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. Subjective case 12 The applicant was only eighteen years old at the time and is now aged twenty. She has no previous convictions. She had a seriously disrupted childhood as a result of the breakdown of her parents' marriage. For some years she and her sister remained in the custody of their mother, who appears to have had significant problems of her own. Those years were characterised by frequent changes of residence and of school, and it was difficult for the applicant to form meaningful friendships with other children for that reason. Her father and her grandparents were sources of stability in her life, but she had inadequate contact with them. 13 The situation improved when she came under the care of her father at the age of about ten. She performed creditably in high school, completing Year 10. Unfortunately, her schooling came to an end when she became pregnant at the age of fifteen. She had the child, and for three or four years maintained a relationship with the father. However, that relationship was unhappy and he was sometimes violent towards her. It had come to an end at the time of the offence. In all the circumstances, it is perhaps not surprising that she abused drugs. 14 Her father and grandmother gave evidence of her general good character, which was not challenged. She was described as a devoted mother and a person not given to violence. Clearly, the aggression which brought her before the court was out of character. In a brief written statement presented in court she expressed her remorse for her crime, which his Honour accepted as genuine. 15 Whilst in custody she retained the support of her family and had regular contact with her child. She undertook studies towards the Higher School Certificate, together with a number of other educational courses. In a report by her case officer she was described as a "quiet and co-operative inmate", who had "utilised her time in custody in a positive and constructive manner". Her father and grandmother observed her to have matured significantly during that period. The application 16 It was submitted for the applicant that his Honour fell into error in a number of respects in his consideration of the matter and that, in any event, the sentence is manifestly excessive. It was said that his Honour failed to have regard to the fact that she had no previous convictions, and afforded insufficient weight to her plea of guilty, her youth and the evidence of her rehabilitation. In addition, it was said that his Honour failed to take into account the fact that she would be separated from her child for a substantial period. 17 As to that last matter, I am not persuaded that his Honour fell into error. The applicant's separation from her child is a sad circumstance but one to which little weight could be given for the purpose of sentence. Unfortunately, many people serving prison terms are deprived of the company of loved ones, including children, and that fact of itself would not normally justify the extension of leniency. The evidence before his Honour established that the applicant's child was being cared for by her father and grandmother, and that he was brought regularly to visit her at the prison. 18 This is a very different case from R v Leonard (CCA unreported, 26 April 1996), where the appellant's enforced separation from her three children was taken into account. The offence for which Ms Leonard was sentenced arose from her attempt to remove her children and herself from an abusive relationship with the father of the children, who had been violent towards her and to one of the children and, possibly, had also interfered with that child sexually. The judgment is silent about the arrangements for care of her children, and her contact with them, during her period in custody. 19 His Honour made express reference to the applicant's youth and to her progress towards rehabilitation. At one stage in the remarks on sentence he expressed the view that "her future in terms of rehabilitation is not bleak". Standing alone, this could suggest that his Honour underestimated the force of the evidence of rehabilitation, but it would appear from other passages in the remarks that his Honour did fairly assess that evidence. More than once he commented upon the substantial progress she had made, both educationally and personally, whilst in custody. It was this, in the light of her background, which led his Honour to find special circumstances warranting a longer than usual additional term. 20 However, I have come to the conclusion that the other challenges to the adequacy of his Honour's reasons for sentence are made out. His Honour mentioned the favourable evidence about the applicant's character but made no reference to the absence of previous convictions. That is a matter carrying its own significance, for the reasons expressed in the joint judgment in Veen v The Queen (No 2) (1987-88) 164 CLR 465 at 477: The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. 21 Further, while his Honour noted that the applicant had pleaded guilty to murder, he said nothing about the significance of that fact. The plea averted what would have been a fairly lengthy trial. Moreover, it was a further demonstration of the applicant's remorse. I have referred earlier to the unsatisfactory nature of much of the evidence and, in the circumstances, a verdict of guilty of manslaughter might not have been out of the question. 22 For these reasons I consider that his Honour's discretion has miscarried, and that this Court should determine the appropriate sentence. The question remains whether that sentence should be less severe than that which his Honour passed: s6(3) of the Criminal Appeal Act , 1912. 23 We were referred to decisions of this Court and at first instance relating to sentence for murder, together with sentencing statistics issued by the Judicial Commission of NSW. From that material it does appear that the total sentence passed on the applicant and the minimum term are in the lower range, even after a plea of guilty. Nevertheless, I consider that a combination of factors justify a lesser sentence than that passed by his Honour: the circumstances of the offence as his Honour found them, the fact that this was an uncharacteristic act of violence, the plea of guilty, the applicant's age, her clear prior record, her background and character and her progress towards rehabilitation. Like his Honour, I would find special circumstances. 24 I would propose that leave to appeal be granted and the appeal be allowed. I would quash the sentence passed by his Honour and would sentence the applicant to penal servitude for fourteen years, comprising a minimum term of nine and a half years to commence on 23 December 1997 and to expire on 22 June 2007, and an additional term of four and a half years. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.