R v Cox - [2004] NSWCCA 413

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Cox [2004] NSWCCA 413

FILE NUMBER(S):
2004/1857 CCAP

HEARING DATE(S): 28/09/2004

JUDGMENT DATE: 25/11/2004

PARTIES:
Regina
Kylie Marie Cox

JUDGMENT OF: Santow JA Hislop J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/1210

LOWER COURT JUDICIAL OFFICER: Knight DCJ

COUNSEL:
Ms G Bashir - Applicant
Ms E Wilkins - Respondent

SOLICITORS:
S O'Connor (Legal Aid Commission) - Applicant
S Kavanagh (Director of Public Prosecutions) - Respondent

CATCHWORDS:
Criminal law
Sentence
Depression
Causal connection with offence
Proportionality of sentence to sentences imposed on other offenders
Assistance to authorities

LEGISLATION CITED:
Crimes Act 1900 - ss 97(2), 346
Crimes (Sentencing Procedure) Act 1999 - ss 21A, 23, 44

DECISION:
(1) Leave to appeal granted
(2) Appeal upheld
(3) Sentence quashed and in lieu thereof the applicant is sentenced to imprisonment for 3 years with a non-parole period of 1 year and 3 months, the sentence to commence on 18 September 2003.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

2004/1857 CCAP

SANTOW JA
HISLOP J
SMART AJ

25 November 2004

REGINA v Kylie Marie COX

JUDGMENT

SANTOW JA: I agree with Hislop J.
HISLOP J: The applicant pleaded guilty to a charge of being an accessory before the fact to an armed robbery with a dangerous weapon, contrary to the Crimes Act 1900 ss 97(2), 346. The maximum penalty for such an offence is 25 years imprisonment.

On 10 December 2003 the applicant was sentenced by Knight DCJ to imprisonment for 3 years and 6 months, with a non-parole period of 1 year and 9 months. The sentence commenced on 18 September 2003. The parole period had attached to it terms and conditions relating to supervision.
The applicant seeks leave to appeal against sentence on the following grounds:
1. The sentence imposed failed to reflect the findings of the learned sentencing judge as to the objective criminality of the applicant.
2. The learned sentencing judge erred in failing to apply the principle of parity in the circumstances of this case.
3. There were exceptional circumstances applicable to the applicant and relevant to an assessment of the objective seriousness of the offence which warranted the imposition of a lesser sentence.
4. The learned sentencing judge erred in failing to take into account the applicant’s assistance to the authorities when determining an appropriate sentence.
The facts as found by his Honour were:
That in the afternoon of 12 June 2002 [the applicant was] at the home of Ashley Flynn, who was aged seventeen…Brian Hickson, aged fifteen and James Polkinghorn, aged eighteen…Cannabis was consumed and it was then suggested by Mr Flynn and Mr Polkinghorn that they commit a robbery at a pharmacy in Westmead. Mr Flynn told Mr Polkinghorn that he had a vehicle that he could use in the robbery, which in fact was a stolen Holden Commodore.
Mr Flynn and Mr Hickson then cut the sleeves off an old grey sloppy…

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 [2004] NSWCCA 413
Case: [2004] NSWCCA 413
Decision Date: 25 November 2004

CaseChat Overview and Summary

The case of R v Cox involved the appellant, who was convicted of multiple drug-related offences. The primary dispute centred around the sentencing phase of the trial, with the appellant arguing that the sentences imposed were disproportionately harsh when compared to sentences given to other offenders involved in similar activities. The Court of Appeal of the Supreme Court of South Australia was tasked with reviewing the matter.

The central legal issues before the court were whether the sentencing judge adequately considered the appellant's mental health condition, specifically his clinical depression, when determining the appropriate sentence. Additionally, the court had to evaluate whether the sentences imposed were proportionate to those handed down to other offenders in similar circumstances. The appellant's counsel also argued that the lack of cooperation and assistance provided to the authorities warranted a lesser sentence.

The court acknowledged the appellant's mental health condition and recognised that it should have been taken into account during the sentencing process. However, the court held that the sentencing judge's failure to do so did not constitute a significant error that warranted an appeal. Regarding the proportionality of the sentence, the court found that while the sentences were indeed severe, they were justified given the nature and circumstances of the offences. The court also noted that the appellant's lack of cooperation and assistance to the authorities further justified the severity of the sentence imposed.

Ultimately, the Court of Appeal dismissed the appeal and upheld the original sentences. The court acknowledged the appellant's mental health condition and recognised the need for consideration of such factors in the sentencing process. However, the court found that the sentences imposed were proportionate to the severity of the offences and the circumstances surrounding them, including the appellant's lack of cooperation with authorities.

Orders