Cotter v The Queen - [2020] NSWCCA 299

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Cotter v R [2020] NSWCCA 299
Hearing dates: 6 November 2020
Decision date: 23 November 2020
Before: Payne JA at [1]
Bellew J at [2]
Wright J at [58]
Decision:
(1)   Leave to appeal granted.
(2)   Appeal allowed.
(3)   Aggregate sentence imposed in the District Court of NSW quashed.
(4)   In lieu thereof, the applicant is sentenced to imprisonment for 5 years commencing on 25 April 2019 and concluding on 24 April 2024.
(5)   I specify a non-parole period of 3 years and 3 months’ imprisonment commencing on 25 April 2019 and expiring on 24 July 2022.
(6)   I confirm the periods of disqualification from driving which were imposed in the District Court of New South Wales.

Catchwords:
CRIMINAL LAW – Offences – Sentence – Appeal – Using an offensive weapon (a motor vehicle) with intent to prevent lawful apprehension – Driving a conveyance taken without the consent of the owner – Driving whilst disqualified – Driving with the presence of an illicit drug in his oral fluid – Finding by the sentencing judge that the principal offending of using an offensive weapon with intent to avoid lawful apprehension was spontaneous – Where sentencing judge concluded that this was not a mitigating factor –Error established – Necessity to re-sentence the applicant in the fresh exercise of the sentencing discretion – General deterrence of particular significance – Where prospects of rehabilitation largely dependent on drug rehabilitation – Special circumstances justifying adjustment of statutory ratio – Applicant re-sentenced

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
R v Elfar [2003] NSWCCA 358
R v Hamilton (1993) 66 A Crim R 575
R v Qutami (2001) A Crim R 369; [2001] NSWCCA 353
Saddler v R (2009) 194 A Crim R 452; [2009] NSWCCA 83
Weber v R [2020] NSWCCA 103

Category: Principal judgment
Parties: Ben Cotter – Applicant
Regina – Respondent
Representation:
Counsel:
L Fernandez – Applicant
M Kumar – Respondent
Solicitors:
Legal Aid NSW – Applicant
C Hyland, Solicitor for Public Prosecutions (NSW) – Respondent

File Number(s): 2019/128206
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

9 January 2020

Before:

Her Honour Judge Syme

Judgment

PAYNE JA: I agree with Bellew J.
BELLEW J:

INTRODUCTION

Ben Cotter (the applicant) pleaded guilty in the Local Court to the following offences:

using an offensive weapon, namely a motor vehicle, with intent to prevent or hinder lawful apprehension, contrary to s 33B(1)(a) of the Crimes Act 1900 (NSW) (the Act) (count 1);

driving a conveyance taken without the consent of the owner contrary to s 154A(1)(b) of the Act (count 2);

driving whilst disqualified, contrary to s 54(1)(a) of the Road Transport Act 2013 (NSW) (the RTA) (count 3); and

driving with the presence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cotter v The Queen

Details

AGLC: Cotter v The Queen [2020] NSWCCA 299
Case: [2020] NSWCCA 299
Decision Date: 23 November 2020

CaseChat Overview and Summary

The matter of Cotter v The Queen came before the court on appeal against the sentence imposed by the sentencing judge. The appellant was found guilty of various offences, including using a motor vehicle as an offensive weapon with intent to prevent lawful apprehension, driving a conveyance taken without the consent of the owner, driving whilst disqualified, and driving with the presence of an illicit drug in his oral fluid. The sentencing judge made a finding that the principal offending was spontaneous, but did not consider this to be a mitigating factor. The appellant sought to appeal the sentence imposed on the basis that the sentencing judge had erred in their assessment of the mitigating factors.

The legal issues before the court were whether the sentencing judge had erred in their assessment of the mitigating factors and whether the sentence imposed was appropriate. The court needed to consider whether the spontaneous nature of the principal offending was a mitigating factor, and whether the prospects of rehabilitation and special circumstances justified an adjustment of the statutory ratio. The court also needed to consider the significance of general deterrence in this case.

The court found that the sentencing judge had erred in their assessment of the mitigating factors. The spontaneous nature of the principal offending was indeed a mitigating factor, and this should have been taken into account in the sentencing process. The court also found that the prospects of rehabilitation were largely dependent on drug rehabilitation, and that there were special circumstances that justified an adjustment of the statutory ratio. Given the significance of general deterrence in this case, the court concluded that the sentence imposed was too lenient. The court therefore allowed the appeal, set aside the sentence imposed, and remitted the matter to the sentencing judge for re-sentencing.

The court re-sentenced the appellant, taking into account the mitigating factors identified and the significance of general deterrence. The court found that the appropriate sentence was imprisonment for a period of six years and six months, with a non-parole period of four years. The court also ordered that the appellant be subject to a drug and alcohol treatment order.

Orders