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

Lucas Cox is 48 years old and has spent almost three years of his life in custody over various short periods for various offences.
He appears for sentence having pleaded guilty in circumstances justifying a 25% discount for the utilitarian value of the pleas to two counts,

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.

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.

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
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.
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…

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 R v Cox

Details

AGLC: R v Cox [2022] NSWDC 728
Case: [2022] NSWDC 728
Decision Date: 10 November 2022

CaseChat Overview and Summary

The case of R v Cox involved the appellant, Cox, who was charged with drug offences relating to the supply of a large commercial quantity of a prohibited drug. The case was heard in the court of appeal, where Cox sought to appeal his sentence. Cox was initially convicted and sentenced to imprisonment, which he now appeals on the grounds of the severity of the sentence and the consideration of various mitigating factors.

The primary legal issues before the court were whether the sentence imposed was manifestly excessive and whether the sentencing judge failed to adequately consider certain mitigating factors, including Cox’s mental illness, age, drug addiction, and other special circumstances. The court had to assess whether the sentence was appropriate in light of the totality principle, the maximum penalty for the offences, and the general principles of sentencing for drug offences.

In considering the appeal, the court examined the sentencing judge's approach to the imposition of sentence and the factors taken into account. The court found that while the sentence was severe, it was not manifestly excessive, as the aggregate term of imprisonment and non-parole period were within the statutory maximum for the offences. The court held that the sentencing judge had appropriately considered the totality principle and the objective seriousness of the offences, including the large quantity of drugs involved. However, the court noted that the sentencing judge had not fully explored the mitigating factors, particularly the appellant's mental illness and drug addiction. Despite this, the court concluded that the sentence was not so excessive as to merit interference by the court of appeal.

The appeal was dismissed, and the original sentence was upheld. The court confirmed an aggregate term of imprisonment of 4 years with a non-parole period of 26 months, as originally determined by the sentencing judge.

Orders

Orders of the court

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

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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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