R v Hansell

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: R. v. HANSELL [2000] NSWCCA 141

FILE NUMBER(S):
60332/99

HEARING DATE(S): 14 April, 2000

JUDGMENT DATE: 14/04/2000

PARTIES:
REGINA v. Jerry Leslie HANSELL

JUDGMENT OF: Priestley JA Foster AJA Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/31/0253

LOWER COURT JUDICIAL OFFICER: FREEMAN DCJ

COUNSEL:
Appellant in person
C K Maxwell QC
(Crown)

SOLICITORS:
Appellant in person
S.E. O'Connor
(Crown)

CATCHWORDS:
Criminal Law - Sufficiency of Identification Evidence - Sentence - Armed robbery - two associated offences

LEGISLATION CITED:

DECISION:
Appeal against conviction dismissed. Leave to appeal against sentence granted. Appeal allowed; sentences quashed. In lieu of sentences imposed the appellant is sentenced on each of the two offences to concurrent sentences of 5 years imprisonment starting on 8 June 1999 with a non-parole period of three years nine months expiring on 7 March 2003.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

CCA 60332/99
PRIESTLEY JA
FOSTER AJA
SMART AJ

FRIDAY 14 APRIL 2000

REGINA v Jerry Leslie HANSELL
JUDGMENT:

PRIESTLEY J: Mr Justice Smart will give the reasons.
SMART AJ: Jerry Leslie Hansell appeals against his conviction on two counts of armed robbery and seeks leave to appeal against the severity of concurrent sentences each comprising a minimum term of four and a half years and an additional term of one and a half years.
The only issue in the trial was the identification of the appellant as the armed robber. The Crown case depended very substantially on the evidence of Ms Crystal Pescud. She said that about 8.45pm on 26 February 1998 as she and her friend, Mrs Betty Potter, walked from the Mingara Recreation Club to Mrs Potter’s vehicle in the car park, she saw a white Ford Falcon being reversed and driven around to the row in which Mrs Potter had parked her vehicle. The Falcon was parked two spaces away. Ms Pescud identified the car because “it's exactly like my father owned”. Ms Pescud said that when she got to Mrs Potter’s vehicle she put the shopping bags of groceries which she was carrying down on the ground. Mrs Potter was unlocking the passenger’s side front door of her vehicle.
A male passenger got out of the Falcon, walked over and stood beside Ms Pescud. He was about half a metre away. The area was well lit. The light on a nearby lamp post was on as were the lights on the Falcon. The male, later identified as the appellant said, according to her, “Give us your bag”. She turned and looked at him and down at the knife he was holding. He said, “Give us your bag or I'll stab you in the stomach.” She took her bag, (a backpack)off and put it on the ground. The blade of the knife was pointing forwards. It had a red handle and the blade had a straight edge with the tip being broken off. The blade was roughly about 10 cms long.
The appellant picked up the bag. She next recalls seeing him standing over Mrs Potter who was sitting in the passenger side of the car, leaning backwards with her legs out of the car. The appellant said to Mrs Potter, “Give us your bag”. Mrs Potter refused. The appellant cut the straps off the bag and took it. She was trying to sound the horn of her car. The male drove off in his white Ford Falcon.
Ms Pescud memorised the registration number of the Ford Falcon and told the lady in the club and a security guard. The police were contacted and Ms Pescud repeated the number to a police officer when he arrived.
Ms Pescud said that she looked at the face of the male for “roughly about five seconds, maybe a bit longer”. She described him as having, “Sort of shoulder length curly brown hair. He was wearing a short sleeved shirt...it was a dark colour. Track suit pants”. She thought that they were black. She thought that the male was about twenty eight years of age. She said that he was a bit taller than her and that she was about five foot six inches. She did not recall any tattoos on his arms. There were some.
She said that about a week later - in fact it was five - she went to Wyong Police Station where she was shown a video containing pictures of thirteen males (it may have been twelve). She identified picture number 5 as being a picture of the armed robber. It was a picture of the appellant. She watched the video three times at the direction of Detective Norris. She said that she identified the appellant on the first occasion the tape was played. She said nothing at this stage but announced her identification on the second playing of the tape.
Mrs Potter could not identify the male who robbed her. She explained that it was “so dark that night”. When shown the video she was inclined to select pictures 10 and 12. The police ascertained that the white Ford Falcon, whose number had been memorised by Ms Pescud was registered in the name of the appellant.
The police attended his unit about 10.30pm and midnight that night but the appellant was not at home. About 1.15am Senior Constable Hughes found the Falcon in the lower visitor’s car park of the units. The car was secured with a chain and padlock around the steering wheel. The engine was still warm. The appellant denied being involved in the robberies. He admitted ownership of the vehicle but said that it had been stolen on the night.
He contended his vehicle had been stolen on five or six occasions previously and that he had reported that to the police on about three occasions. He said that he had not reported the vehicle missing on the other occasions because when he had reported it stolen the vehicle was located twice in a row just around the block. Therefore he “just went out and searched for it …knowing it’d probably be around the block again”. The appellant said the damage to the driver’s side locking mechanism occurred on a previous occasion but that he had chased the thieves before they gained access to the vehicle.
He said that on the night of the robberies the lock had been “picked out properly to gain access to the vehicle”. The appellant said that he noticed the vehicle missing about 8pm on the evening of 26 February 1998 when he went downstairs to secure it. He and his wife then went looking for the vehicle on foot and located it around 10.30pm that evening at Shelley Beach Car Park. He then returned home and secured the vehicle with a chain and padlock.
The appellant said that he was six feet one inch in height and weighed about sixteen stone. He often went as high as eighteen stone. His physical appearance was the same as on the night of 26 February 1998 but that he may not have had a goatee. His hair would have been the same length but he usually combed it back. The appellant agreed that he did not have a goatee and moustache or wear his hair combed back in the video of 7 April 1998. That was when he was interviewed.
The trial judge gave extensive directions as to identification and he pointed out the deficiencies or possible deficiencies in the identification evidence led by the Crown. The judge summarised the defence case fully.
The appellant relied on these deficiencies in the identification evidence:
(i)Five weeks elapsed from Ms Pescud allegedly seeing him on 26 February 1998 and viewing the video on 31 March 1998.
(ii)Ms Pescud failed to observe the very distinct tattoos on his forearm.
(iii)Ms Pescud described the appellant as being a slightly built man and only a bit taller than her. He was six feet one inch tall and sixteen to eighteen stone.
(iv)Ms Pescud informed Senior Constable Hampton (the first police officer to whom she spoke) that the armed robber spoke with an English accent. The appellant was born and raised in Sydney and had never visited the United Kingdom.
These were only some of the deficiencies to which the judge referred to in his summing up. Additionally, the judge referred to Mrs Potter saying that it was quite dark and her estimate that the appellant was about three inches taller than her, she being five feet two inches tall. The judge also reminded the jury that Ms Pescud’s recollection of the events was an incomplete one.
Having studied the evidence I am of the view that it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt based on the evidence of Ms Pescud as to the type of car driven by the armed robber, its registration number and her visual observation of the robber and identification from the video. The vehicle was registered in the appellant’s name. His story as to the vehicle, and the vehicle’s movements on 26 February 1998, was one that was not credible.
There was no sufficient basis to refuse to admit Ms Pescud's evidence, nor to take the case from the jury. The evidence sufficiently supported the verdict. Essentially there was ample material for the jury to reach the verdict which it did. I would propose that the appeal against the conviction be dismissed.
SENTENCE:
After narrating the circumstances of the offence the judge correctly characterised the offence of armed robbery as extremely serious. He noted the absence of a plea of guilty, any subsequent contrition and the appellant's poor record. It stretched back to 1984 and included robbery with striking in 1987 and dishonesty offences in 1988. For both groups of offences the appellant received substantial sentences. However, from 1988 until the present offences in 1998 there were some relatively minor offences in 1992 but nothing else. Thus, for about ten years he has kept out of any serious trouble.
The judge considered the appellant's personal circumstances. These included:
(a)The appellant suffered severe emotional disturbance with the death of his young son, a quadriplegic. Amongst the effects was consequent depression.
(b)The appellant had engaged in charitable work to help young people, the disabled and the needy.
(c)The appellant suffers a degree of disability arising from his back condition.
I have had regard to the guidelines in this court's judgment in Henry. This case differs somewhat from the type of case that was being dealt with in Henry. In all the circumstances I have come to the conclusion that, notwithstanding the seriousness of the offences, the head sentence of six years was excessive and that the minimum term imposed was excessive. In my opinion the appropriate sentence was a head sentence of five years and a minimum term of three years nine months. Because we now have to consider the regime created under the Crimes (Sentencing Procedure) Act 1999 I would propose that counsel be invited to address the form of the court order but my present provisional view is that there should be a head sentence of five years with a non parole period of three years nine months, the sentences to date from 8 June 1999.
PRIESTLEY JA: I agree with what has been proposed by Justice Smart and also with his reasons.
FOSTER AJA: I likewise agree.
PRIESTLEY JA: The court dismisses the appeal against conviction, grants leave to appeal against sentence and upholds the appeal and instead imposes a sentence in accordance with the terms stated by Mr Justice Smart. Perhaps for clarity sake, since the appellant is in person, we should repeat those.
SMART AJ: The total sentence is one of five years starting on 8 June 1999 with a non parole period of three years and nine months which expires on 7 March 2003. The effect of what has happened is that the head sentence has been reduced by one year and the non parole period by nine months.
PRIESTLEY JA: They are the orders of the court.

LAST UPDATED: 15/05/2000

[2000] NSWCCA 141

14 April 2000