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Court of Criminal Appeal 25 November 2004

Regina v Cox

[2004] NSWCCA 413

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE DEPRESSION CAUSAL CONNECTION WITH OFFENCE ASSISTANCE TO AUTHORITIES

Citation: Regina v Cox [2004] NSWCCA 413
Court: NSW Court of Criminal Appeal
Date: 25 November 2004
Judges: Santow JA, Hislop J, Smart AJ

Background

The applicant pleaded guilty to being an accessory before the fact to an armed robbery with a dangerous weapon, contrary to ss 97(2) and 346 of the Crimes Act 1900. The maximum penalty for that offence is 25 years imprisonment. The offence involved the applicant driving one of the principal offenders to the vicinity of a Westmead pharmacy and then waiting nearby with her vehicle so the three male offenders could abandon the getaway car and escape in hers.

At the District Court, Knight DCJ sentenced the applicant to 3 years and 6 months imprisonment with a non-parole period of 1 year and 9 months, commencing 18 September 2003. Psychological evidence before the sentencing court established that the applicant was suffering from depression, post-natal depression, post-traumatic stress disorder, and drug dependence at the time of the offence.

The applicant sought leave to appeal on four grounds: that the sentence was disproportionate to the objective criminality found by the sentencing judge; that parity principles required a lesser sentence having regard to co-offenders; that her mental health circumstances were exceptional and warranted a reduction; and that the sentencing judge failed to discount her sentence for assistance to authorities.

  • Whether the sentence imposed was proportionate to the objective criminality attributed to the applicant by the sentencing judge
  • Whether the principle of parity required the sentence to be reduced to reflect sentences imposed on co-offenders
  • Whether the applicant's depression and psychological circumstances had a sufficient causal connection to the offence to justify a lesser sentence
  • Whether giving evidence against a co-offender at the sentencing hearing constituted "assistance to authorities" under s 23 of the Crimes (Sentencing Procedure) Act 1999

Decision

The Court of Criminal Appeal upheld the appeal and reduced the total sentence from 3 years 6 months to 3 years, with the non-parole period reduced from 1 year 9 months to 1 year 3 months. The Court applied parity and proportionality principles, noting that the sentences received by the male co-offenders provided a relevant benchmark against which the applicant's sentence fell to be assessed.

On the question of depression and psychological condition, the Court acknowledged that the applicant's mental state at the time of the offence was a relevant mitigating factor. However, its weight depends on the extent to which the condition contributed causally to the commission of the offence. The Court's reasoning reflects the established approach that a mental condition carries greater mitigating force where it can be shown to have operated on the offender's decision-making, rather than simply being a circumstance existing at the time.

Regarding the claimed discount for assistance to authorities, the Court was unequivocal. The applicant gave no assistance to police prior to the sentencing hearing. The evidence she gave at the hearing about a co-offender's involvement was given under oath, in cross-examination, at a time when that co-offender was maintaining a not-guilty plea. The Court confirmed, following R v Calderoni [2000] NSWCCA 511, that complying with an obligation to answer questions on oath does not constitute assistance to law enforcement authorities for the purposes of s 23 of the Crimes (Sentencing Procedure) Act 1999. No discount was applicable on that basis.

Orders Made

  • Leave to appeal granted
  • Appeal upheld
  • Sentence quashed; in lieu, the applicant sentenced to 3 years imprisonment with a non-parole period of 1 year and 3 months, commencing 18 September 2003
  • Applicant eligible for release on parole on 17 December 2004, subject to conditions including supervision by NSW Probation and Parole Service, compliance with all directions from that service (including assessments, counselling, and urine analysis), and attendance at a residential drug rehabilitation program if directed

Key Takeaways

  • Answering questions on oath in cross-examination at a sentencing hearing does not constitute "assistance to authorities" under s 23 of the Crimes (Sentencing Procedure) Act 1999, even where the evidence implicates a co-offender who is contesting the charge.
  • A causal connection between a mental condition and the commission of the offence is central to determining the weight that condition carries as a mitigating factor at sentence; its mere existence at the time of the offence is insufficient on its own.
  • The Court of Criminal Appeal applied both parity and proportionality principles to reduce the sentence, treating the sentences imposed on co-offenders as a relevant reference point.
  • Where special circumstances are established, a court may depart from the standard ratio between the non-parole period and the total sentence, resulting here in a non-parole period that represented a smaller fraction of the head sentence.
  • Compliance with a legal obligation, such as answering questions under oath, is categorically distinct from voluntary assistance to law enforcement for sentencing discount purposes.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(2), 346
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 23, 44
- Crimes (Administration of Sentences) Regulation 2001 (NSW), reg 217

Cases:
- Lowe v R (1984) 154 CLR 606
- Postiglione v R (1997) 145 ALR 408
- R v Boney [2001] NSWCCA 432
- R v Calderoni [2000] NSWCCA 511
- R v Henry (1999) 46 NSWLR 346
- R v Tran [2004] NSWCCA 6
- R v Way [2004] NSWCCA 131
- Regina v Steel NSWCCA, 17 April 1997