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. Facts for sentence 1. Every sentence has to start with what was done. Cook was released to parole on 21 July 2020. Shortly after his release his brother, Boyden, sold a Holden Commodore 2003 VY Storm utility to the first victim. Cook was present during this sale. The vehicle was unregistered and in need of repairs. 2. The second victim is a mechanic who was assisting the first victim with the vehicle's repair. On 25 August, both victims were working on the utility at the home of the second victim in Dapto. The first victim started getting phone calls from this offender offering to purchase the vehicle back for less than he had offered for it; although it may be that not all of the cash had been handed over. A demand was made by Cook, "You've got until midnight to accept it or we're taking the car back off you". 3. At 8.30PM that evening the two victims were at the home in Dapto. The utility was parked in the backyard. They heard a car pull up so the second victim walked out the front. He saw Boyden and Cook leave a car and come into the driveway. Cook threw a bottle of alcohol on the ground and then punched the second victim to the jaw causing him to stumble back. Cook continued to punch him saying, "Where the fuck is the [first second victim] and "Where the fuck are the keys?" 4. The first victim locked the screen door. Boyden tried to get entry to the unit. He was screaming at him, "Open the door, I want the keys". Cook joined Boyden and they both began pulling and banging at the screen door; eventually ripping it off its hinges. They then entered the unit. Cook punched the first victim twice to the head. They then forced him onto a bed. While Cook was holding him down, Boyden struck him with a butcher's cleaver several times; on the left shin, left hand and arm. 5. I interpose here: the facts use the term "wound". I am not sentencing Cook for a wounding but the harm caused by being struck. It is accepted that wound is an incorrect description, and for me to sentence Cook for a wounding would offend the principles in R v De Simoni (1981) 147 CLR 383. It is agreed that the striking would have caused actual bodily harm falling short of wounding. 6. It is not the severity of the bodily harm that is the principal factor here, although often it can be; it is the invasion of the home, the indignity of being held down and assaulted by two men that make this offence particularly serious. The fact that there were two men involved is an element of the offence. It is a factor that I take into account when I come to assess the circumstances. 7. The fact the offence occurred in a home is a fact I take into account when I come to assess the objective seriousness of the offence. That a weapon was held by one of the offenders and that the weapon was used is a matter I take into account; but I do not take into account the wounding. 8. As the Crown point out in their submissions, if the blade of the cleaver had have been used substantially more harm would have been inflicted. The actual bodily harm was caused by blunt force. 9. As the Crown properly submit, the attack on the victims would have been "nothing short of terrifying" and it continued for a not insignificant period of time. Also property was destroyed. 10. To add insult to injury the purpose of attending the premises and committing the break and enter and the assault was to obtain the keys to the motor vehicle which had been previously sold to the first victim. That aim was achieved by the two offenders, and the vehicle was taken. They also took the keys to another vehicle. They then drove to where that vehicle was and took it after spending some time putting the battery into it and driving it away. On the way there they called in to a petrol station and helped themselves to property belonging to the petrol station worth $86. 11. On 29 August 2020 someone told the first victim where he could find his car. No one has told me as to what happened to the second vehicle. 12. For most in the community, who aren't lucky enough to own a home of their own, a motor vehicle is probably the most expensive possession. To take someone's motor vehicle deprives them of a considerable and valuable asset. To enforce a debt by violence offends the very basis of why we have a community and a legal system. Grievances should not be settled in such a way. 13. The offender had no real motivation for doing what he did, although there is a hint that that he wanted the car it is more likely he was just "helping" his brother. But, given his experience the best help he could have given his brother was to say "do not do this." He did not say that, rather, he joined his brother and took an active role in the crimes. I cannot find that his role was any less than or significantly different than that of his brother; who is to be sentenced later in August 2021. 14. The principle offence is so serious that the s 5 Crimes (Sentencing Procedure) Act 1999 threshold is crossed; a custodial sentence is warranted. The offender is not entitled to the leniency given to first offenders; in fact such is his record that greater weight has to be given to personal deterrence and community protection. The offence was committed while subject to parole, a promise to be of good behaviour, a matter that further aggravates the sentences I must indicate. 15. The pleas of guilty were entered early. I will reduce each indicated sentence by 25% to reflect the statutory requirement that I give effect to the utilitarian value of those please. There is also some value when I synthesise all relevant matters in Cook's acceptance of responsibility. That acceptance of responsibility and desire, in a practical sense, to change is reflected in the other material before the Court. 16. Redacted. 17. Redacted. 18. Redacted. Subjective case 1. His criminal antecedents indicate that Cook has during his times out of gaol been able to find work - this seems to coincide with a reduction in his taking of illicit drugs. But his default position has always been - to fall in with old mates - get back into using illicit drugs - ignore obligations to his partner, who is present in court and his family – and, inevitably, go back to gaol. 2. While he has done some courses in gaol it is clear that his time in custody has hindered rather than enhanced his capacity to live a normal life in the community. Efforts can be made to break that cycle. I will structure the sentence with a significant finding of special circumstances to allow him to engage in rehabilitation when he has served the minimum time his crimes require. If he does not engage in rehabilitation programs in an intensive way, both inside gaol and on release, his prospects of returning to further crime and going back to gaol are high. If he engages he may well be able to turn his life around and be the father he wants to be to his girls. 3. Cook is not the sole maker of his own misfortune. It would appear as a young man he had quite a bit of support in the community and he has many happy memories of his childhood. But in his mid‑teens he started residing with his biological mother who had many problems. He came to associate with criminals. His schooling was disrupted. He spent time in Juvenile Justice detention facilities, where he was subject to abuse. He also, noting into what he said to Mr Jones, Psychologist, found the a life of crime and drug taking "exciting". 4. Despite this his partner still sees the good in him and offers her support; conditional as I understand it, on him doing something to prove himself to her and start to live a normal life. 5. While Cook says he feels positive about his life outside gaol, and says he does not want to be in gaol, it is clear that his antisocial early life and his socialisation with criminal peers, has had a significant impact on him. It is his default position to use illicit drugs and commit crime. 6. He now has embraced a number of protective measures that may help him. He has done the Positive Lifestyle Program. He has engaged with the Christian community within the gaol. He has taken positive steps to sever links with criminal associates. 7. Although Mr Jones took into account some aspects of the history (which are not reflected in the agreed facts) his professional opinion about the offender seems well grounded in the background that is before me. I do not take into account any second‑hand recitation of the facts of the offence but I do accept that there is a reasonable basis for the formal diagnosis of alcohol use disorder and persistent depressive disorder dysthymia of moderate severity. 8. There are also matters arising from Cook's background that need clinical attention. From when he was quite young he was not well equipped to make moral choices, a matter I can take into account. Nevertheless, although he was labouring under a number of problems, he well knew that to involve himself in further crime risked a return to custody. 9. I hope that simple fact, based on cause and effect, has finally sunk in. I hope he gets the cognitive behaviour therapy, the drug and rehabilitation programs and the vocational education and support that he sorely needs. Submissions 1. I am indebted to Mr Grippi and Ms Hayes for their written submissions. The matters have been discussed frankly and openly prior to this judgment. But there must be a further period of custody to reflect all that was done and all the material before me. Synthesis 1. I will structure the sentence so that he can take up the employment - hoping it is still open to him. I will structure the sentence so that he can engage in the rehabilitation programs that he has tried to enrol in. 2. There must be some independent punishment for the various offences. There must also be some measure of accumulation to reflect the fact that while they were all part of one incident with the same motivation there were different victims. That requires discrete punishment to some extent. The total sentence should properly reflect all the crimes that were committed. 3. Taking that all those matters into account I have to indicate a sentence for each matter. Each indicated sentence has been reduced to take into account the early plea of guilty. I will not dilute that by the process of accumulation. The aggregate sentence reflects my finding of special circumstances, the need to engage in rehabilitation so as to break the cycle and the other reductions required. But for those matters I would have imposed an aggregate sentence of three years and six months for this offence. 4. There must be some discrete period allowed for the sentence for which he was serving at the time he committed this offence. But as I have already taken into account in aggravation of the sentence that it was committed in breach of parole I cannot double count any factor against the offender. The sentence will commence on 25 October 2020, the date his earlier sentence's parole period would have commenced had he not been successful in his 2020 appeal. Orders 1. I indicate the following sentences 1. For the assault I indicate a sentence of imprisonment of 11 months. 2. For each of the steal motor vehicles (2) I indicate a sentence of imprisonment of nine months. 3. For the drive during disqualification I indicate a sentence of imprisonment of three months. 4. For the obtain property by deception I indicate a sentence of imprisonment of one month. 5. For the aggravated break enter and commit serious indictable offence, as it carries a standard non parole period I indicate a sentence of two years and three months with a non parole period of 1 year 4 months. 1. The aggregate sentence is 3 years 2 months. The sentence will commence on 25 October 2020. To give effect to a finding of special circumstances; there will be a non-parole period of 1 year 9 months. The non-parole period will expire on 24 July 2022, on which date you will be eligible for consideration for release to parole. The balance of the sentence of 1 year 5 months is to commence upon the expiration of the non-parole period on 24 July 2022 and expiring on 24 December 2023. 2. There is a licence disqualification for the drive during disqualification period of 12 months. So you will not be able to drive for 12 months after you are released. 3. I will have exhibit B sealed. 4. I make a non‑publication order in relation to the redacted portion of the judgment. It and exhibit B is be only made available to a court for the purposes of these or other legal proceedings and to the parties in this matter. I will consider a variation order if the interests of justice demand it. ********** Amendments 24 August 2021 - Typographical errors only DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 August 2021