing evidence was presented that Mr Cooper suffered from
physical disabilities. Evidence was also given from a psychiatrist that he was suffering
from a pain disorder with psychological factors. He was referred to a psychologist, who
was treating him for depression, and who diagnosed him as suffering from posttraumatic stress disorder.
25
The report tendered in this hearing from psychiatrist Dr Danny Sullivan was the
same report before the court in the earlier plea hearing before Judge Wood, upon a
conviction by a jury. Dr Sullivan reported that Mr Cooper did not have a history of
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psychotic illness, substance abuse, clinically significant mood disorder, personality
disorder or cognitive impairment. He reported he had symptoms consistent with posttraumatic stress disorder, which he did not consider to be of clinical significance at that
time. He noted there were no other features of mental disorder relevant to the alleged
offending. Consequently, it was not submitted to His Honour Judge Wood that the
decision of R v Verdins & Ors (2007) 16 VR 267 principles apply to the case.
26
In this plea hearing before this court, the situation is different in this sense. Mr
Cooper has pleaded guilty, and taken responsibility. Consequently, there is no issue he
committed the offences on the Indictment. In those circumstances, counsel appearing
on behalf of Mr Cooper is in a position to make submissions as to why Mr Cooper
committed the offences. Had he pleaded not guilty, that would be unlikely. In the
circumstances, an opinion was sought from forensic psychiatrist Ian MacKinnon in
relation to whether there were any psychological issues.
27
As Mr Cooper pleaded guilty to the charges before Her Honour Judge Rizkalla,
similar evidence in relation to why he committed the offences from forensic
psychologist, Mr Ian Joblin.
I should say material was produced from forensic
psychologist, Mr Ian Joblin. Her Honour stated that Mr Joblin was also involved in
making the assessment to the court in the earlier proceeding in 1982, Her Honour said
this:
“It would appear from the transcript of the Court of Appeal judgment in
that matter that, at that stage, he assessed you as being a person who
had a clinically diagnosable neurotic condition”.
28
His assessment of Mr Cooper in relation to the matters before Her Honour Judge
Rizkalla was that his involvement with the Buddhist Temple seems to have created
some issues for him, and that he was in a state of high anxiety and depression. Mr
Joblin's view was that Mr Cooper had feelings of isolation, alienation and that he
required some form of social approval.
29
As I stated, His Honour Judge Wood imposed the sentence on 23 February 2012. It
is significant that in the period three to five months after that sentence was imposed,
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while Mr Cooper was still in prison, he committed these offences.
30
The sentence imposed by the magistrate on 8 February 2013, was in relation to
harassing witnesses in a criminal proceeding. Those offences were committed in 2010,
before the trial, which was heard by His Honour Judge Wood, commenced.
The
offences committed for which the magistrate sentenced Mr Cooper are not prior
convictions, and as a matter of law I do not treat them as such. Those convictions are
relevant in relation to specific deterrence, prospect of rehabilitation, and the principle of
totality.
The offending was sending two police officers who were involved in the
investigation, and his son, pink dummies in relation to their involvement in matter before
Judge Wood.
He pleaded not guilty and the magistrate was satisfied beyond
reasonable doubt, and convicted him.
The maximum penalty for the offence of
harassing witnesses in a criminal proceeding, pursuant to s.52A Summary Offences Act
1966 is 12 months’ imprisonment.
31
Victim impact statements were tendered on behalf of each of the complainants in
this trial.
32
I take into account the contents of those victim impact statements which were
tendered and read aloud in court by the prosecutor, and Ms Estelle Kingshott who read
her victim impact statement aloud. Victim impact statements assist sentencing judges,
as each provides the judge with an account from each victim of the effect of the
offending on that person, as well as that person's family, not only at the time of the
offending, but at the present time. Each victim impact statement is made from the
personal perspective of the author of that statement as to the effect of the offending on
the victim, his or her family, and is therefore invaluable to a sentencing judge, who
would otherwise make assumptions or rely on statements made by each victim to
investigating police, in which the focus at that time is on setting out the offending for the
police in the course of the investigation to apprehend the offender.
33
Ms Kingshott, the complainant in Charge 2, as I said, read her statement in court. It
is clear that the offending has caused her considerable distress, which has continued in
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relation to each of the complainants, which is the reason he committed the offences to
continually harass these people. These offences are serious.
34
An objective assessment of the contents of those victim impact statements is that
that those people were going about their business as members of the community, and
in being responsible members of the community, assisted the police and the
prosecution in the original investigation. Since that time, his conduct has been antisocial and in my view, unacceptable in a civilised society.
He has been seeking
revenge, notwithstanding prison sentences and, in fact, as I said, these offences were
committed a short time, within weeks, of being sentenced by his Honour Judge Wood. I
sentence him in this case, solely on the offences on the Indictment, that is, four charges
of stalking. Clearly, the earlier proceedings to which I have referred are relevant in
providing the context of the state of mind of Mr Cooper, as well as the effect on the
victims of his continuing course of conduct directed to them.
35
Now, I am going to read part of the victim impact statements, as I consider it is
important.
I will not read them in their entirety.
The first one I will read is from
Yee Sek Chan, under the heading "Financial loss suffered as a result of the crime", he
said:
"As a result of the caveat lodged by Ray Cooper on my property, legal
action had to be taken to have it removed. A sum of $2,306 was
incurred in lawyer's fees".
36
Under "Emotional trauma suffered as a result of the crime":
"We've been a victim of Roy Cooper's unceasing harassment for more
than 10 then years. They are most unwelcome, disruptive, and worst of
all, extremely emotionally stressful. The method he employs is cynical
and effective. Just as we thought we are rid of each episode and start to
believe lives are back to normal, another harassment would come forth.
It keeps us in constant fear and on our toes that he is still around".
37
As I said, I am not reading all, I have taken into account all the contents of each of
these statements. Ms Estelle Kingshott, she is Charge 2 on the Indictment, she said
this:
"When I received in the mail a notice pursuant to s.89(3) Transfer of Land
Act 1958, where a caveat over my residential had been obtained by Mr
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Cooper, it was such a shock to me, because it was frivolous and
vexatious. I was once again terrified that Mr Cooper could continue to
stalk, harass, and terrorise me whilst he was in gaol, to seek out
revenge. This affected me financially, where I had no other avenue but
to employ a solicitor to have the caveat Mr Cooper placed over my
property removed. This has caused me considerable financial hardship.
This has affected me greatly, where I feel totally exhausted, and scared
and terrified of what next Mr Cooper is going to do to me, especially
upon his release from gaol".
38
Mr Chamras Soonthornvitit, under the heading "Emotional impact":
"After receiving the notice a caveat had been lodged on the Temple I feel
very worried and anxious. I found it difficult to eat and sleep properly
due to worrying about the Temple. I worry because the Temple is a
peaceful place of worship, where people come in times of difficulty.
People come to the Temple to pray, relax, find strength and happiness.
People find peace at the Temple".
39
Then he went further and he said:
"I still fear and feel very unsafe. The caveat being lodged on the Temple
still makes me worry a lot about the security and wellbeing of the people.
I feel threatened by the fact the caveat was lodged. It is very tiring".
40
And Hueh Shyan Hoh, who was the complainant in Charge 4, she had said that
there were restraining orders upon Mr Cooper, and she said:
"Even though we have restraining orders against Cooper, he still defied
the law. My husband received harassing phone calls from him and his
accomplices".
That is in the past that is not what I am sentencing for. She said:
"We were on constant high alert for our safety", and she is fearful of the interference in
their lives by Mr Cooper, I am paraphrasing now:
"Hardly a year after his sentence was passed, we learnt that Cooper,
locked away in prison, with the help of an accomplice, has placed a
caveat over our family home. All our nightmares of more than ten years
started to flood back. It is emotionally draining and mentally exhausting
to have to keep living with his wicked antics. This is another one of his
evil and menacing ploys to inflict pain, inconvenience, financial burden,
and suffering. When will this person learn his lesson?".
41
I must, as a sentencing judge, give weight to; general deterrence, that is, deterring
other people; specific deterrence, deterring Mr Cooper; denunciation; and protection of
the community. I must send a message to the community that this sort of behaviour will
not be countenanced in our society. As I stated earlier, people must be encouraged
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and confident to make statements to police and give evidence in courts of law without
the fear of being menaced as Mr Cooper did by stalking the complainants.
42
In this case, the acts of stalking, being the registering of the caveats, were carried
out in a carefully planned and contrived way, in that he decided to arrange for the
registration of caveats on the property of each of the victims by an innocent party, Fay
Ridis, to attend at the Titles Office and to take the necessary steps.
43
It has been submitted on behalf of Mr Cooper that there is no evidence that he
provided her, and therefore the Titles Office, with the documents purporting to
acknowledge the debt upon which the equitable interest was claimed as a basis for the
registration of each caveat.
I refer to paragraphs 34 and 35 of the prosecution
summary of facts on plea document. Clearly, this is a factual issue in dispute.
44
First, as the caveats were registered, clearly the Titles Office officials were satisfied
there was an equitable interest which was sufficient to register of the caveats on each
of the properties. Secondly, Fay Ridis said in her statement that Mr Cooper provided
her with a copy of his passport, the names and addresses to which the caveats were to
be issued, and a document that acknowledges the existence of a debt between him and
the people to whom he wanted the caveats issued. There was no evidence as to
precisely what was shown to the Titles Office officials, and what was required.
45
I find it implausible that a caveat was placed on a Certificate of Title on the basis it
was requested without any proof.
However, in relation to my role of fixing an
appropriate sentence, whether or not Mr Cooper gave Fay Ridis a document purporting
to evidence a debt, whether or not the Titles Office official carried his or her role
properly, and look at a document, or was negligent and did not bother to see a
document, does not bear much weight on my determination of the appropriate
sentence, as the relevant matter for me is that Mr Cooper knowingly arranged for the
registration of caveats on each property without legal entitlement, and successfully had
them registered. He is not charged with forging documents, or uttering documents that
are forged, he is charged with stalking, by registering the caveats as alleged.
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46
As to his personal background, he is 67 years of age, having been born on 18 June
1948. He was born and raised in the United Kingdom. He came to Australia in 1970
with his then-wife and three children. Unfortunately his marriage failed, and his wife
returned to the United Kingdom with the three children.
47
Mr Pearson referred to his personal background, which is also set out in the report
of Mr Mackinnon and the sentencing remarks of Their Honours Judges Rizkalla and
Wood. Mr Cooper was young when he came to Australia, 22 years of age, having
married young. Since his marriage failed, he has had difficulties with relationships with
people; an example being the relationship with the Buddhist Temple in Box Hill, which
Mr Pearson described as a "fraught relationship". And it is that relationship, or failure of
that relationship, that is the genesis for this proceeding and the earlier proceedings.
48
Unfortunately Mr Cooper has had relationships with women in 1978 to 1981, and
they failed. In 1990 his son Stephan was born. In 1988 his eldest child, a daughter,
returned to Australia to live with him. Unfortunately, one of her two children, having
recovered after leukaemia, died when he was struck by truck. This took place in 2005,
and caused Mr Cooper understandably considerable distress. That distress increased
as his daughter was living with a drug addict, who overdosed. Mr Cooper has not
spoken with her since his grandson died in 2005.
49
Mr Cooper has been employed generally in semi-skilled work. Unfortunately in 2006
he sustained an injury at work when he fell into a pit. Also in 2011, a short time after he
entered custody at Port Phillip Prison on remand, he was stabbed by another prisoner.
50
There is no dispute that Mr Cooper has significant medical problems, including
physical disabilities.
51
Throughout the sentencing remarks of Her Honour Judge Rizkalla and His Honour
Judge Wood, there was reference to medical conditions and the various drugs that
have been prescribed.
52
Ian Mackinnon, in his report, and his evidence, referred to current medical
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conditions, which include: urinary incontinence, arthritis in the knees, disc prolapse
L3-L4, high blood pressure, severe hearing loss, hypertension, bilateral knee
deterioration, cardiac history, and dental problems.
53
Dr Danny Sullivan reported that in 2011 he was suffering considerable pain, and had
been prescribed opiate painkillers OxyContin, Endone and Panadeine Forte. However,
as he was stood over by other prisoners for these drugs, he ceased all opiates apart
from Panadeine Forte, which increased significantly his pain level, therefore he had
sleep deprivation and concentration impairment.
54
I accept that any term of imprisonment is harder for him than other prisoners, as he
does not have adequate pain management, and any time in prison will be harder than
for a young man or a man who has does not suffer from physical disabilities or medical
conditions that I have referred to. I also accept that he suffers considerable discomfort,
feels intimidated and embarrassed.
55
He is the oldest man in the unit, the Salamander, which houses 75 prisoners.
Understandably he is anxious as to his wellbeing, as he is not only elderly, he has a
hearing impediment, is vulnerable because of his age, his fragility, and the discomfort
and embarrassment of using incontinence pads. Unfortunately whilst in that part of the
prison, he is humiliated constantly.
I accept that his level of anxiety is increased
because of these factors in a prison environment.
56
It has been submitted that R v Verdins applies, as it is submitted there is a causal
connection between the conditions set out in Mr Mackinnon’s report and the
commission of these offences. Mr Mackinnon reported that he appears to have been
suffering an entrenched persistent delusional disorder for many years, perhaps as long
as 20 years, and possibly much longer. He reported as follows:
“I am somewhat surprised that this serious psychological disorder has not
been diagnosed previously. However, like so many sufferers of
delusional disorders, Mr Cooper’s immediate presentation is that of a
rational, somewhat emotional man who can converse normally about his
current circumstances, everyday events, and so on. However, his
delusional perspective becomes apparent when questions of his
financial assets and legal proceedings are explored in length.
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It is my opinion that many sufferers of delusional disorders often have
some rational basis for their delusions, albeit subsequently amplified and
elaborated beyond any rational dimension. Mr Cooper appears to be
one such individual. In my opinion his delusional disorder and related
anxiety and depression is the source of his unfathomable offending.
There does not appear to be any criminal intent in Mr Cooper’s harassing
behaviour against the victims in the current matters. Rather, Mr Cooper
appears to have been genuinely deluded about the history of events,
financial matters, individuals involved, and so on. Accordingly, to treat
Mr Cooper harshly in the current context is, in my opinion, unwarranted
and unjust.”
57
His opinion is that any further imprisonment for a significant period is likely to cause
even more depression and anxiety.
58
The prosecution required Mr Mackinnon to give sworn evidence.
During his
evidence he said that although the driver for the offending is that Mr Cooper knew it
was illegal to do what he did, he felt justified as he believed the people owed a debt and
are part of a conspiracy.
He reported that the medical records revealed constant
requests for test that had negative outcomes. He said the psychological disorder that
he referred to is not treatable, and is likely to be with Mr Cooper for life. It can be
reduced by medication and supervision.
59
He reported it was significant that Mr Cooper maintains that his grievance with this
people is justified, but it has not taken any steps against these people in recent years.
60
In cross-examination, it was put to him by the prosecutor that it is incongruous that
Mr Cooper maintains a belief that his offending was justifiable, and yet it is submitted he
will not offend again. Mr Mackinnon reported that Mr Cooper now has come to the
realisation that it is not in his best interest to reoffend, because he does not want to
return to prison, as it has been extremely difficult, especially in latter years.
Mr
Mackinnon agreed that his diagnosis is his assessment from clinical interviews.
61
At p.6 of the report Mr Mackinnon said:
“In my opinion, at the time of the offences Mr Cooper was probably
suffering from symptoms that met the clinical criteria for the following
major diagnosable psychological disorders: mixed anxiety and
depressive mood disorder, persistent delusional disorder with
persecutory paranoid and litigious features.”
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62
He said these appear to be longstanding, and he said this:
“In my opinion, Mr Cooper’s delusional disorder appears to have made a
significant contribution to his offending, adversely affecting his ability to
reason and make sound judgment, making him more prone to impulsive
and irresponsible behaviour, lowering his ability to consider the
consequences of his action, contributing to a self-centred obsessive
perspective, and causing cognitive distortion and delusional beliefs that
he was being persecuted and robbed of what was rightfully his. In this
context Mr Cooper appears to have felt he was acting within his legal
right when he launched litigious action and other harassing processes.
In my opinion Mr Cooper was not aware that he was struggling with an
elaborate delusional disorder.”
63
In the circumstances it was put on Mr Cooper's behalf that moral culpability ought be
reduced.
64
Upon an evaluation of the prosecution case, I do not accept this opinion of
Mr Mackinnon that Mr Cooper’s state of mind at the time was that he believed he was
legally entitled to register the caveats. The evidence is clear there never were the
alleged debts, it is clear that he knew he had no legal entitlement to arrange for the
registration of the caveats, and that the reason for doing so was to continue to harass
and seek revenge against these people.
65
I do not accept that his moral culpability ought be lessened as Mr Pearson has
submitted. However, I do find that his behaviour has been obsessive to such an extent
that he has maintained a position that he was entitled morally to adversely affect these
people, not to enforce a legal right, but to seek retribution. I also accept that he suffers,
and did suffer, from anxiety and depression.
66
Consequently, I do sentence Mr Cooper on the basis that during the period he was
functioning in an extremely obsessive way, and consistent with Mr Joblin’s description
in his diagnosis as neurotic, overall not functioning in a rational way. I do not accept it
could be said to be delusional.
67
I accept in his favour that it was in only in one earlier legal proceeding, which was
before her Honour Judge Rizkalla that he pleaded guilty, and therefore there was
consideration during the plea hearing of why he carried out the offences. Forensic
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psychologist Mr Joblin assessed him as being a person with a clinically-diagnosable
neurotic condition. As I stated earlier, his opinion was that he was in a state of high
anxiety and depression, had feelings of isolation and alienation at the time he
committed the offences.
Upon an assessment of the material, that seems to be
applicable now. Consequently, I will lessen the amount of weight as a matter of law for
general deterrence, and specific deterrence, as set out in Verdins case, to a limited
degree.
68
I accept that factor five applies from Verdins:
5. The existence of the condition at the date of the sentencing or its
foreseeable recurrence may mean that a given sentence will weigh more
heavily on the offender than it would on a person in normal health;
69
Overall, I sentence on the basis that a term of imprisonment will be harsher on him
than a person in normal physical and psychological health.
70
Mr Pearson submitted that the usual venue for cases of stalking is the Magistrates’
Court, which would have been appropriate, and that I ought take that into account. I
disagree in this case, given the fact that he has not only been involved in the same type
of offending over a considerable period, but the same victims, which require a superior
court to deal with the matter, as the County Court had dealt with the earlier matters.
71
As to matters in mitigation, when I make orders for cumulation I take into account
the principle of totality, as he is currently undergoing a sentence which was imposed by
His Honour Judge Wood and the magistrate, and he is eligible for parole next year. I
also when I take into account he has been in prison for a considerable time as a matter
of law.
72
I take into account the plea of guilty to each charge, which saved the court the time
and cost of a trial, and importantly the witnesses, the complainants, did not have to give
evidence. It is significant he has taken responsibility for his offending. Although the
pleas were entered at a late stage, I accept Mr Pearson's submission that it is a
significant step for Mr Cooper.
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73
I take into account in his favour that since these offences were committed four years
ago he has not committed any further offence, in particular there is no allegation of any
further attempts to contact or harass any of the complainants.
This is of some
significance, as from the time he was sentenced by her Honour Judge Rizkalla, he has
continued to do so.
74
As to his chances of rehabilitation, they are guarded. I agree with the comments
made by Her Honour Judge Rizkalla and His Honour Judge Wood. However, the
situation is different now, in that he has been in prison longer. The physical conditions
from which he suffers have continued, in the prison environment he is an elderly man I
accept, given his medical condition physically, that makes it difficult for him. He himself
is older than when he was before Judge Rizkalla and Judge Wood, and as I stated,
importantly, he has now taken responsibility for the offending by entering the plea of
guilty to each charge. I accept that it is likely he has come, finally, to the realisation that
his offending has been counter-productive and there is no doubt that further offending
will attract a lengthy prison term.
75
I must give weight, as I stated, to matters of general and specific deterrence,
although lessened to a minor extent because of the application of R v Verdins,
protection of the community, denunciation, just punishment, and I stated, as I find
chances of rehabilitation I have given a small amount of weight.
76
I take into account the principles set out in the common law and in the Sentencing
Act. As to current sentencing practices, the majority of the sentencing practices which I
have found are of little assistance in this case, as factually it is unusual.
77
I sentence as follows:
78
As to each charge on the Indictment, I convict and sentence to two and a half years'
imprisonment, so Charge 1, two and a half years' imprisonment, Charge 2, two and a
half years' imprisonment, Charge 3, two and a half years' imprisonment, Charge 4, two
and a half years' imprisonment.
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79
I order that 10 months’ imprisonment on Charge 2, Charge 3, and on Charge 4, be
cumulative with the sentence on Charge 1.
80
The total sentence is five years’ imprisonment, which is 60 months.
81
I order that two years of that sentence be cumulative with the sentence he is
currently undergoing.
82
Pursuant to s.14 of the Sentencing Act I fix a new non-parole period. I order that he
serve a minimum term of two years nine months before he becomes eligible for parole.
83
I order that the pre-sentence detention of 364 days be reckoned as having been
already served.
84
Had he not pleaded guilty, the sentence in relation to this Indictment would have
been six and a half years’ imprisonment with an order that three years be cumulative
with the sentence he is undergoing.
HER HONOUR: Very well gentlemen - not gentlemen, I'm sorry. Ms McClure and
Mr Pearson. Is there any other matter we need to sort out?
MS MCCLURE: Yes, Your Honour. There is one further matter just in relation to
compensation orders sought. I have shown this to my friend, I understand they were
sent through to the court.
HER HONOUR: Well, the problem is if you do not bring it hardcopy - my associate is
on holidays.
MS MCCLURE: Yes, I have got the hardcopies here.
HER HONOUR: No, there is nothing online. Well I must say, now those orders are
signed, I was told by Mr Pearson that would be made, and it is perhaps an omission of
mine I did not take it into account. It seems as though it is unlikely he will be able to
pay the money, but I will sign those orders.
MS MCCLURE: Yes Your Honour, I will hand those up.
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HER HONOUR: You have seen these, Mr Pearson?
MR PEARSON: I have, Your Honour. I mean, that is the point I was going to make,
that he has no financial capacity now, or for the reasonably foreseeable future, Your
Honour, but - so look, the orders can be made, Your Honour, I am not sure what utility
there is in making them, but - - HER HONOUR: No, no, you candidly said that, but I will make the order that they have
sought.
MR PEARSON: If Your Honour pleases.
HER HONOUR: So I will make the orders. And that is in for Yee Sek Chan in the sum
of $2,306. As to Estelle Kingshott, $1,500. As to Chamras Soonthornvitit, $2,215.95.
And as to Heuy Shyan Hoh, $2,306. All right, and I have got Mr Ong's template, which I
will return to him. There we go, I will make those orders. And I will indicate that my
tipstaff will make photocopies, so everyone can have a photocopy of that before they
leave court.
MS MCCLURE: As Your Honour pleases.
HER HONOUR: Are there any other matters, Mr Pearson, Ms McClure?
MR PEARSON: I am just to some extent troubled, Your Honour. Could I ask Your
Honour because sometimes there is a difference between what a judicial officer is
intending in the sentence that is imposed and the way it is ultimately translated.
HER HONOUR: Yes.
MR PEARSON: So does Your Honour mind if I ask Your Honour what the intention of
Your Honour's sentence is in terms of how much it is intended to add?
HER HONOUR: Well, the total sentence is five years' imprisonment. I have ordered
that two years is cumulative.
MR PEARSON: Right.
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HER HONOUR: So two years goes on top of the sentence he is now undergoing.
MR PEARSON: Yes.
HER HONOUR: And he is undergoing three years nine months, with a nine-month on
top of that from the magistrate. So I am putting it very clumsily. So it is three years with
18 months, because that is the nine months of Judge Wood, plus nine months of the
magistrate. So my two years goes on top of that. I have fixed a new non-parole period,
and that is two years nine months as the new non-parole period, it gets very tricky. And
that starts today, but I must take into account the pre-sentence detention before Judge
Wood of 364 days.
MR PEARSON: So the effect of that is a further one year and nine months?
HER HONOUR: Well, his eligibility date for parole is two years and nine months from
today.
MR PEARSON: Less the 364 days of pre-sentence detention?
HER HONOUR: Correct, correct.
MR PEARSON: Yes, I understand the intent.
HER HONOUR: No, look it gets - sentencing gets terribly complicated, I know.
MR PEARSON: It does where a new non-parole period is being fixed, yes, it does.
HER HONOUR: Yes, I have to fix a new non-parole period because if it is clear that the
sentence would finish before that - so the two years is on top - so your client has three
years nine months from Judge Wood, plus nine months from the magistrate, plus two
years from this court, that is the head sentence. And his eligibility date for parole is two
years, nine months from today.
MR PEARSON: Yes, less the 364 days.
HER HONOUR: Yes, yes.
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MR PEARSON: What we will do, Your Honour, is we will wait and see how that is
translated, and my learned instructor will get a copy of the prisoner indent, or the
remand history or however it is translated by the correctional authorities. If it does not
accord with Your Honour's intent then we will bring it back before Your Honour.
HER HONOUR: Certainly, so as I said he is doing three years nine months, then there
is an extra nine months, so what does that make it? Three years, 18 months, that is
four and a half years. Then there is two years on top, six and a half years, that is on the
top, then he is eligible for parole in two years nine months from today, less the 364? I
think that is it.
MR PEARSON: Yes.
HER HONOUR: All right, thank you, we will cease the link now, I think. Thank you,
Mr Cooper. Thank you. Very well, just excuse me for a moment, I have a jury - thank
you, could you make copies of that compensation order, Mr Lawrence? Thank you.
All right, I see the Crown - Mr (Indistinct), and the defence instructor, is everything - are
the details - they are the details.
MR PEARSON: As I say, Your Honour, we will - the mathematics seem to add up, yes.
But it is - yes.
HER HONOUR: I spent a long time yesterday trying to get it - - MR PEARSON: Yes, I have no doubt Your Honour did.
HER HONOUR: No, but it is just tricky, Mr Pearson, is it not?
MR PEARSON: Yes, and I do not envy Your Honour's task. But we will see how it is
being translated. Sometimes there is problems in terms of how it is translating.
HER HONOUR: Well, because you have asked that - very, I think, wisely, it is on the
transcript what I intended, and hopefully central records will agree.
MR PEARSON: And if not, we will bring it back to Your Honour and we will work out a
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formula.
HER HONOUR: I will just stand the court down because I have a jury waiting.
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