R v Cook - [2021] QCA 209

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cook [2021] QCA 209

PARTIES:

R
v
COOK, Jodie Ann
(applicant)

FILE NO/S:

CA No 99 of 2021
SC No 435 of 2021
SC No 455 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 16 April 2021 (Dalton J)

DELIVERED ON:

1 October 2021

DELIVERED AT:

Brisbane

HEARING DATE:

17 September 2021

JUDGES:

Holmes CJ and McMurdo and Mullins JJA

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant was convicted after pleading guilty to seven offences and two summary charges (the subject offences) – where the applicant was sentenced to 12 months’ imprisonment and the parole release date was fixed at the last day of the sentence – where the applicant committed other offences two years prior to the commission of the subject offences, but was sentenced for these other offences while the charges for the subject offences remained outstanding to imprisonment for three years with an immediate parole release date – where the sentencing judge imposed a sentence that took into account the existing sentence and the additional criminality reflected in the subject offences – whether the sentencing judge erred in applying the totality principle

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted after pleading guilty to seven offences and two summary charges – where the applicant was sentenced and the parole release date was fixed at the last day of the sentence – where this was the first time that the applicant had to serve in actual custody – whether the sentence imposed was manifestly excessive

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited
R v Beattie; Ex parte Attorney-General (Qld) (2014) 244 A Crim R 177; [2014] QCA 206, cited
R v Fabre[2008] QCA 386, cited
R v WBK (2020) 4 QR 110; [2020] QCA 60, considered

COUNSEL:

C R Smith for the applicant
D Nardone for the respondent

SOLICITORS:

Legal Aid Queensland for applicant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES CJ: I agree with the reasons of Mullins JA and with the order her Honour proposes.
McMURDO JA: I agree with Mullins JA.
MULLINS JA: Ms Cook pleaded guilty in the Supreme Court on 16 April 2021 to seven offences on indictment number 455 of 2021 that (apart from counts 1 and 2) were all committed on 5 October 2019 and two related summary charges committed on the same date that were on file number 435 of 2021. Except for count 4, Ms Cook was convicted and not further punished. The sentence for count 4 was 12 months’ imprisonment and the parole release date was fixed at the…

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 [2021] QCA 209
Case: [2021] QCA 209
Decision Date: 1 October 2021

CaseChat Overview and Summary

The applicant, Cook, appealed against his sentence in the High Court of Australia, following a conviction on seven offences and two summary charges. The subject offences led to a 12-month imprisonment sentence with the parole release date fixed at the last day of the sentence. This was the first time the applicant served actual custody, although he had previously been sentenced for other offences two years prior to the subject offences. The sentencing judge imposed a sentence that took into account both the existing sentence and the additional criminality reflected in the subject offences. The applicant argued that the sentencing judge erred in applying the totality principle and that the sentence was manifestly excessive.

The primary legal issues in this case revolved around whether the sentencing judge applied the totality principle correctly and whether the sentence imposed was manifestly excessive. The totality principle requires the court to consider the cumulative effect of multiple sentences when determining an appropriate sentence. The applicant contended that the sentencing judge acted on the wrong principle by not considering the full effect of the existing sentence when imposing the sentence for the subject offences. Additionally, the applicant argued that the sentence was manifestly excessive, as it was the first time he was serving actual custody.

The High Court found that the sentencing judge did not err in applying the totality principle. The court considered the totality of the applicant’s offending and the need for punishment and deterrence. The court held that the sentencing judge was entitled to take into account the existing sentence when determining the sentence for the subject offences. Furthermore, the court found that the sentence was not manifestly excessive, as the sentencing judge had adequately considered the applicant's offending history and the need for punishment and deterrence.

The High Court refused the application for leave to appeal against the sentence, thereby upholding the original sentence imposed.

Orders

Orders of the court

Application for leave to appeal against sentence refused.

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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CITATION:	R v Cook [2021] QCA 209
PARTIES:	R v COOK, Jodie Ann (applicant)
FILE NO/S:	CA No 99 of 2021 SC No 435 of 2021 SC No 455 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 16 April 2021 (Dalton J)
DELIVERED ON:	1 October 2021
DELIVERED AT:	Brisbane
HEARING DATE:	17 September 2021
JUDGES:	Holmes CJ and McMurdo and Mullins JJA
ORDER:	Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant was convicted after pleading guilty to seven offences and two summary charges (the subject offences) – where the applicant was sentenced to 12 months’ imprisonment and the parole release date was fixed at the last day of the sentence – where the applicant committed other offences two years prior to the commission of the subject offences, but was sentenced for these other offences while the charges for the subject offences remained outstanding to imprisonment for three years with an immediate parole release date – where the sentencing judge imposed a sentence that took into account the existing sentence and the additional criminality reflected in the subject offences – whether the sentencing judge erred in applying the totality principle CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted after pleading guilty to seven offences and two summary charges – where the applicant was sentenced and the parole release date was fixed at the last day of the sentence – where this was the first time that the applicant had to serve in actual custody – whether the sentence imposed was manifestly excessive Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited R v Beattie; Ex parte Attorney-General (Qld) (2014) 244 A Crim R 177; [2014] QCA 206, cited R v Fabre[2008] QCA 386, cited R v WBK (2020) 4 QR 110; [2020] QCA 60, considered
COUNSEL:	C R Smith for the applicant D Nardone for the respondent
SOLICITORS:	Legal Aid Queensland for applicant Director of Public Prosecutions (Queensland) for the respondent