Cooke (a pseudonym) v The Queen

The Supreme Court of the Australian Capital Territory, constituted by Mossop, Loukas-Karlsson and Rangiah JJ, heard an appeal by Cooke (a pseudonym) against a sentence imposed by the primary judge. The dispute concerned the appropriate discount for a guilty plea in sentencing for an act of indecency with a person under the age of 10 years. The appellant was sentenced to 23 months imprisonment with a non-parole period of 18 months, with the sentencing judge having applied an approximately 18% discount for the guilty plea.

The central legal issue before the Court of Appeal was whether the sentencing judge erred by considering the strength of the prosecution case when determining the appropriate discount for the appellant's guilty plea. Specifically, the appeal questioned whether the strength of the prosecution case was a permissible consideration for the guilty plea discount, particularly in circumstances where the prosecution did not submit that the case was "overwhelmingly strong" and therefore s 35(4) of the *Crimes (Sentencing) Act 2005* (ACT) did not apply. The appellant also raised grounds concerning the overall excessiveness of the sentence and the adequacy of reasons for the non-parole period.

The Court of Appeal allowed the appeal, finding that the sentencing judge had made a specific error of the kind identified in *House v The King* by taking into account the strength of the prosecution case when determining the discount for the guilty plea. The Court held that while the strength of the prosecution case is relevant under s 35(4) of the *Crimes (Sentencing) Act 2005* (ACT) for an "overwhelmingly strong" case, it is not a permissible consideration for reducing the guilty plea discount in other circumstances. The respondent conceded that if this was found to be an error, the sentencing discretion would need to be exercised afresh.

Consequently, the Court of Appeal allowed the appeal, set aside the sentence imposed by the primary judge, and remitted the matter for re-sentencing. The Court noted that it was strictly unnecessary to consider the other grounds of appeal, although factors relevant to manifest excess were considered in the resentencing exercise.