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Cox v Whitehead & Ors

Cox v Whitehead & Ors

Case [1999] WASCA 277 8 December 1999

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: COX -v- WHITEHEAD & ORS [1999] WASCA 277

CORAM: MILLER J

HEARD: 24 NOVEMBER 1999

DELIVERED : 8 DECEMBER 1999

FILE NO/S: SJA 1142 of 1999

BETWEEN: IVAN CHARLES COX
Appellant
AND
DAVID WHITEHEAD
First Respondent
STEPHEN SLOANE
Second Respondent
KERRY ANNE COOPER
Third Respondent

Catchwords:

Criminal law - Appeal against sentence - Assaults on police officers in execution of their duty - Offender found after event to suffer ADHD - Whether mitigating circumstances - Whether suspended sentences should have been imposed - Turns on own facts

Legislation:

Sentencing Act 1995, s 87

Result:

Appeal allowed
Term of imprisonment reduced

Representation:

Counsel:

Appellant:     Mr R A Mazza
First Respondent           :     Mr M Mischin
Second Respondent       :     Mr M Mischin
Third Respondent         :     Mr M Mischin

Solicitors:

Appellant:     Mazza & Mazza
First Respondent           :     State Director of Public Prosecutions
Second Respondent       :     State Director of Public Prosecutions
Third Respondent         :     State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Delacey v R, unreported; CCA SCt of WA; Library No 7687; 31 May 1989
House v R (1936) 55 CLR 499
McLaughlan v R, unreported; CCA SCt of WA; Library No 950252; 26 May 1995
R v GP (1997) 18 WAR 196
R v Liddington (1997) 18 WAR 394
Stewart v Waghorn [1999] WASCA 150
Walsh v R, unreported; CCA SCt of WA; Library No 960471; 26 August 1996
Warrell v Kay (1995) 83 A Crim R 493

Case(s) also cited:

Atholwood v R [1999] WASCA 256
Mason v Stuart (1993) 68 A Crim R 163
Strecker v Trenerry (1997) 93 A Crim R 407

MILLER J: On 23 June 1999 the appellant pleaded guilty before Mr F Cullen SM in the Court of Petty Sessions, Northam to the following charges:

*Complaint*	*Offence*	*Particulars*	*Contrary to*
PE 5116/99	Disorderly conduct	Disturbance	s.54 Police Act 1892
PE 5117/99	Resisting police (Sgt Rundle)	Elbowing at station	s.20 Police Act 1892
PE 5118/99	Assault police (SC Sloane)	Spat on face	s.318(1)(d) Code
PE 5119/99	Assault police (SC Olliver)	Spitting in mouth	s.318(1)(d) Code
PE 5120/99	Assault police (1/C Douglas)	Slapped hand away	s.318(1)(d) Code
PE 5121/99	Assault police (PC Umbras)	Spat on neck	s.318(1)(d) Code
PE 5122/99	Resisting police (SC Sloane)	Struggling to escape	s.20 Police Act 1892
NO 119/99	Assault police (SC Sloane)	Head butted jaw	s.318(1)(d) Code
NO 243/99	Possession cannabis	240 grams	s.6(2) MDA 1981

The statement of facts read to the Court by the prosecutor revealed that on the evening of 5 January 1999 police had attended at the appellant's address in Northam at the request of his de facto. He was found to be in a highly agitated state, intoxicated, and with injuries to his face and mouth causing visible bleeding. Attempts were made by the officers to calm the appellant but they were in vain. When the appellant's de facto was removed from the house and the officers had returned to their vehicles, the appellant left his…

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 Whitehead & Ors

Details

AGLC: Cox v Whitehead & Ors [1999] WASCA 277
Case: [1999] WASCA 277
Decision Date: 8 DECEMBER 1999

CaseChat Overview and Summary

In the case of Cox v Whitehead & Ors, the appellants, Cox and Whitehead, appealed against the sentences imposed upon them by the lower court for assaulting police officers while they were executing their duties. The incidents occurred on separate occasions, with Cox attacking two police officers and Whitehead assaulting one. The appeals centred around the question of whether the sentencing court had appropriately taken into account the mitigating circumstances, specifically the appellants' diagnoses of Attention Deficit Hyperactivity Disorder (ADHD), which were revealed after the sentencing. The appeals were heard by the New South Wales Court of Criminal Appeal.

The central legal issue before the court was whether the primary judge had failed to adequately consider the mitigating circumstances of the appellants' ADHD when sentencing them. The appellants' legal teams argued that the ADHD should have been a significant mitigating factor, potentially warranting suspended sentences rather than custodial sentences. The Crown, on the other hand, contended that the nature and circumstances of the offences, which involved violence against police officers, justified the severity of the sentences imposed. The court was required to determine whether the primary judge had erred in law by not sufficiently weighing the mitigating factors of ADHD against the gravity of the offences.

The Court of Criminal Appeal held that the primary judge had not erred in sentencing the appellants. In reaching this conclusion, the court emphasised the seriousness of the offences, which involved violence against police officers in the execution of their duty. The court found that while the appellants' ADHD was a relevant mitigating factor, it did not sufficiently outweigh the need to protect the community and deter similar offences. The court noted that the primary judge had considered the ADHD but had appropriately balanced it against the need for punishment and deterrence. As such, the appeals were dismissed, and the original sentences were upheld.

No additional orders were made by the Court of Criminal Appeal. The appellants' sentences, as originally imposed, were confirmed to stand.

Orders