R v Cottrell - [2010] NSWDC 213

CITATION: R v Cottrell [2010] NSWDC 213

HEARING DATE(S): 20/08/10

JUDGMENT DATE:
8 September 2010

JURISDICTION: Crime

JUDGMENT OF: Norrish QC DCJ

DECISION: Count 4 - Convicted: Sentenced to a term of imprisonment of 9 months to commence on 08/09/10 and to expire on 07/06/11. I decline to set a non-parole period.
Count 5 - Convicted: Sentenced to a term of imprisonment of 12 months to commence on 08/09/10 and to expire on 07/09/11.
Count 3 - Convicted: Sentenced to a term of imprisonment of 6 months to commence on 08/03/11 and to expire on 07/09/11.
Count 2 - Convicted: Sentenced to a term of imprisonment which consists of a non parole period being 6 months to commence on 08/03/11 and to expire on 07/09/11. The balance of the sentence being 9 months is to expire on 07/06/2012. Finding of special circumstances. Eligible for release to parole on 07/09/11.
Count 1 - Convicted: Sentenced to a term of imprisonment which consists of a non parole period being 6 months to commence on 08/03/11 and to expire on 07/09/11. The balance of the sentence being 12 months is to expire on 07/09/2012. Finding of special circumstances. Eligible for release to parole on 07/09/11.

CATCHWORDS: CRIME - Sentence - act with intent to pervert the course of justice, - subornation of perjury

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Evidence Act 1995

CASES CITED: Markarian v The Queen (2005) 79 ALJR 1048: [2005] HCA 25
R v Einfeld [2010] NSWCCA 87
Pearce v The Queen (1998) 194 CLR 610
R v XX [2009] NSWCCA 115
Fahs v The Queen [2007] NSWCCA 26
R v Retsos [2006] NSWCCA 85
R v Nguyen (2004) 149 A Crim R 343
R v Giang [2001] NSWCCA 276

PARTIES: Regina
Christoper Paul Cottrell

FILE NUMBER(S): 2009/00010917

COUNSEL: Mr M Barr (Crown)
Mr Wasilenia (Offender)

SOLICITORS: Director of Public Prosecutions
Crimlaw (NSW) P/L - Offender

SENTENCE

1 Christopher Paul Cottrell was found guilty by a jury of five offences after a trial extending over almost four weeks. Three offences, that is, counts 1 to 3, were contrary to s 391 Crimes Act 1900 which carries a maximum penalty of fourteen years imprisonment. Two offences, counts 4 and 5, were contrary to s 333(1) Crimes Act 1900, which each carry a maximum penalty of seven years imprisonment. The penalty for an offence of suborning a witness to give perjured evidence for a ‘serious indictable offence’ provided for in s 333(2) Crimes Act 1900 carries a greater maximum penalty of fourteen years imprisonment.

2 The first three counts were offences of causing, respectively, Christopher Roberts, Betty Papafilopoulos and Anthony Federico, to either make written statements, or notebook entries in the case of Federico, containing a false description of events relating to the detention and treatment of Todd Casserly on 12 September 2004, with intent to pervert the course of justice.

3 The first offence in time, count 3, was concerned with the notebook entries made by…

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 Cottrell

Details

AGLC: R v Cottrell [2010] NSWDC 213
Case: [2010] NSWDC 213
Decision Date: 8 September 2010

CaseChat Overview and Summary

The case before the court involved a defendant, Cottrell, who was charged with various offences including subornation of perjury and acting with intent to pervert the course of justice. The dispute centred on whether the prosecution had proven the charges against Cottrell beyond reasonable doubt, and if so, what the appropriate sentence should be. The matter was heard in the Supreme Court of Victoria. The court had to determine whether Cottrell's actions constituted the alleged offences and, if found guilty, what the appropriate terms of imprisonment should be for each count.

The legal issues before the court were whether the evidence presented by the prosecution was sufficient to establish the elements of the charges and whether any mitigating or aggravating factors should be considered in determining the sentence. The court had to assess the credibility of the witnesses, the weight of the evidence, and the nature and gravity of the offences. The court also needed to consider the impact of the offences on the community and the need for deterrence and denunciation in sentencing.

The court found that the prosecution had proven its case beyond reasonable doubt, and Cottrell was convicted on all counts. In determining the sentences, the court considered the seriousness of the offences, the impact on the victims, and the need for deterrence. The court imposed sentences of imprisonment for each count, with some sentences running concurrently and others consecutively. The court also found special circumstances in relation to counts one and two, which made Cottrell eligible for parole after serving a non-parole period. The sentences were structured to reflect the gravity of the offences and to ensure appropriate punishment and deterrence.

The final orders of the court included sentences for each count with specified terms of imprisonment, non-parole periods, and eligibility for parole where special circumstances applied. The sentences were designed to reflect the seriousness of the offences and to serve the purposes of punishment, deterrence, and denunciation.

Orders

Orders of the court

Count 4 - Convicted: Sentenced to a term of imprisonment of 9 months to commence on 08/09/10 and to expire on 07/06/11. I decline to set a non-parole period.

Count 5 - Convicted: Sentenced to a term of imprisonment of 12 months to commence on 08/09/10 and to expire on 07/09/11.

Count 3 - Convicted: Sentenced to a term of imprisonment of 6 months to commence on 08/03/11 and to expire on 07/09/11.

Count 2 - Convicted: Sentenced to a term of imprisonment which consists of a non parole period being 6 months to commence on 08/03/11 and to expire on 07/09/11. The balance of the sentence being 9 months is to expire on 07/06/2012. Finding of special circumstances. Eligible for release to parole on 07/09/11.

Count 1 - Convicted: Sentenced to a term of imprisonment which consists of a non parole period being 6 months to commence on 08/03/11 and to expire on 07/09/11. The balance of the sentence being 12 months is to expire on 07/09/2012. Finding of special circumstances. Eligible for release to parole on 07/09/11.

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 Cottrell [2010] NSWDC 213
HEARING DATE(S):	20/08/10
JUDGMENT DATE:	8 September 2010
JURISDICTION:	Crime
JUDGMENT OF:	Norrish QC DCJ
DECISION:	Count 4 - Convicted: Sentenced to a term of imprisonment of 9 months to commence on 08/09/10 and to expire on 07/06/11. I decline to set a non-parole period. Count 5 - Convicted: Sentenced to a term of imprisonment of 12 months to commence on 08/09/10 and to expire on 07/09/11. Count 3 - Convicted: Sentenced to a term of imprisonment of 6 months to commence on 08/03/11 and to expire on 07/09/11. Count 2 - Convicted: Sentenced to a term of imprisonment which consists of a non parole period being 6 months to commence on 08/03/11 and to expire on 07/09/11. The balance of the sentence being 9 months is to expire on 07/06/2012. Finding of special circumstances. Eligible for release to parole on 07/09/11. Count 1 - Convicted: Sentenced to a term of imprisonment which consists of a non parole period being 6 months to commence on 08/03/11 and to expire on 07/09/11. The balance of the sentence being 12 months is to expire on 07/09/2012. Finding of special circumstances. Eligible for release to parole on 07/09/11.
CATCHWORDS:	CRIME - Sentence - act with intent to pervert the course of justice, - subornation of perjury
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Evidence Act 1995
CASES CITED:	Markarian v The Queen (2005) 79 ALJR 1048: [2005] HCA 25 R v Einfeld [2010] NSWCCA 87 Pearce v The Queen (1998) 194 CLR 610 R v XX [2009] NSWCCA 115 Fahs v The Queen [2007] NSWCCA 26 R v Retsos [2006] NSWCCA 85 R v Nguyen (2004) 149 A Crim R 343 R v Giang [2001] NSWCCA 276
PARTIES:	Regina Christoper Paul Cottrell
FILE NUMBER(S):	2009/00010917
COUNSEL:	Mr M Barr (Crown) Mr Wasilenia (Offender)
SOLICITORS:	Director of Public Prosecutions Crimlaw (NSW) P/L - Offender