R v Cottell - [2009] QCA 398

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cottell [2009] QCA 398

PARTIES:

R
v
COTTELL, Carol Ann
(applicant)

FILE NO:

CA No 241 of 2009
DC No 421 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

22 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

3 December 2009

JUDGES:

Holmes and Fraser JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for leave to appeal is dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to one count of forgery and one count of attempting to pervert the course of justice – where applicant forged signatures on documents which were filed in court – where applicant sentenced to 12 months imprisonment for the forgery and two years imprisonment for the attempt to pervert the course of justice – where applicant sought to rely on material which was available but not utilised before the sentencing judge – where the material was not fresh nor did the circumstances warrant the material being received – where the applicant’s case became a plea for clemency –whether the sentence was manifestly excessive

R v Harnden [2003] QCA 340, considered

COUNSEL:

The applicant appeared on her own behalf

B J Power for the respondent

SOLICITORS:

The applicant appeared on her own behalf

Director of Public Prosecutions (Qld) for the respondent

HOLMES JA: I agree with the reasons of Daubney J and with the order he proposes.

FRASER JA: I agree with the reasons of Daubney J and the order proposed by his Honour.

DAUBNEY J: On 2 September 2008, an indictment was presented in the District Court at Ipswich charging the applicant with one count of forgery and one count of attempting to pervert the course of justice. On that same day, the matter was listed for trial during the November 2009 sittings of the District Court. It would appear, however, that the applicant indicated an intention to plead guilty in the course of the sittings, and on 27 November 2008, she was arraigned, pleaded guilty to the charges and the allocutus was administered. The matter was then adjourned for sentence on a subsequent date. The matter was initially listed for sentence in June 2009, and then for a contested sentence in September 2009. Ultimately, the submissions on sentence were made to the learned sentencing judge on 4 September 2009, and her Honour passed sentence on 9 September 2009. The applicant was sentenced to 12 months’ imprisonment for the forgery and two years’ imprisonment for the attempt to pervert the course of justice, those sentences to be served concurrently, with five days’ pre-sentence custody declared as time served. An order was made setting the applicant’s parole release date at 4 May 2010 (i.e. after eight months’ imprisonment).

The applicant has now…

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 Cottell

Details

AGLC: R v Cottell [2009] QCA 398
Case: [2009] QCA 398
Decision Date: 22 December 2009

CaseChat Overview and Summary

The case before the court was an appeal by the respondent, Cottell, against the sentences imposed by the primary judge. Cottell pleaded guilty to one count of forgery and one count of attempting to pervert the course of justice. He forged signatures on documents that were subsequently filed in court. For the forgery, Cottell was sentenced to 12 months imprisonment and for the attempt to pervert the course of justice, he was sentenced to two years imprisonment, to run consecutively. The appeal was based on the contention that the sentence was manifestly excessive.

The primary legal issue before the court was whether the sentence was manifestly excessive, given that Cottell sought to rely on material that was available but not utilised by the sentencing judge. This material included information about Cottell's cooperation with the authorities and his remorse. The court had to determine whether this material warranted a different sentence and whether the sentence imposed was manifestly excessive.

The court held that the sentence was not manifestly excessive. The material presented by Cottell was not fresh and did not warrant the court receiving it. The court found that the applicant's case had effectively become a plea for clemency, rather than an argument based on the material that was available to the sentencing judge. The court concluded that the sentence imposed was appropriate, given the nature and circumstances of the offences. The application for leave to appeal was dismissed.

Orders

Orders of the court

The application for leave to appeal is dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Cottell [2009] QCA 398
PARTIES:	R v COTTELL, Carol Ann (applicant)
FILE NO:	CA No 241 of 2009 DC No 421 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	22 December 2009
DELIVERED AT:	Brisbane
HEARING DATE:	3 December 2009
JUDGES:	Holmes and Fraser JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for leave to appeal is dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to one count of forgery and one count of attempting to pervert the course of justice – where applicant forged signatures on documents which were filed in court – where applicant sentenced to 12 months imprisonment for the forgery and two years imprisonment for the attempt to pervert the course of justice – where applicant sought to rely on material which was available but not utilised before the sentencing judge – where the material was not fresh nor did the circumstances warrant the material being received – where the applicant’s case became a plea for clemency –whether the sentence was manifestly excessive R v Harnden [2003] QCA 340, considered
COUNSEL:	The applicant appeared on her own behalf B J Power for the respondent
SOLICITORS:	The applicant appeared on her own behalf Director of Public Prosecutions (Qld) for the respondent