R v Cook (No 2)

[2024] ACTSC 27

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Cook (No 2)

Citation: 

[2024] ACTSC 27

Hearing Date: 

5 February 2024

Decision Date: 

13 February 2024

Before:

Christensen AJ

Decision: 

See [65].

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – theft – Drug and Alcohol Treatment Order – s 80ZH review – treatment and supervision part cancelled – unsatisfactory circumstances – s 80ZE imposition or resentence – suspended sentence – rehabilitation

Legislation Cited: 

Crimes (Sentencing) Act 2005 ss 80W, 80ZD, 80ZE, 80ZH,

Criminal Code 2002 (ACT) ss 308, 312

Cases Cited: 

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

R v BC [2022] ACTCA 19

R v Cook [2022] ACTSC 381

R v Verdins [2007] VSCA 102; 16 VR 269

R v West (No 2) [2024] ACTSC 5

Parties: 

Director of Public Prosecutions ( Crown)

Shane John Allen Cook ( Offender)

Representation: 

Counsel

T Cobden ( Crown)

C Duffy ( Offender)

Solicitors

ACT Director of Public Prosecution ( Crown)

Legal Aid ACT ( Offender)

File Number:

SCC 82 of 2021

CHRISTENSEN AJ: 

Introduction

1․Shane Cook sought to address his long-standing substance abuse disorder through a Drug and Alcohol Treatment Order (Treatment Order). Mr Cook had some positive progress under the Treatment Order for a time. This did not last, however, and Mr Cook absconded and now comes before the Court to have finalised the consequences of his offending behaviour in October 2020.

2․The finalisation of the proceedings will see Mr Cook be able to move on from this period of his life, with a view to being the father and partner that he aspires to be.

Background

3․The review under s 80ZH of the Crimes (Sentencing) Act 2005 (Sentencing Act) commenced on 13 April 2023, following an application by the prosecution for cancellation of the Treatment Order. A decision was made to cancel the Treatment Order pursuant to s 80ZE(1) of the Sentencing Act. The process of review continues with the decision now to be made as to the orders following cancellation.

4․Mr Cook was originally sentenced on 17 March 2022 for two offences of aggravated burglary, three offences of theft, driving offences, failing to appear at court, and minor drug offences: R v Cook [2022] ACTSC 381 (R v Cook). The total period of imprisonment was for two years.

5․A Treatment Order was made for a period of 14 months for both primary and associated offences: R v Cook at [126], being the offences of aggravated burglary and theft. This meant that the custodial part of the Treatment Order was suspended for a period of 14 months, from 17 March 2022 until 16 May 2023.

Imposition or resentence

6․A preliminary decision to be made following cancellation is whether the suspended portion of the original sentence is imposed, or whether Mr Cook is resentenced.

7․It was submitted on behalf of Mr Cook that the Court would resentence him. The…