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Court of Criminal Appeal 30 August 1999

R v Cox [1999] NSWCCA 246 revised - 05

[1999] NSWCCA 246

Homicide
SENTENCE MURDER PLEA OF GUILTY YOUTH OFFENDER NO PREVIOUS CONVICTIONS

Citation: R v Cox [1999] NSWCCA 246
Court: NSW Court of Criminal Appeal
Date: 30 August 1999
Judge(s): Fitzgerald JA, Simpson J, Hidden J

Background

The appellant was an eighteen-year-old woman with no prior criminal history who pleaded guilty to the murder of a seventeen-year-old acquaintance in East Maitland on 18 December 1997. On the day of the offence, the appellant had consumed alcohol, marijuana and amphetamines. A scheme was devised to lure the deceased to a flat on the pretext of repaying a debt. After an exchange outside the flat, the appellant approached the deceased armed with a knife and stabbed her once in the abdomen. The deceased died four days later from internal bleeding.

The sentencing judge, Newman J in the Supreme Court, found that the appellant's intention was to inflict grievous bodily harm rather than to kill, and that her aggression was explained, though not excused, by her disinhibited state from drugs and alcohol. He sentenced her to penal servitude for sixteen years, comprising a minimum term of eleven years and an additional term of five years.

The appellant sought leave to appeal, arguing the sentence was manifestly excessive and that the sentencing judge had failed to give adequate weight to several mitigating factors, including her guilty plea, youth, lack of prior convictions and evidence of rehabilitation.

  • Whether the sentencing judge gave adequate weight to the appellant's plea of guilty
  • Whether the sentencing judge adequately considered the significance of the absence of prior convictions
  • Whether the sentencing judge gave sufficient weight to the appellant's youth and evidence of rehabilitation
  • Whether the enforced separation from the appellant's child was a relevant mitigating factor
  • Whether the total sentence and minimum term were manifestly excessive in the circumstances

Decision

The Court of Criminal Appeal found that two significant errors had occurred in the sentencing remarks. The sentencing judge made no reference to the appellant's absence of prior convictions, a matter carrying its own independent weight because it bore on whether the offence was an uncharacteristic aberration or evidence of a continuing attitude of disobedience to the law. In addition, although the judge noted the guilty plea, he said nothing about its significance. The plea had averted what would have been a lengthy trial and, given the conflicting and unreliable evidence, a manslaughter verdict could not have been ruled out.

On the separation from her child, the Court rejected this ground. The Court distinguished the circumstances from an earlier decision where a mother's separation from her children had been taken into account, noting that the appellant's child was being well cared for and brought regularly to visit her in custody. Separation from loved ones is an unfortunate consequence of imprisonment generally and does not of itself ordinarily justify leniency.

The Court accepted that the sentencing judge's discretion had miscarried and proceeded to re-sentence the appellant. While the original sentence appeared to be in the lower range even accounting for the plea, the Court found that a combination of factors justified a lesser sentence: the particular circumstances of the offence, its uncharacteristic nature, the guilty plea, the appellant's age and clear prior record, her difficult background, and her progress towards rehabilitation while in custody. Special circumstances were found, justifying a longer additional term relative to the minimum.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Original sentence quashed
  • Appellant re-sentenced to penal servitude for fourteen years, comprising a minimum term of nine and a half years (commencing 23 December 1997 and expiring 22 June 2007) and an additional term of four and a half years

Key Takeaways

  • The Court of Criminal Appeal confirmed that an absence of prior convictions is a discrete and significant sentencing consideration, separate from character evidence generally, because it bears on whether the offence represents an uncharacteristic departure from law-abiding conduct.
  • A plea of guilty requires explicit acknowledgment in sentencing remarks. The Court found error where the sentencing judge noted the plea but said nothing about its significance, including its utility in averting a lengthy trial and its evidentiary value as an expression of remorse.
  • Where evidence at trial is weak or contested, a guilty plea carries additional mitigating weight because it forecloses outcomes more favourable to the offender, such as a verdict of manslaughter rather than murder.
  • Enforced separation from a child in custody does not ordinarily constitute a significant mitigating factor unless the circumstances of care and contact for the child are relevantly different from those ordinarily arising from imprisonment.
  • In re-sentencing, the Court treated the combination of youth, clear record, uncharacteristic conduct, genuine remorse, a guilty plea and demonstrated rehabilitation as collectively justifying a sentence below the range that would otherwise apply for murder.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Veen v The Queen (No 2) (1987-88) 164 CLR 465
- R v Leonard (NSWCCA, unreported, 26 April 1996)