R v Cox [1999] NSWCCA 246

New South Wales Court of Criminal Appeal CITATION : R v Cox [1999] NSWCCA 246 revised - 05/10/99 FILE NUMBER(S) : CCA 60761 of 1998 HEARING DATE(S) : 28/07/1999 JUDGMENT DATE : 30 August 1999

PARTIES : Regina Elizabeth Ann Cox JUDGMENT OF : Fitzgerald JA at 1; Simpson J at 2; Hidden J at 3

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70006/98 LOWER COURT JUDICIAL OFFICER : Newman J

COUNSEL : T J Golding (appellant) M M Cunneen (Crown) SOLICITORS : Legal Aid Commission (appellant) Director of Public Prosecutions (Crown) CATCHWORDS : Sentence - murder - plea of guilty - youth offender - no previous convictions ACTS CITED : Criminal Appeal Act, 1912 CASES CITED: Veen v The Queen (No 2) (1987-8) 164 CLR 465 R v Leonard (NSWCCA, unreported 26 April 1996) DECISION : Appeal allowed - sentence reduced

THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL CCA 60761 of 1998 FITZGERALD JA SIMPSON J HIDDEN JA

Monday, 30 August 1999 R v COX

JUDGMENT

1 FITZGERALD JA: I agree with Hidden J. 2 SIMPSON J : I agree with the orders proposed by Justice Hidden and with his reasons therefor. Reasons for judgment

3 HIDDEN J : The applicant, Elizabeth Ann Cox, seeks leave to appeal against a sentence imposed upon her by Newman J in the Supreme Court at Newcastle following her plea of guilty to a charge of murder. His Honour sentenced her to penal servitude for 16 years, comprising a minimum term of eleven years and an additional term of five years.

Facts 4 Despite the applicant's plea of guilty, the determination of the facts for the purpose of sentence was no easy task. There was a large body of evidence, documentary and oral, from people who were in the vicinity when the killing occurred, but it was anything but satisfactory. It was conflicting and there was a real question about the reliability of much of it, both as to honesty and accuracy. When interviewed by police the applicant did not admit her responsibility for the death, and she did not give evidence in the sentence proceedings. That said, his Honour's findings were these. 5 The deceased, Simone Gay Hill, was a seventeen year old girl who was known to the applicant. There had been some animosity between them, the cause of which is unclear. It appears to have related in some way to the fact that the applicant's sister, Annette Cox, owed the deceased money. 6 On Thursday, 18 December 1997 the applicant had been drinking alcohol and using marijuana and amphetamines, or both, during the day. In the mid-evening she went to a flat in East Maitland which her sister shared with another woman, Tracey Price. Ms Price was present with a male friend. There, the applicant and the others drank alcohol, smoked marijuana and used amphetamines. 7 A plot was hatched to lure the deceased to the flat by the promise of repayment of the money she was owed by Annette Cox. His Honour was unable to find whose idea this was, although it seems that it was Ms Price who telephoned the deceased to invite her to the flat. There was some evidence to suggest that the purpose of luring the deceased to the flat was to inflict violence upon her but his Honour made no finding about this. 8 The deceased arrived at the flat with two companions, a man and a woman. She was told that the money was not available. Eventually, she and her companions left the flat. As they did so, the applicant made a provocative remark to her. There was evidence that this elicited some response from the deceased or one of her companions but, again, his Honour made no finding about this. 9 Outside the flat the deceased and her companions got into the car in which they had arrived. The applicant followed them and approached the car, armed with a knife. His Honour was unable to conclude when it was she took possession of it. There was a verbal exchange of some kind between the applicant and the deceased, and the deceased got out of the car. As she did so, the applicant stabbed her once in the abdomen. Despite surgical intervention at a hospital in Newcastle, she died four days later as a result of internal bleeding. 10 The applicant and her companions at the flat then determined to conceal her involvement in the killing by telling police a false story and disposing of the knife. It is unnecessary to recite the detail of this scheme, which his Honour found to have been quickly exposed and abandoned. 11 His Honour concluded that the applicant's aggression was the result of her being disinhibited by drugs and alcohol, which he saw as an explanation for her behaviour, while not excusing it. He found that her intention was to inflict grievous bodily harm rather than to kill.