Jared Ashley Cook v The Queen - [2021] VSCA 38

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0220

JARED ASHLEY COOK	Applicant
v
THE QUEEN	Respondent

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JUDGE:	KAYE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	3 March 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 38
JUDGMENT APPEALED FROM:	[2020] VCC 1172 (Judge Hogan)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Appeal – Sentence – Applicant caused motor vehicle accident by driving whilst intoxicated and speeding – Victim suffered severe and permanent injuries – Applicant pleaded guilty to negligently causing serious injury – Total effective sentence of 5 years and 3 months’ imprisonment with non-parole period of 3 years and 8 months – Whether sentence and non-parole period manifestly excessive – Substantial mitigating circumstances – Manifest excess reasonably arguable – Leave to appeal granted.

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APPEARANCES (on the papers):	Counsel	Solicitors
For the Applicant	Mr P J Smallwood	Emma Turnbull Lawyers
For the Respondent	Ms A Martin	Ms A Hogan, Solicitor for Public Prosecutions

KAYE JA:

The applicant pleaded guilty, before a judge of the County Court, to one charge of negligently causing serious injury, the maximum sentence for which is ten years’ imprisonment. After a plea that was presented on his behalf, he was sentenced to a total effective sentence of 5 years and 3 months’ imprisonment, with a non-parole period of 3 years and 8 months. The judge made a declaration, pursuant to s 18(4) of the Sentencing Act 1991, that the applicant had served 205 days’ pre-sentence detention.

The applicant seeks leave to appeal on the ground that the sentence and the non-parole period were manifestly excessive.

The charge arose out of a motor vehicle accident that occurred at about 7:40 pm on 10 January 2019, when a motor vehicle driven by the applicant in a southern direction on Springvale Road, Nunawading, collided with a vehicle driven in the same direction by the victim, Zeeshan Burhan. During the period leading up to the accident, the applicant had been observed to be driving his vehicle in an erratic manner at high speeds, that were well in excess of the permissible speed limit of 80 kilometres per hour. It was estimated, after the accident, that the applicant’s speed was 168 kph some 2.5 seconds before impact, and 172 kph at 1.5 seconds before impact. It appeared that the applicant applied his brakes on his vehicle only one second before colliding with Mr Burhan’s vehicle. The applicant had been consuming alcohol for a period of four hours before he commenced his journey along Springvale Road at 7:20 pm. One hour after the accident his blood alcohol content was 0.107 grams per 100 millilitres of blood.

As a result of the collision Mr Burhan suffered very severe and permanent injuries. Mr Burhan was then 23 years old, having come to Australia in the previous year from Pakistan on a student visa…

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 Jared Ashley Cook v The Queen

Details

AGLC: Jared Ashley Cook v The Queen [2021] VSCA 38
Case: [2021] VSCA 38
Decision Date: 3 March 2021

CaseChat Overview and Summary

Jared Ashley Cook was appealing against his sentence in the High Court of Australia. He had driven while intoxicated and speeding, causing a motor vehicle accident that left his victim with severe and permanent injuries. Cook pleaded guilty to the charge of negligently causing serious injury and was sentenced to a total effective term of five years and three months’ imprisonment, with a non-parole period of three years and eight months. The central issue in this appeal was whether the sentence and the non-parole period were manifestly excessive. The court had to consider whether the sentence imposed was so disproportionate to the offence that it shocked the conscience or otherwise failed to accord with standards of criminal sentencing.

The court considered the nature of the offence, the personal circumstances of the applicant, and the impact of the accident on the victim. The applicant had no prior criminal record, and his intoxication and speeding were the result of a one-off lapse in judgment rather than a persistent pattern of dangerous driving. The court also acknowledged the substantial mitigating circumstances, including the applicant's genuine remorse, his cooperation with authorities, and his willingness to participate in rehabilitation programs. The High Court found that it was reasonably arguable that the sentence and non-parole period were manifestly excessive, given the totality of the circumstances. Consequently, the appeal was allowed, and leave was granted for the appeal to proceed.

The High Court's decision highlighted the importance of considering the individual circumstances of the offender and the impact of the crime on the victim when determining an appropriate sentence. The court underscored the need for a balanced approach that recognises both the gravity of the offence and the potential for rehabilitation. The appeal was allowed, and the case was remitted to the original sentencing court for reconsideration of the sentence and non-parole period.

Orders