Cottee v The Queen
[2010] VSCA 285
•22 October 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No S APCR 2008 0983
| AARON JAMES COTTEE | Appellant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES | ASHLEY and WEINBERG JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 22 October 2010 |
| DATE OF JUDGMENT | 22 October 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 285 |
| JUDGMENT APPEALED FROM | R v Cottee & Nelson (Unreported, County Court of Victoria, Judge Hicks, 18 December 2008) |
---
CRIMINAL LAW – Appeal against sentence – Armed robbery – Nothing apart from assistance given by co-offender to police to distinguish appellant from co-offender – Co-offender given ‘informer discount’ of approximately one third – Appellant’s contention of undue disparity – Appeal dismissed.
---
| Appearances: | Counsel | Solicitors |
| For the Appellant | Ms H Spowart | Victoria Legal Aid |
| For the Respondent | Mr B Sonnet | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
I will ask Weinberg JA to deliver the first judgment in this matter.
WEINBERG JA:
The appellant, Aaron Cottee, pleaded guilty in the County Court at Melbourne to one count of armed robbery. The maximum penalty for that offence is 25 years’ imprisonment. He was sentenced to a term of seven years and six months’ imprisonment, with a non-parole period of five years.
On the same day, a co-accused, David Nelson, also pleaded guilty to that offence. He was sentenced to a term of five years’ imprisonment, with a non-parole period of three years.
A judge of this Court granted leave to appeal against sentence. There is only one ground of appeal upon which the appellant now relies, and it relates to parity.
The circumstances surrounding the offending can be briefly stated. On 18 April 2008, the appellant and Nelson robbed one Vince Dimati of some $55,000 in cash. Mr Dimati was carrying the wages for his employees in connection with his wholesale fruit business at the Footscray Fruit Market. At the relevant time the appellant was aged 27, and Nelson aged 29.
On the day in question, both men lay in wait for their victim. At about 2am, he was attacked as he left his home in Preston. He was carrying a brown leather satchel which contained the cash. Each offender was wearing dark clothing, and a full-face motorcycle helmet.
The two men attacked their victim, striking him numerous times to the head, one wielding a large spanner, and the other a hard plastic pipe. It was not clear on the evidence which of them had the spanner, and which the pipe.
As a result of the attack, Mr Dimati fell to the ground. He endeavoured to keep hold of the satchel but was continually struck about the head and body by both men. The attack ended only when he was no longer able to maintain his grip on the satchel. Both offenders then fled the scene.
As a result of their actions, Mr Dimati suffered a depressed skull fracture. He also sustained a mastoid fracture to his head, multiple abrasions, bruising, and lacerations to his scalp. He required some 35 stitches to his head. He subsequently underwent neurosurgery. He was left with residual effects including dizziness, soreness, and pain to the wrist and knee. The sentencing judge referred at some length to the victim impact statement, noting that Mr Dimati had suffered severe physical and mental trauma. He had become extremely wary of people approaching him at night. The attack upon him had left his family deeply shocked.
During the course of the struggle, the visor from the motorcycle helmet that Nelson was wearing became detached. Fingerprint analysis revealed that the fingerprints on the visor were those of Nelson. The next day police arrested him at his home. They located $40,250 in cash in a bedroom cupboard, as well as the brown satchel and a large spanner. They also found a quantity of blood stained clothing.
Nelson readily admitted his involvement in the robbery. He named the appellant as his co-offender. It is fair to say, however, that, in his interview with the police, he sought to shift responsibility to the appellant for instigating the offence.
As the sentencing judge noted, without Nelson’s statement and cooperation, the police would have had no inkling of who the co-offender happened to be. There was no forensic evidence to link the appellant to the crime. None of the witnesses who were present could possibly have identified him, and there would have been no evidence whatever against him.
In these circumstances, Nelson’s statement to the police, and his offer of cooperation, were plainly of considerable value in solving this crime. The Crown acknowledged that this was so. As a result of what Nelson had told them, police were able to arrest the appellant in Queensland some weeks after the commission of this offence.
After his arrest, the appellant willingly took part in a record of interview. He readily admitted his involvement in the offence. Perhaps not altogether surprisingly, he identified Nelson as the prime instigator.
His Honour saw no reason to differentiate between the two offenders based on their respective roles in the commission of the crime. He proceeded on the basis that this was a joint criminal enterprise, with both offenders equally culpable.
Likewise, his Honour saw no particular reason to differentiate between the two offenders on the basis of their criminal histories. Both men had significant prior convictions. The appellant had previously been convicted of various offences involving dishonesty, as well as drug and traffic offences.
The sentencing judge observed that both offenders had pleaded guilty at the earliest reasonable opportunity. His Honour concluded that they were both genuinely remorseful.
When his Honour came to consider the personal circumstances of each offender, he again concluded that there was no basis for differentiating between them. He described the appellant’s prospects of rehabilitation as being ‘somewhat cloudy’, having regard to his lengthy history of drug abuse, and his long list of prior convictions. Much the same could be said of Nelson. Perhaps somewhat charitably, his Honour was prepared to describe their prospects of rehabilitation as ‘reasonable’. Importantly, when it came to parity, he noted that counsel for each offender had agreed that no distinction should be drawn between them on the basis of their prospects of rehabilitation.
Self-evidently, the real point of any distinction between the appellant and Nelson lay in the fact that Nelson had provided the statement to the police that had led to the appellant’s arrest and, in addition, had indicated his willingness to give evidence in accordance with that statement. As previously indicated, without Nelson’s full cooperation, there would have been no reason to suspect the appellant of having been involved in the commission of this offence. Perhaps more importantly, there would not, at that stage, have been any evidence against the appellant. It was in these circumstances that his Honour concluded that Nelson should be accorded what is commonly termed the ‘informer discount’.
It is clear from his reasons for sentence that the sentencing judge considered that a discount of approximately one third should be accorded to Nelson for his role in having informed upon the appellant, and for having offered to give evidence against him. For that reason, Nelson received a head sentence of five years’ imprisonment, while the appellant received a head sentence of seven years and six months’ imprisonment.
It was submitted on behalf of the appellant that, although Nelson was entitled to some additional mitigation by reason of his assistance to the police, the disparity between his sentence and that imposed upon the appellant was manifestly excessive. It was further submitted that the appellant laboured under a justifiable sense of grievance.
In support of that submission, counsel noted that, despite his generally cooperative attitude, Nelson had not been fully frank with the police when interviewed. He had, rather, sought to minimise his own role in the offending, and to shift responsibility to the appellant. I interpolate to say that, of course, the same could be said about the approach taken by the appellant during the course of his interview.
The extent of any sentencing discount given to an informer will, of course,
vary from case to case.[1] Discounts of up to two thirds have been given for the highest level of cooperation,[2] the so-called ‘true informers’.[3] Recently, this Court regarded a discount of 50 per cent as being appropriate for an applicant who had pleaded guilty to murder, kidnapping and trafficking in large commercial quantities of drugs in circumstances where that offender made a statement implicating his co-offenders, and undertook to give evidence against them.[4]
[1]In R v Perrier (No 2) [1991] 1 VR 717, McGarvie J, with whom Murphy J agreed, posited that a discount of the order of two thirds would be appropriate for a drug courier who cooperated fully with the police, informed upon his principal and offered to give evidence against him. Brooking J dissented, expressing the view that such a discount would be excessive.
[2]See, for example, R v Nagy [1992] 1 VR 637.
[3]Judicial College of Victoria, Victorian Sentencing Manual (2010) [11.4].
[4]See R v Johnston (2008) 186 A Crim R 345.
Of course, the issue to be determined in this appeal is not what we ourselves consider to be an appropriate discount for Nelson’s cooperation, but whether it was reasonably open to the sentencing judge to have concluded that a discount of approximately one third should be fixed. Bearing in mind the degree of assistance that Nelson rendered to police by identifying the appellant as his co-offender, and offering to give evidence against him (irrespective of whether his motives should be characterised as laudable or base), I am unable to accept the submission that his Honour’s conclusion in that regard was not reasonably open.
It is very much in the public interest that those who commit offences be given every encouragement by the courts to inform upon their co-offenders, and to give evidence against them. If that means that those who are informers receive the benefit of sentences that are significantly lower than they might otherwise merit, that is a price which society must be willing to pay.
I accept that the appellant now harbours a sense of grievance. He is required to serve a significantly lengthier sentence than his co-offender in circumstances where there was little to choose between them, apart from Nelson’s having informed
upon him. Nonetheless, as the authorities make clear,[5] it is only a justifiable sense of grievance that will warrant this Court in interfering with a sentence on parity grounds. The appellant’s grievance does not satisfy that description.
[5]R v Taudevin [1996] 2 VR 402.
For these reasons, I consider that this appeal should be dismissed.
ASHLEY JA:
I agree. The order of the Court is that the appeal is dismissed.
19
0
0