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District Court 6 June 2025

R v Cooke

[2025] NSWDC 308

Assault & violence

Citation: R v Cooke [2025] NSWDC 308
Court: District Court of New South Wales
Date: 6 June 2025
Judge: Haesler SC DCJ

Background

The offender, an 18-year-old Indigenous woman, was part of a group socialising in Wollongong in the early hours of 24 February 2023. A verbal dispute arose with another woman (referred to as Rachel, a pseudonym) who was seven years older. Shortly after midnight, inside a local bar, the argument escalated.

Hotel CCTV footage captured the offender striking Rachel in the lower face. The offender was holding a 375ml beer bottle in her hand at the time. The blow rendered Rachel immediately unconscious. Rachel fell backwards, striking the back of her head on the floor. The impact was heard by a police officer conducting licensing checks several metres away.

Rachel suffered moderate traumatic brain injury, including a traumatic left frontal intracranial subarachnoid haemorrhage and subdural haemorrhage, a right occipital bone fracture, and a deep lip laceration requiring corrective surgery. She has no memory of the incident or the months surrounding it. The offender was acquitted at a brief judge-alone trial of the more serious charge of wounding with intent to cause grievous bodily harm under s 33(1) of the Crimes Act 1900 (NSW). She had previously entered a guilty plea in the Local Court to the alternative charge of recklessly causing grievous bodily harm under s 35(2), and sentence proceeded on that basis.

  • What was the objective seriousness of the offending, including the role played by the beer bottle?
  • What weight should be given to the offender's substantial subjective circumstances, including youth, Indigeneity, childhood trauma, mental illness, alcohol addiction, and her role as a mother?
  • What discount applied to reflect the utilitarian value of the guilty plea, and how should that discount be expressed?
  • Whether a sentence of imprisonment served by way of Intensive Correction Order (ICO) was appropriate rather than full-time custody.
  • Whether procedural constraints applied, including the prohibition on a staged sentencing approach and the proper handling of a Victim Impact Statement.

Decision

Objective seriousness and the role of the bottle

His Honour revisited the CCTV footage and concluded that the beer bottle was integral to the injuries suffered. Given the offender's small hands, the bottle added weight and impetus to the blow and made physical contact with Rachel's face. However, the court found the bottle was not used as a deliberate weapon in the sense of being thrust forward to cause a cutting injury. The offender struck without apparent forethought, consistent with recklessness rather than intent.

Sentencing methodology

His Honour rejected a staged approach to sentencing, consistent with the High Court's direction in Muldrock and Markarian. The court also reiterated that expressing a guilty plea reduction in days or precise fractions of a month is poor practice. A 25% reduction applied to reflect the utilitarian value of the plea, which had been entered in the Local Court. The court noted the delay between plea and sentence had allowed the offender to demonstrate rehabilitation progress, reducing the severity of punishment that might otherwise have been warranted.

Subjective factors

The offender presented an unusually strong subjective case. His Honour took into account her youth (aged 18 at the time of the offence), her Indigenous background and the particular significance of her deprived upbringing under the principles in Bugmy v The Queen, a history of childhood sexual, psychological and emotional abuse, diagnosed mental illness, alcohol addiction, and the fact that she is a mother. The court found she was unlikely to reoffend and had taken positive steps toward rehabilitation. Remorse was assessed as limited, consistent with her demeanour on body-worn video immediately after the offence, but this was weighed alongside the other substantial mitigating factors.

ICO rather than full-time custody

Having assessed the appropriate sentence at less than two years after the plea discount, the court considered whether the sentence should be served in the community by way of an ICO. Applying the "forward-looking approach" endorsed in Stanley, his Honour concluded that a community-based sentence with intensive conditions was more likely to reduce the long-term risk of reoffending than imprisonment. The rehabilitation process already underway in the community supported this conclusion.

Orders Made

  • Sentence of 1 year and 10 months, commencing 6 June 2025 and expiring 5 April 2027.
  • Sentence to be served in the community subject to an Intensive Correction Order (ICO).
  • Standard ICO conditions apply, including no commission of any offences and supervision by Community Corrections.
  • The offender must report to Community Corrections at Campbelltown within seven days.
  • Additional conditions imposed:
  • Participation in a drug and alcohol rehabilitation or relapse program as directed.
  • Acceptance of psychological or mental health treatment or counselling as directed.
  • Participation in general counselling as directed.
  • Abstention from alcohol and/or drugs, with drug testing permitted.

Key Takeaways

  • A guilty plea discount of 25% must be applied to reflect utilitarian value when a plea is entered in the Local Court, but expressing the resulting sentence in days or precise fractions of a month remains poor practice inconsistent with established sentencing conventions.
  • The prohibition on a staged sentencing approach (established in Muldrock and Markarian) applies: courts cannot first fix a "starting point" and then mechanically adjust it for individual factors.
  • Under the Bugmy principles, the systemic effects of deprivation and childhood trauma on an Indigenous offender's moral culpability carry significant weight in sentencing, and do not diminish with the passage of time or repetition in the case law.
  • Where an offender's rehabilitation is already underway in the community and the appropriate sentence falls below two years, an ICO may serve the interests of long-term community protection more effectively than a term of full-time custody.
  • The delay between a Local Court plea and sentence is not simply a neutral procedural matter: the District Court recognised it can work in an offender's favour by providing an opportunity to demonstrate rehabilitation, reducing the severity of sentence that might otherwise have applied.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33(1), 35(2), Part 11
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(5AA), 25E
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases
- Akkawi v R [2012] NSWCCA 11
- Barbaro v The Queen (2014) 253 CLR 58
- Black v R [2022] NSWCCA 17
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Clarke-Jeffries v R [2019] NSWCCA 56
- Devaney v R [2012] NSWCCA 285
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- DM v R [2005] NSWCCA 181
- Donovan v R [2021] NSWCCA 323
- DPP (Cth) v Pratten (No 2) [2017] NSWCCA 42
- Hearne v R [2001] NSWCCA 37
- Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346
- Hili v The Queen (2010) 242 CLR 520
- HJ v R [2014] NSWCCA 21
- Hopkins v R [2004] NSWCCA 105
- Hoskins v R [2016] NSWCCA 157
- KN v R [2025] NSWCCA 73
- KT v R [2008] NSWCCA 51
- Lloyd v R [2022] NSWCCA 18
- Luque v R [2017] NSWCCA 226
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120