R v COX, Ian Ormond - [2004] NSWCCA 204

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v. COX, Ian Ormond [2004] NSWCCA 204 revised - 09/07/2004

FILE NUMBER(S):
60556/00
60169/00

HEARING DATE(S): 13 November 2003

JUDGMENT DATE: 29/06/2004

PARTIES:
Regina - respondent
Ian Ormond Cox - appellant

JUDGMENT OF: Hodgson JA Grove J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/11/0872 (conviction); 99/11/0104 (plea)

LOWER COURT JUDICIAL OFFICER: Gibson DCJ (conviction); Mahoney DCJ (plea)

COUNSEL:
The appellant appeared in person in the conviction appeal.
Ms. Mundey for appellant in sentence appeal
Mr. G. Farmer for respondent/Crown

SOLICITORS:
Chegwidden Solicitors, Helensburgh for appellant (sentence appeal)
Ms. G. Drennan, CDPP, Sydney for respondent/Crown

CATCHWORDS:
CRIMINAL LAW - Appeal against conviction - Unreasonable verdict and other grounds - Appeal against sentence - Whether error concerning parity, discount and/or personal deterrence.

LEGISLATION CITED:

DECISION:
1. Appeal against conviction dismissed. 2. Leave to appeal against sentences granted. 3. Appeal against sentence for the cocaine offence dismissed. 4. Appeal against sentence for the cannabis offence allowed, sentence set aside, and in lieu thereof there be a sentence of imprisonment for 12 years commencing 21 November 2012, and that there be a total non-parole period of 18 years commencing 21 November 1997.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA60556/00
CCA60169/00
HODGSON JA
GROVE J
HOWIE J
Tuesday 29 June 2004

REGINA V. Ian Ormond COX

Judgment

HODGSON JA: Between 4 and 25 January 2000, the appellant Ian Ormond Cox was tried before Gibson DCJ and a jury on a charge that he “between about 1 January 1997 and 21 November 1997 at Sydney, New South Wales and elsewhere, did conspire with Michael Reardon, Douglas Crombie, Haydee Martinez Diaz, Lily Villegas and divers other persons to import into Australia prohibited imports to which section 233B of the Customs Act 1901 applied, to wit, narcotic goods consisting of a quantity of cocaine being not less than the commercial quantity applicable to cocaine”. The jury returned a verdict of guilty, and on 10 March 2000 the appellant was sentenced to 20 years’ imprisonment, with a non-parole period of 15 years, to date from 21 November 1997.
On 12 July 2000, the appellant pleaded guilty before Mahoney DCJ to a charge that he “between about 1 February 1997 and about 8 June 1997 at Sydney, New South Wales and elsewhere did conspire with Craig Kant and others to import into Australia prohibited imports to which section 233B of the Customs Act 1901 applied, to wit, narcotic goods consisting of a quantity of cannabis resin being not less than the commercial quantity applicable to cannabis resin”. On 17 July 2000, the appellant was sentenced on this charge to 14 years’ imprisonment, with a non-parole period of five years, each to date from 21 November 2012. On 12 November 2001, Blanch CJ corrected a technical defect in the sentence, by fixing a single non-parole period of 20 years to run from 21 November 1997.
The appellant appeals against his conviction on the charge relating to…

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, Ian Ormond

Details

AGLC: R v Cox, Ian Ormond [2004] NSWCCA 204
Case: [2004] NSWCCA 204
Decision Date: 29 June 2004

CaseChat Overview and Summary

The appellant, Ian Ormond Cox, sought to appeal his conviction and sentence in relation to drug trafficking charges. The appeal was heard by the Court of Appeal of the Supreme Court of South Australia, where the appellant contested both the conviction and the sentence. The appellant argued that the conviction was unreasonable and that there were errors in the admission of evidence, including the use of intercepted telephone conversations and items found in a hotel room. Additionally, the appellant challenged the sentence on the grounds of parity, discount, and personal deterrence.

The court examined whether there were any errors in the admission of evidence, including the legality of the use of listening devices and the admissibility of intercepted conversations. The court found that the use of listening devices was lawful under the Customs Act and that the trial judge's directions to the jury were appropriate. The court also determined that the evidence in question was not prejudicial or tampered with, and that the Crown was entitled to be selective in the evidence it presented. The appellant's arguments concerning the admissibility of evidence were dismissed.

The court further reviewed the sentence imposed on the appellant, assessing the principles of parity, discount, and personal deterrence. The court found that the sentence for the cocaine offence was appropriate but that the sentence for the cannabis offence should be reconsidered. The court determined that the sentence for the cannabis offence should be set aside and replaced with a sentence of imprisonment for 12 years, with a total non-parole period of 18 years. This decision was made to ensure that the appellant's total sentence was commensurate with the severity of his crimes and to maintain consistency with sentences for similar offences.

The final orders of the court were to dismiss the appeal against conviction, grant leave to appeal against the sentences, dismiss the appeal against the sentence for the cocaine offence, and allow the appeal against the sentence for the cannabis offence. The sentence for the cannabis offence was set aside, and in its place, a sentence of imprisonment for 12 years was imposed, with a total non-parole period of 18 years. This means that the appellant could expect to be released on parole on 21 November 2015, subject to good behaviour. Justice Grove and Justice Howie concurred with Justice Hodgson's decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In my opinion, no error has been identified, and the directions given were appropriate in the circumstances.ERRORS IN ADMITTING EVIDENCE The appellant submitted that the trial judge erred in admitting the following matters into evidence. First, telephone conversations recorded by W on his mobile phone, in the absence of a warrant. Second, concerning items allegedly found in Reardon’s hotel room in Chile, on the basis of lack of continuity, the prejudicial nature of the evidence, and on the basis that the evidence had been tampered with. Third, all listening device and telephone conversation tapes, because only a selected few had been used by the Crown and the Crown had supplied inaccurate transcripts. Fourth, conversations recorded by W prior to the obtaining a warrant under the Customs Act, that is during the nineteen days between 11 June 1997 and 30 June 1997. Finally, in permitting the Crown to lead evidence from W in relation to being shown a photo of the “Canberra man”. Some of these matters raise questions under s.219B(1) and (2) of the Customs Act 1901, which provide as follows:219B. Unlawful use of listening devices(1) It is unlawful for an official of a Commonwealth law enforcement agency to use, for the purposes of narcotics inquiries that are being made by officials of the agency, a listening device for the purpose of listening to or recording words while they are being spoken by a person unless: (a) he is the speaker of the words or is a person, or is included in a class or group of persons, by whom the speaker of the words intends, or should reasonably expect, the words to be heard; (b) not being a person permitted to listen to or record the words under paragraph (a), he does so with the consent, express or implied, of such a person; or(c) he does so in accordance with a warrant issued to the agency under this Division.(2) It is unlawful for a person acting by arrangement with an official of a Commonwealth law enforcement agency to use, for the purposes of narcotics inquiries that are being made by officials of the agency, a listening device for the purpose of listening to or recording words while they are being spoken by a person unless he is the speaker of the words or is a person, or is included in a class or group of persons, by whom the speaker of the words intends, or should reasonably expect, the words to be heard. As regards the first and fourth categories referred to by the appellant, the conversations recorded by W fall within s.219B(2), and accordingly their recording was not unlawful, and the evidence was admissible. The relevant telephone intercepts were authorised by warrant, and so fell within s.219B(1)(c). As regards the third category, it was open to the Crown to be selective as to which tapes it put into evidence. All tapes were available to the defence. The appellant has not pointed to any significant inaccuracy in any of the transcripts, and in any event, the trial judge told the jury that the evidence was what was recorded on the tape.

Decision

Reasons for decision

The 12 years should start at the end of the non-parole period of the cocaine offence, giving a total of 27 years. In my opinion, the total non-parole period should then be 18 years. CONCLUSION For those reasons, in my opinion the following orders should be made:1.Appeal against conviction dismissed.2.Leave to appeal against sentences granted.3.Appeal against sentence for the cocaine offence dismissed. 4.Appeal against sentence for the cannabis offence allowed, sentence set aside, and in lieu thereof there be a sentence of imprisonment for 12 years commencing 21 November 2012, and that there be a total non-parole period of 18 years commencing 21 November 1997. The effect of the sentence is that the appellant could expect to be released on parole on 21 November 2015, subject to good behaviour. GROVE J: I agree with Hodgson JA. HOWIE J: I agree with Hodgson JA.

Ratio Decidendi

Legal Principle Established

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