R v Cook

Case [2018] TASCCA 20 14 December 2018

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[2018] TASCCA 20

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: R v Cook [2018] TASCCA 20

PARTIES:  R
  v
  COOK, Christopher Kenneth

FILE NO:  CCA 1588/2018
DELIVERED ON:  14 December 2018
DELIVERED AT:  Hobart
HEARING DATE:  1 October 2018
JUDGMENT OF:  Pearce J, Brett J and Marshall AJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Multiple counts of using carriage service for child pornography material and child abuse material and to transmit indecent communication to a person under 16 – Aggregate sentence of imprisonment for 15 months with release on recognisance after 10 months manifestly inadequate.

Criminal Code (Cth) ss 474.19(1), 474.22(1) and 474.27A(1).
Taylor v The Queen [2015] TASCCA 7, applied.
Aust Dig Criminal Law [3521]

Criminal Law – Sentence – Sentencing procedure – Taking outstanding or further offences into account – Error to convict of offences to be taken into account under the Crimes Act 1914 (Cth), s 16BA.

Crimes Act 1914 (Cth), s 16BA.
De Lorenzo v DPP (Cth) [2017] VSCA 270; Le v The Queen [2017] NSWCCA 26, applied.
Aust Dig Criminal Law [3319]

REPRESENTATION:

Counsel:
             Appellant:  K Breckweg
             Respondent:  F Cangelosi
Solicitors:
             Appellant:  Director of Public Prosecutions (Cth)

Judgment Number: [2018] TASCCA 20
Number of paragraphs: 89

Serial No 20/2018
File No CCA 1588/2018

THE QUEEN v CHRISTOPHER KENNETH COOK

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PEARCE J
BRETT J
MARSHALL AJ
14 December 2018

Orders of the Court

Appeal allowed.

The sentencing orders made on 25 May 2018 are quashed.

Respondent re-sentenced as follows:
i      Convicted on counts 1 to 14 of the indictment.
ii     On counts 1 to 13, the respondent is sentenced to imprisonment for four years, commencing 4 May 2018, with a non-parole period of two years.
iii     On count 14, the respondent is sentenced to imprisonment for four months commencing 4 May 2018.
iv     The HP Pavilion laptop computer (exhibit 37491-697-3) and the Compac computer (exhibit 37491-696-4) forfeited to the Commonwealth.
v     It is directed that the respondent's name is placed on the register under the Community Protection (Offender Reporting) Act 2005, and he is to comply with the reporting conditions as required by that Act for five years from his release.

The Court will, in accordance with the Crimes Act 1914 (Cth), s 16BA(8), certify that in passing sentence on count 11 it has taken into account the offences admitted by the respondent listed in the notice given under s 16BA dated 5 April 2018.

Serial No 20/2018
File No CCA 1588/2018

THE QUEEN v CHRISTOPHER KENNETH COOK

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PEARCE J
14 December 2018

The sentence under appeal was imposed by Slicer J on 25 May 2018. I have had the advantage of reading, in draft form, the reasons of Brett J and Marshall AJ. I agree that the appeal should be…

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 Cook

Details

AGLC: R v Cook [2018] TASCCA 20
Case: [2018] TASCCA 20
Decision Date: 14 December 2018

CaseChat Overview and Summary

The Director of Public Prosecutions appealed against the sentence imposed on the respondent, Mr. Cook, who had pleaded guilty to multiple counts of using a carriage service to access child pornography material, child abuse material, and to transmit indecent communications to a person under 16. The appeal was heard by Pearce J, Brett J, and Marshall AJ.

The central legal issue before the appellate court was whether the aggregate sentence of 15 months imprisonment, with a non-parole period of 10 months, was manifestly inadequate, thereby providing grounds for the Director to appeal the sentence.

The court reasoned that the sentencing judge had failed to give sufficient weight to the seriousness of the offences, particularly the transmission of indecent communications to a person under 16, which involved direct interaction with a child. The court emphasised the need for deterrence and denunciation in sentencing for such offences. Applying principles of sentencing for child exploitation material, the court found that the original sentence did not adequately reflect the gravity of the respondent's conduct and the need to protect vulnerable individuals.

Consequently, the appellate court allowed the appeal, quashed the original sentence, and imposed a new aggregate sentence of imprisonment for 3 years, with a non-parole period of 18 months.

Orders