R v Cook

Case [2022] NSWDC 157 13 May 2022

No judgment structure available for this case.

Type to search within this case.

District Court

New South Wales

Medium Neutral Citation: R v Cook [2022] NSWDC 157
Hearing dates: 26 April 2022
Date of orders: 13 May 2022
Decision date: 13 May 2022
Jurisdiction: Criminal
Before: Priestley SC, DCJ
Decision:
1 - The offender is convicted of each of the 7 charges set out in the above table.
2 - Taking into account the objective seriousness of each of the matters and the subjective matters detailed above, and taking into account the various Form 1 matters in relation to the particular offences to which they relate, and applying the 25% discount for the early plea of guilty, the offender is sentenced to an aggregate term of imprisonment of 14 years, to date from 1 November 2019, and with a non parole period of 9 years, to date from 1 November 2019 and expiring on 31 October 2028.

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Drugs Misuse and Trafficking Act
Crimes (High Risk Offenders) Act 2006 (NSW)

Cases Cited:
Muldrock (2011) 244 CLR 120
R v McLaren [2012] NSWCCA 284
Moananu [2022] NSWCCA 85
Bugmy (2013) 249 CLR 571
Millwood v R [2012] NSWCCA 2
De la Rosa [2010] NSWCCA 194
Nguyen[2005] NSWSC 600
R v Mohamad Ali [2005] NSWSC 334
R v Walsh [2004] NSWSC 111; (2004) 142 A Crim R 140
Smith v R [2020] NSWCCA 181
Woodbridge v R [2010] NSWCCA 185
Duncan v R [2012] NSWCCA 78
Crowley v R [2021] NSWCCA 45
Hall v R [2021] NSWCCA 220
R v Holder [1983] 3 NSWLR 245
Mill v The Queen [1988] HCA 70
Cahyadi v R [2007] NSWCCA 1

Category: Sentence
Parties: Regina (Crown)
Cook (Offender)
Representation: Swift Crown Prosecutor
Krisenthal Counsel for the Offender

File Number(s): 2019/00206586
Publication restriction: Unrestricted

Introduction: the offences, form 1 matters, maximum terms and standard non-parole periods

The facts

Objective seriousness of manslaughter and grievous bodily harm offences

Form 1 matters relating to manslaughter and grievous bodily harm

Drug offences

Aggravated break, enter and commit a serious indictable offence (larceny)

Firearm offences

Victim impact statements

Criminal history

The offender’s subjective case.

Sentencing considerations

Table of Indicative sentences

Totality

Determination of sentence

Orders

Introduction: the offences, form 1 matters, maximum terms and standard non parole periods

The offender, James Cook, appears for sentence in respect of 7 offences with a further 6 offences to be dealt with by way of the Form 1 procedure. The written submissions of the offender helpfully set out in a table each charge, its maximum penalty, whether or not there was a standard non-parole period and if so of what length, and the Form 1 matter attaching to the particular principal charge. That table is gratefully adopted and there has been added to it the date of the principal offences and Form 1 matters.

*Charge*	*Date*	*Max Pen*	*SNPP*	*Form 1*	*Date*
Manslaughter Daniel Elliott	9.12.18	25	No	52AB(1); fail to stop and render assistance	9.12.18
Manslaughter Jared Ward	9.12.18	25	No	52AB(1); fail to stop and render…

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 [2022] NSWDC 157
Case: [2022] NSWDC 157
Decision Date: 13 May 2022

CaseChat Overview and Summary

The case of R v Cook involved a defendant who was charged with multiple offences, including serious criminal activities. The dispute was heard in the relevant court, where the prosecution aimed to establish the guilt of the defendant beyond a reasonable doubt. The defendant pleaded guilty to all charges, leading to a focus on sentencing rather than guilt. The court was tasked with determining the appropriate penalty for the defendant's actions, considering the nature and severity of the crimes committed, as well as any mitigating or aggravating factors.

The primary legal issue before the court was the determination of an appropriate sentence for the defendant, given the multiple charges to which he had pleaded guilty. The court had to balance the objective seriousness of the offences, the defendant's early plea of guilty, and any relevant mitigating factors. Additionally, the court had to consider the statutory guidelines and precedents to ensure the sentence was both just and proportionate to the crimes committed.

In delivering the judgment, the court meticulously evaluated the severity of each offence, the defendant's early plea of guilty which warranted a 25% discount on the sentence, and various other factors that could impact the sentencing. The court noted the objective seriousness of the offences, which included substantial criminal activity, and also considered the subjective circumstances of the case, such as the defendant's background and any personal mitigating factors. After careful deliberation, the court imposed an aggregate sentence of 14 years imprisonment, with a non-parole period of 9 years, effective from 1 November 2019, ensuring that the sentence reflected both the gravity of the offences and the discount for the early plea of guilty.

The final orders of the court included the conviction of the defendant on all charges and the imposition of a specific sentence that took into account the various legal considerations and the statutory requirements. The sentence was set to commence from 1 November 2019, with a non-parole period expiring on 31 October 2028, providing a clear and definitive outcome for the case.

Orders

Orders of the court

1 - The offender is convicted of each of the 7 charges set out in the above table.

2 - Taking into account the objective seriousness of each of the matters and the subjective matters detailed above, and taking into account the various Form 1 matters in relation to the particular offences to which they relate, and applying the 25% discount for the early plea of guilty, the offender is sentenced to an aggregate term of imprisonment of 14 years, to date from 1 November 2019, and with a non parole period of 9 years, to date from 1 November 2019 and expiring on 31 October 2028.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Cook [2022] NSWDC 157

Most Recent Citation

R v Cook [2023] NSWCCA 9

Cases citing this decision · 2 of 2 shown

R v Cook
[2023] NSWCCA 9 Para 7

…(Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”) of 14 years imprisonment with a non parole period of 9 years imprisonment: R v Cook [2022] NSWDC 157.…
R v Williams
[2022] NSWDC 189 Para 114

…The concept of totality was relevant in a recent sentence I determined in a matter of R v Cook [2022] NSWDC 157. The following brief outline of totality is taken from that judgment. On the question of totality I proceed on the basis that the sentence should reflect the overall criminality of the offender in the way…

View all 2 citing cases →

Cases cited in this decision · 19 of 19 shown

Moananu v R
[2022] NSWCCA 85 Para 25

…The offender drew the Court’s attention to the recent case of Moananu [2022] NSWCCA 85. That case gives a number of “comparable” cases of this type. The facts of those cases illustrate the great range of factual circumstances in which this type of offending may occur. The case refers to occasions of offenders drivi…
Hall v R
[2021] NSWCCA 220 Para 104

…The principles regarding totality were reviewed by RA Hulme J in Hall v R [2021] NSWCCA 220 at [52] et seq. At [54] R v Holder [1983] 3 NSWLR 245 was referred to which makes plain that what is required is for a sentencing judge to evaluate the overall criminality involved in all of the offences and to adjust the agg…
Crowley v R
[2021] NSWCCA 45

…Walsh [2004] NSWSC 111 ; (2004) 142 A Crim R 140 Smith v R [2020] NSWCCA 181 Woodbridge v R [2010] NSWCCA 185 Duncan v R [2012] NSWCCA 78 Crowley v R [2021] NSWCCA 45 Hall v R [2021] NSWCCA 220 R v Holder [1983] 3 NSWLR 245 Mill v The Queen [1988] HCA 70 Cahyadi v R [2007] NSWCCA 1 Category: Sentence Parties: Regin…
Smith v The Queen
[2020] NSWCCA 181

…De la Rosa [2010] NSWCCA 194 Nguyen [2005] NSWSC 600 R v Mohamad Ali [2005] NSWSC 334 R v Walsh [2004] NSWSC 111 ; (2004) 142 A Crim R 140 Smith v R [2020] NSWCCA 181 Woodbridge v R [2010] NSWCCA 185 Duncan v R [2012] NSWCCA 78 Crowley v R [2021] NSWCCA 45 Hall v R [2021] NSWCCA 220 R v Holder [1983] 3 NSWLR 245 Mi…
R v Holder
[2019] SASCFC 73 Para 104

…The principles regarding totality were reviewed by RA Hulme J in Hall v R [2021] NSWCCA 220 at [52] et seq. At [54] R v Holder [1983] 3 NSWLR 245 was referred to which makes plain that what is required is for a sentencing judge to evaluate the overall criminality involved in all of the offences and to adjust t…
Bugmy v The Queen
[2013] HCA 37 Para 62

…In these circumstances the offender in oral submissions made reference to and relied on the principles of Bugmy (2013) 249 CLR 571 for leniency, a submission which is well founded and I accept and apply. The offender in both oral and written submissions properly called in aid the decision of Millwood v R [2012] NSWCC…
McLaren v R
[2012] NSWCCA 284 Para 5

…sonal to the offender can be taken into consideration such as for example mental health. See in this regard the decision of McCallum J in R v McLaren [2012] NSWCCA 284 at [29].…
Duncan v R
[2012] NSWCCA 78

…mad Ali [2005] NSWSC 334 R v Walsh [2004] NSWSC 111 ; (2004) 142 A Crim R 140 Smith v R [2020] NSWCCA 181 Woodbridge v R [2010] NSWCCA 185 Duncan v R [2012] NSWCCA 78 Crowley v R [2021] NSWCCA 45 Hall v R [2021] NSWCCA 220 R v Holder [1983] 3 NSWLR 245 Mill v The Queen [1988] HCA 70 Cahyadi v R [2007] NSWCCA 1 Cate…
R v Millwood
[2012] NSWCCA 2 Para 62

…n which is well founded and I accept and apply. The offender in both oral and written submissions properly called in aid the decision of Millwood v R [2012] NSWCCA 2 and in particular the oft cited passage in the judgment of Justice Simpson at [69]. The effect of that passage is that an offender who has the start…
Muldrock v The Queen
[2011] HCA 39 Para 4

…t as legislative guideposts to assist in arriving at the appropriate sentence. In relation to the standard non-parole periods I note that in Muldrock (2011) 244 CLR 120 at [29] the High Court made clear that it has application even when the offending is not considered to be in the middle of the range of seriousness a…
Woodbridge v R
[2010] NSWCCA 185

…yen [2005] NSWSC 600 R v Mohamad Ali [2005] NSWSC 334 R v Walsh [2004] NSWSC 111 ; (2004) 142 A Crim R 140 Smith v R [2020] NSWCCA 181 Woodbridge v R [2010] NSWCCA 185 Duncan v R [2012] NSWCCA 78 Crowley v R [2021] NSWCCA 45 Hall v R [2021] NSWCCA 220 R v Holder [1983] 3 NSWLR 245 Mill v The Queen [1988] HCA 70 Cahy…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194

…: Muldrock (2011) 244 CLR 120 R v McLaren [2012] NSWCCA 284 Moananu [2022] NSWCCA 85 Bugmy (2013) 249 CLR 571 Millwood v R [2012] NSWCCA 2 De la Rosa [2010] NSWCCA 194 Nguyen [2005] NSWSC 600 R v Mohamad Ali [2005] NSWSC 334 R v Walsh [2004] NSWSC 111 ; (2004) 142 A Crim R 140 Smith v R [2020] NSWCCA 181 Woodbridge…
Cahyadi v R
[2007] NSWCCA 1 Para 106

…In regard to this separateness of the offences, I note that at [60] of Hall his Honour referred to the well-known passage of Cahyadi v R [2007] NSWCCA 1, where the question was posed as being whether the sentence for one offence can comprehend and reflect the criminality for another offence. Importantly in the pre…
R v MAK
[2006] NSWCCA 381 Para 103

…question of totality I proceed on the basis that the sentence should reflect the overall criminality of the offender in the way discussed in R v MAK [2006] NSWCCA 381 at [15]-[18]. Those passages make the point that the aggregation of all the sentences is “a just and appropriate measure of the total criminality inv…
R v Van Xuan Nguyen
[2005] NSWSC 600 Para 87

…umstances of the offending can be found in the broadest expanse of possibilities. I note the following statements of Johnson J in R v Van Xuan Nguyen [2005] NSWSC 600 at [21] –[24]:…
R v Mohamad Ali
[2005] NSWSC 334

…4 Moananu [2022] NSWCCA 85 Bugmy (2013) 249 CLR 571 Millwood v R [2012] NSWCCA 2 De la Rosa [2010] NSWCCA 194 Nguyen [2005] NSWSC 600 R v Mohamad Ali [2005] NSWSC 334 R v Walsh [2004] NSWSC 111 ; (2004) 142 A Crim R 140 Smith v R [2020] NSWCCA 181 Woodbridge v R [2010] NSWCCA 185 Duncan v R [2012] NSWCCA 78 Crowley…
R v Walsh
[2004] NSWSC 111

…Bugmy (2013) 249 CLR 571 Millwood v R [2012] NSWCCA 2 De la Rosa [2010] NSWCCA 194 Nguyen [2005] NSWSC 600 R v Mohamad Ali [2005] NSWSC 334 R v Walsh [2004] NSWSC 111 ; (2004) 142 A Crim R 140 Smith v R [2020] NSWCCA 181 Woodbridge v R [2010] NSWCCA 185 Duncan v R [2012] NSWCCA 78 Crowley v R [2021] NSWCCA 45 Hall…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 2

…when sentencing for the primary offence; see attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ.…
Mill v The Queen
[1988] HCA 70 Para 104

…between the totality of the criminality and the totality of the sentences”. Put perhaps even more simply his Honour referred to Mill v The Queen [1988] HCA 70 where it was said the Court “must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences”.…

Legislation cited in this decision · 3

Crimes (High Risk Offenders) Act 2006 (NSW)
1 mention (from Para 113)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 2)
Crimes Act 1900 (ACT)
1 mention

Medium Neutral Citation:	R v Cook [2022] NSWDC 157
Hearing dates:	26 April 2022
Date of orders:	13 May 2022
Decision date:	13 May 2022
Jurisdiction:	Criminal
Before:	Priestley SC, DCJ
Decision:	1 - The offender is convicted of each of the 7 charges set out in the above table. 2 - Taking into account the objective seriousness of each of the matters and the subjective matters detailed above, and taking into account the various Form 1 matters in relation to the particular offences to which they relate, and applying the 25% discount for the early plea of guilty, the offender is sentenced to an aggregate term of imprisonment of 14 years, to date from 1 November 2019, and with a non parole period of 9 years, to date from 1 November 2019 and expiring on 31 October 2028.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Drugs Misuse and Trafficking Act Crimes (High Risk Offenders) Act 2006 (NSW)
Cases Cited:	Muldrock (2011) 244 CLR 120 R v McLaren [2012] NSWCCA 284 Moananu [2022] NSWCCA 85 Bugmy (2013) 249 CLR 571 Millwood v R [2012] NSWCCA 2 De la Rosa [2010] NSWCCA 194 Nguyen[2005] NSWSC 600 R v Mohamad Ali [2005] NSWSC 334 R v Walsh [2004] NSWSC 111; (2004) 142 A Crim R 140 Smith v R [2020] NSWCCA 181 Woodbridge v R [2010] NSWCCA 185 Duncan v R [2012] NSWCCA 78 Crowley v R [2021] NSWCCA 45 Hall v R [2021] NSWCCA 220 R v Holder [1983] 3 NSWLR 245 Mill v The Queen [1988] HCA 70 Cahyadi v R [2007] NSWCCA 1
Category:	Sentence
Parties:	Regina (Crown) Cook (Offender)
Representation:	Swift Crown Prosecutor Krisenthal Counsel for the Offender
File Number(s):	2019/00206586
Publication restriction:	Unrestricted