Beazley JA at 1; Hulme J at 2; Carruthers AJ at 83
DECISION:
In the case of Mr Eter -; (a) Grant the application for leave to appeal against sentence but dismiss the appeal.; (b) Dismiss the Crown appeal.; Dismiss the Crown appeals against the sentences imposed upon each of Messrs Cotter, Russell and Iremonger.
PARTIES :
Regina Brett Allen Cotter Timothy Russell Craig Iremonger Ahmed Eter
FILE NUMBER(S):
CCA 60008/03; 60009/03; 60010/03; 60011/03; 60058/03
COUNSEL:
Crown: L Lampratti Cotter: T Baskerville Russell: K Jankowski/Ms H Gibbons Iremonger: R Perrignon/J Hickleton Eter: H Dhanji
SOLICITORS:
Crown: SE O'Connor Cotter: David Weston & Co Russell: Fritchley Solicitors Iremonger: Bruce A Swane & Co Eter: DJ Humphreys
LOWER COURTJURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
02/11/0257 02/11/0332 02/11/0440 02/11/0438
LOWER COURT JUDICIAL OFFICER :
Woods DCJ
- 26 -
60008/03 60009/03 60010/03 60011/03 60058/03
BEAZLEY JA HULME J CARRUTHERS AJ
Wednesday 1 October 2003
R v Brett Allen COTTER
R v Timothy RUSSELL
R v Craig Barry IREMONGER
R v Ahmed ETER
Judgment
1 BEAZLEY JA: I agree with Carruthers AJ.
2 HULME J: These reasons arise in connection with four appeals by the Director of Public Prosecutions against sentences imposed by Judge Woods at the Sydney District Court on 16 December 2002 and an application by Mr Eter for leave to appeal against the severity of the sentence imposed on him.
3 In the preceding months the four Respondents to the appeals had each pleaded guilty to the following charges:-
Count 2 – That he on 14 October 2001 at Nymagee in the State of New South Wales being in company with … , did rob William Quill of certain property, namely, a quantity of firearms, knives, a sum of money and personal papers, the property of the said William Quill.
Count 4 – That he on 14 October 2001 at Nymagee in the State of New South Wales being in company with … , did rob Madeleine Davies of certain property, namely, a sum of money and personal papers, the property of the said Madeleine Davies.
4 In the case of Messrs Eter and Russell, the company alleged was the other 3 respondents. In the case of Messrs Cotter and Iremonger, the company alleged was only Mesrs Eter and Russell. The difference in the charges is not material.
5 Each respondent’s pleas were accepted in full satisfaction of the indictment against him, and the charges were in the alternative to two counts of Robbery Armed with a Dangerous Weapon. References in the appeal papers to matters which go beyond supporting the lesser charges must accordingly be disregarded.
6 The sentences imposed were:-
In the case of Mr Eter, and on each count, imprisonment for 3 years from 26 October 2002, such term to include a non-parole period of 15 months at the expiration of which Mr Eter was…
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.
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Details
AGLC
R v Cotter & Ors [2003] NSWCCA 273
Case
[2003] NSWCCA 273
Decision Date
CaseChat Overview and Summary
The New South Wales Court of Criminal Appeal considered appeals against sentences imposed by the District Court on four respondents who had pleaded guilty to robbery charges. The Crown had appealed against the sentences imposed on Messrs Cotter, Russell, and Iremonger, and Mr Eter had applied for leave to appeal against the severity of his sentence. The primary issues were whether the sentences were manifestly inadequate and whether they appropriately reflected the seriousness of the offences and the principles of parity. The Court found that the sentences imposed on Messrs Eter and Cotter were manifestly inadequate, as they did not adequately reflect the seriousness of the offences, which involved the invasion of the victims' home, two victims, and significant impact on the victims. The Court held that the sentences should have been partly cumulative to reflect the fact that two lives were damaged. However, the Court decided not to interfere with the non-parole periods due to the significant efforts of Messrs Eter and Cotter towards rehabilitation. In the case of Messrs Russell and Iremonger, the Court found the sentences to be inadequate but decided to dismiss the Crown appeals due to the lengthy time elapsed since the offences and the offenders' progress towards rehabilitation. The final orders were to grant Mr Eter leave to appeal against his sentence but dismiss the appeal, dismiss the Crown appeals against the sentences imposed on Messrs Cotter, Russell, and Iremonger.