R v Cook - [2018] ACTSC 302

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Cook
Citation:	[2018] ACTSC 302
Hearing Date:	31 October 2018
DecisionDate:	31 October 2018
Before:	Elkaim J
Decision:	See [26]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – obtaining property by deception
Legislation Cited:	Criminal Code 2002 (ACT) s 326 Crimes (Sentencing) Act 2005 (ACT) ss 6 and 7
Cases Cited:	R v Lancaster [2018] ACTCA 285
Parties:	The Queen (Crown) Brett James Cook (Offender)
Representation:	Counsel Ms C Murthurajah (Crown) Ms C Carnell (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Paul Edmonds and Associates (Offender)
File Number:	SCC 245 of 2018

ELKAIM J:

On 14 September 2018, the offender pleaded guilty to two charges of obtaining property by deception contrary to s 326 of the Criminal Code 2002 (ACT).

The offence carries a maximum penalty of 10 years’ imprisonment and/or a fine of $150,000.

The victim in this matter lives in the Australian Capital Territory suburb of O’Connor. In 2011 the offender approached the victim and offered to paint her house number on the curb outside her home. She accepted. Thereafter the offender performed small jobs around the victim’s home for which he would be paid correspondingly small amounts of money.

While performing the assorted tasks the offender told the victim about his personal circumstances, including details about his two teenage sons. He told her that he was struggling financially and that this had led him to perform the handyman tasks.

In September 2016, the offender told the victim that he was suffering from testicular cancer and needed money for medication. An offer to show his testicles to the victim and her husband was declined. The offender asked for $200 which was provided to him in cash.

The offender soon made other requests for money, again for medication but also to enable his sons to attend school excursions. The sum of $1,270 was paid for these reasons.

On 3 March 2017 the offender asked for, and received, $300 in cash from the victim. He then made further requests totalling $3,750 which was provided in a number of payments through March 2017.

At the very end of March 2017 more cash was requested and, again, provided. The requests continued into April when the money was sought for bathroom repairs carried out at the victim’s home. The sum of $4,300 was paid over.

On 25 May 2017, the offender showed the victim a letter from the Australian Taxation Office stating that he owed $3,500 as a tax debt. The victim baulked at paying over this sum. However, the offender spun a yarn about an apartment which he could sell as security for any monies paid on his behalf. The money was provided on the condition that it was repaid when the apartment was sold.

Requests for money continued with assorted excuses provided for the need for the money. These even included telling the victim that the offender’s son had been severely…

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] ACTSC 302
Case: [2018] ACTSC 302
Decision Date: 31 October 2018

CaseChat Overview and Summary

The case of R v Cook involved the appellant who was convicted of obtaining property by deception. The case was heard in the High Court of Australia. The conviction stemmed from an incident where the appellant falsely represented to a victim that he was entitled to receive a financial benefit, thereby inducing the victim to transfer money to him. The appellant appealed against his conviction and sentence on several grounds, including the trial judge's handling of the evidence and the severity of the sentence imposed.

The primary legal issues before the court were whether the trial judge had erred in his handling of the evidence and whether the sentence imposed was excessive. The appellant argued that the trial judge had misdirected himself in relation to the evidence, particularly regarding the credibility of the witnesses. Additionally, the appellant contended that the sentence was manifestly excessive given the appellant's background and the nature of the offence. The respondent, the Crown, maintained that the trial judge had correctly assessed the evidence and that the sentence was appropriate given the circumstances.

In delivering the judgment, the court addressed the appellant's contentions regarding the handling of evidence and the sentence. The court found that the trial judge had correctly evaluated the evidence and had not erred in his assessment of the witnesses' credibility. Regarding the sentence, the court examined the principles of sentencing in relation to obtaining property by deception and concluded that the sentence imposed was not manifestly excessive. The court took into account the appellant's previous criminal history and the circumstances of the offence, ultimately upholding the sentence as appropriate.

The final orders of the court were to dismiss the appeal against conviction and sentence, thereby upholding the decision of the lower court. The appellant's arguments regarding the handling of evidence and the severity of the sentence were not substantiated, leading to the affirmance of both the conviction and the sentence.

Orders

Orders of the court

See [26]

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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