COOK v REGINA [2010] NSWCCA 191

New South Wales Court of Criminal Appeal

CITATION: COOK v REGINA [2010] NSWCCA 191

HEARING DATE(S): Friday 27 August 2010

JUDGMENT DATE: 27 August 2010

JUDGMENT OF: Basten JA at 1; Hall J at 2; Price J at 48

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW- appeal – appeal against sentence- failure to assess objective seriousness – consideration of aggravating and mitigating factors under s21A of the Crimes (Sentencing Procedure) Act 1999 – appeal refused - CRIMINAL LAW- appeal – appeal against sentence – manifestly excessive - proper range of sentences – use of statistics – appeal refused

LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999

Davis v Regina [2009] NSWCCA 279 House v The King (1936) 55 CLR 499 CASES CITED : Mulato v Regina [2006] NSWCCA 282 Regina v Henry (1999) 46 NSWLR 346 Williams v Regina [2010] NSWCCA 15

PARTIES: James Allan COOK v REGINA

FILE NUMBER(S): CCA 2008/20345

COUNSEL: C: N Noman A: W Hunt

SOLICITORS: C: S Kavanagh A: S O'Connor

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 08/20345

LOWER COURT JUDICIAL OFFICER: Black DCJ

LOWER COURT DATE OF DECISION: 5 June 2009

IN THE COURT OF CRIMINAL APPEAL 2008/20345

BASTEN JA HALL J PRICE J

FRIDAY 27 AUGUST 2010 JAMES ALLAN COOK v REGINA Judgment 1 BASTEN JA: I agree. 2 HALL J: The applicant seeks leave to appeal in respect of a sentence imposed on him on 5 June 2009 by the District Court sitting at Lismore (his Honour Judge Black QC). 3 The applicant pleaded guilty to one count of robbery with a dangerous weapon contrary to s.97(2) of the Crimes Act 1900 on 2 June 2009. The plea was entered following the determination of certain preliminary issues on a voir dire which was heard over three days prior to the jury being empanelled. 4 The sentencing judge was requested to take into account on a Form 1, one count of knowingly dealing with the proceeds of crime contrary to s.193B(2) of the Crimes Act. The matter on the Form 1 related to the purchase of a motor vehicle on 28 July 2008 with $9,000, the sum of the amount of $18,405 that had been obtained from the robbery. 5 On offence contrary to s.97(2) carries a maximum penalty of 25 years' imprisonment. There is no prescribed standard non-parole period in respect of such an offence. 6 An offence contrary to s.193B(2), if on indictment, carries a maximum penalty of 15 years' imprisonment. 7 The applicant was sentenced to a term of imprisonment in respect of the offence to which he pleaded guilty under s.97(2) as follows:- Total term: 8 years, 3 months commencing on 31 July 2008 and expiring on 30 October 2016 Non-parole: A non-parole period of 5 years commencing on 31 July 2008 and expiring on 30 July 2013 8 The sentence imposed took into account the offence on the Form 1. The non-parole period represented approximately 60% of the total term imposed. 9 In his application for leave to appeal, the applicant relied upon two grounds, namely:-