STATE OF TASMANIA v COOPER MATHEW WHELAN 30 AUGUST 2022
COMMENTS ON PASSING SENTENCE ESTCOURT J
The defendant, Cooper Mathew Whelan, who was 21 years of age at the time of the offending, has pleaded guilty to three counts of assault.
The complainant in this matter is Frederick Craig Rushton who was 26 years of age at the time.
At the time, the defendant and the complainant were both inmates at Risdon Prison.
On 11 March 2021 the defendant and the complainant were within their unit and at about 5pm, the complainant and inmate Terrens engaged in a “consensual fight” in the unit bathroom. The defendant supervised this fight. Inmate White was present at the door standing guard.
A short time later, the defendant approached the complainant aggressively. The complainant and the defendant moved out of view of the CCTV footage, but the complainant’s head jerked back into view, in a way consistent with having been punched to the face or head. The complainant staggered towards the bathroom door. His trousers were down and he had one arm out of his t-shirt. He collided with the bathroom door and staggered back into the bathroom. The defendant then punched the complainant to the side and back of his head using his right fist and then punched the complainant to the right hand side of his jaw/face using his left hand. The complainant leant forward and placed his arms around his head to protect himself. The defendant punched the complainant in an “upper cut” movement to his face – that is count one on the indictment. The defendant then exited the bathroom and entered his cell where he used toilet paper to clean his hands.
At about 5:04pm the complainant left the bathroom with his t-shirt off. His face was visibly swollen and bloody. The defendant ran towards the complainant, who entered his cell and closed the door.
At about 5:08pm the defendant approached the complainant’s cell, opened the door and entered. CCTV captured a significant portion of this assault. The complainant walked towards the cell door and the defendant punched him to the face, which caused him to fall onto the bed. Whilst the complainant was on the bed, the defendant punched the complainant to the face three times and “round house” kicked him to the face, with sufficient force that he thought he had fractured his own foot, and that is count two.
At about 5:15pm the complainant opened his cell door and walked into the common area. Outside of the bathroom he meets the defendant, who remained aggressive and punched the complainant to the right side of his face with his left hand, and that is count three.
A number of Correctional Officers entered the unit at approximately 5:30pm and the complainant left the unit to obtain medical assistance. He walked to the prison hospital for medical attention and was then taken by ambulance to the Royal Hobart Hospital. He remained in hospital for 14 days. As a result of the assaults he suffered the following fractures:
- Left medial orbital wall and orbital floor blow out fractures;
- Comminuted nasal bone and nasal septum fracture; and
- A displaced crown fracture.
In addition, the complainant suffered severe swelling around his left eye, bruising to his neck, trauma to his chest and puncture wounds to the back of his head and hand. There were concerns his injuries could result in a threatened airway so he was intubated. He developed hospital acquired pneumonia. He was discharged on 25 March 2021.
On 12 March 2021 the defendant participated in an electronically recorded interview where he made the following admissions. He said he had been supervising a fight between the complainant and a third inmate when the complainant began “fighting dirty“. He did not like this so he “stepped in“.
The defendant is aged 22. He grew up in Tasmania and he experienced a difficult childhood, which led to him starting to self-harm at the age of seven, when his parents separated and his mother re-partnered. His stepfather was a harsh disciplinarian, and the defendant was exposed to this on a regular basis. He has had a longstanding issue with anger management from childhood, which worsened when his parents separated.
Since the age of 13, the defendant has been diagnosed with various mental health conditions, which have manifested themselves in self-harm and with anger outbursts. He engaged with the childhood and adolescent medical service from that age in approximately 2014 and has had various admissions and diagnoses since then.
In 2016 he presented as suffering from a psychotic elevation with irritability and grandiose and religious themes, which were complicated by concurrent cannabis and methyl amphetamine use. By 2017 he had been medicated with a long acting antipsychotic drug, and he continued to have frequent contact with mental health services. There have been suicide attempts and continued acts of self-harm since then.
In 2018 he was admitted to the psychiatric intensive care unit for two months, and whilst he was there, he obtained what is his overarching diagnosis as of now, and that is of bipolar affective disorder, with antisocial traits and a history of polysubstance misuse.
After receiving that diagnosis, there was a period of time between February and September of 2019 where he was making good progress. He wasn’t using drugs, and he was medicated, and he was working. Unfortunately, he returned to drug use and he has spent periods of time in custody since then. It has only been in recent times that his mental health has stabilised.
I note that the defendant made a full and frank admissions to police and has pleaded guilty
In relation to the injuries that have been suffered by the complainant, I note that he was involved in this consensual fight with another inmate and then was assaulted by a variety of other inmates after the defendant assaulted him. Thus the State are not able to specify which of the injuries was caused by the defendant.
The defendant has expressed remorse for his actions.
I note that he was subject to internal disciplinary proceedings in relation to the assaults, which primarily involved his movement from the medium security unit to the Franklin unit, and then into the Tamar unit. He has been consistently housed in the high security wings at Risdon Prison since the commission of these offences, including for the entirety of the duration of his present term of imprisonment, which has been since January of this year. During that time he has also experienced significant lockdowns as a result of the COVID-19 pandemic.
In particular, in recent weeks there was a 17 day lockdown where, as an inmate in maximum security, he was housed in a single cell, and not allowed out of his cell except for a ten minute phone call every three days. The defendant is still young. As I have already said, he has He made admissions and has pleaded guilty, to which he entitled to a genuine discount on an otherwise appropriate sentence of imprisonment. He has this history of mental health issues that are of course complicated by concurrent drug use.
The defendant has 15 convictions for common assault, one prior conviction for assaulting a police officer and one conviction for a Criminal Code assault for which I sentenced him in May 2020. That assault occurred on 8 October 2019, while the defendant was an inpatient at the Department of Psychiatric Medicine High Dependency Unit at the Royal Hobart Hospital. I sentenced him, as I said, to a period of 12 months’ imprisonment, backdated, with the balance of that term suspended for a period of two years. The current offending is a breach of the condition of the suspension of that sentence.
In the present case, taking all of the matters I have noted into account, the defendant is convicted of three counts of assault and is sentenced to a period of 12 months imprisonment to commence at the conclusion of the sentence he is presently serving. In view of the principle of totality and his continuing attempts to address his mental health and drug problems and his capacity for work, I specify the shortest possible non-parole period of half of the period of the sentence that I have just imposed, that is a non-parole period of six months.
As to the suspended sentence, again I make allowance for the principal of totality and for the period during which the defendant complied with the condition of the suspension in what remained difficult circumstances for him. In order to ensure that the defendant has some ongoing incentive to rehabilitate I impose a substituted sentence under s 47(4C)(b) of the Sentencing Act of four months’ imprisonment, wholly suspended on condition that he commit no offence punishable by imprisonment for a period of two years from today.