R v Cox

Supreme Court of NSW|2009-10-06|Before: Hulme J, Mr P

DECISION : Sentenced to imprisonment for 18 years with a non-parole period of 13 years 6 months.

CATCHWORDS : CRIMINAL LAW - sentence - murder - intend to inflict grievous bodily harm - severe beating with a large wrench - offender intoxicated and believed deceased was a paedophile - offence just below mid-range seriousness

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999

COUNSEL : Mr P Cattini (Crown) Mr A Haesler SC (Offender)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

JUDGMENT 1 HIS HONOUR: The offender, Justin Paul COX, has pleaded guilty to the murder of Samuel Connolly in the early hours of 2 January 2009 at Narooma. In sentencing him for that offence he has asked that I take into account that earlier on the same night he assaulted and inflicted actual bodily harm upon Mr Connolly.

2 The offender was born on 20 December 1982 at Penrith. He lived in that area with his family until they moved to Narooma when he was about 7 years of age. He was educated at Werrington County Primary School and then Narooma Public School and Narooma High School. He experienced learning difficulties, perhaps because of dyslexia, and exhibited behavioural problems at school. He was disruptive, got involved in fights, was defiant of teachers and, in his last two years, his attendance was infrequent. He was expelled in Year 9 after a physical fight with a teacher and throwing a table at the principal.

3 He then had a variety of jobs, mainly in retail stores. He met his partner, Rebecca Graham in 2003. She had two children from a previous relationship, a son born in 2001 and a younger daughter. Together they had a son born in 2005 and a daughter born in 2008.

4 Around the time he met Rebecca he commenced working with his father in a waste management business. Initially this was part-time but eventually became full-time. He acquired skills operating machinery and driving bulldozers and front end loaders. This was work he found satisfying and he was well remunerated.

5 Rebecca's son from her previous relationship was killed in an accident along with a playmate in 2006. Initially the couple tried to continue their lives but difficulties in the relationship arose from the grief and stress they undoubtedly experienced. They blamed themselves and each other. They argued more frequently. Rebecca ended up leaving him in early 2007 when she moved to Sydney. He responded with a serious suicide attempt. He remained on the South Coast with his employment in the waste management business but had developed an amphetamine habit and was drinking heavily. Thereafter he held a number of jobs interspersed with periods of unemployment. He had some fortnightly counselling sessions with a psychologist for about four months. He accepts that he has had anger issues in the past but found greater difficulty in controlling escalating anger, particularly if he had been drinking.

6 In 2007 and 2008 he lived at Narooma, Canberra and Sydney. He moved back to Narooma in October 2008 where he moved in with a friend, James Nathanial Rae who lived in a unit in a small block on Harper Crescent. At this time he claims to have stopped caring about anything. He drank heavily on a daily basis and did not care if he lived or died. He was no longer using drugs at this stage. He also appears to have developed an obsessive compulsive disorder.

7 The offender told Ms Anita Duffy, psychologist, how he had always been prone to outbursts of anger which led to conflict at school. He claimed that he had learnt to control himself better in later years but conceded that he had less control when drinking. He told Ms Duffy of harming himself during drunken outbursts of anger. He told her of an incident in which he had hit a steel pole repeatedly until he almost broke his knuckles when drunk.

8 All of this sets the scene for what happened to Mr Connolly. Samuel Connolly was a 47 year old man who lived in the unit next to the offender's friend, Nathaniel Rae. The offender met him when he moved in with Mr Rae, although he previously knew him by sight. The offender claims that he tolerated him as a "very interrupting and annoying drunk who would walk into their home unannounced and ask for beer or for money". At some point, however, he heard talk that Mr Connolly had been evicted from a Koori mission at Wallaga Lake because he had sexually assaulted children. The offender conceded in his evidence before me that he had no actual evidence of this but I accept that he held such a belief.

9 On New Year's Eve the offender had been drinking during the day but not to the usual excess and not at all during the evening when he was babysitting the child of Mr Rae and his girlfriend. He decided to make up for it the following day when he commenced drinking at around 9.00 a.m.

10 The offender came home sometime late in the afternoon and there were words exchanged with Mr Connolly who was also intoxicated. The offender then went to a nearby house to continue drinking. He received a call from Mr Rae who told him that Mr Connolly was out the front of his unit with a mob threatening to attack him. The offender hurried back to the unit where he found that Mr Rae had locked himself in and Mr Connolly was outside calling out something. There was no mob. The offender then challenged him to a fight. Mr Connolly did not take up the challenge. This is how the offender later described to the police what happened: Little fuckin' peaheart got on his hands and knees on the ground because he wouldn't go me but he'd go Nathaniel. I then proceeded to punch him in the face like the dog he was.

11 The offender admitted that he struck Mr Connolly a number of times to the head and that he ended up with a cut to his own knuckles. The assault concluded with the offender saying to Mr Connolly, "You ever threaten my brother's life again, I will come and snap your fuckin' neck".

12 This incident comprises the offence of assault occasioning actual bodily harm on the Form 1 document. The actual bodily harm sustained by Mr Connolly was a split lip. The police asked the offender to describe his own level of intoxication at this point and he replied, "Pissed".

13 The offender then left and continued drinking somewhere that he could not recall. He returned to the unit "some hour, early hour in the morning". He was accompanied by someone whose name he was not prepared to provide to the police. In his evidence before me he named this person as Graham Cox (no relation). He said that he noticed Mr Connolly lying on the couch inside his unit through the open front door. The offender proceeded inside Mr Rae's unit where he consumed some more alcohol. The evidence does not disclose what Mr Cox did.

14 The offender said that he could hear Mr Connolly through the "paper thin walls" and that he was "cursing and going off about white people, saying he's going to get a mob onto me and Nathaniel". The offender challenged him again to a fight but Mr Connolly did not respond. The offender then called him a paedophile and he claims that Mr Connolly admitted that he was one and said, "Who cares?". At some stage he heard Mr Connolly slam closed the front door of his unit. The offender described to the police what happened then: "I then in a blind rage snapped, walked into Nathaniel's room, lifted his bed, pulled out approximately 40 to 50 centimetre truck wrench missing the internal wrench part. I climbed across the veranda, I pulled his screen off, I went through his open window and proceeded to beat him across the body while he layed (sic) on his couch".

15 He said he then returned to Mr Rae's unit, washed the implement and himself and then left. He said that as he passed Mr Connolly's unit he saw through the window that he was not on the couch and there was a light on in the bathroom. In other words, he understood Mr Connolly to be alive. Unbeknown to the offender he was to die an hour or two later.

16 The offender provided further details of what happened in the balance of the police interview. The wrench was 40 - 50 cm or 50 - 60 cm long and about 2 - 3 kg in weight. It was pitch black in Mr Connolly's unit but his eyes had adjusted and he could generally make out where his body was. As he approached Mr Connolly he was thinking that he was a "dirty fuckin' paedophile little faggot (who) stuck his dick in a kid". He was not aiming for any particular part of his body and did not know which parts he actually hit. Later he said that he did not think that he hit him in the head because it felt like he was hitting the upper body. He said he did not want to hit him in the head because he knew that would hurt. He agreed that it was foreseeable that he could have struck Mr Connolly's head and that it was also foreseeable that death or serious injury could result. He struck Mr Connolly 5 to 10 times and each time his body bounced about a foot off the couch. Although he was "very" intoxicated, he realised what he was doing. He said he, "Just wanted to make him feel suffering like I have". He went there to cause him pain. When asked about how he hurried away from the premises he said that was because, "I was in a rage. I was skitzing out, like I don't know, I just, yeah, that's how I get sometimes. I don't know. Ever since my boy's died, I get in these moods sometimes and I don't remember what I do or I go overboard, do you know what I mean?". He also said that becoming angry when drinking had been happening a lot to him lately. "Someone rolls (sic - riles?) me up, I just lose the plot. There's no explanation for it". At the end of the interview, when asked if there was anything further he wished to say, he said, "Just that I regret it, that I'm ashamed and that I offer my own life if they want it".

17 This interview with the police took place at around midnight on the night of 3-4 January 2009. The offender had been arrested on the morning of 2 January when he was still intoxicated. He had received legal advice and declined to be interviewed. However, he then made contact with the investigating officers and told them he had changed his mind and would agree to answer questions.

18 In his evidence before me the offender said that he had no intention of hitting Mr Connolly about the head but he repeated the concession that he intended to harm him and that he was very drunk, angry and reckless.

19 The offender claimed in his interview with Ms Duffy in September 2009 that one of the things that Mr Connolly had called out shortly before he went to his unit and attacked him was, "Fuck you Cox, your daughter's next". He claimed that it was this that so enraged him. He repeated this claim in his evidence before me. I find it rather surprising that if this was said by Mr Connolly and that it was the cause of the offender's rage that he did not mention it during the course of his lengthy interview with the police so soon after the events occurred. I do not accept it but I also do not think that anything turns on it.

20 Police had been called out to the premises at about 8.30pm on the night in response to a complaint by Mr Connolly that somebody had smashed the front window of his unit. He attributed this to "those cunts next door" but as he did not see who did it the police could take no action. It was noticed, however, that Mr Connolly was intoxicated and difficult to understand. At about 10.00pm a lady who lived across the road called police to report that Mr Connolly's neighbours were arguing with him and that they had pushed him over. Two officers attended. The offender and another person were identified as the likely perpetrators for what had occurred and it was intended to follow it up in the morning. I am satisfied that this was the incident in which the offender assaulted Mr Connolly.

21 A neighbour called the ambulance at about 4.00am. When the officers arrived a very short time later they were told by the neighbour that Mr Connolly had been assaulted about an hour to an hour and a half earlier. The officers found Mr Connolly sitting on the lounge in his unit. He was seriously injured and there was a lot of blood about but he was described as being alert and oriented. He was experiencing breathing difficulties. He was assisted downstairs to the waiting ambulance and there placed on a stretcher. At that point he became agitated and then suddenly passed away. Resuscitation efforts were to no avail.

22 Professor Johan Duflou, forensic pathologist, conducted a post mortem examination from which he concluded that the cause of death was "blunt force head and neck injuries". He observed multiple lacerations of the face, multiple fractures of the face structures, principally to the teeth and jaw, injury to the small bones of the neck, multiple rib fractures and fracturing of the bones of the hands and forearms. There were also numerous bruises and abrasions. The lungs were full of blood. A toxicology report revealed a blood alcohol level, described by the pathologist as "modest", of 0.063g/100mL.

23 The offence of murder is obviously serious but I need to make an assessment of where within the range of seriousness of such offences this particular offence lies. I accept that the offender did not intend to kill Mr Connolly but I am satisfied that his intention was to inflict most grievous bodily harm upon him. He became enraged after offensive and abusive comments had been exchanged that included reference to his belief, for which there is no foundation in the evidence, that Mr Connolly was a paedophile. The offender's choice of a heavy wrench as a weapon and the five to ten blows he struck with it are indicative of the level of his anger and rage. I am satisfied that there was considerable force behind each of the blows. The offender was significantly younger and bigger than Mr Connolly who was 47 years old, 1.75m tall and 66 kg in weight. The offender was 26 years old, 1.85m tall and weighed 85 - 90 kg. Mr Connolly was prone on his lounge and had no chance of defending himself. The attack came as a surprise and occurred in Mr Connolly's own home after the offender had broken in. On any view, Mr Connolly was the victim of a most savage, brutal and cowardly beating.

24 I do not think there is anything specific in the mental state of the offender that is relevant to the assessment of the objective seriousness of the offence beyond the fact that it was clearly impulsive and not the product of any considered thought. In large part, his mental state - and by that I mean all of the matters that impinged upon the lifestyle he was leading at the time, and had there genesis in the loss of his stepson in 2006 - is a consideration of a subjective nature and is relevant to issues of personal deterrence, rehabilitation and the like.

25 It was submitted by Mr Haesler, senior counsel for the offender, that I should find that the offence was below the middle of the range of objective seriousness. The Crown Prosecutor did not cavil with that but was more precise in submitting that I should find it was just below that range. Upon a consideration of all of the matters I have just mentioned I have come to the view that the submissions of both counsel should be accepted, that is, that the offence is just below the middle of the range.

26 The offender has a criminal history involving convictions for property damage, behaving offensively in public and having custody of an offensive implement in public. It is notable that there are no offences of personal violence. He has not previously been imprisoned. This is a record that is fairly insignificant in the assessment of sentence in the present case. At most, it denies to him any benefit of being regarded as a first offender of prior good character.

27 Mr Connolly's criminal history was included in the material tendered by the Crown. I do not know why. Perhaps it is because it shows that there is nothing in it that would support the offender's belief that he was a paedophile.

28 On 14 November 2008 the offender was charged with a number of offences including maliciously inflicting grievous bodily harm with intent to cause grievous bodily harm. I was informed that he proposes to defend those matters. A question arose as to whether the present sentencing should be deferred until those matters were finalised. If they culminate in sentence(s) having to be imposed there will be a difficulty in accumulating, or partially accumulating upon the sentence I am to impose. I raised the concern that such sentencing might result in the offender having his potential parole period eroded such as occurred in Smale v R [2009] NSWCCA 220. Mr Haesler sought instructions and then confirmed that he wished the present matter to proceed despite the risk that I had adverted to.

29 The fact that the offender was on bail in respect of those matters at the time of the offence for which I am to sentence is a serious aggravating feature.

30 The offender was held at the Goulburn Correctional Centre up until his arraignment in this Court on 7 August 2009. Whilst at that centre he worked in the cabinet and wood shop. He is presently held at Parklea Correctional Centre where he is working as the librarian. He has hopes of returning to Goulburn as he is due to commence an apprenticeship in cabinet making next January. He is also enrolled in a law course offered by the State Library.

31 He has also been seeing drug and alcohol workers and a psychologist. He has been discussing with the latter his anger management problems. A certificate confirming his completion of a ten session alcohol and other drug relapse prevention course confirms the former.

32 He has not had any contact with his children since being in custody. He does have family support. His parents and an aunt were present at the sentence hearing last week. In addition I have received testimonials from his sister, an uncle, an aunt and Mr and Mrs Graham, the parents of his former partner.

33 Psychometric testing by Ms Duffy produced results that she said must be interpreted with caution. She said he answered the questionnaire by extensively exaggerating his symptoms, particularly personal problems and faults. As a result I do not propose to place any weight upon the possible interpretation she offered. I do, however, accept that in the two and half years leading up to the time of the offence the offender had been unable to come to grips with the loss of his stepson, the breakdown of his relationship and his minimal contact with his children. As time went on he lost all care for the future and allowed himself to become lost in a world of daily binge drinking. This compounded a perennial problem of lack of control of his emotions, most particular anger.

34 The offender's remorse for taking Mr Connolly's life is not quite complete. He has expressed regret and shame from as early as his interview with the police two days after the event. His evidence before me was that he felt bad for Mr Connolly's family because they had lost a family member and he felt ashamed for his own family and children. He said it was something that he will live with for the rest of his life and he was prepared to pay for what he did. He concluded his evidence by acknowledging his responsibility generally. At no stage has he expressed any remorse for Mr Connolly himself. What he has acknowledged, however, is sufficient to warrant a finding in his favour under s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999.

35 The offender did co-operate with the police by offering to be interviewed after an earlier refusal on legal advice. He was frank and forthright in making quite blunt admissions during the course of that interview.

36 His plea of guilty was first entered in the Local Court. For the utilitarian benefit of that plea to the system of justice I will discount the sentence by 25 per cent.

37 In terms of rehabilitation, there will obviously be a need for much work to be done by the offender on substance abuse issues, relapse prevention and, most importantly, anger management. Resolving the underlying trauma and grief at the loss of his stepson will be an important component. If these issues are not under control when he is back in the community there is a real danger that he will return to the state he was in as described by Senior Constable Wharffe in his statement that was tendered by the Crown at the invitation of the defence. The officer there said, "Justin Cox had over the past months shown a propensity to violent acts whilst drinking". The present matter is a demonstration of the danger he presented at that time.

38 The situation is not completely gloomy however. He demonstrated difficulties in controlling his anger in his formative years but in adulthood he did learn to exercise control until the self-destructive downward spiral into which he descended from mid-2006. The fact that his criminal history contains no offences of violence is of some significance. He has demonstrated in the past a good work ethic. The fact that he has been working whilst in custody and also that he has plans to undertake an apprenticeship in cabinet making show some promise for the future. The authors of the various testimonials all express confidence that he can "put his demons to rest", as one of them put it, and once again become a worthwhile member of the community. My conclusion is that provided he conscientiously engages with counselling and programs to address the issues I have mentioned his rehabilitation prospects are quite good.

39 My finding that the offence fell just below the middle of the range of objective seriousness is a reason for not imposing the standard non-parole period of 20 years. My findings as to the various subjective matters in the offender's favour, including the discount for the plea of guilty, are further reasons for not doing so. I must, however, keep the prescription of that period as the standard in mind as a benchmark, just as I do the maximum penalty of imprisonment for life.

40 I confirm that in sentencing for the offence of murder I have taken into account the offender's guilt of the offence of assault occasioning actual bodily harm.

41 Convicted Sentenced to imprisonment comprising a non-parole period of 13 years 6 months and a balance of the term of the sentence of 4 years 6 months. The sentence is to commence 2 January 2009. The offender will be eligible for release on parole upon the expiration of the non-parole period on 1 July 2022. The total term expires on 1 January 2027.

42 I dismiss the back-up charge of assault. **********

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Judgment (49 paragraphs)

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