Cotter v R [2020] NSWCCA 299

Cotter v R [2020] NSWCCA 299

Because the sentencing judge expressly found that the principal offence was committed without planning or forethought and appeared spontaneous, s 21A(3)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) required that fact to be taken into account as a mitigating factor. The failure to do so was error, requiring the Court to grant leave, allow the appeal, quash the aggregate sentence and re-sentence the applicant.

Jurisdiction
Australia
Judgment Date
23 November 2020
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal From Sentence Imposed in the District Court of NSW
Outcome
Leave to appeal granted; appeal allowed; aggregate sentence quashed; applicant re-sentenced to 5 years' imprisonment with a non-parole period of 3 years and 3 months; driving disqualification periods confirmed.
Legal Topics
['using an Offensive Weapon With Intent to Prevent or Hinder Lawful Apprehension' 'driving a Conveyance Taken Without Consent of Owner' 'driving Whilst Disqualified' 'driving With Presence of Illicit Drug in Oral Fluid' 'mitigating Factors' 'spontaneous Offending' 'aggregate Sentence' 'special Circumstances' 'general Deterrence' 'drug Rehabilitation']
['criminal Law' 'sentencing'] ['using an Offensive Weapon With Intent to Prevent or Hinder Lawful Apprehension' 'driving a Conveyance Taken Without Consent of Owner' 'driving Whilst Disqualified' 'driving With Presence of Illicit Drug in Oral Fluid' 'mitigating Factors' 'spontaneous Offending' 'aggregate Sentence' 'special Circumstances' 'general Deterrence' 'drug Rehabilitation']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal From Sentence Imposed in the District Court of NSW

Legal Issues

  1. 1 ['Whether the sentencing judge erred by finding that the principal offence occurred without planning or forethought and appeared spontaneous, but failing to treat that finding as a mitigating factor under s 21A(3)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW).' 'Whether the applicant should be re-sentenced in the fresh exercise of the sentencing discretion.']

Ratio Decidendi

Because the sentencing judge expressly found that the principal offence was committed without planning or forethought and appeared spontaneous, s 21A(3)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) required that fact to be taken into account as a mitigating factor. The failure to do so was error, requiring the Court to grant leave, allow the appeal, quash the aggregate sentence and re-sentence the applicant.

Court Disposition

Leave to appeal granted; appeal allowed; aggregate sentence quashed; applicant re-sentenced to 5 years' imprisonment with a non-parole period of 3 years and 3 months; driving disqualification periods confirmed.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed.' 'Aggregate sentence imposed in the District Court of NSW quashed.' 'In lieu thereof, the applicant is sentenced to imprisonment for 5 years commencing on 25 April 2019 and concluding on 24 April 2024.' "I specify a non-parole period of 3 years and 3 months' imprisonment...