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Cox v The King; R v Cox

Cox v The King; R v Cox

Case [2023] SASCA 43 21 April 2023

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
COX v THE KING; R v COX
[2023] SASCA 43
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
21 April 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CONCURRENT SENTENCES
On 9 September 2022, following guilty pleas, the applicant was sentenced for one count of aggravated threatening life, contrary to s 19(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) (Count 4) and one count of aggravated assault, contrary to s 20(3) of the CLCA (Count 5). The aggravating circumstance alleged in relation to both offences was that the applicant was in a relationship with the victim at the time of the offending.
The sentencing Judge imposed a single penalty for both counts pursuant to s 26 of the Sentencing Act 2017 (SA). The applicant was sentenced to four years and nine months imprisonment, reduced by five per cent on account of his guilty pleas to four years, six months, and five days. A non-parole period of two years and eight months was fixed. Both the head sentence and the non‑parole period were backdated to commence on 29 October 2020, when the applicant was taken into custody. An intervention order, with conditions, was also imposed.
The sentencing Judge found that there was not good reason to suspend the sentence, either wholly or partially, and declined to make a home detention order.
The applicant now appeals against the sentence on the following grounds:
1.The sentencing Judge erred by failing to consider, and afford, any concurrency of the notional head sentences for each count.
2.The sentence was manifestly excessive.

The appeal is the subject of a cross-appeal brought by the Director of Public Prosecutions (‘the Director’). The Director contends that the sentence imposed is manifestly inadequate. The Director does not pursue the cross-appeal if the applicant is refused permission to appeal on either ground.
The applicant seeks an extension of time to bring this appeal pursuant to r 193.1 of the Joint Criminal Rules 2022 (SA).
Held, per the Court, granting an extension of time to file the notice of appeal, refusing permission to appeal on both grounds, dismissing the appeal and dismissing the Director’s cross-appeal:
1.The sentencing Judge did not err in considering that, had separate sentences been imposed, the sentences should be served cumulatively with no order for complete or partial concurrency.
2.The sentence was within the permissible range and was not manifestly excessive.

Criminal Law Consolidation Act 1935 (SA) ss 19(1), 20(3); Criminal Law (Sentencing) Act 1988 (SA) s 18A; Joint Criminal Rules 2022 (SA) r 193.1; Sentencing Act 2017 (SA) ss 26, 26(2a), referred to.
Attorney-General (SA) v Tichy (1982) 30 SASR 84; Hili v The Queen (2010) 242 CLR 520; R v Copeland (No…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cox v The King; R v Cox

Details

AGLC: Cox v The King; R v Cox [2023] SASCA 43
Case: [2023] SASCA 43
Decision Date: 21 April 2023

CaseChat Overview and Summary

The applicants, Cox and Cox, appealed against their sentences imposed by the District Court of South Australia. The appeals concerned the imposition of concurrent sentences for various offences.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the sentencing judge erred in imposing concurrent sentences for the offences committed by the applicants, particularly in light of the nature and circumstances of those offences. The court was required to consider the principles governing the imposition of concurrent versus cumulative sentences and whether the sentencing judge had adequately considered these principles.

The Full Court reasoned that while a sentencing judge has a broad discretion in determining whether sentences should be served concurrently or cumulatively, this discretion must be exercised judicially and in accordance with established sentencing principles. The court considered the totality principle, which requires that the total sentence imposed should reflect the overall criminality of the offender. In this instance, the court found that the sentencing judge had not given sufficient weight to the totality principle when imposing concurrent sentences, leading to an outcome that was not adequately reflective of the seriousness of the combined offending. The court also considered the need for sentences to be just and appropriate, taking into account the individual circumstances of the offenders and the nature of the offences.

The Full Court allowed the appeals, quashed the original sentences, and resentenced the applicants. The court imposed cumulative sentences for some of the offences, resulting in a longer overall period of imprisonment for each applicant, to better reflect the totality of their criminal conduct.

Orders