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:

This is an application for permission to appeal against sentence on the ground of manifest excess.
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.
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.
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).
The applicant and the victim had become friends and had consensual sexual intercourse in October and…

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 Queen

Details

AGLC: Cox v The Queen [2021] SASCA 141
Case: [2021] SASCA 141
Decision Date: 25 November 2021

CaseChat Overview and Summary

The applicant, Cox, appealed against a sentence imposed by a sentencing judge. The appeal concerned the severity of the sentence for an offence related to indecent assault.

The Court was required to determine whether the sentence imposed was manifestly excessive or inadequate, and whether there were any grounds for interference with the sentencing judge's decision. Specifically, the Court considered whether the sentence adequately reflected the need for deterrence in light of the prevalence of mobile phones capable of recording images.

The Court reasoned that the sentencing judge was correct to consider the need for general deterrence, particularly given the widespread availability of mobile phones for recording such conduct. The Court found that no issue of principle was raised by the appeal and concluded that, in all the circumstances, the starting point and the ultimate sentence were not manifestly excessive.

Accordingly, the Court refused permission to appeal and dismissed the appeal.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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