Regina v Cox

[1999] NSWCCA 220

CITATION:	Regina v Cox [1999] NSWCCA 220
FILE NUMBER(S):	CCA 60823/98
HEARING DATE(S):	2 August 1999
JUDGMENT DATE:	2 August 1999
PARTIES :	Regina v David Cox
JUDGMENT OF:	Levine J; Smart AJ

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/21/3213
LOWER COURT JUDICIAL OFFICER:	Ford DCJ

COUNSEL:	J S Andrews for the Appellant C K Maxwell QC
SOLICITORS:	T A Murphy for the Appellant S E O'Connor for the Crown
CATCHWORDS:	Criminal Law; sentence for aggravated indecent assaults and attempted aggravated sexual intercourse.
ACTS CITED:	-Nil-
CASES CITED:	-Nil-
DECISION:	Leave to appeal granted; appeal allowed on count of attempted aggravated sexual intercourse. In lieu of sentence imposed on that count applicant sentenced to minimum term of 18 months starting on 13 November 1998 and ending on 12 May 2000 and an additional term of 18 months starting on 13 May 2000. Appeals against sentences on counts of aggravated indecent assault dismissed.

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IN THE COURT OF
CRIMINAL APPEAL

60823/98

LEVINE J
SMART AJ

MONDAY, 2 AUGUST 1999

REGINA vDavid Leslie COX

JUDGMENT

1 SMART AJ David Leslie Cox seeks leave to appeal against the severity of a sentence comprising in effect a minimum term of two years and an additional term of eighteen months. This was the sentence imposed on the count of attempted aggravated sexual intercourse. The applicant was sentenced to fixed terms on each of three other counts of aggravated indecent assault of twelve months, all sentences to be served concurrently.

2 The circumstance of aggravation was that the victim was a child under the age of sixteen years, namely thirteen years. She was the applicant’s stepdaughter, the applicant having had a de facto relationship with her mother.

3 The offences, to all of which the applicant pleaded guilty, occurred while the victim was on weekend access visits at his premises at Picton.

4 On Sunday morning, 15 March 1998, the victim was in his home, asleep in her bed in the lounge room, when she was awakened by the applicant, who had placed his hand in her shorts. He rubbed her vagina on the outside of her underpants for ten to fifteen minutes, on her estimate. The applicant desisted when the noise of a car arriving was heard. That afternoon, the victim had a nap on her bed. She was woken by the applicant, who was lying on the bed. He placed his hands down her shorts and rubbed her vagina on the outside of her underpants. Later that afternoon, he told her that he felt really guilty and that he would never do it again.

5 On 3 April 1998, the victim was asleep in her bed in the applicant’s lounge room. The applicant joined her on the bed. He pulled her singlet top above her breasts and her pants down to her ankles. He placed his hand inside her underpants and his fingers on the outside of her vagina. He tried to penetrate her vagina with his finger, but was unsuccessful. After kissing her, he had her place her hand on his penis.

6 On Sunday morning, 5 April 1998, the victim was on her bed in the applicant’s lounge room. He got onto her bed and gave her a hug. He placed a hand on her breasts on the outside of her shirt. With the other hand he rubbed her bottom on the outside of her pants for about five minutes.

7 The applicant was born on 23 February 1964. He was dealt with for a couple of minor matters in 1986, which can safely be disregarded. Until he had a motor vehicle accident in June 1995 in which he sustained serious injuries, he had been in employment and worked hard. Since the accident he has had to rely upon workers’ compensation, and he has been self-employed part time in furniture restoration from home.

8 The judge accepted that the applicant had become depressed because of his separation from the victim’s mother and the motor accident. The judge found that the applicant took advantage of the victim’s very affectionate nature. He relied on her support and affection following the failure of his de facto marriage. He was also stressed by his post-accident litigation and the injuries which occasioned some continuing pain.

9 Counsel for the applicant has contended that the judge gave insufficient weight to the plea of guilty, did not mention the matter of remorse and did not deal with the question of rehabilitation sufficiently.

10 The remarks on sentence of the judge are brief. The plea of guilty is mentioned in passing at the commencement of his judgment. There is no mention of remorse and rehabilitation is mentioned, if at all, only by inference. There was material before the judge that the applicant was extremely remorseful and contrite. That came from the evidence of the applicant in which he expressed his remorse and made it plain that he was particularly sorry for what he had done to the victim. He stated that he did not understand why he had done it.

11 The applicant, in his interview for the pre-sentence report and in his consultation with the psychologist, was candid about his behaviour, accepted full responsibility for what he had done, did not seek to blame others and was plain about the feelings of guilt which he felt. He was worried that he had seriously jeopardised the relationship that he had had with the victim, and he acknowledged her feelings of disgust and the wrong which he had done. He also indicated that he would be prepared to attend a rehabilitation programme and seek the assistance of psychological counselling with his depression and other problems. The officer preparing the pre-sentence report and the psychologist all regarded the indications I have mentioned as a promising start and as presenting hopeful signs for the future. When there was material available to the judge, it is a pity that it was not mentioned in his reasons.

12 The judge found that the applicant may require further emotional suport or treatment when released to probation and accordingly fixed a longer than usual additional term. I agree that there are special circumstances. The applicant will need continuing treatment and supervision on his release to complete his rehabilitation. The period of eighteen months selected by the judge was correct.

13 There can be no doubt that the offences were serious, and no attempt has been made to downplay their seriousness. The judge was right to emphasise the seriousness of the offences, and the firm stand which the court takes in relation to offences such as the present.

14 Without derogating in any way from those important factors and the aspects of deterrence, there should also be taken into account the effect of the plea of guilty, which avoided a trial and avoided the victim giving evidence, the obvious remorse and the hopeful signs for the future in the way of rehabilitation.

15 In all the circumstances, I have come to the conclusion that the sentence imposed was excessive, and that the appropriate sentence in relation to the offence of attempted aggravated sexual intercourse was one of three years full term with a minimum term of eighteen months.

16 I propose that leave to appeal be granted, that the appeal be allowed, and that in lieu of the sentence imposed, the applicant be sentenced on the count of attempted aggravated sexual intercourse to a minimum term of eighteen months commencing on 13 November 1998 and expiring on 12 May 2000, and an additional term of eighteen months to commence on 13 May 2000. I propose that the appeals on the offences of aggravated indecent assault be dismissed.

17 LEVINE J: I agree. The orders will be as proposed by Justice Smart.