Cox v The Queen

[2021] SASCA 141

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

COX v THE QUEEN

[2021] SASCA 141

Judgment of the Court of Appeal  (ex tempore)

(The Honourable President Livesey and the Honourable Justice David)

25 November 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES

The applicant pleaded guilty to one count of indecent assault, contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA), and one count of indecent filming, contrary to s 26D(1) of the Summary Offences Act 1953 (SA).

On 25 August 2021, the applicant was sentenced to a term of three years, nine months, two weeks and five days imprisonment, with a non-parole period of one year and nine months. The applicant seeks permission to appeal this sentence on the sole ground that it is manifestly excessive.

Held (per the Court), refusing permission to appeal and dismissing the appeal:

1.Given the prevalence of mobile phones which record still and moving images, it was necessary for the sentencing Judge to impose a sentence which would deter others minded to engage in like conduct.

2.No issue of principle is raised and it cannot be said that the starting point or the ultimate sentence were, in all of the circumstances, manifestly excessive.

Criminal Law Consolidation Act 1935 (SA) s 56; Summary Offences Act 1953 (SA) s 26D(1); Sentencing Act 2017 (SA) ss 71(2)(b)(ii), 96(3)(ba), referred to.
Ndreka v The Queen [2021] SASCA 11; Ellis v The Queen [2021] SASCA 103, considered.

COX v THE QUEEN
[2021] SASCA 141

Court of Appeal- Criminal:  Livesey P and David JA

The Court:

1. This is an application for permission to appeal against sentence on the ground of manifest excess.

2. On 25 August 2021, the applicant was sentenced as follows:

   1.One count of indecent assault, contrary to s 56 of the Criminal Law Consolidation Act1935 (SA), for which the maximum penalty was eight years imprisonment; and

   2.One count of indecent filming, contrary to s 26D(1) of the Summary Offences Act 1953 (SA), for which the maximum penalty was two years imprisonment or a fine of $10,000.00.

3. The sentencing Judge commenced with a single sentence of four years imprisonment, reduced by five per cent on account of the guilty pleas made at trial to three years, nine months, two weeks and five days.  A non-parole period of one year and nine months was fixed.

4. The applicant was sentenced for an offence which was defined as a “serious sexual offence”, being indecent assault.  Upon imposing a term of imprisonment, it was not open to suspend or order that it be served on home detention.[1]

   [1]     Sentencing Act 2017 (SA), ss 96(3)(ba) and 71(2)(b)(ii).

5. The applicant and the victim had become friends and had consensual sexual intercourse in October and December 2018 and in January 2019.  They engaged in drug use.  So far as the victim was aware, she was not filmed.  However, on occasions, the victim went to sleep in the same house as the applicant and woke up in a location different from where she had gone to sleep.  On occasions, it appeared that she had engaged in sexual intercourse but had no memory of doing so. 

6. In late 2018, the victim accessed the applicant’s mobile phone and found a photograph of herself partially naked, taken without her knowledge or consent.  When she confronted the applicant, he said that he would delete it. 

7. On New Year’s Eve 2018, the victim again accessed the applicant’s mobile phone and again found the photo which had not been deleted.  She became angry with the applicant. 

8. On 16 January 2019, the victim woke in her bed to find the applicant digitally penetrating her and an act of consensual intercourse occurred.  A few days later, the victim invited the applicant to her house with the intention of checking his devices.  Whilst the applicant was asleep, she accessed his phone and located a video of herself in which she appeared to be digitally penetrated whilst she was sleeping. 

9. Police later located a video on the applicant’s phone that appears to have been taken on 29 December 2018 at around 2:11am.  It shows the victim asleep on the couch with the applicant filming her whilst touching her.  He can be seen moving her underwear and touching her vagina with his fingers and filming his own penis near her vagina.  The victim appears to remain asleep. 

10. The indecent assault comprised the applicant touching the victim without her consent on the area of her vagina whilst sleeping.

11. The indecent filming comprised the applicant filming the victim’s genital area without her knowledge or consent at the same time.

12. Given the other images taken without the victim’s knowledge or consent, Count 2 was not isolated. 

13. The sentencing Judge categorised the offences as serious, because the applicant took advantage of a woman who was not only experiencing a vulnerable period in her life, but she was vulnerable whilst sleeping when the applicant filmed her and had intimate contact with her without her consent. It is of course significant that the applicant had been warned by the victim but engaged, nevertheless, in a serious abuse of trust.

14. Whilst there was contrition and scope for rehabilitation, it was necessary for the sentencing Judge, given the prevalence of mobile phones which record still and moving images, to impose a sentence which would deter the applicant and others minded to engage in conduct of this kind without consent.  Deterrence, both personal and general, had an important bearing on sentence.

15. Whilst the sentence was high, no point of principle is raised and, in our opinion, it cannot be said that the starting point or the ultimate sentence were, in all of the circumstances, manifestly excessive.[2]

    [2]    Ndreka v The Queen [2021] SASCA 11, [28] (Doyle JA, with whom Kelly P and Bleby JA agreed); Ellis v The Queen [2021] SASCA 103, [20] (Livesey P and David JA).

16. Permission to appeal is refused.