Cook v The Queen

[2011] VSCA 187

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0834

LUKE MARK COOK	Appellant
	v
THE QUEEN	Respondent

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JUDGES	BONGIORNO JA and KING AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	12 May 2011
DATE OF JUDGMENT	13 May 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 187
JUDGMENT APPEALED FROM	R v Cook (Unreported, County Court of Victoria, Judge Hogan, 16 September 2009)

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CRIMINAL LAW – Sentence appeal – Appellant pleaded guilty to one count of intentionally causing serious injury and one count of criminal damage – Offences were committed while appellant was on parole – Sentenced to total effective sentence of 8 years and 9 months’ imprisonment with non-parole period of 5 years – Whether sentencing judge failed to properly apply principle of totality – Whether sentence manifestly excessive – R v Renzella [1997] 2 VR 88 – R v Piacentino (2007) 15 VR 501 – Sentencing Act 1991 ss 16(3B), 18(1) – Appeal allowed – Appellant re-sentenced.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr P Tiwana	James Dowlsey and Associates
For the Crown	Mr S Cooper	Mr C Hyland, Solicitor for Public Prosecutions

THE COURT:

1. On 2 September 2009, the appellant pleaded guilty before Judge Hogan in the County Court to one count of intentionally causing serious injury and one count of criminal damage.  The intentionally causing serious injury count related to an incident in which the appellant stabbed another man with a kitchen knife multiple times, inflicting life-threatening injuries.  One of the stab wounds involved penetration of the pericardial sac, perilously close to the victim’s heart.  The criminal damage count related to the appellant smashing the rear window of the victim’s motor vehicle.

1. At the time of his offending, the appellant was on parole for property and driving offences, a drug offence and the offence of threatening to inflict serious injury.

1. On 16 September 2009, the appellant was sentenced as follows:

Count	Sentence	Cumulation
1	8 years and 6 months’ imprisonment	Base sentence
2	9 months’ imprisonment	3 months
Total effective sentence		8 years and 9 months’ imprisonment
Non-parole period		5 years

1. The appellant was arrested for these offences on 9 November 2008.  On 10 December 2008, the Parole Board cancelled his parole, with the consequence that he was required to serve the unexpired portion of his parole period as a term of imprisonment.  His parole period expired on 8 August 2009.  There were thus two periods prior to the date of sentence during which the appellant was in custody for the offences in respect of which he was ultimately sentenced and no other offences. The first period was between 9 November 2008 and 10 December 2008 and the second period was between 9 August 2009 and 16 September 2009. Accordingly, by virtue of s 18(1) of the Sentencing Act 1991, he was entitled to a declaration that he had served a total of 70 days as pre-sentence detention.  He was not entitled to such a declaration in respect of any of the…