Darren Cook v Michael John Lang - [2012] ACTSC 170

DARREN COOK v MICHAEL JOHN LANG
[2012] ACTSC 170 (1 November 2012)

APPEAL AND GENERAL PRINCIPLES – Interference with Discretion of Court Below – appellant initially charged with inappropriate offence because of unavailability of NSW information – appellant challenged charge – after further police investigation appellant charged with appropriate, more serious, offence – appellant pleaded guilty after 14 months and 10 court appearances, and on day of hearing – whether Magistrate erred in his treatment of plea of guilty – whether Magistrate erred in not giving any sentencing discount for appellant’s disclosure of information leading to new charge for more serious offence – appellant’s information did not disclose the commission of an unknown offence, or disclose his guilt of a known offence with an unknown offender – no sentencing discount sought for “assistance to authorities” – no error by Magistrate in relation to disclosure of guilt unknown –re-sentence not only available on appeal where error is found to have affected the sentence – appeal dismissed.

Crimes (Sentencing) Act 2005 (ACT), ss 35, 36
Road Transport (Driver Licensing) Act1999 (ACT), s 32(5)(a)

Crimes (Sentencing Procedures) Act 1999 (NSW), s 23

AB v The Queen (1999) 198 CLR 111

Baxter v The Queen (2007) 173 A Crim R 284

Douar v The Queen (2005) 159 A Crim R 154

Keen v Tither [2010] ACTSC 130

Powell v Fitzroy, Waller and Pine [2012] ACTSC 149
R v Ellis (1986) 6 NSWLR 603

Ryan v The Queen (2001) 206 CLR 267

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 120 of 2006

Judge: Penfold J
Supreme Court of the ACT

Date: 1 November 2012

IN THE SUPREME COURT OF THE       )
  )          No. SCA 120 of 2006
AUSTRALIAN CAPITAL TERRITORY    )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DARREN COOK
Appellant

AND:MICHAEL JOHN LANG
Respondent

ORDER

Judge:  Penfold J
Date:  1 November 2012
Place:  Canberra

THE COURT ORDERS THAT:

The appeal is dismissed.

The fine and the associated costs and levies are confirmed.

The appellant has six months within which to pay the costs and levies.

The 12-month licence disqualification is confirmed.

Introduction

On 10 November 2009, Darren Cook was pulled over by the police for a random licence and registration check. It seems that Mr Cook told the police officers that he was not sure whether he was disqualified in the ACT as a result of being subject to a New South Wales habitual offender disqualification.

An immediate check of police records found that an earlier disqualification had expired four months earlier, but that Mr Cook had no current licence, and police accordingly issued him with a traffic infringement notice for driving unlicensed.

Mr Cook contested the infringement notice, apparently because of his uncertainty whether the ongoing NSW disqualification applied in the ACT. Mr Cook’s counsel said that he did this because he didn’t know which offence he should admit.

In due course, police checks revealed that the…

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 Darren Cook v Michael John Lang

Details

AGLC: Darren Cook v Michael John Lang [2012] ACTSC 170
Case: [2012] ACTSC 170
Decision Date: 1 November 2012

CaseChat Overview and Summary

Darren Cook, the appellant, has appealed against his conviction and sentence by the Local Court. Mr Cook was initially charged with an inappropriate offence due to the unavailability of certain information from New South Wales. Following further police investigation, he was charged with a more serious offence. After 14 months and 10 court appearances, Mr Cook pleaded guilty on the day of the hearing. His appeal focuses on two main issues: whether the Magistrate erred in his treatment of Mr Cook’s guilty plea and whether the Magistrate should have granted a sentencing discount for Mr Cook’s disclosure of information leading to the more serious charge.

The court examined whether Mr Cook’s disclosure of information justified a sentencing discount. Mr Cook’s information did not reveal the commission of an unknown offence, nor did it disclose his guilt of a known offence with an unknown offender. The court determined that no sentencing discount was applicable for "assistance to authorities" as Mr Cook's information did not meet the criteria for such a discount. The court found no error in the Magistrate's treatment of the plea or in the sentencing decision.

The court dismissed the appeal, concluding that no error was made by the Magistrate in his treatment of Mr Cook’s guilty plea or in the sentencing process. The appeal was dismissed, and the original conviction and sentence stood.

Orders

Orders of the court

The appeal is dismissed.

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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