R v Cook

[2018] SADC 129

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v COOK

[2018] SADC 129

Decision of Her Honour Judge McIntyre

7 December 2018

CRIMINAL LAW

The applicant applied under s.47(3) of the Sentencing Act, 2017 (“the Act”) for an order fixing a non-parole period in respect of a sentence of imprisonment of 7 years and 3 months with a non-parole period of 4 years and 9 months imposed in the District Court of South Australia on 13 September 2010.

The applicant was released on parole on 17 September 2013 but absconded to Queensland.  The Parole Board issued a warrant to apprehend the applicant on 19 October 2013.  On 25 October 2013 the applicant was arrested in Queensland under the alias of William Keith Charlton.  The arrest occurred as a result of a number of instances of fraud and attempted fraud occurring between 19 October 2013 and 25 October 2013.  The applicant was sentenced for those matters and some outstanding prior offending dating back to 2004 in the District Court of Queensland sitting at Townsville on Friday 24 October 2014.  The applicant received a total head sentence of 5 years imprisonment with provision to apply for parole from 23 February 2015.  He did not apply for parole.  On 4 June 2018 the applicant was extradited to the State of South Australia having served the sentence imposed on him in Queensland.  On 5 September 2018 the balance of the applicant’s parole in South Australia of 2 years 2 months and 30 days was cancelled. 

Held:

1. It is not appropriate to set a new non-parole period.

2. Application dismissed. 

Criminal Law Sentencing Act s47, referred to.
R v Roberts (2016) 125 SASR 40, considered.

R v COOK
[2018] SADC 129

1. John Aaron Cook (“the applicant”) applies under s.47(3) of the Sentencing Act, 2017 (“the Act”) for an order fixing a non-parole period in respect of a sentence of imprisonment imposed in the District Court of South Australia on 13 September 2010.  For the reasons I now deliver I decline to set a non-parole period. 

   Background

2. The applicant has a lengthy criminal history, indeed he has been described in previous sentencing remarks as “a career criminal”.  These offences are largely, but not exclusively, offences of dishonesty.

3. On 13 September 2010 the applicant was sentenced in this court for 13 counts of deception and one count of dishonesty.  The offending occurred during two periods.  In the first period from 19 May 2007 until 13 August 2007 the accused committed eleven counts of deception and one count of theft.  He was arrested for those offences and released on home detention bail.  He absconded from home detention bail and committed two further offences of deception between 28 December and 30 December 2007. 

4. The applicant was sentenced to imprisonment for 7 years and 3 months with a non-parole period of 4 years and 9 months.  The applicant was released on parole on 17 September 2013 having served just over 5 years of that sentence.  Shortly after his release the Report from the Chair of the Parole Board dated 8 November 2018 indicates that the applicant began engaging in dishonest behaviour including not keeping the Parole Board informed of his current address.  He was further uncooperative with his community corrections officer and the Parole Board.  The details of that are set out in the Parole Board Report.  As a result of the issues referred to in the Report the Parole Board issued a warrant to apprehend the applicant on 19 October 2013.

5. On 25 October 2013 the applicant was arrested in Queensland under the alias of William Keith Charlton.  The arrest occurred as a result of a number of instances of fraud and attempted fraud occurring between 19 October 2013 and 25 October 2013.  The applicant was sentenced for those matters and some outstanding prior offending dating back to 2004 in the District Court of Queensland sitting at Townsville on Friday 24 October 2014.  The applicant received a total head sentence of 5 years imprisonment with provision to apply for parole from 23 February 2015.  He did not apply for parole. 

6. On 4 June 2018 the applicant was extradited to the State of South Australia having served the sentence imposed on him in Queensland. 

7. On 5 September 2018 the balance of the applicant’s parole in South Australia of 2 years 2 months and 30 days was cancelled.  This means that the applicant’s sentence will not expire until 3 September 2020.  Accordingly it can be seen that except for a period of approximately 5 weeks between 17 September 2013 and 25 October 2013 the applicant has been in custody serving sentences of imprisonment for the last 10 years in South Australia and Queensland. 

   Application & Submissions

8. In his application dated 25 September 2018 the applicant set out a number of relevant matters.  One of these was as follows:

   Following the applicant’s release on parole on 17 September 2013, the applicant travelled from South Australia to Queensland in late October 2013 and surrendered himself to the Queensland Police in relation to outstanding criminal charges he was facing in that State. 

9. That contention was withdrawn in the outline of argument filed on behalf of the applicant on 27 November 2018.  This was a proper concession to make because patently this contention is not correct given the applicant’s arrest on fresh offending.  It appears that this concession was made following disclosure by the prosecution of the Queensland sentencing remarks. 

10. The applicant concedes that his applicant’s behaviour during his earlier period on parole was unsatisfactory however he has now served a further period of 5 years imprisonment.  It is submitted that after such a lengthy period of imprisonment it is in the interests of both the applicant and the community that, upon his release, provision be made for some support to assist him in re-establishing himself in the community rather than being released at the end of his sentence. 

11. He is now aged 65.  His health has deteriorated.  He is keen to avoid spending further time in jail.  His cousin is willing to provide accommodation.  In addition to supervision by the Parole Board and Corrections, the applicant would have assistance available to him from the SYC Navigator Service. 

12. The application is opposed by the Director of Public Prosecutions on the basis of the applicant’s extensive criminal history dating back many years.  He has been subject to lengthy sentences for similar offending.  He has breached Court orders and parole in the past.  The Director points to the similarity of the offending for which the applicant was sentenced in this court in 2010 and the interstate offending that occurred a little over a month after the applicant was released on parole.  It is said that the offending in Queensland was objectively serious. 

13. The Director further relies upon the report of the Parole Board and in particular the final paragraph of that report which reads as follows:

    In our respectful view, Mr Cook is not suitable for parole.  He has a history of deception, which was evident very early in his last parole.  He would be extremely difficult to supervise and would gain no benefit from the supervision process unless and until he is minded to effect a change in attitude.  He would certainly benefit from some intervention in prison, for which he would need to be assessed.  Whether or not he would be suitable for the Making Changes Program, is difficult to predict.

    Discussion

14. Section 47(5)(e) of the Act sets out the circumstances in which a court may decline to fix a non-parole period. I have also had regard to the decision in R v Roberts[1].  The relevant factors for fixing a new non-parole period are similar to those that apply to the setting of a non-parole period but include an additional feature; namely that the court should also have regard to the gravity of the conduct that resulted in the cancellation of the parole. 

    [1] (2016) 125 SASR 40

15. In this case the breaching conduct is significant.  The applicant breached his parole shortly after it was granted by being uncooperative and dishonest in his dealings with the Parole Board and Corrections.  He then left the jurisdiction and went to Queensland where he committed a number of offences of a similar type to those that led to the imposition of the sentence in this State. 

16. I am also concerned that, even in this application, the applicant appears to have been willing to attempt to mislead the Court as to the circumstances in which he went to Queensland and the matters for which he was sentenced.  The application indicated that the applicant was sentenced to imprisonment in Queensland but did not indicate that this included fresh offending.  In view of the paragraph that preceded it, as quoted above, this was apt to mislead the reader into a view that the sentence related to historical matters.  

17. The applicant’s past history of compliance with court orders and obligations does not inspire confidence.  The offending for which he was sentenced in this court in 2010 occurred partly whilst he was on home detention bail.  There is a past breach of probation. 

18. Whilst there is some merit to the submission that parole would assist the applicant by providing him with some support to re-establish himself in the community on his release I share the concerns expressed by the Chair of the Parole Board in her report.  I have no confidence that the accused is minded to change his behaviour and in those circumstances I do not consider that he would benefit from the supervision process.  In all of the circumstances I decline to fix a non-parole period.