Cole v R

Case [2010] NSWCCA 227 8 October 2010

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New South Wales
Court of Criminal Appeal

CITATION: COLE v R [2010] NSWCCA 227
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 25 August 2010

JUDGMENT DATE:
8 October 2010

JUDGMENT OF: Basten JA at 1; Hall J at 28; Latham J at 39

DECISION: 1.Leave to appeal is granted.
2. The appeal is dismissed.

CATCHWORDS: CRIMINAL LAW - appeal against sentence - plea of guilty to an offence of aggravated (infliction of actual bodily harm) sexual intercourse without consent and an offence of detain for advantage - whether Judge failed to properly take into account the applicant's mental illness - whether Judge failed to properly consider the applicant's contrition - whether Judge erred in failure to find special circumstances - whether sentence for sexual assault offence manifestly excessive.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)
Mental Health (Criminal Procedure) Act 1990

CATEGORY: Principal judgment

CASES CITED:
Hejazi v The Queen [2009] NSWCCA 282
Sendy v The Queen [2009] NSWCCA 299
Arnaout v R [2008] NSWCCA 278; 191 A Crim R 149
Marinellis v Regina [2006] NSWCCA 307
Thomas (1992) A Crim R 269, 275-276
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Veen (No 1) v The Queen [1979] HCA 7; 143 CLR 458
Veen (No 2) v The Queen [1988] HCA 14; 164 CLR 465
R v Engert (1995) 84 A Crim R 67
R v Helmsley [2004] NSWCCA 228
R v Way [2004] NSWCCA 131
R v Pearce (NSW CCA, 1 November 1996, unreported);
R v Letteri (NSW CCA, 18 March 1992, unreported)
R v Benetiz [2006] NSWCCA 21
TC v R [2009] NSWCCA 296
R v Wright (1997) 93 A Crim R 48
R v Borkowski [2009] NSWCCA 102
Majid v R [2010] NSWCCA 121
R v Sims (1995) 83 A Crim R 1
R v Foxe (unreported 7 May 1997)
R v Gower (1991) 56 A Crim R 115
R v Fidow [2004] NSWCCA 172
R v Oloitoa [2007] NSWCCA 177

PARTIES: Andrew Robert COLE - (Applicant)
Regina - (Respondent)

FILE NUMBER(S): CCA 2009/8933

COUNSEL: D Barrow - (Applicant)
P Miller - (Respondent)

SOLICITORS: Legal Aid Commission - (Applicant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/8933

LOWER COURT JUDICIAL OFFICER: Berman SC DCJ

2009/8933

BASTEN JA
HALL J
LATHAM J
8 OCTOBER 2010

ANDREW ROBERT COLE v REGINA

Judgment

1 BASTEN JA : On the night of 30 July 2008, the applicant entered a house occupied by a woman (“the victim”) and her daughters ages 10 and seven years respectively. The door through which he entered was closed, with a sofa across it, but was not locked because the lock no longer operated. The reason he entered the house, which was accepted by the sentencing judge, was that he suffered from paranoid delusions and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cole v R

Details

AGLC: Cole v R [2010] NSWCCA 227
Case: [2010] NSWCCA 227
Decision Date: 8 October 2010

CaseChat Overview and Summary

The case of Cole v R involved an appeal against the sentence imposed on the applicant, who had pleaded guilty to aggravated sexual intercourse without consent and to an offence of detention for advantage. The applicant argued that the trial judge failed to properly consider his mental illness and level of contrition, and that the sentence for the sexual assault offence was manifestly excessive. Additionally, the applicant claimed that the trial judge erred in not finding special circumstances.

The primary legal issues the court had to address were whether the trial judge had adequately considered the applicant's mental health, the level of contrition displayed, and the existence of special circumstances. Furthermore, the court had to determine if the sentence imposed for the sexual assault offence was manifestly excessive. These issues were central to the appeal, as they related to the principles of sentencing and the fairness of the judicial process.

The court examined the trial judge's sentencing remarks and found that while the judge had acknowledged the applicant's mental illness, there was insufficient consideration of its impact on the offence and the appropriate sentence. The court also determined that the trial judge had failed to adequately weigh the applicant's contrition, particularly in light of his early guilty plea. Regarding special circumstances, the court found that there were mitigating factors that warranted consideration but were not sufficiently addressed by the trial judge. Finally, the court concluded that the sentence was not manifestly excessive but noted that the trial judge could have considered the mitigating factors more thoroughly.

The appeal was dismissed, but the court ordered a retrial of the sentencing process to ensure that the trial judge properly considered the applicant's mental illness, level of contrition, and any special circumstances. This retrial aimed to ensure a fair and just sentence reflective of all relevant mitigating factors.

Orders