R v COTTER [2005] NSWCCA 187

New South Wales Court of Criminal Appeal

CITATION: R v COTTER [2005] NSWCCA 187

HEARING DATE(S): 6 May 2005

JUDGMENT DATE: 6 May 2005

JUDGMENT OF: Grove J at 28; Hulme J at 1; Simpson J at 29

DECISION: Appeal against conviction is dismissed; Leave to appeal against sentence granted but that appeal is dismissed also.

Regina PARTIES: Andrew James Cotter

FILE NUMBER(S): CCA 2004/2862

Crown: D Frearson COUNSEL: Appellant: M Johnston

Crown: S Kavanagh SOLICITORS: Appellant: SE O'Connor

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/31/0225

LOWER COURT JUDICIAL OFFICER: Coolahan DCJ

- 8 - IN THE COURT OF CRIMINAL APPEAL 2004/1820

GROVE J HULME J SIMPSON J

Friday 6 May 2005 R v ANDREW JAMES COTTER Judgment 1 HULME J: On 23 March 2004 the above named Appellant was arraigned on three charges:- 1. That on 15 February 2002 he did have sexual intercourse with TLH without her consent and knowing she was not consenting. 2. That on 15 February 2002 he did assault TLH thereby occasioning to her actual bodily harm. 3. That on 15 February 2002 he did assault TLH. 2 There will be no publication of the name of the complainant in the case. Hence it has been convenient to refer to her in the preceding paragraph and in the balance of these reasons as TLH. 3 To each charge the Appellant pleaded not guilty. On 25 March a Jury returned verdicts of not guilty on counts 1 and 3 and a verdict of guilty on count 2. 4 Later that day his Honour sentenced the Appellant by directing his release upon him entering into a bond pursuant to Section 9 of the Crimes (Sentencing Procedure) Act conditioned that he be of good behaviour for a period of 3 years and accepting the supervision of the New South Wales Probation and Parole Service for so long as that Service considered necessary. His Honour also made an apprehended violence order pursuant to Section 562B(e). 5 The grounds of appeal are: 1. The verdict of guilty on count 2 is unreasonable and cannot be supported having regard to the evidence and to the verdicts of not guilty on counts 1 and 3. 2. The sentence was manifestly excessive.