R v Cook - [2007] QCA 100

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cook; ex parte A-G (Qld) [2007] QCA 100

PARTIES:

R
v
COOK, Andrew Raymond
(respondent)

EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 5 of 2007
DC No 669 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Sentence by A-G (Qld)

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

30 March 2007

DELIVERED AT:

Brisbane

HEARING DATE:

20 March 2007

JUDGES:

Holmes JA, Cullinane and Jones JJ
Judgment of the Court

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND ENQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN OFFICER – APPLICATIONS TO INCREASE SENTENCE – OTHER OFFENCES – where the respondent was convicted of dangerous operation of a motor vehicle causing death whilst adversely affected by alcohol – where the respondent was sentenced to five years imprisonment with eligibility for parole after two years and disqualified from holding a driver’s license for five years – whether sentence manifestly inadequate

R v Evans [2005] QCA 455; CA No 238 of 2005, 8 December 2005, considered
R v Hoad [2005] QCA 92; CA No 434 of 2004, 8 April 2005, considered
R v Ibrahim [2003] QCA 386; CA No 162 of 2003, 3 September 2003, considered
R v McKinnon [1999] QCA 75; CA No 356 of 1998, 17 March 1999, considered
R v Saltmarsh [2007] QCA 25; CA No 267 of 2006, 6 February 2007, applied
R v Stephenson [1999] QCA 519; CA No 295 of 1999, 17 December 1999, considered
R v Wilde; ex parte A-G (Qld) [2002] QCA 501; CA No 283 of 2002, 19 November 2002, considered

COUNSEL:

M J Copley for the appellant
J D Henry SC for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant
O’Reilly Stevens Bovey Lawyers for the respondent

THE COURT: The Attorney-General appeals against a sentence imposed by the District Court at Cairns on 5 December 2006 on the respondent who was convicted on his guilty plea to the offence of dangerous operation of a motor vehicle causing death whilst adversely affected by intoxicating liquor.

The respondent was sentenced to five years imprisonment with parole eligibility after two years. He was also disqualified from holding a driver’s licence for five years.

The Attorney-General contends that the sentence is manifestly inadequate because:-

(a) It fails to reflect adequately the gravity of the offence generally and in this case in particular;

(b) It fails to take sufficiently into account the aspect of general deterrence; and

(c) The sentencing judge gave too much weight to factors going to mitigation.

The respondent was born on 9 April 1975 and was thus 29 years of age at the time of the incident and 31 years at the time of sentence.

The incident occurred on or about 12.45 pm on 3 January 2005 when the respondent was driving a Holden Rodeo utility inbound along 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 [2007] QCA 100
Case: [2007] QCA 100
Decision Date: 30 March 2007

CaseChat Overview and Summary

The case of R v Cook involved the respondent, who had been convicted of dangerous operation of a motor vehicle causing death while adversely affected by alcohol. The respondent was sentenced to five years imprisonment, with eligibility for parole after two years, and disqualified from holding a driver’s license for five years. The Attorney-General appealed the sentence, arguing that it was manifestly inadequate given the gravity of the offence and the harm caused. The appeal was heard in the relevant appellate court, which was tasked with determining whether the original sentence was indeed inadequate.

The primary legal issue before the court was whether the sentence imposed was manifestly inadequate, particularly considering the dangerous nature of the respondent's actions and the resulting fatality. The court needed to assess whether the sentence reflected the seriousness of the offence and the harm caused, and whether a higher penalty was warranted. The court also had to consider the principles of proportionality and deterrence in sentencing, along with the relevant statutory and case law guidelines.

Upon reviewing the circumstances of the case, the court concluded that the sentence was not manifestly inadequate. The court found that the sentencing judge had appropriately considered the factors relevant to the offence, including the respondent's culpability, the impact on the victim's family, and the need for deterrence and rehabilitation. The appellate court determined that the sentence imposed was proportionate to the offence and did not require alteration. Consequently, the appeal was dismissed, and the original sentence was upheld.

The final order of the court was that the appeal against the sentence was dismissed, meaning that the original sentence of five years imprisonment with eligibility for parole after two years, and a five-year disqualification from holding a driver’s license, remained in effect.

Orders

Orders of the court

Appeal dismissed

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Cook; ex parte A-G (Qld) [2007] QCA 100
PARTIES:	R v COOK, Andrew Raymond (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 5 of 2007 DC No 669 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Sentence by A-G (Qld)
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	30 March 2007
DELIVERED AT:	Brisbane
HEARING DATE:	20 March 2007
JUDGES:	Holmes JA, Cullinane and Jones JJ Judgment of the Court
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND ENQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN OFFICER – APPLICATIONS TO INCREASE SENTENCE – OTHER OFFENCES – where the respondent was convicted of dangerous operation of a motor vehicle causing death whilst adversely affected by alcohol – where the respondent was sentenced to five years imprisonment with eligibility for parole after two years and disqualified from holding a driver’s license for five years – whether sentence manifestly inadequate R v Evans [2005] QCA 455; CA No 238 of 2005, 8 December 2005, considered R v Hoad [2005] QCA 92; CA No 434 of 2004, 8 April 2005, considered R v Ibrahim [2003] QCA 386; CA No 162 of 2003, 3 September 2003, considered R v McKinnon [1999] QCA 75; CA No 356 of 1998, 17 March 1999, considered R v Saltmarsh [2007] QCA 25; CA No 267 of 2006, 6 February 2007, applied R v Stephenson [1999] QCA 519; CA No 295 of 1999, 17 December 1999, considered R v Wilde; ex parte A-G (Qld) [2002] QCA 501; CA No 283 of 2002, 19 November 2002, considered
COUNSEL:	M J Copley for the appellant J D Henry SC for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant O’Reilly Stevens Bovey Lawyers for the respondent