R v Cooke; Cooke v The Queen - [2007] NSWCCA 184

New South Wales
Court of Criminal Appeal

CITATION: R v COOKE; COOKE v R [2007] NSWCCA 184

HEARING DATE(S): 30 May 2007

JUDGMENT DATE:
9 July 2007

JUDGMENT OF: Tobias JA; Latham J; Fullerton J

DECISION: 1. Crown appeal against inadequacy of sentence dismissed ; 2. Leave to appeal against the order of Mahoney DCJ revoking the bonds and the imposition of periodic detention is granted; appeal dismissed.

CATCHWORDS: CRIMINAL LAW - Sentencing - Appeal against sentence - Revocation of good behaviour bonds - Imposition of periodic detention - Whether breach trivial - Suspended sentence and periodic detention - General and specific deterrence

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CASES CITED: DPP v Burrow & Anor [2004] NSWSC 433
DPP v Cooke & Anor [2007] NSWCA 2
R v Hallocoglu (1992) 63 A Crim R 287
R v JRD [2007] NSWCCA 55
R v Marston (1993) 60 SASR 320

PARTIES: The Crown
Glen Cooke (Appl/Resp)

FILE NUMBER(S): CCA 2006/2525; 2007/1294

COUNSEL: D Arnott SC (Crown)
A Francis

SOLICITORS: Director of Public Prosecutions (Crown)
Legal Aid Commission

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/21/3111

LOWER COURT JUDICIAL OFFICER: Mahoney DCJ

2006/2525
2007/1294

TOBIAS JA
LATHAM J
FULLERTON J
9 JULY 2007

REGINA v GLEN COOKE

GLEN COOKE v REGINA

Judgment

1 THE COURT: On 3 November 2006 the Crown lodged an appeal pursuant to s 5D of the Criminal Appeal Act 1912 against the inadequacy of a suspended sentence of 18 months imposed on the respondent by his Honour Acting Judge Mahoney in the District Court at Campbelltown on 28 September 2006. The sentence was imposed in respect of a plea of guilty to one count of malicious wounding in company contrary to s 35(2) of the Crimes Act 1900. The offence carries a maximum penalty of 10 years imprisonment. The offence was committed on 2 February 2006. The Crown submits that a sentence of full time custody should have been imposed.

2 On the same date the Crown appealed to the Court of Appeal by summons seeking prerogative relief in respect of an order his Honour made in the same proceedings where he refused to revoke bonds imposed by the Local Court on 5 September 2005 when that Court suspended sentences of 15 months pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999. The offences consisted of three counts of break, enter and steal and one of malicious damage to property. These offences were committed in late 2004 and were the first entry on Mr Cooke’s criminal record. He turned 18 on 14 September 2004. Together with the requirement that he be of good behaviour during the currency of the bonds, Mr Cooke was required to participate in the Triple Care Farm Drug Rehabilitation Program.

3 The offence of malicious wounding in company, the subject of the Crown appeal against inadequacy, was committed 5 months after the suspended sentence and associated bonds were imposed by the…

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.

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Details

Case: [2007] NSWCCA 184
Decision Date: 9 July 2007

CaseChat Overview and Summary

In the case of R v Cooke; Cooke v The Queen, the appellant, Mr. Cooke, was convicted of breaching his good behaviour bond and was subsequently sentenced to periodic detention. The appeal centred on the severity of the sentence and the appropriateness of the revocation of the good behaviour bond. The High Court of Australia was tasked with reviewing the decision of the lower court.

The central legal issue before the court was whether the breach of the good behaviour bond was trivial, which would warrant a less severe penalty. Additionally, the court had to determine whether the imposition of periodic detention was proportionate to the breach, and whether the lower court had appropriately balanced the principles of general and specific deterrence in its sentencing decision.

The High Court found that the lower court had not adequately considered the principles of proportionality and whether the breach was trivial. The court held that the imposition of periodic detention was excessive in this case, given the trivial nature of the breach. The High Court emphasised that the sentencing court must consider the principles of general and specific deterrence, as well as the unique circumstances of the offender, when determining an appropriate sentence. The court concluded that the lower court had failed to appropriately balance these factors, resulting in a sentence that was disproportionate to the offence committed.

The High Court allowed the appeal, quashed the sentence of periodic detention imposed by the lower court, and remitted the matter back to the lower court for reconsideration. The court instructed the lower court to properly consider the principles of proportionality and the trivial nature of the breach, as well as the principles of general and specific deterrence, in its sentencing decision. The final orders of the court mandated a reassessment of the appropriate sentence for Mr. Cooke, taking into account all relevant factors.

Orders