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Cooke v The Queen

Cooke v The Queen

Case [2021] VSCA 70 25 March 2021

Appeal

Sentencing

Specific Deterrence

Manifestly Excessive Sentence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2019 0240

JAY COOKE	Appellant
v
THE QUEEN	Respondent

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JUDGE:	PRIEST and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 March 2021
DATE OF ORDERS:	23 March 2021
DATE OF REASONS:	25 March 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 70
JUDGMENT APPEALED FROM:	[2019] VCC 1700 (Judge Carmody)

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CRIMINAL LAW — Appeal — Sentence — Sexual penetration of a child under 16 — Sentenced to 3 years and 6 months’ imprisonment with 2 years non-parole — Appellant aged 22 years with traumatic brain injury and autism spectrum disorder — Whether sentencing judge failed to moderate specific deterrence — Whether sentence manifestly excessive — Appeal allowed — Sentenced to 2 year community correction order.

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APPEARANCES:	Counsel	Solicitors
For the Appellant:	Mr D Dann QC with Ms K Ballard	Doogue + George
For the Respondent:	Ms D Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KAYE JA:

Introduction

Pursuant to leave granted by a judge of the Court,[1] the appellant, now aged 24 years,[2] appealed against a sentence of three years and six months’ imprisonment, with a non-parole period of two years, imposed upon him by a judge of the County Court following his guilty plea to one charge of sexual penetration of a child under 16 years.[3]
[1]Cooke v The Queen (Unreported, Court of Appeal, Priest JA, 24 April 2020) (‘Leave Reasons’).
[2]His date of birth is 7 July 1996.
[3]Crimes Act 1958, s 49B(1). The maximum penalty is 15 years’ imprisonment.

The appellant’s two grounds of appeal were:

1. The learned sentencing judge erred in failing to moderate general deterrence when imposing sentence on the [appellant].
2. The sentence imposed on the [appellant] is manifestly excessive.

At the conclusion of oral argument on 23 March 2021, we allowed the appeal and resentenced the appellant in the manner set out below.[4] These are our reasons for those orders.
[4]At [38].

The offending

It is necessary to provide some detail of the appellant’s offending. For convenience, in order to do so we have drawn heavily on the description provided in the Leave Reasons.[5]
[5]Leave Reasons [4]–[12].

The appellant and the complainant, ‘JMM’, became known to each other through associates and the multimedia messaging application ‘Snapchat’. At the time of the offending, the appellant was aged 22 years and JMM was aged 14 years. JMM resided at a Department of Health and Human Services Residential Care Unit.
On 17 January 2019, the appellant commenced contacting JMM on Snapchat messenger. He continued to contact her until 26 February 2019, having made eleven requests to meet. On ten occasions, JMM declined to meet.
During the afternoon of 26 February 2019, JMM was socialising with a friend in a suburb close to where the appellant lived, when the appellant made his eleventh request to meet. The appellant sent JMM a Snapchat message with the address of the bus stop nearest his house. JMM caught the bus and…

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 Cooke v The Queen

Details

AGLC: Jay Cooke v The Queen [2021] VSCA 70
Case: [2021] VSCA 70
Decision Date: 25 March 2021

CaseChat Overview and Summary

Cooke brought an appeal against his sentence, arguing that the trial judge failed to adequately moderate the aspect of specific deterrence due to his traumatic brain injury and autism spectrum disorder. The appeal was against his conviction and sentence for sexual penetration of a child under 16 years of age. The appellant was sentenced to 3 years and 6 months’ imprisonment, with a non-parole period of 2 years. The appeal was heard in the High Court of Australia.

The legal issues before the court were whether the sentencing judge failed to adequately moderate the specific deterrence aspect of the sentence, and whether the sentence was manifestly excessive. The court needed to determine if the trial judge failed to appropriately consider the appellant’s age, traumatic brain injury, and autism spectrum disorder when determining the sentence.

The court found that the sentencing judge did not adequately moderate the specific deterrence aspect of the sentence, considering the appellant’s age, traumatic brain injury, and autism spectrum disorder. The court also found that the sentence was manifestly excessive. The appeal was allowed, and the appellant was sentenced to a 2-year community correction order, with supervision and rehabilitation conditions. The court emphasised the importance of considering the individual circumstances of the offender when determining an appropriate sentence.

Orders