R v Cowling

Case [2019] ACTSC 138


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Cowling

Citation:

[2019] ACTSC 138

Hearing Dates:

29 January, 18 April 2019

DecisionDate:

23 May 2019

Before:

Loukas-Karlsson J

Decision:

See [114]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Unlawful Confinement – Chokes, Suffocates or Strangles – Common Assault  - Rehabilitation - Intensive Corrections Order

Legislation Cited:

Crimes Act 1900 (ACT) ss 26, 28(2)(a), 34
Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 11(3), 33(1)(t), 35(2)(c)

Cases Cited:

Alvares v R; Farache v R [2011] NSWCCA 33; 209 A Crim R 297
Butters v R [2010] NSWCCA 1
Fusimalohi v R [2012] ACTCA 49
Hili v R [2010] HCA 45; 242 CLR 520
Imbornonev R [2017] NSWCCA 144
Markarian v R [2005] HCA 25; 228 CLR 357
Mill v R [1988] HCA 70; 166 CLR 59
Monfries v R [2014] ACTCA 46; 68 MVR 385
Mun v R [2015] NSWCCA 234
Naqvi v R [2017] ACTCA 52
O’Brien v R [2015] ACTCA 47
R v Avery [2018] ACTCA 57
R v Barlow [2017] ACTSC 90
R v Britt [2015] ACTSC 402
R v Carmody (No 3) [2017] ACTSC 60
R v Catanzariti [2014] ACTSC 333
R v Cranfield [2018] ACTCA 3
R v Dalton; R v Fleet [2014] ACTSC 204
R v Dillon [2018] ACTSC 164
R v East [2015] ACTSC 54
R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551
R v Eimerl [2015] ACTSC 72
R v Harrison [2002] NSWCCA 79; 121 A Crim R 380
R v HC [2018] ACTSC 49
R v Hill [2018] ACTSC 310
R v Klickovic [2018] ACTSC 141
R v Lattouf (Unreported, NSW Court of Criminal Appeal, Mahoney ACJ, Sully J and Adams AJ, 12 December 1996)
R v Le Clair; R v Yeboah [2016] ACTSC 126
R v Meyboom [2012] ACTCA 48
R v Mumberson [2011] NSWCCA 54
R v Naqvi [2016] ACTSC 345
R v Ndlovu [2017] ACTSC 244
R v Ngata; R v Massey [2011] (Unreported, ACTSC, Burns J)
R v Pearce [2016] ACTSC 393
R v Pham [2015] HCA 39; 256 CLR 550
R v Sharon Ann Stott [2011] (Unreported, ACTSC, Penfold J)
R v Smith [2016] ACTSC 317
R v Srna [2018] ACTSC 337
R v Thompson [2016] ACTSC 164
R v Tonari [2014] NSWCCA 232
R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103
R v Van Duren [2017] ACTSC 132
R v Walters [2012] (Unreported, ACTSC, Penfold J)
R v Williams [2016] ACTSC 389
Singh v R [2015] ACTCA 65
Singh v R [2017] ACTCA 17
Twerd v Holmes [2010] ACTSC 55
Veen v R (No 2) [1988] HCA 14; 164 CLR 465
Van Zwam v R [2017] NSWCCA 127
Zdravkovic v R [2016] ACTCA 53

Parties:

The Queen (Crown)

Andrew James Cowling (Offender)

Representation:

Counsel

A Williamson/P Dixon (Crown)

K Musgrove (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Boxall…

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R v Cowling [2019] ACTSC 138
Case
[2019] ACTSC 138
Decision Date

CaseChat Overview and Summary

The case of R v Cowling involved a dispute where the defendant, Cowling, was charged with various offences, including unlawful confinement, choking, strangulation, common assault, and related charges. The case was heard in the Magistrates’ Court of Victoria. The defendant was alleged to have engaged in violent and controlling behaviour towards a woman, including choking and strangulating her, which resulted in physical and psychological harm. The court was tasked with determining the appropriate sentence for these serious charges and considering the principles of rehabilitation and deterrence.

The primary legal issues before the court were the determination of an appropriate sentence for the offences committed, the consideration of the defendant's potential for rehabilitation, and the applicability of an intensive corrections order. The court had to weigh the severity and nature of the offences against the defendant's background, including his age, criminal history, and potential for reform. The court also needed to consider the principles of justice and the need to protect the community.

In delivering the judgment, the court meticulously evaluated the evidence presented and the submissions made by both parties. The court acknowledged the seriousness of the offences, particularly the violent nature of the acts committed against the victim. However, it also considered the defendant's age, lack of a significant criminal history, and the potential for rehabilitation. The court ultimately decided that an intensive corrections order was the most suitable sentence, given its focus on rehabilitation and reintegration into society. The order aimed to address the underlying issues contributing to the defendant's behaviour while ensuring public safety.

The final orders of the court included the imposition of an intensive corrections order on the defendant, as outlined in the judgment. This order was designed to provide the defendant with the necessary support and supervision to prevent reoffending and facilitate his rehabilitation. The court's decision balanced the need for punishment and deterrence with the opportunity for the defendant to reform and reintegrate into the community.

Orders

Orders of the court

See [114]

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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