Regina v Cook - [2002] NSWCCA 113

CITATION: Regina v Cook [2002] NSWCCA 113

FILE NUMBER(S): CCA 60512/01

HEARING DATE(S): 18 March 2002

JUDGMENT DATE:
18 March 2002

PARTIES :

Regina v Brian Frederick Cook

JUDGMENT OF: Dunford J at 1; Carruthers AJ at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/51/0029

LOWER COURT JUDICIAL
OFFICER : His Honour Judge Price

COUNSEL : Crown - P.E. Barrett
Applicant - In person

SOLICITORS: Crown - S.E. O'Connor
Applicant - In person

CATCHWORDS: Sentencing appeal - breach of a s12 bond - no question of principle suitable to be determined by a two Judge Bench

LEGISLATION CITED: Crimes Act 1900 s 59
Crimes (Sentencing Procedure) Act 1999 ss 12, 24(b), 98(3) and 99(1)(c)
Criminal Appeal Act 1912 s 6AA(2)

CASES CITED:
R v Edwards (1996) 90 A Crim R 510
R v Hansen (1961) 79 WN (NSW) 148

DECISION: Leave to appeal granted. Appeal dismissed.

60512/01

DUNFORD J
CARRUTHERS AJ
Monday, 18 March 2002

REGINA v Brian Frederick COOK

Judgment

1 DUNFORD J: I agree. I would only add this. Whether in the case of a suspended sentence, the head sentence may be reduced if the bond entered into as a condition for the suspension of the sentence is adhered to for only part of the term of the bond must depend on a consideration of the interrelationship between ss 12, 24(b), 98(3) and 99(1)(c) of the Crimes (Sentencing Procedure) Act 1999. In my view, this involves a question of general principle and is therefore not suitable to be determined by a bench of two judges: Criminal Appeal Act1912 s 6AA(2).

2 It has not been necessary to consider the matter further for disposition of this application, but in a suitable case it may be necessary for a bench of three judges to be constituted to determine the issue. The orders of the court will be as proposed by Carruthers AJ.

3 CARRUTHERS AJ: The applicant, Brian Frederick Cook, seeks leave to appeal against a sentence imposed upon him by his Honour Price DCJ at Armidale Court on 20 July 2001. The applicant came before his Honour on a breach of a s 12 bond: see s 98 of the Crimes (Sentencing Procedure) Act 1999. In respect of the breach of the bond, his Honour imposed, on 20 July 2001, a term of imprisonment for 18 months commencing on 20 July 2001 and expiring on 19 January 2003 and fixed a non-parole period of 10 months expiring on 19 May 2002.

4 The applicant is not legally represented but has made written submissions to this Court and is not personally present, at his wish. The offence for which the s 12 bond was given was one of assault occasioning actual bodily harm, committed on 30 October 1998. This offence, under s 59(1) of the Crimes Act1900, carries a maximum penalty of five years imprisonment.

5 When sentencing the applicant for the original offence on 2 May 2000, his Honour, Ducker DCJ…

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 Regina v Cook

Details

AGLC: Regina v Cook [2002] NSWCCA 113
Case: [2002] NSWCCA 113
Decision Date: 18 March 2002

CaseChat Overview and Summary

The sentencing appeal arose from a conviction of the defendant, Cook, for breaching a section 12 bond. The matter was heard in the Supreme Court of Queensland. The issue before the court was whether the appeal against sentence was one that required determination by a Full Bench or whether it could be resolved by a two-judge bench. The appeal raised questions about the appropriate process for sentencing appeals when the question at hand did not involve a matter of principle suitable for a Full Bench.

The court considered the nature of the appeal and the specific legal question at issue. It was noted that the appeal did not involve a question of principle that warranted the intervention of a Full Bench. Rather, the appeal was more procedural in nature, concerning the appropriateness of the sentence imposed by the trial judge. The court held that when an appeal against sentence does not raise a question of principle suitable for a Full Bench, it can be appropriately determined by a two-judge bench.

Given the court's determination that the appeal did not involve a question of principle, the appeal was dismissed. The sentence imposed by the trial judge was upheld, and the defendant's appeal against sentence was unsuccessful. This decision underscores the importance of distinguishing between appeals that require the attention of a Full Bench and those that can be resolved by a two-judge bench, particularly in cases where the appeal is not centred on a significant matter of principle.

Orders