STATE OF TASMANIA v KERRY LEE COOPER 2 SEPTEMBER 2019
COMMENTS ON PASSING SENTENCE PEARCE J
Kerry Cooper, you were found guilty by a jury of wounding. Subject to the verdict it is my responsibility to find facts for sentence. Facts adverse to you must be proved beyond reasonable doubt and facts in your favour must be proved on the balance of probabilities.
In September 2016 you lived with your parents at Mayfield. For a couple of months there had been a problem with the behaviour of the new occupants and their visitors at one of the nearby units at 25 Mayfield Street. You were concerned about the effect this behaviour was having on your parents and other older members of the neighbourhood. You had been there at least twice in the previous month or two to complain about the noise. At about 3.30 pm on Wednesday 7 September 2016 you were walking home from the bus stop to your house when you again heard loud music from the rear yard of number 25, where the occupant, J’Dee Coker, and his friend, Ethan Cunningham-Olding were working on cars. You were with a female friend. You went onto the property and began to protest. The noise you were making was heard by Mr Cunningham-Olding and Mr Coker. Mr Cunningham-Olding came around the side of the house onto the driveway and the front yard where you were standing. He was holding a hammer. Mr Coker took a socket wrench. I am satisfied that they armed themselves with these items in response to the noise you were making, and approached you asking you to leave. You did not leave. Instead, you advanced towards the two men and produced the carabiner shaped object you were carrying in your pocket, which had a foldable blade like a pocket knife affixed to one side of it. The blade is about 80 mm long. I am satisfied that the account given by Mr Coker and his partner Linda Barker-Jones to the police in statutory declarations made on that day about what then happened is substantially true. I find that you slapped Mr Cunningham-Olding, then punched Mr Coker, and when Mr Cunningham-Olding came between you and Mr Coker you stabbed Mr Cunningham-Olding’s upper left arm with the knife. It caused a wound later found on medical examination to be about one centimetre across and about three to four centimetres deep.
At the trial you denied stabbing Mr Cunningham-Olding, despite the forensic and DNA evidence which strongly suggested to the contrary. To me, the denial was an obvious untruth. As it was directed, the jury must also have been satisfied beyond reasonable doubt that your act of stabbing Mr Cunningham-Olding was not done in lawful self-defence. I am satisfied beyond reasonable doubt that, at the time you struck the blow, you did not believe that force was necessary to defend yourself. When you were asked to leave you did not do so. You could have just walked off. Instead, you advanced in an aggressive way with the knife. You advanced not to defend yourself, but to take on the other men, to demonstrate your displeasure and assert yourself. As you told the jury, you were not one to walk away. They had waved tools at you and threatened to use them as weapons, but to ask you to leave. Mr Cunningham-Olding’s evidence was unsatisfactory in some respects. He was a reluctant witness seeking to downplay your conduct. But I accept his account that at the critical time he did not intend to use the hammer against you, that he had either dropped it or lowered it, and I find that this was apparent to you as you advanced.
Mr Cunningham-Olding was taken to hospital by ambulance. On the following day his wound was cleaned and stitched. He returned a few days later complaining of ongoing pain. He was treated for a possible infection but expected to make a full recovery. There is no evidence to suggest he did not.
You were 35 at the time and you are now 38. You have a reasonable industrial record but have applied for a disability pension arising from a head injury you suffered some time ago. You have some convictions for violence. In 2004, you were given a wholly suspended six month prison sentence for assault and aggravated assault committed in 1999 when you were 18. There are a number of prior convictions for anti-social offending and alcohol related driving offences. In 2012 you were given community service for offences including common assault and 14 counts of breaching a family violence order. Relevantly, on 11 February 2015 you were sentenced to imprisonment for three months, wholly suspended for two years, and community service, for failing to comply with the conditions of a driver licence, drink driving and driving while an illicit drug is present in the blood. The crime of which you have now been found guilty, having been committed in September 2016, is a breach of that suspended sentence. Application is made to activate it which I must do unless it is unjust. In May 2015 you were fined for destroying property, possessing cannabis and possessing a dangerous article in public. During late 2017 you were sentenced on three separate occasions for offences including breaching a family violence order, common assault and drink driving, to short terms of imprisonment, some of which you were required to serve, and probation. Those are not prior convictions for sentencing purposes but are relevant to rehabilitation and totality.
I am satisfied that when you struck Mr Cunningham-Olding with the knife you intended to wound him. You did it on the spur of the moment and when you were angry, but you created the situation of conflict by going onto the property to complain about the noise and then refused to leave and became aggressive. Even if your anger about noise was justified, it did not excuse resort to a weapon. The blow you struck did not badly injure Mr Cunningham-Olding, but it could have been much worse had it struck a major blood vessel. You did not plead guilty and have showed no sign of remorse.
As to the application for breach of the suspended sentence I am persuaded that activation of it would be unjust. That is so for a number of reasons which act in combination. The sentence was on 11 February 2015 and imposed for driving offences committed on 3 May 2014 and 1 May 2014, one concerning alcohol and the other concerning drugs. A community service order was made requiring performance of 70 hours work. At the same time the magistrate imposed a separate suspended one month sentence for breach of an interim family violence order, but suspended for one year and accompanied by a probation order for 18 months. The community service and probation were all satisfactorily completed and the family violence related suspended sentence was completed without breach. The crime for which you are now to be sentenced breached the longer suspended sentence, but only after about 19 months, and for an offence of a different character. In November 2017 you were sentenced for a common assault committed on 25 November 2016, also within the period of suspension, but no application for breach was then made. Were the sentence to be activated now, you would be imprisoned for offences committed more than five years ago and long after the period of suspension expired in February 2017. I think that the just way of dealing with the matter is to take into account the fact that the crime was committed while subject to a suspended sentence as an aggravating factor and modify the sentence accordingly.
But for one matter, the only appropriate sentence is a term of imprisonment. However, given the nature and circumstances of your crime I have decided that, in all the circumstances, it is appropriate to make a home detention order. You have been assessed as suitable for such an order. I would otherwise have sent you to prison. Your crime is a violent offence but it is not my opinion that you pose a significant ongoing risk of violence during the operational period of the order. Although a home detention order is less onerous and punitive than prison, it is still a significant restriction on your liberty and freedom of movement. You will be required to comply with onerous conditions. A home detention order may be for a maximum period of 18 months. I think that, in your case, 12 months is the appropriate period. It is relevant to the length of the period that, if I had ordered prison, I would have ordered parole, and no question of parole arises here.
Kerry Cooper, you are convicted on the indictment. I make a home detention order. The operative period of the order is 12 months from today. I specify the premises at which you are to reside during the operational period of the order as [address]. I order that immediately upon your leaving court you report to the office of Community Corrections at 111 Cameron Street Launceston, for induction into this order, and an explanation as to its full terms. The order will be subject to all of the core conditions set out in the Sentencing Act 1997, s 42AD(1). They will be set out in the order that you will be given but include that you will submit to electronic monitoring and must, during the operational period of the order, if directed to do so by a police officer, probation officer or prescribed officer, submit to a breath test, urine test, or other test, for the presence of an illicit drug. I specify that you must be at the home detention premises at all times unless for a relevant reason. In short, that means that you must be at those premises unless there is a need for urgent medical treatment, there is a serious risk of death or injury, or you already have the approval of a probation officer to be absent. It will be for the probation officer to determine what to approve so as to allow for employment, rehabilitation courses or for any other purpose. The conditions will include that you not commit another offence punishable by imprisonment and that you comply with all directions given to you by your probation officer. I impose special conditions that:
- you must submit to the supervision of a probation officer as required by that officer;
- you must not, during the operational period of the order, consume alcohol;
- you must not take any illicit or prohibited substances. Illicit and prohibited substances include any controlled drug as defined by the Misuse of Drugs Act 2001, and any medication containing an opiate, benzodiazepine, bupropion, hydrochloride or pseudoephedrine, unless you provide written evidence from your medical professional that you have been prescribed the relevant medication;
- you must submit to a medical, psychological, psychiatric or physical or mental health assessment or treatment as directed by a probation officer;
- during the operational of the order you take medication as required by a psychiatrist or a medical practitioner;
- you must maintain an active mobile phone service, provide the contact details to Community Corrections and be contactable at all times.
This order comes into effect immediately. You must understand that if you do not comply with the conditions, imprisonment is likely. If you breach the order by committing another offence, the order must be cancelled unless there are exceptional circumstances, and in that case imprisonment would be highly likely.