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:
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.
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.
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
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…
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- AGLC
- Cook v The Queen [2011] VSCA 187
- Case
- [2011] VSCA 187
- Decision Date
CaseChat Overview and Summary
The Court of Appeal examined the principle of totality, which is the requirement to consider the cumulative effect of multiple sentences. The Court considered the principles established in R v Renzella and R v Piacentino, which emphasise the importance of ensuring that the total sentence reflects the overall seriousness of the offending. Additionally, the Court referred to the Sentencing Act 1991, particularly sections 16(3B) and 18(1), which mandate that the total sentence should be proportionate to the gravity of the offences. After a thorough analysis, the Court determined that the sentencing judge did not adequately apply the principle of totality and that the sentence was manifestly excessive.
The Court of Appeal allowed the appeal and re-sentenced Cook. The Court set aside the original sentences and imposed a new total effective sentence of 8 years and 3 months' imprisonment for Count 1 and 6 months' imprisonment for Count 2. The non-parole period was fixed at 4 years and 9 months. The Court confirmed all other orders made by the County Court.
Orders
Orders of the court
1. The appeal is allowed.
2. The sentences passed below are set aside and in lieu thereof the appellant is sentenced as follows: Count 1 8 years and 3 months’ imprisonment Count 2 6 months’ imprisonment The total effective sentence is thus 8 years and 3 months’ imprisonment.
3. A non-parole period of 4 years and 9 months is fixed.
4. All other orders made below are confirmed.
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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