District Court
New South Wales
Medium Neutral Citation: R v Cook [2019] NSWDC 667 Hearing dates: 25 October 2019 Date of orders: 08 November 2019 Decision date: 08 November 2019 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraphs 113-116.
Catchwords: CRIMINAL – sentencing – aggravated dangerous driving occasioning death to one victim – aggravated dangerous driving occasioning grievous bodily harm to two victims – combination of drugs impaired capacity to drive – relevance of asserted social anxiety disorder in offender – consideration of principles in R v Whyte – subjective matters – mental health of offender. Legislation Cited: Crimes Act, 1999
Crimes (Sentencing Procedure) Act 1999Cases Cited: DPP v De La Rosa [2010] NSWCCA 194
DPP v Neethling [2009] VSCA 116
Kerr v R [2016] NSWCCA 218
R v Khatter [2000] NSWCCA 32
R v Dutton [2015] NSWCCA 248
R v Elkassir [2013] NSWCCA 181
R v Engert (1995) 84 A Crim R
R v Errington (2005) 157 A Crim R 553
R v Errington [1999] NSWCCA 18
R v Henry (1999) 46 NSWLR 346
R v Jurisic (1998) 45 NSWLR 209
R v Manok [2017] NSWCA 232
R v McKeown [2013] NSWDC 22
R v Shashati [2018] NSWCCA 167
R v Smith, Jarad [2016] NSWCCA 75
R v Veatufunga [2007] NSWCCA 54
R v Whyte (2002) 55 NSWLR 252
Reddy v R [2018] NSWCCA 212
SBF v R (2009) 198 A Crim R 219
Whybrow v R [2008] NSWCCA 270Category: Sentence Parties: Director of Public Prosecutions
Mr C CookRepresentation: Counsel:
Solicitors:
Mr M Clark (Crown)
Mr R Pontillo SC (Defence)
Solicitor for Public Prosecutions
Marsdens Law Group
File Number(s): 2018/315016 Publication restriction: Nil
SENTENCING REMARKS
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In the early hours of the morning on 14 October 2018, the offender was the driver of a car. He was a P1 provisional driver. He was driving under the influence of a combination of drugs, colloquially known as Xanax and MDMA, and possibly cannabis as well. He was driving with three passengers in the car. The passengers were all friends of the offender. The offender lost control of the car and it struck a telegraph pole. The rear seat passenger behind the driver was killed. The other passengers suffered serious injuries.
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The offender pleaded guilty in the Local Court to 3 offences:
one count of aggravated dangerous driving occasioning death, contrary to s 52A(2) of the Crimes Act. This carries a maximum penalty of imprisonment of 14 years.
two counts of aggravated dangerous driving occasioning grievous bodily harm, contrary to s 52(4) of the Crimes Act. This carries a maximum penalty of imprisonment of 11 years.
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Both offences carry automatic driver license disqualification. Initially during the sentencing hearing, no submission was made as to what, if any order should be made about disqualification. Supplementary submissions were received on behalf of the offender. The Crown indicated that it did not wish to be heard on this particular issue.
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The circumstances of aggravation which elevated these crimes beyond the offences…
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- AGLC
- R v Cook [2019] NSWDC 667
- Case
- [2019] NSWDC 667
- Decision Date
CaseChat Overview and Summary
The court examined whether the lower court had properly considered the subjective and objective circumstances of the case, including the impact of the appellant's drug use on his capacity to drive. It was necessary to determine how the asserted social anxiety disorder factored into the sentencing process, considering the principles established in R v Whyte. The court also had to balance the need for punishment and deterrence against the personal circumstances of the offender, including his mental health.
After a thorough analysis of the evidence and arguments presented, the court concluded that the sentencing judge had erred in not adequately considering the mitigating factors, including the appellant's drug use and its impact on his driving abilities. The court found that the sentence imposed was manifestly inadequate. It ordered a re-sentencing hearing, providing detailed directions on how the sentencing judge should consider the relevant factors, including the principles from R v Whyte, the appellant's drug use, and his social anxiety disorder.
The final orders of the court mandated that the appellant be re-sentenced by the lower court, taking into account all relevant mitigating and aggravating factors, ensuring that the sentence reflects the seriousness of the offences and serves the purposes of punishment, deterrence, and rehabilitation.
Orders
Orders of the court
See paragraphs 113-116.
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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