R v Ambrosi

[2004] NSWCCA 23

Reported Decision: 144 A Crim R 67

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Ambrosi [2004] NSWCCA 23
HEARING DATE(S):	16/02/04
JUDGMENT DATE:	26 February 2004
JUDGMENT OF:	Levine J at 1; O'Keefe J at 2; Whealy J at 3
DECISION:	The appellant's appeal against conviction be dismissed; and that leave be granted in relation to his application for leave to appeal against sentence; but that the appeal itself be dismissed.
CATCHWORDS:	Accomplices - when they should give evidence - Accomplices - warning - scope of re-examination - prior consistent statements - lies as consequences of guilt - directions - Henry guideline judgment - parity with co-offender.
LEGISLATION CITED:	Crimes Act NSW Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Evidence Act 1995
CASES CITED:	R v Booth (1982) 2 NSWLR 847 at 849-850 R v Sullivan (2003) NSWCCA 100 at para 95 R v Stewart (2001) 52 NSWLR 301 at 306, 309 (310) and 334 R v Yammine and Chami (2002) NSWCCA 289 R v Esposito (1998) 45 NSWLR 442 at 448-450; 482-483; 485B-486B Edwards v The Queen (1993) 178 CLR 193 at 210-211 R v Dellapratona (1993) 31 NSWLR 123 at 150 R v Henry & Ors (1999) 46 NSWLR 346 R v Zamagias (2002) NSWCCA 17 R v Rutter (2003) NSWCCA 306 Postiglione v The Queen (1996) 189 CLR 295 at 301 The Queen v Lucas [1981] QB 720
PARTIES :	Regina v Gary Esteve Ambrosi
FILE NUMBER(S):	CCA 60358/03
COUNSEL:	Mr D. Howard - Crown Mr G. Farmer - Appellant
SOLICITORS:	DDP - Crown Jeffreys & Associates - Appellant

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/21/0149
LOWER COURT JUDICIAL OFFICER :	Judge Nield

60358/03

LEVINE J
O’KEEFE J
WHEALY J

THURSDAY 26 February 2004

REGINA v Gary Esteve AMBROSI

Judgment

1 LEVINE J: I agree with the orders Whealy J proposes and his reasons therefor.

2 O’KEEFE J: I agree with the orders proposed by Whealy J and with his reasons.

3 WHEALY J: On 10 December 2002 the appellant pleaded not guilty to a charge of assault with intent to rob Thi Hinh Pham while armed with an offensive weapon namely a knife (Crimes Act NSW s 97(1)). The alleged offence occurred on 4 August 2001 at a convenience store situated at the corner of Brennan and Marlborough Streets, Smithfield. The offence carries a maximum penalty of 20 years.

4 The trial proceeded before a jury presided over by his Honour Judge Nield. The trial commenced on 10 December 2002. On 13 December 2002 the jury pronounced a verdict of guilty. The appellant was sentenced on 28 January 2003. His Honour imposed a term of imprisonment of six years and six months with a non-parole period of four years. By an addendum pronounced in chambers on 3 February 2003 the commencement date of the sentence was 6 June 2002. The effect of this was to provide that the non-parole period would expire on 5 June 2006. As will be apparent, his Honour found special circumstances so as to vary the statutory proportion between head sentence and non-parole period.

5 The proceedings before the court comprise an appeal against conviction and an application for leave to appeal against sentence.

6 Before outlining and responding to the submissions I shall state the facts. Between 2 and 3pm on 4 August 2001, Ms Pham and her husband Mr Khanh Lai were working in their shop at Smithfield. Ms Pham was attending to customers and her husband was installing shelves behind the counter. The appellant and a co-offender Joanne Punzo arrived in the vicinity of the shop in a Holden Barina vehicle registered number WHY-504. As it happened, their arrival in the motor vehicle was noticed by a young boy Carl Groch who was nearby in the street with friends. At about 3pm the appellant and Ms Punzo entered the shop. He had a knife hidden inside the right sleeve of his jacket. She had a screwdriver hidden on her person. Ms Punzo was known to Ms Pham as a customer of the shop.

7 Shortly afterwards, the appellant demanded that Ms Pham give him the money in the cash register drawer. He held the knife in his right hand as he attempted, but failed, to take money from the cash register drawer with his left hand. Ms Pham called for help and her husband then confronted the would-be robbers.

8 At this point, the appellant and Ms Punzo ran from the shop and returned to their motor vehicle. As it happened, young Carl Groch took a note of the vehicle number. He was able to give this information to the police shortly afterwards.

9 Later about 5.50pm that day, the Holden motor vehicle number WHY-504 was stopped by police for a random breath test of the driver. The appellant was driving the motor vehicle and Ms Punzo was the passenger. The appellant gave police a false name, giving in fact the name of Ms Punzo’s brother, Flavio. Ms Punzo also stated that the appellant was “Flavio Punzo”. The appellant and Ms Punzo were each arrested. The appellant was cautioned. After waiting some little time for transport, they were eventually taken to Fairfield Police Station. Ms Punzo was searched and the police found a screwdriver and a knife hidden in her clothing. At the police station, Ms Punzo was interviewed first. Initially she denied any involvement in the attempted robbery. She said that the other person in custody was her brother Flavio. Towards the end of the interview, Ms Punzo however told the police that she knew his name and that it was not Flavio. Sometime after that, the record of interview was suspended. Ms Punzo by now had agreed to co-operate. She then went to another area of the police station where she signed a statement, which had been prepared for her by the police.

10 Later at about 12.35am on 5 August 2001, police commenced to interview the appellant. During the course of this interview he gave police an alibi. This was later shown to be false. He had claimed that he had been at the house of a friend Jasmine Schoengen on the afternoon in question. Ms Schoengen was called at trial and gave evidence which demonstrated that the appellant had not been at her house on 4 August. She had in fact not seen the appellant for a couple of weeks before that day.

11 Ms Punzo gave evidence for the Crown at trial. She said she had known the appellant since she was nine or ten years of age. They were both heroin addicts at the time of the offence. She said that the appellant arrived at the Gonzales household at about noon on 4 August 2001. They had decided to “get some money” because they were both withdrawing from heroin. Ms Punzo directed the appellant to the shop at Brennan Street, Smithfield. Her evidence was that she carried the screwdriver into the shop and the appellant had carried a knife. She then described what happened in terms that generally were consistent with the Crown case. She said that when she saw Mr Lai come from behind the counter with a drill in his hand, she called to the appellant in Spanish “Don’t do it”. She said that just before being pulled up by the police on Parramatta Road later in the day, she had gathered up the knife screwdriver and some syringes and put them on her person. She then gave evidence as to what happened at the police station when the weapons and syringes were found.

12 Ms Punzo had been charged with the offence on 5 August 2001. She admitted to police her involvement in the criminal offence and pleaded guilty to the criminal charge at an early stage. She had agreed with the prosecution to give evidence in the Crown’s prosecution of the appellant. She signed an undertaking to give evidence on 29 November 2002. On 5 April 2002 she had been remanded for assessment/rehabilitation (Crimes (Sentencing Procedure) Act 1999 s 11) by Judge Coorey in the District Court. Ultimately on 5 March 2003 she was convicted and sentenced to two years imprisonment commencing 5 March 2003 and expiring 4 March 2005. His Honour ordered however that execution of the sentence be suspended for the term of the sentence and directed that she be released from custody on condition that she enter a good behaviour bond for the term of the sentence.

Grounds of Appeal

13 I shall deal with the grounds of appeal relating to conviction and then consider separately the application for leave to appeal against the severity of the sentence. For convenience, I have taken the liberty of altering the numbering of the Grounds of Appeal to make them coincide with the appellant’s written submissions.

Ground 1

14 This was that his Honour erred in admitting into evidence the testimony of Ms Punzo prior to her being sentenced for her involvement in the offence.

15 In this regard Mr Farmer of counsel, who appeared for the appellant, argued that the calling of Ms Punzo prior to her being sentenced was in breach of a well-known practice enshrined in a series of well-known authorities. In Regina v Booth (1982) 2 NSWLR 847 at 849-850, Street CJ had stated:

“It is well recognised in practice that accomplices should normally be finally dealt with before being called to give evidence in support of the Crown. It will rarely arise in practice that an accomplice who had not been finally dealt with, who perhaps may not have received a pardon or otherwise has had his position finalised, will be called to give evidence.”

16 In my opinion, the fact that this practice was not followed during the trial of the appellant has not resulted in a miscarriage of justice. First, the matter at issue, it needs to be remembered, is a rule of practice and not a rule of law. The course that was taken by Judge Coorey in relation to Ms Punzo explains why she had not been finally sentenced at the time of the appellant’s trial. Moreover, Mr Wasilenia, who appeared for the appellant at trial, was in a very good position to judge whether that fact was to his advantage or not. It seems to me from a fair reading of the cross-examination that Mr Wasilenia was able to put effective cross-examination to Ms Punzo arising out of her uncertain position regarding sentence; and from the fact that she had agreed to support the Crown by giving evidence (see transcript pp 42-43).

17 Secondly, as Buddin J observed in R v Sullivan (2003) NSWCCA 100 at para 95) the statutory landscape has been materially altered by a number of legislative amendments which now empower the Crown to review a sentence which has been reduced because of assistance to the authorities in the event that a witness fails to fulfil an undertaking to give evidence (s 23 Crimes (Sentencing Procedure) Act 1999 and s 5DA(1) of the Criminal Appeal Act 1912). This “changed landscape” does not mean that the practice referred to in Booth (supra) is not a sound one nor one that, generally speaking, should not be followed. The emphasis however, is now more than ever on the form of the directions that the trial judge must give to the jury to make it clear that, even where a witness has been sentenced in circumstances of giving an undertaking to provide evidence, that witness’ situation will not necessarily have been completely finalised (see R v Stewart (2001) 52 NSWLR 301 at 306; 309 (310) and 334; see also R v Yammine and Chami (2002) NSWCCA 289).

18 There are a number of sub-texts to this first argument which have been pressed at the hearing of the appeal. The first is a complaint that the Crown did not fully and adequately reveal during the evidence-in-chief of Ms Punzo the entire situation regarding her undertaking to give evidence. This complaint embraced a submission that the full story had to be “dragged out in cross-examination”. It was argued that this was contrary to the proposition advanced in Sullivan (supra). Secondly, the learned trial judge’s direction to the jury pursuant to s 165 in relation to the evidence of Ms Punzo was said to be deficient in two respects. The first was that his Honour on two occasions unnecessarily told the jury that “the evidence of Ms Punzo may, and I emphasis may, be unreliable”. The second area of concern in relation to the direction was that his Honour did not bring to the jury’s attention other aspects of Ms Punzo’s evidence that may have activated consideration of a warning under s 165. These matters of evidence included her breaching bail conditions, being found guilty of stealing, although deciding not to appeal against that finding (even though claiming she was innocent); and giving a false name and address after being apprehended for drink driving.

19 Counsel submitted that all these matters enlivened the need for this Court to intervene in relation to the first broad point of appeal.

20 Ms Punzo was called as a witness on 10 December 2002. Her evidence-in-chief was given on that day. The transcript reveals the following at page 29 of 10 December 2002 some questions and answers: -

“Q. In August of last year were you associating with Mr Ambrosi?
A. Yes, I was.
Q. Is it fair to say that on 4 August 2001 you were arrested by police on Parramatta Road, Granville?
A. That’s correct.
Q. You were charged that day with assault with intent to rob?
A. That’s correct.
Q. Did your plead guilty or not guilty to that?
A. Guilty.
Q. Are you due to be sentenced sometime early next year?
A. February 28.”

21 Ms Punzo was cross-examined on 10 December 1002 and during part of the day on 11 December 2002. At pages 42 and 44 of the transcript of 10 December 2002 counsel took the witness to the matters relating to her undertaking to give evidence. She agreed that “from the very start” she had admitted her guilt and that she pleaded guilty on the first occasion she went to court. She gave details of the sentencing procedure before Judge Coorey and in particular the fact that she had not yet been finally sentenced. She agreed that she had signed a statement in the nature of an undertaking to give evidence. She also agreed that she had been advised by her lawyers that this would have “considerable bearing on the type of sentence” she could expect to receive. She agreed that she had been told that she could expect to receive a “considerable discount” if she pleaded guilty and secondly, if she gave evidence against a person who had not pleaded guilty.

22 In Sullivan Hodgson JA differed from the majority (Buddin J and Smart AJ) in that his Honour came to the conclusion that, despite deficiencies in the summing-up, the appellant in that matter had not lost a real chance of acquittal and accordingly declined to give leave under rule 4. His Honour’s view was that the appeal against conviction should be dismissed. In relation to the practice of the Crown Prosecutor leading evidence regarding the position of a witness who has undertaken to give evidence, his Honour however said this at para 44: -

“The cases of Gonzales-Betes and Chen suggest that the Crown Prosecutor should lead evidence of the status of a witness who is involved in the offence in question and has received some benefit for giving evidence against the accused; and I do not question this. Furthermore, it is clear that the Crown must disclose to the accused full particulars of this benefit. There is however a question as to how much detail about the benefit the Crown should lead in evidence. In my opinion, the Crown Prosecutor has a considerable area of discretion here, and it is permissible for the Crown Prosecutor to lead this evidence at a level of some generality and leave it to the accused, who has been given the details, to explore those details in cross-examination to the extent and in a way that the accused might choose.”

23 His Honour took the view that, in that particular trial, the lack of detail in the material led in evidence could not of itself vitiate the trial and conviction.

24 I respectfully agree with his Honour’s general views on the subject. In the present trial, the witness, Ms Punzo had not been convicted and had not at that stage either received a discount or any other discernable benefit. What was the prosecutor to do? It seems to me that he fulfilled his role properly by raising the matter in a general way in the manner I have indicated at page 29 of the relevant day’s transcript. As a consequence, Mr Wasilenia was able to cross-examine the witness very effectively in relation to the juxtaposition between the discount she hoped to receive and the fact that she had given an undertaking to give evidence in the trial. For all this Court knows, there may have been an agreement between the prosecutor and Mr Wasilenia that the material should be elicited in the way in which it was; that is to say, in a manner which would be very much to the advantage of the accused and in no sense to his disadvantage. The position in Sullivan was very different where the Crown had taken objection to the questions asked in cross-examination regarding the details of the benefit received by the witness. That was not the case here. I am unable to see anything of consequence in this particular aspect of the submissions made on behalf of the appellant.

25 As to the form of the direction given by the learned trial judge, it is important to point out that it was given between pages 18 and 22 of the transcript of 12 December 2002. It embraces more than four pages of transcript. There is no need for me to set out the direction in detail. It is sufficient to say that it addresses every element properly required in a direction of this kind. It drew the jury’s attention to the fact that it was the court’s experience that there might often be a real issue as to the reliability of evidence given by a person who was himself or herself criminally concerned in the event giving rise to the charge against the accused. His Honour explained why this was so. He made it perfectly plain that the jury were to treat Ms Punzo’s evidence with care and caution before determining whether to accept or reject it. He also drew the jury’s attention to the reasons why the evidence of such a witness might be unreliable. Further, the directions specifically placed emphasis on the fact that Ms Punzo had admitted to police her involvement and had pleaded guilty to the criminal offence when charged with it. His Honour told the jury and I quote: -

“She agreed with the prosecution to give evidence in the Crown in the Crown’s prosecution of the accused. The law says that, if a person pleads guilty to having committed a criminal offence, then that person is entitled to a discount in sentence for that offence, the measure of the discount being a matter for the sentencing judge, having regard to a particular decision of the Court of Criminal Appeal. The law also says that if somebody assists the prosecution, the Crown, in the prosecution of a co-offender or another offender for another offence, that person is entitled to a discount in the sentence to be imposed upon that person for the offence committed by that person. So, Ms Punzo was criminally concerned in the commission of the subject incident. She has pleaded guilty to it. She will be entitled to a discount in sentence which follows a guilty plea. She has agreed with the Crown to give evidence in the prosecution of the accused. She has complied with her agreement in the sense that she has given evidence for the Crown in the prosecution of the accused. She will be entitled to a further discount in her sentence. She has not yet been sentenced. She will be sentenced by a judge of this Court. The judge, whenever he or she comes to sentence Ms Punzo, will give her, as required by law, a discount because of her guilty plea and a further discount because of her assistance to the authorities in the prosecution of the accused.”

26 The learned trial judge went on to repeat the warning he had given and reminded the jury that the accused’s counsel had submitted to them that her evidence was false; and that the jury should not rely upon Ms Punzo’s evidence. His Honour informed the jury that it was necessary for them to decide for themselves, having regard to the warning that he had given them concerning Ms Punzo’s evidence, whether to accept it or not.

27 In my view, the complaint made about the trial judge’s direction is completely without merit. First, to take one sentence only out of a lengthy direction and criticise it in the way in which it has been criticised is simply not a fair reading of the summing-up. Moreover, even the extracted sentence, and the fact that it was repeated twice throughout the lengthy direction, does not reveal any error. What his Honour said was quite correct. But more importantly, in the context of the entire direction, no error has been demonstrated.

28 I should add for completeness that on 13 December 2002 the learned trial judge gave a summary of the directions he gave. And at pages 3 and 4 he repeated to the jury that they should consider the evidence of Ms Punzo with care and caution as her evidence may be unreliable because she was herself a person criminally concerned in the event giving rise to the charge against the accused. Moreover, his Honour repeated separately that the evidence of Ms Punzo should be approached with care and caution because she had given an undertaking to assist the Crown by giving evidence for the Crown on the prosecution of the accused and she would be entitled to receive a discount in her sentence for such assistance. His Honour specifically drew to the jury’s attention that her entitlement for such assistance would be at risk if she failed to honour her undertaking. The written undertaking was, in fact, in evidence before the jury.

29 I do not consider that his Honour was in error in any way in failing to include in the warning pursuant to s 165 the matters which I have listed earlier. Those matters, it will be recalled, were the fact that she had breached bail conditions, had been found guilty of stealing and had given a false name and address on one occasion after being apprehended for drink driving. All these matters were elicited by counsel in an effective manner during cross-examination (see T 33-38 of 11 December 2002). Further, counsel for the accused at trial made very forceful submissions about Ms Punzo in relation to these very matters (see T 26 and 27 of 12 December 2002). The trial judge mentioned some of these matters when summarizing the submissions of counsel (p 43 of transcript 12 December 2002). The short answer to the appellant’s complaints about this aspect of the matter is that no warning was sought in relation to reliability based on these particular matters. In any event, there could not be the slightest doubt that those matters were plainly before the jury in the context of the general assessment of Ms Punzo’s creditability and reliability. The trial was a short one and, as I say, there could not be the slightest doubt that the jury were appropriately and adequately admonished to approach Ms Punzo’s evidence with care and with caution.

30 For these reasons I am not satisfied that the first ground of appeal and its attendant complaints have been established.

Ground 2

31 Ground 2 is that his Honour erred in admitting into evidence certain questions and answers in Ms Punzo’s record of interview especially in circumstances where that was done in re-examination. A fundamental issue which arose during the trial was whether Ms Punzo was telling the truth when she had said in her evidence-in-chief that the person she was with during the enterprise to rob the shop was in fact the appellant. The tack taken by the cross-examiner commenced with the proposition that, when the car was pulled up by the police on Parramatta Road, Ms Punzo had said the driver of the car was her brother Flavio. She was then cross-examined about the answers she had given during her record of interview. In fact, she was cross-examined in considerable detail about these answers. The manner in which the questions were framed in cross-examination clearly left an impression that the witness “right throughout the statement” described the person with her as “Flavio”. Moreover, the witness had made a statement to the police in written form immediately after the conclusion of the record of interview. It was put to her that, right throughout this statement, when describing the person who robbed the shop, she described him as “Flavio”. The witness agreed that that was so (T 11 December 2002 page 30 lines 15-20). Counsel then put to the witness directly that the reason that she had constantly and continuously referred to Flavio was because the person she had been with throughout the 4 August 2001 was not in fact the accused. Counsel put the matter directly as follows: -

“Q. I put to you that Gary Ambrosi was not the person who was with you when the shop was attempted to be robbed on 4 August 2001? Isn’t that correct?
A. That’s not correct.” (T 11 December 2002 page 32)

32 The witness had endeavoured to point out during her cross-examination that she had in fact told the police during the record of interview at some point that the person she had been with was not Flavio, her brother. The cross-examiner however, had persisted in questions which asserted that she had throughout the interview referred to the co-offender as Flavio. It may be helpful if I set out the relevant cross-examination at pages 40 and 41 of the transcript of 10 December 2002: -

“Q. When the police interviewed you about who he was you kept saying that his name was Flavio?
A. During my interview I said he had many names, I didn’t know which one to call him by, but by that point I knew that we had been – that’s it there was no more for us.
Q. So when you said he had many names, including Flavio, that was a lie wasn’t it?
A. That’s right.
Q. Because no one calls him Flavio, his name is Gary?
A. That’s right. The reason I lied when we were pulled over because I thought if I have kept all the tools and everything on us so police wouldn’t see them and he gave my brother’s name so they’d think he had a licence we would be on our way and everything would be okay but it didn’t turn out that way and that’s when I changed my story during my electronically recorded interview.
Q. Throughout the electronic interview that you had with the police you kept calling him Flavio didn’t you?
A. At the beginning I said his name was Flavio, Gus, Gary, I knew him by many names and then towards the end of the interview I said I knew his name and that, I might as well tell you his name isn’t Flavio.”

33 And later the following appeared: -

“Q. I put to you that you continued to call him Flavio right throughout the interview, isn’t that right?
A. When I was asked about him after I told them that he had all these different names and that I was to use one of them, what was I going to call him, it? I wasn’t going to go through the five names that I knew him by.
Q. So not at any stage when you were being interviewed by the police did you refer to him by his true name?
A. Yes, I did, it’s in the statement and it’s on the tape that I knew him by many names and one of them was Gary.
Q. Yes, but throughout the record of interview that was electronically recorded the name you used was Flavio, wasn’t it?
A. Yes, at the beginning.
Q. Right throughout I put to you?
A. Not until when he asked – when I said “He’s got more than one name that I know him by”. When I said that that’s when they asked me who he was, I said “I don’t know his real name, I know him by Gary, Gus or Flavio”. I might have said some other names I’m not sure. All I know is that when they asked me about me I admitted to what I had done. I was saying the truth.”

34 The Crown Prosecutor re-examined Ms Punzo on 11 December 2002. First, she explained why she had told the police officer on Parramatta Road that the driver’s name was “Flavio Punzo”. She said she was trying to protect the driver because he had no licence. Her brother, Flavio Punzo, did have a driver licence. Next she was taken to the police statement and she agreed that in it the name “Flavio” appeared within the paragraphs of the statement as the name attributed to the person she had been with during the robbery on 4 August 2001. She was then asked about the electronically recorded interview. The Crown then indicated that, in re-examination, he wished to play a portion of the tape to Ms Punzo and then ask her to confirm whether it was she who had said the relevant words played on the tape. The particular portions of the ERISP were questions included among 57 through to 65. It became apparent that there was likely to be a dispute over this issue and argument then took place in the absence of the jury. The transcript indicates that the objection was developed by the Crown Prosecutor but clearly this is an error. It is plain that the passage is properly attributable to Mr Wasilenia. He said: -

“Your Honour there are two basis for my objection. The first is an absolute bar, and the other one is discretionary … when I was asking questions of the witness I identified in respect of the ERISP I identified each question and answer and I did not ask her any questions in this block of questions about 57 right up until I think 60, nor did I ask her any questions contained in the premises in 63, 64 or 65 and there are two features of that. The first is that in the context of re-examination its an illegitimate exercise to re-introduce this material bearing in mind what my cross-examination was, but it goes even further than that in terms of the absolute bar.”

35 Mr Wasilenia then argued that the material sought to be utilised in re-examination did not in fact arise. Secondly he argued that the particular material would be unfair and that its probative value was outweighed by its prejudicial effect. The Crown Prosecutor broadly justified the proposed re-examination by suggesting that the particular questions read as a whole made it plain that the witness was not at that part of the record of interview describing the other person as Flavio but rather as “the other guy that’s in custody”. In this way, the evidence would make it plain that she did not throughout the record of interview “continuously” refer to her co-offender as Flavio. The second basis on which the material was pressed was as an exception to the credibility rule in terms of s 108(3)(b) of the Evidence Act.

36 At p 46 of the transcript of 11 December 2002 his Honour allowed the evidence although he suggested that it be done by reading the questions and answers to questions 57, 59, 61 and 65 and asking the witness whether those were the answers she gave. As it happened shortly after his Honour had given his ruling, he received a question from the jury. The question was “Is it possible for the jury to see the electronically recorded transcript of the Joanna Punzo?” His Honour told the jury that the answer to that question was “No”; but indicated that he had allowed the Crown Prosecutor to put directly to Ms Punzo four questions and answers from her electronically recorded interview.

37 I shall set each of the questions that were then read to the witness which she agreed she had answered.

“Q. 57 Alright, I want to talk to you about an allegation of attempted robbery at a shop at Brennan Street, Smithfield that is supposed to have occurred about 3pm yesterday 4 August which was Saturday. It is now Sunday?
Q. 59 What can you tell me about that?
A. Myself and the other guy that’s in custody went for a walk into the shop and I was behind him. He leaned over, he pulled a knife out. The husband of the lady was actually drilling some shelves, cigarette shelves or something like that and he turned around and he put the screwdriver in his face, in the other guy’s face, the one that’s in custody and I had a screwdriver in my hand and that’s it.
Q. 61 When you say the other guy in custody are you talking about the guy you have referred to as Flavio?
A. Flavio, yeah.
Q. 65 If I showed you this knife here, the one that looks like its got some rag or something around the handle – is that the knife Flavio had in his hand at shop?
A. That’s right, yes”.

38 Finally the Crown Prosector asked Ms Punzo in re-examination: -

“Can I just ask you finally who was the other guy that’s in custody?
A. Gary Ambrosi”.

39 Mr Farmer’s submission is that this evidence was not admissible as a consequence of ss 65 and 66(3) of the Evidence Act 1995: (R v Esposito (1998) 45 NSWLR 442 at 448-450; 482-483; 485B-486B). Further it was submitted that the admission of the evidence was unfairly prejudicial to the appellant. Its only effect was, improperly, to add some weight to the evidence of Ms Punzo by revealing that she had previously made representations to the police about the involvement of the appellant.

40 In my opinion, the evidence was rightly admitted. The thrust of the cross-examination was to attack the witness regarding the truthfulness of the evidence she gave in court, namely that it was the accused who had been with her when the offence was committed. The cross-examiner was able to point to the fact, quite correctly, that in her written statement to the police she had continuously referred to the other person as “Flavio”. This enabled Mr Wasilenia during his submissions to make powerful arguments in support of his assertion that Ms Punzo was not to be believed (see T 12 December 2002 at p 30). Part of his cross-examination however, had dwelt upon the record of interview and the same suggestion had been made in general terms. The witness did not agree but asserted that she had, during her recorded interview, referred to the person who had been with her during the robbery in another way. The situation which developed plainly enlivened s 108(3)(b) of the Evidence Act. The section is in the following terms: -

“ 108 Exception: re-establishing credibility

(1) The credibility rule does not apply to evidence adduced in re-examination of a witness
(2) (Repealed)
(3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if:
(a) evidence of a prior inconsistent statement of the witness has been admitted, or
(b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion,
and the court gives leave to adduce the evidence of the prior consistent statement.”

41 Although his Honour might have expressed himself in his reasons more clearly, there is little doubt that he had in mind s 192 of the Evidence Act; and that he gave leave principally on the basis that there was no unfairness to the accused if the Crown were able to proceed in the way it did. In general terms, the evidence permitted to be adduced did not travel beyond the evidence already given by the witness in chief. It did however, contain an important component, namely a statement consistent with her assertion that she had during the record of interview not “always” referred to the person with her by the name “Flavio”. This had occurred at questions 51 and 52 (see T 11 December 2002 at pp 23-24) but there was additional consistent material in questions 57, 59, 61 and 65. The reference to the other person as “the other guy that’s in custody” was an important prior consistent statement. It was appropriate that it be admitted in circumstances where there was a plain attack on the veracity of the evidence given by the witness in chief as to the identity of her co-offender. This was especially so when that attack, in effect, accused the witness of fabricating the evidence given that it was the appellant who had been with her on the relevant day. For all these reasons, I consider that ground 2 has not been made out.

42 The situation in Esposito (supra) focussed upon a different situation. The statement that was sought to be led was not led in re-examination of the witness who made the statement but was sought to be led through the police officer to whom the statement was made. This created significant hearsay problems that led to the ruling that it was inadmissible. For all these reasons, I consider that ground 2 has not been made out.

Ground 3

43 The next error relied upon by the appellant relates to the admission of the appellant’s ERISP. Senior Constable Villiotis was called on 11 December 2002. Amongst other material tendered through the police officer was the electronically recorded interview with the accused conducted in the early hours of 5 August 2001. At p 56 of the transcript of 11 December 2002, the videotape was tendered and admitted without objection as Exhibit “G1”. A transcript of the video was tendered and admitted without objection as Exhibit “G2”. The tape was played before the jury immediately after its tender. The tape was an edited version of the original interview.

44 The simple proposition advanced in support of the argument that the ERISP was improperly admitted was that the detention of the appellant exceeded the maximum investigation period prescribed by s 355D of the Crimes Act 1900. It was argued that the appellant should have been released or brought before a magistrate prior to the expiration of the four hour period (s 355C Crimes Act). The argument in support of the proposition is that the time of arrest may be inferred to have been at 8.50pm on 4 August 2001. It was not until 12.35am however that the record of interview with the appellant commenced. Although there was no record of the time that the interview concluded it is appropriate to infer, given its length, that it may have concluded after 12.50am.

45 The first hurdle the appellant faces is that no objection was made to the tender of the record of interview either in its primary or secondary form. Since the point was not taken at trial rule 4 applies. Secondly, the matter travels beyond a mere failure to take an objection. It is appropriate to infer that a decision was taken by experienced counsel that there would be little point in attempting to keep out the record of interview. It is equally appropriate to infer that counsel regarded it as the better tactic to try and sweep the resultant damage, as it were, under the carpet. This can been seen from the submissions made to the jury in trial counsel’s final address (T 12 December 2002 pp 30-32).

46 But in any event the evidence does not support the appellant’s submissions as to the time frame involved. It is true that the motor vehicle was stopped at 8.50pm for the purposes of a random breath test. Some little time after this – and it is by no means clear precisely when it was - the appellant was advised that the car had in fact been used for an offence earlier that day. Both the appellant and Ms Punzo were then cautioned; and “shortly after”, some other vehicles came to assist in taking them back to Fairfield Police Station. The random breath test had been conducted on Parramatta Road at Granville and the ERISP was conducted at Fairfield Police Station. There clearly would have been a period of travel time involved (see Crimes Act s 356F(1)(a)). The transcript of the record of interview (Exhibit “G2”) shows that the interview was a relatively short one. The transcript is only nineteen pages including all formal matters. It is of course possible that the interview may have travelled beyond the four-hour period but it is by not means clear that it did so. In circumstances where the evidence was admitted without objection I do not consider that leave to rely upon this ground should be given.

Ground 4

47 The next ground of appeal is tied in with the matter I have just discussed. One significant feature of the record of interview was that the appellant had been invited (at p 13 of the ERISP transcript) to state what it was he was doing at about 3o’clock on Saturday 4 August 2001. He said that he had been with a girlfriend whose name was Jasmine Schoengen. He wasn’t sure where she lived but he said it was in City Road in Surry Hills or Chippendale. He was there, he said, from about lunchtime until about dinnertime and didn’t leave the house. Ms Schoengen was called in the Crown case. She agreed that she had known the appellant for about nine years and that she lived at Unit 3, 76 City Road, Chippendale at the relevant time. A police officer had come to see her and she said that on the day before the policeman’s visit, she did not see the appellant at any time during that day; and had in fact not seen him since a couple of weeks earlier than that. The police evidence demonstrated that the police officer called on Ms Schoengen on 5 August 2001. This meant that the appellant had been caught out telling a significant lie.

48 At the trial, although the appellant did not give evidence, he relied upon evidence of a different alibi. This was given by a Mr Washington Olivera. He gave evidence that he had met the appellant at Fairfield Markets on one afternoon between two and four in that afternoon. It was a Saturday and prior to Uruguayan Independence Day on 25 August. The overall impact of the witness’ evidence however was that he was quite uncertain about the day he had met the appellant at Fairfield Markets.

49 The submission made by Mr Farmer on behalf of the appellant is that the learned trial judge misdirected the jury in relation to the “lie” concerning his whereabouts on the day of the attempted robbery. It was submitted that the way in which the matter was left with the jury was tantamount to inviting them to convict if they were satisfied that the lie had been told. There was neither explanation of the concept of “consciousness of guilt” nor any proper explanation as to the use to which such a finding could be put. It was submitted that, in all the circumstances, the direction was inadequate and unfair to the appellant and resulted in a miscarriage of justice.

50 Before coming to the form of the direction given by the learned trial judge in relation to the issue of lies, it is significant to note that his Honour, between pages 38 and 43, attempted to summarise in a general way the Crown case against the appellant. His Honour at page 38 had told the jury that the description of the man involved in the robbery given by the various witnesses would not justify a finding of guilt against the appellant. A case based on description alone, he said, would be insufficient. His Honour then introduced the topic of the general Crown case by saying that the Crown in fact relied upon “two different cases”. The Crown he said did not rely, except partially, on identification. The Crown relied upon a circumstantial evidence case and a positive evidence case.

51 In the context of those statements his Honour described, correctly, the nature of a circumstantial evidence case. For example, he informed the jury that for the accused to be found guilty on the basis of circumstantial evidence, the jury must be satisfied beyond reasonable doubt that the conclusion drawn from the circumstantial evidence was not only reasonable and rational but was the only reasonable and rational conclusion to make. His Honour gave illustrations to fortify this point. If there were any other reasonable and rational conclusion that could be drawn from the facts not consistent with guilt, his Honour directed the jury that a conclusion of guilt could not be drawn.

52 Secondly, his Honour told the jury that they had to consider all the evidentiary material in this regard. His Honour then identified the Crown’s case in relation to circumstantial evidence. It included the fact that some six hours after the attempted robbery the appellant was in the car used in the attempted robbery. He was in the company of a woman who had been, by her own admission, involved in the attempted robbery. She had in her possession, indeed, in her clothing, the knife and the screwdriver used in the attempted robbery. The appellant matched, in a general way, the description of the man involved in the attempted robbery: and finally, his Honour drew the jury’s attention to the fact that it was open to them to accept that the appellant had given a false alibi when interviewed by the police.

53 In describing this circumstantial case his Honour expressly said that he put to one side Ms Punzo’s identification of the accused as being her co-offender. This evidence, that of Ms Punzo, was described by his Honour as the Crown’s positive case. His Honour then went on to examine her evidence in the light of submissions made both by the Crown and trial counsel for the appellant.

54 His Honour then returned to the issue the Crown had described in its submissions as the “false alibi” given by the accused. His Honour said the Crown “relied upon the accused giving a false alibi to police when he was interviewed as an awareness or consciousness of his guilt, attempting to exculpate himself from any involvement in the crime”. His Honour then recited the statement by the appellant in the record of interview as to his being with Ms Schoengen and as to what he did with her on that day. His Honour then detailed the evidence of Ms Schoengen which made it plain the appellant had not been with her at the relevant time at all. The summing-up continues at page 48: -

“And the Crown submits to you that, if you accept that it was a deliberate lie, then you might conclude that it was a deliberate lie given with the awareness of consciousness of guilt, seeking to exculpate from involvement in the crime.
As learned counsel for the accused said to you, members of the jury, people do not always act rationally when answering questions particularly from a police person and particularly in a police station. People may do things without thinking. They may do things without much care or concern for the answer. There may be may reasons why a person may do that. It may be, as learned counsel for the accused commented, a panic or fear or a desire to protect someone or a lack of understanding of the question or inability to articulate a response to the question or sleeplessness or drunkenness or many other reasons that I am sure each of you think of reasons why somebody may act other than rationally in any particular circumstance.
Member of the jury, the evidence does not disclose the accused’s reasons for his having told police what he did. And you must not speculate about the accused’s reasons for having told police what he did. Indeed members of the jury, you must not speculate about anything. As judges of the facts, you are not here to speculate, you are here to make decisions based upon the evidentiary material. And, members of the jury, the evidentiary material does not explain why the accused told police what he told police.
Now the learned Crown Prosecutor submits to you that that alibi, as it is called, and I will come to that in a moment was false and that it was deliberately and consciously given with an awareness or consciousness of guilt in order to exculpate from involvement in the crime. If you are satisfied members of the jury that the accused told police what is recorded on the videotape, and you have the transcript, there is not any doubt that he did, and if you are satisfied beyond reasonable doubt that what he said was a lie and, members of the jury, the learned Crown Prosecutor says that the only conclusion to be drawn is that it was a lie, and a deliberate one, then you may if you wish, and only you can decide whether you want to, draw a conclusion that the accused’s alibi to police at that time was given with an awareness or consciousness of guilt seeking to exculpate himself from involvement in the crime.”

55 On the next day his Honour made a brief summary of the directions he had given the previous day. This included a summary of the direction regarding the so-called false alibi. At page 4 he said: -

“17. The Crown has presented its case in two different ways, albeit that they overlap. Firstly, a circumstantial evidence case, and secondly, a positive evidence case. Insofar as the circumstantial evidence case is concerned, the Crown has submitted to you that at about six hours after the incident at about 9 o’clock when he was arrested by police, he was in the car used in the robbery in the company of a woman herself involved in the robbery. The woman had the knife and screwdriver used in the robbery hidden inside her clothing. He matches, in a general way, the description of the man involved in the robbery or the attempted robbery I should say. And finally, he gave a false alibi to police when interviewed by police concerning his whereabouts at 3 o’clock that afternoon, or the preceding afternoon, as it was. The positive evidence case is the evidence of Ms Punzo identifying the accused as being her co-offender.”

56 And at page 6 his Honour said: -

“20. As to the alibi given by the accused to police when he was interviewed, the evidence does not disclose any reason for the accused giving that alibi, and in the absence of evidence you must not speculate as to the accused’s reason for giving that alibi. If in view of the evidence of Ms Schoengen you find that the alibi was false, you are entitled as the judges of the facts to find that the accused gave the alibi with an awareness or consciousness of guilt in the hope of exculpating himself from the offence.”

57 The appellant has submitted, as I earlier indicated, that the direction given about the “lie” in the “false alibi” was deficient. The specific deficiency, it is alleged, is that the direction did not inform the jury that they could use such a finding as corroboration of other Crown evidence. The way in which it was left to the jury, it was submitted, was tantamount to inviting the jury to convict if they were satisfied that the lie had been told. There was neither explanation of the concept of “consciousness of guilt” nor any proper explanation as to the use to which such a finding could be put.

58 There is little doubt, I think, that the direction could have been better expressed. The requirements as to a direction in relation to lies constituting evidence of consciousness of guilt are effectively explained in the decision of the High Court in Edwards v The Queen (1993) 178 CLR 193 at 210-211. The requirements may be summarised as follows.

59 It is necessary for the trial judge, in a situation where a lie is relied upon to prove guilt, to identify precisely the lie as well as the circumstances and events that are said to constitute an admission against interest. And the jury should be instructed that they may take the lie 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 that the truth of the matter about which he had lied would implicate him in the offence or, as was said in The Queen v Lucas [1981] QB 720, because of “a realisation of guilt and a fear of the truth”.

60 Moreover, the jury need to be instructed that there may be reasons for the telling of a lie apart from the realisation of guilt. The jury should be told that if they accept that a reason of that kind (for example, panic, to escape an unjust accusation, or to protect some other person or to avoid a consequence extraneous to the offence) is the explanation for the lie, they cannot regard it as an admission. Additionally, the jury needed to be instructed to consider carefully whether the lie is a deliberate one or not.

61 Where the telling of a lie by the accused is relied upon, not merely to strengthen the prosecution case, but as corroboration of some other evidence, the untruthfulness of the relevant statement must be established otherwise than through the evidence of the witness whose evidence is to be corroborated.

62 In The Queen v Dellapratona (1993) 31 NSWLR 123 at 150, this Court (comprising of Hunt CJ at CL, Abadee J and James J) stated: -

“This Court has emphasised that the directions required for lies as formulated in R v Lucas are not to be regarded as indispensable in every case: R v Preval (1984) 3 NSWLR 467 at 650-651. Provided that those directions are interpreted the way they were interpreted by this Court in R v Heyde (1990) 20 NSWLR 234 at 244 (with the exception of the temporary C hamberlain aberration) they are indisputably sufficient as directions of law, to be applied by the judge – as any directions of law must be – to the facts of the particular case. A direction of law which would be sufficient is that, before a lie by the accused can amount to corroboration of particular evidence in the Crown case, the jury must be satisfied that it was a deliberate lie, that it related to an issue in that evidence which is material to the offence charged and that it was told by the accused because he feared that he would be found guilty if he told the truth, or because he was unable to give an innocent explanation or account of his conduct as identified in that evidence.”

63 In the present instance, although his Honour made it clear that it was a matter for the jury, there could be no doubt whatsoever that the statement made by the appellant as to his whereabouts on the afternoon of the attempted robbery was a lie. Moreover, the jury would have had little difficulty in concluding that it was a deliberate lie. It was equally plainly the situation that it was material to the offence charged. This was so because it related to the appellant’s whereabouts at the very time of the robbery in circumstances where he had been directly implicated by his co-offender Ms Punzo. Nevertheless, his Honour included in the direction the considerations necessary for a proper direction, namely that the jury were entitled to consider whether the statement made in the ERISP was one made irrationally or for reasons that did not reveal a consciousness of guilt.

64 The direction, in the passage which I have set out above, was, when considered alone, defective in that it ought to have included a statement that if the jury thought there was a reasonable possibility that the lie was told for one of the reasons identified by his Honour, such as irrationality, panic, sleepiness, drunkenness etc, then it could not be used for the purpose of showing that what was in the mind of the appellant was guilt of the offence charged. It needs to be recalled however, that his Honour had made it clear at the earlier part of his summing-up that the false alibi was part of the circumstantial case and his Honour had given very clear directions as to the way in which circumstantial evidence might and might not be used against the appellant.

65 The other possible deficiency in the direction is that it did not, in terms, tell the jury how they might use the evidence if they concluded that it was a deliberate lie made with an awareness of consciousness of guilt and seeking to exculpate the appellant from involvement in the crime.

66 Again, in my opinion, his Honour had made it clear in the earlier part of the directions he had given that the jury might use this evidence as part of the circumstantial evidence case against the accused. I do not think that there is any substance in the suggestion that the jury were left with the impression that if they found the lie had been told and told deliberately in consciousness of guilt that they then might, and for that reason alone, convict the appellant.

67 I have come to the conclusion that there is no substance in this ground of appeal. Standing on its own, the direction I have detailed does have two arguable deficiencies in it but these I consider were remedied by the summing-up when read as a whole. Moreover, there was no re-direction sought by trial counsel nor was any complaint made regarding the form of the direction. Leave is necessary to take the point. I am satisfied however there was no miscarriage of justice. I shall return to this aspect of the matter at the conclusion of a consideration of all the grounds of appeal in the conviction appeal.

68 A subsidiary submission was made regarding a further possible lie mentioned in the summing-up at pages 10 and 11. This was on the second day of the summing-up. His Honour had dealt with the identity of the motor vehicle involved in the attempted robbery. He then said: -

“Concerning ownership of that vehicle, you know that the accused was asked about ownership of the vehicle and he denied being the owner of it, and that is his answer to question 36 in the record of interview. You have the evidence of Sergeant Villiotis that a week later he returned to the police station saying that he was the owner of the vehicle and wanted it back. Both cannot be right, both can be wrong, but both cannot be right. You might ask yourselves which one is a lie. Perhaps you do not need to decide which one is a lie, because one has to be, you cannot not be the owner but be the owner. You might think, members of the jury, that somebody who lies about one thing, which ever it is, might lie about other things.”

69 His Honour then went on to remind the jury of the statement by the appellant in the record of interview when he told the police that he picked the car up from the El Cortez Hotel at about 8pm that evening.

70 Mr Farmer complained that his Honour did not distinguish this type of “lying” from the type exposed by the false alibi. He was critical of his Honour’s remark that if someone lies about one thing they may lie about other things. He was particularly critical that his Honour, by contrast did not use such an expression to describe the evidence of Ms Punzo.

71 It needs again to be clearly stated that no complaint was made at trial to any aspect of the passage that I have quoted. Nor was any direction sought by counsel suggesting that a similar comment should be made about the evidence of Ms Punzo.

72 But in any event, a number of things may be said about this submission. First, the learned trial judge had given very detailed directions about the false alibi and whether the jury might use the lie, if they found it was a lie, as evidence of consciousness of guilt. I have set that out earlier in these reasons. His Honour’s remark about the second lie occurred a day later in the context of his reviewing remarks made by the appellant in the record of interview in relation to the topic of the identity of the car and car ownership. I do not consider that there is any likelihood whatsoever that the jury were likely to confuse one lie with the other or to overlook what his Honour had said about the false alibi. Secondly, trial counsel had made a substantial attack upon the credit of Ms Punzo and told the jury they should disbelieve her because she was a liar, amongst other things. His Honour drew the jury’s attention to the conflicting submissions of the Crown and the accused in relation to Ms Punzo’s credit. In describing both the Crown and accused’s view of Ms Punzo he referred to the lies she had told to the police as to the identity of the person arrested with her; and to her lies subsequent to her arrest. He referred to the fact that she had been dealt with by a court for stealing and pawning stolen property. He said the Crown “notwithstanding if I may use this expression, the black marks against her, said you should accept her evidence” (T 12 December 2002 page 44).

73 The trial judge then recited the submissions of counsel for the appellant. This included the submission that she was a drug user; that she had used drugs the day before the incident; that she had lied to police about the identity of the person who was with her when stopped by police and other matters including the fact that she had stolen from the person where she was staying and had pawned the stolen goods. He repeated counsel’s submission, after the rhetorical question “How can you accept her evidence? How can you believe her?”

74 I agree that his Honour’s comment that the jury might think if someone lies about one thing they might lie about other things was not a particularly helpful comment. It did not lead anywhere but I am satisfied that the jury would not have made improper use of it. It was, in effect, a comment on the fact that such a lie, if it were found to be have been told, might affect the credibility of the witness. But I do not consider that it went any further. Nor do I think his Honour needed to repeat the same remark about Ms Punzo especially when the forceful submissions of trial counsel and the concessions made by the Crown that she had lied were plainly before the jury and were mentioned during the summing-up in the context to which I have made reference.

75 The final matter of criticism rises from his Honour’s categorisation of the Crown case as being both a direct evidence case and a circumstantial evidence case. The thrust of the submission in relation to this final matter is counsel’s argument that once his Honour had dispelled the notion that the jury could convict the appellant on the identification evidence of the various witnesses there no longer remained a circumstantial case. The Crown case could then only be categorised as a direct evidence case depending entirely on Ms Punzo.

76 I do not agree with this submission. His Honour made it clear to the jury that the circumstantial evidence remaining in the Crown case was the fact that the appellant and Ms Punzo were travelling in the robbery car a relatively short number of hours later on that day; the fact that the licence plate was taken down by one of the witnesses near the Smithfield shop; and that Ms Punzo, an identified perpetrator, was carrying the screwdriver and knife on her person. In addition, there was the false alibi and the fact that the descriptions given in the Crown case in a general way were supportive of the Crown case that the appellant was the robber. These matters taken together were of some substance in the Crown case and I consider that his Honour was right in putting the case in the manner that he did.

77 Mr Farmer submitted that, in effect, the jury were told that they could convict even if they did not accept Ms Punzo’s evidence. This comment, with respect, is to distort the lengthy directions his Honour gave in relation to the circumstantial case. To simply direct the jury that, if they were not satisfied with Ms Punzo’s account beyond reasonable doubt, they should acquit the appellant would have been quite unfair to the Crown. I see nothing unfair to the appellant in the manner in which his Honour left the Crown case to the jury. His Honour dealt with the appellant’s second alibi at pages 50-51 and made it clear that the onus lay upon the Crown to convince the jury to reject the alibi and to do so only if they were satisfied that they were entitled to reject the alibi beyond reasonable doubt. His Honour stressed, in relation to this matter, that no onus whatsoever lay upon the accused.

78 Looking back on the various grounds of complaint, it is apparent that with one exception, that relating to the re-examination of Ms Punzo in relation to her own record of interview, none of these points were taken by trial counsel. Directions that have been complained of were not the subject of any complaint at trial. Nor was there any request that additional directions or corrected directions be given. The trial was a short one and the accused was represented by very experienced trial counsel. A reading of the transcript demonstrates, in my view, that trial counsel conducted the trial the way he wanted to. In respect of a number of the matters complained of, leave is necessary from this Court. But in relation to the trial overall, and to each of those specific matters, I am positively satisfied that there has been no miscarriage of justice. The Crown case was a very strong one. The trial judge remarked on sentence that the jury’s verdict did not surprise him as the Crown case was “strong, if not overwhelming”. That is also the impression I received from a careful reading of the entire trial transcript.

Submissions on Sentence

79 The learned trial judge remarked that the appellant had been found guilty by a jury of assaulting the complainant, intending to rob her of her money, while he was armed with a knife. He said that this was a very serious offence. It was an offence contrary to s 97(1) of the Crimes Act which carried with it imprisonment for a maximum of 20 years. His Honour rightly observed that this was an indication of the seriousness with which Parliament regards the offence. His Honour then continued: -

“Although not the offence of armed robbery, the offence is analogous with armed robbery. The Court of Criminal Appeal guideline judgment in Henry is applicable by analogy. The offence was committed by the offender in the company of a co-offender. The offence was planned, albeit poorly and naively. However, both offenders were armed, although the complainant saw only the knife held by the offender. Fortunately, no one was injured and nothing was stolen.”

80 His Honour considered the respective positions of Ms Punzo and the appellant in the offence. He said that he did not think, realistically, there was anything between the appellant and Ms Punzo. He said: -

“Notwithstanding that she had identified the shop, I do not doubt that the offender had supplied the motor vehicle, the knife and the screwdriver.”

81 His Honour gave careful consideration to the aggravating features in the offence and to the appellant’s subjective circumstances. He came to the conclusion that an appropriate sentence was imprisonment for six years and six months. However, as I said at the outset, his Honour found special circumstances and the non-parole period of four years was backdated to 6 June 2002 expiring on 5 June 2006.

82 The principal matter argued arises from an alleged disparity arising from the manner in which Ms Punzo was treated by Judge Coorey in the District Court on 5 March 2003. Mr Farmer argued that the present appellant could hold a justifiable sense of grievance that he received a heavy sentence and Ms Punzo, by contrast, was treated most leniently.

83 There was also a subsidiary submission that his Honour had misapplied the guideline judgment of R v Henry & Ors (1999) 46 NSWLR 346 in failing to take into account that this matter was “an attempt”.

84 It is convenient to dispose of the subsidiary argument first. I do not consider that his Honour overlooked this matter as he made specific reference to it. Secondly, I agree with the Crown’s submission that his Honour was entitled to regard the offence as analogous to that dealt with in Henry (supra), it is being an offence created by s 97(1) of the Crimes Act. The offence carried the same maximum penalty as the section had prescribed for armed robbery. The guideline promulgated by this Court is, in my view equally applicable to offences of the kind involved in the present indictment. In my opinion, it was entirely appropriate for his Honour to have regard to and apply the Henry guideline, so long as his Honour appreciated the difference in the nature of the offence charged when contrasted with armed robbery. His Honour took that matter into account but I infer, in all the circumstances, the difference made little outcome to the sentencing exercise. In that respect, I agree with the learned trial judge.

85 The principal point however relates to the alleged disparity between the manner in which Ms Punzo was dealt with and the sentence received by the appellant. It may be said at once that there are significant differences between the position of the appellant and that of Ms Punzo. She had in fact received a two year period of imprisonment that was suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999. As Howie J recognised in R v Zamagias (2002) NSWCCA 17, this, in the hierarchy of sentencing alternatives, is considered more severe than a community service order, even though on its face it may appear to be less punitive. The same may be said of the sentence when contrasted with a simple good behaviour bond.

86 Although the sentencing judge did not think that realistically there was anything between the offender and Ms Punzo in terms of criminality, his Honour made a finding that it was the appellant who provided the car, the screwdriver and the knife. Further, Ms Punzo gave evidence that she had said to the appellant in Spanish “Don’t do it” when she saw one of the occupants at the shop produce an electrical drill. This matter found emphasis before Judge Coorey when he was sentencing Ms Punzo.

87 At a broader level the difference is even more marked. Ms Punzo had pleaded guilty at the earliest possible opportunity. Judge Coorey found that she was contrite; she gave substantial evidence against the appellant by way of assistance to the authorities and, according to Judge Coorey, at some level of personal risk; she had been involved with drugs since the age of 13 and his Honour accepted that the factors identified by Wood CJ at CL in Henry (supra) (regarding circumstances in which a drug habit may be regarded as a mitigating factor) were present in her case; she had only one prior conviction for which she had received a s 9 bond; she had favourable psychological assessments and had made outstanding rehabilitative progress in relation to her drug addiction. In relation to his Honour’s view of Ms Punzo overall, Judge Coorey found that exceptional circumstances had been made out. It seems, unusually, that this matter was conceded by the Crown during the sentencing hearing relating to Ms Punzo.

88 By way of contrast, the appellant had pleaded not guilty throughout and was found guilty by the jury. The trial judge found that there was no contrition on the part of the appellant; there were circumstances of aggravation in that the appellant had offended at a time he was subject to a bond relating to a suspended sentence as well as to two separate bail undertakings; he had an extensive criminal record having been dealt with for some 24 prior matters, although admittedly these were not of the same seriousness as the offence for which he came to be sentenced. The sentencing judge rightly concluded that both personal and general deterrence were significant aspects of the sentencing exercise in the appellant’s case.

89 Further, it is correct to acknowledge that, in a number of respects, the appellant’s circumstances required a sentence more extensive than the range identified in Henry (supra). The guideline judgment posited a narrow range of sentencing in certain assumed circumstances. The circumstances included youth; little or no criminal history and a plea of guilty. Although the appellant was a young offender it could not be said that he had little or no criminal history. He did not enter a guilty plea; and there were, in addition, the aggravating features that I have mentioned. (See Henry at para 169 for the significance of aggravating and mitigating factors on the guideline range).

90 I have to say that the sentence imposed by Judge Coorey on Ms Punzo was a very lenient one indeed. It must also be said that the sentence imposed on the appellant was a severe one. It needs to be remembered however that his Honour found special circumstances. The sentence was within the range, albeit towards the upper level of the range. Nevertheless, I have come to the conclusion that there is no principle that would justify a legitimate sense of grievance on the part of the appellant in the present matter. Essentially, this is because of the marked difference between the situations of the appellant and Ms Punzo in the respects I have identified. The matters of comparison between them were so disparate that there was no requirement or justification for the maintenance of parity between them.

91 The issue of parity between sentences is extensively dealt with in the judgment of Howie J in R v Rutter 2003 NSWCCA 306. Tobias JA agreed with the reasons advance by both Howie J and Shaw J in that appeal.

92 One passage in his Honour’s extensive and careful judgment is worth repeating. It appears at para 28: -

“Why then should the applicant receive unmerited leniency because of the leniency shown to his co-offender derived from matters peculiar to the co-offender? The applicant submits that a reasonable person in the community would be affronted by the disparity in the sense given the respective subjective circumstances of the two offenders. But, in my view, that would only be so if the reasonable person did not have an appreciation of all the facts, had no understanding of sentencing principles and ignored the aspect of punishment that each judge sought to achieve in exercising the sentencing discretion as he or she did.”

93 In my opinion, in relation to the present matter, when due regard is paid to the extensive differences between the situation of the appellant and Ms Punzo, there is in truth no parity between their situations.

“ Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated ”. (Gaudron and Dawson JJ in Postiglione v The Queen (1996) 189 CLR 295 at 301).

94 I propose that the appellant’s appeal against conviction be dismissed; and that leave be granted in relation to his application for leave to appeal against sentence; but that the appeal itself be dismissed.

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Last Modified: 03/02/2004