R v Cottam; Ex Parte - [2004] QCA 351

COURT OF APPEAL

McPHERSON JA
JERRARD JA
WHITE J

CA No 159 of 2004

THE QUEEN

SCOTT TREVOR COTTAM Applicant

CA No 180 of 2004

THE QUEEN

SCOTT TREVOR COTTAM Respondent

and

ATTORNEY-GENERAL OF QUEENSLAND Appellant

BRISBANE

..DATE 27/09/2004

JUDGMENT

MR T D MARTIN (instructed by Woodgate Hughes) for the applicant/respondent

MS S G BAIN (instructed by Director of Public Prosecutions (Queensland)) for the appellant

McPHERSON JA: Scott Trevor Cottam pleaded guilty on 17 May 2004 in the District Court to a charge of dangerous driving causing death as well as causing grievous bodily harm to another person. On 25 May he was sentenced to a term of 4 1/2 years imprisonment, with a recommendation for parole after two years. This is both an application for leave to appeal against sentence on the ground of its severity and an appeal by the Attorney-General against that sentence on the ground of its inadequacy. For convenience I will refer to Cottam throughout as the applicant.

It is not necessary to revisit the detail of the offences here beyond saying that there were several people in cars or along the road who saw what happened. Witness statements presented by the Crown at the sentence hearing described a prolonged course of dangerous driving by the applicant extending over a distance of 400 or 500 metres. They claimed to have seen him doing a series of "fishtails" while travelling at speeds estimated to have been between 100 and 120 kph. The vehicle spun out of control before crossing the median strip and collided with the vehicle driven by the deceased, who was accompanied by a passenger who was the person who suffered the grievous bodily harm.

On this appeal the applicant has raised two specific points against the sentence imposed, as well as the more general ground that the sentence was manifestly excessive. The first concerned the matter of remorse. I need not directly deal with it on this application. The second concerns an explanation given by counsel for the applicant at the sentence hearing. He said, in the course of his submissions, that the applicant's dangerous driving had been caused when - and I quote,

"his foot became wedged between the accelerator and the brake pedal. He was wearing large work boots. What he then did was entirely wrong and inappropriate. In an endeavour to free his boot he depressed the accelerator without success, did it again, and yet a third time."

Prosecuting counsel, who was Mr John Copley, waited until the end of the applicant's sentencing submissions and then said,

"Your Honour, that explanation in relation to a foot being caught in respect of a pedal, the explanation tended to explain this course of driving. If that is to ameliorate the circumstances I would insist upon the giving of evidence in relation to it. This is simply a case of skylarking, in the Crown's submission - if that's the right term - it is irresponsible driving - that fact in relation…

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 R v Cottam; Ex Parte

Details

AGLC: R v Cottam; Ex Parte [2004] QCA 351
Case: [2004] QCA 351
Decision Date: 27/09/2004

CaseChat Overview and Summary

In the case of R v Cottam, the applicant, Scott Trevor Cottam, pleaded guilty to charges of dangerous driving causing death and causing grievous bodily harm. He was subsequently sentenced to 4 1/2 years imprisonment with a recommendation for parole after two years. This case involves an appeal against the severity of the sentence by the applicant and an appeal by the Attorney-General of Queensland against the adequacy of the sentence. The applicant contends that the sentence is manifestly excessive, while the Attorney-General argues that the sentence is inadequate.

The central legal issue in this appeal is whether the District Court Judge was correct in rejecting the applicant's explanation for his dangerous driving without allowing the applicant to provide evidence to support his claim. The applicant argued that his foot became wedged between the accelerator and brake pedal, causing him to lose control of his vehicle. The Crown, however, contended that this explanation was implausible and amounted to skylarking. The District Court Judge rejected the applicant's explanation outright without allowing the applicant to testify or being cross-examined on the matter.

The Court of Appeal held that it was open to the District Court Judge to reject the applicant's explanation, but only if it was withdrawn by counsel, or if the applicant had given evidence and been cross-examined on the matter. Since neither of these conditions was met, the Court of Appeal concluded that it was unable to determine the veracity of the applicant's explanation. This lack of clarity significantly impacted the duration of the sentence that could be imposed. Consequently, the Court of Appeal allowed the application and the appeal against sentence, set aside the sentence imposed, and remitted the matter to the District Court for rehearing and resentencing by another Judge.

Orders