R v Cook [2021] NSWDC 436

District Court New South Wales

Medium Neutral Citation: R v Cook [2021] NSWDC 436 Hearing dates: 25 June 2021 Decision date: 25 June 2021 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Aggregate sentence of 3 years 2 months with a non-parole period of 1 year 9 months. Catchwords: CRIME- Aggravated Break and Enter & commit serious indictable offence - inflict actual bodily harm - Common assault - Steal motor vehicle - Drive motor vehicle during disqualification period - Dishonestly obtain property by deception SENTENCING - Relevant factors on sentence – offences committed shortly after release to parole - breach of promise to be of good behaviour - steps taken to break ties with criminal element - is further custody required - early plea Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v De Simoni (1981) 147 CLR 383 Category: Sentence Parties: Jesse Noel Cook (the offender) Director of Public Prosecutions Representation: Counsel: Mr D Grippi (for the offender)

Solicitors: McAneny Lawyers (for the offender) Ms M Hayes (for Director of Public Prosecutions) File Number(s): 2020/00248950 Publication restriction: Non publication order-the redacted portion of the judgment and exhibit B. Confidential transcript cannot be published, they are only to be made available to a court for the purposes of these or other legal proceedings and to the parties in this matter

sentence – ex tempore revised

Introduction 1. Jesse Cook, born in 1996. He has spent more than half of the last seven years of his life in custody. He came before me last year appealing a sentencing decision of the Local Court on 6 April 2020. On that day he said, "This is the true me standing before the Court on one last shot at asking for my freedom back". He told me that with the benefit of courses and the incentive of fatherhood that this time for sure he would not reoffend. I reduced his non‑parole period on appeal to allow him to keep that promise, not just to me and not just to the Court but to his family. 2. He broke that promise. I am not going to punish him today for breaking a promise to me; he is not the first, he will not be the last. Tragically I only ever see the people who break their promises. There are plenty who keep their promises to the Court and I never see them again. 3. Today Cook's counsel, Mr Grippi, submitted that Cook be given another chance to prove himself. It was argued that taking into account all relevant principles of sentencing, including the paramountcy afforded community protection; I could structure a sentence that would see him released today. That result might avoid the negative consequences of further time in custody. It is abundantly apparent from Cook's criminal record that time in custody has not prevented his reoffending. 4. Any sentencing exercise, while ultimately about community protection, must take into account a number of other important factors. One is appropriate recognition of the harm done to the individual victims and the community. Another is the need to attempt to vindicate the dignity of victims of violence, particularly those victims of direct attacks; direct attacks that were premeditated and involved, as here, the invasion of a person's home and the taking of their property. 5. Courts must also by the severity of the sentences imposed attempt to deter this offender. It would appear from the material, to which I will refer shortly, that while he is drug free, Cook is well aware of the consequences of his actions. But he still has considerable difficulty in remaining drug free and free from the influence of others who lead him into further crime. 6. I will structure the sentence to give him an opportunity; to prove himself on release, to engage in programs and to keep to the promises he has made to himself, his family and to the Court as reflected in another letter I have received and read today. But his crimes deserve more time in custody. 7. I will take into account that Cook has taken considered and practical steps to break ties with criminal elements in the community, including his own family members. What he has done to date has reinforced to him the need to stay out of trouble and in particular stay out of gaol. Whether he will be able to do so successfully I have to be guarded about. 8. I must also take into account the already strict regime required in gaol to deal with the COVID-19 threat and that those protective measures may become stricter.