R v Cox [1999] NSWCCA 254

New South Wales Court of Criminal Appeal CITATION : R v Cox [1999] NSWCCA 254 FILE NUMBER(S) : CCA 60331/99 HEARING DATE(S) : 20 August 1999 JUDGMENT DATE : 20 August 1999

PARTIES : Noela Patricia COX Regina (NSW) JUDGMENT OF : Wood CJ at CL; Simpson J

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/51/0116 LOWER COURT JUDICIAL OFFICER : Ducker DCJ

COUNSEL : R. Toner SC with S. Walsh C. Maxwell QC SOLICITORS : Thompson, Wheelahan & Hampshire S.E. O'Connor CATCHWORDS : DECISION : Application for leave to appeal against sentence refused.

IN THE COURT OF CRIMINAL APPEAL

No 060331/99 WOOD CJ at CL SIMPSON J

Friday 20 August 1999

REGINA -V- NOELA PATRICIA COX

JUDGMENT 1 WOOD CJ at CL: The applicant seeks leave to appeal against a sentence comprising a minimum term of penal servitude for twelve months, and an additional term of two years and six months imposed by Ducker DCJ in the District Court at Lismore on 11 June 1999. This sentence was imposed following a plea of guilty to one count of malicious wounding, contrary to s 35(a) of the Crimes Act 1900, an offence for which the maximum prescribed penalty is penal servitude for seven years. 2 The offence was a serious incident which occurred in the course of a dysfunctional relationship between the applicant and the victim, that had been punctuated by frequent argument and violence. The sentencing Judge accepted that the incidents of violence were mutual, although more often than not they were initiated by reason of the applicant's intoxication. On her own admission she had a longstanding addiction to benzodiazepines and to alcohol. Although described by the victim as a "lovely person" when not affected by drink, she accepted that she was "a very obnoxious person" when intoxicated. 3 On the occasion of the offence that brought her before the Court, she had returned home well affected by liquor. There were some arguments between her and the victim involving a degree of pushing and shoving. She continued to drink while playing outside with some puppies. 4 Eventually she directed some abusive remarks to the victim and to a friend of his, because they were involved in a game of Nintendo and were ignoring her. She went to her bedroom to fetch a hunting knife which she had taken to keeping under her bed following an earlier sexual assault by a neighbour. The victim was forewarned that she was likely to be going for the knife and he seized a pillow to protect himself. Notwithstanding his defensive attempts, she stabbed him once in the stomach causing a deep laceration from which his intestines protruded. He also suffered defensive wounds to his hand and a substantial bite to his arm from which a chunk of flesh was removed. 5 The applicant suffered some minor injuries herself in the course of the struggle which followed the stabbing. These included some bruises to her head and neck and a bite to her own arm. There is no doubt that she was on this occasion the aggressor nor is there any doubt that the account which she had initially given to the police, to the effect that the victim had run on to the knife, was totally untrue. 6 By the time the applicant appeared for sentence her relationship with the victim, which appeared to be of a platonic although wholly dysfunctional nature, had been re-established. 7 In framing the sentence his Honour found there were special circumstances attributable to the mental health of the applicant, and upon this basis varied the usual proportion between the minimum and additional terms. 8 The sentence is now challenged upon the ground that it was manifestly excessive and should have led to a non-custodial outcome. 9 It was submitted that the course which the sentencing proceedings took on 15 March 1999, when they were stood over in order to obtain a report from her treating psychiatrist, to gather evidence as to the facilities available at Grafton to oversee her drinking problem, and to obtain a pre-sentence report, were such as to hold out to her the possibility of a non-custodial sentence. 10 It is the fact that his Honour granted bail upon various conditions, including absolute abstention from intoxicating liquor, and co-operation with the Probation and Parole Service in the preparation of a pre-sentence report. I am, however, unable to accept that, by taking this course, his Honour foreclosed the options available for sentence or that he committed himself to a non-custodial sentence, in the event of the applicant complying with her bail conditions and receiving favourable reports from the psychiatrist and from the Probation and Parole Service. 11 On the contrary, it seems to me, his Honour exercised the care that might have been expected of a Judge of his experience, in ensuring that he had sufficient information as to the applicant's background, and in relation to the incident before him, upon the basis of which he could assess both her subjective and objective criminality and frame a suitable sentence. 12 His Honour was entitled, upon the evidence before him, to entertain serious concerns when dealing with an offender who obviously had longstanding personal problems of considerable magnitude, and who had used a knife to inflict serious injury in the course of a violent relationship. No doubt his Honour had in mind the abhorrence held by the community towards the use of knives to inflict personal injuries, as well as the cautions given by this Court, on numerous occasions, as to the need for significant custodial sentences for such offences: see Randall CCA NSW 19 April 1994 and Rothapfel CCA NSW 26 March 1992). 13 His Honour, in fact, made the position abundantly clear, in the course of explaining the reasons for the adjournment, when he observed: "... nor am I saying that I will necessarily deal with this matter by a non-custodial disposition, I want to know the full story and the full picture." 14 In the course of the evidence tendered upon sentence it was established that the applicant had substantially moderated her drinking after the incident. She had been to a detoxification centre at Coraki, and her use of benzodiazepines was subject to supervision by her general practitioner. Moreover, and the victim said that he was willing to continue trying to help her. 15 The pre-sentence report was somewhat qualified. It did little more than note the existence, in the applicant, of the serious alcohol and drug-related problems, the mental health problems, and the longstanding relationship difficulties, involving physical and mental abuse at the hands of various men, that were otherwise evident. It noted that, since her last rehabilitation, she had reported major progress and was neither craving alcohol or drinking. It did, however, record that she was having substantial difficulties with prescribed medication, including Valium, and had been receiving treatment from the Grafton Community Health team. By way of summary, the author noted that the applicant had been polite, co-operative and honest in the preparation of the report, but added that it appeared that she had "Many unresolved, traumatic issues and an ongoing substantial alcohol and other drug abuse problems." He advised that periodic detention was unavailable, and that little benefit was seen in a supervised recognisance, as the applicant was aware of the available services and agencies, and had accessed most of them in the past. 16 Dr Delaforce, her treating psychiatrist, offered a diagnosis of the following mental disorders: