Johnston v The Queen
[2012] VSCA 271
•8 November 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2011 0239 | |
| JASON ANDREW JOHNSTON | Appellant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | BUCHANAN and WHELAN JJA and HARGRAVE AJA | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 8 November 2012 | |
DATE OF JUDGMENT/ORDER: | 9 November 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 271 | |
JUDGMENT APPEALED FROM: | Unreported, County Court of Victoria, Judge Howie, Date of Sentence 28 June 2011 | |
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CRIMINAL LAW – Appeal – Conviction – Whether trial judge misdirected jury regarding application of principles of acting in concert, in limiting use of evidence and in taking into account irrelevant considerations in exercising discretion – Appeal dismissed – No point of principle.
CRIMINAL LAW – Leave to appeal – Sentence – Aggravated burglary, robbery, criminal damage, armed robbery, theft and burglary – Total effective sentence of 5 years 10 months imprisonment, with non-parole period of 3 years 9 months – Three co-offenders - Whether sentences offended the principle of parity – Whether sentencing judge erred in orders for cumulation – Leave refused - No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr A S Dickenson | Dowling McGregor Pty Ltd |
| For the Crown | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
I will ask Whelan JA to deliver the first judgment.
WHELAN JA:
On 23 March 2011 the appellant was convicted of aggravated burglary, robbery, criminal damage, armed robbery, theft and burglary following a five‑day trial in the County Court.
The appellant was acquitted of one charge of armed robbery but he was convicted of an alternative charge of robbery, and one charge of common assault. The appellant had pleaded guilty to one further charge of theft.
Following a plea, the appellant was sentenced on 28 June 2011 as follows:
Count on Presentment Offence Maximum Sentence Cumulation 1 Aggravated Burglary [Crimes Act 1958(Vic) s 77(1)] 25 years 18 months 10 months 2 Robbery [Crimes Act 1958 (Vic) s 75] 15 years 1 year 8 months 3 Criminal Damage [Crimes Act 1958 (Vic) s 197(1)] 10 years 3 months Nil 5 Armed robbery [Crimes Act 1958 (Vic) s 75A(1)] 25 years 3 years Base 6 Theft [Crimes Act 1958 (Vic) s 74] 10 years 6 months 3 months 7 Burglary [Crimes Act 1958 (Vic) s 76] 10 years 18 months 1 year 8 Theft [Crimes Act 1958 (Vic) s 74] 10 years 3 months 1 month Total Effective Sentence: 5 years 10 months Non-Parole Period: 3 years 9 months
Counts 1‑6 concerned events on 20 December 2008. Counts 7 and 8 concerned events on 24 December 2008.
A co‑offender, Heidi Richards, ran a joint trial with the appellant pleading not guilty to all counts on an identical presentment. The jury returned identical verdicts to those returned in relation to the appellant and additionally found her guilty on count 8 (theft), the count to which the appellant had pleaded guilty. She was sentenced on 28 June 2011 by the same judge as follows:
Count on Presentment Offence Maximum Sentence Cumulation 1 Aggravated Burglary [Crimes Act 1958 (Vic) s 77(1)] 25 years 18 months (suspended) 6 months 2 Robbery [Crimes Act 1958 (Vic) s 75] 15 years 9 months (suspended) Nil 3 Criminal Damage [Crimes Act 1958 (Vic) s 197(1)] 10 years 2 year CBO (100 hours work) - 5 Armed robbery [Crimes Act 1958 (Vic) s 75A(1)] 25 years 2 years 6 months (suspended) Base 6 Theft [Crimes Act 1958 (Vic) s 74] 10 years 2 year CBO (100 hours work) - 7 Burglary [Crimes Act 1958 (Vic) s 76] 10 years 2 year CBO (100 hours work) - 8 Theft [Crimes Act 1958 (Vic) s 74] 10 years 2 year CBO (100 hours work) - Total effective sentence 3 years wholly suspended for 3 years, and a 2 year Community Based Order
A third co‑offender, Stacey Uddin, pleaded guilty to one charge of burglary on 14 December 2008, one charge of armed robbery on 20 December, and one charge of burglary on 24 December 2008. She was sentenced as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Burglary [Crimes Act 1958 (Vic) s 76] 10 years 2 year CBO N/A 2 Armed robbery [Crimes Act 1958 (Vic) s 75A(1)] 25 years 1 year (suspended) Nil 3 Burglary [Crimes Act 1958 (Vic) s 76] 10 years 2 year CBO N/A Total Effective Sentence: 1 year wholly suspended for 2 years and a 2 year Community Based Order
On 29 March 2012, Redlich JA refused leave to appeal the convictions on four proposed grounds, and granted leave to appeal conviction on the following grounds:
Ground 5: The learned trial judge erred in that he misdirected the jury as to the application of the principles of acting in concert as they related to the facts.
Ground 6: The learned trial judge erred in limiting the use of the evidence that Ms Uddin had told the police that she was giving the complainant oral sex on 20 December 2008.
Ground 7: The learned trial judge erred in that he took into account irrelevant considerations in the exercise of the discretion to limit the use of evidence that Ms Uddin was forced to give the complainant oral sex.
An application was also made for leave to appeal the sentences. Redlich JA indicated that as leave was granted in respect of three conviction grounds, it was appropriate to leave the question of leave to appeal on sentence for hearing by the Court which would hear the appeal against conviction.
The sentence grounds which are proposed by the applicant are:
1. That the learned sentencing judge erred in imposing sentences which offend the principle of parity.
2. That the learned sentencing judge erred in his orders for cumulation.
Overview of the trial
The Crown case on counts 1‑6 was that the three co‑offenders made an agreement to carry out a burglary at the house of an elderly man, who I will refer to as the complainant, on 20 December 2008. In brief substance, what was alleged was that the three co‑offenders entered the house as trespassers with intent to steal knowing that the complainant was present (count 1: aggravated burglary), and that a number of acts were then performed by the individual co‑offenders for which all three were liable on the basis that those acts were within the scope of the agreement that they had made. It was alleged that there was an armed robbery of a small sum of money in which a spatula was used as a weapon (count 2). On that count, the jury acquitted the appellant of armed robbery but convicted him of robbery. It was alleged that a mobile phone was broken (count 3: criminal damage). It was alleged that Ms Uddin punched the complainant (count 4: assault). The appellant was acquitted of that charge. It was alleged that a sum of money and other goods were stolen after the complainant was threatened with knives by the two female offenders (count 5: armed robbery and count 6: theft).
The complainant moved out of his home after the events of 20 December 2008. The Crown case was that the same three offenders returned to the house on 24 December and carried out another burglary (count 7) stealing a bottle of scotch (count 8).
The Crown case rested substantially on the evidence of the complainant.
The appellant did not give evidence but in his record of interview, which was tendered at the trial, he had said that he went to the house on the first occasion because Ms Uddin had said that she could get money there. He said that he waited at the front of the house with Ms Richards while Ms Uddin went around the rear. He eventually went around to the rear and he said that he saw Ms Uddin giving the complainant oral sex. He said he yelled out and that the complainant and Ms Uddin went inside. He said that he then followed. He said Ms Uddin gave him a sum of money. He denied seeing any use of knives. He said he then left.
As to the second incident, in his record of interview the appellant said that Ms Uddin had told him she had been raped by the complainant and he said that the three of them went back to the house so that Ms Uddin could collect some belongings. He said he waited outside while Ms Uddin went inside, but that he then went in after hearing a noise. He admitted stealing the bottle of scotch. The three offenders were disturbed by police.
Ground 5: misdirection as to acting in concert
Early in his charge, the trial judge gave the jury directions as to the relevant law of complicity. He did so in terms which were conventional where liability is alleged on the basis of joint criminal enterprise. No exception was taken to those directions then, and no complaint about them is made now.
Relevantly, the judge told the jury the following:
In order to prove that the accused were acting in concert, the prosecution must prove beyond reasonable doubt that they, that is, Mr Johnston and Ms Richards and Stacey Uddin had an agreement to carry out a burglary at [address specified], that they were present when the crime was committed and that between them they carried out all of the necessary acts to commit the offence in accordance with the agreement. You do not need to find that each of them committed each of the acts. Even if they played, or the particular person played, a minor role, the requirement will be satisfied as long as all of the necessary acts were committed between them.
The prosecution must prove that the commission of the particular offence was within the scope of the agreement made between them, that is, that the accused and Ms Uddin must have agreed to commit the acts that constitute the offence. An accused will not be guilty of acting in concert to commit an offence if that offence was outside the bounds of what he or she had agreed to. To determine what acts were within the scope of the agreement, you must consider the state of mind the parties held at the time they made the agreement. Whatever acts they all believed would or could be committed in the course of carrying out that agreement are to be treated as being within the scope of the agreement.
When I say would or could be committed in the course of carrying out the agreement, this reflects the fact that the scope of the agreement includes any contingencies that are planned as part of that agreement. It is not limited to the acts that the parties are definitely planning to carry out. So even if the parties were hoping to avoid committing a particular act and did not think it was likely to be necessary, if there was a plan to perform that act if certain circumstances arose, then it should be treated as being within the scope of the agreement. The prosecution must prove that the agreement remained in existence when the offence was committed.
As I have said, in this case the prosecution alleges that the two accused and Stacey Uddin had an agreement to carry out a burglary at [address specified] and that what happened when they attended there on 20 December, the robbery of [the complainant], the damaging of the telephone that he used in an attempt to ring the police, the blow struck by Stacey Uddin, were acts within the scope of the agreement that they made. Also, the prosecution alleged that on 24 December the three of them had an agreement to carry out a burglary at 8 Cornwall Street and what occurred there was within the scope of the agreement that they made.
The trial judge then went through each of the counts explaining the elements of each count. He gave the jury a document upon which those elements were set out. He also summarised the relevant evidence by reference to those elements. He reiterated in the course of those explanations and summaries the requirement that guilt on the basis of complicity could only be found if the perpetrator’s acts were within the scope of the agreement the co‑offenders had made. He reminded the jury of this in relation to the first armed robbery count (count 2) and then referred the jury back to what he had just told them when he came to the second armed robbery count (count 5). He summarised the relevant evidence in relation count 5, as he did in relation to all of the other counts.
No exception was taken to any of this. Likewise, on appeal no complaint is made as to any of this.
The complaint which is made concerns a direction which the judge gave in answer to a jury question after they had retired. The question was:
Can the defendants be acting in concert from a point of time once inside the premises?
After clarifying with the jury that their question concerned charges 1‑6, that is the events of 20 December 2008, the trial judge and counsel discussed the issue.
The jury question raised the possibility of a criminal enterprise which began after the offenders had entered the house. This was open on the evidence, and the judge decided to direct the jury as to that possibility.
Given that the possibility raised was an agreement made after entry, the judge addressed the issue by reference to a possible agreement to steal, not an agreement to commit a burglary. The Crown had maintained throughout that there was an agreement to commit a burglary before entry into the house.
After hearing submissions, the judge answered the question. The burden of the complaint now made concerns what he said in relation to Count 5, the second armed robbery count.
Relevantly, his Honour said:
To find the accused guilty of count 5, you must be satisfied beyond reasonable doubt that there was an agreement between that accused and Stacey Uddin to steal at the premises, that the accused was present and that the acts carried out were within the scope of that agreement. So again, answering your question, an agreement can be made once inside the premises, and there is a basis in the facts, if you accept [the complainant’s] evidence, and it would involve you rejecting the evidence of Mr Johnston as to what took place., There is a basis in the evidence for drawing the inference that there was an agreement between the accused and Ms Uddin to steal from [the complainant].
The trial judge then addressed a second question from the jury. That question raised the possibility that Heidi Richards was not in the premises at the relevant time. He said:
In order to implicate Mr Johnston in that offence, which is the offence of armed robbery, you would have to be satisfied that he was acting in concert with Stacey Uddin, so you would have to be satisfied beyond reasonable doubt that there was an agreement between him and Stacey Uddin to steal at the premises, that he was present and that the actions of Stacey Uddin were within the scope of the agreement.
Now, if you are not satisfied that the actions of Stacey Uddin in producing a knife and using it with respect to [the complainant] were within the scope of the agreement that you would infer from the evidence that the two of them were inside the house, and if you accept the evidence of [the complainant], which was that the man, Jason Johnston, was asking for money, and that he told him to sit up and he searched his pockets, if you are not satisfied that the use by Stacey Uddin of the knife was within the scope of an agreement between her and Jason Johnston, then you could not convict Jason Johnston of the offence of armed robbery.
It was in those circumstances you would not be satisfied that her having the knife and using the knife were within the scope of the agreement that they had to be at the premises and steal, or the agreement that they, if you conclude that there was an agreement, that they formed once they were inside the premises. In those circumstances, and you may not be happy about this, Mr Foreman, but you would have to then consider the alternative offence of robbery, because you would not be satisfied that Stacey Uddin having an offensive weapon was within the scope of the agreement with Mr Johnston.
The argument for the appellant, as it was clarified and refined orally, is that his Honour should have told the jury they could not convict the appellant on count 5 unless they found an agreement to commit an armed robbery. Counsel for the appellant contended that the agreement must be an agreement to commit the offence charged. He also submitted that the acts alleged here, in particular the threats with a knife or knives, were incapable of falling within the scope of an agreement to steal. Finally, he submitted on behalf of the appellant that, while his Honour had emphasised that the jury needed to find that the acts constituting the armed robbery were within the scope of what had been agreed, the trial judge had not assisted the jury in determining how they should go about deciding what was within the scope with what had been agreed.
Trial counsel had taken exception to the trial judge’s answer to the jury question at the conclusion of his answer but the judge declined to re-direct.
The contentions made on behalf of the appellant can be dealt with quite shortly.
The relevant issue for the jury was whether what was done was within the scope of the agreement which had been made.[1]
[1]R v Jensen and Ward [1980] VR 196, 201; R v PDJ (2002) 7 VR 612, 619. See also R v Heaney & Ors [1992] 2 VR 531, 562-3.
The judge stated that to the jury repeatedly, and related the issue specifically to the facts of this case and to the use of a knife or knives. He made no error in doing so, in my view.
There was certainly room for argument as to whether the use of a knife or knives was within the scope of any agreement the jury might find, but that was an issue for them. The judge would have been wrong to preclude them from considering it.
The judge clearly and correctly instructed the jury as to the law they should apply in determining the scope of the agreement in the passage early in his charge which I have quoted. In my view, he did not have to repeat that.
Two final points need to be made. First, the verdict on Count 1 indicates that the subject matter of the jury question may have had no significance in the result, as matters transpired. Both the appellant and Ms Richards were convicted of aggravated burglary. Second, the criticism made of the answer to the jury question and the reference to an agreement to steal, might equally have been applied to the substantive charge based upon the Crown’s case that there was an agreement to commit a burglary. No such complaint was made, then or now.
I would reject Ground 5.
Grounds 6 and 7: Limitation upon use of evidence of what Ms Uddin had told the police.
The last witness called by the Crown in the trial was Detective Senior Constable Tremellen. He was one of the police who had attended the house on 24 December 2008 when the offenders were disturbed.
In addition to other matters, he gave evidence that he conducted a record of interview with Heidi Richards and with the appellant, each of which was tendered. Because the appellant’s interview implicated Ms Richards, in the charge the judge emphasised that what the appellant had said was not evidence in the trial of Ms Richards and could not be used against her.
Early in Detective Tremellen’s cross‑examination by counsel on behalf of the appellant, he was asked if he had spoken to Ms Uddin. It will recalled that Ms Uddin was not on trial. She had pleaded guilty. The prosecutor objected to the question on the basis of hearsay and relevance.
The judge asked counsel for the appellant: ‘Where are we going?’ Counsel told him that what Ms Uddin told the police officer was relevant to the issue of his client’s, that is the appellant’s, state of mind on 24 December 2008, that is at the time of the second incident. Counsel explained that Ms Uddin had told the police officer that the complainant had raped her. The fact that she had told him that made it more likely that she had told the appellant that, or so it was put. This was, of course, the explanation which the appellant had given in his record of interview for going back to the house on 24 December 2008.
Counsel for the appellant told the judge:
It’s not being called, Your Honour, for ‑ well, can I say this. It is relevant for the non-hearsay purpose and on the basis of s.60 of the Evidence Act, because it simply that’s what would have been described in the old terms as, well, as relevant, non-hearsay purpose.[2]
[2]Transcript 505.
Counsel and the judge discussed that issue for a time with counsel submitting that the evidence was ‘highly probative of whether or not she told Mr Johnston’.[3]
[3]Transcript 507.
Counsel appears to me to have succeeded in persuading the trial judge of the relevance of the evidence for that purpose. When the judge turned to the prosecutor, the prosecutor maintained his objection at first, submitting that the ‘real purpose’ of the question was to elicit evidence as to the truth of what Ms Uddin and the appellant had asserted had happened on 20 December 2008, that is at the time of the first attendance by the offenders at the house. The judge, in effect, talked the prosecutor out of his opposition on the basis that the evidence was being put only as supporting what the appellant said about his state of mind on 24 December 2008. The prosecutor, it seems to me, effectively gave up on his objection.[4]
[4]Transcript 510-11.
At that point, counsel for the appellant submitted that once the evidence was admitted, it could be used as evidence of the truth of its contents as well under the provisions of the Evidence Act 2008.
Counsel, in my view, sought to downplay the significance of the evidence on this basis,[5] but maintained that once the evidence was admitted for the non-hearsay purpose, he could and would rely upon it as proof of the truth of its contents.
[5]Transcript 511.
The trial judge then introduced the possibility of limiting use of the evidence, a reference to the exercise of discretion under s 136 of the Evidence Act. His Honour and counsel for the appellant debated that course for some time.
At one point his Honour said, after referring to the basis upon which the matter had been put to him originally: ‘it’s not probative of anything else’.[6] But what his Honour repeatedly told counsel was that his concern was that it was evidence about the complainant’s conduct which could not be scrutinised or tested and that that was unfairly prejudicial to the complainant and to the Crown. The trial judge made this point four times in the course of argument before making the ‘probative’ comment,[7] and twice afterwards.[8]
[6]Transcript 514.
[7]Transcript 511-12, 512 (twice) and 513-14.
[8]Transcript 514 and 518.
At one point the judge made the following observation:
It’s a fundamental aspect of our procedure that the evidence that a jury or a Court’s to consider, is the evidence that is given by a witness in the trial. This is not a witness in the trial. This is a statement by a person who is not a witness in the trial, so who cannot be examined, or scrutinised, or tested about it … [9]
[9]Transcript 513-14.
In the course of argument before the trial judge, reference was made to s 65 of the Evidence Act. It was not suggested that the requirements of that section had been met. Rather, counsel for the appellant submitted to the trial judge that s 65 ‘envisaged’ this kind of position. In response to that submission the trial judge observed that the s 136 discretion would still be available if s.65 had been applicable.
The prosecutor submitted that the discretion under s 136 should be exercised so as to limit the use of the evidence.
Addressing counsel for the appellant, the trial judge said:
… for the reasons that I have expressed in my discussion with you, I will allow the question that you are proposing to ask but for the limited purpose of being evidence that may be relevant to your client’s state of mind.[10]
He subsequently directed the jury accordingly.
[10]Transcript 523.
Before us, counsel for the appellant submitted that the trial judge erred in the exercise of his discretion under s 136 in the following ways:
1. He proceeded on the erroneous basis that the inability to cross‑examine Ms Uddin was determinative of the issue, instead of being merely relevant to it. In that respect DPP v BB[11] and R v Suteski[12] were cited.
[11][2010] VSCA 211.
[12](2002) 56 NSWLR 188.
2. He adopted the position that the evidence had no probative value in relation to the truth of the assertion when that position was not reasonably open.
3. He erroneously used s 136 to make the provisions of the Evidence Act ‘conform with common law notions’.
4. He relied upon unfairness to the complainant which is an irrelevant consideration.
Section 136 of the Evidence Act provides as follows:
136 General discretion to limit use of evidence
The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might—
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing.
It is of course important to bear in mind that what is under consideration is the exercise of a discretion and that the circumstances in which an appellate court can interfere are circumscribed.[13]
[13]House v The King (1936) 55 CLR 499, 504-5; and as to this particular discretion: Commonwealth v McLean (1996) 41 NSWLR 389, 401.
This Court cannot interfere just because we would have taken a different course. Some error must be shown, or the circumstances must be such as to require a conclusion that an error must have been made.
As to the matters relied upon as constituting error here, my conclusions are as follows:
1. The judge did not treat the inability to cross‑examine the maker of the statement as necessarily determinative of the issue. He treated the inability to cross‑examine Ms Uddin as an important factor in this case. It was open for him to take that view.
2. The judge did make the comment about the probative value, which I have earlier quoted, but reading the discussion between the judge and counsel in full, the issue upon which he based his ruling, in my view, was that provided for in s 136(a). His comment about probative value was the only one he made and in context may well have been a statement about the way the matter had been put to him initially. By contrast, he returns to the issue of prejudice again and again. It is clear that that was the operative consideration in his mind.
3. The importance of evidence being given orally and being tested in front of the jury is a relevant matter. It was open to the judge to take that into consideration. Different judges may take different approaches, of course. The Evidence Act does seek to remove distinctions about the uses to which evidence can be put and that is important too. I think it overstates the position to say that the judge used s 136 to make the Evidence Act conform to common law notions.
4. Whilst the judge did refer to prejudice to the complainant, he also referred to prejudice to the Crown, and this was a case where the Crown case was substantially constituted by the complainant’s evidence.
His Honour addressed his mind to the relevant issue under s.136 being unfair prejudice to a party. The appellant has not demonstrated that any error was made and I would not infer an error in these circumstances. A different course could have been taken but there is, in my view, no basis for appellate intervention. I would reject grounds 6 and 7.
Leave to appeal sentence
As to the application for leave to appeal the sentence, the proposed grounds (as refined in oral argument) both relate to a comparison between the sentences imposed on the applicant, Mr Johnston, and those imposed on Ms Richards, his co‑offender.
The proposed grounds are that the sentences offend the principle of parity and that his Honour erred in his orders for cumulation.
The complaints as to cumulation also focus upon what are said to be disparities between the cumulation ordered in relation to counts 2 and 8 in the applicant’s case and the absence of any cumulation in Ms Richards’ case.
The involvement of the applicant and Ms Richards in the offending was relevantly the same, but otherwise their positions were starkly different. In particular:
1. The applicant’s criminal record is much worse than Ms Richards. He has prior convictions for both armed robbery and robbery. He has been sentenced to imprisonment on 14 previous occasions. In December 2004 he received a sentence of three and a half years’ imprisonment with a non‑parole period of two years for sex offences. Ms Richards’ prior convictions are minor by comparison.
2. The sentencing judge concluded that the prospects for the applicant’s rehabilitation were poor. He concluded that Ms Richards had real prospects of rehabilitation.
3. The applicant and Ms Richards were in a relationship and have two children together. Ms Richards also has other children. The sentencing
judge found that the applicant introduced Ms Richards to heroin, was abusive in the relationship towards her, and had had a corrupting effect upon her.
4. The sentencing judge found that exceptional circumstances of family hardship existed in relation to two of Ms Richards’ children.
The sentencing judge gave two reasons for not imposing a term of immediate imprisonment on Ms Richards. They were her real prospects of rehabilitation and the exceptional circumstances in relation to the two children.
In argument before us it was accepted that there ought to be discrepancy between the applicant and Ms Richards but it was submitted that the discrepancy here was too great.
The sentencing judge in this case has carefully considered all the relevant sentencing considerations applicable to the two offenders. In such a case a ground of parity will only succeed where an appellant can show that the discrepancy is so obviously wrong that the Court is constrained to conclude that the sentencing discretion miscarried.[14]
[14]Hilder v The Queen [2011] VSCA 192, [39].
I do not consider it to be arguable that that is the position here. I would refuse leave to appeal this sentence.
BUCHANAN JA:
I agree.
HARGRAVE AJA:
I also agree.
BUCHANAN JA:
The order of the Court is that the appeal against conviction is dismissed and the application for leave to appeal against sentence is also dismissed.
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