R v Gordon - [2004] NSWCCA 45

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v Stephen Andrew GORDON [2004] NSWCCA 45

FILE NUMBER(S):
60404/03

HEARING DATE(S): 5/3/04

JUDGMENT DATE: 11/05/2004

PARTIES:
Stephen Andrew GORDON (Appellant)
Regina (Respondent)

JUDGMENT OF: Simpson J Kirby J Bell J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/1159

LOWER COURT JUDICIAL OFFICER: Gibson DCJ

COUNSEL:
Ms E Wilkins (Crown)
Ms A Francis (Appellant)

SOLICITORS:
S Kavanagh
S O'Connor (Appellant)

CATCHWORDS:

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Evidence Act 1995

DECISION:
Dismiss the appeal against conviction
Grant leave to appeal against the severity of sentence
Dismiss the appeal against sentence

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60404/03
SIMPSON J
KIRBY J
BELL J
Tuesday 11 May 2004

REGINA v Stephen Andrew GORDON

Judgment

SIMPSON J: I agree with Bell J.

KIRBY J: I agree with Bell J.

BELL J: On 23 September 2002 the appellant was arraigned before his Honour Judge J X Gibson QC (the Judge) on an indictment that charged him with two counts of robbery while armed with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900 (NSW). Each count related to an incident that took place at the Windsor branch of the Westpac Bank on 20 September 2001. Count one charged the appellant with the armed robbery of a teller named Renee Andrews. Count two charged the appellant with the robbery of a second teller, Margot Shore. The appellant pleaded that he was not guilty of each count and stood trial. The jury returned verdicts of guilty in respect of each count on 25 September 2002.
The maximum penalty for an offence under s 97(2) is imprisonment for a term of 25 years. On 22 November 2002 the appellant was sentenced to imprisonment for a term of eight years in respect of each offence. The sentences were directed to commence on 22 November 2004. A non-parole period of three years was specified. The sentences were accumulated on sentences for other offences to which the appellant pleaded guilty.
The appellant appeals against his conviction and seeks leave to appeal against the severity of the sentences imposed on him.
The facts

At about 3:55 pm on 20 September 2001 a man entered the Westpac Bank in George Street, Windsor holding a shortened firearm in one hand and a bag in the other hand. He instructed customers to lie on the floor. He approached the counter, shouting, “Hoy” to the teller, Renee Andrews. He pointed the firearm at her head and ordered her to put twenty and fifty dollar notes from her cash drawer into a small backpack, which he handed to her.

Margot Shore, another teller, was standing to the left of Ms Andrews. She observed the robber and the gun. The robber ordered Ms Shore to put cash from her cash drawer into the bag that he had given to Ms Andrews. She did as she was instructed. Ms Andrews placed the sum of approximately $12,000 into the bag. She then handed it back to the robber who left the bank.
A staff member activated the Bank’s silent alarm system and shortly after the robbery Senior Constables Stuart and Taylor arrived at the scene. Statements were taken from Ms Andrews, Ms Shore and a number of the customers of the bank, including Fiona Bigeni, Joanne Masini and Nadine Huxley. Each gave a description of the robber.

On 9 October 2001 the appellant was in custody at the Mt Druitt police station in relation to another matter. Constable Stuart sought to interview him in connection with the robbery of the Westpac bank. The appellant declined to be interviewed or to participate in an identification parade. Later that day the police executed a search warrant on the premises at which the appellant had been living. During the search Constable Stuart located a pair of blue and white Asics brand jogging shoes. The design of the joggers was distinctive.

Bank security camera photographs depicted the robbery as it was unfolding. The quality of the photographs was such that it was not possible to establish that the appellant was the robber nor to exclude him as being the robber.
The Asics running shoes found in the course of the search of the appellant’s premises were similar to the running shoes worn by the offender which were plainly visible in the bank security photographs.
In statements made on the day of the robbery the following descriptions of the robber were given to the police:
Renee Andrews
“The man was about 180 cm tall, he had really blonde hair that was short and scruffy, he had fair skin, he was wearing a short-sleeve shirt that had a collar and two buttons at the top, it was a light colour. The man was quite skinny and he looked like a druggy. I think he could have been wearing a ring that was silver. I didn’t see the bottom half of him at all.”
Fiona Bigeni
“I saw a male who was about six foot tall, slim build, wearing a light coloured shirt and dark coloured pants. The pants were more like track pants. He would have been in his early twenties.”
Joanne Masini
“In his early twenties, about six foot two inches tall, short clippered blonde hair which I would call a number two or three cut, fair complexion, clean shaven with pimples and pimple scars on his cheeks, wearing a creme coloured baseball cap worn normally with the peak at the front, a short sleeve top and casual clothing.”
Nadine Huxley
“About in his mid-twenties, about five foot ten inches tall, average build, short light brown or blonde hair, clean shaven with severe acne scars, medium complexion, wearing a dark coloured baseball cap with the peak correctly positioned to the front, a fleecy light blue coloured short sleeved sloppy joe, long dark coloured pants, short white sport socks and light coloured joggers.”
Margot Shore
“Australian male, about twenty-five years old, six foot tall, slim build, very blonde short hair which was scruffy. His complexion was similar to mine, fair. His face appeared long to me. He was wearing a sandy beige sloppy joe which had something written on the front and the collar of the sloppy joe had a contrasting colour to the beige. He may have been wearing a baseball cap on backwards. His voice was very firm voice but you could tell there was agitation in the voice.”
Each of the witnesses was shown a videotaped recording of 20 photographs of men (Ex C10 on the voir dire). There was one photograph of the appellant in this collection. His photograph was number 18.

Renee Andrews viewed Ex C10 at the Penrith Police Station on 8 October 2001. She made a statement on that day describing what had taken place. She watched the videotape from beginning to end. She then asked for it to be rewound and re-played. As she viewed it for the second time she said, “number nine looks similar”. She continued to watch the videotape and she said “also number 18, they have similar face structure but number nine had the blonde hair”. She went on in her statement to set out a conversation that took place between herself and Constable Berry at this juncture:
“Cst Berry said “Don’t pay attention to the blonde hair, people can change their hair colour.”
I said “Then I think it was eighteen”
Cst Berry said “how sure are you?”
I said “About 80%, his eyes are the same and lips, but now he has a thinner face and more acne.”
I continued to watch the videotape and I did not recognise any further persons. I am fairly certain that number 18 is the person but not 100 percent sure. Out of the two persons I nominated I believe number 18 has a stronger resemblance than that of number nine.”
Fiona Bigeni and her cousin, Joanne Masini, both attended the Windsor Police Station on 27 October 2001. On arrival Fiona Bigeni was taken to the detectives’ office. She was asked to view a videotape containing photographs of men. She was told that the photograph of the man whom the police suspected may, or may not, form part of the presentation. She watched the videotape once and then asked if she could view it again. She wanted to look at one of the first faces, number 12, and one of the last faces to clarify questions such as complexion and face colour.
After viewing the videotape for the second time Ms Bigeni asked to view it again commencing from photograph 12. She told Constable Stuart that photograph 12 was not the man because his face looked older. She asked to be shown the tape again starting from photograph 18. After seeing it played on this occasion she identified the man depicted in photograph 18 as the robber. In her statement made on 27 October 2001 she said:
“I recognised him as he had prominent acne and he had a darker complexion than number nineteen. He was definitely the man that was in the Bank that day with the gun.”
Joanne Masini also viewed the videotape, Ex C10, at the Windsor Police Station on 27 October 2001. She also made a statement on that day. Ms Masini watched the video presentation and then asked to see photographs one and five again. She said, “I want to see if they have acne scars”. The tape was rewound and she viewed it again in its entirety. After looking at photographs one and five on the second occasion Ms Masini said that neither depicted the robber. When she saw photograph 18 again she said, “That’s him. Number 18.”

Nadine Huxley attended the Windsor Police Station on 11 October 2001 and viewed the videotape Ex C 10. She made a statement on that day describing what took place. After being shown the videotape she asked for it to be rewound to show photographs one and two. She looked at these again and identified the man in photograph two as the robber. In her statement she said:
“I looked at these two faces again. I informed Constable Stuart that I believed the person that committed the armed robbery in the Westpac Bank at Windsor was that of number two. I said this as the face of number two had drawn cheeks with his cheekbones visible. He also had acne on his cheeks. The man that robbed the Bank had acne on his cheeks, with drawn cheeks and his cheekbones visible. He was only about five foot ten inches tall and a medium build.”
Margot Shore viewed the videotape, Ex C10. She was unable to identify any person as being the robber.

No evidence was called in the defence case.

The ground of appeal against conviction

The appellant challenges his conviction on one ground:
The trial miscarried as a consequence of his Honour’s failure to exercise his discretion to exclude photography identification evidence pursuant to ss 135 and 137 Evidence Act 1995 (NSW) having been asked to do so by counsel for the defence.
After the jury was empanelled, but before the Crown Prosecutor opened his case, trial counsel made an application to have the picture identification evidence excluded. In outlining the basis of the application he submitted that the procedure was “unfair and unreliable”. A second basis of objection was that the provisions of s 115(3) and (4) of the Evidence Act 1995 (NSW) (the Act) had not been complied with. This latter basis of objection was not pressed at trial nor on the hearing of the appeal.
The unfairness that trial counsel identified as the basis for seeking to have the picture identification excluded fell into two categories. The first related to the selection of the 20 photographs in Ex C10. Trial counsel complained both that Ex C10 did not include photographs of any men with blonde hair and that the appellant’s photograph was the only one of a person with prominent pimples or acne.

The second basis of challenge was confined to the identification evidence of Renee Andrews. Complaint was made of the statement by Constable Berry, “Don’t pay attention to the blonde hair, people can change their hair colour”. This observation was said to have tainted Ms Andrews’ identification of the photograph of the appellant.

The statements made by Renee Andrews, Margot Shore, Fiona Bigeni, Joanne Masini and Nadine Huxley on the day of the robbery, and statements made on the day that each viewed Ex C10, and the statement of Constable David Stuart were admitted on the voir dire hearing. The videotape, Ex C10 was also in evidence together with an A4 sheet on which were reproduced copies of the 20 photographs. The photographs taken by the bank security camera and an enlargement of the photograph of the running shoes worn by the robber were also in evidence on the voir dire.

No evidence was called on the appellant’s behalf on the voir dire and none of the makers of the statements were required for cross-examination.

The appellant’s counsel complained that the Judge did not give reasons for his decision to admit the evidence of picture identification nor was it apparent that he had considered one aspect of the challenge to the fairness of the selection of the photographs: that the appellant’s photograph was the only one to depict a person with noticeable acne or facial scarring.

It was submitted that the Judge erred in that he failed to consider the matters that may give rise to the discretionary exclusion of evidence under ss 135 and 137 of the Act.

The voir dire was conducted with a degree of informality. Trial counsel did not articulate with any clarity the basis upon which he was seeking to have the evidence of picture identification excluded. He did not refer to either

s 135 or 137 of the Act. The Judge did not give reasons for his decision to admit the evidence of picture identification. He was not asked to do so.

In this Court the focus of the challenge was on the following exchanges in the course of submissions on the voir dire:
“HIS HONOUR: Look you know, I wouldn’t for one moment suggest that this is the strongest case of police identification you could see, but my understanding of the authorities is simply this; that it’s not my function as the trial judge to say that you know, a jury shouldn’t convict on the evidence. That’s the function of the Court of Criminal Appeal as they’ve told me, or told these Courts on many occasions. If there’s evidence to go to the jury then it goes; it then becomes a matter, if there was a conviction, for the Court of Criminal Appeal to say that it’s unsafe and unsatisfactory – that’s merely what I’m saying. It’s not for me to look at it and say, ‘well I wouldn’t convict’. It’s a matter for the jury to look at the evidence; they make up their mind and if there’s some evidence there and you’ve got two women here, said ‘that’s him’.
Now sure you’ve got a lot of material you can work on in relation to the identification, but it just seems to me that if they say ‘that’s him’ well it’s a matter for the jury.
LOZINA: But my understanding is that the process has to be a fair process.
HIS HONOUR: Well I can’t see anything wrong in the process at this stage. I again’ you on the process situation (sic). You know, once again it’s a matter you can put to the jury, that you suggest that that points to your client because of this, but the fact remains people can change their hair colours; people can have different hair cuts, all these things and I don’t think that’s sufficient for me to rule out the evidence.” (T 13 23/09/02). (Emphasis added).
After some further exchanges the Judge said:
“You say it shouldn’t get to the jury.
LOZINA: That’s right, and it is because of the lack of variety in – or persons, which would fit the description given by the witnesses. As I said there’s no blonde headed person there. There’s no …
HIS HONOUR: Yeah I understand your submission. Look if it was a matter for me I might agree with you, but it’s not a matter for me. That’s as I say as I understand – is that right Mr Crown?
CROWN PROSECUTOR: Your Honour’s being asked to exercise your discretion but I would agree with your Honour that this is a case for the jury.
HIS HONOUR: See it’s not a question of discretion. The evidence is either admissible or it’s not admissible.
CROWN PROSECUTOR: I’ve just taken what my friend was saying to be couched in terms of your Honour’s discretion as to the probative value of the evidence as opposed to …
HIS HONOUR: Well I think that’s – questions of identification, that’s a matter for the jury and as I understand the law and the Court of Criminal Appeal says it’s not a matter for me to say that the evidence is insufficient, if there is evidence they’re to go to the jury. It’s a matter for the Court of Criminal Appeal.
CROWN PROSECUTOR: The Crown acknowledges there are difficulties with the evidence but it’s certainly evidence that a jury should see. In fact I’m surprised the defence are complaining that, where somebody’s described as blonde and twenty photos of someone with dark hair are shown, I would have thought that would have assisted the accused rather than militate against …
LOZINA: Your conclusion I think is …
HIS HONOUR: No look I just think it’s a matter for the jury. As I say I don’t think it’s the best Crown case I’ve seen by a long time, but I just think it’s a matter for them to consider.
LOZINA: Please the Court.” (T 15 23/09/02)
On the hearing of the appeal counsel focussed attention on his Honour’s remark, “look if it was a matter for me I might agree with you, but it’s not a matter for me”. In her submission this passage demonstrated that the Judge did not appreciate that s 135 and/or s 137 conferred on him a discretion to refuse to admit the evidence of identification. In her submission the Judge, wrongly, approached the voir dire on the basis that the identification evidence was admissible and that he was required to admit it. I am not inclined to accept that the Judge was not aware that he had a discretion to refuse to admit evidence tendered by the prosecution in criminal proceedings. If it were the Judge’s understanding that the evidence was admissible and that he was required to admit it, it is not clear why he acceded to the request that he hold a voir dire hearing.

The Judge was invited to refuse to admit the evidence on the two bases that I have set out at [21] above. I consider that his Honour rejected the submission that the selection of the photographs contained in Ex C10 worked unfairness to the appellant. He said so much in responding to trial counsel’s submission that the “process has to be a fair one”. He said, “Well I can’t see anything wrong in the process at this stage. I again’ you on the process situation (sic).” On the hearing of the appeal counsel submitted that an analysis of the transcript suggested that this remark was a rejection of the submission that the failure to include photographs of persons with blonde hair was unfair. She contended that there had been no determination of the separate question of whether it was unfair to have failed to include photographs of more persons with pimples or acne scarring.

At the commencement of submissions on the voir dire trial counsel submitted that he was not complaining of the fact of picture identification but rather, “I’m saying the manner in which it was conducted was unfair”. The Judge asked “how do you say it was unfair?” (T 11.7 23/9/02). In response to this question trial counsel submitted that there were no photographs of persons with blonde hair and that there was no one depicted in the video-tape who had more pimples than the appellant (T11. 23–30 23/9/02). I see no reason to conclude that when his Honour subsequently told counsel that he was against him with respect to the “process” argument he was indicating no more than a view that the process was not rendered unfair by the failure to select photographs of persons with blonde hair.

His Honour’s comment, “Look if it was a matter for me I might agree with you, but it’s not a matter for me” was made after he told counsel that he was against his submission that the process had been an unfair one. The remark appears to have been directed to a different issue, a trial judge does not have the power to direct a verdict of acquittal in a case that is dependent on weak evidence of identification even if he or she is of the opinion that a conviction based upon it would be set aside on appeal: R v R (1989) 17 NSWLR 608.

Turning to the challenge advanced at the trial to the identification evidence of Renee Andrews, it was submitted of the statement made by Constable Berry:
“… it is almost, it is leading — in my respectful submission — her into — there’s a choice between 12 and 18 and in my respectful submission that statement influences Miss Andrews identification in the end” (T 12.2-6 23/9/02).
His Honour observed “all he says is ‘the colour of hair can be changed’” (T 13.44 23/9/02). It is apparent that the Judge rejected trial counsel’s submissions on this aspect. It is difficult to see how he could do otherwise. The videotape, Ex C10, contains an introduction informing the viewer that it should not be assumed that the suspected person’s photograph is included in the presentation. In her statement Renee Andrews said that she read the introduction and understood it. She did not say that she had been influenced to choose photograph 18 as the result of Constable Berry’s remark. She was not required for cross-examination on the voir dire and the question of what she understood to be the significance of Constable Berry’s remark was not taken up with her.

In Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 McHugh J observed at [50], [51] and [52]:
“The evidence identifying Ms Festa as the woman seen on the days of the robberies was weak. The identifications were obtained in circumstances marked by an absence of the precautions usually taken in the identification of suspects. They were made in informal circumstances, as Ms Festa was entering a court building unaccompanied by any other women. No police officer kept a record of the identification process. No one made notes of the process. No one took photographs of the identifications or recorded them on video camera. By asking the witnesses to look out for the female participant and allowing them to remain together, Detective Holmes also removed the possibility of each witness spontaneously identifying Ms Festa as the woman he or she had seen.
But the weakness of relevant evidence is not a ground for its exclusion. It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task.
Nor is it an automatic ground of exclusion that the identification took place at a court house or after someone has suggested that a suspect may be present at a particular place. The courts have not gone so far as to say that a court house identification must be automatically excluded where a police officer or other person has suggested that the identifying witness should be on the lookout for the perpetrator of the crime at the court house. Such statements inevitably weaken the effect of the identification evidence. They are matters to be considered in determining whether evidence should be excluded because its probative value is outweighed by its prejudicial effect. Of itself, however, a statement such as that made by Detective Holmes does not provide a ground of exclusion.”
The Judge admitted the evidence of identification. The appellant appeals against his conviction contending that the Judge erred in failing to exclude the evidence and that this resulted in a miscarriage of justice. In Alexander v The Queen (1981) 145 CLR 395 at 402 – 403 Gibbs CJ said:
“The authorities support the conclusion that I have reached, which is that, as a matter of law, evidence of an identification made out of court by the use of photographs produced by the police is admissible. However, a trial judge has a discretion to exclude any evidence if the strict rules of admissibility operate unfairly against the accused. It would be right to exercise that discretion in any case in which the judge was of opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused. … If the trial judge admits the evidence, and the accused is convicted, the true question for the Court of Criminal Appeal is whether having regard to the whole of the evidence it would be so unsafe or unsatisfactory to allow the conviction to stand that to do so would amount to a miscarriage of justice. In considering that matter the Court of Criminal Appeal also will keep in mind the importance of ensuring that the most reliable evidence of identification is obtained in every case.”
This passage was cited by Gleeson CJ with apparent approval in Festa at [19]. It accords with the judgment of Gibbs CJ in Maric v R (1978) 52 ALJR 631 at 634.G – 635.A, dealing with appeals against conviction in which issue is taken with a discretionary judgment of the primary judge.

In the way the appellant’s case was argued attention was directed to the question of whether the Judge had in fact carried out the weighing process that s 137 of the Act requires before determining to admit the evidence. In this respect it was noted that the determination of an application made under s 137 is not a true discretionary judgment, if the balancing exercise results in a finding that the danger of unfair prejudice to the accused outweighs the probative value of the evidence, the evidence is not admissible: Blick [2000] NWSCCA 61; (2000) 111 A Crim R 326 per Sheller JA (with whom James and Dowd JJ agreed) at 333, [19] and [20]. The suggested failure of the Judge to apply s 137 was submitted to be a wrong decision on a question of law within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW). It was argued that there had been a miscarriage of justice in that the appellant had lost a chance that was fairly open to him of acquittal: Mraz v The Queen (1955) 93 CLR 493 at 514; Wilde v The Queen (1988) 164 CLR 3; Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115.

In Stanoevski the trial judge granted leave to cross-examine the appellant without directing his mind to the requirements of s 192 of the Act. It was not apparent that, had the judge taken into account the considerations to which s 192 directs attention, the leave would have been granted. The cross-examination the subject of the grant of leave had assumed prominence in the Crown case. Each of the justices in Stanoevski was of the opinion that it could not be concluded that no substantial miscarriage of justice had been occasioned as the result of the decision to allow the cross-examination: Gaudron, Kirby and Callinan JJ at 128, [49] and [50]; McHugh J at 129, [55] – [58]; Hayne J at 131, [67].

Contrary to the assertion in the appellant’s ground of appeal, the Judge was not asked to exclude the identification evidence pursuant to s 135 or s 137. On the hearing of the appeal counsel submitted that the effect of the defence application at trial that “the procedure involved was unfair and unreliable” (T. 6.16 23/9/02) was to require the Judge to consider the admissibility of the evidence under s 137. Accepting for present purposes that the Judge had an application before him for the evidence to be rejected under s 137, for the reasons that I have earlier given I am not persuaded that his Honour failed to balance the probative value of the evidence against any danger of unfair prejudice to the appellant. It seems to me that his Honour found that neither the selection of the photographs in Ex C10 nor the remark made to Ms Andrews gave rise to a danger of unfair prejudice to the appellant.

If I am wrong in coming to this view and the Judge did neglect to consider the matters to which s 137 directs attention, in my view the appeal should nonetheless fail. This is because I consider that no Judge acting reasonably and weighing the probative value of the evidence against the danger of unfair prejudice to the appellant would have refused to admit the evidence of picture identification. Picture identification evidence was admissible under s 115 of the Act. The probative value of the evidence was high and there was no feature of the evidence that gave rise to a danger of unfair prejudice to the appellant. There has been no miscarriage of justice: Stanoevski per McHugh J at 129, [56].

The 20 photographs contained in Ex C10 show persons broadly of the same age, complexion and hair colour as the appellant. No characteristic of the photograph of the appellant stands out from the other photographs. The photograph of the appellant was taken at a time when he had brown hair. All the persons whose photographs were included in Ex C10 appeared to have brown hair. No danger of unfair prejudice arises because the videotaped presentation contained the photographs of persons who were of the same general appearance as the appellant.

The assertion that the appellant was the only person depicted with pimples or acne scarring did not seem to me to be supported by viewing the videotape, Ex C10. The photograph of the appellant shows two red marks on his forehead and a smaller reddish mark on the right side of his chin. To my mind the red marks visible on the appellant’s forehead and chin did not appear to be consistent with being acne scarring although they may have been pimples. I note that Fiona Bigeni did discern acne scarring on the cheeks of the appellant in photograph 18. She was the only person to refer to this feature of the photograph of the appellant.

None of the witnesses described the robber as having pimples or acne scarring on his forehead or chin.

The suggestion that the photograph of the appellant was the only photograph depicting a person with acne scarring or pimples needs to be assessed against the circumstance that Nadine Huxley identified the man depicted in photograph two as the robber observing that he had acne scarring on his cheeks.

To my observation neither photograph two nor photograph 18 depicted a man with noticeable acne scarring to the cheeks. The witnesses Nadine Huxley and Fiona Bigeni considered that acne scarring was discernable in one of the two photographs in each case. It is a matter of opinion about which minds may differ. It remains my view that the photograph of the appellant cannot be said to stand out from the other photographs by reason of the appearance of acne scarring or otherwise.

I consider that the evidence of picture identification was properly admitted. The Crown case was substantially dependant upon this evidence. Two witnesses made a positive identification of the appellant as the robber and Ms Andrews gave evidence of the likelihood that he was. The evidence of the finding of the distinctive jogging shoes at the appellant’s home was significant.

No complaint is made as to the adequacy of the directions that the jury were given concerning the picture identification evidence. No ground was taken that the conviction cannot be supported by the evidence.

I would reject the sole ground of appeal against conviction.

Application for leave to appeal against the severity of the sentences

I turn now to the application for leave to appeal against the severity of the sentences imposed upon the appellant.
Following the jury’s verdict the Crown Prosecutor informed the Judge that the appellant had pleaded guilty to four other charges and that he had been committed for sentence from the Local Court. The appellant adhered to his pleas of guilty in relation to each of those matters. The proceedings were stood over to 22 November 2002. On that date Ms Spears, who appeared on the appellant’s behalf, stated that as the result of discussions between herself and the Crown Prosecutor it was proposed that the appellant would be charged on indictment with certain of the matters that had been the subject of the committal for sentence and that some matters might be dealt with on a Form 1 pursuant to the provisions of s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

In the event, on 22 November 2002 the applicant was arraigned on an indictment and he entered pleas of guilty to the following charges:
(i) Steal from the person in an amount of $750 on 8 October 2001,
(ii) assault Stephen Watson a police officer whilst the officer was acting in the execution of his duty thereby occasioning actual bodily harm to him,
(iii) attempt escape from lawful custody on 9 November 2001.
The Form 1 document recorded three further offences: (i) common assault committed on 9 November 2001; (ii) assaulting a police officer (throwing a shoe at an officer in the charge room at the police station on 9 October 2001); and (iii) assaulting Police Officer Bates (punch to the head in the charge room at the police station on 9 October 2001).
Count one in the indictment, the charge of steal from the person, was preferred under s 94 of the Crimes Act and carries a maximum penalty of 14 years’ imprisonment.
Count two in the indictment, the charge of assaulting a police officer in the execution of duty thereby occasioning actual bodily harm is provided by

s 60(2) of the Crimes Act and carries a maximum penalty of seven years’ imprisonment.

Count three in the indictment, the charge of attempted escape from lawful custody is a common law offence for which the maximum penalty is at large.
The facts of the offences for which the appellant stood for sentence on 22 November 2002 were described by the Judge in his reasons for sentence as follows:
“The facts in relation to the accused are that at the time these offences were committed, he was on parole from a sentence imposed by the Court of Criminal Appeal, and the parole was to expire on 19 March 2004. The offender has been in custody since 9 October serving the balance of his parole.
The facts in the armed robbery found by the jury, as I understand, are that the accused entered on the date 25 September the Windsor branch of the Westpac Bank armed with a firearm, and the four customers in the Bank and the staff were threatened, customers were told to lie on the floor, and the tellers threatened and told to pass over the money they had. They passed over some $12,000 and the prisoner fled. It was a terrifying incident for all those people who were in the Bank.
Subsequently, before his arrest, he went into premises in relation to the Dural Pet Shed at 387 Old Northern Road, Dural, and in the ultimate there he stole $750 from the cash register and he told the young lady who was there words to the effect, ‘don’t do anything, don’t you fucking move’. She was petrified.
He was arrested on 9 October and charged with that offence and the offence of armed robbery. He subsequently made an application to the Local Court at Penrith for bail. In the course of that application, he attempted to escape. He was held by officers there including the Police Prosecutor, a struggle ensued and the Police Prosecutor suffered some injury, glasses were broken and his eye – the area around his eye was cut and so on.” (ROS 1-2)
The applicant was aged 29 at the date of sentence. He had been in custody since his arrest on 9 October 2001. As the Judge noted, he was serving the balance of parole in respect of a sentence imposed by this Court on 4 March 1998 following a successful appeal against the severity of sentences imposed in the Sydney District Court on 9 May 1997 in relation to a number of offences including robbery, steal motor vehicle (seven counts) break, enter and steal and stealing from the person (four counts). The sentence that was substituted in this Court provided a minimum term of five years’ imprisonment, to date from 20 March 1996 and to expire on 19 March 2001 together with an additional term of three years.
The applicant is a person with a lengthy criminal record, dating back to entries for offences that were dealt with in the Children’s Court. As an adult he has been convicted and sentenced to terms of imprisonment on a number of occasions for offences including larceny, steal motor vehicle, assault prison officer, escaping from lawful custody, assault occasioning actual bodily harm and those the subject of the sentence that he was serving at the date of the commission of the present offences.
The Judge noted the subjective case made by the appellant in these terms:
“Subjectively, the prisoner is a young man of some twenty-nine years of age. His history and background have been set out in a psychological report. He did not give evidence, but I see no reason not to accept the evidence of what told the psychologist in the circumstances of this particular case, and it would appear that he has had a somewhat, indeed more than a somewhat, dysfunctional upbringing and background. He has a record going back to juvenile court when he was very young. The offences for which he has appeared before these Courts are serious. On prior occasions, he has a history of violence both in custody and out of custody by the very nature of the offences that he has committed, and he has spent a large portion of his adult life in custody and indeed some of his growing up years as well.” (ROS 2-3).
His Honour went on to note that the appellant’s criminal record did not “mean that he gets more because of that record” (ROS 3), however it did not entitle him to leniency. No discount applied to the sentences for the armed robbery offences. However the Judge allowed a discount of 20% with respect to the offences to which the appellant pleaded guilty on 22 November 2003.
The Judge took into account that in pleading guilty the appellant had spared Ms Freeman, the complainant in the steal from the person count, the ordeal of giving evidence. He noted that the appellant had written to each of the people involved in the escape episode at the Local Court and to the victims of the offences recorded on the Form 1. His Honour accepted that this evidenced remorse.
The Judge considered that this was an appropriate case in which to provide for a measure of accumulation in the sentences to be imposed. It cannot be said that he was in error in this respect. He found special circumstances taking into account the submission made by Ms Spears that the appellant was a person at risk of being institutionalised.
On the charge of steal from the person the Judge imposed a fixed term of 18 months’ imprisonment to commence on 22 November 2002 and to expire on 21 May 2004.
On the charge of assaulting a police officer in the execution of his duty thereby occasioning actual bodily harm a fixed term of three years’ imprisonment was imposed. That sentence was specified to commence on 22 November 2002 and to expire on 21 November 2005.
On the charge of attempted escape a fixed term of two years’ imprisonment was imposed. That sentence was expressed to commence on 22 November 2002 and expire on 21 November 2004. Each of the offences to which the appellant pleaded guilty on indictment was ordered to be served concurrently. The longest of these was expressed to expire on 21 November 2005.
In relation to the two convictions for the offences of armed robbery sentences of eight years imprisonment were imposed. These were expressed to commence on 22 November 2004. They were thus partly accumulated on the sentences imposed for the three offences to which the appellant had pleaded guilty. A non-parole period in relation to the armed robbery offences of three years was specified to commence on 22 November 2004 and to expire on 21 November 2007.
The overall sentence imposed by the Judge was one of ten years’ imprisonment. The effective non-parole period was one of five years.

No challenge was made to the individual sentences.

In written submissions counsel contended:
‘All of the offences were committed in breach of parole and whilst it is conceded that the applicant’s criminal conduct is undeniably serious it is respectfully submitted that having regard to the pre-sentence custody (that applicant having been returned to custody on 9 October 2001) the practical effect of the sentence imposed, resulting in an effective head sentence of eleven years and a non-parole period in excess of six years is manifestly excessive.”

No error is identified in the Judge’s approach to sentence, save the contention that the result, taking into account the pre-sentence custody, is manifestly excessive.
The appellant’s pre-sentence custody was referable to the balance of the sentences imposed in this Court in 1998. Those sentences expired on 8 April 2004.
The Judge commenced the sentences for the offences with which he was dealing on the date they were imposed. He referred in terms to totality in sentencing. The armed robbery offences were committed while the appellant was on parole in relation for offences, including robbery. This is a circumstance of very considerable aggravation. Equally the offence of steal from the person, together with the offences committed at the court on 9 November 2001, occurred while the appellant was on parole.
I am not of the opinion that an effective sentence of ten years with a non-parole period of five years in respect of these serious offences aggravated as they were by the circumstance that the applicant was on parole can be properly characterised as falling outside the exercise of sound discretion.

The appellant sought to lead new evidence on the hearing of his application. The evidence was contained in an affidavit affirmed by the appellant on 4 March 2004. He stated:
“I have been on protection since 1994 when I was the victim of knife attack at Silverwater Jail. When I returned to jail after the attempted escape from Penrith Court on 9/11/01, I was classified as an ‘extreme high risk’ inmate. At the time I was sentenced I was on segregation. I did not realise that I should point out to my counsel that my ‘normal’ classification was as a protection inmate. Since 2/7/03 I have been housed at the High Risk Management unit (‘Supermax’) at Goulbourn Correctional Centre. I am not classified as being on segregation.”
The appellant went on to describe the conditions for prisoners held in the High Risk Management Unit. Conditions are considerably more restrictive for prisoners housed in that Unit than they are for prisoners in ordinary discipline.
This Court has exceptionally allowed new evidence on the hearing of an application for leave to appeal against the severity of sentence in a case where the applicant failed to understand the significance of the material:

R v Many (1990) 51 A Crim R 54 at 61. In that case the applicant had not appreciated the significance of his assistance to the authorities to the exercise of the sentencing discretion. Many was an unusual case. The present application does not raise like considerations. The applicant’s custody is likely to be of a more restrictive nature than applies to other inmates because of his history of attempting to escape from custody. I do not consider that a person who has a history of escaping or of attempting to escape from custody can claim a discount on his sentence because the correctional authorities classify him as a prisoner who requires to be held in conditions of high security: Killick [2002] NSWCCA 1; (2002) 127 A Crim R 273 per Smart AJ at 283. The material contained in the applicant’s affidavit would not in my view have led the Judge to impose a different and lesser sentence.

For these reasons the orders that I propose are as follows.

Orders

Dismiss the appeal against conviction.
Grant leave to appeal against the severity of sentence.
Dismiss the appeal against sentence.

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LAST UPDATED: 11/05/2004