R v Cook (No 2)

Case [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…

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R v Cook (No 2) [2024] ACTSC 27
Case
[2024] ACTSC 27
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CaseChat Overview and Summary

The case of R v Cook (No 2) involved the defendant, Cook, who was convicted of aggravated burglary and theft. The matter was brought before the Court of Appeal, which was required to review and potentially revise the sentence imposed on Cook. The appeal centred on the nature and appropriateness of the sentence, particularly in light of a Drug and Alcohol Treatment Order that was initially imposed and subsequently modified.

The central legal issues before the court involved the adequacy of the original sentence and whether the modification of the Drug and Alcohol Treatment Order, including the cancellation of the treatment and supervision part, was justified. The court was tasked with determining whether the revised sentence was appropriate in light of the defendant's circumstances and whether it aligned with the principles of rehabilitation and proportionality.

The Court of Appeal examined the reasons for the original sentence and the subsequent modifications, considering the defendant's personal circumstances, including his history of drug and alcohol abuse and the impact on his offending behaviour. The court found that the initial sentence, which included a suspended sentence and a Drug and Alcohol Treatment Order, was not sufficiently punitive or rehabilitative. After reviewing the evidence and submissions, the court decided that the treatment and supervision part of the order should be cancelled due to unsatisfactory circumstances. Consequently, the court imposed a new sentence, which was deemed to be both appropriate and rehabilitative, taking into account the defendant's need for treatment and supervision.

The final orders of the court included the cancellation of the treatment and supervision part of the Drug and Alcohol Treatment Order and the imposition of a new sentence. The court concluded that this revised sentence would better serve the objectives of punishment, deterrence, and rehabilitation, while also considering the defendant's personal circumstances and the nature of his offending behaviour.

Orders

Orders of the court

See [65].

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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