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Court of Criminal Appeal 8 February 2023

R v Cook

[2023] NSWCCA 9

Assault & violenceHomicideDrugsTheft & propertyFirearms & weapons
CRIME APPEALS APPEAL AGAINST SENTENCE OBJECTIVE SERIOUSNESS OF OFFENCES PROPER CONSIDERATION OF FORM 1 MATTERS APPEAL DISMISSED CRIME

Citation: R v Cook [2023] NSWCCA 9
Court: Court of Criminal Appeal, New South Wales
Date: 8 February 2023
Judge(s): Kirk JA; N Adams J; McNaughton J

Background

The respondent pleaded guilty to seven offences arising from four separate episodes of criminal conduct over a six-month period, all committed whilst on conditional liberty. The offences included two counts of manslaughter (both arising from a vehicle collision), one count of recklessly causing grievous bodily harm, aggravated break and enter, supply of a prohibited drug, possessing a shortened firearm, and possessing a loaded firearm in a public place. A further six offences were taken into account under the "Form 1" procedure (a mechanism under s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) by which additional admitted offences are considered when sentencing for the principal offences, increasing the penalty without recording separate convictions).

Judge Priestley SC sentenced the respondent in the District Court at Coffs Harbour on 13 May 2022 to an aggregate sentence of 14 years imprisonment with a non-parole period of 9 years. The sentencing judge also found special circumstances, which reduced the non-parole period below the statutory default ratio.

The Crown appealed to the Court of Criminal Appeal on the single ground that the aggregate sentence was manifestly inadequate, arguing that the indicative sentences for the driving and firearms offences were too low.

  • Whether the aggregate sentence of 14 years imprisonment was manifestly inadequate in the relevant legal sense, namely that it was "unreasonable or plainly unjust"
  • Whether certain indicative sentences (particularly for the driving and firearms offences) were themselves manifestly inadequate
  • Whether it is permissible, when challenging an aggregate sentence on grounds of manifest inadequacy, to examine the underlying indicative sentences
  • Whether the sentencing judge properly applied the Form 1 procedure, and specifically whether the indicative sentences for the driving offences were appropriately increased to reflect the callous post-crash conduct admitted on the Form 1
  • Whether the objective seriousness of the vehicular manslaughter offences was increased because they were preceded by illegal activity

Decision

The Court of Criminal Appeal dismissed the appeal, with N Adams J delivering the principal judgment and Kirk JA and McNaughton J agreeing. The court confirmed the applicable test for manifest inadequacy: the Crown must establish that the sentence is "unreasonable or plainly unjust," not merely that the appellate court would have imposed a higher sentence. The Crown accepted there was no identifiable patent error and instead argued latent error could be inferred from the inadequacy of the indicative sentences.

The court accepted that it is permissible to examine indicative sentences when assessing whether an aggregate sentence is manifestly inadequate, as the indicative sentences inform understanding of the overall sentencing exercise. However, after examining the indicative sentences for the driving and firearms offences, the court found that while certain of them were very lenient, they could not be characterised as manifestly inadequate. The distinction between "lenient" and "manifestly inadequate" was central to the court's reasoning throughout.

On the Form 1 matters, the court noted that the correct approach is to increase the sentence for the principal offence to reflect the additional admitted conduct. The court acknowledged it was not apparent the sentencing judge had increased the indicative driving offence sentences to reflect the callous post-crash conduct taken into account on the Form 1. However, the court held that even if this were an error, that finding alone would not render the indicative sentences manifestly inadequate.

The Crown sought to rely on comparable vehicular manslaughter decisions to demonstrate inadequacy, but the court found those cases were all distinguishable and did not assist in establishing manifest inadequacy. Kirk JA observed that the sentencing exercise was unusually difficult given the number, variety, and interconnection of the offences, the competing subjective features, and the conditional liberty context, and that different sentencing judges could reasonably have arrived at a wide range of outcomes. The aggregate sentence, while lenient, was within the sentencing judge's discretion.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • The test for manifest inadequacy on a Crown appeal remains that the sentence must be "unreasonable or plainly unjust"; a sentence that is merely lenient, or lower than an appellate court might have imposed, does not meet this threshold.
  • When a Crown appeal challenges an aggregate sentence as manifestly inadequate, it is permissible to examine the underlying indicative sentences as part of that assessment, even though the appeal formally targets the aggregate.
  • Under the Form 1 procedure in s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing court is required to increase the penalty for the principal offence to reflect the additional admitted conduct. An apparent failure to do so may constitute error, but does not automatically render the indicative sentence manifestly inadequate.
  • Where vehicular manslaughter is unintentional and results from a collision rather than deliberate conduct, the fact that illegal activity preceded the collision does not necessarily elevate the objective seriousness of the manslaughter offence. The court found prior Crown decisions relied upon were distinguishable on their facts.
  • In dismissing the appeal, the Court of Criminal Appeal emphasised that the complexity of sentencing multiple offences across varied categories, combined with the application of the totality principle, Form 1 procedure, and significant subjective factors, makes it difficult to identify latent error, particularly where no complaint was made about the totality assessment itself.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(b), 35(2), 52AB(1), 93G(1)(a)(i), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25(1), 25D, 32, 53A(1)
- Criminal Appeal Act 1912 (NSW), s 5D
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Firearms Act 1996 (NSW), s 62(1)(b)

Cases:
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Byrne v R; Cahill v R (2021) 97 MVR 85; [2021] NSWCCA 185
- JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- CMB v The Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Hall v R (2021) 291 A Crim R 18; [2021] NSWCCA 220
- Davidson v R (2022) 100 MVR 336; [2022] NSWCCA 153
- Crowley v R [2021] NSWCCA 45
- Duncan v R [2012] NSWCCA 78
- Kerr v R (2016) 78 MVR 191; [2016] NSWCCA 218