Kuehne v R

[2011] NSWCCA 101

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Kuehne v R [2011] NSWCCA 101

Hearing dates:

10 March 2011

Decision date:

04 May 2011

Before:

McColl JA, RS Hulme J, Hislop J

Decision:

1. Conviction appeal dismissed.

2. Application for leave to appeal against sentence granted.

3. Sentence appeal dismissed.

Catchwords:

Criminal law - conviction appeal - s 137 Evidence Act 1995 - no error in admitting evidence - sentence appeal - evidence capable of constituting special circumstances - no variation of statutory proportion

Legislation Cited:

Crimes Act 1900
Evidence Act 1995
Criminal Appeal Act 1912

Cases Cited:

Gilmour v EPA; Tableland Topdressing v EPA [2002] NSWCCA 399, (2002) 55 NSWLR 593
R v Lumsden [2003] NSWCCA 83
R v MAK [2006] NSWCCA 381, (2006) 167 A Crim R 159
R v Way [2004] NSWCCA 131, (2004) 60 NSWLR 168
R v Mostyn [2004] NSWCCA 97, (2004) 145 A Crim R 305
R v Totten [2003] NSWCCA 207
R v Durocher-Yvon [2003] NSWCCA 299, (2003) 58 NSWLR 581
R v Fidow [2004] NSWCCA 172
R v Simpson [2001] NSWCCA 534, (2001) 53 NSWLR 704

Category:

Principal judgment

Parties:

Walter James Kuehne v R

Representation:

Counsel:
H.F. White (Appellant)
S. Dowling (Crown)
Solicitors:
Legal Aid Commission (Appellant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2008/10708

 Decision under appeal 

Date of Decision:

2009-11-27 00:00:00

Before:

English DCJ

File Number(s):

2008/10708

Judgment

1. McCOLL JA : I agree with Justice Hislop's reasons and the orders his Honour proposes.

1. RS HULME J : I agree with the orders proposed by Hislop J and with his Honour's Reasons.

1. HISLOP J :

Introduction

The appellant was indicted on a charge that

"On 15 November 2007 at Blackett in the State of New South Wales [he] did break and enter a shop, namely the BRV Bakery, situated at 2/38 Boulderwood Road and did commit a serious indictable offence therein namely, did steal a cash register containing a quantity of cash, in circumstances of aggravation namely, being in company with two other unknown persons." contrary to s 112(2) of the Crimes Act 1900.

The maximum penalty for such an offence is 20 years imprisonment. A standard non-parole period of five years is applicable.

1. A jury found the appellant guilty of the offence charged. He was convicted and, on 27 November 2009, sentenced to a non-parole period of five years imprisonment, commencing on 3 December 2008 and expiring on 2 December 2013, with a balance of term of one year eight months imprisonment commencing on 3 December 2013 and expiring on 2 August 2015.

1. The appellant has appealed against conviction and sought leave to appeal against sentence on the following grounds:

"Conviction

1. The trial Judge erred in the assessment of unfair prejudice in relation to questions 145-156 of the Police interview and should have excluded this evidence pursuant to section 137 Evidence Act, 1995.

2. The trial Judge erred in the assessment of unfair prejudice in relation to the totality of the evidence relating to questions 145-155 of the Police interview and the relevant portions of the evidence of Police Officers Forsyth and Caulfield in determining whether the Jury should have been discharged and should have discharged the Jury.

Sentence

3. The sentencing Judge erred in not taking into account the principles of totality of sentencing in determining the length of the non-parole period.

4. The sentencing Judge erred in not taking into account the effect of institutionalisation upon the Appellant in determining the length of the non-parole period.

5. The sentencing Judge erred in not taking into account that the Appellant was serving the sentence on Protection in determining the length of the non parole period."

The conviction appeal - background

1. At approximately 3.50 am on 15 November 2007 three hooded men broke and entered the bakery and stole the cash register and its contents. They gained entry through a Colorbond fence which separated the rear yards of the bakery and an adjoining butcher shop. They were observed by the co-owner, who called the police. There were a number of aggravating factors present, namely the offenders had a knife and a metal pole, damage to property was occasioned and the co-owner was vulnerable as he was working alone on the premises. The police attended at the scene after the offenders had departed. They found finger and palm prints on the dividing fence. A panel of the fence had been kicked out in the vicinity of the finger and palm prints. The finger and palm prints matched those of the appellant. The appellant was arrested and charged with the subject offence on 7 December 2007.

1. Following his arrest the appellant participated in an electronically recorded interview. The typescript of the record of interview contained the following questions and answers:

"Q145 All right. I'll just explain to you Walter that police fingerprint experts have found fingerprint impressions on the Colorbond fence, the internal Colorbond fence located between the, at the rear of the shop.

A. Yeah.

Q146 So when I say internal Colorbond fence, for instance, like the backyard of the premises -

A. Yeah.

Q147 - has a fence that leads onto the back car park.

A. Oh, yeah.

Q148 I'm not talking about that fence. What I'm talking about is the fence that leads, that basically separates the bakery, from the bakery backyard from the butcher's backyard.

A. Oh, right.

Q149 Do you understand what I'm getting at there?

A. Yeah.

Q150 So we're not talking about a fence on the perimeter of the property.

A. Yeah.

Q151 We're talking about a fence that's actually inside, OK. And I'll just explain to you that prints have been located, bear with me, prints have been located, there's been a right palm print on the Colorbond fence.

A. Yeah.

Q152 A left thumb on the Colorbond fence. A left palm on the Colorbond fence, and another left palm on the Colorbond fence. And you understand that, so that's these -

A. Yeah.

Q153 - impressions have been found on that fence.

A. Yeah.

Q154 OK. I believe those impressions match your fingerprints. So do you understand that?

A. Yeah.

Q155 Can you explain to me how your fingerprint impressions which I believe match your fingerprints, came to be on that fence?

A. Not really.

Q156 All right. So do you wish to talk any more in relation to those fingerprints?

A (NO AUDIBLE REPLY)"

1. Fresh finger and palm prints were taken from the appellant following his arrest. These were identified as being the same as the finger and palm prints on the fence.

1. The hearing commenced on 4 August 2008. The Crown, in opening its case, referred to part of the interview dealing with fingerprints. Counsel for the appellant, at the end of the Crown's opening and in the absence of the jury, raised a concern that that evidence "leaves open that possibility that the police already had prints before he was arrested."

1. The Crown responded:

"The difficulty is your Honour, it's implicit in the record of interview that the police had the prints before the arrest. Because they say to him 'We've got your fingerprints on the fence, how do you explain that?' and he gives his response of 'Not really'. That's on 7 December which is the day of the arrest."

1. Shortly after this discussion appellant's counsel, in reliance upon s 137 of the Evidence Act 1995 , objected to questions and answers 145-156 of the record of interview. He submitted

"Quite clearly what those questions imply was that there was a fingerprint examination done before the accused was arrested and if that, those questions and answers are to go before the jury, the jury will receive notification that the police had the accused's fingerprints before he was arrested and that leads to the implication that he had been in trouble with the police before.

So my submission is your Honour because of the prejudice, the unfair prejudice that is associated with that because it discloses a prior criminal history of the accused that those questions and answers should be deleted or your Honour should not allow that evidence ... In my submission this is a case where that exclusion must operate. There will clearly be unfair prejudice to the accused because the jury will know that he has been in trouble with the police before because they have access to his fingerprints."

The tender was pressed by the Crown. It contended

"...that the accused cannot explain the presence of his fingerprints as at that time and the Crown says that that has a fairly significant probative value given the location of the fingerprints.

The Crown submits that because of that probativeness of the response the evidence should be allowed to go to the jury. The Crown says there may well be potential inference of other activity because of the existence of the fingerprints in some form or other to the police but certainly I am not intending to rely upon it or do anything to draw attention to it. But the responsive question 155 is a very important response. If that response had not been given or the witness had simply - the accused had simply said I don't want to say anything then we wouldn't be having this discussion but it's that response that is very central to the prosecution case."

Appellant's counsel conceded the answer to question 155 was probative of the Crown case.

1. Her Honour ruled:

"I decline to excise the evidence. These questions are fundamental to the Crown case. I don't think that the jury will misuse the questions as suggested by defence counsel, in the circumstances the questions are to my view in a benign form and if any question is raised by the jury it can appropriately be dealt with by a direction by me to that effect. Those questions and answers will remain."

1. On 5 August 2008 counsel for the appellant sought the deletion of question and answer 154 and that part of question 155 which read "which I believe match your fingerprints". These deletions were made with the consent of the Crown.

1. On 5 August 2008 Detective Forsyth, a fingerprint expert attached to the Forensic Services Group of the NSW Police Force, inter alia, was asked, in chief, to give a brief outline of the exercise of comparing prints. In doing so he said, without objection,

"Once we're performed that analysis we then compare that unknown friction ridge skin to a known or a list of people."

1. On 5 August 2008 Detective Caulfield, the officer in charge of the investigation, in answer to a question in cross-examination, said that he became involved in the matter as:

"all those cases that get a bit long in the tooth or there's hits on fingerprints or whatever will generally come to me and I will take up the ball so to speak."

1. On 6 August an application was made by the appellant for discharge of the jury. Unfortunately, due to a technical problem, the application and her Honour's ruling were not recorded or transcribed. The contemporaneous notes of the instructing solicitors for each party are before the Court. These indicate that the application was made on the basis that the evidence of Detectives Forsyth and Caulfield, referred to above, would cause a miscarriage of justice in that the jury would be made aware the appellant had a prior criminal history and that that evidence would add to the significance of the questions in the record of interview. The solicitor for the Crown's notes state her Honour was "not persuaded that the inference argued for [presumably that the appellant had a prior criminal history] can be drawn - declined to discharge". The appellant's solicitor's notes state, as to her Honour's ruling, "she was not persuaded. Declined to discharge jury".

1. The appellant then gave evidence. His explanation for the presence of his finger and palm prints on the Colorbond fence was that he lived within five minutes of the shops; he would on Friday and Saturday nights kick a football around with friends in a park in the vicinity of the shops; on occasions the ball would go into the backyard of the bakery and he would jump the fence to retrieve it; he said he was sure he did this on the Friday or Saturday immediately prior to the break-in. He also said that on occasions he would jump over the fence to hide from neighbours who would chase him. He said that he had given the answer to question 155 in the record of interview because he was shocked by the accusation made against him.

1. The only other witness for the defence was a fingerprint expert, Mr Faye. He gave evidence inter alia as to a previous investigation in respect of which he said:

"I had to do forty eliminations of people that came to the victim's home. And it was already four days before they found the body. So I thought the son was a suspect."

1. On 6 August, after both parties addressed the jury, there was discussion between the trial judge and the parties in relation to proposed directions to the jury. Her Honour offered to give directions to the jury in relation to the fingerprint evidence but counsel for the appellant declined the offer.

Conviction appeal - Ground 1 - "The trial Judge erred in the assessment of unfair prejudice in relation to questions 145-156 of the Police interview and should have excluded this evidence pursuant to section 137 Evidence Act, 1995."

1. Section 137 of the Evidence Act 1995 states:

"In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."

1. The onus of establishing that the evidence should be excluded is upon the defendant - Gilmour v EPA; Tableland Topdressing v EPA [2002] NSWCCA 399, (2002) 55 NSWLR 593 at [46].

1. In this case the evidence sought to be tendered went to the presence of the applicant's fingerprints at the scene and his failure to provide an explanation for their presence. As the Crown was otherwise unable to establish the appellant was at the crime scene this evidence was of high probative value or, as her Honour put it, the questions and answers were fundamental to the Crown case.

1. The danger of unfair prejudice to the appellant was identified as the danger that the jury would be made aware that the appellant had a prior criminal record because his fingerprints were being held by the police before his arrest on 7 December 2007.

1. The form of the questions were, as her Honour observed, benign. They did not, in terms, refer to any prior criminal record nor the existence of fingerprints obtained prior to arrest.

1. There was a possibility that the jury may infer the police had the appellant's fingerprints prior to his arrest. However, as appellant's counsel conceded, there are various ways in which the police can obtain fingerprints other than pursuant to a criminal conviction. The evidence of Mr Faye provided an example of such. Thus, if the police had fingerprints of the appellant prior to his arrest, it was only a possibility that this was as a result of a criminal conviction. Even if the jury did so infer, it would tell the jury nothing as to the nature of the offence for which he was convicted or when it occurred. It would require speculation by the jury for the danger of unfair prejudice to materialise. Such speculation would be contrary to her Honour's general direction that the jury should not draw any inference from the direct evidence unless it was the only rational inference to draw, and that suspicion must play no part in their function as judges of the facts.

1. There was no reason to conclude that the jury would engage in such reasoning or that the alleged danger was other than a remote possibility.

1. Even if the evidence was likely to be unfairly prejudicial, it does not follow that the weighing exercise will require its exclusion. As Mason P observed in R v Lumsden [2003] NSWCCA 83 at [4]:

"I cannot accept the proposition that evidence of an accused person's involvement in criminal activity other than that charged is highly prejudicial and inadmissible on that account..."[as distinct from evidence as to the criminal conviction of an accused person in relation to a discrete offence.]

1. In my opinion it was well open to her Honour in performing the comparative weighing or balancing exercise required by s 137 to conclude that the probative value of the evidence sought to be admitted was not outweighed by the danger of unfair prejudice. Accordingly, this ground of appeal fails.

Conviction appeal - Ground 2 - "The trial Judge erred in the assessment of unfair prejudice in relation to the totality of the evidence relating to questions 145-155 of the Police interview and the relevant portions of the evidence of Police Officers Forsyth and Caulfield in determining whether the Jury should have been discharged and should have discharged the Jury."

1. The evidence of Detectives Forsyth and Caulfield, it was submitted, gave rise to the inference that the police had fingerprints of the appellant prior to his arrest and this, coupled with questions and answers 145-155 in the record of interview, created such prejudice to the appellant that the jury should be discharged. The considerations which related to the admission of questions 145-156 in respect of the record of interview are equally apposite here.

General

1. In my opinion, no error has been demonstrated on the part of her Honour nor has any miscarriage of justice resulted from the admission of questions 145-156 of the record of interview or the refusal to discharge the jury. Accordingly, in my opinion, the appeal against conviction should be dismissed.

Leave to appeal against sentence: Grounds 1, 2 and 3 - "The sentencing Judge erred in not taking into account (a) the principles of totality of sentencing in determining the length of the non parole period; (b) the effect of institutionalisation upon the Appellant in determining the length of the non-parole period; (c) that the Appellant was serving the sentence on Protection in determining the length of the non parole period."

Background

1. The appellant was born in 1981. He had a difficult early life. He completed year 12 at high school. He has drug and alcohol problems. His criminal record comprises convictions for goods in custody, driving offences, custody of an offensive implement in a public place, possessing housebreaking implements, assault occasioning actual bodily harm in company as well as nine convictions for break enter and steal and a conviction for aggravated break and enter. He has incurred institutional misconduct charges. The subject offence occurred whilst he was on parole.

1. Her Honour stated in her remarks on sentence:

"He has of course been afforded considerable opportunity and support in the past. Any leniency extended to him in the past has been ignored and he has breached orders of the court put in place to assist him. In August 2000 he was ordered to perform 300 hours of community service work and was placed on a two year good behaviour bond. His responses were poor, he failed to complete the community service order and was sentenced to periodic detention. He failed to respond and attend alcohol and other drug programmes in accordance with the conditions of his good behaviour bond. He continued to re-offend. He failed to comply with an order for periodic detention and that was revoked and he was sentenced to full time custody. He re-offended whilst on that parole. He was again incarcerated and on the next occasion released to unsupervised parole and he reoffended. In June 2004 he was referred to the Parramatta Drug Court program. By his own admission, he had no intention of complying with the requirements of the program and he left the residential rehabilitation facility on the first night. Upon his release in August 2007 [he], by his own admission, was abusing alcohol and heavily to prevent from relapsing into drug use. He was also using crystal methamphetamine."

Totality

1. The appellant was arrested in relation to the subject offence on 7 December 2007 and was refused bail on that date. Since that date he has served the following:

(a) 7 December 2007 - 2 March 2008 (2 months 25 days) - being the balance of parole in relation to a sentence that was imposed in 2006;

(b) 3 March 2008 - 2 December 2008 (9 months) - being the non parole period that was imposed by the Local Court on 8 August 2008 in relation to a charge of assault occasioning actual bodily harm in company. This occurred after his release on 12 August 2007 and before he was arrested on 7 December 2007;

(c) 3 December 2008 to the present - being the period referable to the subject offence.

1. The appellant sought a reduction of the non parole period by reason of the totality principle.

1. Her Honour was aware of the sentence that the appellant was serving at the date of his sentence and of the revocation of his parole. The earlier sentences were for completely unrelated offences committed against different victims in 2005 and 2007. As I have said this offence was committed whilst on parole. These were matters her Honour considered before setting the appropriate term. There was no reason in principle which mandated that the sentence be served wholly or partly concurrently with the earlier sentences. In R v MAK [2006] NSWCCA 381, (2006) 167 A Crim R 159 it was held:

"...it is necessary for the judge to ensure that the aggregation of all of the sentences is a 'just and appropriate measure of the total criminality involved': Postiglione v R (1997) 189 CLR 295 at 307-308 per McHugh J."

Institutionalisation

1. Since 1 November 2001 the appellant has been in custody continuously except for the following periods: 30 April 2002 - 24 July 2005 (2 months 24 days), 23 July 2003 - 13 December 2004 (16 months 20 days), 12 August 2007 - 7 December 2007 (3 months 25 days). This will mean that by the expiration of the subject non parole period, the appellant will have served more than 10 years in custody in a time span of 12 years.

1. The appellant gave the following evidence:

"Q. Do you feel you are becoming institutionalised because of the period of time that you have been in custody?

A. Yes.

Q. What effect is that having on you?

A. Like lately, just little things are starting to anger me. Like, I've never - like not many things really have to get to me, but lately, just little things are angering me and that's why I asked to do anger management and before I get out of control there, like."

1. The psychologist, K. Seidler, who was qualified on behalf of the appellant, in her report dated 14 October 2009 said:

"... The issue of institutionalisation is a growing concern in this case...

Despite obvious concerns about institutionalisation, Mr Kuehne claimed that he is comfortable and can cope in the community."

1. This evidence does not establish the plaintiff has become institutionalised or that the sentence must be reduced to accommodate the future possibility that such may occur.

Protection

1. At the time of sentence the appellant was on remand protection at his own request for reasons unrelated to the subject offence. He gave evidence that because he had been on remand protection he had not had access to various services that he would have had had he been serving the time and not on protection. He also said he anticipated that during the balance of his sentence he would remain on protection and his understanding was that his access to services and programmes would be restricted because of that.

1. Appellant's counsel conceded at the sentencing hearing that the effect of protection may not be as significant as it had been to date, because the appellant would no longer be a remand prisoner and would be classified. He submitted because of the very fact that he was on protection and will continue on protection for the balance of his sentence, there will be some limitation on services that will be available to him. Her Honour accepted that the appellant was currently in protective custody "which of course will necessarily limit his access to therapeutic and educational programmes whilst in custody."

1. This court has held in cases such as R v Way [2004] NSWCCA 131, (2004) 60 NSWLR 168; R v Mostyn [2004] NSWCCA 97, (2004) 145 A Crim R 304; R v Totten [2003] NSWCCA 207; and R v Durocher-Yvon [2003] NSWCCA 299,(2003) 58 NSWLR 581, that courts should no longer automatically find special circumstances simply because a prisoner has to serve his sentence in protection and therefore prison life for him will presumably be more onerous than for the general population.

1. In R v Fidow [2004] NSWCCA 172 at [22] Spigelman CJ said:

"Simply because there is present in a case a circumstance which is capable of constituting a 'special circumstance' does not mean that the sentencing judge is obliged to vary the statutory proportion".

1. Her Honour described the appellant as "the most unimpressive witness and his version of events could best be said to be imaginative to the point of being beyond belief." She said he "has no doubt told courts on many prior occasions of his intentions in that regard [as to rehabilitation] and he has breached the trust imposed in him by those courts and he has not complied with the orders or the assistance offered to him." The appellant was neither remorseful nor contrite. Her Honour considered his prospects of rehabilitation as quite poor given his past failed attempts and despite what he might now say about his intentions for the future.

1. Her Honour found the offence was in the mid range of seriousness. The appellant conceded that finding was open to her Honour.

1. The appellant submitted:

"What her Honour effectively did was consider the standard non-parole period of five years and then just dated that standard non-parole period from the date of the last sentence that had been imposed without considering the overall effect of the sentence in terms of issues of totality and institutionalisation and also the issue of protection."

1. Submissions were made at the sentencing hearing seeking a reduction in the non parole period by reason of principles of totality, the prospect of institutionalisation and the fact that the appellant was in protective custody. Her Honour was well aware of those submissions.

1. She concluded

"I have had regard to the submissions on behalf of both parties. I have had regard to the objective seriousness of the offence and the factors in mitigation which are few. Only a sentence of full time custody will satisfy the requirements of general and specific deterrence. I find it is an offence which falls at the mid-range of objective seriousness as envisaged by the legislator. There is no good reason to depart from that guideline, benchmark or guidepost. I am asked to find special circumstances but I decline to do so. I can have no confidence that this offender would apply himself to an extended period of rehabilitation if it was extended to him. The statutory ratio allows for a sufficient period of supervision, it is entirely a matter for him what steps he will take in an endeavour to turn his life around."

1. It is clear that her Honour had regard to the submissions on behalf of both parties which included the three matters referred to above. She considered they provided no good reason to make any adjustment to the sentence.

1. In my opinion it was open to her Honour to so find and no error has been demonstrated in this regard.

1. This is a court of error. Its powers in respect of an appeal on sentence are prescribed by s 6(3) of the Criminal Appeal Act 1912. The court will interfere with the sentence imposed in the court below only if it be shown that the sentencing judge was in error and then only if it forms a positive opinion that some other, less severe, sentence is warranted in law and should have been passed - R v Simpson [2001] NSWCCA 534, (2001) 53 NSWLR 704.

1. In my opinion error has not been established nor has it been established that some other sentence, less severe, is warranted in law and should have been passed. Accordingly, whilst I would grant leave to appeal as to sentence, I would dismiss the appeal.

Orders

1. I propose the following orders:

1. Conviction appeal dismissed.

2. Application for leave to appeal against sentence granted.

3. Sentence appeal dismissed.

**********

Decision last updated: 04 May 2011