R v Cowen

[1997] QCA 105

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 6 of 1997

Brisbane

[R. v. Cowen]

THE QUEEN

v.

KENNETH MAXWELL COWEN

(Applicant)  Appellant

Fitzgerald P.

Davies J.A.

Mackenzie J.

Judgment delivered 9 May 1997

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED, APPEAL AGAINST SENTENCE ALLOWED, SENTENCES OF SIX MONTHS AND FOUR MONTHS IMPOSED BELOW SET ASIDE AND SUBSTITUTE IN LIEU SENTENCES OF FOUR MONTHS AND THREE MONTHS RESPECTIVELY, EACH OF THESE SENTENCES TO BE SUSPENDED AFTER 46 DAYS, BEING THE PERIOD ALREADY SERVED IN IMPRISONMENT, FOR AN OPERATIONAL PERIOD OF NINE MONTHS.

CATCHWORDS:     CRIMINAL - appeal against conviction and application for leave to appeal against sentences - breaking and entering with intent to commit an indictable offence - assault - submission that trial Judge erred as a matter of law in summing up to jury.

Counsel:Mr. A. J. Rafter for the appellant

Mr. D. Meredith for the respondent

Solicitors:Legal Aid Office (Queensland) for the appellant

Queensland Director of Public Prosecutions for the respondent

Hearing Date:              22 April 1997
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 6 of 1997

Brisbane

Before       Fitzgerald P.

Davies J.A.

Mackenzie J.

[R. v. Cowen]

THE QUEEN

v.

KENNETH MAXWELL COWEN

(Applicant)  Appellant

REASONS FOR JUDGMENT - THE COURT
  Judgment delivered 9 May 1997

On 4 December 1996 the appellant pleaded guilty in the District Court at Brisbane to one offence of wilfully and unlawfully damaging a mobile phone, the property of his sister Sharon Anita McGaw, on 25 January 1996 and not guilty to four other charges.  On two of those he was convicted after a trial.  The first was one of breaking and entering Ms. McGaw's dwelling house with intent therein to commit an indictable offence and the second was of assaulting Ms. McGaw.  Both of these offences were also committed on 25 January last year.  He appeals against his convictions on these two offences.  He also seeks leave to appeal against the sentences of four months imprisonment for house-breaking and six months imprisonment for assault.

The sole ground of appeal against conviction was that the learned trial Judge erred as a matter of law when he summed up to the jury on a "Crown case" which had not been led by the Crown prosecutor.  The factual basis for this ground of appeal concerned the sequence of events which occurred after the appellant had broken and entered Ms. McGaw's flat and an inconsistency between the evidence of Ms. McGaw and that of a neighbour, Mr. Gear, who also gave evidence for the prosecution.

Ms. McGaw said that the appellant arrived at her residence shortly after they had had an acrimonious telephone conversation.  When she saw him arrive in his vehicle she commenced to make a telephone call to the emergency number 000.  However he forcibly broke open a screen door, entered her flat, and took the telephone from her.  She said that she then picked up a mobile telephone in order to make that call.  He took it from her and threw at the oven.  This was the offence to which he pleaded guilty.  Ms. McGaw said that he then punched her in the stomach.  She then moved or was forced backwards against a screen door attached to a sliding glass door which was apparently, the back entrance to the flat.  Shortly after this she heard Mr. Gear banging on the front door, which was also a glass sliding door, and speaking to the appellant.  She said that she was not assaulted after she heard Gear banging on the door.

Gear's evidence was that when he arrived at the door he saw the appellant throwing the mobile phone.  Ms. McGaw was then holding her stomach.  From the time when he arrived at the door he had the appellant within his vision and at no time thereafter did the appellant assault Ms. McGaw.

It was accepted in the Court that the Crown case was opened simply by reading the statements of these two witnesses.  However, when the Crown came to address, the prosecutor submitted that Gear may have been mistaken in his recollection that no assault occurred after the telephone was thrown by the appellant.  Apparently he did not put to the jury the possibility that Ms. McGaw was mistaken as to the sequence of events and that the assault occurred before the telephone was thrown.  It was this sequence of events which was put by the learned trial Judge to the jury during the course of his summing up and which resulted in the submission now made on the appellant's belief  that this was a version which had not been led by the prosecutor and to a further submission that the appellant was thereby denied procedural fairness.

On the evidence there were plainly three possibilities:  the first that the appellant assaulted Ms. McGaw, as she swore, after the telephone was thrown and that consequently Mr. Gear was mistaken in his recollection;  the second that Mr. Gear's evidence was accurate and that no assault occurred;  and the third that Mr. Gear's evidence was accurate but that Ms. McGaw's recollection was faulty as to the sequence of events and the assault occurred before the telephone was thrown and consequently before Mr. Gear arrived at the door.  This third possibility was not put to Ms. McGaw by either counsel and it may be assumed, as appears to be accepted, that neither referred to it in his address.

It is most unlikely, however, that counsel did not advert to this possibility, so obvious was it.  It is much more likely that each saw some tactical advantage in not mentioning it and was prepared to conduct his case on the basis of two possibilities only.  One can see how it would have been very much in the interest of the appellant for the case to go to the jury on the basis of these two possibilities only.

On the other hand, it is difficult to see what forensic advantage the appellant lost by the mention of the third possibility, for the first time, only in the Judge's summing up.  It was not suggested that there was any other evidence touching on the matter and, in any event, by the time counsel came to address, when for the first time it could be argued that the Crown prosecutor confined himself to a case based on mistake by Mr. Gear, it was too late to adduce any further evidence.  And whilst it is true, in theory, that had the third possibility been raised by the prosecutor, defence counsel could have suggested that it was not one on which the jury could have reached the appropriate state of satisfaction, he could not have said that it was not open and there does not appear to be any rational basis for a submission that they could not or should not accept it if they accepted Ms. McGaw's evidence that an assault occurred.

In those circumstances we could not be satisfied that the appellant was, as was urged on his behalf, denied procedural fairness because the third possibility referred to above was first put to the jury by the learned trial Judge during the course of his summing up.  We would therefore dismiss the appeal.

The appellant was born on 6 December 1971.  He was therefore only 24 at the time he committed these offences and 25 at the time of sentence.  However he was not a first offender, having been convicted of unlawfully using a motor vehicle on 27 February 1995 when he was then sentenced to two years probation and ordered to perform 150 hours of community service.

The complainant was a pregnant woman.  Consequently a punch in the stomach could have had very serious consequences physically for her or for the child she was then carrying and also mentally for her.  Fortunately she had no lasting physical or mental disability and the child was born healthy.  However the assault to the complainant's stomach was made with the knowledge, as was apparently obvious in any event, that she was pregnant.  During the course of the struggle the appellant said words to the effect "I'll kick the baby out of you".  As it turned out, however, he did not kick her.  When he assaulted the complainant the appellant was plainly very angry and, it seems, had lost his temper because of an earlier threat by the complainant to inform on him to police about another matter.  It was submitted on his behalf that he was of limited intelligence, both as explaining his failure to comply with the earlier community service order and, perhaps, to explain the inability on this occasion to control his temper.

It was not submitted on behalf of the appellant that sentences of imprisonment were outside the appropriate range.  However it was submitted that they should have been suspended and that it would now be appropriate to suspend them after the period of 46 days which the appellant served before being granted bail for the purpose of this appeal.  The matters relied on to support that submission were his age, his minor criminal history, his limited intelligence, the fact that the complainant did not wish him to be sent to prison and the fact that, on sentence, the prosecutor did not contend for a custodial term.

In the light of comparable cases, when one has regard to the appellant's age, his limited criminal history and the circumstances of this assault, a sentence of six months imprisonment was in our view manifestly excessive.  Indeed this seems to have been conceded implicitly by the submissions made on behalf of the respondent below.  Nevertheless it must be accepted, as was conceded by the appellant in this Court, that a custodial sentence was within range.  In those circumstances in our view, having regard to the fact that the appellant has already served 46 days imprisonment we would grant the application for leave to appeal against sentence, allow the appeal, set aside the sentences of six months and four months imprisonment imposed below and substitute instead sentences of four months and three months respectively, the balance of the terms of imprisonment to be suspended for an operational period of nine months.