R v Cooney

Case [2019] QCA 166

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cooney [2019] QCA 166

PARTIES:

R
v
COONEY, Justin James
(applicant)

FILE NO/S:

CA No 15 of 2019
DC No 2699 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 21 December 2018 (Allen QC DCJ)

DELIVERED ON:

27 August 2019

DELIVERED AT:

Brisbane

HEARING DATE:

31 July 2019

JUDGES:

Gotterson JA and Henry and Bradley JJ

ORDER:

1.   Application for leave to appeal sentence granted.

2.   Appeal allowed.

3.   The sentences imposed below are varied only to the extent of reducing the concurrent head sentences imposed:

(i)       on count 1 to 12 months imprisonment;

(ii)      on count 2 to six months imprisonment; and

(iii)     on count 3 to six months imprisonment.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to attempted unlawful entry of a vehicle with intent to commit an indictable offence, with violence, and two counts of serious assault of police while acting in execution of duty – where the applicant received a head sentence of two years imprisonment for one count of serious assault, and 18 months for each of the other counts – where the applicant was delusional as a result of voluntary intoxication and believed the police were in fact Hells Angels – where the offending against police consisted of swinging blows that did not make contact – whether the sentence was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant had sustained lacerations and was bleeding when police attempted to restrain him – where the applicant’s blood was inadvertently deposited on the cut hand of a police officer – where there was no circumstance of aggravation – where a victim impact statement from the complainant referred to the psychological stress of fear of HIV contamination – where the learned sentencing judge had regard to the emotional harm caused to the complainant – whether the learned sentencing judge erred in considering an uncharged circumstance of aggravation in determining sentence – whether the emotional harm was relevant as harm suffered by a victim because a crime was committed against that person

Criminal Code (Qld), s 340, s 564
Penalties and Sentences Act 1992 (Qld), s 9(2)(c), s 179K, s 189I
Victims of Crime Assistance Act 2009 (Qld), s 5

Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17, applied
R v Brown[2013] QCA 185, discussed
R v D [1996] 1 Qd R 363; [1995] QCA 329, applied
R v King (2008) 179 A Crim R 600; [2008] QCA 1, discussed
R v Mathieson[2005] QCA 313, discussed
R v Murray (2014) 245 A Crim R 37; [2014] QCA 250, discussed
R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, applied

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Details
AGLC
R v Cooney [2019] QCA 166
Case
[2019] QCA 166
Decision Date

CaseChat Overview and Summary

The case of R v Cooney involved the appellant, who had pleaded guilty to attempted unlawful entry of a vehicle with intent to commit an indictable offence, with violence, and two counts of serious assault of police officers while acting in the execution of their duty. The court was tasked with determining the appropriate sentence for these offences. The appellant was sentenced to two years imprisonment for the first count of serious assault and 18 months imprisonment for each of the other two counts, with all sentences to be served concurrently. The appellant was delusional due to voluntary intoxication and believed the police were members of the Hells Angels, and his assaults on the police officers involved swinging blows that did not make contact. The appellant appealed the sentence, arguing that it was manifestly excessive.

The primary legal issue before the court was whether the sentence imposed by the learned sentencing judge was manifestly excessive, taking into account the appellant's state of mind and the nature of the assaults. The court also considered whether the learned sentencing judge erred in considering an uncharged circumstance of aggravation in determining the sentence, specifically the emotional harm caused to the complainant due to the appellant's blood being inadvertently deposited on the police officer's cut hand, leading to fear of HIV contamination. The court needed to decide if this emotional harm was relevant as harm suffered by a victim because a crime was committed against that person.

The court determined that the sentence imposed was manifestly excessive due to the appellant's delusional state and the non-contact nature of the assaults. The court found that the learned sentencing judge had erred in considering the uncharged circumstance of aggravation, as it was not a circumstance that had been pleaded or proved. The emotional harm suffered by the complainant was not relevant as harm suffered by a victim because a crime was committed against that person. As a result, the court allowed the appeal and varied the sentences to reduce the concurrent head sentences imposed on each count.

The orders of the court were that the application for leave to appeal the sentence was granted, the appeal was allowed, and the sentences imposed were varied to reduce the concurrent head sentences to 12 months imprisonment for the first count, and six months imprisonment for each of the other two counts.

Orders

Orders of the court

1. Application for leave to appeal sentence granted.

2. Appeal allowed.

3. The sentences imposed below are varied only to the extent of reducing the concurrent head sentences imposed:

(i) on count 1 to 12 months imprisonment;

(ii) on count 2 to six months imprisonment; and

(iii) on count 3 to six months imprisonment.

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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