R v Holliday and Roberts

[1992] TASSC 103

COURT:  SUPREME COURT OF TASMANIA

CITATION:              R v Holliday and Roberts [1992] TASSC 103; B25/1992

PARTIES:  THE QUEEN
  v

HOLLIDAY, Cameron Trevor
ROBERST, Jason Paul

FILE NO/S:  345/1991
DELIVERED ON:  19 June 1992
JUDGMENT OF:  Slicer J

Judgment Number:  B25/1992
Number of paragraphs:  16

Serial No B25/1992

List "B"

File No 345/1991

R v CAMERON TREVOR HOLLIDAY and JASON PAUL ROBERTS

REASONS FOR JUDGMENT  SLICER J

19 June 1992

1. Cameron Holliday and Jason Roberts have each pleaded guilty to two counts of assault contrary to the Criminal Code, s184. The crimes occurred during an incident in Elizabeth Street, North Hobart on 20 November 1991 involving an attack upon the one victim. Each count alleged an assault by "kicking and punching the victim". A third person has been convicted by a jury of the crime of robbery, such crime arising out of the same incident and involving the taking of a wallet containing $1,000.00 whilst the victim was in a helpless condition. Certain events were not disputed by the prisoners, but issue was taken with allegations that during the course of the assaults one or both men produced knives for the purpose of dissuading citizens from coming to the aid of the victim. Both men denied any use or knowledge of the presence of knives.

Allegation of Aggravation

1. The Crown claimed that the presence of a knife or knives by the men constituted a particular which was significant to the matter of sentencing. The allegation of the presence or use of knives was not a particular set forth in the indictment, but it could not be said that such allegation prejudiced the defence since the matter had been canvassed with the prisoners by the police during the interviews and was known to the defence prior to the taking of the pleas. The indictment originally presented against the men alleged the crime of aggravated armed robbery and contained, as a particular, the allegation that the men were "armed with offensive weapons to wit knives". The present indictment alleging the crimes of assault has been presented in substitution for that indictment. As such the matters canvassed by the High Court in De Simoni v R (1981) 147 CLR.383 are not applicable to this determination. Any sentence could not be reflective of the allegations contained in the original indictment. The defence, aware of the basis of the allegation, requested, before plea, that the disputed facts be determined on the basis of sworn evidence.

1. The essence of the claim of aggravation was that the knife or knives facilitated the commission of the crime in that:

–     

they were produced in the presence of the victim at the same time as words (threatening to others) were used; the effect being to affect any continued resistance by the victim;

and

–     their presentment, accompanied by words, prevented the intervention of others seeking to aid the victim and thus enabled the two men to resume the assault.

Basis of Determination

1. The Crown tendered, with the consent of the defence, the transcript of the proceedings of the trial of the third man (convicted of aggravated robbery) and called five witnesses (specified by the defence) for the purpose of cross–examination. The video taped records of the interviews of both men, a number of exhibits, and some statements appearing in the Crown papers were tendered. Neither of the prisoners gave evidence.

Facts of Assault

1. The victim, a young man, already affected by liquor, arrived at a hotel in North Hobart at about 11.00pm where he met with Mr Holliday, whom he had known from school. He purchased Mr Holliday some drinks, producing one or more $50.00 notes from his pocket. He was involved in no altercations inside the hotel and left at about 11.50pm. He hailed a taxi, but as it pulled up, he was attacked by one of the three men and prevented from entering it. The tallest of the three went round to the driver‘s side of the taxi and made a threat which caused the taxi driver to leave the scene. At the same time the other two men assaulted the victim by striking and kicking him. Soon after, three men came out from a nearby hotel, the Queen's Head, to prevent the continuation of the assault. During the course of their intervention the attack ceased enabling the victim to attempt an escape. The interveners withdrew and the assault was recommenced by all three men. At the end of the assault the victim was left lying in the gutter in a helpless condition.

Disputed Facts

1. The Crown alleged that at the time of the intervention and whilst the three assailants were in the presence of the victim, knives were produced and an advance made towards the interveners which caused them to withdraw. Both Mr Holliday and Mr Roberts contested such allegation. It was common ground that shortly after the attack both men were found to be in possession of knives. The Crown called a number of witnesses, including the three men who had attempted to intervene, and one who had witnessed the attack whilst remaining inside the hotel. I accept the substance of their evidence in relation to the matter in issue and do not accept (where there is a contradiction) the denial of both men made in the course of their interview with the police. The transcript of the evidence tendered and the evidence given on the hearing of this matter leads me to the conclusion that the prosecution witnesses were both honest and credible. Any discrepancies in their testimony are easily explicable by the time frame of the events, the stress to which they were subjected and the passage of time. Allowing for the discrepancies, it is clear that the interveners saw and believed that at least one of the three assailants had presented a knife in circumstances whereby it would be improbable to accept that the companions were unaware of its existence. I reject the contention that what the witnesses saw was a rolled up wine cask held by one of the assailants. It is equally improbable that the presentment of the knife was unaccompanied by threats of its use. The above is stated in the singular because I am not satisfied that two knives were presented.

1. The witnesses not only claimed to have seen one of the men with an object having the appearance of a knife, but heard the possessor call out that he had a weapon and was prepared to use it. It is significant that both prisoners agreed that they had heard the interveners call out for them to leave the victim alone, but both, during their interview with the police, claimed not to have heard any threat by any of their party that the knife would be used. In addition, it would be strange if the three men from the Queen‘s Head would retreat unless they observed a knife and heard the threat to use it.

Standard of Proof

1. In relation to the required standard of proof, it is clear from the authorities that it is dependent upon the significance of the fact in issue and the importance it could play in the sentencing process. I adopt the approach taken by the Victorian Full Court in R v Chamberlain [1983] 2 VR 511 where, at pp514 – 515, it was stated:

"The guidance for sentencing judges which we would draw from this passage [referring to Brigenshaw v Brigenshaw (1938) 60 CLR 336] is that the degree of persuasion required will vary with the nature and consequence of the fact or facts in question. If, for instance, a sentencing judge were disposed to make the determination whether to impose or not to impose a custodial sentence depend upon the existence of a particular fact or facts he would certainly require to be satisfied to a high degree of the existence of those facts. But if the fact in question were no more than a part of the narrative a similar degree of persuasion is obviously not required."

1. In this case the appropriate standard of proof is that of beyond reasonable doubt. That standard is applied to the three questions:

–         Was a knife presented?

–           And if so:

–         Whether a knife was presented by both prisoners?

–         If only one knife was presented, by whom was it produced?

Findings

1. On the evidence presented, I find that during the course of the assaults a knife was produced in the presence of the victim. Its production had little or no effect upon the victim who was, at the time, unable to maintain any effective defence to the attack. The presentment of the knife prevented the intervention of three citizens and allowed the three men to recommence their attack upon their victim. It is unlikely that three men, of the nature and calibre of those who gave evidence, would have desisted from their attempts to assist the victim unless they had good cause to be afeared. Given their testimony of seeing the presentment of an object with the characteristics of a knife, their retreat and the subsequent discovery that the two men possessed knives, I am satisfied to the requisite degree that a knife was weilded.

1. Applying the same test, I find that a knife was presented by Mr Roberts. Three of the witnesses averred to the fact that the man who challenged them with a knife was the tallest of the three. The three assailants were taken into custody shortly after the incident and the police identified Mr Roberts as being 180cm. in height, compared with the other two who measured 174cm. and 176cm. respectively. In addition, the witnesses identified the possessor of the knife as being the same man who had threatened the taxi driver, such man being the tallest of the three assailants. It is true that the description of the knife presented more closely matched that found by the police in the possession of Mr Holliday, but given the evidence of the witnesses, I am satisfied to the requisite degree that it was weilded by the tallest man, namely Mr Roberts. For the purpose of sentence, little significance flows from that since I am satisfied that the knife was presented in circumstances that the other man acted in the continuance of the assault confident that the threat and usage of the knife had prevented interference. In other words, the assault continued by both Mr Holliday and Mr Roberts because of the presentment by one and the knowledge of the other that its production facilitated the continuation of the assault.

1. I do not find that a second knife was produced or presented. There is some evidence that two men produced weapons but I am not satisfied beyond reasonable doubt that such was the case.

Factors Affecting Sentence

1. The assaults were serious and extensive and although the victim suffered no permanent harm, the nature and method of the attack posed a significant threat to the safety of a citizen who had done nothing to bring about the assaults. The immobilisation of the victim enabled a third person to effect a robbery, and although the sentence is not reflective of that crime, it is relevant that some additional harm was caused to the victim as a result of the conduct of the two prisoners.

1. In addition the following matters are taken into account:

–         the resumption of the attack following the prevention of intervention;

–         the fact that it was an attack made in company;

–         the absence of remorse for the plight of the victim;

–the absence of a serious record on the part of either of the two men, although I note that Mr Roberts has a previous conviction for being drunk whilst in control of a weapon; and

–         the age of the offenders.

Parity

1. The third man, convicted of the crime of robbery, was sentenced to a term of imprisonment of two years. The appropriate sentence in this case is intended to distinguish between the respective degrees of culpability associated with the different crimes.

1. As between the two prisoners there is little to distinguish between them. The finding is to the effect that it was Mr Roberts who struck the first blow and who weilded the knife. It may be that Mr Holliday was emboldened by its production and may have desisted from the attack but for its presence. In all other respects they share equal culpability but the sentence is intended to reflect the above distinction.

Order

–Cameron Trevor Holliday is sentenced to a term of imprisonment for a period of twelve months, such sentence to commence as from 19 May 1992.

–Jason Paul Roberts is sentenced to a term of imprisonment for a period of fifteen months, such sentence to commence as from 19 May 1992.