R v Fowler - [2000] NSWCCA 352

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v Fowler [2000] NSWCCA 352

FILE NUMBER(S):
60679/98

HEARING DATE(S): 28 August 2000

JUDGMENT DATE: 07/09/2000

PARTIES:
REGINA (Respondent)
Jason Anthony FOWLER (Appellant in person)

JUDGMENT OF: Studdert J Simpson J Dowd J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/31/0377, 97/31/0484

LOWER COURT JUDICIAL OFFICER: Shillington DCJ

COUNSEL:
W G Dawe (Crown/Respondent)

SOLICITORS:
S E O'Connor (Crown/Respondent)

CATCHWORDS:

LEGISLATION CITED:
Evidence Act 1995
Crimes Act 1900

DECISION:
Appeal against conviction dismissed
leave to appeal against sentence granted
appeal against sentence dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
60679/98
STUDDERT J
SIMPSON J
DOWD J

7 September 2000

REGINA v Jason Anthony FOWLER
JUDGMENT

STUDDERT J: I agree with Simpson J

SIMPSON J :

On 3 June 1998 following a trial by jury in the District Court the appellant was convicted of a single count that, on 8 August 1997, whilst armed, and with intent to rob, he assaulted and wounded Mr Peter John Kidd. He appeals against that conviction. He seeks leave to appeal against the sentence subsequently imposed upon him by Shillington DCJ in relation to that offence, and against another sentence imposed in relation to a charge of escaping from lawful custody, to which charge he pleaded guilty.
The Crown case on the principal charge was that, at about 2.00 am on 8 August 1997, the appellant violently broke into a residence attached to a newsagency in Boollaroo and demanded money of the occupant, Mr Kidd. The appellant was armed with a large knife and was wearing a balaclava that concealed his face. Mr Kidd attempted to close the bedroom door, but the appellant forced it open, in the process cutting Mr Kidd’s hand. The appellant then kicked the door, which caved in on Mr Kidd. Mr Kidd seized an aluminium ladder that was fortuitously nearby, and used it to hit the appellant on the head. Mr Kidd sustained cuts to his left cheek, left hand, and bruising to his feet.
The trial which commenced on 1 June 1998 was the appellant’s third trial on this charge. The first, which began before Job DCJ in July 1998, aborted after an inadvertent remark by a witness. At the end of the second trial, which began immediately after the discharge of the jury in the first, the jury was unable to agree.
The evidence in the Crown case can be divided into three principal categories:
1.        evidence of the description of his attacker given by Mr Kidd, which in some respects at least was consistent with the appearance of the appellant;
2.        circumstantial evidence linking the appellant with the offence; for example, evidence that he was acquainted with Mr Kidd’s daughter, who also lived in the premises, and evidence of an injury to the appellant’s head, consistent with having been struck by an aluminium ladder;
3.        evidence of admissions said to have been made by the appellant to his mother and sister.
The appellant denied that he had been the intruder. He gave sworn evidence and called alibi evidence from a witness, who was his mother’s de facto husband, Mr Bruce John Mitchell. In summary, Mr Mitchell’s evidence was that, from 12.30 am on the day of the offence, the appellant had been in Mr Mitchell’s home and had not left.
That the offence had been committed was not in issue. The sole issue at trial was whether the Crown had proved beyond reasonable doubt that the appellant was the perpetrator.
The offence of escaping was committed when the jury returned to the court to deliver its verdict on 3 June. On hearing the verdict of guilty the appellant leapt from the dock and ran from the court. He travelled first to Melbourne, then to Adelaide, where he was arrested on 31 July and extradited to New South Wales. He pleaded guilty to this charge, and there is no appeal against this conviction.
On 30 October 1998 Judge Shillington sentenced the appellant on the principal charge. He imposed a total sentence of penal servitude for eight years and four months, made up of a minimum term of five years and four months, and an additional term of three years. He specified that this sentence was to commence on 31 July 1998. On the charge of escaping, he imposed a fixed term of imprisonment for one year, to commence at the expiration of the minimum term previously imposed, that is, 1 December 2003.
The appellant was represented by counsel at the trial, but appeared in this court unrepresented. He prepared the grounds of appeal himself, and has submitted a written argument. He has supplemented this written argument by extensive and comprehensive oral argument.
It seems to me that the principal ground raised by the appellant is that the verdict of guilty was unreasonable and could not be supported having regard to the evidence. I will return to the detailed argument advanced in support of this ground at a later point. In addition, the appellant has pointed to a number of other matters which should be taken as individual and independent grounds of appeal, and also as bearing upon the principal ground, that the verdict was unreasonable.
Subsidiary grounds of appeal raised in the appellant’s documents are:
(i)        that the trial judge was biased against the appellant, and that this was reflected in an unbalanced and unfair summing-up;
(ii) that certain evidence should have been rejected pursuant to s138 of the Evidence Act 1995;
(iii)      that a record of interview in which the appellant participated should have been edited to excise some answers that indicated that the appellant had previous criminal history;
(iv)      that media publicity from the earlier trial (in which the jury was unable to agree) had adversely affected the trial.
During the course of oral argument the appellant contended that directions given in relation to what might be called the identification issue were inadequate; he complained of a direction given to the jury following a communication from them that they were unable to agree, and about the disclosure by a member of the jury that he was acquainted with one of the police witnesses.
It is convenient to deal with what I have described as the subsidiary grounds of appeal before moving to the ground that the verdict was unreasonable and insupportable.
(i) Bias of trial judge
The appellant asserts that “extreme bias” is evident in the summing up. He particularises this assertion by claiming that the judge made constant reference to the Crown case, but a “total lack” of mention of some aspects of the defence case. In his written argument the appellant claims that Judge Shillington devoted 121 sentences of the summing up to the Crown case, but only 21 to the defence, most of which (according to the argument) were injurious to the defence case. The appellant then makes this assertion:
“The lack of statements made on behalf of the defence is due to the fact that five of the witness’s testimonies for the defence were not mentioned by the judge.”
The meaning of this is unclear. The only two witnesses called in the defence case were the appellant and Mr Mitchell. There were not five witnesses called for the defence. It may be that the appellant means that the trial judge failed to refer to evidence favourable to the defence elicited from Crown witnesses in cross-examination. If so, the complaint can be dealt with generally with the allegation of lack of balance or fairness to which I will return. Another matter mentioned by the appellant as signifying bias concerns the trial judge’s discretion to admit evidence of his mother, who gave evidence under compulsion. (This gave rise to an independent ground of appeal, considered in paragraph 27 below. At present I am concerned only with the appellant’s argument that the admission of the evidence was indicative of bias.) This same evidence, according to the appellant, had been rejected by Judge Job in the previous trial. There was no evidence before this court that Judge Job had rejected the evidence of the appellant’s mother, but I am prepared, in dealing with this argument, to assume that what is asserted is correct.
The evidence that was before Judge Job in relation to the equivalent application, is not before this court, and neither are his Honour’s reasons for excluding it. Indeed, it is not apparent to me that the fact of its earlier exclusion was made known to Judge Shillington. In any event, I am unable to accept the proposition that reaching a different conclusion (on what may have been different evidence, and as a result of different arguments) demonstrates bias or unfairness on the part of Judge Shillington. The approach taken by Judge Shillington was in accordance with statute, and was fair and impartial.
So also was the summing-up. The judge, having given conventional directions of law, reminded the jury of the evidence of each of the witnesses, in the sequence in which they had given evidence. If he spent more time on Crown witnesses, that undoubtedly was because of their greater number: thirteen witnesses were called in the Crown case, two in the appellant’s case.
I have read the summing-up in its entirety, and it is clear to me that, in referring to the evidence of witnesses, the judge made no distinction in the time or emphasis he gave to Crown witnesses and defence witnesses. This applies equally to the attention he gave to evidence favourable to the defence which was adduced from Crown witnesses.
I would reject all grounds of appeal that assert lack of balance, unfairness, or lack of impartiality or bias in the approach taken by the trial judge.
Although there is no discernible separate ground of appeal challenging the decision to require Mrs Fowler to give evidence, it is appropriate having regard to the appellant’s unrepresented status, to consider whether any error appeared in that determination, and it is convenient to refer to that issue at this point. Mrs Fowler, the appellant’s mother, objected to giving evidence, relying upon s18 of the Evidence Act 1995. S18, which applies only in a criminal proceeding, entitles persons in any of a series of identified relationships to the person accused (of which a parent-child relationship is one) to object to giving evidence, or giving evidence of a communication between that person and the accused, as a witness for the prosecution.
By sub s(6), where objection is taken under the section, that person must not be required to give evidence if the court finds that there is a likelihood that harm would or might be caused (whether directly or indirectly) to the proposed witness, or to the relationship between the proposed witness and the accused, if the proposed witness gives the evidence, and that the nature and extent of that harm outweighs the desirability of having the evidence given.
Sub s(7) prescribes (non exhaustively) matters that must be taken into account in the balancing exercise provided for by sub s(6). These factors include the nature and gravity of the offence charged; the substance and importance of the evidence the proposed witness might give and the weight that is likely to be attached to it; whether alternative evidence of the same subject matter is reasonably available to the Crown; the nature of the relationship between the accused and the proposed witness; and whether, in giving the evidence, the proposed witness would have to disclose matter that was received in confidence from the accused.
Mrs Fowler gave evidence on the voir dire. She said that she did not wish to give evidence, and felt that, if she did so, it would impose a tremendous strain on her relationship with her son. She also said that she had been receiving some psychiatric care, partly related to the case then pending against her son, and partly relating to the death, by suicide, of her step daughter the previous year. There was medical evidence from a general practitioner, but not from Mrs Fowler’s treating psychiatrist, that she was suffering from severe anxiety and depression and was not fit to appear in court as a witness in the trial.
Judge Shillington also had before him a copy of a statement made by Mrs Fowler to police, which recounted certain conversations she had had with the appellant.
His Honour was satisfied that there was evidence that the relationship between Mrs Fowler and her son would be affected by her being required to give evidence and proceeded to perform the balancing exercise required by the section. He was, however, not satisfied that the nature and extent of the harm outweighed the desirability of having the evidence given, and, in fact, was positively satisfied that the desirability of Mrs Fowler being required to give the evidence outweighed any harm that would be done to her or to the relationship between her and the appellant. He therefore required her to testify.
There is no error in the approach taken by his Honour.
(ii) Evidence Act 1995, s138
Under this ground the appellant argues that the evidence of his mother and sister should have been rejected pursuant to s138 of the Evidence Act. S138 is concerned with evidence obtained improperly or illegally. Here, it is not argued that the evidence was obtained illegally, but that it was obtained improperly.
Although the section bears a heading which suggests that it confers a discretion to exclude improperly or illegally obtained evidence, sub s (I) in fact requires the evidence to be excluded:
“unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.”
That is, the section, like s18, requires the judge to perform a balancing exercise, the result of which dictates whether the evidence is to be admitted or not.
Sub s(3) specifies (again non exhaustively) matters required to be taken into account in weighing the desirability against the undesirability of admitting the evidence.
The basis of the asserted impropriety identified in the appellant’s documents was “copious amounts of duress” said to have been applied to the two witnesses. The transcript is a little confusing in relation to the material that was put before his Honour, before the evidence of the two witnesses was adduced before the jury, to support this claim. There is nothing to suggest that such material, in relation to Mrs Fowler, was elicited until she was cross-examined in the presence of the jury. She then said that the Detective in charge of the investigation, Detective Reid, told her that if she withheld information about what the appellant had told her she could be facing five years in gaol and the loss of a custody battle for her grand daughter for whom she was caring. She said she was frightened and believed what Detective Reid had said. However, as I have noted above, that evidence does not appear to have been put before the trial judge and it did not emerge until she was cross-examined. No application in reliance on s138 was made for the exclusion of Mrs Fowler’s evidence. The application that was made to exclude her evidence was confined to the power conferred by s18. There can be no error in the failure of the trial judge to exclude evidence on the basis of information that was never brought to his attention until after it had been given to the jury.
That is not the case in relation to Ms Griffin’s evidence. An application was made under s138, for exclusion of her evidence. The transcript of a voir dire that had been conducted in the course of the previous trial was provided to Judge Shillington, and counsel for the appellant expressed himself to be content for the decision to be made on the basis of the evidence adduced in that proceeding. Ms Griffin’s statement was also before Judge Shillington. These documents were not provided to this court, but their content may be inferred from the evidence subsequently given in the trial, and is summarised in an interlocutory ruling that the evidence would be admitted. Ms Griffin’s evidence, given in the trial, was of a similar nature to that of her mother. She said that Detective Reid told her that if she withheld evidence she could be “in lots of trouble” and that that scared her. She then discussed the matter with her husband, who also told her that she would be obliged to provide a statement to police. Judge Shillington’s view was that the statement was not evidence improperly obtained, but that, even if it were, he would have concluded, after consideration of the s 138 factors, that the evidence should be given.
I am unable to see any error in the approach taken by Judge Shillington. This ground of appeal should be rejected.
(iii) The record of interview
The appellant declined to take part in an electronically recorded interview, but agreed to participate in one recorded manually. In support of the present ground of appeal he relies upon the answers to two questions which are set out below:
“Q.31After you arrived home did you leave the house again that morning?
A.Yes, at approximately quarter to eight as I had to meet my parole officer at 8.30.
Q.63Can you give me any reason why your name would have been given to us as the person responsible for committing that offence?
A. Because I have been to gaol before.
The short answer to this ground of appeal lies in the record of interview as tendered, and as it was placed before the jury. It was marked Exhibit G. In that document, the answer to question 31 stops at the word “eight”; the words thereafter have been deleted. Both question 63 and the answer have been deleted.
There is nothing in the transcript of proceedings before Judge Shillington to show the circumstances in which these excisions came about, but it is a reasonable inference that the explanation is to be found in the earlier trials. Undoubtedly, agreement was reached that these damaging answers should be excised from the document presented to the jury, and, that having been decided, the position was maintained in the trial before Judge Shillington. This ground of appeal must fail.
When it became apparent that the answers of which the appellant complained were not before the jury, he sought to shift the ground and asserted that, when the document was read to the jury, there was a noticeable pause which would have alerted the jury to the fact that there was something additional contained in the document of which they were not aware, and of which they would be likely to be suspicious. Indeed, it may be assumed that the document itself as an exhibit was before the jury, and, while the first excision is barely noticeable, the second is quite apparent. No direction was given (and none sought) to the effect that the jury should not speculate about the gap, but this, in my view, simply reflects the atmosphere of the trial and the absence of any importance attributed to those matters at the time. That, I have no doubt, was a realistic assessment. As will become apparent below, the emphasis in this trial was on the statements said to constitute admissions made by the appellant to his mother and sister.
In my view this ground of appeal should be rejected.
(iv) Media publicity
The appellant complains of a newspaper report of the termination of the previous trial. According to the information placed before this court, the Newcastle Morning Herald of 21 March 1998 carried, on page 5, a report that the jury had been unable to agree. A photocopy of the item was provided. It consists of four short paragraphs which amount to nothing more than a factual account of what had happened. The appellant is named, and his address given. There is nothing sensational or dramatic about the report. It is certainly not a report which would be likely to impress itself upon the mind of anybody other than a person already acquainted with the appellant. Such a person would, in any event, be disqualified from participating as a juror. The possibility that any prospective juror might have read the report, remembered it, and drawn inferences adverse to the appellant is so remote as to be fanciful. More than two months elapsed between the publication of the item and the commencement of the re-trial. There is not, in my view, the slightest possibility that the publication of this report gave rise to a miscarriage of justice. I would reject this ground of appeal.
(v) The “Black” direction

The appellant complains of the circumstances in which a direction drawn from the decision of the High Court in Black v R (1993) 179 CLR 44 was given to the jury.
The jury retired at 11.03 am on 3 June 1998. They returned to court at 1.55 pm, having advised the judge that they were unable to reach agreement. The judge then gave the appropriate direction, in accordance with Black. The jury retired again at 1.58 pm, and returned with a verdict of guilty at 3.25 pm.
The criticism made by the appellant relies on factual propositions which are not supported by the transcript. He therefore alleges that the transcripts are inaccurate. He claims that the jury initially returned and asked a question, returned a second time because they could not decide and asked whether they all had to agree, and then returned a third time saying they were unable to agree and that that was when the Black direction was given.
There is nothing in the transcript to support this chronology. I have outlined the events that occurred as recorded by the transcript. I see no reason to regard the transcript as other than recording accurately the proceedings as they occurred.
The appellant also relies, in this context, on the inability of the previous jury to reach agreement, suggesting that the cumulative effect of the two trials favoured a conclusion that the jury should have been discharged without verdict.
Regardless of what took place in the first trial, the transcript of the trial now under consideration shows that, having received the direction prescribed by the High Court the jury was able to reach agreement. There is certainly no hint of any pressure having been brought to bear on the jury and no hint that there was any impropriety giving rise to a miscarriage of justice. Even taking into account the message that initially the jury was unable to agree, its retirement was relatively short. I would reject this ground of appeal.
(vi) Disclosure by juror of acquaintance with police witness
During the course of the first day of the trial, and when Senior Constable Debra Rowe was giving evidence, a member of the jury communicated with the judge, saying that he knew her. In the absence of the jury Senior Constable Rowe said that she recognised a person she described as “this fellow on the end here”, but said she did not know his name. The names of Crown witnesses had been read at the commencement of the trial, and it is obvious that the juror did not recognise Constable Rowe by name.
In any event, both parties agreed that the evidence given by Constable Rowe was uncontroversial. No request was made for discharge of the jury as a whole, or of the individual juror.
In his oral argument the appellant placed considerable emphasis on his assertion (borne out by Constable Rowe’s identification of the person she recognised as “this fellow on the end here”) that the juror in question was the foreman of the jury. This argument demonstrates a lack of appreciation of the role of the foreperson of the jury, who is a spokesperson, but otherwise wields no authority greater than any other member of the jury.
The answer to the appellant’s complaint in this regard is in the concurrence of his (very experienced) counsel in the course adopted by the trial judge. The appellant asked, rhetorically, if Constable Rowe’s evidence was “insignificant”, why was she giving evidence in the first place? Constable Rowe’s evidence was relevant; she attended at Mr Kidd’s premises following his report of the crime, and made observations both of Mr Kidd of his premises. Her evidence was not “insignificant”, and was not described as such; the word used was “uncontroversial”, and it was uncontroversial because it went to matters that were not in dispute.
I would reject this ground of appeal.
This disposes of the matters raised by the appellant in his written grounds and argument (other than the principal ground). During the course of oral argument he supplemented these matters and I now turn to the additional matters raised orally.
(vii) Evidence of police collusion
One matter raised by the appellant during the course of his oral argument but not on either of his documents concerned the dates on which statements of police officers were apparently made. Police officers Rowe and Glen, both of whom gave evidence, made statements on 24 September 1997. Two other police officers to whom the appellant made reference in this context were not called in the trial. The appellant considered the coincidence of dates sinister, and wished to have the opportunity to issue a subpoena for production of the work records of the police officers, in order to ascertain whether or not they were on duty on the dates when they said they signed their statements. He also drew attention to what he described as the striking similarity in the content of the statements.
As I have observed above, the appellant was represented by experienced counsel at trial. There is no reason to suppose that production of the officers’ work records would add anything to the defence case, or in any way damage the Crown case. The appellant’s suspicion is, at best, speculative. The police officers were not, in this case, the witnesses who gave the substantive evidence against the appellant, although Constable Glen took a statement from the appellant’s mother.
(vii) Directions on identification
Although identification in the usual sense was not an issue in this trial (nobody having claimed to have identified the appellant at the scene of the crime), in some respects issues analogous to identification were raised. This arose from Mr Kidd’s description of the intruder, and from evidence as to the consistency or inconsistency of the appellant’s appearance with that description. There was a good deal of evidence about the length of the appellant’s hair. This, despite the amount of time taken by it, could not be accorded very much weight. The variations were minor. Of more significance was Mr Kidd’s description of the intruder as “clean shaven”, contrasted with the appellant’s contention that at the time he wore a goatee beard. The appellant also claimed to have been drinking for several hours on the afternoon in question, to have consumed a mixture of beer and rum, and argued that, had he been the intruder, Mr Kidd could not have missed the strong smell of alcohol. Mr Kidd having said nothing about this, it should be inferred that the intruder did not show signs of alcohol consumption, and therefore was not the appellant. He also pointed out that Mr Kidd said that the intruder held the knife in his right hand, and to his own evidence that he is left handed. The appellant complained that the directions in relation to identification were deficient.
The judge, in summing-up, reminded the jury of the various matters concerning the appearance of the intruder, and of the appearance of the appellant. He did this in his resume of the evidence given by each of the witnesses. He gave no specific direction drawing attention to discrepancies between the description of the offender and the appearance of the appellant.
His Honour also reminded the jury of the arguments that had been put to them by both counsel, and included in this was reference to evidence that Mr Kidd said that the intruder was holding a weapon in his right hand, and the appellant’s evidence that he is left handed; and he also mentioned, during the same summary, the evidence about the goatee beard.
No complaint was made about the summing up. This, I am satisfied, is because, to the extent that the description of the intruder diverged from evidence as to the appellant’s appearance, those matters were adequately mentioned. The focus of this trial was only in a secondary way upon “identification”. The principal focus of this trial was on the evidence of admissions given by the appellant’s mother and sister.
Unreasonable verdict
The appellant’s principal ground of appeal is that, having regard to a number of the matters already mentioned, the verdict is unreasonable and unsupported by the evidence. In particular, in this respect, he referred to the description evidence given by Mr Kidd.
One observation may now be made. Although the appellant relies quite heavily upon his argument concerning the asserted discrepancy between the description given by Mr Kidd and his own appearance, only minimal evidence was adduced, either in the appellant’s own case, or in cross-examination of Crown witnesses (of whom three at least knew him very well). For example, neither his mother nor sister nor brother-in-law was asked if he had had a goatee beard at the time of the offence. The appellant recognised that this created some difficulty for him, and sought to criticise the conduct of the trial by his counsel. There is no evidence before this court as to what answers might have been given by those witnesses had the question been asked of them, and it is not possible for this court to assume that the answers would have been favourable to the appellant. Indeed, the more likely inference is that counsel had explored those matters with the witnesses in conference (they being available to him in the circumstances) and deliberately refrained from asking those questions because the answers would have been damaging to the appellant.
I have considered all of the evidence and am satisfied that it was open to the jury to convict the appellant. The evidence given (however unwillingly) by the appellant’s mother and sister was of considerable significance. His mother said that, on 9 September 1997, she had a conversation with the appellant in which she asked why the police were coming to the house. She said the appellant became angry, as did she, and she asked him what was happening, and asked him about the newsagency. To this he replied:
“Well why do you do things like that, for money.”
The appellant’s sister, Lisa Griffin, said that she had a conversation with the appellant on 8 September, and asked the appellant if he had committed the offence. He replied:
“Mmm yeah, whatever you reckon sis”
in a fashion she described as “real smartly”. She said the following day she again spoke to the appellant, along similar lines, and again asked why he had done it, to which he replied:
“I needed the money, what do you reckon.”
The appellant’s brother-in law, Paul Griffin (Lisa Griffin’s then husband) gave evidence that he spoke to the appellant at the Charlestown police station on the day the appellant was arrested. Mr Griffin was asked what was said and what was done. His answer was:
“Jason, brother-in-law was just sitting there. My wife said ‘Do you want to have a look at the statement to see what I’ve said?’ He said ‘No’ that Mum and Jamie have given him up and my wife then said that she had to tell the truth and I said “If you want to blame anyone, don’t blame your mother, blame me.” I then went on to ask why he did it. He said that he didn’t want to hurt anyone, he only wanted to scare them to get his money. He doesn’t blame anyone. He must need help. There must be something wrong with him.”
Mr Griffin said that these last three sentences reflected what the appellant had said to him during the course of the conversation.
The appellant, in his evidence, denied this conversation. He claimed that he and Mr Griffin had never got along and suggested that animosity towards him was the reason for Mr Griffin giving this evidence. He repeated that claim in his oral argument in this court.
Obviously, the evidence of admissions to members of the appellant’s family was very damaging to him. It was open to the jury to accept the evidence given by these witnesses, and once they did so, the verdict of guilty was inevitable. The appellant sought to explain the evidence of his mother and sister by saying that he was responding angrily, spontaneously, and, in effect, trying to bring the discussion, or the questioning, to an end. These are matters which it was necessary for the jury to consider, but which it was open to them to reject.
Having considered all of the evidence, I am satisfied that no miscarriage of justice has been demonstrated: R v M (1994) 181 CLR 487; Fleming v R (1998) 158 ALR 379. I would reject this final ground of appeal. I would, accordingly, dismiss the appeal against conviction.
Application for leave to appeal against sentence
The appellant is now twenty-six years of age.
Following his recapture in Adelaide, the appellant was returned to New South Wales where he was sentenced by Judge Shillington on 30 October 1998. On the principal charge, Judge Shillington determined that the appropriate sentence was one of a total term of nine years’ penal servitude, made up of a minimum term of six years and an additional term of three years. However, having regard to a period of eight months the appellant had served in pre-trial custody, the sentence he ultimately imposed was of eight years and four months, made up of a minimum term of five years and four months, and an additional term of three years. This sentence he specified was to commence on 31 July 1998. On the charge of escaping from lawful custody his Honour imposed a fixed term of one year, to date from the expiration of the minimum term on the principal charge, that is, to commence on 1 December 2003.
The maximum term provided by s 98 of the Crimes Act 1900, under which the principal charge was brought is penal servitude for twenty-five years. The offence of escaping being a common law misdemeanour, no maximum term is prescribed, and the sentence is at the discretion of the court.
His Honour took into account the circumstances in which the principal offence had been committed, including the fact that it occurred at about 2.15 am; that it involved the forced entry to Mr Kidd’s home; that the appellant knew Mr Kidd’s daughter and was familiar with the house and the habits of its occupants; that he took advantage of this knowledge in order to force his way into the premises at a time when Mr Kidd, a fifty-eight year old man, was alone; that the appellant was armed with a knife and wearing a balaclava and glasses by way of disguise. His Honour mentioned the violence with which the offence was committed. He regarded the offence as:
“a extremely bad example of home invasion involving threats and terror to the victim”
and injury to him. He took into account the absence of contrition, emphasised by a letter from the appellant asserting his innocence. He had regard to the appellant’s criminal record which most significantly included a conviction of robbery in company in the Northern Territory, in respect of which the appellant was on parole at the time of committing this offence. He took into account reports from the Probation Service that cast light on the appellant’s background, which included drug and alcohol problems from an early age. He noted the tragic circumstances in which the appellant’s father had died when the appellant was a young teenager, and the “profound” effect of this upon the appellant. He had regard to various other reports, describing the appellant as “frequently depressed and morose”, “harbouring feelings of discontent and anger which may be displayed as passive aggression”, “an angry, irritable and conflicted individual”. The remarks on sentence reflect a careful consideration of all relevant material.
It is true that the sentence imposed was a severe one. But the offence was a very serious one of its kind. It is unnecessary to expand further upon the matters mentioned by Judge Shillington. The possession by the appellant of a knife, balaclava and glasses for disguise demonstrates that the offence had been planned with some care. And it was perfectly proper for his Honour to take into account the fact that the offence was committed whilst on parole, and that the previous offence was of a not dissimilar kind. The appellant contested this last matter, arguing that the circumstances of the two offences were so different that no real analogy could be drawn. The Northern Territory offence was committed after the appellant and his co-offender had been drinking, when they engaged a taxi driver to take them to a remote part of Darwin on a pretext, and having arrived there mercilessly attacked the taxi driver, punching him around the head and body and demanding money. In my opinion there are sufficient similarities between the two offences to warrant this being regarded as a second offence of a most serious kind.
The appellant made one particular criticism of the sentencing proceedings which should here be noted. It is best to extract the criticism from his own document. He wrote:
“I cannot understand how after I escaped from a judge’s courtroom and essentially show utter contempt for that particular judge, have that same judge impose a sentence that wouldn’t be severe.”
I take this to mean that Judge Shillington displayed further bias against the appellant after his escape and in the sentencing process. If it were so, then the appellant would have only himself to blame. However, notwithstanding that the appellant showed “utter contempt” for the judge, Judge Shillington set about the sentencing process fairly and impartially. There is nothing in the sentencing proceedings, or the remarks on sentence, to suggest that his Honour was in any way influenced by the attitude of the appellant manifested in his escape.
The appellant has not pointed to any other error in the sentencing process. Given his unrepresented status, I have considered whether the sentences imposed, either individually or cumulatively, are manifestly excessive, or demonstrate any other error, latent or patent. I am unable to perceive any such error. As I have said, the sentence on the principal offence was a severe one, but the offence demanded a severe penalty.
I would grant leave to appeal against the severity of the sentences imposed, but would dismiss the appeal.
The orders I propose are:
(i)        appeal against conviction dismissed;
(ii)       leave granted to appeal against sentence;
(iii)      appeal against sentence dismissed.
DOWD J: I have read the judgment of Simpson J in draft form, and I agree with the proposed orders and Her Honour’s reasons.
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LAST UPDATED: 22/09/2000