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Court of Criminal Appeal 20 August 1999

R v Cox

[1999] NSWCCA 254

Assault & violenceDomestic & family violence
NOELA PATRICIA COX JUDGMENT 1

Citation: R v Cox [1999] NSWCCA 254
Court: New South Wales Court of Criminal Appeal
Date: 20 August 1999
Judge(s): Wood CJ at CL; Simpson J

Background

The applicant pleaded guilty in the District Court at Lismore to one count of malicious wounding under s 35(a) of the Crimes Act 1900, which carries a maximum penalty of seven years' penal servitude. The offence arose from a violent incident in the context of a long-term, mutually dysfunctional relationship marked by frequent conflict. The applicant had returned home intoxicated, argued with the victim and his friend, retrieved a hunting knife from her bedroom, and stabbed the victim once in the stomach. The victim suffered serious abdominal injuries, defensive wounds to his hand, and a substantial bite wound to his arm.

Ducker DCJ sentenced the applicant to a minimum term of twelve months' penal servitude and an additional term of two years and six months. His Honour found special circumstances on mental health grounds, which justified varying the standard proportion between the minimum and additional terms.

The applicant sought leave to appeal against the sentence on the basis that it was manifestly excessive and that the circumstances should have resulted in a non-custodial outcome.

  • Whether the sentencing judge's adjournment to gather psychiatric, pre-sentence and rehabilitative reports created a legitimate expectation of a non-custodial sentence.
  • Whether the sentence imposed was manifestly excessive given the applicant's significant mental health issues, history of trauma, substance dependency, and progress in rehabilitation.
  • Whether the sentencing judge erred in treating the applicant's voluntary intoxication as an aggravating circumstance.
  • Whether sentencing statistics for s 35(a) offences supported a finding that the sentence fell outside the legitimate range.

Decision

The Court of Criminal Appeal rejected the argument that the adjournment and grant of bail on conditions had committed the sentencing judge to a non-custodial outcome. Wood CJ at CL found that the judge had been careful to keep all sentencing options open, expressly noting during the adjournment that he was not committing to a non-custodial disposition. The purpose of the adjournment was to ensure the judge had sufficient information about the applicant's background and circumstances before framing an appropriate sentence.

The Court also rejected the argument that the sentence was manifestly excessive. The applicant's considerable subjective circumstances, including her diagnosed mental health disorders, history of trauma, multiple failed rehabilitation attempts, and progress since the offence, were accepted as relevant. However, the Court held that these matters had been carefully taken into account by the sentencing judge, who had quoted extensively from the psychiatric report. The seriousness of the offence, particularly the use of a knife in the context of a violent relationship, was a weighty objective consideration.

On the question of intoxication, the Court found no error in the sentencing judge's observation that the applicant's excessive drinking was directly responsible for the wounding. Read in context, that observation did not treat deliberate intoxication as a circumstance of aggravation in the sense of premeditation. The Court reaffirmed that intoxication does not excuse conduct for an offence not requiring specific intent, nor does it operate in mitigation of sentence.

The Court gave limited weight to sentencing statistics, noting that they reflect a wide range of factual circumstances and do not isolate cases involving the use of a knife. The use of a knife had been treated as an aggravating feature in malicious wounding cases, and the Court found the sentence fell within the legitimate range.

Orders Made

  • Application for leave to appeal against sentence refused.

Key Takeaways

  • Adjourning sentence proceedings to gather psychiatric, pre-sentence and rehabilitation reports does not, of itself, foreclose a custodial outcome or create a legitimate expectation that a non-custodial sentence will follow.
  • The Court of Criminal Appeal confirmed that voluntary intoxication does not mitigate sentence for an offence of malicious wounding, which requires no specific intent.
  • Where a sentencing judge expressly reserves all options at the time of an adjournment, an applicant cannot later argue that compliance with bail conditions during that adjournment gave rise to an implied commitment against imprisonment.
  • Sentencing statistics under s 35(a) of the Crimes Act 1900 provide only a general range and offer limited assistance where aggravating features such as the use of a knife are present.
  • Significant subjective circumstances, including mental illness, a history of trauma, and substance dependence, may be found to have been properly weighed without displacing a custodial term where the objective gravity of the offence is high.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(a) (malicious wounding)

Cases:
- Randall, CCA NSW, 19 April 1994 (unreported)
- Rothapfel, CCA NSW, 26 March 1992 (unreported)
- Leslie, CCA NSW, 10 March 1995 (unreported)
- Fletcher Jones (1994) 75 A Crim R 381