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Cook v The Queen

Cook v The Queen

Case [2021] VSCA 293 27 October 2021

Appeal

Criminal Liability

Sentencing

Negligently causing serious injury by driving

Manifest excess

General deterrence and denunciation

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0220

JARED ASHLEY COOK	Appellant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 October 2021
DATE OF JUDGMENT:	27 October 2021
MEDIUM NEUTRAL CITATION	[2021] VSCA 293
JUDGMENT APPEALED FROM:	[2020] VCC 1172 (Judge Hogan)

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CRIMINAL LAW – Appeal – Sentence – Negligently causing serious injury by driving – Manifest excess – Whether judge gave powerful mitigating factors sufficient weight – Offence of negligently causing serious injury by driving requires additional weight to be given to general deterrence and denunciation – Sentence of five years and three months’ imprisonment with non-parole period of three years and eight months not manifestly excessive given objective gravity – Harrison v The Queen (2015) 49 VR 619 applied; Crimes Act 1958 s 24 – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P J Smallwood	Emma Turnbull Lawyers
For the Respondent	Ms D I Piekusis QC, with Ms S Clancy	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
T FORREST JA:

The appellant pleaded guilty on 7 July 2020 before a judge of the County Court to one charge of negligently causing serious injury. On 5 August 2020 he was sentenced as set out in the table below.

Charge on Indictment K12892899 Offence Maximum Sentence Cumulation

1. Negligently causing serious injury (contrary to Crimes Act 1958 s 24) 10 years’ imprisonment 5 years 3 months’ imprisonment -

Total effective sentence: 5 years 3 months’ imprisonment

Non-parole period: 3 years 8 months

Pre-sentence detention declaration pursuant to Sentencing Act 1991 s 18(1): 205 days

6AAA statement: 7 years 3 months’ imprisonment with a non-parole period of 5 years 5 months

Other relevant orders: Licence cancellation and disqualification for a period of two years following release from custody

On 3 March 2021 the appellant was granted leave to appeal against sentence by a judge of this Court.[1] The appellant has advanced a single ground, expressed as follows:

Ground 1:The sentence imposed (5 years 3 months) and the non-parole period fixed (3 years 8 months) were manifestly excessive.
[1]Cook v The Queen [2021] VSCA 38 (Kaye JA).

Factual summary

An agreed summary of prosecution opening was tendered on the plea and read to the Court. We shall borrow heavily from it.

On 10 January 2019 at about 3:00 pm the 29-year-old appellant commenced drinking at the Chase Hotel in Forest Hill. He drove to that hotel after an argument with his partner earlier that afternoon. He drank three schooners[2] of full-strength beer over the course of about two hours. He then drove to the Mitcham Hotel, where he drank approximately two bourbon and cokes and two more schooners of full-strength beer. He left the Mitcham Hotel at about 7:20 pm.
[2]425 ml.

He drove his Holden ute west on Whitehorse Road. A witness described his driving at that stage as unsafe, speeding off when the lights turned green and cutting across all…

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 Cook v The Queen

Details

AGLC: Cook v The Queen [2021] VSCA 293
Case: [2021] VSCA 293
Decision Date: 27 October 2021

CaseChat Overview and Summary

Cook, the appellant, appealed against his sentence for negligently causing serious injury by driving. The matter was heard by the Court of Appeal of the Supreme Court of Victoria. The appeal centred on the appellant's contention that the primary judge did not sufficiently consider the mitigating factors in sentencing him to five years and three months’ imprisonment, with a non-parole period of three years and eight months. The court was required to determine whether the sentence was manifestly excessive, given the weight that must be placed on general deterrence and denunciation in cases of negligently causing serious injury by driving.

The court considered the principles established in Harrison v The Queen, which stated that the sentencing of an offence of this nature requires additional weight to be placed on general deterrence and denunciation. The court reviewed the appellant’s arguments regarding the mitigating factors and found that, while the primary judge had acknowledged these factors, the weight given to them was not insufficient. The court found that the objective gravity of the offence warranted a sentence within the range of the sentence imposed. The court also noted that the appellant's remorse, while a mitigating factor, did not warrant a significantly reduced sentence in this context.

Given the court's analysis, it concluded that the sentence imposed was not manifestly excessive. The appeal was dismissed, and the original sentence stood. The court emphasised that the objective gravity of the offence necessitated a sentence that appropriately balanced the need for general deterrence and denunciation with the mitigating factors presented.

Orders