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

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
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.
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.
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…

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] SADC 129
Case: [2018] SADC 129
Decision Date: 7 December 2018

CaseChat Overview and Summary

The case of R v Cook involved the applicant, John Aaron Cook, who applied under section 47(3) of the Sentencing Act, 2017, for an order to fix a non-parole period concerning a sentence of imprisonment of 7 years and 3 months with a non-parole period of 4 years and 9 months, imposed on 13 September 2010 by the District Court of South Australia. The applicant had been released on parole on 17 September 2013, but absconded to Queensland. The Parole Board issued a warrant for his apprehension on 19 October 2013, and he was arrested in Queensland on 25 October 2013 under an alias. The applicant was sentenced in the District Court of Queensland on 24 October 2014 for fresh offending, receiving a total head sentence of 5 years imprisonment with provision to apply for parole from 23 February 2015, which he did not do. After serving his sentence in Queensland, the applicant was extradited to South Australia on 4 June 2018, and on 5 September 2018, the balance of his parole in South Australia of 2 years, 2 months, and 30 days was cancelled.

The legal issues the court had to address included whether it was appropriate to set a new non-parole period given the applicant's extensive criminal history and the gravity of the conduct that led to the cancellation of his parole. The court also considered the applicant's past history of compliance with court orders and obligations, as well as the Parole Board's report that indicated the applicant was unsuitable for parole. The applicant argued that after serving a significant period of imprisonment, it would be in the interests of both himself and the community for some support to assist him in re-establishing himself upon release. The Director of Public Prosecutions opposed the application, highlighting the applicant's lengthy criminal history, the similarity of the interstate offending to his previous offences, and the Parole Board's assessment that the applicant was not suitable for parole.

The court, in declining to fix a new non-parole period, noted the significant breaching conduct by the applicant, who was uncooperative and dishonest with the Parole Board and Corrections shortly after his release. The court was also concerned that the applicant had committed similar offences in Queensland shortly after absconding. The court shared the Parole Board's concerns that the applicant was not minded to change his behaviour and would not benefit from the supervision process. Consequently, the court dismissed the application and did not set a new non-parole period.

Orders