R v Cox

[2022] NSWDC 728

District Court

New South Wales

Medium Neutral Citation:

R v Cox [2022] NSWDC 728

Hearing dates:

10 November 2022

Date of orders:

10 November 2022

Decision date:

10 November 2022

Jurisdiction:

Criminal

Before:

M L Williams SC DCJ

Decision:

An aggregate term of imprisonment of 4 years with a an non-parole period of 26 months: at [39]

Catchwords:

CRIME — Drug offences — Supply prohibited drug — Large commercial quantity – Police pursuit

SENTENCING — Aggravating factors — Breach of conditional liberty

SENTENCING — Relevant factors on sentence — Form 1 offences — General principles — Maximum penalty — Multiple offences — Accumulation, concurrency and totality — Aggregate sentences — Objective seriousness — Moral culpability

SENTENCING — Subjective considerations on sentence — Mental illness — Age of offender — Drug addiction —Special circumstances

Legislation Cited:

Crimes Act 1900

Crimes(Sentencing Procedure) Act 1999

Drug Misuse and Trafficking Act 1985

Road Rules 2014

Cases Cited:

R v Norton [2022] NSWDC 468

Category:

Sentence

Parties:

Rex (Office of the Director of Public Prosecutions)

Lucas Cox (Offender)

Representation:

Mr H Fitzhardinge (Solicitor, Office of the Director of Public Prosecutions)

Mr W Hussey (Counsel for the offender)

File Number(s):

2021/00223812

Judgment

1. Lucas Cox is 48 years old and has spent almost three years of his life in custody over various short periods for various offences.

2. He appears for sentence having pleaded guilty in circumstances justifying a 25% discount for the utilitarian value of the pleas to two counts,

1. Supplying not less than a large commercial quantity, namely 562 grams of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (sequence 11). The offence carries a maximum penalty of life imprisonment with a standard non‑parole period of 15 years.

2. Police pursuit contrary to s 51B of the Crimes Act 1900 (sequence 5). The offence carries a maximum penalty of three years, with a period of licence disqualification of three years, reducible to a minimum period of of 12 months and no standard non-parole period.

3. To be dealt with on the Form 1 in relation to the Police Pursuit matter (sequence 5) is a offence of not stop and give particulars contrary to the Road Rules 2014 (sequence 10). The offence carries a maximum penalty of a $550 fine. As the Crown freely acknowledges there is no significant increase in the penalty for the principal offence as a result of that offence

4. It is conceded that a term of full-time custody is applicable. He was arrested on 20 October 2021. However, from the date of his arrest until 19 April 2022 he was serving a sentence for receiving offences, so he has been in custody solely on this matter from 20 April 2022.

5. The sentencing process has been greatly assisted by very succinct written submissions from the Crown Prosecutor and Mr Hussey of counsel for the offender. There is no dispute between the Crown and Mr Hussey as to the objective seriousness of either offence and there is no challenge by the Crown to the suggested indicative sentences and aggregate sentence proposed by Mr Hussey and the commencement date of the sentence proposed, namely 19 January 2022, in the exercise of the Court's discretion bearing in mind questions of totality and the period in custody that he has served for unrelated matters.

6. If I may say so, Mr Hussey's submissions coincide with the preliminary views that I had formed having read the material before receipt of Mr Hussey's submissions.

7. The propositions put by Mr Hussey were undoubtedly founded on the sentence that I imposed on the co-offender in R v Norton [2022] NSWDC 468. Mr Norton had pleaded guilty to supplying 1.551 kilograms of methylamphetamine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985, but he also had an offence of dealing with the proceeds of crime and possessing a prohibited weapon so his aggregate sentence was structured differently to that proposed for Mr Cox, but on in relation to the s 25(2) offence the indicative sentence I imposed was three years with a non-parole period of 18 months. That is the indicative sentence proposed by Mr Hussey bearing in mind questions of parity and the objective seriousness of Mr Cox's offending.

8. To put things very broadly, while Mr Norton supplied 1.5 kilograms of methylamphetamine, Mr Cox is pleading guilty to supplying just over half a kilogram of methylamphetamine but in different circumstances where he was an upline supplier to Norton of larger quantities, whereas Norton was a retailer of smaller quantities of methylamphetamine.

9. The agreed facts show that police were monitoring Norton's phone calls from March until mid-June 2021 and during those calls they discovered that Cox arranged to sell Norton a total of 562 grams of methylamphetamine. The first of three episodes was on 15 April 2021 when he supplied 285 grams of methylamphetamine following text messages and communications between the two. The next was on 22 April 2021 when he supplied 142 grams of methylamphetamine. The price was discussed as being $3,500 an ounce or $17,500 for five ounces. The third supply was of 135 grams of methylamphetamine at Catherine Hill Bay on 31 May 2021.

10. A few days prior, on 27 May 2021, Police were watching an address in Catherine Hill Bay. They observed Cox drive into the property and then leave, and then return and then leave again.

11. Following the supply on 31 May 2021 the Police pursuit arose in circumstances where police saw the car being driven by Cox travelling south on Cams Wharf Road to the Pacific Highway. They were in an unmarked Police Car. They stopped in front of Cox's car to stop it moving forward and approached the driver's door and opened it and Cox immediately put the car in reverse and accelerated harshly away, with the driver's door still open which struck Detective Senior Constable Ryan knocking him to the ground.

12. It is agreed that the offender had been stabbed and assaulted by two males some weeks earlier, and those males had been charged over that incident.

13. Cox drove around the police car onto the Pacific Highway and went north towards Swansea. Police put on the lights and siren and chased him at speeds up to 120 km/h in a 90 km/h zone. On at least four occasions he braked harshly causing the rear wheels to lock up in an endeavour to have the police car collide with him.

14. At the Murrays Beach exit he braked harshly causing the wheel to lock up spinning around in a U-turn and then he headed south and collided with the side of the police car causing extensive damage. He kept travelling towards Cams Wharf. The Police terminated the pursuit. Cox narrowly avoided a head-on collision side-swiping the side of a transit van causing extensive damage.

15. The Police could not locate him. He drove his car into a fire trail near the address at Catherine Hill Bay. Police spoke to a Ms Amy Bead who said that Cox had attended her residence. He was agitated and said the Police were after him. He wanted to cover his car. Police were able to tell from telephone towers that Cox was still in the area. Despite a search they were unable to find him, but messages between Cox and Norton showed that he knew that he was in trouble.

16. On 27 June, Police executed a search warrant at the Catherine Hill Bay address. hey found five ounces of methylamphetamine hidden in a pile of branches, packed in four bags each containing an ounce and one bag containing smaller bundles being a total of 135 grams which was the subject of the third supply.

17. Police could not locate Cox until he was arrested on 20 October.

Criminal History

18. His record contains a number of matters commencing in the Children's Court in 1989 for malicious damage. There are drug offences, assault police. His first period of imprisonment was initially two years full-time custody but reduced on appeal to 18 months under s 12 for affray and reckless wounding. There are sentences of three months for larceny in 2014 reduced to one month on appeal; one year and two months for possessing housebreaking implements, using offensive weapons and assault occasioning in 2014; in 2017 an aggregate sentence of one year and two months for goods in custody and destroy or damage property. There was a sentence for stealing a vessel in 2016.

19. His last significant period in custody, apart from the nine months sentence I have referred to at [4]. was a term of five months commencing in November 2018. Before that there was two months in February 2018, three months starting in October 2017, and four months in January 2017; about five months starting in August 2015 and about five months starting in December 2014.

Subjective Case

20. His subjective case is put through a report of Dr Gilligan, psychologist. The essential features of that report have been conveniently summarised by Mr Hussey. His mother developed paranoid schizophrenia when he was young which caused him to live with his father. He acknowledged that his offending g was to make money for his children and to maintain his own methylamphetamine dependence as he had been unable to get work during the COVID pandemic.

21. As to the Police pursuit, he said that when an unmarked vehicle pulled up beside him and two large men in plain clothes got out of the car he panicked because he was alone in the bush and he had, as the agreed facts show, been attacked a few weeks prior by a well-known criminal who broke into a friend's house armed with a knife and a hammer. He was stabbed in the hand with the knife and hit in the head, leg and torso with the hammer and there were threats to kill him.

22. He said that he was disgusted with his involvement in drugs and his offending behaviours. His father had brought him up to be better than that and he was capable of accepting responsibility for his behaviour. He said that he did bad things and he knew they were wrong. He said that all his previous offending was in the context of ongoing substance dependence issues.

23. A depressingly common feature of subjective cases these days emerges here in his reports of attending multiple Boy Scout camps over a period of a couple of years between years 7 and 9 when he was sexually abused by a Scout leader as well as a schoolteacher. He says he felt embarrassed about it and never told anyone, and he was affected psychologically by the abuse suffering symptoms of anxiety and hypervigilance thereafter.

24. He had a reasonably good work history despite his periods in custody. He was a marine engineer prior to succumbing to addiction and becoming dysfunctional. He started drinking at age 15 and by age 17 to 18 he was drinking daily and using cannabis from age 20.

25. He had previously attended Adele House for a six-month rehabilitation program, but he was expelled, and his Drug Court admission failed in 2017 because he was unable to secure a suitable address.

26. He had never been to see a GP or diagnosed with any mental health issues, but he has been self‑medicating his issues with illicit substances.

27. He has a positive attitude towards his rehabilitation and work will be critical to providing needed structure and routine. He said he is willing to do anything to keep busy either working with his father in marine engineering or warehousing driving a forklift.

28. Dr Gilligan says that he is not as resilient as others, having poor distress tolerance and low skills for coping. He is scared in gaol and his partner has been threatened by associates of the man who stabbed him and assaulted him and forced him to retract that complaint. He is fearful of retribution to his two sons and himself has been assaulted in gaol.

29. Dr Gilligan puts his risk of reoffending as moderate and I would accept that in light of the evidence that I have.

30. Dr Gilligan says that he has a complex mental condition that contributed to his offending behaviour, being anxiety with symptoms of protracted low mood and feelings of worthlessness, despondency, and discouragement. As Mr Hussey puts, that is taken into account on sentencing in De La Rosa terms.

31. It is acknowledged that his record does not assist him or entitle him to any leniency.

32. In sentencing for the drug supply offence, I must take account of the need for general deterrence and protection of the community and the very significant maximum penalty and the standard non-parole period imposed by the legislature as well as the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.

33. It is clear, as the Crown puts, that he was a well trusted member of a drug supply syndicate. He had to defer to others in Sydney as to price, but he was willing and able to negotiate between those higher up in Sydney and Mr Norton. He had an intricate knowledge of the business, and I accept, as I have indicated, the common characterisation of objective seriousness of the drug supply offence as between low range and mid-range.

34. As to the Police pursuit, the offender's explanation is that he did not realise they were police given his recent attack. He thought that he had been set up and was going to be attacked again. He drove dangerously, collided with two cars and was driving in such a manner that the Police decided to abandon the pursuit. Again, I accept the common position that the objective seriousness is above mid-range.

35. He was on bail for the receiving offences at the time of committing these offences, which is a matter going to his moral culpability.

36. Questions of parity have already been referred to in the case of Mr Norton and the sentence that I imposed upon him.

37. There is no dispute that a finding of special circumstances should be made given the difficulties of his time in custody during the COVID pandemic, his mental health conditions remaining untreated and his need for extended supervision on release, including mental health counselling, and perhaps buprenorphine prescription.

38. I accept his expressions of remorse to Dr Gilligan where he says he is remorseful and wishes he had chosen a different path and had not gone down that road.

39. The orders that I will make are as follows:

1. The offender is convicted of each offence.

2. Taking into account a discount of 25% for the pleas of guilty, the indicative sentences are:

1. Sequence 11: three years with a non-parole period of eighteen months.

2. Sequence 5, taking into account the Form 1 matter (sequence 10): two years

3. I impose an aggregate sentence of four years commencing 19 January 2022

4. I impose a non-parole period of 26 months expiring on 18 March 2024.

5. I find special circumstances

6. In relation to sequence 5, I disqualify the offender’s licence for two years.

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Decision last updated: 29 March 2023