Ahmed v The Queen
[2012] VSCA 200
•27 August 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2011 0135 | |
| GULET AHMED | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | NETTLE, REDLICH and OSBORN JJA | |
| WHERE HELD | MELBOURNE | |
| DATE OF HEARING | 27 August 2012 | |
| DATE OF JUDGMENT | 27 August 2012 | |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 200 | |
| JUDGMENT APPEALED FROM | R v Ahmed (Unreported, County Court of Victoria, Chief Judge Rozenes, 15 March 2011) | |
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CRIMINAL LAW – Conviction – Aggravated burglary, recklessly causing serious injury and three counts of armed robbery – Evidence – Whether trial miscarried as result of Prosecutor cross-examining appellant as to appellant’s failure to adduce corroborative evidence – Prejudice – Movements of appellant following being placed on remand – Whether cross-examination placed appellant in an impossible position before jury – Dyers v The Queen (2002) 210 CLR 285, Jones v Dunkel (1959) 101 CLR 298 referred to – Appeal dismissed.
CRIMINAL LAW – Sentence – Evidence – Whether appellant demonstrated efforts to address drug addiction – Parity – Whether judge gave sufficient weight to parity principle – No error demonstrated – Appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P F Tehan QC with Mr J J Lavery | C D Traill Lawyers |
| For the Respondent | Mr P Kidd SC | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE JA:
Following a trial in the County Court at Melbourne, on 4 October 2010 the appellant was found guilty of three counts of armed robbery, one count of aggravated burglary and one count of recklessly causing serious injury. On 15 March 2011, he was sentenced therefor, as follows:
Count
Offence
Sentence
Cumulation
1
Aggravated burglary
Five years’ imprisonment
Base sentence
2
Armed robbery
Five years’ imprisonment
One year
3
Armed robbery
Five years’ imprisonment
One year
5
Recklessly causing serious injury
Three years’ imprisonment
Six months
6
Armed robbery
Five years’ imprisonment
One year
Total effective sentence
Eight years and six months’ imprisonment
Non-parole period
Six years
On 2 November 2011 Neave JA refused the appellant leave to appeal against conviction and sentence. The appellant, however, renewed his applications and, on 17 February 2012, Bongiorno JA and I granted him leave to appeal against conviction and referred his renewed application for leave to appeal against sentence to be heard at the same time as his appeal against conviction.
This is the hearing of the appeal against conviction and of the appellant’s renewed application for leave to appeal against sentence.
The Crown case at trial
The Crown’s case at trial was that, on 13 October 2008, the appellant and two co-offenders, Osman Tiba and Abdul Sayour, forcibly entered a house occupied by Nelson Baguio, Chris Elliott and Andrew Elliott (collectively ‘the complainants’). The appellant was armed with a metal baseball bat, Tiba was carrying a .22 rifle and Sayour was holding a 6-inch long serrated steak knife. All three offenders threatened the complainants, searched the premises for items to steal and demanded money.
The appellant struck Mr Baguio, fracturing his arm, and demanded to know the location of the marijuana. He then threatened all complainants, struck Chris Elliott, and smashed some items before fleeing the premises.
The co-offender, Tiba, threatened Chris Elliott with the .22 rifle before Mr Baguio picked up two baseball bats in his bedroom and gave one to Andrew Elliott. The two of them then attempted to force the co-offenders from the premises, during the course of which Andrew Elliott was stabbed in the left thigh.
Chris Elliott grabbed the .22 rifle, causing it to discharge and wound the co-offender Tiba, and then he hit Tiba over the head with it. After that, the wrestle continued through the house and into the bathroom, at which point Sayour entered and hit Mr Baguio in the back of the head.
The co-offenders fled. Mr Baguio was hospitalised for treatment for a fractured arm and a laceration to the head. It was ascertained that various items had been stolen, including a gym bag, backpack, two laptop computers, a silver Armani watch, a small quantity of cannabis, $150 in cash, a Motorola V3 mobile telephone, a black Ericsson mobile telephone, two pairs of boxing gloves and a wallet.
Sayour and Tiba pleaded guilty. In order to prove that the appellant was the third offender, armed with a baseball bat, the Crown relied on.
1)The appellant’s fingerprints being found on a bowl and the Playstation console at the premises.
2)The fact that the Armani watch (which was said to have been stolen from Mr Baguio) was found at the appellant’s premises, together with a red top and runners similar to the clothing which the complainants deposed were worn by the offender carrying the baseball bat.
3)Photo board identification by Mr Baguio and Andrew Elliott and also similarities in the descriptions given by the three complainants.
The defence case at trial
The defence case at trial was that the appellant was not at the complainants’ house on the day of the offending. The appellant challenged the identification evidence and alleged that the complainants were either lying or mistaken about what they saw.
The appellant attempted to explain away the presence of the Armani watch at his house and the detection of his fingerprints on items at the complainants’ house on the basis that he had attended the complainants’ house on the day before the offending, in order to purchase cannabis. He said that Mr Baguio was not able to provide sufficient cannabis in return for the money he paid, so he took the watch as security for the outstanding cannabis. He claimed that his fingerprint being on the bowl was due to the fact that he used the bowl (holding cannabis) to pack a bong while Mr Baguio was weighing out his cannabis.
Sentencing
Following the appellant’s conviction, all three offenders were sentenced together on 15 March 2011.
The grounds of appeal against conviction
As Bongiorno JA characterised the two grounds of appeal against conviction, they are:
Ground 1: The prosecutor cross-examined the appellant about his failure to adduce corroborative evidence. Such cross-examination was improper and unfair to the appellant: Dyers v The Queen.[1]
Ground 2: The prosecutor cross-examined the appellant about his movements after he was remanded in custody. Such cross-examination placed the appellant in an impossible situation. To give a proper answer to the questions, the appellant would have had to reveal that he was in custody at the relevant time; a fact which might prejudice the jury against him. His failure to give a proper answer could have adversely affected his credit.
[1](2002) 210 CLR 285.
Ground 1 – The rule in Dyers v The Queen
Ground 1 relates to the following passage of the Prosecutor’s cross-examination of the appellant:[2]
[2]T.550.8-552.13.
What about the 13th, where were you that day?---I was working.
Working? Okay, where were you working?---Custom Fleet.
Custom Fleet. All day long?---Yeah, all day long. A shift, yeah.
Who's your boss there, back then?---George.
What's George's second name?---Milonis, I'm pretty sure his surname is.
Who were your workmates?---I had a few - Dave - a few, yeah, there's a few people that was working with me. Pedro.
Do you still see George or Dave or any of those people any more?---I don't work there no more. I've got a new job.
When did you leave Custom Fleet?---I'm pretty sure it was, say, start of last year.
So you continued on at Custom Fleet, where you'd been working, on the day of the offence for quite a long time afterwards. Is that right?---I wouldn't say a long time.
For a fair bit of time anyway?---I'd say a couple of weeks. I changed jobs to jobs.
When you got to work, did you say to George and Dave, ‘Look, a shocking thing has happened. The police have accused me of an aggravated burglary last Monday when I was working here with you at Custom Fleet’?---That's correct, but I never said that to my boss or everyone.
So we're not going to see George and Dave in this trial, are we?---Of course you're not going to see them, no.
We're just go[i]ng to take your word for the fact that on that day, the Monday 13 October 2008, you were at Custom Fleet. Is that right?---That's right.
Did you have to have any time sheets or pay slips in respect of your employment at that time?---Actually, I was working as cash in hand.
Cash in hand, all right. For Custom Fleet; cash in hand?---Yeah, for Custom Fleet.
Where's this Custom Fleet located?---Located in Preston.
Is that on Bell Street?---That's correct.
That's a pretty big organisation, isn't it, Custom Fleet? ---Yep, they got subcontractors that work for them, that detail cars for them. I was working for them.
They've got a whole enormous floor of cars at that place, don't they?---Yeah, that's correct.
Where they have auctions and so forth every week?---Correct.
You say you were getting cash. Is that right?---Yep.
So you've got no documentation whatsoever to prove that you worked at Custom Fleet. Is that right?---I've worked for - I've worked at a lot of places detailing cars and I have been paid cash in hand at a lot of jobs that I've worked at.
Did a bloke called George give evidence for you at a previous proceeding in respect of this matter offering to give you a job?---No.
You don't remember that?---No, it never happened.
Just think about it; your bail application, a fellow named George come along and give [sic] evidence for you?---No, it never happened.
So that's your job, Custom Fleet, but you've got no records whatsoever in respect of working for Custom Fleet. Correct?---Sorry.
You've got no records, no paperwork, nothing about working for Custom Fleet?---People that work for cash in hand, they don't get kept on the records.
I presume you don't have anything to do with any of these co‑employees of Custom Fleet any more. Is that the position?---Correct.
Even though you were still working there at the time you were charged and for quite a while after, you're not bringing any of those people along. Is that right?---Sorry?
You're not bringing any of those people along to say you were at Custom Fleet?---I don't work there no more.[3]
[3]Emphasis added.
The Crown accepts that the purpose of that cross-examination was to lay a foundation for the invocation of the rule in Jones v Dunkel[4] argument ― that is to say, that the jury should draw an inference, adverse to the appellant, from his failure to adduce evidence corroborating his version of events, that any evidence of that kind would not have assisted his case.
[4](1959) 101 CLR 298.
The Crown also accepts that, at least since the decision of the High Court in Dyers v The Queen,[5] it has been clear that a Jones v Dunkel inference should not be drawn against an accused, except perhaps in the extraordinary circumstances postulated in Azzopardi v The Queen.[6] As the High Court explained in Dyers v The Queen,[7] the reason that a judge is ordinarily not to direct a jury that they are entitled to draw an inference adverse to an accused from his failure to call witnesses he might otherwise have been expected to call, is that it would be inconsistent with the accused’s right to silence and thus would effectively reverse the burden of proof which is and must remain upon the Crown throughout.[8]
[5](2002) 210 CLR 285.
[6](2001) 205 CLR 50, 70 [64].
[7](2002) 210 CLR 285.
[8]Ibid 292 [9]–[10] (Gaudron and Hayne JJ), 305–6 [52]–[53] (Kirby J), 328 [121] (Callinan J).
The Crown submits, however, that the potential problem created by the cross-examination was overcome by the judge’s directions.
Dyers v The Queen was concerned with a trial judge’s direction to the jury in that case that it was open to them to draw an inference adverse to the accused from his failure to call corroborative evidence. That was held to be a material misdirection which required that the accused’s conviction be set aside. Moreover, as this court observed in Frengos v The Queen,[9] the reasoning in Dyers v The Queen is also capable of application to cross-examination of a kind which is calculated to convey to the jury that such an inference is open to be drawn, even if the judge does not give the jury a Jones v Dunkel direction. It was upon that basis that Bongiorno JA and I determined that the appellant’s first ground of appeal was reasonably arguable and, consequently, that he should be granted leave to appeal.
[9][2012] VSCA 18.
Having now had the benefit of full argument on the point, however, and the ability to reflect upon it, I am not satisfied that what occurred did result in a miscarriage of justice.
In Dyers v The Queen,[10] Gaudron and Hayne JJ, who delivered the leading judgment, said:
Lastly, it is necessary to deal with the suggestion, made in the course of oral argument, that some of the persons named in the appointment diary were properly to be considered to be alibi witnesses and, for that reason, warranted the giving of a Jones v Dunkel direction. In his unsworn statement, the appellant said that he was otherwise engaged during the time the complainant said he was alone with her. Whether this is a suggestion of alibi, as that expression is to be understood for the purposes of statutory provisions requiring the giving of notice of alibi evidence, is not to the point in considering whether giving a Jones v Dunkel direction amounted to a misdirection. Even if the unsworn statement of the appellant was evidence of alibi, the absence of evidence of those whom the statement, or other evidence, revealed might support the applicant's contention that he was engaged otherwise does not lead to some different conclusion about the application of Jones v Dunkel. Even in such a case it would be wrong to invite the jury to conclude from the absence of those persons that their evidence would not support some contention of the appellant. The attention of the jury should remain focused upon the central question for their decision - whether they were persuaded beyond reasonable doubt that the appellant had committed the acts described by the complainant. They should not have been distracted by being invited to make what amounted to inquiries about whether the appellant had made out a case. The appellant had no case to make; the prosecution did. In assessing that central question the jury had to take into account the appellant's unsworn, and therefore untested, evidence from the dock. They should have been told that they should not speculate about what others may or may not have said had they been called to give evidence. Those conclusions do not depend upon the fact that in this case the appellant was able to, and did, make an unsworn statement. If the appellant had elected to give sworn evidence (but not call those whom it might be thought would have supported his assertions in evidence) a like direction should have been given.[11]
[10](2002) 210 CLR 285, 295–6 [19].
[11]Citations omitted, emphasis added.
In this case, although it is apparent that the Prosecutor improperly cross-examined the appellant in order to lay a foundation for a Jones v Dunkel argument to be put to the jury, the argument was never put and the judge did not direct the jury that they were entitled to draw a Jones v Dunkel inference. To the contrary, her Honour explicitly directed the jury, in the terms prescribed by the High Court in Dyers v The Queen,[12] that:
[12](2002) 210 CLR 285, 295–6 [19].
a) The burden of proof was on the Crown from start to finish;
b) In order to convict, the jury had to be satisfied beyond reasonable doubt on the evidence called in the case;
c) The appellant had no case to make out; and
d) The jury were not to speculate about what other persons may have said or not said if they had been called to give evidence: [13]
[13]T 606.13-607.13; 610.12-612.5; 612.17-19; and 651,16-.28.
As her Honour expressed it in her directions to the jury:
It is very important, and I will tell you about this a bit more, but you must not base your decisions on speculation or guesses. That is, you must base your decision on the evidence in front of you. Now, one thing I would raise in this respect is that you may have noticed that there were some people mentioned in the case who did not give evidence. For example, Mr Tiba and Mr Sayour, who were the other two - said to be - the other two people who were there at the time of this incident, two of the three armed men, were not called to give evidence.
You have also heard Mr Ahmed in his evidence refer to people who did not give evidence. Now, in respect of Mr Ahmed's evidence I will remind you now and I will say more about this a bit later: The accused is not required to prove anything. The prosecution must prove the case beyond reasonable doubt. The accused is not required to prove anything and I will come back to that.
So there are people that you have heard about that you may be thinking, ‘Well what would they say?’ Or ‘Why aren't they here?’ Or matters such as that. What I want to say to you now is that if you are thinking about people who are not called, you must not speculate about what they might have said if they had given evidence. You just have to put what they might have said aside; they did not give evidence. You can only base your decision based on the evidence that is before you in the case.
So it is your duty to decide this case only on the basis of the witnesses' testimony, the formal admissions, the agreed facts and the exhibits.[14]
[14]T606.12–606.18.
…
Now, it is important to remember that it is the prosecution who must prove Mr Ahmed's guilt beyond reasonable doubt. It is not for the accused to prove his innocence. That has not changed because Mr Ahmed chose to give evidence.
This means that you must not find the accused, Mr Ahmed guilty merely because you reject his evidence, if you do. If you reject all, or part of his evidence, that does not mean that the prosecution has proved its case.
To find the accused guilty of an offence, you must be satisfied that the prosecution has proven all of the elements of that offence beyond reasonable doubt. So in this case, there is a clear conflict between the evidence of the prosecution witnesses and Mr Ahmed. The prosecution witnesses effectively say Mr Ahmed was there. He was one of the three men who came into the house.
Mr Ahmed says, ‘I wasn't there’ - sorry, they also say they had never seen him before. Mr Ahmed says, ‘No, I was there the day before. In fact, I'd been there several times over the months. I had seen you, Mr Baggio [sic], and I had seen other people in the house, and I went there on the Sunday, the 12th, the day before the incident occurred on 13 October, and I had an argument with Mr Baggio over drugs. I went there in the morning, and I went back there late at night.’
Now clearly there is a conflict between the evidence. It is not necessary for you to accept Mr Ahmed in order to find him not guilty. In keeping with the requirement that the prosecution must prove their case beyond reasonable doubt, you must acquit Mr Ahmed if his evidence gives rise to a reasonable doubt.
This is the case even if you prefer the evidence of prosecution witnesses to his evidence. It is not sufficient for you merely to find the prosecution case to be preferable to the defence case. It is not a situation of choosing between two versions of events. Before you can convict Mr Ahmed, find him guilty, you must be satisfied that the prosecution have proven their case beyond reasonable doubt.
So even if you do not think Mr Ahmed is telling the truth, but are unsure where the truth lies, then you should find him not guilty. Even if you are convinced that part or all of his evidence is not true it is not the case that you must therefore convict him. In such circumstances, you should put his evidence to one side, and go back to the evidence of the prosecution witnesses, this is if you do not believe part or all of some of his evidence.
In that circumstance, you put his evidence aside, and go back to the evidence of the prosecution witnesses, and ask yourself whether the prosecution has proven the accused's guilt beyond reasonable doubt, on the basis of the evidence you do accept.
All right? Now, clearly, if you believe Mr Ahmed's version of events, then you are going to acquit him. But what I am saying is, if you are in doubt because of his evidence, then you should acquit him.[15]
[15]T610.10-612.7 (emphasis added).
Counsel for the appellant submitted that, notwithstanding her Honour’s directions, the centrality of the issue of the appellant’s whereabouts on the day of the offending, and the consequent criticality of the jury’s assessment of his credibility as to that issue, meant that the jury were in effect bound to infer as a result of the improper cross-examination that the appellant’s failure to call corroborating evidence bespoke his guilt of the offences charged. In counsel’s submission, the only direction which might perhaps have overcome the problem was an express direction that the jury were not to infer from the appellant’s failure to call corroborating evidence that any such evidence would not have assisted him. In the absence of such a direction, he contended, there had been a miscarriage of justice and there must be a re-trial.
I am not persuaded. Given that a Jones v Dunkel argument was never put to the jury and that the judge explicitly and repeatedly directed them in accordance with Dyers v The Queen to the effect that they were to decide the case solely on the basis of the evidence before them, and were not to speculate about what uncalled witnesses might have said; that the burden of proof was on the Crown throughout; and that the appellant did not have to prove anything; and given moreover that juries can be expected to and do act in accordance with directions,[16] I am not persuaded that the improper cross-examination in this case had a material prejudicial effect on the minds of the jury or that it was otherwise productive of a miscarriage of justice.
[16]Dupas v The Queen (2010) 241 CLR 237, 251 [38]; cf Patel v The Queen [2012] HCA 29, [129].
To adopt and adapt the language of the court in Frengos v The Queen:[17]
In this instance, although the prosecutor cross-examined the [appellant] to lay the foundation for a Jones v Dunkel argument, no such argument was put and no direction such as that held to be materially erroneous by the High Court in Dyers was given by the trial judge. Although the cross-examination referred to ought not to have been engaged in by the prosecutor, it cannot be said to have had any effect on the [appellant’s] right to a fair trial or to have caused the trial to miscarry for any other reason.
[17][2012] VSCA 18, [27] (Buchanan, Bongiorno JJA and Hollingworth AJA).
Ground 2 – Unfair cross-examination as to whereabouts
Ground 2 relates to the following two passages in the prosecutor’s cross-examination of the appellant:
When did you leave Custom Fleet?---I'm pretty sure it was, say, start of last year.
So you continued on at Custom Fleet, where you'd been working, on the day of the offence for quite a long time afterwards. Is that right?---I wouldn't say a long time.
For a fair bit of time anyway?---I'd say a couple of weeks. I changed jobs to jobs.
When you got to work, did you say to George and Dave, ‘Look, a shocking thing has happened. The police have accused me of an aggravated burglary last Monday when I was working here with you at Custom Fleet’?---That's correct, but I never said that to my boss or everyone.[18]
…
After you're arrested on the 20th, did you go back to Custom Fleet on the 21st?---No, I didn't.
Did you go back on the 22nd?---No, I didn't.
When did you next work at Custom Fleet?---I haven't worked since I got arrested. Then I went back ‑ ‑ ‑
That's not what you said before?---What are you saying?
I'll just check. You said you left Custom Fleet at the start of last year.[19]
[18]T550.19-.30.
[19]T 559.29-560.5.
At that point of the cross-examination, defence counsel objected in the absence of the jury on the basis that it was impossible for the appellant to answer the questions satisfactorily without revealing that he had been remanded in custody following his arrest for the offences with which he was charged. Evidently, the judge accepted that was so and directed the prosecutor to ‘fix that’. In the absence of the jury, the prosecutor suggested that he would fix it by putting to the appellant that he was mistaken when he previously said that he had returned to work at Custom Fleet following his arrest. Then, following a short adjournment, the prosecutor put these questions and the accused gave these answers to them:
[THE PROSECUTOR]: All right, Mr Ahmed. It's accepted by the prosecution that you didn't go back there after the 20th, and you said earlier that ‑ ‑ ‑
HER HONOUR: You mean back to ‑ ‑ ‑
[THE PROSECUTOR]: Back to your work at Custom Fleet after the 20th. You understand that's accepted, and that's what you say. Is that right?---Yes.
If you said anything else earlier on it's accepted you were mistaken. Do you understand?---Yes.[20]
That was the end of the matter. The prosecutor went on immediately to cross-examine the appellant on other matters.
[20]T.564.7-.15.
The appellant contends that what was done was insufficient to correct the problem because the matter was left on the basis that his earlier evidence that he remained at Custom Fleet until ‘the start of last year’ was incorrect and the jury might have used that to make adverse findings about his credit or reliability.
Having now had the benefit of detailed argument on the point, I am not persuaded by that contention either. Upon mature reflection, it seems to me that the possibility of the jury reasoning in the fashion suggested is remote and I am strengthened in that conclusion by the realisation, which emerges from examination of the transcript now available that, when the trial judge asked defence counsel whether the prosecutors’ clarifying questions were sufficient to address his defence concerns, defence counsel did not offer any suggestion as to what else might be done.[21] In truth, if he were concerned by what had been said about the ‘start of last year’, the problem could easily have been corrected at that point.
[21]T.563.11-.14.
It is true as counsel for the appellant submitted, that defence counsel later sought a discharge of the jury on the basis inter alia of what he submitted to be the effect on the jury’s perception of the appellant’s reliability as to where he was on the day of the crime. But I do not think that alters the position. Defence counsel made no secret of the fact that he did not wish to tell the judge one way or the other whether the problem had been overcome, because he sought to preserve such forensic advantage as might inhere in adopting that course.[22] That being his considered forensic decision, I regard the appellant as bound by it.[23]
[22]T.563.16-.25.
[23]TKWJ v The Queen (2002) 212 CLR 124, 130–131 [16] (Gleeson CJ), 133 [26]–[27] (Gaudron J), 155 [95] ( McHugh J), 158 [107] (Hayne J); Nudd v The Queen (2006) 80 ALJR 614, [9] (Gleeson J).
Application for leave to appeal against sentence
As I noted earlier in these reasons, on 2 November 2011 Neave JA refused the appellant leave to appeal against sentence. I agree with her Honour that it should be refused.
Grounds 1 and 2
There are three proposed grounds of appeal. Grounds 1 and 2 are based on the following passage of the sentencing judge’s remarks:
[Counsel for the appellant] conceded that you still use drugs and no evidence was tendered to demonstrate you have made any effort to address your drug addiction, beyond being in a relationship with someone who is opposed to drug use. This is particularly poignant having regard to the fact that the motive for this offending was to obtain money and drugs to satisfy your habit.[24]
[24]Sentencing remarks, [39].
It is contended that, because of the appellant’s participation in the Court Integrated Services Programme (‘CISP’), defence counsel’s submission on the plea that the appellant did not have ‘overwhelming drug or alcohol issues’;[25] and the positive CISP report which was tendered on the plea, to the effect that the appellant had engaged positively with the programme, the judge was in error in concluding that the appellant had not demonstrated that he had made any efforts to address his drug addiction.
[25]T.733.24.
I do not accept that submission. As Neave JA observed in her reasons, the sentencing judge took express note of the CISP report in his sentencing remarks and also referred to defence counsel’s submission that the appellant’s drug and alcohol problems were not ‘overwhelming’. After defence counsel had made that submission, however, he received further instructions which he disclosed to the judge that the appellant had been convicted on two separate occasions for a combination of offences subsequent to his remand in custody for the subject offences: on 11 February 2009 for offences arising on 20 October 2007 of driving in a dangerous manner and breaching an alcohol interlock condition, and other matters of failing to stop a vehicle on request, assault police and possess controlled weapon; and on 6 November 2008 for offences committed on 27 November 2007 for exceeding the prescribed concentration of alcohol, and breach of breath alcohol interlock condition and no ‘P’ plates. As the sentencing judge then observed, and defence counsel appears to have accepted, that was at least an indication of a problem with alcohol intake.[26]
[26]T. 778.12-14.
The appellant gave evidence at trial that he was a frequent drug taker and that he had been to the victims’ house on a number of occasions, including the day before the offending, to purchase cannabis. It may also be assumed, that the jury accepted the victims’ evidence that, in the course of committing the offences, the appellant demanded more cannabis and money. In the circumstances, I consider that it was well open to the sentencing judge to conclude, and as I would conclude, that:
Your prosects of rehabilitation are problematic. The fact that you were offence free whilst on bail, does not of itself demonstrate that you are rehabilitated or on your way to rehabilitation.
Counsel for the appellant submitted that, be all that as it may, the fact was that the judge proceeded upon the misconception that there was no evidence tendered of the appellant making any effort to address his drug addiction, beyond being in a relationship with someone who is opposed to drug use, whereas in fact there was evidence in the CISP report that the appellant had engaged with the CISP programme and progressed well while involved with it.
I am unable to detect such an error. The CISP report related to a period some 18 months before sentencing and disclosed that the appellant had been discharged from the programme with a drug problem for which he was recommended to obtain further treatment and support. The report stated that the appellant hoped to remain abstinent from alcohol and illicit substances and would work towards that objective. There was, however, no evidence adduced on the plea either that the appellant had obtained further treatment or support or that he had remained abstinent from alcohol and illicit substances.
In that context, I think it clear that what the judge intended to convey by referring to the CISP report and then to the absence of evidence of improvement was that there was no evidence of any improvement in the 18 months elapsed since cessation of the appellant’s involvement with CISP.
Accordingly, I reject Grounds 1 and 2.
Ground 3
The third ground is that the judge failed to give sufficient weight to the principles of parity given that the appellant was sentenced to a total effective sentence of eight years and six months’ imprisonment with a non-parole period of six years whereas his co-offender Tiba was sentenced to a total effective sentence of six years’ imprisonment with a non-parole period of four years and the co-offender Sayor was sentenced to a total effective sentence of four years and 11 months’ imprisonment with a non-parole period of two years and six months.
I reject the argument. The sentencing judge made extensive reference in his sentencing remarks to the principle of parity and its application as between the sentences imposed on the co-offenders and the sentence imposed on the appellant. His Honour explained in detail that, because each of the appellant’s co-offenders had entered pleas of guilty, they were entitled to a significant discount on sentence compared to the appellant.
As appears from the judge’s s 6AAA declaration in relation to Tiba (that but for Tiba’s plea of guilty, the judge would have imposed a total effective sentence of eight years’ imprisonment with a non-parole period of five years and six months) the judge regarded the objective gravity of offending and moral culpability of the appellant and Tiba as more or less comparable. It was, therefore, largely because of Tiba’s plea of guilty and the remorse of which it was indicative and because he was shot in the course of the offending and sustained a significant wound to his back that he received a significantly lesser sentence.
In addition to that, however, there were some differences in age between the appellant and the two co-offenders, albeit not large, which meant that they fell to be sentenced as youthful offenders; and, it was also significant that, although each offender had significant prior convictions, the judge found that those of Sayour and Tiba were relatively minor compared to those of the appellant.
In the case of Sayor, a still lesser sentence was warranted because he was found to have played a lesser role in the offending; and because of his intellectual disability, which attracted Verdins considerations.
Much was made of the fact that the appellant departed from the scene before all of the offending had been committed. But the judge allowed for that. The appellant was found guilty of one count of aggravated burglary, three counts of armed robbery and one count of recklessly causing serious injury the result of repeatedly striking one victim’s arms with a base-ball bat until the arm was broken. The co-offenders pleaded guilty to one count of aggravated burglary, three counts of armed robbery and one rolled up count of intentionally causing injury [note, not serious injury] the result of two attacks later in the course of the offending, with which the appellant was not charged, and also some sundry offences.
In all the circumstances, I do not consider that the appellant is entitled to harbour a justified sense of grievance about the differences between the sentence he received and the sentences imposed on his co-offenders. In my view, the sentences imposed and the relativities between them are all within the range of a sound discretionary application of the parity principle
Conclusion
For those reasons, I would dismiss the appeal against conviction and I would refuse leave to appeal against sentence.
REDLICH JA:
I agree for the reasons given by my brother Nettle that the appeal against conviction should be dismissed and the application for leave to appeal against sentence should be refused.
OSBORN JA:
I also agree.
NETTLE JA:
The order of the Court is that the appeal against conviction is dismissed and that the application for leave to appeal against sentence is refused.
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