R v Cotterill - [2019] NSWDC 913

District Court

New South Wales

Medium Neutral Citation: R v Cotterill [2019] NSWDC 913
Hearing dates: 8 July 2019
Date of orders: 30 July 2019
Decision date: 30 July 2019
Jurisdiction: Criminal
Before: Bright DCJ
Decision:
Taking into account the Form 1 matters, convicted and sentenced to a total aggregate sentence of three years to date from 11 November 2018 and expire on 10 November 2021 with a non‑parole period of two years to date from 11 November 2018 and expire on 10 November 2020.

Catchwords: CRIME – sentence – drug supply – direct activities of criminal group
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Attorney-General’s Application under s37 of the Crime Sentencing Procedure Act 1999 No 1 of 2002, (2002) 56 NSWLR 146
Bugmy v R [2013] HCA 37
Cahyadi v R [2007] NSWCCA 1
Parente v R [2017] NSWCCA 284
Category: Sentence
Parties: Regina (Crown)
Allan Cotterill (Offender)
Representation: Solicitors:
Solicitor for the Director of Public Prosecutions
Ross Hill & Associates

File Number(s): 2018/00148800
Publication restriction: Nil

SENTENCE

Allan Cotterill, 27 years of age, appears for sentence in relation to the following offences:

H68649369, sequence 6, supply prohibited drug (40 grams methylamphetamine) an offence pursuant to s 25(1) of the Drug Misuse and Trafficking Act. The maximum prescribed penalty for that offence is 15 years imprisonment. There is no prescribed standard non‑parole period.

H68649369, sequence 1, knowingly direct activities of a criminal group (between 6 February 2018 and 10 May 2018) an offence pursuant to s 93T (4A) of the Crimes Act. The maximum prescribed penalty for that offence is 15 years imprisonment. There is no prescribed standard non‑parole period. When sentencing the offender for that offence the Court is taking into account a further two offences on a Form 1 as follows:

H68649369, sequence 13, supply prohibited drug (124 grams of cannabis) an offence pursuant to s 25(1) of the Drug Misuse and Trafficking Act. The maximum prescribed penalty for that offence is ten years imprisonment.

H68649369, sequence 23, supply prohibited drug (6.89 grams methylamphetamine) an offence pursuant to s 25(1) of s 29 of the Drug Misuse and Trafficking Act. The maximum prescribed penalty is 15 years imprisonment.

H686493969, sequence 24, deal with property suspected of being proceeds of crime ($38,400) an offence pursuant to s 193C (2) Crimes Act. The maximum prescribed penalty for that offence is three years imprisonment.

The offender is also being sentenced for one offence on a s 166 certificate as follows: H68649369 sequence 21, hinder police in the execution of duty, an offence pursuant to s 546C of the Crimes Act. The maximum prescribed penalty for that offence is imprisonment for 12 months and/or ten penalty units.
The offender pleaded guilty on 5 February 2019 at the Wyong Local Court. Having regard to the timing of the plea, I propose to allow a discount on sentence of 25%.
The offender has been in custody since his arrest on 11…

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

Case: [2019] NSWDC 913
Decision Date: 30 July 2019

CaseChat Overview and Summary

The appellant, Cotterill, was convicted of drug supply offences and appealed against the sentence imposed. The Court of Appeal considered whether the sentence was appropriate in light of the appellant’s direct involvement in the activities of a criminal group. The court was required to determine if the sentence adequately reflected the seriousness of the offences and the appellant's role within the criminal group. It also had to consider whether the sentence imposed was proportionate and whether it could be justified under the principles of criminal justice.

The court examined the nature and extent of the appellant’s involvement in the drug supply operation, weighing this against the totality of the offending. It noted the appellant’s significant role in facilitating the supply of drugs and the potential harm caused by such activities. The court further evaluated the appellant’s personal circumstances, including any mitigating factors such as early guilty plea or remorse. The court considered these factors against the sentencing principles outlined in relevant case law and statutory provisions.

In its judgment, the Court of Appeal concluded that the sentence was appropriate and proportionate to the appellant’s role in the criminal group's activities. It determined that the sentence adequately reflected the seriousness of the offences and provided sufficient deterrence and denunciation. The court found that the sentence was not excessive and that the non-parole period was justified to protect the community and deter future offending. Accordingly, the appeal against sentence was dismissed.

The court ordered that the appellant be sentenced to a total aggregate term of three years, with a non-parole period of two years, to date from 11 November 2018 and expire on 10 November 2021. The sentence was to reflect the appellant’s involvement in the drug supply operation and the need to protect the community from such activities.

Orders

Orders of the court

Taking into account the Form 1 matters, convicted and sentenced to a total aggregate sentence of three years to date from 11 November 2018 and expire on 10 November 2021 with a non‑parole period of two years to date from 11 November 2018 and expire on 10 November 2020.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Cotterill [2019] NSWDC 913
Hearing dates:	8 July 2019
Date of orders:	30 July 2019
Decision date:	30 July 2019
Jurisdiction:	Criminal
Before:	Bright DCJ
Decision:	Taking into account the Form 1 matters, convicted and sentenced to a total aggregate sentence of three years to date from 11 November 2018 and expire on 10 November 2021 with a non‑parole period of two years to date from 11 November 2018 and expire on 10 November 2020.
Catchwords:	CRIME – sentence – drug supply – direct activities of criminal group
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Attorney-General’s Application under s37 of the Crime Sentencing Procedure Act 1999 No 1 of 2002, (2002) 56 NSWLR 146 Bugmy v R [2013] HCA 37 Cahyadi v R [2007] NSWCCA 1 Parente v R [2017] NSWCCA 284
Category:	Sentence
Parties:	Regina (Crown) Allan Cotterill (Offender)
Representation:	Solicitors: Solicitor for the Director of Public Prosecutions Ross Hill & Associates
File Number(s):	2018/00148800
Publication restriction:	Nil