R v Cole - [2017] ACTSC 404

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Cole
Citation:	[2017] ACTSC 404
Hearing Dates:	9 August and 13 November 2017
DecisionDate:	15 December 2017
Before:	Burns J
Decision:	See [38]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – charge of murder – reasonably significant prior criminal history – CADAS Report – Pre-Sentence Report – high risk of reoffending – objective seriousness – lack of remorse – moral culpability not lessened by reason of effect of alcohol and drugs – significant utilitarian value of plea of guilty – difficult to assess prospects for rehabilitation – term of imprisonment imposed
Parties:	The Queen (Crown) Scott Cole (Offender)
Representation:	Counsel Ms M Jones (Crown) Mr S Whybrow (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) ACT Legal Aid (Offender)
File Number:	SCC 183 of 2016

BURNS J:

Scott Cole, on 2 March 2017 you entered a plea of guilty to one charge alleging that on 29 February 2016 you did murder Jason Hollingshed. At that time, your trial was fixed to commence on 29 May 2017. You were originally arrested on 29 February 2016, and charged with murder in the Magistrates Court on 1 March 2016. At that time bail was refused. You have remained in custody since 29 February 2016. On 22 March 2016 you entered a plea of not guilty, and on 15 August 2016 you were committed for trial to this Court.

After you entered your plea of guilty there was a delay occasioned by difficulty in arriving at an agreed Statement of Facts, and some difficulty encountered by your lawyers in taking instructions from you. The sentence hearing commenced on 9 August 2017 with the taking of evidence concerning the one remaining aspect of the Statement of Facts which remained in dispute. I will return to that issue shortly. It was not possible to complete the sentence hearing on 9 August 2017 and at your request I adjourned the proceedings to enable a report to be prepared by a forensic psychologist. As it transpired, no such report was ultimately tendered. The sentence hearing continued to finality on 13 November 2017, at which time I adjourned the proceedings until today to pass sentence.

At the time of this offence, you had been living at the Stuart Flats in Griffith for about five years. You were residing in unit 8 of Block 6. The victim was also a resident of the Stuart Flats and resided in unit 9 of Block 6. You and the deceased were once friends, however there had been a falling out in early 2015 and thereafter your relationship became unfriendly. Although you were neighbours and would for that reason often encounter each other, you did not associate with one another from early 2015. At the time of this offence, you were in a relationship with NU. It appears that the falling out between yourself and the deceased occurred after the deceased made a lewd comment…

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 R v Cole

Details

AGLC: R v Cole [2017] ACTSC 404
Case: [2017] ACTSC 404
Decision Date: 15 December 2017

CaseChat Overview and Summary

In the case of R v Cole, the defendant was convicted of murder and brought before the court for sentencing. The case centred on the severity and circumstances of the crime, as well as the defendant's criminal history and potential for rehabilitation. The court was tasked with determining an appropriate sentence, taking into account various factors such as the objective seriousness of the offence, the defendant's risk of reoffending, and the significance of the defendant's guilty plea. The defendant had a prior criminal record and had been identified as a high risk of reoffending. Additionally, the court considered the defendant's lack of remorse and the impact of alcohol and drugs on their moral culpability, though it was determined that these factors did not lessen their accountability for the crime.

The court had to weigh the objective seriousness of the offence against the defendant's potential for rehabilitation and the benefits of their early guilty plea. The pre-sentence report and the CADAS report provided insights into the defendant's background, criminal history, and risk factors. The court recognised the significant utilitarian value of the defendant's guilty plea in expediting the judicial process and potentially aiding in the defendant's rehabilitation. However, the court also had to consider the inherent danger posed by the defendant, given their high risk of reoffending. Ultimately, the court had to balance these competing considerations to determine an appropriate term of imprisonment.

After considering all relevant factors, the court determined that a term of imprisonment was necessary to adequately reflect the seriousness of the crime, to protect the community, and to provide an opportunity for the defendant's rehabilitation. The court found that the defendant's prior criminal history and risk of reoffending warranted a substantial sentence, while also acknowledging the benefits of the defendant's early guilty plea. The court imposed a term of imprisonment that it deemed appropriate, taking into account the objective seriousness of the offence, the defendant's risk of reoffending, and the other relevant factors. This decision balanced the need for punishment and deterrence with the potential for rehabilitation and the recognition of the defendant's guilty plea.

Orders

Orders of the court

See [38]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.