STATE OF TASMANIA v JUSTIN LEIGH COOPER 1 JUNE 2026
COMMENTS ON RE-SENTENCE JAGO J
I have before me an application for breach of a suspended sentence, pursuant to s 27 of the Sentencing Act 1997. The respondent does not show cause in respect to the application, but submits, through his counsel, that it would be unjust for me to activate the period of suspended imprisonment.
On 23 November 2023, I sentenced the respondent for the crime of assault following a jury verdict to 12 months’ imprisonment, the execution of which was wholly suspended on condition that for a period of two years he commit no offence punishable by imprisonment. The facts of the assault are set out in my Comments on Passing Sentence. I do not stay to repeat them. It is sufficient to note that it was a serious assault, committed at a family gathering. The respondent was intoxicated. Following a family dispute, he punched the partner of his mother hard to the face, causing him to fall to the ground. Once the victim was on the ground, he punched him again. He was sentenced on the basis that, whilst a finding as to the precise number of punches that were inflicted could not be made, the victim was struck more than once after he had fallen to the ground.
The respondent was also sentenced on the basis that none of the punches inflicted, were delivered with any honestly held belief as to a need to defend himself. I found the violence was “violence delivered out of anger, aggression and intoxication”. The consequence for the victim was significant. The globe in his right eye was ruptured, causing all but a complete loss of vision. Surgery was necessary, but for the surgery, it was likely the eye would have been lost. The surgery had a number of complications, with the end result being the victim was left, in practical terms, with no vision in his right eye. The loss of vision in the right eye severely impacted the victim’s day to day living.
At the time I sentenced the respondent, he was 32 years of age. He had no relevant prior convictions for violence but had some convictions for driving offences. He had a strong work history. He suffered from a serious medical condition, Crohn’s Disease, which, when I sentenced him, I accepted would have made the prison environment particularly difficult for him. At the time of sentence, I determined it was appropriate to place emphasis upon his rehabilitation, given his lack of relevant prior convictions, his good employment prospects, and the period of time (nearly three years) which had passed since the assault and the imposition of sentence, during which time he had not re-offended. I assessed those factors indicated the respondent had the potential to live a “law abiding life”.
Unfortunately, since the imposition of my sentencing order, the respondent has demonstrated that my assessment of his potential to live a law-abiding life was somewhat optimistic. The respondent has re-offended in a number of ways since he received the benefit of the period of suspended imprisonment. I note the respondent was compliant with the terms of suspension for the first 12 months in which it was operative, but throughout the early part of 2025, the respondent committed a number of offences. In date order, they are:
- Assault with indecent intent, committed on 3 January 2025;
- Drive a motor vehicle with a prescribed illicit drug present in oral fluid, committed on 6 January 2025. Both cannabis and methyl amphetamine were present;
- Trespass and injure property, committed on 8 January 2025. These offences occurred in a family violence context;
- Possess cannabis, committed on 9 January 2025;
- Trespass and stealing, committed on 3 March 2025;
- Drive a motor vehicle whilst a prescribed illicit drug is present in oral fluid, committed on 9 April 2025. Again, this involved cannabis and methyl amphetamine;
- Emotional abuse and intimidation, committed on 15 April 2025;
- Attempt to breach interim family violence order (two counts), breach of interim family violence order (two counts) and breach of bail (three counts), all committed on 17 April 2025.
The assault with indecent intent occurred at a hotel. The respondent had been consuming alcohol. He made lewd comments towards a female staff member. She made it clear that she was not impressed. Despite this, he persisted, enfolded her in a bear hug, slapped her on the bottom, and said he intended to lick her ear.
The drive with illicit drug in oral fluid charges speak for themselves, as does the possession of cannabis charge. The trespass and injure property involved the respondent’s unauthorised attendance at a rental property occupied by his then partner. Whilst entering the property, the respondent damaged a fly screen. The trespass and stealing charge involved the respondent trespassing on a work site and stealing scaffolding and a ladder, to the value of $1,170.
The offending which constituted the emotional abuse and intimidation charge was very serious. It was described by the sentencing magistrate as follows:
“On the day in question, the defendant, Ms Oates and her three daughters travelled in Mr Cooper’s vehicle to a national park….During the afternoon the defendant consumed some cans of pre-mix alcohol, together with his prescription medication…Shortly after commencing the return journey, Mr Cooper began driving at such speeds that he was concerning the children and was asked to slow down. This must have irritated the defendant as he then embarked on the behaviour underpinning the charge of emotional abuse or intimidation. Five years prior to 15 April 2024, Ms Oates had been the driver of a vehicle involved in an accident in which her partner and the father of one of the little girls in Mr Cooper’s vehicle was killed. Knowing this, the defendant said to the six year old girl that Ms Oates had murdered her father. He then asked Ms Oates if she had been driving in a similar fashion when she killed her partner. There was a brief hiatus when Mr Cooper stopped the vehicle and Ms Oates, together with the children, got out. The defendant then cajoled the complainant into not speaking to the police and convinced her he would safely convey them home. Ms Oates and the children then re-entered the vehicle, no doubt influenced by the fact that by this point it was dark and cold and they were still in a remote location. Soon after resuming the journey, Mr Cooper blamed Ms Oates for his behaviour and began driving at speed again. At the time, Mr Cooper was subject to a family violence order concerning a third female partner…which included the condition he wear an electronic monitoring device. Data from this device reveals he was driving at speeds of up to 146 kph. …His behaviour so frightened the three children in the vehicle that they were screaming. It was around this juncture Mr Cooper again said to Ms Oates’s six-year-old daughter that her mother had murdered her father. The incident eventually concluded when the defendant pulled over for a second time… Ms Oates and the children were later found by police at the side of the road.”
The magistrate went on to describe the impact the respondent’s behaviour had upon Ms Oates and the young children. The magistrate described the conduct, giving rise to the emotional abuse and intimidation charge, as “dangerous, disgusting and despicable”.
The final offending which breaches the suspended sentence occurred on 17 April 2025. On this day, Mr Cooper was released on bail with a condition that he not contact Ms Oates or the children. He used a telephone on two occasions in an attempt to call Ms Oates. During a third phone call, he was able to make contact and spoke with both Ms Oates and one of the children. These behaviours amounted to both a breach of bail and a breach of the family violence order. There was no suggestion that the communications involved any abuse, threats or other untoward comments.
By way of sentencing in the Magistrates Court, the respondent received fines and a disqualification periods in respect to the matters under the Road Safety (Alcohol and Drugs) Act. The other offences were part of a sentencing order of a global term of imprisonment of six months, commencing 16 November 2025. That sentence of imprisonment expired on 15 May this year.
The respondent’s counsel submits that I should not activate the suspended sentence because it would be unjust to do so. In particular, he points to the difference in the nature of the offending and submits that it would be a disproportionate response to activate the 12-month period of suspended imprisonment, given the nature and gravity of the breaching offences. He also points to the passage of time between the commission of the crime of assault (5 December 2020) and now. He submits that the respondent had been compliant with the suspended sentence for the first 12 months of its operation, and the breaching offences all occurred within about a four-month period. There has not been any offending of any kind since April 2025, a period of over a year. The operation of the suspended sentence has now come to an end. Counsel further contends that because of the sentence in the Magistrates Court, the respondent has experienced a substantial period of incarceration for the first time, which has been a salient experience, and he has again re-committed to his reform.
Whilst it is true that the breaching offences all occurred within a four month period, it is noteworthy that between April 2025 and the expiration of the suspended sentence, the respondent spent a considerable period of time remanded in custody, so it was not a situation where he was in the community and demonstrating compliance with the terms of suspension for the latter part of its operation.
I accept there is a range of seriousness associated with the breaching offences; some of it is lower level, but some of it is most serious. The emotional abuse and intimidation charge is a bad example of its kind. The assault with indecent intent reflected indecorous behaviour and occurred when the respondent was intoxicated, a characteristic that was apparent in the assault for which I sentenced him.
On an application of this nature, the broad question is whether the suspended sentence is having, or has had, its desired effect in terms of rehabilitation. In my view, it could not be sensibly argued that in the respondent’s case it has. Whilst the respondent’s offending in terms of the breaching offences may have been limited to a four-month period, in that time he committed a multitude of offences involving a large range of criminal conduct. It would have to be said that he demonstrated a very poor attitude towards compliance with the law.
It is true that the breaching offences are of a different nature from that which led to the suspended sentence. The respondent was, however, specifically warned at the time I imposed the suspended sentence, that any offence punishable by imprisonment would put him in breach of the condition. I said to him:
“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.”
The respondent could not have been under any illusion that the suspended sentence was directed at ensuring his compliance with all aspects of the law, not just those parts of the law that suited him.
When one looks at the range of the breaching offences the only reasonable conclusion is that he has thumbed his nose at the opportunity extended to him. Whilst the disparity in nature between original offending and breaching offending is always a relevant consideration, in this instance, I do not consider it to be one that attracts significant weight given the large variety of breaching offences that the respondent has committed. His behaviour is certainly not reflective of a person who has developed an understanding that the law should be obeyed.
The time between the imposition of the suspended sentence and the commission of the breaching offences is also relevant, but the 12-month period of imprisonment was suspended for two years for good reason. It was to ensure the defendant’s commitment to rehabilitation was genuine and sustained, not transient or superficial. Being compliant with the terms of suspension for only 12 months, before breaching it in a myriad of ways, some of them very serious, is not reflective of a genuine commitment to rehabilitation. It could not be concluded that the suspended sentence had had its desired effect.
If a defendant wastes an opportunity offered by the Court by re-offending, then, as a general rule, a suspended sentence should be activated. I take into account that the respondent has just served a reasonably significant period of imprisonment as a consequence of the breaching offences. That, of course, is an important consideration, but it must be balanced against the fact that it must have been apparent to the respondent from as early as January 2025, when he committed the assault with indecent intent, that he was at risk of serving the 12 month period of suspended imprisonment. Yet he did not take stock and do whatever was necessary to curb his attitude and behaviours. In fact, he went on over the next few months to commit many more offences. The sentence imposed on 23 November 2023 was a sentence of imprisonment which reflected the gravity of the respondent’s criminal conduct when he committed the assault. The only way the respondent avoided serving it was if he ensured ongoing compliance with the terms of suspension – which was that he was to obey the law. He did not do that.
I am of the view that if I do not, at this point, activate the period of suspended imprisonment, it would result in the undermining of the integrity of the system of suspended sentences, and adversely impact the extent to which they may deter future offenders. In my view, there is nothing about the nature, circumstances or gravity of the breaching offences, or the timing associated with those offences, which justifies the conclusion that activation of the suspended sentence is unjust. Totality is a matter to which I should be minded however, given the fact the respondent has just served a period of six months’ imprisonment, and the activation of the period of suspended imprisonment will come on top of that.
I make the following orders. The application is granted. I order the 12-month period of imprisonment imposed on 23 November 2023 be activated and the respondent be required to serve it. To allow for totality, I order that that sentence of imprisonment commence on 15 February 2026. I order the respondent be eligible for parole upon serving one-half of the 12-month period of imprisonment.