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Court of Criminal Appeal 23 November 2020

Cotter v R

[2020] NSWCCA 299

Assault & violenceDrugsTheft & propertyTraffic & driving
CRIMINAL LAW OFFENCES SENTENCE APPEAL DRIVING WHILST DISQUALIFIED ERROR ESTABLISHED

Citation: Cotter v R [2020] NSWCCA 299
Court: NSW Court of Criminal Appeal
Date: 23 November 2020
Judge(s): Payne JA, Bellew J, Wright J

Background

The appellant pleaded guilty in the Local Court to four offences arising from a single incident on 25 April 2019: using a motor vehicle as an offensive weapon with intent to prevent lawful apprehension, driving a stolen vehicle, driving whilst disqualified, and driving with methamphetamine present in his oral fluid. The matter was committed to the District Court for sentence.

The facts were serious. Police identified the appellant's stolen vehicle using an automated number plate recognition system and surrounded it at traffic lights. When directed to exit, the appellant repeatedly rammed surrounding vehicles, including a police vehicle, and caused a police officer to be struck by the car door and fall onto a nearby vehicle, sustaining knee and wrist injuries. The appellant ultimately fled on foot across four lanes of traffic before being apprehended.

The District Court imposed an aggregate sentence of seven years' imprisonment with a non-parole period of four years and six months. The appellant sought leave to appeal, arguing the sentencing judge had made a legal error in her treatment of the spontaneous nature of the principal offending.

  • Whether the sentencing judge erred by finding the principal offending was spontaneous but then declining to treat that spontaneity as a mitigating factor under s 21A(3)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the absence of planning is an inherent characteristic of the offence of using an offensive weapon to prevent or hinder lawful apprehension, such that it carries no mitigating weight
  • Whether, if error was established, the Court of Criminal Appeal should re-sentence the appellant

Decision

The Court of Criminal Appeal found that the sentencing judge had erred. Section 21A(3)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) expressly identifies as a mitigating factor the circumstance that "the offence was not part of a planned or organised criminal activity." The sentencing judge had made a clear finding that the offending was spontaneous, but then declined to apply that finding in mitigation by treating it as merely the absence of an aggravating factor. This conflation was an error of principle.

The Court also rejected the Crown's submission that lack of planning is an inherent characteristic of this type of offence. Bellew J observed that the offence of using an offensive weapon to prevent apprehension can plainly be committed in a premeditated way: for example, a person might arm themselves with a weapon in advance precisely to aid escape. Spontaneity, therefore, is not inevitable in such offending and can legitimately operate in mitigation where it is established on the facts.

Having found appealable error, the Court proceeded to re-sentence the appellant. In doing so, it treated general deterrence as a significant consideration. The appellant's prospects of rehabilitation were characterised as contingent largely on sustained abstinence from illicit drugs and engagement with appropriate treatment. The Court found special circumstances warranting a departure from the standard ratio of non-parole to head sentence, to allow a longer parole period for the appellant to engage with counselling and rehabilitation programs.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Aggregate sentence imposed in the District Court of NSW quashed
  • Appellant re-sentenced to an aggregate term of 5 years' imprisonment, commencing 25 April 2019 and concluding 24 April 2024
  • Non-parole period of 3 years and 3 months, commencing 25 April 2019 and expiring 24 July 2022
  • Indicative sentences: Count 1 (including Form 1 matter) 4 years 6 months; Count 2 1 year 9 months; Count 3 4 months; Count 4 conviction without further penalty under s 10A
  • Periods of disqualification from driving imposed in the District Court confirmed

Key Takeaways

  • Under s 21A(3)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the fact that an offence was not part of a planned or organised criminal activity is a prescribed mitigating factor, not merely the absence of an aggravating circumstance. A sentencing judge who makes a finding of spontaneity is required to give it mitigating weight.

  • The proposition that the absence of an aggravating factor is not itself a mitigating factor, while correct as a general principle, does not displace a statutory mitigating factor that is directly engaged by the established facts.

  • Lack of planning is not an inherent characteristic of the offence of using an offensive weapon with intent to prevent lawful apprehension. Because the offence can be committed with premeditation, spontaneous commission of it can attract mitigating weight.

  • Where the Court of Criminal Appeal identifies sentencing error, it conducts a fresh sentencing exercise rather than applying a mathematical correction to the original sentence.

  • A finding of special circumstances can justify adjusting the statutory non-parole ratio where a longer parole period is likely to support the offender's rehabilitation, particularly where that rehabilitation depends on ongoing drug treatment and counselling.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33B(1)(a), 154A(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A (aggravating, mitigating and other sentencing factors), s 10A
- Criminal Procedure Act 1986 (NSW)
- Road Transport Act 2013 (NSW), ss 54(1)(a), 111(1)(a)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- R v Elfar [2003] NSWCCA 358
- R v Hamilton (1993) 66 A Crim R 575
- R v Qutami (2001) A Crim R 369; [2001] NSWCCA 353
- Saddler v R (2009) 194 A Crim R 452; [2009] NSWCCA 83
- Weber v R [2020] NSWCCA 103