R v Jay William COOK

Supreme Court of NSW|2012-05-11|Before: Garling J, Hunt CJ

Judgment 1On 30 October 2010, Jay William Cook killed Todd Burrows in Cupar Place, St Andrews, New South Wales. He did so, having as part of one group of young men engaged in an affray with another group of young men, by stabbing him in the chest with a knife. 2The stab wound penetrated Mr Burrow's heart. Shortly afterwards, Mr Burrows fell to the ground bleeding profusely. Immediate attempts at first aid were unsuccessful. Mr Burrows was taken by ambulance to Liverpool Hospital, but died before he arrived there. 3Mr Cook was arrested at about 6.30pm on 30 October 2010, and has been in custody ever since. He was charged with murder. 4In 2011, during the Local Court proceedings, Mr Cook offered to plead guilty to manslaughter. The Crown declined that offer. 5On 2 April 2012, the day the matter was listed for trial before a jury, the Crown determined that it would accept Mr Cook's offer to plead guilty to the offence of manslaughter. On that day, an indictment against Mr Cook for manslaughter was presented in substitution for that upon which he had been originally arraigned. To that new indictment for the offence of manslaughter, he pleaded guilty. 6It is now time for Mr Cook to be sentenced for his crime. 7The Crimes Act 1900 provides, for the offence of manslaughter, a maximum term of imprisonment of 25 years. There is no standard non-parole period fixed by legislation.

Judicial Task on Sentencing 8In the circumstances of this present case, it is appropriate that I remind myself of the judicial task on sentencing. 9In the present system of criminal justice, I must exercise a discretion as to what sentence should be imposed upon Mr Cook by applying well established principles of law to the facts which I find: R v MacDonell (NSWCCA, 8 December 1995, unreported) per Hunt CJ at CL at 1-2. 10These well established principles of law require the judge to determine the extent of the punishment to be imposed and, to determine all of the facts relevant to the sentence. There is no general requirement for a judge to sentence an offender upon a view of the facts most favourable to the offender. However, a judge is required to be satisfied beyond reasonable doubt before making findings of fact as to what occurred which facts must also be consistent with the verdict of the jury. See: R v Isaacs (1997) 41 NSWLR 374 at 377-378; see also Cheung v The Queen [2001] HCA 67; 209 CLR 1. 11The appropriate approach to sentencing is to identify all of the factors that are relevant to sentencing, identify their significance with the particular circumstances of the offence and then to make a value judgment as to what is the appropriate sentence having regard to the purpose for which a sentence is to be imposed: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [51] per McHugh J; Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154 at [26]. 12I will apply these principles in the course of this sentence.

The Relevant Legislation 13The Parliament of NSW has determined that a sentence may be imposed on an offender for the purposes of ensuring adequate punishment of the offender, the specific and general deterrence of crime, community protection, recognition of the harm caused by the offence, denunciation of the offender's conduct and to make the offender accountable for his or her action and promote their rehabilitation: s 3A Crimes (Sentencing Procedure) Act 1999. It is clear that, depending on the circumstances, tension may exist between these purposes. 14Part 3 of the Crimes (Sentencing Procedure) Act sets out the relevant provisions that deal with sentencing procedures generally. Of particular importance are the terms of s 21A, which identify aggravating, mitigating and other factors the Court is to take into account. The relevant factors are discussed later in this judgment at [45]-[51].

Principles of Sentencing 15The courts have developed clear guidance for the exercise of the sentencing discretion by every judge. These common law principles include proportionality, parity, totality and the avoidance of double punishment. 16The importance of these principles is that s 21A(1) of the Crimes (Sentencing Procedure) Act preserves the entire body of judicially developed sentencing principles: R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [56]-[57]; Muldrock at [18]. 17As well, factors established by the common law as affecting sentence, such as whether prison may be particularly burdensome, are also to be taken into account in accordance with s 21A: Muldrock at [19].

The Facts 18The Crown and Mr Cook agreed upon a Statement of Facts. I am satisfied that I should find the facts of the matter in accordance with that statement. They are, in summary, as follows. 19Prior to the evening of 29 October 2010, there had developed a degree of animosity between the members of two groups of young men. These were young men whose activities centre on the making of graffiti. It is not unfair to refer to them as graffiti gangs, which is the common parlance. One of the gangs referred to themselves as RK and the other was known as KTS. Todd Burrows was a member of the RK gang. Mr Cook was a member of the KTS gang. 20On the evening of 29 October 2010, members of the RK gang, including one Adrian Climpson, gathered at a house at St Andrews, a suburb of Sydney, situated between Ingleburn to the north, and Campbelltown to the south. 21Zenton Cook (to whom I shall refer as Zenton), who is unrelated to the offender Mr Jay Cook, but who was a member of the KTS gang, telephoned Mr Cook and sought his assistance for a fight with Mr Climpson. 22This plan was implemented and Mr Cook was collected from outside his home in a motor vehicle containing four other males, including Zenton. Each of the males was a member of the KTS gang. 23At the house at St Andrews, where the KTS gang arrived somewhere between 12.30am and 1.30am, there was a confrontation. Mr Climpson, the intended victim, remained in the house and declined to come out and fight the members of the KTS gang, including Mr Cook. 24Having unsuccessfully attempted to entice Mr Climpson to leave the house, the members of the KTS gang left the house and were driven away in the motor vehicle in which they had arrived. 25Mr Climpson was informed by other occupants of the house that Zenton, who had confronted them, was carrying a knife. Accordingly, Mr Climpson telephoned his friend and fellow member of the RK gang, Todd Burrows, who was at a party, also in St Andrews, about a one kilometre away. Mr Burrows, having received the telephone call from Mr Climpson, said to those assembled at the party, some of whom were members or associates of the RK gang, "The KTS boys are at Beth's house with knives and poles, let's go". 26As a result of this phone call, about 20 young men gathered at the house in St Andrews where Mr Climpson was. Mr Burrows, and the group he was with, were acting in a generally aggressive manner. Several of them were carrying bottles and sticks. 27Mr Burrows asked Mr Climpson for the phone number of one of the males who had earlier been in the group when Mr Climpson had been threatened. He was given the mobile phone number of Mr Cook. Mr Burrows then rang Mr Cook and asked him where he was. Mr Burrows then said to Mr Cook words to the effect of: "Come to St Andrews shops if you want to go." It was agreed by the Crown and Mr Cook that "to go" meant to engage in a fight. 28Mr Cook agreed to meet Mr Burrows at the St Andrews shops. The purpose of the meeting was to engage in a fight. 29On the way to the St Andrews shops, the group of which Mr Cook was a part, armed themselves with wooden posts which were three to four foot long. They had acquired the posts by destroying a real estate sign. The car in which the members of the KTS gang were travelling, drove past the RK gang who had gathered at the St Andrews shops and stopped in Cupar Place, a few hundred metres from the shops. 30Todd Burrows, and about five other males from the RK gang, then ran towards the vehicle. Todd Burrows was running ahead of the other members of the gang and was the first to reach Cupar Place. 31Whilst that was occurring, Mr Cook, Zenton and Mr Bradley Mackenzie jumped out of the motor vehicle. Zenton and Mr Mackenzie were carrying the wooden posts with which they had armed themselves. The other two members of the KTS gang remained in the motor vehicle. 32A confrontation then took place between the members of the two gangs near the corner of Cupar Place and an adjoining street. Todd Burrows had taken off his T-shirt and wrapped it around his head as a disguise. He was bare-chested. The two gangs advanced towards each other. Fights commenced between some people in the rival gangs. Mr Cook was hit with an object on the back. 33As more associates of Todd Burrows, who were members of the RK gang, arrived, Mr Cook and Mr Bradley Mackenzie commenced backing away. At this stage, Todd Burrows said to Mr Cook "come back here cunt, I'm not finished with you yet". Todd Burrows who was holding a broken bottle in his hand, advanced three or four steps towards Mr Cook. Mr Cook was by now holding a knife in his right hand. He had apparently found it on the ground. Todd Burrows and Mr Cook swung at each other. Mr Cook stabbed Todd Burrows on the left side of his chest. Immediately after the stabbing, Mr Cook ran back towards the parked vehicle and got into it. 34As Mr Cook and the others got back into the car, they continued to be pursued by Todd Burrows and the other males from the RK gang. Although he had been stabbed, Todd Burrows was calling out to the occupants of the motor vehicle and managed to throw a bottle through the front passenger window of the vehicle, striking one of the occupants and causing him injury. Notwithstanding that the motor vehicle came under attack, it was able to escape by speeding off down the road. 35Todd Burrows fell to the ground clutching his chest. He was bleeding profusely. Those at the scene notified emergency services and attempted to undertake first aid. Police who were first to arrive at the scene administered first aid. Ambulance officers arrived soon after. Mr Burrows continued to be treated both at the scene and on the way to Liverpool Hospital. All efforts to resuscitate him failed and he was pronounced dead upon his arrival at the hospital at 2.29am. 36A post-mortem examination by a forensic pathologist established that Mr Burrows had died from a stab wound from a knife or similar object to the left side of his chest, with injury to the underlying heart. This caused significant blood loss and the collapse of his left lung. The wound was of sufficient force to cause incision damage to Mr Burrows' sixth and seventh ribs, and to the left ventricle of his heart. There was an incised injury to Mr Burrow's left forearm caused by the application of a sharp force (possibly by a knife or similar object). Toxicology analyses of Mr Burrows revealed a blood alcohol level of 0.143 grams per 100mls of blood. The tests also detected the presence of an ecstasy-like stimulant drug. 37After leaving the scene, the motor vehicle carrying Mr Cook drove to a house at St Andrews. On the way Mr Cook threw the knife that he had used out of the window. On arrival at the house, Mr Cook left the vehicle and walked off on foot. He ultimately returned home. 38A lawfully obtained telecommunication intercept showed that a few hours after the stabbing, at about 5:15am, Mr Cook sent a text message to Zenton which read as follows: "Just make sure if I get locked up say you witnessed him swinging the bottle at me first so that I can try get done for self defence lad." 39Mr Cook was arrested at his home at around 6.30pm on 30 October 2010. He was taken to the Campbelltown Police Station where he participated in a recorded interview with the police. In addition to relating some of the facts to which I have made reference, he told the police that he was intoxicated, having been out at a party earlier in the evening, when he had consumed Bundaberg rum. 40He said that he did not know Mr Burrows prior to that evening in question, and had not spoken to him prior to the telephone call. 41Mr Cook told police that after the brawl commenced, that something hit him on the back. He then took his jumper off because "I didn't' want to wreck my jumper" and ran to help his friends. He observed Mr Burrows come up towards him carrying a bottle, which had been smashed on the ground. He said that he looked around for a bottle (with which to defend himself) and instead saw a knife on the ground in the middle of the road. The knife was about 15cm long and may have been a flick knife. He didn't know how the knife got there and had not seen it before. He told police that he picked up the knife thinking that Mr Burrows, the deceased, would not run at someone with a knife, but that Mr Burrows had kept coming and swung at him with the broken bottle in a slashing motion. He said that he then swung back with the knife, using his right hand and that he had stabbed Mr Burrows. He claimed to police that he had acted solely in self-defence. 42Later forensic examination of the crime scene did not locate any smashed glass in the area. However, this agreed fact does not, of itself, contradict the account of Mr Cook about the fact that Mr Burrows was holding a broken glass bottle. 43It was agreed between the parties that the plea of guilty to manslaughter was accepted by the Crown on the basis that at the time of the stabbing, Mr Cook formed the intention to inflict grievous bodily harm on Mr Burrows because he believed that this conduct was necessary to defend himself. However, as it is agreed, this conduct was not a reasonable response in the circumstances, as Mr Cook perceived them to be, because he used excessive force. 44I am satisfied, having regard to the Agreed Statement of Facts, that this is a proper basis for the plea of guilty to the offence of manslaughter.

Aggravating Features 45Section 21A of the Crimes (Sentencing Procedure) Act identifies a number of matters as aggravating factors to which regard must be had in determining the appropriate sentence to be imposed. 46The first which is relevant to this matter, is that the offence involved the actual use of violence: see s 21A(2)(b). However, given the nature of the crime, I am satisfied that this aggravating factor is accounted for as being an element of the offence and that I should not have additional regard to it. 47It is an aggravating factor if the offence involved the actual use of a weapon: s 21A(2)(c). The use of a weapon is not an essential element of the offence of manslaughter. Here Mr Cook used a knife to cause the death of Mr Burrows. I will take this into account as an aggravating factor. 48At the time the offence was committed, Mr Cook was in the company of a number of other people in the KTS gang. This is an aggravating factor: s 21A(2)(e). I will have regard to it as such. 49Mr Cook was, at the time of this offence, the subject of a bond to be of good behaviour which was imposed by the Childrens Court at Campbelltown on 23 February 2010. This constitutes him being on conditional liberty and is also an aggravating factor: s 21A(2)(j). Such an aggravating factor is relevant to take into account in imposing sentence, and generally, but not always, results in a longer sentence than would otherwise have been imposed. 50Finally, it is an aggravating factor if the offence was part of a planned or organised criminal activity: s 21A(2)(n). There is no doubt it was a planned act for Mr Cook to attend with his friends on that night to engage in an affray involving members of rival graffiti gangs. However, I am not prepared to find, in light of all of the circumstances, that this particular offence was part of a planned or organised criminal activity. I regard it as a crime which was an unplanned one, which happened opportunistically as Mr Cook defended himself, albeit in the context of a planned confrontation between the two graffiti gangs.

Mitigating Factors 51There are a number of mitigating factors identified by s 21A(3) of the Crimes (Sentencing Procedure) Act to which I am required to have regard and to which I do. They are: (a)That the offence was not part of a planned or organised criminal activity: s 21A(3)(b). I am satisfied that the offence itself was entirely opportunistic and was not part of a planned criminal activity. This, in the particular circumstances, has only a small mitigatory effect. (b)It will be a mitigating factor if an offender is provoked by a victim: s 21A(3)(c). Here the plea of guilty to manslaughter was accepted on the basis that Mr Jay Cook believed that it was necessary to defend himself against an attack upon him by Mr Burrows, but that the conduct was not a reasonable response in the circumstances because he used excessive force. I am satisfied that this plea acknowledges that the conduct of Mr Cook was provoked by Mr Burrows. The fact of provocation has thus been taken into account by the plea and should not result in any additional mitigation. (c)It is also a mitigating factor if an offender was acting under duress: s 21A(3)(d). Mr Cook's account to the police was that he felt obliged to support his friends and that was the reason he was participating in the events of that evening, which suggests duress of a minor kind. I am not prepared to find that in doing what he did, Mr Cook was acting under duress. He was there of his own free will. He did not have to get out of the car. Some of the other members of his gang did not leave the motor vehicle. His will was not overborne. He participated freely. This mitigating factor has not been made out. (d)Mr Cook has one previous criminal conviction, when he was convicted of breaking and entering a house and stealing goods. He received a 12 month good behaviour bond. I do not regard this one minor offence as amounting to a significant record of previous convictions and accordingly, take this into account as a mitigating factor: s 21A(3)(e). (e)Although Mr Cook was generally a person of good character, the fact that he committed this current offence whilst on a good behaviour bond means that whilst I can take this mitigating factor into account, it is not a particularly weighty one in the circumstances of this case: s 21A(3)(f). (f)Mr Cook's prospects of rehabilitation and likelihood of reoffending are also mitigating factors: s 21A(3)(g) and s 21A(3)(h). Having regard to all of the circumstances, and in particular, Mr Cook's age and overall immaturity, I am satisfied that he has reasonable prospects of rehabilitation and that there is some, but not a great chance of any reoffending in the future. I take these matters into account as a mitigating factor. (g)Where an offender has shown remorse then that can mitigate any sentence: s 21A(3)(i). I am satisfied by his plea of guilty to manslaughter which was offered at a reasonably early opportunity, that Mr Cook has shown remorse and that he is entitled to the benefit of that remorse. He did not give any evidence before me, but a handwritten letter from him addressed to me was tendered. In that letter Mr Cook expresses his remorse and offers his apologies for what has occurred to the family of Mr Burrows and to the Court. A report by an experienced psychologist, Mr Phil Gorrell (Ex 1), describes Mr Cook as "most saddened by his offence and he shows remorse". I take these expressions into account, and give them some weight in all of the circumstances. (h)Plea of guilty: s 21A(k). This will be discussed later at [64]-[69].

Seriousness of Offence 52The courts have recognised for many years that sentencing for the crime of manslaughter is a difficult task. That is because the range of conduct which can result in the death of an individual is very great. In all cases of manslaughter, matters of fact and degree arise. Views as to the relative importance of particular facts and matters will undoubtedly differ. 53However, one principle which is important for a sentencing judge to always keep in mind when considering the crime of manslaughter is that the starting point for consideration of the appropriate penalty, and a key element in assessing the gravity of the objective circumstances of the case, is that what is involved in this case, and in every case of manslaughter, is the felonious taking of a human life: See R v Blacklidge (NSWCCA, 12 December 1995, unreported), per Gleeson CJ. 54Manslaughter, as an unlawful homicide, however it occurs, has always been regarded by the law as a most serious crime. That is because the protection of human life and personal safety is a primary objective of the system of criminal justice: See R v Edwards (1996) 90 A Crim R 510, per Gleeson CJ (James and Ireland JJ agreeing). 55In my opinion, the criminality here was quite serious. What was involved was an unreasonable use of excessive force by Mr Cook in the act of defending himself. However, I am persuaded that the conduct of Mr Cook demonstrated a degree of immaturity. In going to, and then participating in, the fight, Mr Cook's conduct was the product of an inability to resist the peer pressure to which he was subjected and which placed him in an environment in which he should never have been. 56Using a knife, in the manner he did, to defend himself was also the product of a lack of rational thought, and a lack of any mature understanding of the position in which he found himself. He displayed all of the hallmarks of an immature teenager. 57I also observe that the invitation to fight came from Mr Burrows to Mr Cook. Mr Cook did not, himself, take a weapon to the fight but only picked up the knife to defend himself, on the agreed facts, against Mr Burrows who was advancing towards him with a broken bottle.

Subjective Features 58Mr Cook was 18 years old at the time of the offence. He was due to turn 19 two months after the offence. He was raised in a family environment, although his parents divorced when he was eight years old. The family environment was not particularly stable as he did not get along well with his mother's then partner. Both his father and his mother have since found new partners. He has two younger sisters, and at the time of the offence was employed as an apprentice wood machinist at Minto. He has good relationships with all members of his family. 59He was educated at both primary and secondary school until about the end of Year 11. He was quite academically gifted and was well behaved at school, but left school at the beginning of Year 12 to gain employment. 60Upon leaving school, he was employed, as I have said, as an apprentice wood machinist. This continued through until his arrest. 61The evidence satisfies me that since his arrest, and whilst he has been in custody, Mr Cook has been well supported by his family. Both his mother and his father visit him in custody regularly, and both of them will help with his rehabilitation upon his release from prison. He has undertaken education and employment whilst in custody and has been well behaved. 62Mr Gorrell, a psychologist, provided a report to the Court about Mr Cook, to which I have had careful regard. I am satisfied that Mr Cook is not innately an aggressive person, and does not maintain any anger about his current circumstances. On the contrary, Mr Cook accepts that the seriousness of his offence requires punishment. He is determined to use his time in custody to advance his education and his life. 63Mr Gorrell's report and the views which he expresses, confirm the impression which I had reached from other material, namely, that Mr Cook has good prospects of rehabilitation upon his release.

Early Plea of Guilty 64Whilst proceedings were in the Local Court and prior to the order for committal, Mr Cook offered to plead guilty to manslaughter. This offer was rejected by the Crown. 65Section 22 of the Crimes (Sentencing Procedure) Act provides that in passing sentence, a court must take into account a plea of guilty and some associated circumstances. However, the legislation requires that any lesser penalty imposed must: "... not be unreasonably disproportionate to the nature and circumstances of the offence." 66It is entirely appropriate to recognise the offer to plead guilty which, if accepted, would have achieved a utilitarian benefit for the efficiency and effectiveness of the criminal justice system as a whole. The matter was still in the Local Court, and had the plea been accepted, it would have been of substantial benefit to the administration of justice in New South Wales. 67There has been a long practice in this Court, sanctioned by much authority, that upon sentencing, a judge should take into account an offer to plead guilty which matches the crime for which the individual is ultimately convicted: R v Oinonen [1999] NSWCCA 310 at [15]; R v Johnson [2003] NSWCCA 129 at [37]-[43]; R v Borkowski [2009] NSWCCA 102 at [32]. 68Such an approach seems to me to accord with the incentive and the public interest benefit which underlay the legislative provision of a discount for an early plea: see Thomson at [115] and [122] per Spigelman CJ. 69Accordingly, I am satisfied by the application of ordinary sentencing principles, that in this case it is appropriate to allow 25 per cent discount for Mr Cook's offer to plead guilty to manslaughter and to his subsequent plea of guilty to that offence. The Crown agreed that such a discount was appropriate.

Victim Impact Statements 70The effect which Mr Cook's conduct has had on Mr Burrows' family, has been expressed in statements in Court by Mrs Christine Burrows, Mr Burrows' mother, and also by Ms Teigan Burrows and Ms Rhiannon Burrows, the sisters of Mr Burrows. I acknowledge the contents of these statements. I express my sympathy to the Burrows family for their tragic loss. 71It is clear that their lives have forever been changed by the events of 30 October 2010. I hope that they will understand, and in time come to accept, that the extent of their grief and loss cannot be used by the Court as the measure for the determination of an appropriate sentence. 72I will have regard, in fixing the appropriate sentence to those statements in the way in which the law allows me: s 28 Crimes (Sentencing Procedure) Act; R v Previtera (1997) 94 A Crim R 76.

Sentence 73Mr Cook is a relatively young man. He was of generally good character. He was reasonably educated and apparently in good employment. He is intelligent. His prospects of rehabilitation are good. They will be enhanced if he continues with his studies whilst in custody and, if upon release, he avoids returning to the social milieu in which he mixed when this offence occurred. 74Since his crime involved the taking of a life, any sentence which I impose must mark out the Court's obligation to protect life and mark its disapproval of any crime in which a life is lost. General deterrence is, in this case, a matter of importance. 75But it would not be right to crush all hope of rehabilitation, which is a matter to which I must also give proper account. Mr Cook should have the chance, whilst on parole, to demonstrate that he has reformed. 76Ordinarily, but for the plea of guilty, I would have sentenced Mr Cook to a term of imprisonment of 10 years. In light of the fact of his offer to plead guilty, and of his eventual plea, that term will be reduced by 25 per cent. So for the offence of manslaughter, taking into account his plea of guilty, he will be sentenced to an overall term of 7 years 6 months. 77Section 44 of the Crimes (Sentencing Procedure) Act requires, as a statutory ratio, that Mr Cook should serve three quarters of that term as a non-parole period. However, in his case, I am satisfied that there are special circumstances which enable me to reduce that non-parole period, thereby increasing the time he is on parole. 78The special circumstances which I find are the facts that he is still a young and relatively immature man, the fact that this is his first period of incarceration and that he will require a lengthy period of supervision in the community in order to ensure that his rehabilitation has good prospects of success. 79These facts all combine to mean that I should vary the ratio of 75 per cent fixed by the law so that his non-parole period is about 55 per cent of the total sentence, which means that I have decided he should serve a period in custody of 4 years. That term should commence on 30 October 2010, which is the day he was taken into custody for this offence. 80I am satisfied that such a non-parole period properly reflects the criminality involved in this offence and all of the factors to which I am required to have regard.

Orders 81In light of Mr Cook's plea of guilty to the indictment, I convict him of that offence. 82Mr Cook, I impose the following sentence upon you: (a)I sentence you to a term of imprisonment without parole of 4 years to commence on 30 October 2010 and to conclude on 29 October 2014. (b)I sentence you to a balance of term of 3 years 6 months to conclude on 29 April 2018. (c)The first day on which you will be eligible for release from custody is 29 October 2014.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 May 2012

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