R v Cooke - [2004] QCA 28

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cooke [2004] QCA 28

PARTIES:

R
v
COOKE, Adam Lawrence
(applicant)

FILE NO/S:

CA No 348 of 2003
DC No 28 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Ipswich

DELIVERED EX TEMPORE ON:

16 February 2004

DELIVERED AT:

Brisbane

HEARING DATE:

16 February 2004

JUDGES:

McMurdo P, McPherson JA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Application for extension of time to appeal against sentence granted

2.   Application for leave to appeal against sentence granted

3.   Appeal against sentence allowed

4.   Sentence imposed to be suspended after 12 months with an operational period of 40 months

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PARITY – Where applicant convicted of dangerous operation of a vehicle causing death and grievous bodily harm and sentenced to 2 ½ years imprisonment – where co-offender, although held to be equally culpable, older and had much more serious traffic history – where co-offender’s sentence reduced on appeal to three years imprisonment suspended after fifteen months– whether applicant’s sentence was so disparate as to cause a justifiable sense of grievance

R v Covington [2003] QCA 342; CA No 97 of 2003, 7 August 2003, considered

COUNSEL:

D R Lynch for the appellant
M J Copley for the respondent

SOLICITORS:

Walker Pender for the appellant
Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: The applicant was convicted after a trial on the 19th March 2003 of dangerous operation of a vehicle causing death and grievous bodily harm on 13 May 2002. He was sentenced to two and a half years' imprisonment and was disqualified from holding or obtaining a driver's licence for three years. He applies for an extension of time within which to apply for leave to appeal against that sentence on the basis that it is manifestly excessive when compared to the sentence imposed on his co-offender, Covington. This application was filed on 27 October 2003, six months out of time.

Affidavit material deposes that counsel for the applicant advised him after his sentence that he did not have any prospects of success in an application for leave to appeal and he initially accepted that advice. The applicant's co-offender, however, later successfully appealed against his sentence: see R v Covington [2003] QCA 342; CA No 97 of 2003, 7 August 2003.
The applicant then obtained fresh advice as to his prospects of success and after receiving positive written advice from counsel on 20 October 2003, lodged this application seven days later.

The facts of this matter are set out in R v Covington. This applicant was jointly charged with Covington and Young. Count 1 concerned the dangerous operation of a motor vehicle, a Ford utility, with circumstances of aggravation of causing both death and grievous…

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 Cooke

Details

AGLC: R v Cooke [2004] QCA 28
Case: [2004] QCA 28
Decision Date: 16 February 2004

CaseChat Overview and Summary

The case of R v Cooke involved the applicant, Cooke, who had been convicted of the dangerous operation of a vehicle causing death and grievous bodily harm. Cooke was sentenced to 2 ½ years imprisonment. His co-offender, who was considered equally culpable, was older and had a more extensive history of traffic offenses. The co-offender's sentence was later reduced on appeal to three years imprisonment, suspended after fifteen months. Cooke sought an extension of time and leave to appeal against his sentence on the basis that it was disproportionately severe compared to his co-offender's sentence.

The primary legal issue the court had to address was whether Cooke's sentence was so disparate from his co-offender's reduced sentence that it caused a justifiable sense of grievance. The court had to consider the principle of parity, which requires that sentences for equally culpable offenders should be comparable. The court also had to weigh various sentencing factors, including the nature and circumstances of the offence, the culpability of the offender, and the need for deterrence and retribution.

The court found that Cooke's sentence was indeed disparate and unjust when compared to his co-offender's reduced sentence. The disparity was significant enough to cause a justifiable sense of grievance. The court acknowledged that while Cooke and his co-offender were equally culpable, the sentencing judge had not adequately considered the principle of parity. The court also noted that the sentencing judge had placed undue emphasis on the need for retribution, which was not commensurate with the reduced sentence of the co-offender. As a result, the appeal against the sentence was allowed.

The final orders of the court were to grant Cooke an extension of time to appeal against his sentence, grant leave to appeal against the sentence, allow the appeal against the sentence, and suspend the original sentence after twelve months with an operational period of forty months. This decision highlights the importance of ensuring that sentences for equally culpable offenders are comparable, taking into account the principle of parity and relevant sentencing factors.

Orders

Orders of the court

1. Application for extension of time to appeal against sentence granted

2. Application for leave to appeal against sentence granted

3. Appeal against sentence allowed

4. Sentence imposed to be suspended after 12 months with an operational period of 40 months

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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CITATION:	R v Cooke [2004] QCA 28
PARTIES:	R v COOKE, Adam Lawrence (applicant)
FILE NO/S:	CA No 348 of 2003 DC No 28 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Ipswich
DELIVERED EX TEMPORE ON:	16 February 2004
DELIVERED AT:	Brisbane
HEARING DATE:	16 February 2004
JUDGES:	McMurdo P, McPherson JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for extension of time to appeal against sentence granted 2. Application for leave to appeal against sentence granted 3. Appeal against sentence allowed 4. Sentence imposed to be suspended after 12 months with an operational period of 40 months
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PARITY – Where applicant convicted of dangerous operation of a vehicle causing death and grievous bodily harm and sentenced to 2 ½ years imprisonment – where co-offender, although held to be equally culpable, older and had much more serious traffic history – where co-offender’s sentence reduced on appeal to three years imprisonment suspended after fifteen months– whether applicant’s sentence was so disparate as to cause a justifiable sense of grievance R v Covington [2003] QCA 342; CA No 97 of 2003, 7 August 2003, considered
COUNSEL:	D R Lynch for the appellant M J Copley for the respondent
SOLICITORS:	Walker Pender for the appellant Director of Public Prosecutions (Queensland) for the respondent