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[2025] NSWDC 308
General information, not legal advice.
District Court of NSW
2025-06-06
Haesler SC DCJ
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: R v Cooke [2025] NSWDC 308
Hearing dates: 5 June 2025
Date of orders: 6 June 2025
Decision date: 06 June 2025
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision: Sentence of 1 year 10 months to be served by way of an Intensive Correction Order
Catchwords: CRIME — Violent offences — Recklessly cause grievous bodily harm
SENTENCING — Mitigating factors — Good character — No record of previous convictions — Not fully aware of the consequences of her actions because of the offender’s age — Plea of guilty — Positive steps to rehabilitation — Limited remorse — Unlikely to re-offend — Strong subjective case
SENTENCING — Penalties — Intensive Correction Order
SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — General principles — Moral culpability — Objective seriousness — Consideration of imposing an Intensive Correction Order
SENTENCING — Sentencing procedure — Staged approach to sentencing not permitted — A reduction for a guilty plea should not be expressed in days — Reading down a Victim Impact Statement — Instinctive synthesis
SENTENCING — Subjective considerations on sentence — Mental illness — Alcohol addiction — Childhood sexual, psychological and emotional abuse — Youth — Motherhood — Indigenous offender — Needs of the child
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
Cases Cited: 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] NSW CCA 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
Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600
Nasrallah v R [2021] NSWCCA 207
Owen v R [2022] NSWCCA 214
Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
Pattalis v R [2013] NSWCCA 171
R v AEM [2002] NSWCCA 58
R v Blackman and Walters [2001] NSWCCA 121
R v Butler [2014] NSWCCA 133
R v Edwards (1996) 90 A Crim R 510
R v Engert (1995) 84 A Crim R 67
R v Geddes (1936) 36 SR (NSW) 554
R v Loveridge [2014] NSWCCA 120
R v Loveridge [2014] NSWCCA 120
R v Mesinez [2024] NSWDC 459
R v MJ [2023] NSWCCA 306
R v SLR (2000) 116 A Crim R 150
R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23
R v Wood [2014] NSWCCA 184
R v Zerafa [2012] NSWSC 978
Robertson v R [2017] NSWCCA 205
Sampson v R [2025] NSWCCA 25
SR v R [2024] NSWCCA 43
Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; (2023) 278 CLR 1
The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550
The Queen v Wirth (1976) 14 SASR 291
Usaia v R [2023] NSWCCA 57
Yardley and Betts (1979) 22 SASR 108
Texts Cited: A Symonds, “Children of prisoners” (2009) 21(3) Judicial Officers Bulletin 24
Commonwealth of Australia, Australian Human Rights Commission, Bringing them home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (1997)
Commonwealth of Australia, Australian Law Reform Commission, Report 103 Same Crime, Same Time: Sentencing of Federal Offenders, (April 2006) at 6.124
J Gleeson, “The Legal Case for Mercy”, Barry O’Keefe Memorial Lecture 2024, 20 March 2024
New South Wales, Judicial Commission, Equality before the Law Bench Book, (2006) at 7.6.2.1
Parliament of Victoria, Legislative Council: Legal and Social Issues Committee, Inquiry into Children Affected by Parental Incarceration (August 2022)
Category: Sentence
Parties: Tanaeyah Cooke (the offender)
Director of Public Prosecutions (NSW) (Crown)
Representation: Counsel:
A Booker (for the offender)
Solicitors:
Legal Aid (NSW) (for the offender)
R Taylor solicitor advocate for the Director of Public Prosecutions (NSW) (Crown)
File Number(s): 2023/63782
Publication restriction: A pseudonym has been used for the name of the complainant
On 24 February 2023, a group of friends, including Tanaeyah Cooke, then aged just 18, were out in Wollongong hoping for a good time. Sometime that evening, the group had argued with another woman, Rachel (a pseudonym), the complainant, then aged 25. Just after midnight, Rachel entered Mr Crown a local bar. Shortly after, she had another verbal confrontation with Cooke and her friends. The most reliable account of what then occurred comes from the hotel’s CCTV footage. However, it was like all CCTV footage, potentially unreliable requiring it to be viewed with caution before any conclusions could be drawn from what is apparently depicted on the video.
I had to resolve a number of factual issues last week when Cooke came for trial charged with wounding Rachel with intent to cause her grievous bodily harm: Crimes Act 1900 (NSW), s 33(1). After a short judge-alone trial, I found Cooke not guilty of that count. She had previously accepted she was guilty of an alternative count of causing grievous bodily harm, being reckless as to causing actual bodily harm: Crimes Act, s 35(2). That matter is for sentence today.
Being reckless as to causing bodily harm carries a maximum penalty of 10 years’ imprisonment and has a standard non-parole period of 4 years. That maximum and standard non-parole period are one of many guides to the exercise of my sentencing discretion. Content should be given to the standard non-parole period. Both the maximum and standard non-parole period provide sentencing measures to be assessed along with all other relevant factors. In doing so, I am required to assess objective seriousness without reference to matters personal to the offender and wholly by reference to the nature of the offending: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27]. However, as the High Court has made clear, I cannot engage in a staged approach to sentencing: Muldrock at [28]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357.
The guilty plea to the alternative count was offered in the Local Court. I must reduce the appropriate sentence here by 25% to reflect its utilitarian value: Crimes *(*Sentencing Procedure) Act 1999 (NSW), s 25E; Black v R [2022] NSWCCA 17. There is authority that suggests that this reduction must be strictly applied and be arithmetically accurate, even if the result is inconvenient: Sampson v R [2025] NSWCCA 25 at [49]. I am, however, in favour of orthodoxy and in keeping to sentencing conventions. Sentencing is neither strictly logical nor capable of reduction to small precise mathematical units. As Button J has noted, “The law does not concern itself with trifles”: Usaia v R [2023] NSWCCA 57 at [41]. It was, and in my opinion, it remains, poor practice to specify the sentence ultimately imposed in days as fractions of a month: Akkawi v R [2012] NSWCCA 11 at [101]-[102].
Cooke must have the full benefit of her acquittal. She is not to be penalised because the complainant was called to give evidence. The delay has enabled the offender the opportunity to demonstrate rehabilitation prospects and thus making it less appropriate to punish her with the severity that may have been warranted had her plea been initially accepted in the Local Court. The delay and strict bail conditions have led to restrictions on her liberty.
Rachel, on entering the hotel approached a group of women with her arms outstretched palms upward. She did not know anyone in that group, and they did not know her. Her approach, however, supports the contention that there had been some interaction between them earlier that evening. Rachel’s then boyfriend is standing beside her. Words are exchanged, with Cooke, and the other three women in Cooke’s group. A man known as “Gordon” moved Cooke away from the argument, but Cooke pulled away from him and continued arguing with Rachel. Cooke appears agitated. Rachel then engaged verbally with another woman.
At this point, Cooke, who is holding what appears to be a 375ml bottle in her right hand, swings that hand towards Rachel. She strikes Rachel in the lower face with her hand or the bottle or both. As Gordon moves to intercept her, Cooke puts her left hand on Rachel's shoulder and then takes another swing with her right hand. It is impossible to tell whether the second swing connected but it appears it did not. That is because after the initial blow, Rachel’s head drops and then falls back, apparently limp. Rachel then falls backwards to the floor unrestrained, hitting the back of her head on the ground. Despite the noise of the crowded hotel, a police officer who was conducting licencing and compliance checks some metres away, heard the thud. It is apparent, and accepted, that the first blow rendered Rachel unconscious.
There remained until now, a dispute as to how beer bottle held in Cooke’s hand was used, because it was clearly used. She had it in her hand when she struck Rachel. Cooke is a slight, small woman, her hands would not have been big enough to cover the bottle. It is apparent from my repeated viewing of the CCTV that it is not a rounded punch but a thrusting punch towards the head of Rachel. Given the size of her fist, the size of the bottle, the bottle gave her fist added weight and impetus, and the bottle must have had contact with Rachel’s face. The added weight of the bottle gave power to the blow. It is not suggested that she thrust it forward, as one would a weapon, or that she had smashed it and used it intending therefore to cause a cutting injury. Given the pixelations in the recording, even watching it on slow motion, much was a blur, but it is clear that the bottle was integral to the injuries that were suffered and that bottle was being wielded by Cooke.
After the blow, Gordon took Cooke away. Soon after, they and others moved towards the hotel’s exit. They were pointed out by bar staff and intercepted by police. Cooke was spoken to by police soon after. She was cautioned. She gave a version of events which is recorded on police Body Worn Video. They are trial exhibits.
After Rachel's fall, other patrons, bar staff and police rendered assistance to her. An ambulance was called. Rachel was conscious at the hospital and gave a version of events that showed she had no idea of what had been done to her or how her injuries were caused. She now has no memory of the events or of the months before it or the months after. Her memory loss is consistent with her suffering moderate traumatic brain injury associated with traumatic left frontal intracranial subarachnoid haemorrhage and subdural haemorrhage with right occipital bone fracture: Agreed Facts, Trial Exhibit B.
“With my fist. Look, I just fuckin’ broke my nails… She is a pussy. I knocked the cunt out. One hit brother … I literally hit the bitch once … Oh bro … why is there so many fuckin’ coppers? It was one fucking punch … oh, uh, one punch.”: Trial Exhibit F.
No evidence was called at trial about either Cooke or Rachel's level of intoxication. Cooke had obviously been drinking. She had an empty or partially empty bottle in her hand. In her letter to me, Exhibit 2, on sentence, she said she was intoxicated. Intoxication can provide no excuse for what she did. It is no defence: Crimes Act, Part 11. It is not a mitigating factor that can be taken into account: Crimes (Sentencing Procedure) Act, s 21A (5AA).
After her arrest and processing at Wollongong police station, police were so concerned about her that they took her to Wollongong hospital for a mental health assessment: Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 22. They were concerned that there was a serious risk she would self-harm: Exhibit 1, Tab 6. No further details were provided about what occurred at the hospital. No mental health issues were raised at trial.
A sentence must be proportionate to what was done. An assessment of the objective seriousness of the offence is essential to setting the parameters of an appropriate outcome. Here, the blow was unexpected. No one at the time, argument or not, was at risk of imminent violence. Cooke held a bottle in her hand, and as I have found, she used the bottle. It must have struck Rachel’s face, and it gave her hand additional weight and impetus. I cannot say she intended to use it in any particular way. It appears her blow was reactive, thoughtless and reckless as to consequence, but she was not oblivious to the presence of the bottle in her hand. Her blow seems spontaneous, but it was unprovoked, and it seriously escalated what was, until then, an identifying verbal dispute of no particular concern. Although she is short and slight, the blow was struck with some force. Rachel was not looking at Cooke. She had no opportunity to block what she did not see coming nor expect.
The injuries Rachel suffered were considerable, involving a lip injury, leaving scarring and a brain injury. A number of operations were required. In that assessment, I note that appellate courts have asked sentencing judges to place particular emphasis on the need for deterrent sentences for alcohol fuelled crimes of violence. Relevant principles were summarised in R v Loveridge [2014] NSWCCA 120.
Cooke’s Counsel, Mr Booker has referred to reviews of other cases in Donovan v R [2021] NSWCCA 323 and SR v R [2024] NSWCCA 43*.* The facts of those cases do help assess the relative seriousness of this offence. As those cases contain summaries only, they have to be viewed with considerable caution, but it is not in dispute that this was a serious offence.
Mr Booker submits there is a point of difference between the Crown and the defence which requires resolution: Owen v R [2022] NSWCCA 214. Mr Taylor, Crown Advocate for the Director of Public Prosecutions, submits that this is a mid-range offence given the nature of the attack and its consequences, an attack done with total disregard or thought for the wellbeing of the victim. Mr Booker acknowledges that it is serious offending, but says it falls below the middle of the range.
Matters such as this, involving one blow, are difficult to fit into a notional range. Here, there are two distinct and critical factors to the crime; the act and the consequence. Here, the injury to the mouth and the brain put it in the middle of the range of objective seriousness. However, the act, being a single blow, inflicted spontaneously, puts it below the mid-range. It is meaningless to average out such considerations, but it is acknowledged and, as it will be reflected in this sentence, that a custodial sentence of some length is required to reflect the objective seriousness of what was done.
Yesterday, Rachel read her Victim Impact Statement (‘VIS’) to the Court. I have not identified her by name but rather referred to her by a pseudonym because of matters p[personal to her revealed in the VIS and other reports. That VIS did not comply with the provisions of s 28 Crime**s *(*Sentencing Procedure) Act. Mr Booker, out of consideration for the complainant did not object to it all being read.
Attached to the VIS were a number of medical reports. Those reports reveal that Rachel had a number of pre-existing conditions for which she was medicated and receiving treatment at the time. That treatment has continued. Since the assault, those conditions have become worse. Her psychiatrist notes that since the incident she has self-reported; memory loss, random headaches, changes in appetite, aversions to previously tolerated smells and food; and change in personality. She reported to the doctor that she used to be “bubbly,” now she is “pretty flat”.
The care that has to be taken is reflected in the objections to portions of Dr Oparah, her treating GP’s, report, as the history given did not reflect the facts as I have found them or the Agreed Facts contained in Exhibit B, but Dr Oparah notes a similar constellation of symptoms being reported. It is not suggested by the Crown that the injuries suffered are an aggravated circumstance pursuant to section 21A(2). The VIS must be read down.
The complaints exceed the injury and the medicals. Some of what was said appear, with great respect to Rachel, internet-informed. They were not supported by medical evidence in relation to brain injury. But that said, the Victim Impact Statement is still very important to the Court’s processes. It allows the victim of a crime to tell the Court about any direct results including economic loss or harm. They serve a very practical purpose of drawing to the offender, the Court’s and the community’s attention the personal and economic harm and damage that these crimes can cause.
The sentence imposed, as I told Rachel today, is only one indicator of the seriousness with which the Court views the crime committed. A Court sentencing an offender must take into account all relevant considerations. This means a direct correlation between harm done and time served is impossible. The complainant should not equate or measure the harm she suffered against the punishment actually inflicted upon the offender. Accordingly, I do not believe I can give Rachel the type of help she asks of me.
Ms Cooke has accepted responsibility for the crime. She entered an early plea to this matter, a plea that, as Mr Taylor points out, was inevitable given the CCTV footage and the injuries suffered.
I heard evidence from a family friend who has known her most of her life. She is a friend of Cooke’s mother’s as well. She noted that during her youth, she developed a number of “coping mechanisms” and, as she went to her teenage years, this involved the use and abuse of alcohol. She noted that in the year or so prior to her turning 18, she was impacted on by a number of close deaths, her mother’s illness and many other things that brought her down. Her friend noted that since her arrest, Cooke has changed. She has taken time to address her problems. Her pregnancy and the birth of her son caused her to look forward and seek to address those problems. She now understands that she cannot respond reactively. She notes Cooke shows some empathy.
Cooke did not give evidence, although she did write a letter to me. It is not unusual for someone not to give evidence in sentencing. Most sentencing proceedings do not involve some general joinder of issues.
I have the benefit of reports from; Ms Seers, a psychologist, and Liverpool Hospital, Department of Community Services and Liverpool Hospital, supporting documentation of which is attached. There is no reason here to lessen the opinion of the professionals who provided reports. They were based on an uncontroversial history. They were admitted without the need for cross-examination. I take into account the considered professional opinions offered: Lloyd v R [2022] NSWCCA 18; Devaney v R [2012] NSWCCA 285 at [88]; Luque v R [2017] NSWCCA 226 at [116].
The Tharawal Aboriginal Corporation is providing ongoing support to Cooke. She has successfully completed a 12-month engagement with Aboriginal Family Preservation Service. Their support is ongoing and critical to her rehabilitation.
She is now 21, an Indigenous woman, who presented to Ms Seers as “articulate and insightful”. She gave a history to Ms Seers who concluded at par 9.1:
“This lack of stability throughout her early development and significant abuse during her formative years likely led to experiences of strong emotional reactions such as anger, powerlessness, confusion, shame and grief. With no healthy avenue to express these emotions and limited opportunity for skill development in relation to emotional regulation, Ms Cooke is likely to have demonstrated poor decision-making skills and limited impulse control resulting in a high risk of anti-social behaviours.”
Born in March 2004, Cooke’s primary caregiver initially was her Nan, as her mother was in and out of gaol. She lived with her father’s new family for a while but the environment there was described as “toxic and violent”. She reported that her father targeted her and would often “punch on really badly”. She was often “kept home from school”. She reports being “sexually assaulted multiple times”. Initially, she did not report the abuse, but when she did, she said “no one believed her”.
She returned to live with her mother as a teenager, but her mother put no firm boundaries on her. She self-reports that she hung out “with the wrong crowd”. She began to use alcohol at 15 on a regular basis until she found out she was pregnant. She would often drink until her “mind … [went] blank”. She is a regular cannabis user. She has had a number of medical episodes, including a Golden Staph infection. She has a colloid cyst in her brain, which is presently benign.
Cooke has only worked for very short periods. She did not gain much from schooling, although she went to one school which enabled her to regain some stability.
After the offence, she fell pregnant, but when she did so, the father broke off his relationship with her. She was, for a period, homeless. She needed support in maintaining help with service providers. She had a difficult pregnancy. Her child was born in 2024. She now has the sole care of her child and is at last stable. She has DCS accommodation. She remains engaged with Tharawal. Stable accommodation, support from government and Aboriginal agencies have enabled her to think about her future, which involves studying. She is currently investigating childcare options so she can engage with TAFE.
Ms Seers reports at par 9.4 that:
“Ms Cooke appears to have made significant changes to her life since her pregnancy … including obtaining stable accommodation. She has accessed appropriate cultural support and maintained positive engagement with caseworkers, from multiple services, throughout her pregnancy and her child’s early life. She appears motivated to continue to making changes to her life and recognises the importance of maintaining this life for her son. She has both short and long-term plans to stabilise her life, which include education and employment.”
She further notes that, “remaining in the community will provide her the opportunity to form a strong attachment with her son and provide him with a safe and stable upbringing.”
So far as her child is concerned, Ms Seers notes that they have limited family support and that removal of his mother will intensify risks that negatively impact on his long-term health and development. She provides appropriate references to support that conclusion. This conclusion reflects advise from Ms Hamzah of DCJ, who after setting out examples, notes that Cooke has experienced significant child abuse and exposure to violence. She quotes in Exhibit 1, Tab 3:
“Due to Ms Cooke’s child protection history, Ms Cooke’s child would not properly be cared for by a family member while Ms Cooke is not with her son at this stage. Please consider the child protection concerns.”
Ms Seers notes, “Cooke has a long history of mental health issues, including suicidal ideation, depression, addiction and post-traumatic stress disorder symptoms”.
Cookes’ mental illness requires some amelioration of her moral culpability. It also makes her a less appropriate vehicle for general deterrence and could result in a significantly greater burden associated with custodial sentences. There is a consequent reduction in need for specific deterrence: Director of Public Prosecutions *(*Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [177].
While care must be taken not to double counts, there are many paths here to a reduction of her moral culpability. There is considerable evidence about a child affected by childhood deprivation and exposure to various forms of violence. There is evidence of childhood trauma, physical violence and sexual assaults. There are underlying mental health and related mental health issues: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571; Nasrallah v R [2021] NSWCCA 207; De La Rosa at [177].
As the plurality of the High Court acknowledged, the pervasive effect of profound deprivation, which is established here, are very relevant when forming an appropriate sentence. Where a person’s childhood or adolescence has been affected by disadvantage or trauma or mental health issues or, as here, all three, this can have an inhibitory effect on the development of prosocial values, on the acquisition of a moral compass and the capacity to make behavioural decisions and consequential thinking. Such a background, the High Court said, may compromise a person’s “capacity to mature and learn from experience” and so much has clearly been established by the evidence here: Bugmy at [40]; R v MJ [2023] NSWCCA 306.
Cooke’s background provides some explanation as to why she lashed out as she did. Her history as a victim of violence also helps explain why she seemed unconcerned of the impact of her “one punch”.
Cooke was born in March 2003. She was an adult, almost 19, when the offence occurred, but her attitudes and behaviour demonstrate considerable immaturity, but there is evidence within the last two years, motherhood and abstinence has contributed to growing maturity. As her friend told me, her life has “not been easy”. Her immaturity was a contributing factor to her offending and there is a general sentencing practice that lesser sentences can be imposed on youthful offenders than those imposed on adults who commit similar crimes. That principle lies in the recognition of the immaturity of youth: DM v R [2005] NSW CCA 181; Hearne v R [2001] NSWCCA 37; KT v R [2008] NSWCCA 51; Clarke-Jeffries v R [2019] NSWCCA 56.
In Hearne, where there was an offence of violence not premeditated, it was said that the weight to be given to the element of youth does not vary depending on the seriousness of the offence.
The law recognises the potential for cognitive, emotional and psychological immaturity of a young person to contribute to their breach of the law. It is also well recognised that emotional immaturity and impulse control develop progressively during adolescence and early adulthood and may not be developed until a person’s mid-20s: Clarke-Jeffries v R.
There is a general principle of hardship to family and dependents is an unavoidable consequence for a custodial sentence and is thus not a mitigating consideration unless the hardship is “wholly”, “highly” or “truly” exceptional: R v Edwards (1996) 90 A Crim R 510 at [515] (Gleeson CJ); Hoskins v R [2016] NSWCCA 157 at [63].
Each case will depend on the seriousness of the crime. Whether there is a need for a deterrent sentence, general or specific, and the nature and impact of the sentence upon the third person. In cases such as this, the imprisonment of a mother poses a complex issue that does not have a simple solution. Women are overwhelmingly the sole and primary carers of children as here. The removal of a mother from a family can result in the fraction of the family unit and would here, I think, inevitably result in the child being placed in care and the loss of government housing. When a mother is incarcerated, there is a risk that eventually, as often occurs, the child will end up within the criminal justice system.
The fact that the person to be sentenced is the mother of a young baby must be taken into account: R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23; R v SLR (2000) 116 A Crim R 150. So too the effect on the separation on her and her hardship in custody or the impact on the child: HJ v R [2014] NSWCCA 21. In Togias reference was made to Article 3.1, 9.1 and 9.4 of the United Nations Convention on the Rights of the Child and they have some relevance as guidance here.
The impact on the separation of indigenous children from families and communities is irrefutable. I refer to the 1997 Australian Human Rights Commission Report, which found that the effects on aboriginal children of separation from primary caregivers can have serious long-term consequences on their lives: Commonwealth of Australia, Australian Human Rights Commission, Bringing them home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from T**heir Families (1997).
Similar findings were made recently by the Law and Social Issues Committee of the Victorian Parliament: Parliament of Victoria, Legislative Council: Legal and Social Issues Committee, Inquiry into C**hildren A**ffected by P**arental I**ncarceration (August 2022). The first 5 findings were:
Parental incarceration is an adverse childhood experience due to its traumatic nature. Like other adverse childhood experiences, parental incarceration can interrupt childhood development and have detrimental impacts on emotional and social wellbeing.
Children exposed to parental incarceration have a greater risk of experiencing adverse mental and physical health outcomes due to trauma, a lack of appropriate healthcare, or both.
“ … push myself to be the very best version of me that I can be. To be the very best mother I can be. To be an honest, kind, empathetic, responsible and respectful member of society.”
I am indebted to Mr Taylor and Mr Booker for their comprehensive written and oral submissions. I hope this judgment does justice to them. I do not intend to specifically refer to each of the matters raised but I have considered them and addressed them in coming to my determination.
In short, Mr Booker submits a custodial sentence of less than two years can be imposed and that is in the community’s and the offender’s interests that general deterrence principle, while important, should not govern the sentencing process. He submits that giving full weight to the matters raised in mitigation, a custodial sentence subject to an Intensive Correction Order (‘ICO’) is both available and appropriate. He submits that were a custodial sentence to be imposed, a significant finding of special circumstances would have to be made to enable all of the good work done to date while on remand not be undone.
In response, Mr Taylor submits that the seriousness of the offending and the importance of a deterrent effect, that is the effect on others, compels a term of over two years, making an ICO inappropriate and an impossible result.
In submissions, I was referred to Judicial Information Research Sydney (‘JIRS’) statistics and other cases. Summaries were provided by Mr Booker. They include summaries of some my own decisions. The consistent application of principle must always be considered. The guidance offered by appellate courts and decisions of this Court, including my own, are always welcome.
The courts of this State, at first instance and on appeal, have reportedly sought to emphasise that where a person causes serious harm to another by punching them in a public place, that problem can best be addressed by sentences that place a significant degree of emphasis on what is called ‘general deterrence’. That is by the severity of the penalty imposed causing others to learn the consequence of their action and then not do as the offender did: R v AEM [2002] NSWCCA 58; R v Loveridge [2014] NSWCCA 120; Pattalis v R [2013] NSWCCA 171; R v Wood [2014] NSWCCA 184; R v Mesinez [2024] NSWDC 459. I have made such pronouncement more than once in the ten years I have been sitting in Wollongong and other judges have done the same all over the state.
But every case and every offender is individual. Sentencing is a discretionary judgment and the mix of factors that must be weighed in determining a sentence can never be the same: The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 at [47]; Hili v The Queen (2010) 242 CLR 520; Barbaro v The Queen (2014) 253 CLR 58 at [74].
I have tried to identify all the factors relevant to the sentence and discuss their significance. Ultimately, I must make a valued judgment about what the appropriate sentence is: Markarian at [51] (McHugh J). There is no “golden rule”: R v Geddes (1936) 36 SR (NSW) 554 at [555]-[556]; Markarian at [65].
I take into account authorities which call for a very significant degree of general deterrence. I am required to give effect to that important sentencing principle in the sentence actually imposed: Loveridge at [108]. I am also required to give full weight to what are now called Bugmy principles: KN v R [2025] NSWCCA 73.
In Markarian at par 54, McHugh J cautioned against concentrating on the objective circumstances of a crime, as there is a risk that a judge would give ultimately greater weight to the retributive or deterrent theory of sentencing. If issues of retribution or deterrence become the dominant issue in the case, he noted:
“Consciously or unconsciously, the judge who commences with a notional sentence downplays the importance of mitigation, reformation and rehabilitation in the sentencing process … Overconfidence – but sometimes under confidence – in the significance of factors or the accuracy of the assessment is very common. The tendency to err must increase where particular circumstances are selected as the starting point for the decision and further factors are allowed to modify the starting point.”
That said, in Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 at [52]-[58], the plurality of the High Court noted that “mitigating factors must be given appropriate weight, but they must not be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence”. The Court went on to say, “that general deterrence may have little rational claim upon the sentencing discretion in relation to crimes [of violence] which are not premeditated … [and] that heavy sentences are likely to be of little utility in reducing the general incidents of [such] crime”. Sadly, my continued pronouncements about punches in public places in this town fall into that category, and so much is borne out by the facts here.
When Cooke told police it was “one fuckin punch”, she was seeking to excuse what she did. She had, and apparently still has, no idea how the law views such acts. She, like many in the community, have paid no attention, if they have heard them at all, to the many Court judgments, media reports and speeches in Parliament about the tragic consequences of one punch incidents in public places.
But the plurality in Munda also made it clear that the proper role for the criminal law is not simply limited to the utilitarian value of general deterrence. Sentencing courts have an obligation, to vindicate the dignity, particularly the dignity of those who were the subject of crimes of violence and suffered as a consequence. Courts have an obligation to express the community’s disapproval of this sort of offending and, here matters get even more complicated, to attempt to avoid such protection as can be avoided by the State against repetition of the offending.
Where two highly relevant considerations are so totally incompatible as the two considerations involved here, one, retribution, and two, the needs of a child which requires Cooke to continue her already considerable steps of rehabilitation in the community, it is not necessary that the end result constitutes some kind of averaging out between them. There are circumstances in which one is entitled to be determinative: Hopkins v R [2004] NSWCCA 105 at [22] (Simpson J).
A custodial sentence can be some indicator of the seriousness of the offence and indicate recognition of the harm done and hold an offender to account, but that sentence must be moderated where there is evidence of the offender’s reduced moral culpability her prior history of neglect, mental health problems, abuse and violence and the needs of her son.
As Allen J noted in R v Engert (1995) 84 A Crim R 67, characteristics personal to an offender might make them an unpersuasive vehicle for deterrence of others. Others and the community fully aware of the person’s condition or history might conclude that if the full weight was given to general deterrence, it might have no impact at all upon others. “Human sympathy would say, ‘Well, it would not expect [her] to get the same sentence as someone else’”: See also J Gleeson, “The Legal Case for Mercy”, Barry O’Keefe Memorial Lecture 2024, 20 March 2024.
These concerns require me to consider whether the option, suggested by Mr Booker, of a sentence subject to an ICO is available. Three steps must be undertaken prior to such a sentence of imprisonment being imposed under the Crimes (Sentencing Procedure*)* Act: Stanley v Director of Public Prosecutions *(*NSW) [2023] HCA 3; (2023) 278 CLR 1.
First, having considered all possible alternatives, I have to conclude that no other penalty other than imprisonment is appropriate;
I have to determine the appropriate term of imprisonment; and,
If the issue arises, consider whether or not to make an ICO.
While aspects of community safety underpin some of the general purposes of sentencing and have already been considered by me, a further consideration of community safety is required and that is why it reflects my earlier reference to Munda: Crimes (Sentencing Procedure*)* Act, ss 3, 7 and 66.
The community can be protected if others are deterred from doing what this offender did. The community can be protected by removal of a person from the community, and there can be community safety, or it can be contributed to by the success of rehabilitation of offenders. The rehabilitative aspect of sentencing should never be lost sight of. It assumes particular importance in the case of first offenders and others who have not developed settled criminal habits: Yardley and Betts (1979) 22 SASR 108, applied in R v Blackman and Walters [2001] NSWCCA 121.
The High Court in Stanley noted the current ICO regime requires courts adopt a “forward-looking approach”: at [74] and [114]. If a person is imprisoned, the community may be protected from them for the limited time they are in gaol. But they will have to be released. If a Court has some confidence in an existing process of rehabilitation in the community which is already underway, the longer-term likelihood of reoffending may be diminished by not sending the person to prison: Stanley at [93] (Basten JA).
Here, having considered all relevant matters, I have formed the view that, taking into account the utilitarian value of the plea, a sentence of less than two years can be imposed. In those circumstances, a forward-thinking approach and the matters which I have considered, require the sentence be served subject to an intensive correction in the community. I will be imposing a gaol sentence, but Cooke will not be going to gaol.
The term of the sentence will be 1 year and 10 months. It will be served in the community, subject to intensive correction. It will commence on 6 June, today, and expire on 5 April 2027.
There are standard conditions of an ICO. The first is you must not commit any offences. Do you understand? Any offences.
You must submit to the supervision of Community Corrections. There are a number of standard conditions that will be explained to you. The most important is that you report to Community Corrections at Campbelltown within seven days. That is make an appointment this afternoon or next week.
There are other standard conditions which are similar to the CCO you are on, and you understand those conditions?
There are four additional conditions:
A rehabilitation and treatment condition requiring you to participate in the drug and alcohol, rehabilitation or relapse program as directed.
A treatment condition requiring you to accept psychological or mental health treatment or counselling as directed.
A rehabilitation condition requiring you to participate in general counselling as directed.
An abstention condition requiring abstention from alcohol or drugs or both. They could impose drug tests on you.
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Delete text citation in coversheet
R
Cooke [2025] NSWDC 308
(2014) 253 CLR 58
(2013) 249 CLR 571
(2010) 79 NSWLR 1
(1999) 46 NSWLR 346
(2010) 242 CLR 520
(2005) 228 CLR 357
(2011) 244 CLR 120
(2013) 249 CLR 600
(2017) 96 NSWLR 633
(2023) 278 CLR 1
(2015) 256 CLR 550
(1976) 14 SASR 291
(1979) 22 SASR 108
In addition, she sustained a left upper full lip full thickness laceration that breached her skin and lip muscles through, and into, her mouth lining. The injury required corrective surgery to reconstitute the normal anatomy of the lip. It is not expected to leave long-lasting sequalae except “unfavourable aesthetic consequences and some sensory loss”: Trial Exhibit B.
In the police body-worn recordings, Cooke appears unapologetic and unconcerned about Rachel. Her lack of concern or thought of consequences was one reason why I gave her the benefit of the doubt at trial, as I could not conclude she had any particular intention when she struck the blow, rather she did what she did without thought about its consequence (recklessness).
She told police that Rachel had earlier assaulted a pregnant woman. There is no evidence before me to support this assertion, which would not, in any event, provide an excuse for what was done. Cooke, I am sure, was aware she held the bottle in her hand. So much can be discerned from the position of the bottle in the CCTV. When asked how did you hit her? She replied:
Carers supporting children of incarcerated parents are often left with minimal guidance or emotional and financial support.
Separating Aboriginal children and parents due to incarceration can disrupt connection to culture, land and family. Removal of children from communities into out of home care, particularly into non-Aboriginal care placements, can perpetuate the impacts of historic trauma.
Incarceration can be intergenerational when families and children do not receive timely and appropriate support. Cycles of trauma and disadvantage typically contribute to intergenerational incarceration.
Parental incarceration will cause trauma to a child. It increases the risk of experiencing adverse mental and physical health outcomes. This fact is demonstrated by the offender’s own reaction and responses to the gaoling of her own mother. More evidence that the impact of incarceration can be intergenerational.
The evidence here establishes that potential hardship to the offender’s child and consequent hardship to the offender fit within the description “exceptional”: The Queen v Wirth (1976) 14 SASR 291 at [294]. However, even if it were not, the mounting evidence about the impact of imprisonment on sole caregivers requires superior courts revisit the constraints on judicial discretion seemingly imposed by strict application of the Edwards principles, just as they have done so with other “restraints” or “presumptions” such as drug supply: Robertson v R [2017] NSWCCA 205; Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284; Commonwealth of Australia, Australian Law Reform Commission, Report 103 Same Crime, Same Time*:* Sentencing of Federal Offenders, (April 2006) at 6.124; New South Wales, Judicial Commission, Equality before the Law B**ench Book, (2006) at 7.6.2.1; A Symonds, “Children of prisoners” (2009) 21(3) Judicial Officers Bulletin 24; R v Zerafa [2012] NSWSC 978 at [141]; DPP *(*Cth) v Pratten *(*No 2) [2017] NSWCCA 42 at [53] (Basten JA).