STATE OF TASMANIA v COOPER MATTHEW WHELAN 10 APRIL 2025
COMMENTS ON PASSING SENTENCE MARSHALL AJ
These comments on passing sentence deal with the appropriate sentence to be imposed on Mr Whelan as his result of guilty plea to the charge of assault under s 185 of the Criminal Code. They also deal with an application by the State to activate a suspended sentence previously imposed on Mr Whelan.
The particulars of the offence are that on 3 July 2024 at Bellerive, Mr Whelan assaulted the complainant by punching him in the face. A few hours prior to the assault Mr Whelan had been released from Risdon Prison after a term of imprisonment of two years and seven months. At the time of the offending Mr Whelan was 25 years old. Mr Whelan and the complainant were known to each other being residents of the same apartment complex in Bellerive.
On the night in question Mr Whelan became involved in an argument with some neighbours which became physical. The complainant ran towards the altercation in an attempt to separate Mr Whelan and one of his neighbours.
Mr Whelan and the complainant then became engaged in a physical altercation which saw Mr Whelan punch the complainant twice in the face when he was standing and once afterwards after the complaint fell to the ground. Mr Whelan’s counsel described his actions as “excessive self defence”.
Mr Whelan had a difficult childhood, his father was abusive to him, his parents separated when he was seven years old. His mother entered a new relationship and his step-father was also abusive to Mr Whelan. Mr Whelan started to get into trouble with the police when he was about 14 years old. He was hanging around with the wrong crowd. His lack of anger management and his drug use was each responsible for the majority of his prior offending. Between 2014 and 2018 when in his mid to late teens he relocated to Queensland where he was gainfully employed and was not charged with any offence.
When Mr Whelan was 19 years old in 2018 he returned to Tasmania when he relationship ended with his then partner. Unfortunately Mr Whelan fell back into old habits including mixing with the wrong crowd.
In September 2018 Mr Whelan was convicted of the offence of evading police in aggravated circumstances. He was sentenced to three months’ imprisonment wholly suspended for two years. In May 2020 Mr Whelan was convicted of an assault which happened on 8 October 2019. He was sentenced to 12 months’ imprisonment for that offence, wholly suspended for two years. At the time of that offending Mr Whelan was in-patient at the Department of Psychiatric Medicine High Dependency Unit at the Royal Hobart Hospital. There he punched a security officer who attempted to stop Mr Whelan from attacking another patient.
In comments on passing sentence the sentencing judge, Estcourt J, noted Mr Whelan was subject to three terms of suspended imprisonment when the crime was committed. The State applied to activate the suspended sentences. His Honour, largely due to Mr Whelan’s poor mental health, found it unjust to activate the suspended sentences, as well as due to the fact that the previous offending which had lead to the suspended sentences was of a different nature to the assault conviction at the time in October 2019. According to Estcourt J, Mr Whelan’s only conviction for an offence involving violence was the one his Honour was dealing with. Estcourt J imposed a twelve month period of imprisonment and backdated to the date of the offending which was also when Mr Whelan was taken into custody. The balance of that term was suspended for a period of two years from 15 May 2020.
On 20 August 2022, Estcourt J once again dealt with Mr Whelan after he pleaded guilty to three counts of assault on a fellow inmate at Risdon Prison. By this time Mr Whelan had amassed 15 convictions for common assault, one for assaulting a police officer, and another which was the subject of Estcourt J’s earlier comments on passing sentence concerning Mr Whelan.
Justice Estcourt sentenced Mr Whelan to twelve months’ imprisonment for the assaults on another inmate. On the application to activate the suspended part of Estcourt J’s earlier sentence, his Honour imposed the substitute sentence of four months’ imprisonment wholly suspended for two years.
In addition to punishing Mr Whelan for the current offending, the State seeks to activate the four months’ suspended sentence.
At the time of the current offending, Mr Whelan had only, in recent hours, been released from custody. However, it seems that he had not learnt his lesson about refraining from physical violence, notwithstanding the most recent term of imprisonment. The current offending is not dissimilar from the offending which lead to the imposition of suspended sentence in 2020. I am unable to form the view that it would be unjust to activate the suspended sentence imposed by Estcourt J on 30 August 2022.
In relation to the current offending, given Mr Whelan’s poor history regarding offences involving physical violence, it is appropriate to sentence him to a term of imprisonment in respect of this matter.
General deterrence, specific deterrence, vindication of the victim and denunciation of offending conduct demands a further term of imprisonment cumulative upon the activated suspended sentence of four months. The sentence to be imposed would have been higher but for Mr Whelan’s guilty plea and his history of mental illness tracing back to his difficult and abusive childhood.
In addition to activating the suspended sentence, the Court imposes a further sentence of twelve months’ imprisonment. A non-parole period of half of each of the above sentences is ordered. The effect of the order is that Mr Whelan is sentenced to an additional 16 months’ imprisonment, with a non-parole period of eight months. He is also formally convicted of the offence under s 184 of the Criminal Code committed at Bellerive on 3 July 2024.
The period of imprisonment imposed in this sentence in effect will be 16 months with eight months non-parole is taken to have commenced on 3 March 2025.