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 joe and put them on their heads and subsequently cut eye holes in the sleeves that they became makeshift balaclavas. As the offenders were moving to leave the premises Mr Flynn told Mr Polkinghorn that [the applicant was] going to accompany them saying “Kylie is going to be in the second vehicle, she’s going to wait a few streets away so we can dump the Holden and get into her car”. At that time Mr Hickson was in possession of a sawn off .22 calibre rifle and he had approximately two .22 calibre bullets. The four then left Mr Flynn’s home.
At that time [the applicant] knew that Mr Flynn, Mr Hickson and Mr Polkinghorn were going to commit an armed robbery with the sawn off rifle. [The applicant] went to [her] silver Hyundai XL motor vehicle and drove Mr Ashley Flynn from his home to Westmead. Mr Polkinghorn and Mr Hickson followed [the applicant’s] vehicle in the Holden Commodore. [The applicant] drove [her] vehicle past Dennis Green’s pharmacy at Westmead and parked in Austral Street, Westmead. Mr Polkinghorn parked the Holden Commodore behind [the applicant’s] vehicle, Mr Flynn then got out of [the applicant’s] vehicle and got into the Holden Commodore. Mr Polkinghorn, Mr Hickson and Mr Flynn then drove to a location outside Green’s pharmacy and [the applicant] remained at [her] location in order that [she] could assist the offenders after the offence.
At about 2.30pm Mr Flynn and Mr Hickson, wearing the makeshift balaclavas entered the pharmacy and Mr Polkinghorn remained in the Holden Commodore. At that time the offenders Flynn and Hickson were armed with a shortened .22 calibre rifle and a claw hammer. At the time that they entered into the pharmacy there were three staff and one customer in the store. Mr Hickson pointed the gun at the pharmacist, Mr Dennis Green and Mr Ashley Flynn demanded that the till be opened. They then demanded that the safe be opened. Money was removed from the safe and from the till and the offenders fled from the chemist’s shop. Mr Hickson and Mr Flynn got back into the Holden Commodore which was then driven by Mr Polkinghorn from the scene.
Mr Polkinghorn drove the vehicle along Hawkesbury Road and into Austral Avenue where [the applicant was] still waiting in [her] Hyundai XL. [She] then [drove her] vehicle from this street into Toohey Avenue and both vehicles then stopped. Messrs Polkinghorn, Hickson and Flynn then got out of the Commodore and got into [the applicant’s] vehicle and [she] then drove [herself] and the other three offenders back to Mr Ashley Flynn’s home…
At that home the proceeds from the pharmacy were split between the offenders, Messrs Hickson and Polkinghorn received approximately $330 each and Mr Flynn and [the applicant] received approximately $200 each.
The applicant was born on 21 April 1982. She had a criminal record including four convictions for common assault, and convictions for goods in custody (twelve counts) and furnishing false/misleading information to licensee (sixteen counts). The offences had all occurred from the age of 18 onwards, most within a very short period of time. The subject offence was committed whilst the applicant was on conditional liberty.
A psychological report by Ms Freeman dated 3 December 2003 revealed a normal happy childhood with the applicant leaving school after year 10 and commencing an apprenticeship as a baker, which she continued in for two years. At age 18 she commenced a relationship with a young man, to whom she became pregnant. When she was 8 months pregnant she discovered he had slept with someone else. Subsequently he was charged with rape. Shortly before the birth, the applicant’s brother disclosed he had had a homosexual relationship with the young man for some months and showed the applicant compromising photographs in relation thereto. The applicant gave birth to a daughter on 23 January 2002.
The applicant suffered post-natal depression. Her local doctor prescribed valium but she did not take the tablets. She began smoking heroin two weeks after the birth and became dependant thereon. She had been using cannabis regularly since she was 15 or 16.

Psychological testing revealed the applicant had a composite IQ score of 87, and low self esteem. She obtained significant scores on the Anxiety, Dysthymia, Drug Dependence and Post Traumatic Stress Disorder scales, and high scores on the Somatoform and Bipolar: Manic scales. She also obtained a significant score on major depression. It was reported she did not feel capable and confident to function independently and therefore created strong bonds with people she perceived as being able to lead and take care of her.
The applicant’s parents, particularly her mother, are supportive. The applicant is on a methadone program. The psychologist concluded:
Whilst in custody, Kylie has attended a few counselling sessions, and she requires ongoing counselling to deal with her depression, anxiety and symptoms of trauma. She is likely to gain most support from a strong therapeutic relationship. She should attend drug education, and if necessary, at the completion of her sentence, attend a short period of rehabilitation. In the community, she may require support from the Probation and Parole Service.
His Honour held that the offence was a very serious criminal offence indeed. It showed great criminality on the part of all the parties including the applicant. Each of the four offenders intended the crime and set out to carry it into effect. As his Honour observed, “The community is fed up to the back teeth with people committing these types of offences”.
His Honour took into account (though he kept in mind that the applicant was an accessory before the fact) the guideline judgment in R v Henry (1999) 46 NSWLR 346 where a guideline sentence of four to five years was considered appropriate in circumstances all of which to a greater or lesser extent were present in the subject case. His Honour had regard to various aggravating and mitigating factors as required by s 21A of the Crimes (Sentencing Procedure) Act 1999.
His Honour varied the statutory ratio pursuant to the Crimes (Sentencing Procedure) Act 1999 s 44, as he found the applicant was unlikely to re-offend provided she could be removed from illicit drug use and that she had good prospects of rehabilitation.
Grounds One and Three
In R v Way [2004] NSWCCA 131 this Court held:
[86] Some of the relevant circumstances which can be said “objectively” to affect the “seriousness” of the offence will be personal to the offender at the time of the offence but become relevant because of their causal connection with its commission. This would extend to matters of … mental illness, or intellectual disability, where that is causally related to the commission of the offence, in so far as the offender’s capacity to reason, or to appreciate fully the rightness or wrongness of a particular act, or to exercise appropriate powers of control has been affected … Such matters can be classified as circumstances of the offence and not merely circumstances of the offender that might go to the appropriate level of punishment.
The applicant submitted that though his Honour had taken into account her history as special circumstances for the purpose of setting the non-parole period he had not taken those matters into account on the question of criminality and culpability.
The applicant sought to establish, by a close analysis of the report of Ms Freeman, that the applicant had suffered from major depression following the birth of her child, which condition continued to the time of sentence and that this, and the circumstances leading up to it, clouded her judgment and caused her to depart from a substantially law abiding life. Applicant’s counsel conceded that the case had not been conducted in this way before the sentencing Judge.
It is well accepted that in some cases of an offender suffering from a mental disorder or disability, deterrence is a consideration to which less weight should be given. As Wood CJ at CL said in R v Henry [254]:
The reason for this approach lies in the circumstance that the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend upon any element of choice.
His Honour found that the applicant was suffering from a major depressive illness at the time of sentence. However there was no medical or psychological evidence before him that such illness clouded her judgment and was the reason for committing the offence or that there was a limited appreciation of the wrongfulness of the act. Indeed the applicant told the court, the probation and parole officer who prepared the pre-sentence report and Ms Freeman that she committed the offence in order to finance her heroin addiction. In my opinion the necessary causal connection between mental illness and the commission of the offence was not established. Accordingly, this ground of appeal is rejected.

Ground Two – The learned sentencing Judge erred in failing to apply the principle of parity in the circumstances of this case

In Lowe v R (1984) 154 CLR 606 at 617 Brennan J held:
The sentencing of co-offenders always requires a comparison of their conduct and antecedents. The imposition of comparable sentences upon co-offenders whose respective conduct and antecedents warrant disparate sentences is unjust. Similarly the imposition of disparate sentences upon co-offenders whose conduct and antecedents are comparable is unjust. A justified sense of unfair treatment is produced in either case.
In Postiglione v R (1997) 145 ALR 408 at 412 Dawson and Gummow JJ said:
Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.
In Postiglione at 429 Gummow J said:
The principle for which Lowe is authority appears to be that the Court of Criminal Appeal intervenes where the difference between the two sentences is manifestly excessive and such as to engender a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice has not been done.
In Regina v Steel NSWCCA 17 April 1997 this Court held that where there is a degree of disparity as to invite a reduction in the sentence imposed, it is not necessary for this Court to intervene if the result of doing so is to produce a sentence disproportionate to the objective and subjective criminality involved.
His Honour concluded the applicant’s objective criminality was of a somewhat lesser degree than that of Messrs Flynn and Hickson and also somewhat less than that of Mr Polkinghorn. He reached this conclusion as the applicant did not actually go to the premises or participate in the robbery and she was not the ringleader but was lead into the offence. The applicant submitted that, when regard was had to the sentences imposed on the principal offenders, his Honour’s conclusion was not reflected in the sentence imposed upon the applicant.
Mr Flynn was aged 17 at the time of the offence. He entered the pharmacy armed with a hammer. He had a prior criminal record. He was sentenced at the same time for two other offences namely robbery, and assault with intent to rob whilst armed with an offensive weapon. Offences of steal a motor vehicle and break enter and steal were taken into account on a Form 1. He was a heroin user. He committed crime to support his drug habit. He had a significant chronic liver condition and an attention deficit disorder. The Judge who sentenced him found special circumstances and imposed a penalty of four years imprisonment with a non-parole period of two years. This sentence effectively imposed six months imprisonment in addition to the sentences resulting from the other offences for which he was sentenced on this occasion.
Mr Hickson was aged 15 at the time of the offence. It was he who was armed with the rifle. He had no prior criminal record but offences of armed robbery, break enter and steal (2) and steal a motor vehicle were taken into account on a Form 1. The armed robbery involved the hold up of a young woman at a video store using a machete. He had an established heroin habit and was using cannabis on a daily basis. He was sentenced to four years and three months in a detention centre with a non-parole period of two years. The sentencing Judge found it was a significant factor that he was the youngest of the group and found special circumstances because of his youth whilst noting that his demeanour was more consistent with that of a thoroughly institutionalised adult.
Mr Polkinghorn was aged 18 at the time of the offence. He drove the stolen getaway car. He had a prior criminal record. He also pleaded guilty to other charges on the indictment namely robbery with a dangerous weapon, robbery whilst armed with an offensive weapon, malicious wounding and malicious wounding with intent to prevent lawful apprehension. As well various offences were taken into account on Form 1. These offences included a series of armed robberies. He was a regular user of cannabis and also used other drugs including heroin which he had commenced to use shortly before his arrest. The sentencing Judge took a starting point of seven years with a non-parole period of five years three months for the subject offence. He then applied a 60% discount for assisting police and a plea of guilty, and took into account his age and rehabilitation prospects and the principle of totality. He sentenced him for a fixed term of 12 months imprisonment for the subject offence. The total effective sentence for him was six years with a non-parole period of 3 years 9 months.
His Honour concluded that he did “not think the sentence imposed on Mr Hickson really has much weight in relation to questions of parity in this Court because Mr Hickson was only 15 at the time that he committed this offence and the authorities are quite plain that where a juvenile is involved questions of parity are not really able to be dealt with, if the other offender is an adult.” His Honour referred to Mr Polkinghorn’s sentence without expressing any view as to its effect upon the application of parity principles. Mr Flynn had not been sentenced at that time. Essentially his Honour did not apply the principles of parity or proportionality when sentencing the applicant.
In my opinion, his Honour erred in that regard. The sentence imposed on Mr Hickson had utility in respect of the determination of the sentence to be imposed on the applicant. The relevant principle was stated by this Court in R v Boney [2001] NSWCCA 432 at [14] as follows:
There is no longer an inflexible rule that there is no utility in comparing the sentences imposed upon co-offenders who are separately dealt with: one in the Children’s Court and the other as an adult.
While it is true that there are different sentencing objectives and considerations applicable in the Children’s Court, which do limit the worth of any such comparison, it would have been appropriate for his Honour to have paid some regard to that sentence.
See also R v Tran [2004] NSWCCA 6. The utility of such sentences is the greater in cases such as the present where all offenders were sentenced in the District Court in accordance with law.
There is a difficulty in comparing the sentences imposed upon Mr Flynn and Mr Polkinghorn with that of the applicant as the totality principle of sentencing was applied in those cases to ensure that the aggregate of the sentences appropriate for each offence was a just and appropriate measure of the criminality involved.
As McHugh J said in Postiglione at 422:
Parity between sentences imposed on co-offenders is an important sentencing goal. But a disparity between sentences will not give rise to a “justifiable sense of grievance” where the disparity can be explained on the basis of different antecedents and/or an application of the totality principle.
However when the sentences of the other offenders are compared with that of the applicant there is disclosed a lack of proportionality with the applicant’s sentence such as would give rise to a justifiable sense of grievance on her part. The applicant’s sentence does not adequately reflect the lesser degree of objective criminality found by his Honour. Accordingly I would uphold this ground of appeal.

Ground Four: The learned sentencing judge erred in failing to take into account the applicant’s assistance to the authorities when determining an appropriate sentence

The applicant gave no assistance to the authorities at any stage prior to the sentencing hearing. In the course of her cross-examination at the sentencing hearing she gave evidence as to Mr Flynn’s presence and involvement in the offence. At that stage Mr Flynn was maintaining a plea of not guilty though Mr Polkinghorn had assisted the authorities by supplying information as to Mr Flynn’s involvement. It was submitted the applicant’s evidence should be regarded as assistance to the authorities meriting a discount in sentence.

His Honour did not discount the sentence for assistance and made no reference to the issue in his judgment. His Honour made no error in this regard. The applicant was bound to answer questions on oath. The compliance with that obligation is not to be regarded as relevantly assisting law enforcement authorities for the purposes of the Crimes (Sentencing Procedure) Act 1999 s 23 see R v Calderoni [2000] NSWCCA 511 [8 and 9]. No discount was applicable.

Conclusion

In applying the principles of parity and proportionality I would reduce the sentence of imprisonment to 3 years. As observed by his Honour there were special circumstances which, in my opinion, justify a non-parole period of 1 year 3 months to which the conditions imposed by his Honour should apply.
Orders

I propose the following orders:
(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.
(4) The applicant is eligible for release on parole on 17 December 2004. Such parole is recommended to be subject to the following terms and conditions:
1. Supervision in accordance with the provisions of regulation 217 of the Crimes (Administration of Sentence) Regulation 2001.
2. Without in anyway limiting the supervision in condition 1 the offender is to place herself under the supervision and guidance of the New South Wales Probation and Parole Service for the whole of the term of the parole period and she is to obey all directions of officers of that service, including any directions or instructions to undertake examinations, assessments, therapy, treatment, counselling or urine analysis and including any direction that she attend and complete a residential drug rehabilitation program, whilst she is under such supervision and guidance.
SMART AJ: I agree with Hislop J.

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LAST UPDATED: 25/11/2004