Lines v Norris

Case [2008] NTSC 27

Lines v Norris [2008] NTSC 27

PARTIES:LINES, Sean Gareth

v

NORRIS, Steven Paul

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO:JA 15 of 2007 (20632820)

DELIVERED:  10 July 2008

HEARING DATES:  5 October 2007

JUDGMENT OF:  SOUTHWOOD J

APPEAL FROM:  D Bamber SM

CATCHWORDS:

CRIMINAL LAW – Appeal against conviction – whether the accomplice warning from the trial magistrate was sufficient to accommodate the potential unreliability of a witness – whether the trial magistrate erred by treating the evidence of one witness as capable of corroborating another witness – unsafe and unsatisfactory - appeal dismissed

CRIMINAL LAW – Appeal against sentence – whether the trial magistrate erred in sentencing the appellant on the basis of an uncharged offence – whether the trial magistrate properly considered the principle of parity – whether sentencing process miscarried due to error in sentencing of appellant’s co-offenders – appeal allowed – appellant re-sentenced

Criminal Code s 210; s 213; 251

Justices Act s 176A

Sentencing Act s 40(6)

R v Gallagher (1991) 23 NSWLR 220; M v The Queen (1994) 181 CLR 487, applied

R v Austin (1985) 121 LSJS 181; R v De Simoni (1981) 147 CLR 383;

R v Ismunandar (2002) 136 A Crim R 206; Lowe v The Queen (1984) 154 CLR 606; The Queen v MacGowan (1986) 42 SASR 580; R v Taudevin [1996] 2 VR 402, referred to

The Queen v Syrch and Burns (2006) 18 NTLR 160, followed

Browne v Dunn (1893) 6 R 67, cited

REPRESENTATION:

Counsel:

Appellant:S Barlow

Respondent:  G McMaster

Solicitors:

Appellant:North Australian Aboriginal Justice Agency

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Judgment ID Number:  Sou0807

Number of pages:  41

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Lines v Norris [2008] NTSC 27

No. 15 of 2007 (20632820)

BETWEEN:

SEAN GARETH LINES

Appellant:

AND:

STEVEN PAUL NORRIS

Respondent:

CORAM:     SOUTHWOOD J

REASONS FOR JUDGMENT

(Delivered 10 July 2008)

Introduction

  1. On 14 February 2007, following a trial in the Court of Summary Jurisdiction at Katherine, the appellant was found guilty of the offences of unlawful entry of Diggers Den Tavern in Katherine at night on 25 December 2006 with intent to commit the crime of stealing contrary to s 213 of the Criminal Code and of stealing alcohol from those premises contrary to s 210 of the Criminal Code.

  2. On 15 February 2007 the appellant was sentenced for both offences by the Court of Summary Jurisdiction.  He was convicted of each offence.  For the offence of unlawful entry of a building with intent to steal the appellant was sentenced to 12 weeks imprisonment commencing on 14 February 2007, which was to be suspended after the appellant had served three weeks in prison.  The sentence of imprisonment was suspended on conditions that during the operational period of the suspended sentence of imprisonment, which was specified to be…

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Lines v Norris [2008] NTSC 27
Case
[2008] NTSC 27
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CaseChat Overview and Summary

In the case of Lines v Norris, the appellant, Sean Lines, appealed against both his conviction and his sentence. The conviction related to two charges: unlawful entry of a building at night with intent to commit a crime and stealing. The appeal against sentence contended that the trial magistrate erred in several respects, including by punishing the appellant for an offence uncharged, failing to properly consider the principle of parity, and miscarrying in the sentencing process due to manifest error in sentencing the appellant's co-offenders. The appeal against conviction argued that the trial magistrate erred by treating the evidence of one witness as capable of corroborating another, and that the accomplice warning was insufficient to accommodate the potential unreliability of the witness.

The court considered whether the trial magistrate erred in finding that the evidence of Brenda Mow, an accomplice, was credible and corroborated. The court found that the trial magistrate gave an adequate accomplice warning and that the evidence of Brenda Mow was both credible and corroborated by other evidence. The appeal against conviction was dismissed. The appeal against sentence was allowed, primarily because the trial magistrate sentenced the appellant's co-offenders in error, treating them as first offenders despite their extensive criminal histories. This error impacted the principle of parity in sentencing.

The court re-sentenced the appellant, imposing a total sentence of 12 weeks imprisonment, to be served concurrently and suspended after eight days already spent in custody. The court considered general deterrence, denunciation, the appellant's prospects of rehabilitation, and the principle of parity in arriving at the sentence. The court also noted the appellant's lack of remorse and the greater culpability of Brenda Mow, who was the principal offender.

Orders

Orders of the court

I make the following orders:

1. The appeal against conviction is dismissed.

2. The appeal against sentence is allowed.

3. I confirm the convictions of the appellant for the crimes of unlawful entry of a building at night with intent to commit a crime and of stealing.

4. I set aside the sentence that was imposed by the Court of Summary Jurisdiction on the appellant for the crime of unlawful entry of a building at night with intent to commit a crime.

5. I set aside the sentence that was imposed by the Court of Summary Jurisdiction on the appellant for the crime of stealing.

6. The appellant is to be re-sentenced.

Re-sentence:

For the crime of unlawful entry of a building at night with intent to commit a crime contrary to s 213 of the Criminal Code I sentence the appellant to 12 weeks imprisonment. The sentence of imprisonment is back dated to 8 February 2007 to reflect the eight days that the appellant has already spent in prison for the offences.

For the crime of stealing contrary to s 210 of the Criminal Code I sentence the appellant to 12 weeks imprisonment. The sentence of imprisonment is to be served wholly concurrently with the sentence of imprisonment that I have imposed on the appellant for the crime of unlawful entry of a building.

That gives an aggregate sentence of imprisonment of 12 weeks. The sentence of imprisonment is to be suspended on 16 February 2007 on the following conditions:

1. For a period of one year from 10 July 2008 the offender is to be under the supervision of a delegate of the Director of Correctional Services.

2. During the period of supervision the appellant is to obey the reasonable directions of the delegate of the Director of Correctional Services as to training, employment, residence, associates, counselling, treatment for alcohol abuse and reporting.

Under s 40(6) of the Sentencing Act I specify that for a period of one year from 10 July 2008 the offender is not to commit another offence punishable by a term of imprisonment.

In re-sentencing the appellant I have given considerable weight to general deterrence and to denunciation and to the appellant’s prospects of rehabilitation. I have given consideration to the principle of parity. While there is a need to differentiate between the appellant and his co-offenders because of his lack of remorse, the co-offenders’ pleas of guilty and their cooperation with the authorities, any difference in sentencing must be qualified by the appellant’s prospects of rehabilitation, the gap in his offending of a similar nature and the level of Brenda Mow’s culpability. She was the principal offender.

In arriving at the sentences that I have imposed on the appellant I have born in mind the principles stated in R v Gallagher (1991) 23 NSWLR 220 at 233 per Gleeson CJ and the fact that the trial magistrate was misinformed about the criminal histories of the appellant’s co-offenders. In my opinion the sentences that I have imposed on the appellant are consistent with the principles of parity and community standards.

Background

Background to the litigation

I do not experience any reasonable doubt as to the guilt of the appellant. I do not consider that there is a significant possibility that an innocent person has been convicted. M v The Queen (supra) at 494.Background to the appeal against sentence The appellant’s co-offenders, Brenda Mow and Cyril Mow, pleaded guilty. Ms Mow was sentenced by the trial magistrate on 15 January 2007. For the crime of damage property contrary to s 251 of the Criminal Code, Ms Mow was sentenced to 40 hours of community work. For the crime of unlawful entry of a building at night with intent to commit a crime contrary to s 213 of the Criminal Code, Ms Mow was sentenced to 80 hours of community work. For the crime of stealing, Ms Mow was sentenced to 40 hours community work. For the crime of stealing contrary to s 210 of the Criminal Code, Cyril Mow was convicted and placed on a good behaviour bond for 12 months. For the crime of unlawful entry of a building at night with intent to commit a crime contrary to s 213 of the Criminal Code, Mr Mow was convicted and placed on a good behaviour bond for 12 months. Both Brenda Mow and Cyril Mow were sentenced in error on the basis that they were first offenders. In fact both of them had quite extensive criminal histories which included previous convictions for property offences and crimes of dishonesty. At the time that she was sentenced Ms Mow also pleaded guilty to a number of driving offences. She was 25 years of age. She was born in Cairns in Queensland on 9 October 1981. Ms Mow had from time to time engaged in meaningful employment. She had worked in an aged care facility as a cleaner and as a mango picker and packer. She pleaded guilty at an early opportunity and she co-operated with the authorities. She ultimately gave evidence against the appellant although she had not done so at the time that she was sentenced by the trial magistrate. She had already spent a number of days in prison for the offences for which she was sentenced. The trial magistrate was not informed of Ms Mow’s criminal history. At the time that he was sentenced Cyril Mow was 21 years of age. He was born on 1 January 1986 in Queensland which is where he grew up. His parents were unable to care for him from when he was a very young age and he lived in a children’s home on a mission and then with foster parents. He was molested as a young child. It was not said that he had an employment history. He also suffered from a disability, the details of which were not revealed to the court. Mr Mow had also spent a number of days in prison for the offences for which he was sentenced. The trial magistrate was not informed of Mr Mow’s criminal history. When he sentenced Cyril Mow the trial magistrate made the following remarks:These are both serious offences having occurred at night time. [You entered] a business premises with some other co-accused. [The offences] occurred when the defendant and the others were apparently very intoxicated, which is not an excuse but it does indicate the sorts of risk factors that might be operative with this defendant. I am told another co-offender has received community work. Given this defendant is young it would have been good to I think give him community work, but he doesn’t appear to be suitable. I have got some concerns about this defendant. I am not sure that he is in a stable situation. It does not sound like it at all and I note the comments on the community work order assessment and it would appear that he is not amenable to many of the forms of supervision and things like that that are available.He has pleaded guilty and he has been in custody since 18 January [2007] and I consider that to be quite significant given his age and the first time that he has been in the adult jurisdiction and I understand that he has also had the other odd period of time in custody over bail issues and that would seem to accord with the court file. So I think that it is appropriate that today I deal with him by way of a good behaviour bond.So Counts 2 and 3 convicted on both Counts. I order that he be released upon giving his security in the sum of $500, promising to be of good behaviour for 12 months and to appear before the court to do so during the period of this order, if he does not comply with one or all of those conditions he may be ordered to pay some or all of the $500. There are also two victim’s levies totalling $80.

Evidence

Evidence Before The Court

The grounds of the appeal against sentence are as follows:1.The trial magistrate erred by punishing the appellant for an offence uncharged, namely criminal damage.2.The trial magistrate failed to properly consider the principle of parity.3.The sentencing process miscarried due to manifest error in the sentencing of both of the appellant’s co-offenders.Fresh evidence During the course of the appeal counsel for the appellant sought to tender the prior criminal histories of Brenda Jessica Mow and Cyril Charles Mow. He sought to do so under s 176A of the Justices Act. The section states as follows: (1) Where evidence is tendered to the Supreme Court, that Court shall, unless it is satisfied that the evidence, if received, would not afford a ground for allowing the appeal, admit that evidence if – (a)it appears to it that that evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; (b)it is satisfied that that evidence was not adduced in those proceedings and there is a reasonable explanation for the failure to adduce it; and (c)it is satisfied that the appellant has complied with the requirements of subsections (2) and (3) in respect of that evidence.(2) An appellant shall not, under subsection (1), tender evidence to the Supreme Court unless he has, not less than 7 days before the hearing of the appeal to which the evidence relates is commenced by that Court, given, subject to subsection (3), written notice to the other party to the proceedings of the evidence to be so tendered including, where such evidence is to be given by a person, irrespective of whether it is to be given orally or by affidavit, the name, address and occupation of the person. (3) For the purposes of subsection (2), an appellant shall give a notice referred to in that subsection by delivering or leaving it at, or by sending it by registered post service to, the last known residential or business address of – (a) the other party to the proceedings; or (b)the solicitor, if any, of the other party to the proceedings. The evidence was said to be relevant on two grounds. First, it was said that the evidence was relevant to the appeal against sentence. Counsel for the appellant argued that the evidence demonstrated that the appellant’s alleged co-offenders, Brenda Mow and Cyril Mow, had been sentenced on an incorrect factual basis and this supported the appellant’s argument that the sentences imposed on the appellant were grossly disparate when compared to the sentences that were imposed on Ms Mow and Mr Mow. They were sentenced on the basis that they were first offenders when their criminal histories showed that they both had criminal records. Secondly, it was said that the evidence was relevant to the third ground of appeal against conviction because Brenda Mow was not only an accomplice but an accomplice who was sentenced on an incorrect factual basis which afforded her greater leniency when she was sentenced than she would otherwise have been entitled. Counsel for the appellant argued that the incorrect factual basis on which she was sentenced increased her unreliability as a witness.

Decision

Reasons for decision

After lunch on 14 February 2007 counsel for the appellant asked if Brenda Mow could be recalled so that he could ask her another question in order to comply with the rule in Browne v Dunn (1893) 6 R 67. He was given leave to do so. For the first time counsel for the appellant then suggested to Ms Mow that the appellant was not at the Diggers Den Tavern when she was there. Ms Mow answered, “Mmm, hard question.” Counsel for the prosecution then objected to another question that counsel for the appellant asked the witness and the trial magistrate intervened. His Honour said to Ms Mow, “The lawyer is putting to you that in fact [the appellant] was not with you at Diggers Den. What do you say about that?” Ms Mow answered, “Yeah, he was not. So I done it myself. Me and the boys, that’s all I can say.” Counsel for the appellant then asked a number of questions which were not answered by Ms Mow. The trial magistrate then told the witness, “You are on oath now. You have got to answer this with the truth. Was he with you or not at Diggers Den?” To which Ms Mow answered, “Um, yes we was together.” Ms Mow was then excused. Ms Mow was not asked to give an explanation as to why she had given contradictory evidence after the luncheon adjournment. The Reasons for Decision of the trial magistrate The trial magistrate gave the following reasons for finding the appellant guilty of the two crimes with which he was charged:The defendant in this matter has pleaded not guilty to a charge of unlawful entry and stealing. There are quite a number of witnesses that were police witnesses and civilian witnesses that gave evidence of surrounding circumstances relating to the events that occurred in the early hours of 25 December [2006]. Principally the Crown case depended on the evidence of Brenda Mow. Brenda Mow was found by police at the scene where the Diggers Den [Restaurant] had been broken into. The venue had been substantially damaged by [a] number of windows or glass doors having been broken. There was some blood at the scene and a large number of bottles of alcohol and […] other alcohol, quite a bit of what we would call top shelf alcohol, taken [from the restaurant].Ms Mow gave evidence that she had, on the day in question, or the night in question, prior to the incident, been drinking with the defendant who was a person she had been in a relationship with for six months prior to this offence and it would appear that [the defendant] was someone who she has an ongoing interest in.Also called to give evidence was her brother, Cyril Mow. Brenda Mow [gave] evidence that she had been with Sean Lines, […] all […] evening. [She had] been drinking with him at the hotel and then [she] came across her brother and another young person who was the friend of [her] brother and that all four [of them] had been involved in the break-in and that she had cut her leg in effecting the break of one of the doors [to the premises]. Everyone had run off in different directions and she had been taken into custody. She gave clear evidence that the persons involved […] with her were the defendant, […], her younger brother, and a friend of [her] younger brother. It was put to her that she had been drunk on the night and she may have been mistaken [about whether Sean Lines was with her]. She was quite clear in saying that the defendant was with her and with her in entering the building. [Ms Mow’s evidence] was supported to some extent by the evidence of Cyril Mow. Cyril Mow was not a convincing witness. He seemed to be an extremely reluctant witness but he did support the evidence of Brenda Mow to the extent that he did say [that] he was with the person that Brenda Mow said he was with, the other young fellow, his friend who was […] involved and that he also came across the defendant with Ms Mow. So he clearly supports Ms Mow in the fact that the defendant was together with Brenda Mow at the relevant place, Diggers Den [Restaurant].There was evidence [given] by police [officers]. [There was the] [e]vidence of Constable Rossiter that he saw two persons leaving the scene. [There was the] [e]vidence of a civilian witness who saw three persons leaving the scene. One of the persons was a person who had a short hair cut and something of the appearance and build of the defendant.Rossiter, shortly after Ms Mow was taken into custody, chased after two persons. He believed he heard two persons take off over a fence. At that time he saw the defendant sitting down on a chair at some flats, very close by to where the Diggers Den [Restaurant] was [located] and at the time that he had chased two persons the defendant gave evidence that he was there at those flats but he had been at those flats for ten minutes and had just not happened to go to those flats because he was there knocking on doors looking for cigarettes. [The defendant] gave evidence that he had not been with Ms Mow at all that evening since after sunset. And in fact accounts for his time on those hours from sunset to the early hours of the morning when the offences took place and he was found sitting on a chair nearby as wandering around various parts of Katherine South, bringing Christmas cheer to others. Who those others were and what Christmas cheer he brought I haven’t heard. It was not put to Ms Mow that she was either lying about or being mistaken about the fact she had not been with the defendant earlier in the evening at the hotel or walking back with him. Although she did appear to me to be a somewhat reluctant witness, that reluctance I ascertain[ed] to be reluctance to give evidence against Mr Lines who she still clearly has, had a relation with and would certainly appear from what she says is still fond of and holds no axe to grind, obviously given evidence as she did would get someone she has positive feelings for in trouble. Despite that she has given evidence that clearly does put Mr Lines in trouble as being with her and being a part of the break in and the stealing of the bottles. I find Ms Mow to be an honest and credible witness who was giving evidence under some difficulty. But despite that difficulty she did, when the crunch came, give true and credible evidence that Mr Lines was with her and he did take part in the entry and stealing. I have come to that conclusion, I warn myself that she is an accomplice and that the accomplice evidence on its own is dangerous to convict on, accomplice evidence on its own without corroboration. I do believe there is evidence of sufficient amount to [amount to] corroboration.I believe the evidence of Mr Lines, being close by at [the] relevant time, that a person fitting his description had been seen leaving the scene and [that] evidence […] in effect fits [in] clearly and in no way derogates from the evidence. The surrounding circumstantial evidence fits in with the story that Ms Mow tells, and doesn’t derogate from it. I find the evidence given by Mr Lines was most unconvincing. His story although convenient that he was sitting there for ten minutes and had walked to that place from the other direction doesn’t seem either particularly credible and as I say it is a case where I have clear evidence which is supported by the surrounding circumstantial case. In spite of having given myself a warning, I am satisfied that the evidence of Brenda Mow is correct. It is corroborated and as such I am satisfied beyond reasonable doubt that both charges are made out.Grounds one and two of the appeal against conviction

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.