R v Cotterill

Agreed Facts

1. In November 2017 officers from Tuggerah Lakes Local Area Command commenced Strike Force Mahratta to investigate the supply of street to mid-level amounts of prohibited drug methylamphetamine on the Central Coast. This offender Allan Cotterill of 11 Hayley Close Tumbi Umbi was the principal of the syndicate, he sourced quantities of methylamphetamine which were then distributed to various members of the syndicate. These members would then on sell the drugs to their own customer base. The monies collected would then be provided to Cotterill. Cotterill would also direct the activities of the syndicate in relation to debt collection.
2. The co-offender Kirk Micallef lived with Cotterill at 11 Hayley Close, Tumbi Umbi. Between February 2018 and May 2018 Micallef sold significant quantities of methylamphetamine to an undercover police operative. He also supplied several other members of the syndicate with methylamphetamine to on sell and was responsible for collecting the profit from them, so that he and Cotterill could purchase more methylamphetamine from their up-line supplier. Micallef supplied a total of 349.9 grams of methylamphetamine to various persons during this period.
3. As part of the investigation, police captured a large volume of lawfully intercepted telephone material. The conversations between the various members of the syndicate used consistent coded terminology referring to various quantities of the prohibited drug, methylamphetamine.

Supply Prohibited Drug (40 grams Methlyamphetamine)

1. The telephone intercept material disclosed that the offender had supplied the following amounts of methylamphetamine.

• 2 March 2018 an agreement to supply 4 grams methylamphetamine;
• 10 March 2018 an agreement to supply one gram of methylamphetamine;
• 12 March 2018, the actual supply of seven grams of methylamphetamine; and 20 April 2018 an agreement to supply 28 grams of methylamphetamine.

1. The detail of the telephone intercept material that supports each of those supplies is fully set out in the agreed facts which forms part of exhibit A.

Supply Prohibited Drug (124 grams Cannabis Form 1)

1. On 4 April 2018 police stopped a vehicle being driven by Jimmy Trasmonte, 124.2 grams of cannabis was located inside his pants. The cannabis had been supplied to Trasmonte by this offender.
2. On 11 May 2018 a search warrant was executed at the offender's residence. Co-offenders Micallef and Yates were also arrested at the premises.
3. During the execution of this search warrant there was a physical struggle between the offender and Senior Constable Walker. The offender had stepped towards Senior Constable Walker and said, "You fucking dog". Senior Constable Walker told him to calm down. The offender continued to step towards the police officer who took hold of his jumper in an attempt to stop him from advancing. The offender lifted his right elbow. The police officer began pushing the offender back towards a doorway as he was concerned that they were too close to the edge of balcony.
4. The police officer and the offender fell through the doorway onto the floor in the bedroom. The offender began thrashing around violently and yelled, "He spat in my face, you spat in my face Walker, you fucking dog". Other police ran into the room and assisted to control the offender. The offender was escorted out the front of the premises (hinder police, s 166 certificate).
5. During the execution of the search warrant police located 6.89 grams of methylamphetamine hidden inside a piece of gym equipment (Form 1, supply prohibited drug).

Deal with property suspected proceeds of crime

1. During the execution of the search warrant police also located a black Subaru WRX registered to Micallef. The vehicle had been purchased for $5,000 on 27 November 2017. Various work had been carried out on the vehicle to the value of $38,500 paid for in cash by this offender.

Direct activities of suspected criminal group

1. Between 6 February 2018 and 10 May 2018 the offender knowingly directed the activities of a criminal group. That group included Kirk Micallef, James Jays, Nathan Strudwick, Dean Miller and other persons. The activities of the group was the supply of prohibited drugs.
2. Those agreed facts clearly disclose serious objective criminality. The crime of supplying prohibited drugs is regarded by the courts as extremely serious in circumstances where there are very significant detrimental effects to the community. The supply of prohibited drugs destroys the lives of individuals, it disrupts families and generates a significant cost to the community both socially and financially. The community expects and is entitled to expect that persons who commit these offences will face condign punishment.
3. Recently in Parente v R [2017] NSWCCA 284 the Court identified how a sentencing court should approach sentences in drug supply cases. In summary, the Court indicated that firstly, it is necessary for the Court to be mindful of the purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act which including importantly: 1. To prevent crime by deterring the offender and other persons from committing similar offences and, 2. To protect the community from the offender.
4. Secondly, the court must remain mindful of the maximum penalty and any standard non‑parole periods if they are applicable. The Court noted that those legislative guideposts for drug supply offences are set at a high level.
5. In particular, the Court in Parente emphasised the significant importance of general deterrence and protection of the community when dealing with drug offences. I have had regard to those general sentencing principles in determining the appropriate sentence.

Assessment of objective seriousness

1. In assessing the objective seriousness of the offence of supply prohibited drug (40 grams methylamphetamine), I have taken into account the following factors: 1. The quantity of prohibited drug supplied, namely 40 grams in circumstances where the indictable quantity is 5 grams, the trafficable quantity is 3 grams and the commercial quantity is 250 grams. 2. The supply of the prohibited drugs was for financial reward. 3. The offender's role in the drug supply hierarchy was as the principal of the drug supply syndicate. He provided drugs for distribution to street and mid-level suppliers. 4. The supplies occurred during the period 2 March 2018 to 20 April 2018.
2. Having regard to those factors, I assess the objective seriousness as below the middle of the range.
3. In assessing the objective seriousness of the offence of knowingly direct activities of a criminal group, I have taken into account the following factors: 1. The nature of the criminal activity involved, namely the supply of the prohibited drugs. 2. The level of organisation of the group. Here I am satisfied that the criminal group was unsophisticated and simplistic in its operation. 3. The direction involved organising the supply of prohibited drugs to others in the syndicate and the collection of proceeds.
4. Having regard to those factors, I assess the objective seriousness as just below the middle of the range.
5. In assessing the objective seriousness of the offence of deal with property suspected of being the proceeds of crime, I have taken into account that the value of the property that the offender dealt with was $38,500, recognising that the offence relates to property valued at less than $100,000.
6. I assess the objective seriousness of this offence as just below the middle of the range.

Form 1 Offences

1. In sentencing the offender I have taken into account the Form 1 matters in accordance with the principles enunciated in Attorney-General's Application under s37 of the Crime Sentencing Procedure Act 1999 No 1 of 2002, (2002) 56 NSWLR 146.
2. In relation to the offence of supply cannabis (124 grams) I assess the objective seriousness as below the middle of the range noting that the trafficable quantity is 300 grams.
3. In relation to the offence of supply prohibited drugs, 6.89 grams of methylamphetamine I assess the objective seriousness at the lowest end.

Section 166 Certificate offence

1. In relation to the offence of hinder police, I assess the objective seriousness at the lower end, having regard to the nature and limited extent of the hindrance disclosed in the agreed facts.

Aggravating Features

1. I am satisfied that the following aggravating features are established on the evidence. 1. Each offence whilst committed whilst the offender was on conditional liberty having been on bail from 4 October 2017. 2. The offence of supply prohibited drug (40 grams methylamphetamine) involved multiple criminal acts and was for financial gain.

Subjective circumstances

1. The offender is now 27 years of age.
2. He has a criminal history commencing as an adult in 2011 when he was dealt with for an offence of possess prohibited drug and received a fine.
3. In 2014 he was dealt with for the following offences: assault police, in respect of which he received a community service order for 150 hours; two offences of common assault, in respect of one offence he received a community service order for 50 hours, in respect of the other he received a fine; two counts of destroying property, in respect of each offence he received a fine and a s 9 bond; assault occasioning actual bodily harm, he received 150 hours community service; resist police, he received a three year s 9 bond; two offences of stalk and intimidate, he also received a three year s 9 bond.
4. In 2015 he was dealt with for an offence of affray. He received an 18 month suspended sentence.
5. In 2018 he was dealt with for offences of deal with proceeds of crime and sentenced to eight months with a non‑parole period of six months; possess prohibited weapon, he was sentenced to eight months with a non-parole period of six months; supply cannabis, he was dealt with by way of imprisonment for 15 months with a non‑parole period of ten months, on appeal the non-parole period was varied to eight months; possess prohibited drug, he received a term of imprisonment of one month.
6. Having regard to the offender's criminal history, I am satisfied that it disentitles him to leniency on sentence.
7. The following material was tendered during the sentence proceedings on behalf of the offender:

• Exhibit 1 a report of John Nolan, clinical psychologist, 11 June 2018.
• Exhibit 2 a report of John Machin, clinical psychologist 21 June 2019.
• Exhibit 3 a letter under the hand of Julie May (mother of the offender) 4 July 2019.
• Exhibit 4 a letter under the hand of Julia Cotterill (sister) dated 28 June 2019.
• Exhibit 5 a letter under the hand of Sophia Cotterill (partner) 26 June 2019.
• Exhibit 6 letter under the hand of Nigel Cotterill (stepbrother) dated 29 June 2019.
• Exhibit 7 a letter under the hand of Beverley King (friend), 6 July 2019.
• Exhibit 8 letter under the hand of Brett Manning (friend) 21 June 2019.
• Exhibit 9 letter under the hand of Hayden Yea (friend) 30 June 2019.
• Exhibit 10 defence written submissions.
• Exhibit 11 a letter under the hand of the offender dated 8 July 2019.

1. The offender's background is outlined in the reports of John Nolan and John Machin, both clinical psychologists, the letter from the offender's mother Julie May and the evidence of his mother given during the sentence proceedings.
2. The offender was born in Gosford and grew up on the Central Coast. He has one older sister, and his father has four older children who lived independently. The offender's parents separated when he was six years of age. He reported that his father was violent towards his mother. His mother's new partner was an ex SAS army veteran who was sexually and emotionally abusive towards the offender. The sexual abuse occurred on two occasions and related to the manner in which he would wash the offender in the shower.
3. When he was ten years old the offender began living with his father. He described his father as a big drinker and verbally, emotionally and physically abusive. The details of episodes of trauma are set out fully in the report of Mr Nolan. The offender also described an occasion of sexual abuse. He returned to live with mother at 14 years of age. By this age the offender reported that he felt angry and betrayed and a lot of damage had been done. His step-father remained living with his mother until the offender was 20 years of age.
4. Mr Nolan made the following observation: "Mr Cotterill gave a history of feeling unsafe during childhood, due to both his father and his step-father. in my opinion his childhood traumatic experiences would have contributed to his history of anxiety problems and fears for his safety."
5. Further, Mr Nolan made the following observations about the offender's childhood. "In my opinion, during Mr Cotterill's childhood he was exposed to chaotic family tension due to his father's alcohol and substance abuse and domestic violence, mostly perpetrated upon his wife Julie. In my opinion as a result of this phobic anxiety, Mr Cotterill did not enjoy normal parental guidance to enable the development of the capacity to mature, learn to problem solve, learn to deal with conflict and learn generally within the stability and experience of a safe family environment. Thus, during his childhood he was likely to feel he was living in unstable circumstances in the family home of first, his parents, secondly, in the home of his father and thirdly, when he returned to live with his mother and her partner Brian. In my opinion, his experience of normal maturation was thus substantially compromised over the course of his childhood. It is possible this chaos had a harmful effect on Mr Cotterill's early learning experiences and may have contributed to his well below average reading ability".
6. After leaving home at 16 years of age the offender lived with his ex-partner for five years. They have two children together. She is currently preventing him from contacting their children.
7. The offender has been with his current partner since 22 years of age. She remains supportive of him and currently lives with the offender's mother. She was in court during the sentence proceedings.

Education and employment

1. The offender experienced difficulties learning at school, caused by dyslexia. Whilst he struggled academically, he excelled at sport including rugby league, hockey, basketball and athletics and played at a representative level. He was expelled in year 8 due to a fight and left school completely in year 9.
2. In early adulthood he joined an outlaw motorcycle gang. His mother during her evidence in these sentence proceedings indicated that, in her opinion, the offender joined the outlaw motor cycle gang as he was searching for acceptance. The current offending occurred after he left the outlaw motorcycle gang.
3. Since school he has had intermittent work in the building industry and also in a pizza shop. At the time of his arrest he was working in metal roofing. He is hopeful of resuming this employment upon release from custody. Whilst in custody he has worked as a sweeper.

Substance use

1. The offender commenced cannabis use at 15 to 16 years of age. He was a heavy user until his arrest. He has tried ice a few times and began to use cocaine shortly before his arrest.
2. Mr Machin reported as follows: "Upon his admission to prison he recorded feeling sick for two months due to cannabis withdrawal with night terror sweats and loss of appetite. He said he had become aware of the enormously destructive effects of drugs from his own experience and from what he has observed in others. He said that he has abstained from all illegal drug use since entering prison and that he is confident of maintaining abstinence indefinitely".
3. The offender reported that there was a positive side to his current incarceration as he is now drug free and able to reflect upon his past conduct.

Medical history

1. The offender reported no relevant medical history.

Attitude to offending

1. In relation to the offender's attitude to his offending Mr Machin stated as follows: "Mr Cotterill was in tears through much of the assessment giving a general sense of sadness, regret and contrition. His discussion of the offence focused on his general failings at the time stating that he was selfish, that it's 'my own stupid fault'. He made no attempt to minimise his actions or deflect blame. He repeatedly stated that he is sorry for his actions and 'I've just got to pay my debt to society'. He talked about having let down his mother, his partner and his children with repeated statements of sorriness and regret".

Mental health

1. In relation to the offender's mental health history, Mr Nolan stated as follows: "Mr Cotterill gave a history of suffering for many years from fear based phobic anxiety which commenced during childhood and remained in adulthood. It appears these symptoms arose and as a result of fear of the constant physical and mental abuse perpetrated by both his father and his step-father. He reported that when he first returned to live with his mother at age 13 he felt no one liked him and consequently he felt very alone. He said he attempted suicide by preparing to hang himself from a tree at his mother's house. He said his mother grabbed him and said she loved him. He saw himself as being unloved in a world where he felt unsafe".
2. At 17 years of age the offender saw a psychiatrist in Newcastle who diagnosed him with borderline personality disorder. The offender described his contact with the psychiatrist as brief in circumstances where there was no rapport and he was ashamed to talk about his problems.
3. The offender is currently on antidepressant medication. Mr Machin was of the opinion that the offender suffers from borderline personality disorder (based on previous diagnosis) and substance use disorder.
4. Mr Nolan made the following observations: "People with a borderline condition vary widely in presentation and symptom profile but they generally feature unstable relationship functioning and self-image and impulsive or self-destructive behaviours."
5. Mr Machin was of the opinion that the offender has genuine intentions to change his lifestyle and that the offender has strong ongoing family support from his mother and partner.

Treatment recommendations

1. It was recommended that the offender consult with his GP for a medication review, that he obtain a referral for counselling and also seek psychiatric and psychological care upon release from custody.
2. It was submitted on behalf of the offender that as a consequence of the offender's deprived childhood there should be some moderation in the otherwise appropriate sentence, in circumstances where his moral culpability is reduced.
3. I am satisfied that the offender has had a childhood characterised by dysfunction, abuse and neglect and unsurprisingly, in my view this has led to his early addiction to drugs. I am satisfied these experiences of deprivation, trauma and neglect warrant a reduction in his moral culpability for the reasons set out in Bugmy v R [2013] HCA 37 at [42] to [44]. Accordingly, I propose to moderate the otherwise appropriate sentence.

Other material tendered on behalf of the offender

1. In determining the appropriate sentence, I have also had regard to the following material: Exhibit 3 a letter from the offender's mother, Julie May outlining the offender's background. The offender's mother remains supportive of him and is of the opinion the offender is genuinely remorseful. She gave evidence during the sentence proceedings.
2. Exhibit 4 a letter from the offender's sister, Julia Cotterill. The offender's sister also remains supportive of him and has indicated she has seen an increase in the offender's maturity since he has been in custody.
3. Exhibit 5 a letter from the offender's partner, Sophia Cotterill. She also remains supportive of the offender. The offender has expressed to her his desire to create a better future for himself, her and his family.
4. Exhibit 6 a letter from the offender's step-brother, Nigel Cotterill. He also remains supportive of the offender and is prepared to assist him upon release from custody.
5. Exhibit 7 a letter from Beverley King who has known the offender for 18 years. She describes an active young man "who has a heart of gold".
6. Exhibit 8 a letter from Brett Manning who has known the offender for six years. He described the offender as "very respectful" and "well-mannered and polite." He remains supportive of the offender.
7. Exhibit 9 a letter form Hayden Yea who has known the offender for ten years. He described the offender as a "great mate". He has indicated he can offer the offender employment in his metal roofing company upon his release from custody.
8. Exhibit 11 a letter from the offender. The offender apologised for his "wrong choices" and stated he was sorry and remorseful. He stated as follows: "I will never do what I have done again, ever" and further, "There is no life in drugs". He said that he has used his time in custody to rehabilitate himself and he is now proud that he is drug free.

Remorse

1. Having regard to the offender's letter to the court, I am satisfied that the offender is genuinely remorseful for his offending and he has used his time in custody to reflect upon his offending behaviour.

Prospects of rehabilitation

1. I am satisfied that the offender has very good prospects of rehabilitation having regard to his relative young age, he is now drug free, he has positive hopes and aspirations upon release from custody, he has an offer of employment and has significant support from family and friends.
2. The Court is hopeful that he maintains his current commitment to remain drug free upon release from custody. I have no doubt that the journey ahead for the offender will not be an easy one, but I am sure that with the encouragement and support, particularly of his mother and partner he can look forward to a much more positive future.
3. I am also satisfied that if the offender remains drug free he is unlikely to reoffend.

Special circumstances

1. It was submitted on behalf of the offender that the Court would find special circumstances and vary the statutory ratio between the non-parole period and the parole period pursuant to s 44(2B), Crimes (Sentencing Procedure) Act on the following grounds: 1. an extended period of parole will improve the offender's rehabilative prospects; 2. accumulation between previously imposed sentences and the current sentence; and 3. it is the offender's first period of incarceration.
2. I am satisfied that special circumstances exist and I propose to vary the statutory ratio.

Totality

1. I propose to impose an aggregate sentence pursuant to s 53A (1), Crimes (Sentencing Procedure) Act. In circumstances where the offender is being dealt with for three offences, I am required to consider the question of totality. The relevant sentencing principle to consider is whether the sentence for one offence can comprehend and reflect the criminality of the other. If so, the sentences should be concurrent, but if not there should be some accumulation (see Cahyadi v R [2007] NSWCCA 1).
2. In respect of the offences of supply prohibited drug (40 grams) and direct activities of a criminal group, I am satisfied there should be significant concurrency in circumstances where those charges relate to the same episode of criminality. There will be some modest notional accumulation for the offence of deal with property suspected of being proceeds of crime.

Parity

1. A number of other participants in the criminal group have been sentenced (see Tab 7, exhibit A) In circumstances where each other participant in the criminal group was dealt with for a variety of offences, I am satisfied there is no strict parity, but I do propose to maintain relativity having regard to the various levels of objective seriousness involved.

Indicative sentences

1. Pursuant to s 53A(2)(b) the sentences that would have been imposed for each offence had separate sentences been imposed are as follows:
2. Supply prohibited drug (40 grams methylamphetamine) the starting term is two years and eight months, less 25% discount for the plea of guilty, leaving a total term of two years.
3. Knowingly direct activities of a criminal group, taking into account the Form 1 matters, a total starting term of three years less 25% for the plea of guilty, leaving a total term of two years and three months.
4. Deal with property suspected of being proceeds of crime, a starting term of 16 months less 25% leaving a total term of 12 months.

Determination

1. In determining the appropriate aggregate sentence, I have had regard to the purposes of sentencing as set out in s 3A, Crimes (Sentencing Procedure) Act.
2. Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate for each of the matters that form part of the aggregate sentence (s 5(1), Crimes (Sentencing Sentencing) Procedure Act).
3. I have had regard to the objective gravity of the offences, the relevant prescribed maximum penalties and the offender's subjective circumstances.
4. Stand up please Mr Cotterill.
5. In relation to each offence you are convicted.
6. Taking into account the Form 1 matters you are sentenced to a total aggregate sentence of three years to date from 11 November 2018 and expire on 10 November 2021 with a non‑parole period of two years to date from 11 November 2018 and expire on 10 November 2020.
7. I have found special circumstances and I have varied the ratio between the time you spent in custody and the time on parole, so you will spend less time in custody and you will have one year on parole as a consequence of that finding.
8. I direct your release to parole on 10 November 2020. Just take a seat for the moment.
9. In relation to the offence of hinder police on the section 166 certificate you are convicted. I sentence you to a community corrections order for a period of two years to date from today. The conditions of the community corrections order are as follows: 1. You must not commit any offences. 2. You must appear before the court if called upon to do so during the term of the order.
10. Are there any further orders sought?
11. SCHUMER: Sorry your Honour before my friend proceeds, can I just ask your Honour to clarify one thing with your final calculation. The total term of imprisonment, the total sentence of three years imprisonment, but a head sentence one year on parole, back dated to 11 November 18 and released to parole on 10 November 2020 is that correct?
12. HER HONOUR: Correct.
13. SCHUMER: Thank you your Honour.
14. HER HONOUR: So it is two year non-parole period, one year parole period.
15. SCHUMER: Thank you your Honour.
16. HER HONOUR: Are there any further orders sought?
17. LEE: Yes your Honour there was an issue of forfeiture order, a drug proceeds order your Honour, that's been agreed, your Honour, I have a consent order and a short minutes of consent, but they're not signed. I was told by my colleague that the solicitor would be here, I wasn't aware that he'd be on the screen. So I'm not sure if the offender can sign them your Honour.
18. HER HONOUR: Well you tell me, can the offender sign a consent order?
19. LEE: I would have thought so your Honour but I don't know if my friend has actually seen it.
20. SCHUMER: Your Honour I've been through this with the DPP solicitor who that order is under the hand of. I have also discussed it with my client who has consented to it. There is only one thing in that, and I have no problem with him signing it your Honour, having a conversation with this offender yesterday, or recently with SDR, the State Debt Recovery office who are responsible for collecting the monies, and according to them, some judges don't mind adding special conditions to the order and I was wondering your Honour, if your Honour wouldn't mind adding some special conditions such as that the monies, the payments be put on hold until the offender is released, that no interest be payable whilst he is in custody and also that - and he starts - enters into a payment arrangement once he has employment things like that your Honour, I was wondering what your Honour's view is to add that to the order.
21. HER HONOUR: I don't propose to do that. My view is that is not my role. That's the role of State Debt Recovery and they can make an assessment of the offender's financial circumstances.
22. SCHUMER: In that case your Honour I propose that Mr Cotterill sign, if my read would just ..(not transcribable).. just to confirm that it is for $10,000?
23. LEE: It is. The order is pursuant to s 29 (1) the parties agree that Allan Cotterill derived a benefit of $10,000 from drug trafficking and then pursuant to s 92(1) the defendant pays to the State of New South Wales a drug proceeds order in the sum of $10,000.
24. SCHUMER: Well I am happy for my client, for Mr Cotterill to sign that.
25. LEE: Could I approach - thank you your Honour.
26. SCHUMER: If I could ask my friend at a later time when it suits his office to please scan and provide myself with a copy.
27. LEE: Of course.
28. SCHUMER: Of the signed document.
29. LEE: I hand up the short minutes of consent order signed by Mr Cotterill and a copy of the consent order.
30. HER HONOUR: So pursuant to s 29 the parties agree that the offender derived a benefit of $10,000 from drug trafficking at any time and pursuant to 29(1) of the Confiscation of Proceeds of Crimes Act, I order that the offender pay to the State of New South Wales a drug proceeds order in the sum of $10,000. I will sign the order. I note that's by consent. Are there any other orders sought?
31. LEE: No your Honour.
32. SCHUMER: No your Honour.
33. HER HONOUR: That now completes the matter Mr Cotterill. Thank you I will disconnect the audio visual link.
34. AUDIO VISUAL LINK CONCLUDED AT 10.15AM DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 June 2020