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R v Cook[2021] QCA 209

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cook [2021] QCA 209

PARTIES:

R

v

COOK, Jodie Ann

(applicant)

FILE NO/S:

CA No 99 of 2021

SC No 435 of 2021

SC No 455 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 16 April 2021 (Dalton J)

DELIVERED ON:

1 October 2021

DELIVERED AT:

Brisbane

HEARING DATE:

17 September 2021

JUDGES:

Holmes CJ and McMurdo and Mullins JJA

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant was convicted after pleading guilty to seven offences and two summary charges (the subject offences) – where the applicant was sentenced to 12 months’ imprisonment and the parole release date was fixed at the last day of the sentence – where the applicant committed other offences two years prior to the commission of the subject offences, but was sentenced for these other offences while the charges for the subject offences remained outstanding to imprisonment for three years with an immediate parole release date – where the sentencing judge imposed a sentence that took into account the existing sentence and the additional criminality reflected in the subject offences – whether the sentencing judge erred in applying the totality principle

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted after pleading guilty to seven offences and two summary charges – where the applicant was sentenced and the parole release date was fixed at the last day of the sentence – where this was the first time that the applicant had to serve in actual custody – whether the sentence imposed was manifestly excessive

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited

R v Beattie; Ex parte Attorney-General (Qld) (2014) [2014] QCA 206, cited

R v Fabre [2008] QCA 386, cited

R v WBK (2020) 4 QR 110; [2020] QCA 60, considered

COUNSEL:

C R Smith for the applicant

D Nardone for the respondent

SOLICITORS:

Legal Aid Queensland for applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    HOLMES CJ:  I agree with the reasons of Mullins JA and with the order her Honour proposes.
  2. [2]
    McMURDO JA:  I agree with Mullins JA.
  3. [3]
    MULLINS JA:  Ms Cook pleaded guilty in the Supreme Court on 16 April 2021 to seven offences on indictment number 455 of 2021 that (apart from counts 1 and 2) were all committed on 5 October 2019 and two related summary charges committed on the same date that were on file number 435 of 2021.  Except for count 4, Ms Cook was convicted and not further punished.  The sentence for count 4 was 12 months’ imprisonment and the parole release date was fixed at the last day of the sentence which is 15 April 2022.
  4. [4]
    The application for leave to appeal against the sentence relates only to the parole release date fixed for count 4.  The grounds relied on for applying for leave and the appeal are that, first, the learned sentencing judge erred in the application of the totality principle and, second, the fixing of a parole release date at the conclusion of the sentence rendered the sentence manifestly excessive in all the circumstances.

The applicant’s antecedents

  1. [5]
    Ms Cook was 36 years old at the time of the offences.
  2. [6]
    Ms Cook’s criminal history commenced in March 2010 with dishonesty offences committed in 2008 for which she entered into a recognisance to be of good behaviour for a period of one year and no conviction was recorded.  She was placed on probation for 12 months (with no conviction recorded) in relation to a contravention of domestic violence order committed in October 2015.  The first drug offences for which she was dealt with in the Magistrates Court in August 2017 were possessing dangerous drugs and possess utensils or pipes for use for which she was fined $300 and no conviction was recorded.
  3. [7]
    More serious drug offending was then detected on 18 September 2017.  Ms Cook was the passenger in a car being driven by another person.  The drug MDMA was found in Ms Cook’s handbag and the quantity of the pure amount of MDMA was 3.56 grams that was contained within 9 grams of substance.  The prosecution accepted this MDMA was for Ms Cook’s personal use.  There were also drugs found in a canvas bag in the car.  One clipseal bag contained 134.8 grams of substance which contained 48.4 grams of pure MDMA.  There were also capsules that contained 19.8 grams of MDMA.
  4. [8]
    Ms Cook was sentenced for the September 2017 offences by Lyons SJA on 13 October 2020 on the basis that Ms Cook’s liability for the MDMA in the canvas bag was as an occupier of the car, as the prosecution accepted that it could not exclude the possibility that the drugs belonged to the driver of the car.  Ms Cook was sentenced on the basis she did not have the drugs under her exclusive control and there was no evidence she knew the quantity.  Ms Cook was sentenced to an effective head sentence of three years’ imprisonment with an immediate parole release date.
  5. [9]
    Ms Cook was then dealt with in the Magistrates Court on 21 October 2020 for a variety of minor drug charges committed in 2017 and 2019, two contravene direction or requirement charges committed in 2017 and 2019 and breaches of bail committed in 2019 and 2020.  Ms Cook was placed on probation for a period of 18 months and fined $100.
  6. [10]
    A report from Community Corrections dated 8 April 2021 was tendered before the sentencing judge.  It showed that Ms Cook’s performance under the probation order imposed in 2015 was poor.  In relation to the court ordered parole that commenced on 13 October 2020 and the probation order that commenced on 21 October 2020, Ms Cook had generally engaged with the reporting requirements, but had failed to report on three occasions.  The report concluded that Ms Cook had demonstrated “a mixed response to supervision”, but on the basis that she appeared willing to address her identified needs, she was deemed suitable for further community based orders.
  7. [11]
    Ms Cook is the mother of seven children, the eldest of whom is deceased.  He passed away at the age of three years after cardiac surgery for a congenital abnormality.  Ms Cook’s relationship with the father of her eldest child who was also the father of her next four children ended in 2016.  The father has custody of these four children.  Ms Cook has two younger children who were three years and two years respectively at the date of the sentence.  Ms Cook’s relationship had ended with the fathers of each those children.
  8. [12]
    At the date of the sentence, Ms Cook was homeless, but was working with a caseworker from a homelessness service to address this issue.
  9. [13]
    Ms Cook was diagnosed with borderline personality disorder in 2015 and panic disorder in 2016.  She consulted psychiatrist Dr Persley in July 2016 about her mood swings and anxiety and was recommended psychological counselling in addition to the prescribed medication she was taking.  At the time of the sentencing Ms Cook was being treated under a GP mental health care plan dated 8 May 2020.  Ms Cook was referred again to Dr Persley in November 2020 who confirmed that Ms Cook suffers with generalised anxiety and intermittent panic attacks and that she has benefited from continued use of the medication she was taking when he saw her in 2016.

The subject offences

  1. [14]
    Ms Cook was intercepted by police on 5 October 2019 after they observed her driving erratically.  They searched her vehicle and found a taser disguised as a torch (count 6), approximately 20 grams of cannabis (included in count 5) and 18 tablets containing oxandrolone (included in count 5).  The police also found a tin that contained a set of scales with visible crystal residue and three clipseal bags that contained in total a gross amount of substance of 16.92 grams with a pure weight of 12.785 grams of methylamphetamine (count 4).  The police applied for, and executed, a search warrant at Ms Cook’s home.  In a drawer in Ms Cook’s bedroom, they found 0.075 grams of brown powder containing methylamphetamine (included in count 7), a single MDMA tablet and 0.012 grams of white powder containing MDMA (included in count 7), two clipseal bags with white powder, one of which weighed 0.03 grams in which cocaine was detected and the other weighed 0.024 grams in which methylamphetamine was detected (included in count 7) and two sets of digital scales with visible white residue (summary charge).  Ms Cook identified the MDMA and cocaine as hers.  The second summary charge was driving while relevant drug is present in blood or saliva.
  2. [15]
    As a result of an analysis of the text messages on Ms Cook’s telephone, she was charged with supplying 1.75 grams of methylamphetamine to a contact on or about 19 September 2019 in exchange for $400 (count 1) and with supplying slightly below 0.1 grams of methylamphetamine to a contact on or about 1 October 2019 in exchange for $90 (count 2).  Ms Cook had discussed prices and amounts with a contact on or about 5 October 2019, and no actual supply took place, but Ms Cook was charged with supplying a dangerous drug on or about 5 October 2019 (count 3) on the basis of acts preparatory to supply.  The sentencing proceeded on the basis that the conversation about prices and amounts had a direct relationship with the methylamphetamine located in Ms Cook’s car (count 4) and that the possession of that methylamphetamine was, in part, for a commercial purpose.

Submissions to the sentencing judge

  1. [16]
    The prosecutor submitted to the sentencing judge that Mill v The Queen (1988) 166 CLR 59 totality issues arose about what sentence would have been imposed had Ms Cook been dealt with for all her offending from 2017 to 2019 at the same time and it would have been inevitable that Ms Cook would have been required to serve a period of actual custody.  The prosecutor relied on one comparable authority of R v Fabre [2008] QCA 386 to submit that, if the sentencing judge were dealing with offences on the indictment without taking into account the sentence that was imposed on 13 October 2020, an effective head sentence of around two and one-half years was appropriate.  The prosecutor conceded to the sentencing judge that Ms Cook had been performing adequately on parole and probation for the preceding six months and had not reoffended with any drug offending for approximately 18 months and that it was relevant to the sentencing for the subject offences of whether the early stages of Ms Cook’s rehabilitation should be interrupted with a sentence that required her to serve actual custody.
  2. [17]
    Ms Cook’s counsel before the sentencing judge (who was not the same counsel appearing on this application) submitted there was no allegation of the supplies being for any profit beyond supporting Ms Cook’s own habit at the time or to pay for living expenses.  Before moderation due to totality considerations, it was accepted that ordinarily a sentence for a commercial possession of almost 13 grams of methylamphetamine would attract a sentence of two years to two and one-half years and that a period of actual custody would be served.  Ms Cook’s counsel submitted that in view of her abstention from illicit drugs for 18 months and that she had been on parole for the previous six months that a cumulative wholly suspended term of imprisonment could be imposed for the subject offences.

Sentencing remarks

  1. [18]
    The sentencing judge recited the details of the offences and Ms Cook’s antecedents.  The sentencing remarks then included the following.  Ms Cook was entitled to credit for an early guilty plea.  There was no evidence of drug use since Ms Cook had been on parole from 13 October 2020.  The complication in the sentencing was that the sentence imposed by Lyons SJA on 13 October 2020 remained active.  There were difficulties in considering what a judge dealing with both sets of offences dealt would have done.  The separation in time between the two sets of offences and the fact that those committed in September 2017 were “predominantly on someone else’s behalf” whereas the offences committed in or about October 2019 were on Ms Cook’s account may have resulted in cumulative sentences in the hypothetical sentencing process for all offending at the same time.  It was difficult to see that the total sentence in that hypothetical process could have been less than four years with parole eligibility date at a minimum of 12 months.
  2. [19]
    Having regard to the sentence on the hypothetical process, that the subject offences on their own were “probably worth two and one-half years” and that Ms Cook had been on parole for six months in respect of the sentence imposed by Lyons SJA, the appropriate sentence was one year’s imprisonment on count 4 to be concurrent with the sentence imposed by Lyons SJA with a parole release date of 15 April 2022.  The fact that Ms Cook had been on parole for six months pursuant to the sentence imposed by Lyons SJA was adequately taken into account in the sentence imposed on count 4, as the period of imprisonment remained at the three years imposed by Lyons SJA (which was less than the notional sentence which would have not been less the four years) and Ms Cook had a fixed parole release date rather than a parole eligibility date.  A cumulative suspended sentence taken together with the sentence imposed by Lyons SJA did not impose adequate punishment and a long-reaching operational period in the future with no supervision would be unsuitable for Ms Cook.  The sentence imposed on count 4 reflected the criminality of all the offending on the indictment and the summary charges.

Did the sentencing judge err in applying the totality principle?

  1. [20]
    The first ground of appeal is framed in terms that the sentencing judge erred in the application of the totality principle.  Alternative arguments are put on behalf of Ms Cook ranging from the totality principle had no application at all to the sentencing of Ms Cook to there was misapplication of the totality principle by the sentencing judge.  The complaint underlying these arguments is Ms Cook’s submission that the application of the totality principle caused an unfair outcome where she was sentenced to a higher sentence (12 months’ imprisonment) than if she had been sentenced upon the 2019 offences alone and received a head sentence of two and one-half years with an immediate parole release date after one-third of the sentence which would have resulted in 10 months in custody.
  2. [21]
    It was submitted on behalf of Ms Cook at the outset of the hearing of the application that the totality principle in Mill did not apply, because there was insufficient closeness in time between the 2017 and the 2019 offending and the 2017 and 2019 offences were not sufficiently similar in nature.  In addition, it was submitted that the extension of the totality principle recognised in R v Beattie; Ex parte Attorney-General (Qld) (2014) 244 A Crim R 177 at [19] that the totality principle applies where an offender is serving an existing sentence (based on the statement made by Hunt CJ at CL in R v Gordon (1994) 71 A Crim R 459, 466) did not apply, as Ms Cook was not in custody at the time of the subject sentence.  In contrast, the respondent submitted that the totality principle applied to the sentencing, the sentencing judge did not err in applying it, and the extension of the totality principle referred to in Beattie at [19] was applicable to the sentence of three years’ imprisonment that Ms Cook was serving in the community by being on parole at the time she was sentenced for the 2019 offences.  Ms Smith of counsel who appears for Ms Cook ultimately accepted that it is relevant for totality considerations that an offender has any existing sentence, but qualified that concession by submitting more weight is placed on the existing sentence, if the offender is in actual custody at the time of the sentencing.
  3. [22]
    Ms Cook also submits the observation of Fraser JA in R v WBK (2020) 4 QR 110 at [13] made after referring to the judgments of McHugh, Gummow and Kirby JJ in Postiglione v The Queen (1997) 189 CLR 295, 308-309, 321 and 339 (where they regarded a materially indistinguishable statutory provision to s 9(2)(l) of the Penalties and Sentences Act 1992 (Qld) (the Act) which requires the sentencing court to have regard to “sentences already imposed on the offender that have not been served” as encompassing the totality principle) is applicable to her circumstances:

“Section 9(2)(l) may be treated as empowering sentencing judges to apply the totality principle in appropriate circumstances to moderate a custodial sentence that overlaps with or commences immediately upon the end of the non-custodial part of a previous sentence.”

  1. [23]
    Ms Cook also relies on the observations of Fraser JA made in WBK at [14]-[15]:

“Importantly for present purposes, and consistently both with the statutory text (“have regard to”) and the High Court decisions, no aspect of the totality principle mandates moderation of a custodial sentence merely because a custodial (or other) sentence overlaps with or follows immediately upon a pre-existing sentence. A decision whether the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences is an aspect of the wide discretion reposed in sentencing judges to impose a sentence that is just and appropriate in the circumstances of the case.

If all other things are equal, any moderation of a sentence under the totality principle is likely to be required to a greater extent where (as in Mill v The Queen) the existing sentence and the sentence being imposed are for offences of the same nature and committed at about the same time, than in a case of the present kind where both factors are absent.” (footnote omitted)

  1. [24]
    On the basis that totality considerations should have been taken into account, Ms Cook submits that the approach of the sentencing judge in asking what the hypothetical sentence would have been, if Ms Cook had been sentenced for the 2017 and the 2019 offences at the same time, in reliance on the statement by McMurdo J (as his Honour then was and with whom Holmes CJ and Gotterson JA agreed) in Beattie at [21]:

“It was relevant that the respondent had been in custody for 18 months until late 2011 and that he had not offended subsequently. However, the sentencing judge erred in characterising the facts as involving ‘offences of a like nature which occurred at or about the same time as offending for which you’ve been previously sentenced’. The sentencing judge reasoned that he should ask what sentence or sentences would have been imposed, either in 2007 or 2010, if the subject offences had been also before that court. In my respectful opinion, this was an error of principle which affected the outcome. Subject to the issue next to be considered, it is therefore necessary to set aside the orders which were made and for this court to resentence the respondent.”

  1. [25]
    The extension of the totality principle that commenced in Mill and has been built on in subsequent cases has resulted in further extensions that reflect the facts of those cases.  The statements about the extent of the totality principle in those cases do not necessarily limit the application of the application of the totality principle in other appropriate cases where the rationale for the totality principle may justify its application in other cases where the circumstances do not fall squarely within the facts of the earlier cases.  That is supported by the general terms in which the relevant factor is stated in s 9(2)(l) of the Act.
  2. [26]
    The passage in Beattie at [21] on which Ms Cook relies to support the submission that the sentencing judge was in error in asking what the hypothetical sentence would have been, if Ms Cook was sentenced for the 2017 and 2019 offences at the same time, must be considered in the context of the facts of Beattie and the reason for the statement in that case.
  3. [27]
    In Beattie, the offender had pleaded guilty in April 2014 to seven offences of indecent dealing with a child under the age of 16 years with four of the offences being committed in 1996 and charged on one indictment and the other three offences being committed in 2001 and charged on a second indictment.  He was sentenced to a wholly suspended sentence of 18 months’ imprisonment with an operational period of five years for one offence from each indictment.  On the other charges, a probation order for three years was imposed and a conviction was recorded.  The formal complaint in relation to the 1996 offending was made in June 2011 and in relation to the 2001 offending was made in June 2012.  The offender was sentenced in 2007 for similar offences committed between January 2001 and June 2002 for which a wholly suspended sentence of six months’ imprisonment with an operational period of three years was imposed.  After trial in September 2010, the offender was sentenced to 18 months’ imprisonment for indecent treatment of children committed in November 2008.  The suspended sentence of six months’ imprisonment was activated and ordered to be served concurrently.  The offender served in full the sentence of 18 months’ imprisonment.  The offender was sentenced in Victoria in 2012 to a wholly suspended sentence of 12 months in relation to like offences committed in 1985.  The Attorney-General appealed against the sentences imposed in 2014.  The primary judge had applied the totality principle and asked the question what sentence would have been imposed, if the court in either 2007 or 2010 had been aware of the 1996 and 2001 offences.
  4. [28]
    McMurdo J noted in Beattie at [20] that the circumstances of the offender’s sentencing in 2014 “presented none of the circumstances in which the totality principle, in its original or extended sentences, has been applied”, referring to the extension of the totality principle in Mill itself and the extension recognised in Gordon.  One of these circumstances noted (at [20]) was that the seven offences for which the offender was sentenced in 2014 had been committed significant numbers of years prior to the offences for which he was sentenced in 2010.  McMurdo J further noted at [20] that the offender was not in custody when the subject sentences were imposed.  The reference by McMurdo J to the fact that the offender was not in custody when the subject sentences were imposed was a reference to the earlier sentences having been served in full (which reflected the facts of that case) and should not be taken as necessarily drawing a distinction between whether the sentences had been served in custody or in the community.
  5. [29]
    The statement in the second and third last sentences of [21] which had the effect of finding that the sentencing judge made an error in principle in asking what sentence or sentences would have been imposed for the 1996 and 2001 offences, if they had been before the court in either 2007 or 2010, was made by reference to the facts of that case referred to in [20].  The error in principle was therefore applying the totality principle where it was found (at [20]) that it was not a case for application of the totality principle.  The statement in [21] did not purport to lay down that a sentencing judge could never consider what a hypothetical sentence would have been in an appropriate case for the application for totality principle, if the sentencing for all offences had proceeded at the one time, rather than on separate occasions.
  6. [30]
    The observations that Ms Cook relies upon in WBK are taken from the reasons of Fraser JA who dissented in the result in WBK, but those observations at [13]-[15] do not conflict in principle with the reasons for which the majority (comprising Lyons SJA and Boddice J) allowed the appeal in WBK. All judgments in WBK put beyond doubt that totality issues can be considered in relation to a sentence that is being served in the community.
  7. [31]
    The offender in WBK pleaded guilty on 17 September 2018 to two counts of rape and five counts of indecent treatment of a child under 16, under 12.  The complainant was the offender’s daughter.  One indecent treatment offence was committed in 2005 and the rest of the offences were committed between 2010 and 2011.  He was sentenced on 4 February 2019 to an effective head sentence of nine years’ imprisonment and a declaration was made in respect of 140 days spent in pre-sentence custody which effectively took the commencement date of the sentence back to the date the offender pleaded guilty.  The sentence was concurrent with a sentence of four years’ imprisonment for an armed robbery that was imposed on 8 June 2016.  The offender had been released on parole in respect of the armed robbery sentence on 14 December 2017.  As the sexual offending against his daughter was committed prior to the armed robbery, it did not breach his parole for the armed robbery offence.  Parole eligibility was fixed after the offender had served four and one-half years of the head sentence of nine years for the sexual offending.  One of the grounds of appeal was the sentencing judge failed to have regard to the totality principle in fixing the parole eligibility date.  Lyons SJA accepted that submission at [45]:

“To require half of the sentence of nine years, being a period of four-and-a-half years, to be served on top of a sentence which he had already served either in custody or on parole of two years and three months on a four year sentence in circumstances where he had not breached his parole is not a sentence which is redolent of totality considerations.”

  1. [32]
    Lyons SJA concluded (at ([53]) for different reasons to the sentencing judge that the effective head sentence of nine years’ imprisonment for the sexual offences was appropriate, but stated (at [55]) that “matters of totality justify the fixing of a significantly earlier parole eligibility date” and it was fixed at 16 September 2021 which was three years from the date he effectively commenced serving the sentence for the sexual offences.
  2. [33]
    Boddice J found in WBK (at [62]) that the sentencing judge erred in failing to consider the period of imprisonment served by the offender for the armed robbery in fixing the parole eligibility date and thereby breached the sentencing principle that the period to be spent in custody fairly represented the totality of the applicant’s criminality.  Both Lyons SJA (at [56]) and Boddice J (at [63]) took into account the total period of about two years and three months served by the offender in custody and on parole for the armed robbery in determining the parole eligibility date.
  3. [34]
    Whereas in WBK both Lyons SJA and Boddice J considered the sentencing judge erred in failing to apply the totality principle to the fixing of the parole eligibility date, Fraser JA dissented (at [16]) on the basis that it was not an error in the sentencing discretion for the sentencing judge to fail to further moderate the sentence for the sexual offences for the totality principle, when that sentence overlapped the sentence for the armed robbery by 21 months.
  4. [35]
    It should be noted that although both the prosecutor and Ms Cook’s counsel before the sentencing judge had submitted the head sentence in Fabre provided guidance for the head sentence to be imposed for the 2019 offences, there was never any submission made as to the proportion of that sentence which should be served in custody, apart from Ms Cook’s counsel’s attempt to persuade the sentencing judge that no custody component was required at all.  The sentencing judge did not suggest in the sentencing remarks that, if the sentence had proceeded for the 2019 offences without the complication of the existing sentence, the custodial component would not have exceeded one-third of a head sentence of two and one-half years.  It is therefore not a valid approach in the circumstances to compare a possible custodial component based on one comparable authority to the actual custodial component of the sentence imposed for count 4 without taking into account all features of that sentence.
  5. [36]
    The sentencing judge imposed a sentence for the October 2019 offending that took into account that subsequent to that offending Ms Cook was sentenced for the September 2017 offences and the sentence imposed for those offences remained current at the time of the sentencing for the October 2019 offences.  The sentencing judge selected a sentence and a sentencing structure that resulted in an overall sentence that was appropriate to the additional criminality of the 2019 offending (without departing from the basis on which Ms Cook was sentenced by Lyons SJA and the benefits conferred by that head sentence), took into account that Ms Cook had been on parole in respect of the earlier sentence for six months, and added punishment for the 2019 offences.
  6. [37]
    There was a gap between the 2017 and 2019 offences, but the relevance of that gap for the purpose of the application of the totality principle disappeared when the sentencing for the 2017 offences took place in October 2020 while the 2019 charges remained outstanding.  Section 9(2)(l) of the Act recognises issues of totality as a relevant sentencing factor in these circumstances.  It was appropriate in the circumstances of this case for totality issues arising from the sentences imposed in October 2020 to be accommodated in the sentencing of Ms Cook for the 2019 offences which took place six months later in April 2021.
  7. [38]
    The sentencing for the 2019 offences was constrained by the effect of the sentence imposed for the 2017 offences.  The sentence of 12 months’ imprisonment imposed for count 4 was part of a sentence structure which allowed Ms Cook the benefits of a fixed parole release date for the sentence and left in place the sentence of three years imposed by Lyons SJA and the existing parole order that remained applicable to that sentence as it was not breached by the 2019 offences.  The length of the custodial component has to be balanced against the benefits of the existing sentence that were preserved by the sentence structure selected by the sentencing judge.  An actual custodial component of 12 months for the 2019 offences in light of the history of the 2017 offences and the existing sentences was not a misapplication of the totality principle.
  8. [39]
    Ms Cook has not shown any error by the sentencing judge in the application of the totality principle to the sentencing.

Was the sentence manifestly excessive?

  1. [40]
    The only aspect of the sentence for count 4 that is challenged as being manifestly excessive is the fixed parole release date, particularly as it was the first time that Ms Cook had to serve any part of sentence in actual custody.
  2. [41]
    Both parties before the sentencing judge had relied on Fabre which arguably supported a slightly shorter custodial component than 12 months’ imprisonment, if the custodial component was calculated at one-third of a head sentence of 30 months.
  3. [42]
    The respondent relies on the fact that Ms Cook was sentenced for other offences, apart from the aggravated possession of the methylamphetamine, including two completed supply offences, one supply offence based on preparatory acts, the possession of a category R weapon and the two counts of possessing very small quantities of other dangerous drugs.  The respondent submits that it could not be said that imposing a sentence on count 4 that required the full 12 months to be served in custody and did not diminish the benefits conferred by the sentence imposed by Lyons SJA was excessive to the point of error.
  4. [43]
    After the beneficial sentence that was imposed for the 2017 offences, Ms Cook may have been disappointed with the sentence of 12 months’ imprisonment to be served in actual custody for the 2019 offences.  As the respondent’s submissions show, when all aspects of that sentence are considered, it was not outside the sound exercise of the sentencing discretion for Ms Cook’s 2019 offences and circumstances.
  5. [44]
    Ms Cook does not succeed on the ground that the sentence was manifestly excessive.

Order

  1. [45]
    It follows the application for leave to appeal against sentence should be refused.
Close

Editorial Notes

  • Published Case Name:

    R v Cook

  • Shortened Case Name:

    R v Cook

  • MNC:

    [2021] QCA 209

  • Court:

    QCA

  • Judge(s):

    Holmes CJ, McMurdo JA, Mullins JA

  • Date:

    01 Oct 2021

  • Selected for Reporting:

    Editor's Note

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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