R v COX - [2007] SASC 442

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v COX
[2007] SASC 442
Judgment of The Court of Criminal Appeal (ex tempore)
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Sulan)
11 December 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED
Application for permission to appeal against sentence - applicant convicted of murder - sentencing Judge set non-parole period of 18 years and three months - whether non-parole period manifestly excessive - whether sentencing Judge gave insufficient weight to applicant's physical and mental conditions in fixing the non-parole period.
Held: Application refused.

R v COX
[2007] SASC 442

DOYLE CJ: I also would refuse permission to appeal on the grounds that there is no arguable error demonstrated and I agree with the reasons given by Sulan J.
BLEBY J: I agree.
SULAN J: This is an application for permission to appeal against sentence.
On 27 June 2006, following a trial by judge alone, the applicant was convicted of the murder of Nicole Sheree Mazey, the deceased.
On 12 September 2003 the applicant violently assaulted the deceased. She died from the injuries sustained on 19 September 2003. At the time of her death, the deceased was 21 years of age. The applicant was some 14 years older. The deceased had been living in a de facto relationship with the applicant since July 2000.
The applicant pleaded not guilty on the grounds of mental incompetence. He admitted the objective elements. The psychiatric condition from which he suffered was characterised as morbid jealousy and delusional infidelity.
The trial Judge rejected the defence and convicted the applicant.
In the course of detailed reasons the trial Judge described the applicant’s conduct throughout the relationship and on 12 September 2003. The applicant had, throughout the relationship, held unfounded suspicions that the deceased was unfaithful. There was no evidence to support that belief. Throughout the relationship the deceased denied any infidelity. Throughout the relationship she was subjected to both verbal and physical abuse by the applicant.
The deceased continued to remain with the applicant despite his conduct towards her. She professed her love for him at all times.
The trial Judge found that the applicant dominated the deceased throughout the relationship. The applicant denied that the relationship was abusive. There was evidence from witnesses who had observed bruising and other injuries to the deceased during the time of the relationship. Nevertheless the deceased never complained to anyone that her injuries were caused by the applicant.
On 12 September 2003, after the assault, the applicant drove the deceased to the Lyell McEwin Hospital. She was unconscious. She was found to have massive facial swelling and bruising and gross swelling of the neck. She was transferred to the Royal Adelaide Hospital where she was admitted to the Intensive Care Unit. She died on 19 September 2003.
The post-mortem examination revealed multiple bruising to the top and back of her head and neck and to her limbs, torso and trunk. She had aged bruising to her breasts. She had bruising to her upper back which may have been caused by blows from a cane or stick.
The applicant said in his evidence that the deceased suffered these injuries on 12 September 2003 as a result of attempting to grab him. He said he had pushed her away and kicked her when she tried to grab his leg. He said he had tied up the deceased’s legs because she continued to follow him around. He said that some of her injuries were self-inflicted whilst others were the result of her accidentally falling against objects.
The trial Judge rejected the applicant’s explanation. He concluded that the deceased would have suffered many of the injuries as a consequence of a direct assault upon her. The trial Judge was satisfied beyond reasonable doubt that the applicant punched, shoved and kicked the deceased with the blows being mainly to her head. He concluded that the fatal blows occurred late in the assault. They caused the deceased to lose consciousness. He was satisfied that the fatal injuries were not caused by the deceased falling and hitting her head. He concluded that the assault continued over a protracted period. He found that during that period there were intervals in which the applicant stopped his attack. The applicant had time and opportunity to reflect on his conduct yet, more than once, he resumed his assault on the deceased and beat her until she eventually lost consciousness.
On 20 September 2006 the trial Judge sentenced the applicant to the mandatory sentence of life imprisonment. He fixed a non-parole period of 18 years and three months. In fixing the non-parole period the trial Judge took into account that the applicant suffers from multiple sclerosis and that he requires daily treatment for the condition. He had regard to the possibility that the applicant’s condition will deteriorate over time.
The rate of deterioration is unknown but the medical evidence was that the medication available and being taken by the applicant significantly reduces a sufferer’s rate of deterioration. The medical opinion was that if the condition was treated the severity of the applicant’s condition would be significantly reduced.
The sentencing Judge was satisfied that adequate treatment could be provided to the applicant whilst in custody.
The Judge also had regard to the applicant’s psychiatric condition. He accepted that the applicant suffered from morbid jealousy and delusions of infidelity. The condition provided, at least in part, an explanation for the applicant’s conduct. Nevertheless the Judge concluded that the applicant knew his conduct was wrong and that he was able to control himself during the assault.
In sentencing the applicant the Judge reduced the non-parole period from 21 years to 18 years and three months having regard to the applicant’s acceptance of the objective elements. He also had regard to a statement by the applicant that the applicant was sorry for his conduct. This statement was made at the very last stage of the submissions on sentence. The Judge had some justifiable reservations about whether this expression of sorrow was genuine.
The applicant sought permission to appeal before a judge of this Court on the ground that the non-parole period was manifestly excessive. His counsel relied upon three matters: first, that insufficient and inadequate weight was given to the applicant’s psychiatric condition; secondly, insufficient weight was given to his condition of multiple sclerosis; thirdly, the reduction of the non-parole period from 21 years to 18 years and three months was insufficient having regard to the applicant’s acknowledgement of the objective elements and his agreement to a number of witness statements being tendered by consent.
Counsel also relied on the finding of the trial Judge that the applicant did not intend to kill the deceased but rather to do her serious bodily harm. Counsel submitted that the offending was not premeditated.
The Judge refused permission to appeal. The Judge concluded that no error of approach had been identified; all the matters complained of had been considered by the sentencing Judge.
The applicant now seeks permission to appeal from this Court. The applicant was unrepresented before us and I have considered the material before the sentencing Judge, the remarks on sentence and the material before the Judge who refused leave. I have also considered the applicant’s submissions made before us today.
The applicant repeated a number of submissions that had been made to the Judge on the application for permission to appeal, and he repeated the submissions that inadequate consideration was given by the sentencing Judge to his psychiatric condition and to the fact that the sentencing Judge considered that he did not intend to kill.
I consider the non-parole period imposed by the sentencing Judge was a moderate sentence. There was adequate material to support the sentencing Judge’s conclusions that the applicant has not truly come to terms with the particularly brutal nature of his conduct nor with its consequences.
This was a particularly vicious and prolonged assault upon a young woman who in no way provoked the conduct. I accept that the applicant may have suffered from morbid jealousy and delusions of infidelity. That does not excuse his conduct. I agree with the Judge who refused permission to the applicant to appeal. Each of the matters raised was dealt with in some detail by the sentencing Judge. No arguable error on his part has been demonstrated. The non-parole period is well within the range of non-parole periods set for this kind of offending. It cannot be said that the sentence was manifestly excessive.
I would refuse permission to appeal because there is no arguable error.