R v Cook

[2022] ACTSC 17

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Cook

Citation:

[2022] ACTSC 17

Hearing Date(s):

7 February 2022

DecisionDate:

7 February 2022

Before:

Elkaim J

Decision:

See [23]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – grievous bodily harm – significant subject features – good behaviour order

Legislation Cited:

Crimes Act 1900 (ACT) s 25
Crimes (Sentencing) Act2005 (ACT) s 64
Criminal Code 2002 (ACT) s 45

Parties:

The Queen ( Crown)

Trinity Cook ( Offender)

Representation:

Counsel

K Lee ( Crown)

S McLaughlin ( Offender)

Solicitors

ACT Director of Public Prosecutions ( Crown)

Legal Aid ACT ( Offender)

File Number(s):

SCC 161 of 2021

Elkaim J

1. On 11 November 2021, Mr Cook pleaded guilty to the offence of being knowingly concerned in another person causing grievous bodily harm, contrary to s 25 of the Crimes Act 1900 (ACT) by virtue of s 45 of the Criminal Code 2002 (ACT). The maximum penalty is 5 years’ imprisonment.

1. The three persons involved, the two offenders and the victim, were all inmates at the local prison, the Alexander Maconochie Centre. On 28 March 2020 the offender and the co-offender (Mr Gardner) entered the victim’s prison cell and closed the door.

1. Mr Gardner then struck the victim (Mr Zanatta) a number of times to his head and face. Mr Gardner then poured boiling water over the victim’s upper body resulting in serious burns. The burns necessitated transfer to an interstate burns facility.

1. The offender watched on. He had known an assault was going to take place. To his credit the offender did intervene to bring the assault to an end and he gave the victim a towel before departing.

1. The Crown Tender Bundle includes a detailed Statement of Facts. The above is a summary of those facts.

1. Taking into account the nature of the offending, in particular the pouring of boiling water causing serious and lasting injury, and the pre-arranging of the offence, I consider the offending to be about medium in the range of objective seriousness. Had the offender’s role not been passive my assessment would have been higher.

1. General deterrence plays a significant part in offences committed in custody. Prisoners who are victims of assault have no avenue of escape and are forced to live in the proximity of their attackers. Persons considering carrying out assaults in prison must know that they are going to be dealt with severely.

1. Mr Gardner has not yet been sentenced so questions of parity do not arise.

1. Normally a nonparole period would be set if the term of imprisonment imposed was in excess of 12 months. However by reason of s 64 of the Crimes (Sentencing) Act2005 (ACT) a nonparole period may not be set.

1. The offender was born in 1987. He has a criminal history in the ACT and a significant criminal record in New South Wales. The latter record includes violent offending and possession of drugs.

1. The offender was in custody on a remand basis, awaiting sentencing in the Magistrates Court. That is yet to occur. He has been on bail since 15 April 2020.

1. The offender did not cooperate with the authors of the Pre-Sentence Report but was more forthcoming to a psychologist, Ms Zipparo. I do not think he was being deliberately obstructive, rather his attitude is a reflection of his subjective factors, in particular his mental disabilities.

1. The offender was born in Sydney. He has no knowledge of his father who left the family when he was very young. He has a good relationship with his mother and step-father. The offender was involved in a serious motor vehicle accident in 2016, which resulted in a brain injury and in turn a very poor memory and obviously some cognitive impairment. He receives NDIS assistance for matters like shopping and household chores.

1. The offender also had mental health issues before his accident. He completed year 10 and then did some labouring work. However the motor vehicle accident seems to have brought all of this to an end and he is now on a disability pension. In addition to his brain injury he suffered serious injuries to his leg and back.

1. The offender has a long history of drug use and he clearly has significant mental health issues. Over time he has been given a number of different diagnoses, including bipolar disorder and an explosive personality disorder. Ms Zipparo says he has a “history of poor judgment, aggressive behaviour, and addiction prior to his accident.” After his accident “he demonstrates additional behavioural difficulties which are consistent with a frontal lobe injury including poor organisational skills, inflexibility, avolition and anhedonia, poor memory and confabulation, in addition to obsessive behaviours”.

1. The combination of all of these matters amount to significant subjective factors. Although Ms Zipparo says he retains the capacity to reason he would have been “vulnerable to being led into a situation and participating without having the ability to quickly evaluate the situation and change his behaviour, without assistance”.

1. There is a letter from Mr Andrew Munro, a social worker who has been working with the offender. He is a participant in a care and support scheme as a result of the motor vehicle accident.

1. Mr Munro sets out the progress that the offender has made which seems to revolve around being in a supported environment “where there is a far reduced risk of reoffending”. Mr Munro is anxious that remaining in prison will be detrimental to the progress that the offender has made. The rehabilitation of Mr Cook clearly dictates that the sooner he is returned to a protective environment, the more likely he is to make progress.

1. Mr Munro makes the point that since he has been involved in the program, the offender has not committed any further offences.

1. Mr McLaughlin, who appears on behalf of the offender, suggested that he be dealt with by way of a term of imprisonment, but suspended with immediate effect. The Crown, fairly and properly, did not disagree with this approach although did suggest that there is a need for specific conditions of supervision. I agree. To that end I asked the parties to consider appropriate conditions which they have done.

1. In relation to the term of imprisonment I think the offender is entitled to a discount of 20% for his plea of guilty. In addition I will add a further 5% to reflect his willingness to cooperate with the authorities in relation to the prosecution of the co-offender. The total discount is therefore 25%.

1. I think the appropriate term of imprisonment is 24 months’, which is reduced to 18 months’ after applying the discount. The offender has not spent any time in custody referable to the current offences.

1. I make the following orders:

(i)The offender is sentenced to a term of imprisonment of 18 months’ to commence today and end on 6 August 2023.

(ii)The above term of imprisonment is suspended with immediate effect on the condition that the offender enter into a Good Behaviour Order for 18 months on the following conditions:

a)To accept supervision by ACT Corrective Services for the period deemed necessary by ACT Corrective Services.

b)To attend such educational, vocational, psychological, psychiatric, or other counselling as directed to by ACT Corrective Services. 

I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

Associate:

Date: 7 February 2022