STATE OF TASMANIA v COOPER MATTHEW WHELAN ESTCOURT J
COMMENTS ON PASSING SENTENCE 15 MAY 2020
The defendant, Cooper Matthew Whelan has pleaded guilty, at an early time I note, to one count of assault, contrary to s 184 of the Criminal Code.
On 8 October 2019, he was an inpatient at the Department of Psychiatric Medicine High Dependency Unit at the Royal Hobart Hospital. The complainant worked there in that unit as a Security Officer.
At about 11:05am on that day, the complainant observed the defendant in the dining room. Another patient, Hadley Rositter, was in the kitchen area making a cup of coffee when the defendant stepped towards him and punched him. The complainant stepped towards the defendant, grabbed him from behind with both arms and led him away from Mr Rositter into the middle of the dining area. The defendant then yelled at the complainant and punched him with a closed fist. The punch grazed the side of the complainant’s head.
The complainant and another attendant managed to restrain the defendant on the floor, with the complainant holding the defendant’s arms from behind. However, the defendant jumped up off the ground, the complainant stood up as well and the defendant punched him a number of times to his face. The complainant lost consciousness. The complainant fell to the ground and landed on his stomach. When he regained consciousness, he was face down on the floor, and felt a stomp on the middle of his back with a foot.
As a result of the incident, the complainant suffered a fracture of the nasal bone and a fractured orbital floor of his right eye socket. In addition to the physical injuries from the assault there was and still is considerable mental trauma.
After the assault the complainant suffered fear, anxiety and insomnia for which he has been seeing a psychologist for the last 4 months. He started having considerable difficulty in sleeping because he kept thinking that just an inch higher and the defendant’s punches could have severely affected his eyes. He is still concerned for his safety which made him look for other jobs outside of Tasmania. The stress became so bad, in February of this year, that he had to leave Australia and go overseas to visit his family who live there.
The defendant was charged and has been remanded in custody since the date of offending.
The defendant was subject to a three terms of suspended imprisonment when this crime was committed. Applications have been made pursuant to s 27(4)(a) of the Sentencing Act 1997 to breach the those suspended sentences.
The defendant was 20 years old when the offending occurred. Prior to entering into custody his living arrangements were unstable. He was moving between his father’s shed and the homes of friends. At the time of his remand he was, as noted, an inpatient at the Royal Hobart Hospital psychiatric unit.
As a child, his relationship with his step-father was poor. He was a violent and controlling man, and he was physically abusive to both the defendant and the defendant’s mother.
To escape the difficulties of his home life, the defendant started spending more time with other older boys, who were drug users, and the defendant first used cannabis when he was at the young age of 11.
He attended Sorell Primary School followed by Sorell District High School where he remained enrolled until the end of grade 8. He took a year off school in grade 9 to work as a landscaper, before returning to Rose Bay High School. Following the completion of grade 10, he moved to Rosny College, but he was forced to leave part way through that year as a result of the onset of a condition known as NDMA Receptor Encephalitis, which resulted in the defendant being in an induced coma for a period of six days. That condition causes swelling of the brain and the defendant describes, in effect, having to learn to walk and talk all over again. He still experiences relapses of that condition and requires medication to manage it.
The defendant first used amphetamines at the age of 17, following the death of two close friends in a car accident. He has been an abuser of that substance ever since.
As an adult he has had periods of employment. He worked on a lettuce farm in Queensland, and has worked as a commercial painter. In the future he would like to obtain work perhaps as a labourer.
As noted already, when this offending occurred, the defendant was an inpatient at the hospital and was preparing for release. He had been admitted for drug induced psychosis. He had also been diagnosed with bipolar disorder.
In the community the defendant is treated by Dr Michael Jordan and case managed by the Community Forensic Mental Health Service. They will continue to support the defendant upon his release from custody, including helping him to secure accommodation.
Whilst in prison he is on mood stabilising medication. He is currently on a Treatment Order and it is anticipated that that will remain the case into the future.
He has made no application for bail in respect of this offence, and it is submitted that that is a sign of his remorse. I accept that. He was entitled to have made an application for bail. He is also entitled to credit for his plea of guilty. He appreciates, I am told and I accept, that people should not have to be exposed to violence in their work place. That is the most aggravating feature of this offending. He instructs that he is remorseful and is sorry for what occurred.
It is accepted that whilst the defendant suffers from major mental illness, the violence involved in the commission of this crime was not driven by psychosis. He acknowledges his complex trauma background, including exposure to family violence, and he has instructed his counsel that he will continue to engage with treatment following his release and will seek out specialised trauma counselling.
As noted, he has been in custody since 8 October 2019.
I accept the submission that it would be unjust to activate the suspended sentences, as, with the exception of the assault police charge on complaint 8102/2019, those sentences were imposed largely for matters of a different nature. Indeed the assault, which is the defendant’s only prior conviction for an offence of violence, comprised driving of a motor vehicle at an occupied police vehicle.
The defendant is convicted and sentenced to a period of 12 months’ imprisonment, backdated to 8 October 2019, and in view of the defendant’s age and prospects, the balance of that term from today is suspended for a period of 2 years on condition that the defendant commit no offence punishable by imprisonment during that time.