Makrynikos v The Queen - [2006] NSWCCA 170

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Makrynikos v Regina [2006] NSWCCA 170

FILE NUMBER(S):
2005/972 CCAP

HEARING DATE(S): 26 September 2005

DECISION DATE: 30/05/2006

PARTIES:
Applicant - Zafririos Makrynikos
Respondent - Regina

JUDGMENT OF: McClellan CJ at CL Hislop J Rothman J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/1052

LOWER COURT JUDICIAL OFFICER: Finnane DCJ

COUNSEL:
Applicant - Mr P. Byrne SC with Ms G. Bashir
Respondent - Mr J. Bennett SC

SOLICITORS:
Applicant - Murphy's Lawyers Inc.
Respondent - Director of Public Prosecutions (New South Wales)

CATCHWORDS:
Criminal law
Duress
Trial Judge's directions
Sentence

LEGISLATION CITED:
Crimes Act 1900 ss - 112(1), 346
Crimes (Sentencing Procedure) Act 1999 - s 21A

DECISION:
1. Appeal as to conviction dismissed
2. Leave to appeal on sentence granted
3. Appeal on sentence upheld
4. Sentence quashed. In lieu thereof the appellant is sentenced to imprisonment for 7 years commencing on 3 September 2004 and expiring on 2 September 2011 with a non-parole period of 4 years and 6 months commencing on 3 September 2004 and expiring on 2 March 2009.

JUDGMENT:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

2005/972 CCAP

McCLELLAN CJ at CL
HISLOP J
ROTHMAN J

30 May 2006

Zafririos MAKRYNIKOS v Regina

Judgment

McCLELLAN CJ at CL: I agree with Hislop J.
HISLOP J: On the 26 May 2002 Simon Raha, with others, broke and entered the Australian Government Analytical Laboratories (‘AGAL’) and stole a safe and other items. The safe was a cube of concrete reinforced with steel with a weight estimated at approximately 450 kg. It contained drugs including heroin, cocaine, amphetamines and steroids with a value in excess of $2,000,000. An earlier attempt by Mr Raha and his cohorts to break and enter the premises on 5 May 2002 had been unsuccessful.
The appellant, a single man born on the 17 February 1976, was employed by AGAL as a technical officer. He was charged with being an accessory before the fact to the break enter and steal pursuant to the Crimes Act 1900 sections 112(1) and 346. The maximum penalty for the offence was imprisonment for 14 years.
The Crown case was that the appellant voluntarily provided Mr Raha with information about the location of the contents of the laboratory, security and alarm systems and provided a map of the layout of the relevant areas of AGAL in return for the payment of $10,000.
The appellant did not dispute his involvement in the offence as an accessory before the fact but raised duress as a defence. He gave evidence he had provided the information to Mr Raha under threats of harm to himself and his family. The trial was effectively confined to the issue of duress.
The appellant was convicted by a District Court jury on the 30 June 2004. On 3 September 2004 he was sentenced to 10 years imprisonment with a non-parole period of 5 years and 6 months to commence on 3 September 2004.
The appellant has appealed against conviction and sought leave to appeal against sentence.
Conviction
The appellant relies upon five grounds of appeal against conviction.
Ground One – The directions on duress were erroneous in that they invited the jury to approach the issue by applying a purely objective test to the determination of questions regarding the reaction of the appellant to threats made to him and his ability to render those threats ineffective.

In R v Abusafiah (1991) 24 NSWLR 531 at 544-545 Hunt J (with whom Gleeson CJ and Mahoney JA agreed) suggested a form of directions which should be given in respect of the defence of duress. The direction was relevantly:
[4] What the Crown must establish is one or the other of two things. It does not have to establish both of them. The first is that, when the accused did those acts, there is no reasonable possibility that he did so by reason of a threat that death or really serious physical harm would be inflicted upon him or upon his family if he did not do those acts.
[5] If the Crown has failed to eliminate that particular reasonable possibility, it must establish in relation to any such threat which may reasonably have been made that there is no reasonable possibility that such was its gravity that a person of ordinary firmness of mind and will, and of the same sex and maturity as the accused, would have yielded to that threat in the way in which the accused did …
The judge should then explain how these directions may be applied to the facts of the particular case. Where the specific issues have been raised in relation to the facts of the particular case, the judge should, in the course of explaining the application of the law to those facts, direct the jury, for example: … [c] that the issue is whether the threat was still effective at the time when the crime was committed, and duress no longer operates if the Crown has established that the accused failed to take advantage of an opportunity which was reasonably open to him to render it ineffective.
Abusafiah was quoted with approval in R v Pimentel (Spigelman CJ, Dunford and Hidden JJ) [1999] 110 A Crim R 30 at [36] see also R v O’Brien (2003) NSWCCA 121 at [41].
The Criminal Trial Courts Bench Book has provided a suggested duress direction which, drawing particularly upon Abusafiah, poses three questions:
1. Was [the accused] driven by [the alleged threats] to act as [he/she] did because [the accused] genuinely believed that if [he/she] did not act in this way, [he/she/member of the accused’s family etc] would soon be killed or seriously injured.
2. Would the threats that you have found were present have driven a reasonable person to act as [the accused] did
This is a somewhat more complicated question and requires you to look at the response of a reasonable person of ordinary firmness of mind and will, and of the same sex and maturity as [the accused], to the threats which faced [the accused], and in the circumstances in which [the accused] found [himself/ herself]. I shall refer to this person as “a reasonable person.”
3. Could [the accused] have avoided the effects of the duress by escaping from the threats without damage to [himself/herself/person threatened].
The law states that [the accused] cannot say that [he/she] could not avoid the effects of the duress if a reasonable person would have done so.
His Honour directed the jury, in writing and orally, essentially in terms of the suggested direction contained in the bench book.
At the hearing of the appeal appellant’s counsel accepted that Abusafiah and the questions suggested in the directions in the Bench Book accurately represented the law. However it was submitted his Honour, in his directions to the jury, erred in referring, on the second and third questions, to “a reasonable person” rather than to “a person of ordinary firmness of mind and will and of the same sex and maturity as the accused” and in referring to the second question as providing a purely objective test.
His Honour in his directions to the jury did, from time to time, make reference to “a reasonable person” in the context of the second and third questions. He also referred to an “objective test”.
However in his written directions to the jury on question two his Honour said that question:
… requires you to look at the response of a reasonable person of ordinary firmness of mind and will, of the same sex and maturity as the accused to the threats which faced the accused and in the circumstances in which he found himself.
I shall refer to this person as “a reasonable person.” The reactions of a reasonable person may or may not be the same as the reactions of the accused … You place a reasonable person of ordinary firmness of mind and will, and of the same maturity and sex as the accused, in his position, that is, in the setting and circumstances in which he found himself, when he drew a map and gave other assistance to Raha and you attribute to that reasonable person the knowledge he had of the person, ie Raha, offering the threats.
In his oral directions to the jury his Honour immediately before stating the three questions said:
Then to be duress it has to be such a nature that a person of ordinary firmness and strength of will – so you take someone of his age and maturity, the same maturity, same sex, a male and a person in his position, but a person of ordinary firmness and strength. So in a sense you are looking at an objective test. You say, what would a person, quite apart from him, what would a person of ordinary firmness and strength do a person of his age his maturity a man such as him, what would he do if this threat were made? Would that person have yielded to that threat?
At the conclusion of his discussion of the second question his Honour directed the jury:
So when you examine this question of what would have driven a reasonable person to act as he did, you have got to examine what he knew about this person and then you have got to examine what a person of reasonable firmness of mind and will of the same sex and maturity as the accused in the same circumstance in which he found himself. So it is a reasonable person.
Additionally, in discussing the third question, his Honour said:
So in other words, would a reasonable person who had been forced to draw a map, a person of reasonable ordinary firmness of mind, same maturity and sex as the accused, would that person have contacted the police and told them what he had done and what was likely to happen, or would he contact Dr Westwood (his supervisor) with whom he is apparently quite friendly, and tell him what had happened and what was likely to happen. And then thus taken advantage of that opportunity and escaped from the threats.
There were other references to “a person of ordinary firmness of mind and will and of the same sex and maturity as the accused” in the summing up. In my opinion, on a fair reading of the written directions and summing up, the jury was adequately informed that the expression “a reasonable person” was used by his Honour as a shorthand expression for “a reasonable person of ordinary firmness of mind and will, and of the same maturity and sex as the accused” and the jury would have so understood such references.

His Honour referred in his directions to the second test as an objective test. It was submitted this detracted from the subjective element introduced into the second question by the reference to “maturity.” However his Honour made clear the sense in which he was referring to the test as objective in the direction quoted in paragraph [15] above.
The appellant further submitted there was error in identifying the onus of proof in relation to questions two and three. The essence of this submission was expressed in the following terms:
His Honour cast the test in terms of a decision as to whether a reasonable person may have yielded or “on the other hand” may not have done so. This is not a proper application of law where the onus is on the Crown to prove a matter beyond reasonable doubt.
However this submission focuses on part only of his Honour’s direction. The full context was as follows:
Now you may decide that a reasonable person may well have yielded in the same way the accused said he did. On the other hand you may decide a reasonable person may not have yielded. But the focus has got to be on this objective test of a reasonable person. What would a reasonable person have done? Not just what he would have done. Although as I say you may come to the conclusion that a reasonable person may well have done what he did. That is matter for you to consider. If the Crown satisfies you there is no reasonable possibility that a reasonable person would have yielded in this way then you would answer this question no.
His Honour pointed to the possibility of the competing views as to the response of the reasonable person and then to the burden of proof upon the Crown. In my opinion it has not been demonstrated that his Honour’s direction as to the onus of proof was erroneous or misleading. He similarly referred to the possibility of competing views in respect of question three and in a number of places in the summing up referred to the onus which rested upon the Crown.
The appellant further submitted that his Honour failed to give sufficient emphasis to the evidence in the case from which it might be concluded the appellant was immature and the relevance of such evidence to the second and third questions.
There was evidence from which the jury could have concluded the appellant was immature for his age. The parties addressed the jury at some length on this issue. His Honour, in his summing up, reminded the jury of the evidence as to the appellant’s character and the evidence of the witnesses and put that evidence fairly and clearly before the jury. His Honour reminded the jury of the demeanour of the appellant throughout the trial and in the course of his evidence.
In my opinion the arguments as to the appellant’s immaturity and its impact were fairly and adequately summed up by his Honour to the jury.
The appellant submitted in respect of question three that the Crown was required to establish that the appellant had a reasonable opportunity to escape the influence of the threat and he had failed to take advantage of that opportunity. There was evidence from which it could be concluded that there was reasonable opportunity for the appellant to bring the intentions of Mr Raha to the attention of his supervisor and the police well before the attempted break and enter and the later break enter and steal and that he failed to avail himself of that opportunity. His Honour in his written directions to the jury said:
Where, as the Crown contends in this case, the accused had a reasonable opportunity to avoid the threats and exercise his own will, then you must ask yourselves whether the Crown has satisfied you beyond reasonable doubt that there was such an opportunity, and that no reasonable person in the circumstances confronting the accused, that is, with like risks in respect of any alternatives open, in the face of the same threats, and with the same knowledge concerning Simon Raha, would have failed to take advantage of that opportunity and avoided or escaped from those threats.
If the Crown satisfied you beyond reasonable doubt that this question should be answered yes, then the defence of duress has failed.
If the Crown has failed to satisfy you that the question should be answered yes, then the accused is entitled to a verdict of not guilty.
The appellant also submitted:
The jury were directed in terms that the threat need only be continuing until the offence was committed. However there were no directions that if the jury found that the threat was not continuing following the commission of the offence, including when requests were made in relation to identifying stolen drugs, following the arrest of Mr Raha, or at the time of the appellant’s record of interview that this could not be weighed against the appellant if they considered that at the time of the principal offence the threats had been real and continuing. This was important as there was significant emphasis at the trial on the fact that the appellant had admittedly lied to the police in his record of interview.
There is difficulty in understanding this submission. However the jury was told that the Crown must prove that the appellant had a reasonable opportunity to avoid the threats and exercise his own free will. Having regard to the clarity of his Honour’s directions there was no need to give the direction contended for in relation to the post event circumstances.
The appellant submitted:
The jury were directed that they could take into account the appellant’s relationship with his family “in deciding what sort of relationship he has with these people and what sort of man he is but you cannot take into account their circumstances in deciding whether he be guilty or not guilty. It is submitted that the appellant’s relationship with his family was of great importance in assessing the subjective component of the tests on duress when it was clearly asserted in the evidence that his family had been threatened with serious injury or death and that the fear of this occurring had operated strongly in his mind at the relevant time and thereafter.”
The comment from the summing up which is relied upon by the appellant was made in the context that the jury was to determine the appellant’s guilt or innocence dispassionately, and divorced from feelings of sympathy for the appellant or his family. In this context his Honour referred to the circumstances of the appellant’s family, his father being unable to come to court and his mother and sister being very affected by the matter. No error has been demonstrated.
It was submitted that his Honour was in error in stating “there is no other fact in the case that would suggest duress apart from the appellant’s evidence” as he did not have regard to the evidence given by other witnesses as to the appellant’s manner. However the context in which his Honour made the remark was in explaining that for the issue of duress to be raised there had to be evidence, which, in the circumstances of this case where there was no other witness to the threats, had to come from the appellant. This did not involve error.
Subsequent to the completion of the hearing of the appeal the appellant sought and was granted leave to file additional submissions and the Crown leave to reply. The principal additional submission was that his Honour, in directing the jury, placed the emphasis upon the notion of “a reasonable person” without sufficient regard to the relevant personal characteristics of the appellant. This submission seeks to expand questions two and three to have regard to the accused’s background and other personal characteristics.
The essence of the appellant’s submission was that the well established principles for which R v Abusafiah is authority must be reconsidered and questions two and three should be reformulated so as to encompass considerations based on the background and other personal characteristics of the accused. It was submitted Hunt J in Abusafiah, by reason of reference to Stingel v The Queen (1990) 171 CLR 312, a decision of the High Court relating to provocation, erred in rejecting the proposition that the background and other personal characteristics of the accused should be taken into account in the defence of duress.
In support of his submission that the background and other personal characteristics of the accused should be taken into account the appellant referred to decisions in other States namely R v Runjanjic (1991) 56 SASR 114, R v Williams (1997) 97 A Crim R 119 (Victoria), Rice v McDonald (2000) 113 A Crim R 75 (Tasmania) and to the speech of Baroness Hale in R v Hasan [2005] 2 Crim App 314.
However, as the Crown observed in its submissions, Hunt J in Abusafiah rejected the analogy between provocation and duress; the comments of Baroness Hale relied upon were made in relation to possible law reform whereas the English authorities do not favour a more subjective approach (see Lord Bingham in R v Hasan); the Tasmanian decision of Rice and the Victorian decision of Williams were influenced by legislation in those States. The Crown submitted there was no basis to reformulate the principles so as to encompass the background and other personal characteristics of the accused.

I reject the appellant’s submission. The first question involves a subjective test which is relatively easy to assert yet difficult to disprove. The second and third questions impose limitations upon the availability of the duress defence in order to contain the defence within sound and proper limitations. These limitations are policy based with the intent that there is a measure of control of the duress defence.
Abusafiah has been authority for a significant period and has been applied without question. If the matter is to be reconsidered it may be a matter for the legislature, utilising the consultative process available to it, to undertake such reconsideration.

The remaining submission advanced, by leave, was that:
The relevance of conduct of the appellant after the conduct in which he said to have acted under duress to the determination of the question whether the Crown had proved beyond reasonable doubt that he was not acting under duress at the time of the commission of the offence.
The proposition sought to be advanced by the foregoing submission is not clear. The submission sought to draw upon an analogy with the law of necessity. However whilst there may be some overlap between duress and necessity it is of no relevance in the present case. In any event to succeed in a defence of necessity the accused must have been afforded no reasonable opportunity for an alternative course of action which did not involve a breach of the law – R v Rogers (1996) 86 A Crim R 542 at 547.That was not the case here.
For the above reasons I reject ground one.
Ground Two - The directions given by the trial judge on the manner in which the jury should deal with the appellant’s evidence were erroneous.
The appellant was interviewed at length by the police. He gave evidence at the trial that the majority of what he had told the police at the interview was lies. He said the truth was he acted under duress. He said he lied to the police because he was afraid Mr Raha’s friends were still around and he did not think the police would believe the truth.
His Honour directed the jury that it had to “scrutinise [the appellant’s] evidence” and “to give careful consideration to [the appellant’s] credibility.”
The appellant submitted this direction was only given in relation to the appellant’s evidence and could only have had the effect that his evidence had to be scrutinised more carefully that the evidence of any other witness for no reason other than he was the accused. In fact his Honour also directed the jury to have regard carefully to the character evidence given by other witnesses.
The direction to which objection was taken was in the following terms:
Lastly in this direction I want to say to you that he has admitted telling lies to the police during his record of interview but said that he has given you the truth in the evidence in this case. Now that in itself creates a question mark which obviously you should consider. A person tells lies to the police and then says, but what I have said here in Court is true.” He gave evidence … he did not have to give any evidence. Since he chose to give evidence it is for you to scrutinise his evidence and give careful consideration to it.
In this context it was appropriate for his Honour to make the comments which he did. The direction would not have led the jury to evaluate the appellant’s evidence in a way which was impermissible. Accordingly I would dismiss this ground of appeal.
Ground Three – The directions on the manner in which the jury might use evidence that the appellant had told lies were inadequate.
The Crown, in cross-examination and in addressing the jury, advanced the proposition that the appellant’s lies were evidence of the appellant’s consciousness of guilt.
His Honour directed the jury as to lies in the following terms:
Generally it could be said telling lies damages the credibility of the person who tells them, but you must remember that there are many reasons that people tell lies. Sometimes panic can be a reason or fear or confusion or wanting to distance himself from events … his telling of lies may have been because of fear of Mr Raha. If you think that that is a reasonable possibility, then you should not hold against him that he told lies to the police. However if you don’t think that was a reasonable possibility you are entitled to give serious consideration of whether you think the evidence he gave was the evidence of a credible witness and that goes of course back to the very important first test in the duress area of a genuine belief. He was not a credible witness you might have difficulty in accepting that he had a genuine fear of anything.
He has no onus of proving anything. The Crown must prove its case beyond reasonable doubt. Even if you consider there are doubts about his credibility it does not necessarily mean the Crown has proved its case. So you may think, well I am not sure about his credibility. I do not think very highly about someone who just tells lies to the police. Nevertheless I will look carefully of every aspect of this case before I come to any certain conclusion that might be against him.
The appellant submitted that where the Crown had clearly suggested in cross-examination and address that the fact that an accused had told lies entitled a finding that there was on his part a consciousness of guilt, a direction should be given to the jury in the terms set out in Zoneff v The Queen (2000) 200 CLR 234. His Honour had failed to do so.
However the Zoneff direction is only appropriate in cases where the Crown was not relying upon lies as evidence of guilt. In cases where lies are being relied upon as evidence of consciousness of guilt it is appropriate to give a direction in accordance with Edwards v The Queen (1993) 178 CLR 193 where at 210 it was held:
Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lies into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg v Lucas, because of “a realisation of guilt and a fear of the truth.”
Moreover the jury should be instructed that there may be reasons for the telling of the lie apart from the realisation of guilt.
Although his Honour’s direction did not employ the precise language of Edwards the effect of it was appropriate. Error has not been demonstrated.
Ground Four – The learned trial judge erred in his direction to the jury as to how they could treat evidence and observations as to the appellant’s distress.
The appellant’s evidence was that he was in fear of Mr Raha at the time of the offence and subsequently and this was manifested by the display of distress on his part.
The Crown cross-examined the appellant to the effect that he exhibited no apparent signs of distress at his place of work following the occurrence of the offence, in telephone conversations with Mr Raha which had been intercepted and in his interview with police until he appreciated the extent of the evidence assembled against him and that the distress displayed by him was not the result of fear of Mr Raha but the fear of the devastating effect of conviction on his family.
The appellant throughout much of the trial sat behind his counsel sobbing. He sobbed most of the time whilst in the witness box. It was not suggested by the Crown that this display of distress was false, rather it was submitted it stemmed from his concerns as to the effect on his family should he be convicted.
The appellant has submitted the jury was not given directions warning them not to engage in consciousness of guilt reasoning or that they should not reason that the accused was giving false evidence as it was in his interest not to be convicted of the crime.
His Honour in respect of the appellant sobbing during the Trial directed the jury:
The accused himself, throughout much of the Trial to my observation, sat behind his counsel sobbing. The accused in the witness box sobbed most of the time. It is very unusual in Australia to see men sobbing, particularly for great lengths of time, but you must not hold that against him, the fact that he is sobbing. That is his personality and the way he presents himself here is the way he is. The fact that he sobs should not make you feel sorry for him or thinking that you should do something to help him. Nor should it make you have contempt for him because you do not think highly of men who sob. You have to separate the sobbing from the evidence and what he says and what is said about him. That is a very important thing …
On one view of it the accused might be regarded as coming over to the jury as a person who is rather cowardly … that however may be a false impression, you have got to think carefully about it, the fact that he is crying and being upset. It may also have something to do with the stress of this case. Stress of course can cause emotion in many people. But if you come to the conclusion that he was someone who seemed himself to lack courage, he just seemed to be easily dominated, that does not itself satisfy the test of duress.
In my opinion, these directions were adequate.
Ground Five – The learned trial judge erred in his directions to the jury on the use they could make of evidence of the appellant’s good character
The appellant had no prior convictions. Evidence was given at the trial by the appellant and a number of witnesses as to his good character.
His Honour directed the jury that the evidence of good character could be taken into account in relation to credibility and in relation to, “assessing whether it is likely he would commit such a serious offence as this.” He also told the jury:
You give good character evidence such weight as you think fit, but I have got to tell you that there are people of good character who do commit crimes. Obviously enough, until such a person commits his first crime, he is regarded as a good character and there are many even prominent people in our community who until they are convicted are regarded as people of good character.
His Honour then gave some examples of the latter and concluded:
However, taking all that into account, evidence of good character is certainly something which could be said to be strongly in favour of any person who comes to Court facing trial.
The appellant submitted his Honour erred:
a) In not directing the jury in the terms of Attwood v The Queen (1960) 102 CLR 353 at 359 that evidence of good character, if accepted, can be taken into account as making it unlikely that he committed the crime charged.
b) That the suggestion that every criminal was a person of good character at one stage of his/her life tended to induce the jury to attach less importance to the evidence of good character than it was entitled to receive.
A person may be regarded as of good character until he commits his first crime and it is not inappropriate for a judge to allude to this fact. The question is rather, whether the summing up, as a whole, was unfair to the appellant. In my opinion it was not.
His Honour said of the character witnesses:
But the point about it all is really that they are saying they regard him as someone with character. They know in some way or other he is mixed up in a serious criminal matter. They find it difficult to believe that he could be because the person that they know is an honest and upright individual, a fond family member, a church-goer, a decent and honest member of the community.
Although the precise language in Attwood was not used the direction given by his Honour met the purpose for which it and similar decisions are authority.
In any event the appellant was represented by experienced and competent Counsel at the trial. Whilst Counsel sought some variation of the directions as to good character proposed by his Honour in his written directions he did not take any objection of the type now made, presumably because he detected no error or unfairness in his Honour’s directions in this regard.
As a result of the failure to take the point at the trial leave is required (Criminal Appeal Rules rule 4). I would refuse leave in the circumstances.
Sentence
The appellant relies upon four grounds in support of the application for leave to appeal against sentence.

Ground 1 - The learned judge erred in his findings as to the test to be applied in relation to duress by rejecting duress as a matter having no significance in the sentencing proceedings.

Appellant’s counsel at the sentencing hearing submitted his Honour should sentence the appellant on the basis that although he was guilty, nevertheless his will was overborne, and the verdict was given on the basis either the jury did not think that he had an explanation for not going to the police or that he was not a person of reasonable fortitude.
On the application for leave to appeal on sentence the appellant relied upon the above submission. Alternatively it was submitted that the sentencing judge expressed questions two and three in purely objective terms and that the findings on sentence rejecting duress were in error owing to his Honour’s reliance on an application of these fundamentally erroneous tests.
However his Honour determined the question of duress by reference to question one not to questions two or three. Question one is a purely subjective test. His Honour held he was unable to accept that the jury convicted the appellant on either of the bases suggested by his Counsel. He held the jury was correct to reject duress, there was no satisfactory basis for accepting that the appellant was under any pressure or any threat of any kind whatsoever, and that he was satisfied beyond reasonable doubt that the appellant became involved in the venture voluntarily.
In R v Isaacs (1997) 41 NSWLR 374 this Court held at 378:
Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings. The fixing of an appropriate sentence ordinarily involves an exercise of judicial discretion, and it is for the judge to find the facts which are material to that exercise of discretion … The primary constraint upon the power and duty of decision making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury.
The view of the facts adopted by his Honour for the purpose of sentencing was open to him and was consistent with the verdict of the jury. It was reached by his Honour after an analysis of the evidence and with particular regard to his observations of the appellant’s demeanour. Furthermore the appellant’s submission that the tests as to questions two and three expressed by his Honour were erroneous is not accepted for the reasons which appear earlier in this judgment. Accordingly this ground is rejected.
Ground 2 - The learned judge erred in the application of s 21A Crimes (Sentencing Procedure) Act 1999 and in making findings as to aggravating factors for the purpose of sentence.
His Honour, in his remarks on sentence, said:
Aggravating factors that are specifically referred to in s 21A in the current context are that the principal crime itself was a violent offence. The offender abused a position of trust. It was a planned criminal activity.
The reference to “violent offence” was presumably a reference to Crimes (Sentencing Procedure) Act 1999 s 21A(2)(b) namely, “the offence involved the actual threat and use of violence.” It was submitted by the appellant and conceded by the Crown that this factor refers to violence to the person not to property. As there was no violence to the person involved in the offence it was accepted his Honour should not have taken this aspect into account as an aggravating feature.
The reference to “planned criminal act” is presumably a reference to s 21A(2)(n) – “The offence was part of a planned or organised criminal activity.”
The appellant submitted the case against him was that he was an accessory before the fact by virtue of assisting or abetting the criminal enterprise in the planning stages, the planning activity was thus an element of proving the offence against the appellant and, as it was an element of the offence, additional regard could not be had to it in sentencing as to do so would involve the double counting prohibited by the concluding words of s 21A(2) – R v Wickham [2004] NSWCCA 193 at [22].
It was submitted by the Crown that it was appropriate for his Honour to consider the degree of the planning and organisation when determining the level of the appellant’s misconduct. However that may be his Honour, in simply stating, “it was a planned criminal activity” did not embark upon any such consideration nor is it apparent to what extent this consideration, if at all, impacted upon the ultimate sentence. In my opinion it would be unproductive to pursue this issue as the effect of a somewhat higher degree of planned criminal activity would have no noticeable effect on sentence.
Ground 3 - The learned trial judge erred in his assessment of the applicant’s criminality and
Ground 4 - A lesser sentence is warranted in law.
His Honour made the following findings positive to the appellant:
a) Before his involvement in this matter (the appellant) could only be regarded as a man of good character and a man who worked hard. Anybody viewing him on what was known of his activities would conclude that he was a hard working man who had a good public service job and a career with the possibility of future advancement. He attended Church regularly and was close to members of his extended family. He has close family members who have spoken well of him.
b) The appellant did not have a criminal record.
c) It is probable the appellant will not get involved in criminal activity again. He is young and there are thus very good chances of rehabilitation. These factors constitute special circumstances.
d) The appellant instructed his counsel not to put the Crown to strict proof of issues other than duress, this resulted in a saving of time and expense which can be taken into account in assessing sentence.
e) The appellant was prepared to offer assistance to the authorities by giving evidence against Mr Raha. Mr Raha ultimately pleaded guilty. It was quite unclear what the value of the appellant’s assistance might be. It was to be treated as being some evidence of remorse and as indicating he should perhaps get a lesser sentence than he otherwise would get.
His Honour made the following findings adverse to the appellant:
a) The jury was correct to reject duress. There was no satisfactory basis for accepting he was under any pressure or any threat of any kind whatsoever.
b) there was nothing in the appellant’s background which would explain anything which would mitigate the offence.
c) The function of AGAL inter alia was to manufacture drugs of addiction in order to create samples which were almost totally pure. The samples were used for drug testing in other government laboratories throughout Australia. They were used inter alia for the forensic testing of drugs seized by police from drug importers and dealers, the theft of the safe containing the near pure drugs caused considerable delay in remanufacturing samples thus interfering with the criminal justice system.
d) The thieves were in a position to make very significant sums of money from the sale of the drugs. The sale of the drugs onto the streets created further criminal activities.
e) The theft could not have got off the ground if the appellant had not added his willing support to it.
f) The appellant’s actions involved a gross betrayal of trust by him. He was aware of this and that the theft would sabotage the work of the laboratory and put the drugs into the illegal market place.
g) The principal crime was a violent offence. It was a planned criminal activity.
h) Those who engage in commercial criminal activities of this kind are deserving of the imposition of penalties of a most severe type.
His Honour inter alia made the following comments in determining sentence:
a) The maximum penalty for this offence is 14 years. It is rarely given.
b) Statistically the maximum sentence given normally, and then only rarely, is something in the order of 7 years.
c) This particular crime is in a category where a much greater head sentence was warranted.
d) I intend to give in the head sentence allowance for his previous good character and the positive matters that I have mentioned. I also have found special circumstances and I intend to make allowance for that.
e) I had considered whether I should regard this as a crime of the worst type and whether that would require me to sentence him to 14 years imprisonment. However I think his role is less than that of Raha although not a great deal less.

His Honour made no reference to the guideline judgment in R v Ponfield (1999) 48 NSWLR 327 in his remarks on sentence. The appellant submitted an examination of Ponfield shows that the seriousness of an offence of break enter and steal is enhanced if other factors, a selection of which were included in the submission, were present. As none of the factors selected by the appellant were present in this case the appellant submitted the case lacked several of the aggravating elements which would render it in or approaching the worst category for offences of this kind.
However the factors listed from Ponfield by the appellant were incomplete, making no reference to factors included in the Ponfield guidelines such as:
(ii) The offence is the result of professional planning, organisation and execution.
(viii) The value of the stolen property to the victim, whether that value is measured in terms of money or in terms of sentimental value
Nor was reference made in the appellant’s submission to the adoption and endorsement by Grove J, with whom Spigelman CJ and Sully J agreed, at [45] of the observation of Lord Bingham CJ in R v Brewster (1998) I Cr App R 220 at 225:
The seriousness of the offence can vary almost infinitely from case to case. It may involve an impulsive act involving an object of little value (reaching through a window to take a bottle of milk, or stealing a can of petrol from an outhouse). At the other end of the spectrum it may involve a professional, planned organisation, directed at objects of high value.
Grove J regarded this observation as, “entirely pertinent to offences contrary to s 112 of the Crimes Act”.
In my opinion the principal offence was at the upper end of the spectrum of break enter and steal under the Crimes Act 1900 s 112(1). The criminality of the appellant though less than that of the principal offender, was nevertheless significant.
However the comments of Grove J in Ponfield at [19] must be borne in mind. His Honour said:
Whilst the maximum sentence for an offence is always a relevant consideration in the exercise of the sentencing discretion a particular difficulty arises in this respect with s 112. The offence is expressed in terms of breaking and entering and then committing a felony. In the normal course the relevant felony is stealing, however it need not be. There are many other felonies which, at least in theory could be the subject of a charge under s 112 and which are more serious then stealing. It would be unusual where such a felony had been committed for the Crown not to proceed with charges for that felony, which in many cases would carry a penalty greater then the fourteen years for which s 112 provides. Nevertheless, the fact that s 112 does, in terms, apply to the full range of felonies renders the maximum less than usually useful as an indicator for sentencing where the felony involved in a particular case is not one of the more serious felonies.
I agree with his Honour, the sentencing judge, that this is a serious offence. However I am unable to agree that the criminality was such as to justify a starting point close to 14 years imprisonment.
The appellant submitted:
… the sentence imposed failed to reflect the applicant’s prior good character, lack of prior convictions, remorse and his Honour’s positive finding that he was unlikely to re-offend, that he had demonstrated a willingness to facilitate the administration of justice by his instructions to counsel to run the trial “economically”, that he had offered to assist the authorities in the prosecution of others, he was remorseful and had good prospects of rehabilitation. A lesser sentence was warranted in law in accordance with s 6(3) of the Criminal Appeal Act 1912.
His Honour expressly stated he took the above matters into account in the head sentence and also took into account special circumstances in determining the non parole period. The non-parole period of 5 years and 6 months was indicative that these special circumstances were taken into account to a significant extent. However the impact of the factors referred to above on the head sentence is not so apparent.
In my opinion the criminality of the appellant was high for the reasons stated by his Honour (save for his comments recorded in paragraph [76(g)] which I leave out of account). However, it was less than that of the principal. There were a number of factors favourable to the appellant. Regard must also be had to the comments of Grove J in Ponfield as to the breadth of s 112(1) and to the pattern of sentencing referred to by the sentencing judge.
In my opinion the appropriate sentence is one of 7 years imprisonment with a non parole period of 4 years and 6 months.
Orders
I propose the following orders:
1. Appeal as to conviction dismissed.
2. Leave to appeal on sentence granted.
3. Appeal on sentence upheld.
4. Sentence quashed. In lieu thereof the appellant is sentenced to imprisonment for 7 years commencing on 3 September 2004 and expiring on 2 September 2011 with a non-parole period of 4 years and 6 months commencing on 3 September 2004 and expiring on 2 March 2009.
ROTHMAN J: I agree with Hislop J.

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LAST UPDATED: 30/05/2006