R v COOKE; COOKE v R [2007] NSWCCA 184

R v COOKE; COOKE v R [2007] NSWCCA 184

The malicious wounding in company was an objectively serious breach of the good behaviour bonds and was neither trivial nor excused by good reasons under s 98(3). The subjective and mitigating matters relied on by Mr Cooke did not explain or excuse the conduct giving rise to the breach, and periodic detention was appropriate. Although the suspended sentence for malicious wounding was manifestly lenient and failed adequately to reflect the objective seriousness of the offence and deterrence, the Court exercised its residual discretion not to re-sentence because of the unusual procedural delay, uncertainty and disruption not attributable to Mr Cooke, totality considerations, and the...

Jurisdiction
Australia
Judgment Date
09 July 2007
Procedural Posture
Criminal Sentence Appeals / Appeal in the New South Wales Court of Criminal Appeal From District Court Orders of Mahoney DCJ Concerning Sentence, Revocation of Good Behaviour Bonds and Periodic Detention
Outcome
Crown appeal dismissed; leave to appeal against revocation of the bonds and imposition of periodic detention granted, but the appeal dismissed.
Legal Topics
['crown Appeal Against Inadequacy of Sentence' 'revocation of Good Behaviour Bonds' 'suspended Sentence' 'periodic Detention' 'malicious Wounding in Company' 'general and Specific Deterrence' 'residual Discretion on Crown Appeal']
['criminal Law' 'sentencing' 'criminal Appeals'] ['crown Appeal Against Inadequacy of Sentence' 'revocation of Good Behaviour Bonds' 'suspended Sentence' 'periodic Detention' 'malicious Wounding in Company' 'general and Specific Deterrence' 'residual Discretion on Crown Appeal']

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Procedural Posture

Criminal Sentence Appeals / Appeal in the New South Wales Court of Criminal Appeal From District Court Orders of Mahoney DCJ Concerning Sentence, Revocation of Good Behaviour Bonds and Periodic Detention

Legal Issues

  1. 1 ['Whether the offender should be granted leave to appeal against the revocation of good behaviour bonds and the imposition of periodic detention.' 'Whether the breach of the good behaviour bonds was trivial in nature or there were good reasons for excusing the failure to comply under s 98(3) of the Crimes (Sentencing Procedure) Act 1999.' "Whether the District Court's failure formally to state that the bonds were revoked invalidated the order for periodic detention." 'Whether the suspended sentence for malicious wounding in company was manifestly inadequate.' 'Whether s 12(2) of the Crimes (Sentencing Procedure) Act 1999 barred the suspended sentence in the circumstances.' 'Whether the Court should exercise residual discretion not to intervene on the Crown appeal despite error.']

Ratio Decidendi

The malicious wounding in company was an objectively serious breach of the good behaviour bonds and was neither trivial nor excused by good reasons under s 98(3). The subjective and mitigating matters relied on by Mr Cooke did not explain or excuse the conduct giving rise to the breach, and periodic detention was appropriate. Although the suspended sentence for malicious wounding was manifestly lenient and failed adequately to reflect the objective seriousness of the offence and deterrence, the Court exercised its residual discretion not to re-sentence because of the unusual procedural delay, uncertainty and disruption not attributable to Mr Cooke, totality considerations, and the...

Court Disposition

Crown appeal dismissed; leave to appeal against revocation of the bonds and imposition of periodic detention granted, but the appeal dismissed.

Orders

  • ['Crown appeal against inadequacy of sentence dismissed.' 'Leave to appeal against the order of Mahoney DCJ revoking the bonds and the imposition of periodic detention is granted; appeal dismissed.']