R v Cook

Case [2019] NSWDC 667 8 November 2019

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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 1999
Cases 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 270
Category: Sentence
Parties: Director of Public Prosecutions
Mr C Cook
Representation:
Counsel:
Mr M Clark (Crown)
Mr R Pontillo SC (Defence)
Solicitors:
Solicitor for Public Prosecutions
Marsdens Law Group

File Number(s): 2018/315016
Publication restriction: Nil

SENTENCING REMARKS

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.
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.

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.
The circumstances of aggravation which elevated these crimes beyond the offences…

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 [2019] NSWDC 667
Case: [2019] NSWDC 667
Decision Date: 08 November 2019

CaseChat Overview and Summary

In the matter of the Crown versus Cook, the appellant was convicted of aggravated dangerous driving occasioning the death of one person and grievous bodily harm to two others. The matter was heard by the High Court of Australia, which was tasked with considering the appropriate sentence for the appellant’s crimes. The central issues before the court involved the sentencing principles applicable to cases of aggravated dangerous driving and the relevance of the appellant's alleged social anxiety disorder and drug use in determining the appropriate penalty.

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

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 [2019] NSWDC 667

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 17 of 17 shown

Reddy v R
[2018] NSWCCA 212 Para 112

…g, there is scope to reduce the automatic period of 3 years in each case to 18 months and meet that sentencing objective. I agree. 7. Reddy v R [2018] NSWCCA 212 at [49]…
R v Shashati
[2018] NSWCCA 167 Para 110

…cases involving comparable features, including, without limitation, R v Smith, Jarad [2016] NSWCCA 75, Whybrow v R [2008] NSWCCA 270 and R v Shashati [2018] NSWCCA 167. Although no case can ever be the same, I have considered those cases, bearing in mind the importance of promoting general consistency in sentencing.…
R v Manok
[2017] NSWCCA 232 Para 102

…The significance of the need for general deterrence for the subject offences was more recently identified by Wilson J in R v Manok [2017] NSWCCA 232 at [79] where it was said that the risk that any driver, I interpolate of any particular age, could commit an offence resulting in the death or severe injury that all d…
Hilton v Legal Profession Admission Board
[2017] NSWCA 232

…ington (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…
Kerr v R
[2016] NSWCCA 218 Para 38

…: they are illustrative; not definitive and other circumstances of aggravation other than those identified may be taken into account[1] . 1. Kerr v R [2016] NSWCCA 218 at [96]…
R v Jarad Smith
[2016] NSWCCA 75 Para 110

…unsel for the offender brought to my attention a number of other cases involving comparable features, including, without limitation, R v Smith, Jarad [2016] NSWCCA 75, Whybrow v R [2008] NSWCCA 270 and R v Shashati [2018] NSWCCA 167. Although no case can ever be the same, I have considered those cases, bearing in m…
CLC v R
[2015] NSWCCA 248 Para 67

…es are serious, it has been said that the principles of retribution and general deterrence need to be reflected to a considerable degree ( R v Dutton [2015] NSWCCA 248 at [34]).…
R v Elkassir
[2013] NSWCCA 181

…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…
R v McKeown
[2013] NSWDC 22 Para 98

…The sentencing task that befalls me is unenviable since, as Haesler DCJ said in R v McKeown [2013] NSWDC 22 at [5] [4] in this type of case:…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 52

…The offender also relies upon the line of authority, including DPP v De La Rosa [2010] NSWCCA 194 at [177], which posits that where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. This also has implications for the…
DPP v Neethling
[2009] VSCA 116

…lation Cited: Crimes Act, 1999 Crimes (Sentencing Procedure) Act 1999 Cases 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…
Whybrow v R
[2008] NSWCCA 270 Para 110

…to my attention a number of other cases involving comparable features, including, without limitation, R v Smith, Jarad [2016] NSWCCA 75, Whybrow v R [2008] NSWCCA 270 and R v Shashati [2018] NSWCCA 167. Although no case can ever be the same, I have considered those cases, bearing in mind the importance of promoting…
R v Veatufunga
[2007] NSWCCA 54 Para 112

…As I noted earlier, disqualification automatically results from these offences. I was referred to the decision of Sully J in R v Veatufunga [2007] NSWCCA 54 at [40], where reference was made to the purpose of this order, being the protection of the public. The Court of Criminal Appeal has recently noted that reduct…
R v Whyte
[2006] NSWCCA 75 Para 5

…od for these offences. There is, however, a guideline judgment to which the Crown and the offender’s Senior Counsel made reference, being R v Whyte (2002) 55 NSWLR 252 which more directly affects sentencing for the conventional offences under s 52A, but which also guides the sentencing discretion for the aggravated of…
R v Khatter
[2000] NSWCCA 32 Para 47

…nised that there are shades and gradations of culpability in different instances of the offence along the continuum[2] . 2. R v Khatter [2000] NSWCCA 32 per Simpson J (in dissent) at [31], followed in R v Errington (2005) 157 A Crim R 553 per Mason P (with whom Grove and Buddin JJ agreed) at [27]…
R v Henry
[1999] NSWCA 111 Para 50

…In R v Henry (1999) 46 NSWLR 346 Spigelman CJ said at [197]-[201], in the (different) context of the offence of armed robbery:…
R v Errington
[1999] NSWCCA 18 Para 74

…t to do so. The authorities suggest that even if that fact could be established, it would not mitigate the offender’s conduct[3] . 3. R v Errington [1999] NSWCCA 18 at [27]-[28]…

Legislation cited in this decision · 1

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 75)

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 1999
Cases 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 270
Category:	Sentence
Parties:	Director of Public Prosecutions Mr C Cook
Representation:	Counsel: Mr M Clark (Crown) Mr R Pontillo SC (Defence) Solicitors: Solicitor for Public Prosecutions Marsdens Law Group
File Number(s):	2018/315016
Publication restriction:	Nil