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District Court 8 September 2010

R v Cottrell

[2010] NSWDC 213

Public order & justice offences
CRIME SENTENCE SUBORNATION OF PERJURY

Citation: R v Cottrell [2010] NSWDC 213
Court: District Court of New South Wales
Date: 8 September 2010
Judge(s): Norrish QC DCJ

Background

The offender, Christopher Paul Cottrell, was a Chief Transit Officer employed by RailCorp at the time of the relevant events. On 12 September 2004, he was acting in a supervisory capacity over a team of Transit Officers at Central Railway Station in Sydney. An incident occurred involving the detention and treatment of a member of the public, Todd Casserly, who was belligerent and uncooperative when approached by officers over a ticketing matter.

Following the incident, Cottrell caused two subordinate officers and a colleague to make false written statements or notebook entries misrepresenting the circumstances of Casserly's detention and treatment. Those false accounts were subsequently relied upon in Local Court proceedings arising from an assault charge brought against Cottrell. Two further officers, Papafilopoulos and Federico, gave false evidence at those Local Court proceedings.

A jury found Cottrell guilty of five offences after a trial lasting nearly four weeks. Three counts related to causing false documents to be created with intent to pervert the course of justice, and two counts related to subornation of perjury in connection with the Local Court hearing.

  • The appropriate sentence for three counts of acting with intent to pervert the course of justice under s 391 of the Crimes Act 1900 (maximum 14 years each)
  • The appropriate sentence for two counts of subornation of perjury under s 333(1) of the Crimes Act 1900 (maximum 7 years each)
  • Whether special circumstances existed justifying a departure from the standard ratio between non-parole period and total sentence
  • The totality of sentence across five counts and the appropriate structure of concurrent and cumulative terms
  • Whether a protective custody recommendation was warranted given the offender's background as a law enforcement officer

Decision

Norrish QC DCJ found that the offences were serious, involving a deliberate and sustained effort by a senior law enforcement officer to corrupt the processes of justice. The conduct included causing subordinates to falsify records shortly after the incident and then orchestrating false evidence before a court. The judge treated the offender's position of authority and the fact that he involved junior and relatively inexperienced officers as significant aggravating features.

The court applied the principles of totality to structure the sentences so that the overall term was just and proportionate, running some sentences concurrently and others cumulatively. Special circumstances were found in relation to counts 1 and 2, warranting a greater than standard proportion of the sentence being served on parole. This reflected the offender's need for supervision and support upon release given the circumstances of his imprisonment, including that he was a former law enforcement officer requiring protection.

The total effective sentence was two years imprisonment with a non-parole period of 12 months. The court also made a recommendation to the Department of Corrective Services that Cottrell be placed on a protection order for accommodation in a special management area, with all necessary steps taken for his protection during transportation.

Orders Made

  • Count 4: 9 months imprisonment commencing 8 September 2010, expiring 7 June 2011. No non-parole period set.
  • Count 5: 12 months imprisonment commencing 8 September 2010, expiring 7 September 2011.
  • Count 3: 6 months imprisonment commencing 8 March 2011, expiring 7 September 2011 (concurrent with counts 4 and 5 in their later portion).
  • Count 2: Non-parole period of 6 months commencing 8 March 2011, expiring 7 September 2011; balance of 9 months expiring 7 June 2012. Special circumstances found. Eligible for parole 7 September 2011.
  • Count 1: Non-parole period of 6 months commencing 8 March 2011, expiring 7 September 2011; balance of 12 months expiring 7 September 2012. Special circumstances found. Eligible for parole 7 September 2011.
  • Total effective sentence: 2 years imprisonment with a non-parole period of 12 months.
  • Recommendation: That Corrective Services place the offender on a protection order for a special management area such as the Dawn De Lois Centre, with all necessary protective steps taken during transportation.

Key Takeaways

  • A senior transit officer who orchestrated the falsification of official records and the giving of false evidence to protect himself from an assault charge received a total sentence of two years with a 12-month non-parole period across five serious offences.
  • Abusing a position of authority to involve junior and inexperienced subordinates in criminal conduct directed at perverting justice was treated as a significant aggravating factor in sentencing.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 were found appropriate where the offender faced particular vulnerabilities in custody as a former law enforcement officer, justifying a larger proportion of the sentence being served on parole.
  • The totality principle required the District Court to carefully calibrate which sentences ran concurrently and which ran cumulatively, to produce an overall term that was proportionate to the offender's total criminality rather than merely aggregating individual terms.
  • Where an offender's background creates genuine safety concerns in the custodial environment, a sentencing court may make recommendations to the Department of Corrective Services regarding protective custody placement, even though the ultimate decision rests with correctional authorities.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 333(1), 333(2), 391
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Evidence Act 1995 (NSW)

Cases:
- 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