STATE OF TASMANIA v JUSTIN LEIGH COOPER 23 NOVEMBER 2023
COMMENTS ON PASSING SENTENCE JAGO J
Mr Cooper, a jury found you guilty of one count of Criminal Code assault as an alternative to the crime of causing grievous bodily harm. The determination of the factual basis of sentence is a matter for me. I may only make findings adverse to you if satisfied beyond reasonable doubt they have been proved, and I may only make findings of fact in your favour if they are proved on the balance of probabilities.
On 5 December 2020, you were at the home of the complainant, Mr Kerry Turner. Mr Turner was your partner’s mother’s long-term friend or partner. There was some dispute on the trial as to the status of that relationship. It matters not for the purpose of sentencing. Your partner was Chloe Jago. Her mother was Debbie Clarke. Mr Turner had agreed to host a gender reveal party for you and your partner. There were approximately 20 people at the party. The party involved a barbecue lunch. A vehicle was used to do a burnout and emit smoke, which was coloured to reveal the gender of the baby. During the course of the gathering, I am satisfied you consumed a considerable quantity of alcohol.
It seems at some point during the gathering you had observed Ben Clarke, Debbie Clarke’s son, speak to her in a manner you disapproved of. You later said something to Mr Turner about why he did not respond to the manner in which Ben Clarke spoke to his mother. He told you that it was a matter for Debbie to sort out. It seems, for reasons that are not entirely clear, you were not impressed by that response. Shortly thereafter, you became involved in an altercation with Ben Clarke. This involved you wresting with Ben Clarke as he was departing from the gathering. You are not charged with anything arising from that incident but your behaviour in respect to Ben Clarke is indicative, in my view, of both your level of aggression and intoxication shortly before the incident with Mr Turner occurred.
After the incident, Ben Clarke left and you began to walk away from the property. Mr Turner finished cleaning up and went inside his residence. Ms Clarke also went inside the residence and commenced having a shower. You returned to the residence and banged on the door. At that point I am satisfied that you were calling Ms Clarke a number of unsavoury names. Again, this is relevant to your level of agitation and intoxication. Mr Turner went to the door and you demanded the keys to your motor vehicle, which was at Mr Turner’s property. I am satisfied Mr Turner told you he would not give you the keys because you were intoxicated.
You and Mr Turner walked from the front door of the residence along a porch area to the adjacent carport. At the carport was a friend of yours, Mr Lapthorne. It was his car that had been used for the burnout. I am satisfied that at this point you were continuing to yell obscenities towards Ms Clarke. You also made some further comments towards Mr Turner, suggesting he was weak because he did not defend Ms Clarke when, in your view, Ben Clarke had spoken inappropriately towards her. As you, Mr Turner and Mr Lapthorne were standing in the carport, Ms Clarke emerged from the residence. I am satisfied you and she exchanged heated words.
At one point during this exchange, and believing you were going to assault Ms Clarke, Mr Turner tried to push you away. He extended both arms and moved towards you, but because of a pre-existing injury, was unable to complete the action and did not, in fact, contact you. Mr Lapthorne saw this movement however and I am satisfied said to you words to the effect of “Justin, he just took a swing at you”. You responded by saying to Mr Turner, “Did you?”. Mr Turner further replied “What did you expect me to do, you were going to hit Debbie.” At that point, you jumped from the trailer hitch where I am satisfied you had been standing and hit Mr Turner to the face. He fell to the ground. You punched him again once he was on the ground. I cannot make a finding as to the precise number of punches you inflicted upon Mr Turner once he was on the ground, but I am satisfied you hit him more than once after he had fallen to the ground.
I am also satisfied that none of the punches you inflicted were delivered with any honestly held belief that you needed to defend yourself. Rather, I am satisfied that you delivered the blows because you were angry with Mr Turner. You very clearly could have walked away. Mr Turner did not contact you and then there was a conversation with him before you decided to punch him. That is not self-defence. It is violence delivered out of anger, aggression and intoxication. Your assault upon Mr Turner was completely unjustified and unwarranted. Consistent with the jury verdict, I am satisfied that when you delivered the punches you did not intend to cause grievous bodily harm, nor did you foresee the risk of that occurrence. I am satisfied you acted impetuously and without thought as to the likely outcome.
Your punches caused very serious consequences for Mr Turner. At least one of your punches caused significant damage to his right eye. The globe in that eye was ruptured, which caused all but complete vision loss and necessitated surgery. But for that surgery, it is likely the eye would have been lost. Following the initial surgery, further surgeries were necessary to repair a ruptured retina. Again, if the subsequent surgeries had not occurred, it is likely the eye would have been lost. Additional surgery was also required when the retina re-attachment failed. Surgery was also required to repair cataracts, which developed as a consequence of the trauma to the eye. Mr Turner has been left, in practical terms, with no vision in his right eye. He can make out light and dark but little more. The extent of the damage to the eye was such that there is no possibility of Mr Turner’s vision in that eye improving. It may be that further surgeries are required to correct further complications that may arise.
The loss of vision in Mr Turner’s right eye impacts his day to day living. He has had to give up hobbies he previously enjoyed, such as golfing, shooting and motorcycle riding. Even fishing is difficult for him because he now struggles to judge distance. He has also incurred medical expenses flowing from the numerous operations he has had to endure. Mr Turner found the Court process particularly stressful.
Whilst of course, I sentence on the basis that you did not intend or foresee the consequences caused to Mr Turner, the fact that the assault was objectively capable of causing such serious injury is itself a relevant factor in the sentencing exercise. You did not just inflict one punch upon Mr Turner, but once he was vulnerable and on the ground, you inflicted further blows. I also consider this assault to involve a breach of trust. Mr Turner had offered his property to you to hold the gender reveal party, and you repaid his good grace by this violent and unprovoked attack.
You are 32 years of age. You have no relevant prior convictions. You have convictions for driving offences, but no criminal history involving violence. It is also of note that this crime occurred nearly three years ago now and nothing is put before me to suggest there has been any further breaches of the law involving violence. That is relevant to the weight to be given to specific deterrence. You have a strong employment history. You are a qualified sheet metal worker. You have recently commenced employment with a shipping company doing maintenance on the Spirit of Tasmania. You have significant health issues. You suffer from Crohn’s Disease. That has necessitated three major operations resulting in part of your bowel being removed. That has ongoing daily consequences for you, which I accept would be difficult to damage in a prison environment.
It goes without saying, that punching another person to the face with the type of force that you must have used, is an inherently dangerous act. It is made more so because of your intoxication. You lacked the ability to judge with any precision the force or effect of your blows. Drunken violence is a matter of significant community concern. General deterrence and denunciation are prominent factors in the sentencing exercise.
Mr Cooper, you caused considerable harm to your victim and the consequences for him have been most unpleasant and life changing. In my view, you have demonstrated little insight into the gravity of your behaviour. I am satisfied the objective seriousness of your crime requires the imposition of a sentence of imprisonment. I accept, however, there are a number of factors which weigh against making you serve that period of imprisonment immediately. In particular, I note your good employment prospects, your lack of relevant prior convictions, and the period of time which has passed since the commission of this crime, during which you have not re-offended. All of that is indicative of your potential to live a productive, law abiding life. I intend, therefore, to wholly suspend the period of imprisonment I impose upon you.
The orders I make are as follows. You are convicted of the crime of assault. You are sentenced to a term of imprisonment of 12 months. The whole of that sentence will be suspended for a period of two years on condition that you are not to commit another offence punishable by imprisonment during that time. Mr Cooper, I need to explain to you that if you do commit any offence punishable by imprisonment, and I emphasise the word “any”, during the period, you can be brought back to this Court and an application made that you serve the period of imprisonment. The law is that a judge must activate that sentence unless it is unjust to do so.