Cotter v R [2020] NSWCCA 299

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Cotter v R [2020] NSWCCA 299 Hearing dates: 6 November 2020 Decision date: 23 November 2020 Before: Payne JA at [1] Bellew J at [2] Wright J at [58] Decision: (1) Leave to appeal granted. (2) Appeal allowed. (3) Aggregate sentence imposed in the District Court of NSW quashed. (4) In lieu thereof, the applicant is sentenced to imprisonment for 5 years commencing on 25 April 2019 and concluding on 24 April 2024. (5) I specify a non-parole period of 3 years and 3 months' imprisonment commencing on 25 April 2019 and expiring on 24 July 2022. (6) I confirm the periods of disqualification from driving which were imposed in the District Court of New South Wales. Catchwords: CRIMINAL LAW – Offences – Sentence – Appeal – Using an offensive weapon (a motor vehicle) with intent to prevent lawful apprehension – Driving a conveyance taken without the consent of the owner – Driving whilst disqualified – Driving with the presence of an illicit drug in his oral fluid – Finding by the sentencing judge that the principal offending of using an offensive weapon with intent to avoid lawful apprehension was spontaneous – Where sentencing judge concluded that this was not a mitigating factor –Error established – Necessity to re-sentence the applicant in the fresh exercise of the sentencing discretion – General deterrence of particular significance – Where prospects of rehabilitation largely dependent on drug rehabilitation – Special circumstances justifying adjustment of statutory ratio – Applicant re-sentenced Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Cases Cited: 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 Category: Principal judgment Parties: Ben Cotter – Applicant Regina – Respondent Representation: Counsel: L Fernandez – Applicant M Kumar – Respondent