Cole v The Queen

Case [2019] ACTCA 3

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Cole v The Queen

Citation:

[2019] ACTCA 3

Hearing Date:

15 February 2019

DecisionDate:

21 February 2019

Before:

Murrell CJ and Elkaim, Charlesworth JJ

Decision:

See [46]

Catchwords:

APPEAL - GENERAL PRINCIPLES – In General and Right of Appeal – Appeal against sentence – nonparole period – manifest excess – principles of totality

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT) s 65, Pt 5.2

Cases Cited:

Bugmy v The Queen [1990] HCA 18; 169 CLR 525

Dalton v The Queen [2015] ACTCA 48
Director of Public Prosecutions (Vic) v Josefski [2005] VSCA 265; 226 ALR 174
Lowe v The Queen [1984] HCA 46; 154 CLR 606
Millard v The Queen [2016] ACTCA 14
Parker v The Queen [2018] ACTCA 58
R v Flowers [2014] ACTCA 13
R v Toumo’ua [2017] ACTCA 9
Taylor v The Queen [2014] ACTCA 9
Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465

Parties:

Scott Cole (Appellant)

The Queen (Respondent)

Representation: 

Counsel

Mr S McLaughlin (Appellant)

Ms M Jones (Respondent)

Solicitors

Legal Aid ACT (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

ACTCA 29 of 2018

Decision under appeal: 

Court:  ACT Supreme Court

Before:  Burns J

Date of Decision:         15 December 2017

Case Title:  R v Cole

Citation: [2017] ACTSC 404

THE COURT:

The Appeal

  1. On 29 February 2016 the appellant murdered Mr Jason Hollingshed (the deceased). On 2 March 2017 he pleaded guilty to this offence. On 15 December 2017 the appellant was sentenced by Burns J. The sentence was as follows:

    (a)A term of 21 years’ imprisonment commencing on 29 February 2016 and ending on 28 February 2037.

    (b)A nonparole period of 17 years and nine months’, commencing on 29 February 2016 and expiring on 28 November 2033.

  2. The appellant has no complaint with the primary term of imprisonment. His appeal is concerned only with the nonparole period. He says there are two flaws:

    (a)The sentencing judge did not give reasons for selecting the nonparole period; and

    (b)The nonparole period is manifestly excessive.

  3. The nonparole period is 84.5% of the head sentence.

  4. At the commencement of the hearing counsel for the appellant said that he was not pressing Ground 1 of the appeal.

  5. When questioned about this he said that, in effect, he was merging the two grounds of appeal.

  6. Accordingly, it was an integral part of Ground 2 that there was no adequate explanation for the asserted excessive nonparole period.

Background

  1. Although there is no dispute about the head sentence, and the primary judge acted on an agreed Statement of Facts, it is nevertheless appropriate to summarise the background to the murder.

  2. The appellant and the deceased lived in separate units in the same block at Stuart Flats in Griffith in the Australian Capital Territory. A friendship they had once enjoyed ceased in 2015 apparently after the deceased made an unseemly comment to the appellant about his partner.

  3. Consistent with the…

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AGLC
Cole v The Queen [2019] ACTCA 3
Case
[2019] ACTCA 3
Decision Date

CaseChat Overview and Summary

The appeal concerned a sentence imposed on the respondent, Cole, by the District Court of New South Wales. Cole had pleaded guilty to a number of offences, including aggravated break and enter, and was sentenced to a term of imprisonment with a non-parole period. The Crown appealed against this sentence, arguing that it was manifestly excessive, particularly in light of the principles of totality.

The central legal issue before the Court of Criminal Appeal of New South Wales was whether the sentence imposed by the District Court was so disproportionate to the gravity of the offences as to be unjust or unreasonable. This required the Court to consider the individual sentences for each offence and, crucially, to apply the principle of totality to ensure that the aggregate sentence reflected an appropriate overall punishment, taking into account the cumulative effect of multiple convictions.

The Court of Appeal applied established principles regarding appeals against sentence. It acknowledged that an appellate court should only interfere with a sentence if it is demonstrably wrong, meaning it is not merely a matter of difference of opinion but is so severe that it is outside the bounds of a proper exercise of discretion. The Court considered the nature and seriousness of the offences, the respondent's criminal history, and the impact of the offending. In applying the principle of totality, the Court examined whether the non-parole period adequately reflected the combined criminality of the offences. The Court found that the original sentence, when viewed in its totality, was not manifestly excessive and that the sentencing judge had properly exercised their discretion.

The appeal was dismissed.

Orders

Orders of the court

See [46]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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