R v Cox

[1999] NSWCCA 254

CITATION:	R v Cox [1999] NSWCCA 254
FILE NUMBER(S):	CCA 60331/99
HEARING DATE(S):	20 August 1999
JUDGMENT DATE:	20 August 1999
PARTIES :	Noela Patricia COX Regina (NSW)
JUDGMENT OF:	Wood CJ at CL; Simpson J

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/51/0116
LOWER COURT JUDICIAL OFFICER:	Ducker DCJ

COUNSEL:	R. Toner SC with S. Walsh C. Maxwell QC
SOLICITORS:	Thompson, Wheelahan & Hampshire S.E. O'Connor
CATCHWORDS:
DECISION:	Application for leave to appeal against sentence refused.

IN THE COURT OF
CRIMINAL APPEAL

No 060331/99

WOOD CJ at CL
SIMPSON J

Friday 20 August 1999

REGINA -V- NOELA PATRICIA COX

JUDGMENT

1 WOOD CJ at CL: The applicant seeks leave to appeal against a sentence comprising a minimum term of penal servitude for twelve months, and an additional term of two years and six months imposed by Ducker DCJ in the District Court at Lismore on 11 June 1999. This sentence was imposed following a plea of guilty to one count of malicious wounding, contrary to s 35(a) of the Crimes Act 1900, an offence for which the maximum prescribed penalty is penal servitude for seven years. 2 The offence was a serious incident which occurred in the course of a dysfunctional relationship between the applicant and the victim, that had been punctuated by frequent argument and violence. The sentencing Judge accepted that the incidents of violence were mutual, although more often than not they were initiated by reason of the applicant's intoxication. On her own admission she had a longstanding addiction to benzodiazepines and to alcohol. Although described by the victim as a "lovely person" when not affected by drink, she accepted that she was "a very obnoxious person" when intoxicated. 3 On the occasion of the offence that brought her before the Court, she had returned home well affected by liquor. There were some arguments between her and the victim involving a degree of pushing and shoving. She continued to drink while playing outside with some puppies. 4 Eventually she directed some abusive remarks to the victim and to a friend of his, because they were involved in a game of Nintendo and were ignoring her. She went to her bedroom to fetch a hunting knife which she had taken to keeping under her bed following an earlier sexual assault by a neighbour. The victim was forewarned that she was likely to be going for the knife and he seized a pillow to protect himself. Notwithstanding his defensive attempts, she stabbed him once in the stomach causing a deep laceration from which his intestines protruded. He also suffered defensive wounds to his hand and a substantial bite to his arm from which a chunk of flesh was removed. 5 The applicant suffered some minor injuries herself in the course of the struggle which followed the stabbing. These included some bruises to her head and neck and a bite to her own arm. There is no doubt that she was on this occasion the aggressor nor is there any doubt that the account which she had initially given to the police, to the effect that the victim had run on to the knife, was totally untrue. 6 By the time the applicant appeared for sentence her relationship with the victim, which appeared to be of a platonic although wholly dysfunctional nature, had been re-established. 7 In framing the sentence his Honour found there were special circumstances attributable to the mental health of the applicant, and upon this basis varied the usual proportion between the minimum and additional terms. 8 The sentence is now challenged upon the ground that it was manifestly excessive and should have led to a non-custodial outcome. 9 It was submitted that the course which the sentencing proceedings took on 15 March 1999, when they were stood over in order to obtain a report from her treating psychiatrist, to gather evidence as to the facilities available at Grafton to oversee her drinking problem, and to obtain a pre-sentence report, were such as to hold out to her the possibility of a non-custodial sentence. 10 It is the fact that his Honour granted bail upon various conditions, including absolute abstention from intoxicating liquor, and co-operation with the Probation and Parole Service in the preparation of a pre-sentence report. I am, however, unable to accept that, by taking this course, his Honour foreclosed the options available for sentence or that he committed himself to a non-custodial sentence, in the event of the applicant complying with her bail conditions and receiving favourable reports from the psychiatrist and from the Probation and Parole Service. 11 On the contrary, it seems to me, his Honour exercised the care that might have been expected of a Judge of his experience, in ensuring that he had sufficient information as to the applicant's background, and in relation to the incident before him, upon the basis of which he could assess both her subjective and objective criminality and frame a suitable sentence. 12 His Honour was entitled, upon the evidence before him, to entertain serious concerns when dealing with an offender who obviously had longstanding personal problems of considerable magnitude, and who had used a knife to inflict serious injury in the course of a violent relationship. No doubt his Honour had in mind the abhorrence held by the community towards the use of knives to inflict personal injuries, as well as the cautions given by this Court, on numerous occasions, as to the need for significant custodial sentences for such offences: see Randall CCA NSW 19 April 1994 and Rothapfel CCA NSW 26 March 1992). 13 His Honour, in fact, made the position abundantly clear, in the course of explaining the reasons for the adjournment, when he observed:

"... nor am I saying that I will necessarily deal with this matter by a non-custodial disposition, I want to know the full story and the full picture."

14   In the course of the evidence tendered upon sentence it was established that the applicant had substantially moderated her drinking after the incident. She had been to a detoxification centre at Coraki, and her use of benzodiazepines was subject to supervision by her general practitioner. Moreover, and the victim said that he was willing to continue trying to help her. 15   The pre-sentence report was somewhat qualified. It did little more than note the existence, in the applicant, of the serious alcohol and drug-related problems, the mental health problems, and the longstanding relationship difficulties, involving physical and mental abuse at the hands of various men, that were otherwise evident. It noted that, since her last rehabilitation, she had reported major progress and was neither craving alcohol or drinking. It did, however, record that she was having substantial difficulties with prescribed medication, including Valium, and had been receiving treatment from the Grafton Community Health team. By way of summary, the author noted that the applicant had been polite, co-operative and honest in the preparation of the report, but added that it appeared that she had "Many unresolved, traumatic issues and an ongoing substantial alcohol and other drug abuse problems." He advised that periodic detention was unavailable, and that little benefit was seen in a supervised recognisance, as the applicant was aware of the available services and agencies, and had accessed most of them in the past. 16   Dr Delaforce, her treating psychiatrist, offered a diagnosis of the following mental disorders:

(a) A major depressive disorder that was recurrent, mild and chronic, having its onset in about 1996;

(b) A mild panic disorder with agoraphobia, having its onset in 1992;

(c) A sedative, hypnotic or anxiolytic dependence with physiological dependence present since the age of 26 years;

(d) An alcohol dependence with physiological dependence similarly present since the age of 26 years;

(e) A borderline personality disorder present since her early adult years.

17   Apart from the series of disastrous relationships described, other significant life events noted included the disappearance of her sister while hitch-hiking when she was about twenty years old, the death of her mother when she was twenty-six years old which led her to the abuse of heroin and amphetamines, the sexual assault at the hands of her neighbour in about 1998 and the self-harm and medical problems that were related to her longstanding drug and alcohol abuse. Her history was one of multiple attempts at drug and alcohol rehabilitation, psychiatric treatment including some in-patient treatment and counselling. 18   The mental disorders were not, in Dr Delaforce's opinion, severe in the sense of being psychotic but they were such as to require more treatment than she had been receiving. Her relationship with the victim he described as "very pathological," with a considerable risk of one or other of them getting seriously injured during any further episode of conflict. 19   Dr Delaforce concluded his report by observing:

"The prognosis for her mental health problems remains poor, even if a reasonable treatment plan was instituted and she continued to co-operate with the treatment. Such an outcome is likely because of the chronic and severe nature of her mental health problems. Nevertheless if she was compliant with treatment, and especially if she avoided alcohol use, a very difficult task for her in the long term, there would be at least a significant reduction in the risk of any further dangerous behaviour, even though her chronic and severe mental health pathology will continue. Hence the important of monitoring, and reporting on, her use of alcohol and also Valium because the use of Valium can increase markedly if alcohol use was minimal. An increase in Valium considerably beyond her current use would significantly increase the risk of her further violence."

20 The applicant had a relatively insignificant prior record comprising some drink driving convictions, some convictions for the possession of Indian hemp as well as convictions for malicious damage to property and resisting police. It may be safely assumed that all were related to her history of substance abuse. His Honour made it clear that he understood that to be the case, and that her prior record was not a matter of any great significance. 21 In the applicant's favour was the fact of her plea of guilty, the efforts she had made after the offence to deal with her multiple problems of substance abuse, and the fact that the victim had taken her back and was willing to support her. However, it appears to me that each of these matters was carefully taken into account by his Honour, as was the report of Dr Delaforce, from which he quoted extensively. 22 Although this is a tragic case, in which violence of the kind that brought the applicant before the court was inevitable, I am unable to perceive any error in the sentencing exercise which was undertaken. 23 In this regard, I am not persuaded that the observation by his Honour that "The fact that she chose deliberately to drink to excess was directly responsible for the malicious wounding of Mr Tkac" indicates that this matter was regarded as a circumstance of aggravation, upon the basis that the applicant had deliberately got herself drunk in order to acquire Dutch courage. Taken in context, it did no more than state the obvious, namely that despite being aware of her latent weakness for alcohol she had continued to indulge. There is no suggestion, in the reasons for sentence, that his Honour regarded the offence as one that was pre-meditated or aggravated by the circumstance mentioned. 24 The offence to which her plea was accepted was not one of specific intent, and while her state of intoxication almost certainly affected her judgment, and explained why the offence occurred, it did not provide any excuse for her conduct, nor should it have operated in mitigation of sentence. (See Leslie CCA NSW 10 March 1995 and Fletcher Jones (1994) 75 A Crim R 381 at 387). 25 Our attention was drawn to the Sentencing Statistics for offences under s 35(a) of the Crimes Act. These statistics provide little by way of assistance in the present case. They provide no more than a general range of outcomes, for a variety of cases, in respect of which substantial differences in objective and subjective circumstances exist. Moreover they do not provide a pattern for offences involving a knife, a circumstance which has been considered a matter of aggravation in cases of malicious wounding. 26 In the circumstances outlined, I remain unpersuaded that the sentence fell outside the legitimate range, or that his Honour acted other than correctly in finding special circumstances and in apportioning the sentence in the way in which he did. 27 I would refuse the application for leave to appeal against sentence.
28   SIMPSON J: I agree. 29   WOOD CJ at CL: The order of the court will be as I proposed.

**********