R v Holton - [2004] NSWCCA 214

No judgment structure available for this case.

CITATION: Regina v Holton [2004] NSWCCA 214

HEARING DATE(S): Friday 12 December 2003

JUDGMENT DATE:
30 June 2004

JUDGMENT OF: Grove J at 1; Hulme J at 69; Smart AJ at 133

DECISION: APPEAL AGAINST CONVICTION DISMISSED; CROWN APPEAL AGAINST SENTENCE DISMISSED (BY MAJORITY)

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - MURDER AND DANGEROUS DRIVING CAUSING DEATH CHARGED IN INDICTMENT - PLEA OF GUILTY TO ONE COUNT - STATUTORY PROVISION AGAINST DOUBLE JEOPARDY - WHETHER OFFENDER CONVICTED IN CIRCUMSTANCES - WHETHER COURT RECORD PERFECTED - SENTENCE - CROWN APPEAL ASSERTING INADEQUACY

LEGISLATION CITED: Crimes Act 1900

CASES CITED: AG's Apln under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] 56 NSWLR 146
Boughey v The Queen 1986 161 CLR 10
Burgess v Boetefeur 1844 7 Man & G 481
Cmr for Railways (NSW) v Cavanough [1935] 53 CLR 220
Della Patrona v DPP (No 2) 1995 38 NSWLR 257
DPP v Helou [2003] NSWCA 301
DPP v McCoid [1988] VR 982
Everett v The Queen 1994 181 CLR 295
Gilbert v The Queen 2000 201 CLR 414
Griffiths v The Queen 1977 137 CLR 293
Maxwell v The Queen 1995 104 CLR 501
R v Adam [1999] NSWSC 144
R v Ainsworth 1994 76 A Crim R 127
R v Annakin 1988 17 NSWLR 202n
R v Baker [2000] NSWCCA 85
R v Beeby 1998 104 A Crim R 142
R v Carrion 2002 128 A Crim R 29
R v De Simoni [1980-1981] 147 CLR 383
R v Gordon, unrep CCA 7 Feb 1994
R v Hall [2001] NSWCCA 202
R v Hura 2001 121 A Crim R 472
R v Jerome & McMahon 1964 Qld R 595
R v Murnin NSWCCA unrep 16 Aug 1985
R v Phillips & Lawrence 1967 Qd R 637
Richards v The Queen [1991] AC 217
R v Ryan [2003] NSWCCA 202
R v Thompson [1976] 2 NSWLR 453
R v Tonks & Goss (1963) VR 121
Ryan v The Queen 2001 206 CLR 267
Quartermaine v The Queen 1980 143 CLR 595
S v Recorder of Manchester [1971] AC 481
Veen v R (No 2) [1987-88] 164 CLR 465
Wilde v The Queen 1987 164 CLR 365
Wong v The Queen 2001 207 CLR 584

PARTIES :
Regina v Trevor Edward Holton

FILE NUMBER(S): CCA 60440/02; 60466/03

COUNSEL: R. Cogswell SC (Crown)
P. Byrne SC and T. Corish (Applicant)

SOLICITORS: S.E. O'Connor (Crown)
R. Hill (Applicant)

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70112/01

LOWER COURT
JUDICIAL OFFICER : Davidson AJ

The offender was driving a stolen motor vehicle in an attempt to escape pursuing police. To effect his arrest a highway patrol officer was authorized to deploy “road spikes”. This was done by the officer who was on foot. The offender killed the officer by causing him to be impacted by the vehicle.

An indictment was presented charging the offender with murder and aggravated dangerous driving causing death, the latter contrary to s52A(2) of the Crimes Act 1900. The charges were not pleaded in the alternative. At an appearance before a judge for arraignment and list directions, the offender pleaded guilty to the count of aggravated dangerous driving causing death. The presiding judge endorsed the back of the indictment to record the plea but otherwise did not record conviction. He orally expressed conviction of the offender on the count to which he had pleaded guilty. Initially all present overlooked the possible application of s52AA(6) which inhibits “double jeopardy” for murder and an offence contrary to s52A(2). The Crown expressed intention to proceed to trial on the count charging murder. No objection was then raised on behalf of the offender.

Subsequently, there was adversion to s52AA(6). Motions by the offender to quash the count charging murder and by the Crown to vacate the “order for conviction” were heard by the allocated trial judge (who had not presided at the arraignment when the plea of guilty to the other count was made). The offender’s motion was dismissed and orders as sought by the Crown were made.

The offender was found guilty of murder and sentence for that crime was imposed.

On appeal, the offender challenged the correctness of these rulings and also the content of a direction given in response to an enquiry by the jury made during their deliberations.

The Crown appealed against the sentence asserting that it was manifestly inadequate.

HELD: (Per Grove J and per Smart AJ) What occurred before the arraignment judge did not amount to a conviction of a final character. The order by the trial judge “vacating” it involved recognition of this and s52AA(6) did not therefore operate to prevent trial on the count charging murder. Although a “fresh” indictment was presented it was not strictly necessary.

(Per Hulme J) The conviction before the arraignments judge was not provisional in any sense, however his order for conviction was not perfected by entry of the record which is recognized to be done by endorsement on the back of the indictment. The trial judge had power to reopen and vacate the unperfected order. The effect is to treat the order for conviction as if it had never occurred.

(By the Court) That on one occasion, the trial judge used the expression in connection with the legal test for liability for murder by reckless indifference to human life “a real and substantial probability or likelihood that the death of some person might be caused” in distinction from expression that death would be caused, did not amount to a miscarriage in this case. A correct instruction had been given repeatedly and in writing to the jury. No one involved in the atmosphere of the trial adverted to the expression. In the circumstances Rule 4 of the Criminal Appeal Rules and the proviso to s6 of the Criminal Appeal Act are engaged and should be applied.

(Per Grove J and per Smart AJ) The sentence of sixteen years imprisonment with a non parole period of twelve years was very lenient but not manifestly inadequate in the particular circumstances.

(Per Hulme J., dissenting) The sentence imposed was manifestly inadequate and a sentence of twenty years imprisonment with a non parole period of fifteen years ought be imposed.

60440/02
60466/03

GROVE J
HULME J
SMART AJ
Wednesday 30 June 2004

REGINA v TREVOR EDWARD HOLTON

Judgment

1 GROVE J: Trevor Edward Holton (the appellant) was convicted of murder following a trial before Davidson AJ and a jury which commenced on 15 May 2002. On 23 August 2002 his Honour sentenced the appellant to imprisonment for sixteen years with a non-parole period of twelve years. In imposing that sentence his Honour took into account five offences scheduled on a Form 1 consisting of receiving a motor vehicle, two charges of shoplifting, breaking entering and stealing, and stealing from a person. The appellant appeals against that conviction and the Crown appeals against the sentence asserting its manifest inadequacy and seeking increase.

2 The appeal against conviction should be considered first. Grounds have been filed expressed thus:

Ground one

Ground two

The learned trial judge erred in holding in his judgment of 5 April 2002 that in the circumstances that existed the trial of the appellant on a charge of murder was not statute barred by the provisions of Crimes Act 1900 s.52AA(6).

Ground three

The trial of the appellant commencing 15.5.2002 on an indictment for murder dated 15.5.2002 should not have been permitted having regard to the fact that the appellant had earlier been convicted (on 1.3.2002) of a charge of dangerous driving occasioning death arising from substantially the same facts.

Ground four

The learned trial judge erred in his directions to the jury, in response to a question asked by them after several days of deliberation, on the meaning of the concept of probability in the context of the need for the Crown to establish that the appellant adverted to the probability that the death of the deceased would be caused by his actions and he was thereby guilty of murder by reason of acting with reckless indifference to human life. “

3 Grounds one to three can be dealt with together as they are all dependent upon the consequence of events which had occurred on 1 March 2002.

Proceedings before an arraignments judge

4 In accordance with routine procedures following a committal for trial to the Supreme Court the appellant was brought before it (Barr J presiding) for the purpose of arraignment. This occurred on 1 February 2002, the indictment being in these terms:

“NEW SOUTH WALES

On 14th January, 2002, the Director of Public Prosecutions on behalf of Her Majesty charges that

TREVOR EDWARD HOLTON

1. On 14th January, 2001, at Campbelltown in the State of New South Wales, did murder James Affleck.

AND THE DIRECTOR OF PUBLIC PROSECUTIONS FURTHER CHARGES THAT

2. On 14th January, 2001, at Campbelltown in the state of New South Wales, did drive a motor vehicle, namely, a Toyota 4 wheel-drive No. VTG-388, to escape pursuit by a police officer, whereby the vehicle was involved in an impact resulting in the death of James Affleck. “

5 It can thus be seen that the two counts in the indictment were not pleaded as alternatives. On 1 February 2002 the appellant pleaded not guilty to each count and a date for trial commencement of 6 May 2002 was fixed. For case management purposes, Barr J directed that “the matter” be relisted before him on 1 March 2002. The solicitor for the appellant had apparently been unable to define the extent of likely issues which would be the subject of contest at trial at that stage although an estimate of six weeks duration was canvassed.

6 The Crown contended that the appellant was driving a motor vehicle which was being pursued by police. In addition to the status of the vehicle as stolen, police were concerned about an incident of “bag snatching” which had happened shortly beforehand. Originally, there were two passengers in the vehicle, an adult and a four year old child. The adult exited the vehicle when it was able to be stopped during pauses, which, for public safety reasons were made by police in the course of the pursuit. The appellant drove at very high speeds from time to time. The victim (Senior Constable James Affleck) was a police highway patrol officer. The appellant was proceeding on the M5 motorway. Senior Constable Affleck received permission to deploy “road spikes” to arrest the progress of the vehicle being driven by the appellant. A first deployment was affected by some entanglement of the spikes and they were redeployed. The appellant did not halt the vehicle when he approached the spikes and it struck Senior Constable Affleck causing fatal injuries. The element of reckless indifference to human life was relied upon to sustain the charge of murder.

7 As directed, the appellant reappeared before Barr J on 1 March 2002. His solicitor requested that he be re-arraigned. He was re-arraigned upon the same indictment, the terms of which have been set out above, however it is desirable to set out the entirety of the transcript record of what occurred on that day, namely:

“CHARGE (1) For that he on 14 January 2001 at Campbelltown did murder James Affleck.

PLEA: Not guilty.

CHARGE (2) For that he on 14 January 2001 at Campbelltown did drive a motor vehicle, namely, a Toyota four wheel drive, VTG 388, to escape pursuit by a police officer whereby the vehicle was involved in an impact resulting in the death of James Affleck.

PLEA: Guilty.

(There was agreement that the estimate of six weeks for the trial will be maintained following the change of plea on the second count, the only real issue being that of mens rea. Counsel agreed to advise the Court of any revised estimate).

(Counsel advised his Honour it was anticipated that pre-trial issues including aspects of the interview could be settled by consent before the trial).

HIS HONOUR: The accused is convicted of the charge that on 14 January 2001 at Campbelltown he drove a motor vehicle, namely, a Toyota four wheel drive, VTG 388, to escape pursuit by a police officer, whereby the vehicle was involved in an impact resulting in the death of James Affleck.

ACCUSED REMANDED FOR SENTENCE TO A DATE TO BE FIXED.”

The statutory bar against double jeopardy

8 As can be inferred from the transcript record just recited it was the anticipation of Barr J, the Crown Prosecutor and the appellant’s lawyer that the trial on the count of murder to which the appellant had pleaded not guilty would proceed as scheduled.

9 The second count in the indictment was charged pursuant to s52A(2) of the Crimes Act 1900 and therefore s52AA(6) became of potential relevance. It provides:

“(6) Double Jeopardy . This section does not take away the liability of any person to be prosecuted for or found guilty of murder, manslaughter or any other offence or affect the punishment that may be imposed for any such offence. However, a person who:

(a) has been convicted or acquitted of an offence under section 52A cannot be prosecuted for murder or manslaughter or for any other offence under this Act on the same, or substantially the same, facts, or

(b) has been convicted or acquitted of murder or manslaughter or of any other offence under this Act cannot be prosecuted for an offence under section 52A on the same, or substantially the same, facts.”

10 The possible consequence of that provision applying to the plea of guilty to the second count which the appellant had made, and Barr J’s statement that the appellant was convicted of it, was subsequently appreciated by the Crown Prosecutor and this was drawn to his Honour’s attention whereupon he relisted the matter on 14 March 2002. On this occasion counsel for the appellant appeared and his attention also was drawn to the absence of specification of the second count in the indictment (which he said he had not previously seen) as an alternative. The Crown Prosecutor stated that he wished to maintain the scheduled trial date and that it remained the Crown intention to prosecute the appellant for murder. His Honour indicated that if the defence intended to “do anything about the trial date, for example, by putting on a motion for stay of the indictment” it would be desirable for the issue to be formally raised by motion. He stated that on 1 March 2002 he had not been aware of the provisions of s52AA(6).

The Pre-Trial Hearing Before Davidson AJ

11 The appellant filed process seeking that the indictment on the count of murder be quashed. The Crown also moved for orders which, in final form, sought:

“1. The order of conviction made by his Honour Justice Barr on 1 March 2002 be vacated.

2. Alternatively, that this Court, using its inherent jurisdiction, correct an inadvertent error made by his Honour Justice Barr on 1 March 2002 when he orally recorded a conviction of the respondent.

3. That the Court give leave to the Crown to withdraw acceptance of the respondent’s plea to the charge of Aggravated Dangerous Driving Causing Death.

4. Alternatively, an order declaring that the said conviction is a nullity.

5. An order to permit the Crown to amend the indictment presented on 1 March 2002 so as to make the second count an alternative to the first count.

6. Such further or other order as this Honourable Court thinks fit.”

12 On 22 March 2002 the motions came before Davidson AJ who had been designated as the trial judge. An initial submission by the Senior Crown Prosecutor (who had not appeared on the previous occasions but appeared henceforth including appearing at the trial) that the matter had of necessity to go before Barr J was not pursued after enquiry revealed that it was his Honour’s view that it would be more appropriate for the issues to be considered by another judge.

13 Evidence on affidavit was tendered and the Crown Prosecutor who had appeared in the proceedings before Barr J gave some supplementary oral evidence and was cross examined. Davidson AJ accepted the evidence of the Crown Prosecutor that it was his intention to draft the indictment so that the second count was pleaded in the alternative. Pleading the second as an additional count was a drafting error. The evidence before his Honour made it reasonably plain that the appellant was not misled by the error. The affidavit of the solicitor, Mr Hill of 15 March 2002 included reference to conferring with counsel about the events at the first arraignment (1 February 2002) as a result of which it was decided:

“3. ….. that Mr Holton should be re-arraigned given his clear indication at the committal hearing that he was willing to plead to an alternative count of manslaughter.

4. I subsequently confirmed with Mr Holton that he was willing to plead guilty to the aggravated dangerous driving causing death count.”

14 Mr Hill instructed his employed solicitor, Mr Nayel to appear at the scheduled hearing on 1 March. An affidavit of Mr Nayel of 15 March 2002 included:

“2. On 1 March 2002 I appeared on the re-arraignment proceedings of the accused.

alternative

4. The Crown Prosecutor Mr Peter Dare indicated to the Court that the second count was not framed in the alternative.

5. Justice Barr then said words to the effect of ‘The second count on the indictment is not framed in the alternative.’ Justice Barr then handed down the indictment for me to peruse.

6. After perusing the indictment with the accused I indicated to the Court that the accused wished to enter a plea of guilty to the second count.

7. It is my recollection that immediately prior to the re-arraignment of the accused the Crown indicated to the Court that the Crown would not accept a plea to the second count in satisfaction of the indictment for murder.”

15 The affidavit of Mr Dare, then appearing as Crown Prosecutor was confirmatory. He deposed:

“8. On 1st March 2002, before Mr Justice Barr, Mr Suabe Nayel, solicitor for the accused indicated his client wished to enter a plea of guilty to the alternate (sic) count in the indictment. At this time I realised that the count of Aggravated Dangerous Driving Causing Death was not formally pleaded as an alternative in the indictment and I advised Mr Justice Barr accordingly.”

16 The absence of anyone’s appreciation of the existence of and possible consequence of s52AA(6) is further confirmed by Mr Nayel’s affidavit:

“It is my recollection that after this (announcement of conviction and remand for sentence by Barr J) other issues in the trial were discussed. His Honour then confirmed the 6 May 2002 as the date on which the accused’s murder trial would commence.”

17 On 5 April 2002 Davidson AJ made these orders:

“(1) The application on behalf of the accused to quash the murder count in the indictment is rejected.

(2) The Crown has leave to withdraw the indictment presented on 1 March 2002 and present a fresh indictment.

(3) The order of conviction made by his Honour Justice Barr on 1 March 2002 is vacated.

(4) And this is subject to any application for bail which may be made; the trial date of 6 May 2002 is confirmed and the accused is remanded in custody until 6 May 2002.

(5) The exhibits are to remain on file.”

18 His Honour also confirmed the scheduled trial date. The further delay in actual commencement is not of relevance. Although grounds 1 and 2 above are expressly focussed upon Davidson AJ’s orders, elaborate analysis of their source and form is not necessary.

Conviction of Offence

19 The essential question upon which grounds one to three turns is whether in terms of s52AA(6) (a) of the Crimes Act the appellant was, on 1 March 2002, convicted of an offence under s52A. If there was a conviction which was final in character then no single judge had jurisdiction to “vacate” the conviction. If that be the case, ground one is made out, indeed, the Crown has not now sought to argue in support of its seeking that order if the conviction be of that character. However that does not resolve the issue on appeal.

20 It is necessary to consider whether what occurred before Barr J on 1 March amounted to a conviction and as Tindal CJ observed over a century and a half ago “the word ‘conviction’ is undoubtedly verbum aequivocum” Burgess v Boetefeur 1844 7 Man & G 481.

21 In similar vein Dawson and McHugh JJ (Maxwell v The Queen 1995 104 CLR 501 @ 507) observed:

“The question of what amounts to a conviction admits of no single, comprehensive answer. Indeed, the answer to the question rather depends upon the context in which it is asked. See Cobiac v Liddy (1969) 119 CLR 257 @ 271 . On the one hand, a verdict of guilty by a jury or a plea of guilty upon arraignment has been said to amount to a conviction. On the other hand, it has been said that there can be no conviction until there is a judgment of the court, ordinarily in the form of a sentence, following upon the verdict or plea.”

22 Maxwell involved the acceptance by the Crown of a plea of guilty to manslaughter in satisfaction of an indictment charging murder. That the Crown may so accept by election was, in that case, specifically authorized by s394A of the Crimes Act. No question of acceptance arose in the present case and at all times the Crown declared its intention to proceed to the prosecution of the appellant on the charge of murder. As might be expected, research provides reference to much judicial discussion of what can amount to a conviction but in every instance the meaning must be gauged in its particular context, in this case, a statutory provision including a sub-heading “Double Jeopardy”.

23 A number of authorities have considered the meaning of “conviction” when used in connection with statutes concerning the confiscation of assets tainted by criminal activity. For example, in Director of Public Prosecutions v McCoid [1988] VR 982 it was held that a person was “convicted” when a plea of guilty was accepted and he was remanded for sentence rather than when the person was actually sentenced. The same approach was applied to the relevant Commonwealth statute by the Court of Appeal (NSW) in Director of Public Prosecutions v Helou [2003] NSWCA 301.

24 In R v Hura 2001 121 A Crim R 472 the Court was concerned with the withdrawal of a plea of guilty under s9(1) of the Criminal Procedure Act 1986 and an examination of the meaning of conviction was undertaken but, as Spigelman CJ observed (@ p 476) the court was “concerned with the issue of what constitutes a ‘finding’ to the effect that an accused person is ‘guilty of an offence’. Authorities on the word ‘conviction’ are helpful but not determinative in this regard.”

25 I have above used the description “final in character” as an expression of what would fulfil the requirements of s52AA(6). The notion of contingency was referred to by Aickin J in Griffiths v The Queen 1977 137 CLR 293 @ 336 where his Honour said:

“It may be that during the period of the remand for sentence an accused person might change his mind and ask to change his plea and there would seem to be no doubt that he could be allowed to do so. That however is not inconsistent with his having already been convicted because, as was said in R v Phillips & Lawrence 1967 Qd R 637 per Hart J, the change of plea operates to set aside the conviction.”

26 However, it is to be noted that Griffiths was dealing with whether an offender had been “sentenced” within the meaning of a definition in s2 of the Criminal Appeal Act 1912.

27 In R v Tonks & Goss (1963) VR 121 a Full Bench of the Supreme Court of Victoria stated:

“A conviction is a determination of guilt, and a determination of guilt must be the act of the court or the arm of the court charged with deciding the guilt of the accused. It may be that even a determination of guilt will not in all cases amount to a ‘conviction’ ……”.

28 That was applied by Gibbs J in R v Jerome & McMahon 1964 Qd R 595 who observed that the determination might be made “…. by imposing a punishment; by discharging a prisoner on his own recognizance; by releasing him on parole; or even perhaps by adjourning the proceedings to enable information relevant only to the question of sentence to be obtained.”

29 Those matters having been adverted to, it is important to heed the caution applicable to the present case given by Kirby P in Della Patrona v Director of Public Prosecutions (No 2) 1995 38 NSWLR 257:

“So fascinating is legal history, that it is easy to slip into the error of exploring its by-ways, mistaking the purpose of the search as one for the common law, or historical meaning of the word ‘conviction’, or ‘convicted’ instead of the construction of the Act.”

30 The common thread is that a conviction is a final determination by a court of the guilt of an accused person. The position is summarized in this further extract from the joint judgment in Maxwell at 509:

“Thus, whilst a plea of guilty is a confession of guilt, it does not of itself amount to a conviction. A conviction does not occur until there is an acceptance of the plea amounting to a determination of guilt by the court. The determination of guilt forms part of the judgment of the court but it can occur otherwise than by the formal entry of the plea upon the record of the court. Of course, the formal entry of the plea upon the record may afford the clearest evidence of a determination of the court, but a determination may otherwise occur when the court acts so as to indicate unequivocally its acceptance of the plea.

In these days when there is often, as in this case, only a note or memorandum of a plea of guilty and nothing which could be described as a formal entry of the plea on the record of the court (see Griffiths v The Queen (1977) 137 CLR 293 @ 313-314, a plea of guilty is not, in the ordinary course of events, acceptance until sentence is passed on the accused. As Lord Reid observed in S v Recorder of Manchester [1971] AC 481 @ 488:

‘It has long been the law that when a man pleads guilty to an indictment the trial judge can permit him to change his plea to not guilty at any time before the case is finally disposed of by sentence or otherwise.’

It is the disposal of the case which results in the judgment of the court embodying a determination of guilt.”

31 The context in which Barr J declared the appellant convicted on the second count of the indictment must be examined.

32 Leaving aside the circumstance that all concerned had overlooked the legislative prescription in s52AA(6), it is plain that there was a common expectation and acceptance that a trial on the count for murder would proceed. There was no suggestion by the solicitor appearing for the appellant that the plea of guilty to aggravated dangerous driving causing death was designed to give rise to any bar against continuance of that prosecution. It might be inferred that there were advantages from the appellant’s standpoint in offering that plea of guilty. Should he be acquitted of murder, he would be entitled to consideration of “discount” in sentence on the basis of timeliness of plea. Indeed, the transcript of 14 March shows that counsel, until shown the indictment, had assumed that the second count had been pleaded as an alternative and, as the earlier conduct of the solicitor suggests that he shared that assumption, the plea of guilty may also have been offered to test whether the Crown might respond by accepting that plea in satisfaction of the indictment.

33 Of course, after s52AA(6) was drawn to attention, no application by the appellant to change his plea was made but the entry of judgment of conviction by Barr J was provisional in the sense that it remained open to the appellant to be permitted to change his plea to not guilty at any time as the case had not been finally disposed of by sentence or otherwise: (cf S v Recorder of Manchester, the approval of which in Maxwell would, in my view, qualify the observations of Aickin J in Griffiths above cited).

34 I have used the expressions “final conviction” and “provisional conviction” as a convenient distinction between the circumstances that would or would not fulfil the requirements of s52AA(6).

35 The context in which the entry of conviction was made included, recognizing the confessional quality of the appellant’s plea, the absence of any Crown material specifying the facts and circumstances of the offence, any material in mitigation which the appellant may have wished to bring forward or any information concerning victim impact. It can also be noted that the back of the indictment, used both on 1 February and 1 March, carried dated endorsements of the pleas of not guilty on the first occasion (“not guilty to both counts”) and on the second occasion an endorsement “accused re-arraigned: (1) not guilty (2) guilty”, however spaces adjacent to two pro forma endorsements of “verdict” and “judgment” remained vacant. To that extent, the record of the court was incomplete: cf R v Carrion 2002 128 A Crim R 29.

“Provisional” Conviction

36 The conclusion that there is a provisional character to the entry of conviction by Barr J on 1 March 2002 does not mean that what occurred was empty ritual. Order by a judge of a superior court is valid and effective unless and until by some lawful process it has been set aside. As noted above, a conviction of final character entered by a judge of the Supreme Court could be set aside only on appeal as authorized by the Criminal Appeal Act 1912. The situation is different, if the conviction is provisional in character in the classifying sense that I have adopted.

37 Davidson AJ made an order “vacating” the conviction entered by Barr J. He had jurisdiction to do so because of the provisional character of that conviction. The conclusion can be tested by consideration that had it been the appellant who made an application to Barr J to set aside the conviction and enter a plea of not guilty, it is clear that his Honour had jurisdiction to permit it. That jurisdiction is not personal to the particular judge before whom the plea was entered and it is possessed by any judge commissioned to exercise the jurisdiction of the Supreme Court. There is no logical reason why a conviction which is provisional in character should only have the consequences of that quality operable on the motion of an accused person. Davidson AJ had appropriate jurisdiction to make an order setting aside the conviction.

Section 52AA(6) of the Crimes Act

38 The ability of the Crown to bring the appellant to trial for murder depended upon his being “convicted ….. of an offence under s52A” meaning “finally” convicted in distinction from what I have termed “provisional”. There is no qualifying adjective in the words of the statute but the nature of the provision makes it clear that “final” conviction is meant. The obvious intent (as the introductory heading within the sub-section affirms) is to provide against double jeopardy. That jeopardy should be understood as referring to suffering double punishment rather than the entry of judgments. Such jeopardy in respect of punishment can only exist if there is a final conviction on one of the alternative crimes. A construction that “convicted” includes provisionally as well as finally, would give rise to a situation that a vested right immediately accrued to an accused who might, himself or herself, later apply to be permitted to withdraw the relevant plea of guilty. A legislative intent for the provision so to operate should not be inferred.

The New Indictment

39 Davidson AJ gave leave to the Crown to “withdraw the indictment presented on 1 March 2002 and present a fresh indictment”. In the event, a new indictment was presented which charged murder in the first count, and, somewhat unconventionally, specifically charged in a second count manslaughter as an alternative.

40 The withdrawal of an indictment may give rise to controversy although there is a decision of this Court asserting the power of a court to permit the Crown so to do: R v Beeby 1998 104 A Crim R 142. In written submissions counsel for the appellant sought that this decision not be followed but I understand this is not now pressed. Obviously, if the principal argument that conviction for murder is statute barred succeeds, it is irrelevant to pursue an issue which has become subordinate. It can also be observed that it was unnecessary for a fresh indictment to be presented. Although the new indictment specifically charged manslaughter as an alternative, it was always available as an alternative verdict on the count for murder. The setting aside of the conviction on the count in the original indictment charging aggravated dangerous driving causing death provoked no procedural necessity beyond amendment of that indictment to make explicit the intention that the count was charged as an alternative.

41 The conviction for murder should not be quashed on the basis of argument advanced in support of grounds one, two and three.

Ground Four

42 In a written direction supplied by Davidson AJ to the jury his Honour specified:

“2. At the time of veering to the right and causing the death of Senior Constable Affleck the accused was acting with reckless indifference to human life, that is, he foresaw and realised the probability or the likelihood of the death of some person, not necessarily Senior Constable Affleck.”

43 That direction accurately stated the law applicable to the case. In his oral charge, his Honour gave directions to similar effect, namely:

“…….. the Crown case is that from that course of conduct of the accused, only one explanation is to be inferred or concluded. Namely, that the accused knew in the sense that he foresaw that when he did veer to the right that if he continued driving in that way, it was probable in the sense of being likely, that someone would be killed as a result of what he was doing. Not necessarily James Affleck, but someone in the vicinity when he was so driving.”

“The second of the three things which the Crown must prove as essential matters, if it is to succeed in establishing the accused’s guilt of this charge of murder, is that at the time of causing the death of the deceased, the accused was of a particular state of mind, namely, that he foresaw in the sense that he knew, that by his manner of driving, someone, not necessarily James Affleck, but someone would probably, that is to say likely, be killed if he continued doing so and with this knowledge and foresight, he continued nevertheless to drive the vehicle in that manner.”

44 The ground is advanced upon his Honour’s response to a question sent by the jury in their deliberations namely:

“What level of probability is applied to the meaning of probable or likely?”

45 Some discussion took place between the Bench and counsel concerning the appropriate response which culminated in this exchange:

“HIS HONOUR: I would propose certainly not to mention any mathematical way of approaching the matter but simply to tell the jury that ‘probable’ and ‘likely’ are interchangeable, that they connote or mean that the accused must have realised that there was a real and substantial chance that somebody might be killed and leave it at that.

CROWN PROSECUTOR: I have no objection to that.

O’LOUGHLIN: I don’t disagree, your Honour.”

46 The emphasis is added. The late Mr O’Loughlin was counsel appearing for the appellant.

47 In the course of further direction to the jury after this exchange his Honour said:

“…… the words ‘probability’ or ‘likelihood’ as used in that second element and the words ‘probable’ and likely’ as I used them in summing up to you are interchangeable. They are synonymous. They are simply used to bring home to you the nature of the state of mind which the accused must be proved by the Crown to have had. They mean that the accused must have personally realised that there was a real and substantial, not a remote, but a real and substantial probability or likelihood that the death of some person, not necessarily Senior Constable Affleck, might be caused.” (Emphasis again added).

48 In his written submissions counsel for the appellant noted that this direction was given on Thursday 13 June 2002 and the jury did not return until Tuesday 18 June. It is argued that the use of the word “might” in the above excerpts from the jury directions in response to its question constructed an erroneous test in that what is required is foresight that conduct probably would result in the death of a human being and the use of the word “might” incorporated a notion of possibility. A semantic difficulty in foresight that something “might probably” occur was raised.

49 It is to be remembered that his Honour was responding to an enquiry focussed upon a level of meaning to be attributed to the words “probable” and “likely” which he had used. He had reference to a practice (Criminal Law, Watson Blackmore and Hosking). He expressed attention which he had paid to par 2.1530:

“What does a ‘probability’ of death mean? It has been pointed out that the main difficulty with the use of the word ‘probable’ to describe the degree of risk is that it means different things to different people. The term ‘probable’ has been treated as synonymous with ‘likely’. It has been held that in many and perhaps most cases, any attempt at directing a jury in terms of equating ‘probable’ as requiring some precise degree of probability such as ‘more likely than not’ is undesirable and that ‘probable’ and ‘likely’ convey the notion of a substantial – ‘ a real and not remote’ – chance regardless of whether it is less or more than 50 per cent.”

50 Insofar as I consider his Honour should have concluded that part of his response to the jury “would be caused” rather than “might be caused”, there was erroneous expression.

51 I do not overlook the guidance in the judgment of Mason and Wilson JJ in Quartermaine v The Queen 1980 143 CLR 595 @ 612 where their Honours said:

“A misdirection at a stage when a jury has returned to seek an answer to a specific question will generally be a matter of import, requiring serious consideration in any appellate review, for the reason that being isolated from the charge itself it is likely to carry great weight with the jury.”

52 However I do not consider that this ground of appeal should be sustained and I reach that conclusion on two bases. First, rule 4 of the Criminal Appeal Rules. This is a strong case for the application of the rule as not only was there no point taken on behalf of the appellant but what his Honour intended to say was expressed to counsel in advance and was the subject of express agreement. The second reason is that I would apply the proviso to s6 of the Criminal Appeal Act. If it were thought that the use of the word “might” in responding to the jury’s question about the level of probability or likelihood had potential for misleading the jury, there is no indication that anyone involved in the atmosphere of the trial was conscious of it. The proviso may be applied if it is determined that there has been no actual miscarriage of justice. I would so determine. In making that determination I have examined the strength of the Crown case and the weakness of the defence and the significance of the error: Wilde v The Queen 1987 164 CLR 365. The variation of the single word would not in the particular circumstances detract from the inevitability of conviction: Gilbert v The Queen 2000 201 CLR 414. .

53 In examining the significance of the error much weight should be given to the repeated correct directions given to the jury and, in particular, the written direction. The delay between the challenged expression by his Honour and the return of the jury (some four to five days) provokes a conclusion that, given that the jury were focussed upon an understanding of the level of probability or likelihood, they would utilize the (accurate) written direction which was in constant possession rather than casting their minds to an oral direction given in circumstances where their focus was specifically upon some other aspect. That they had this written direction for reference at all times distinguishes the situation somewhat from the general caution expressed in Quartermaine.

54 The appellant advanced a further argument that his Honour was in error in directing the jury that “probable” and “likely” were synonymous. It was based upon the premise that there were two possible outcomes of the impact, death or survival and that the direction left open a finding of a real chance of either but, as of two competing outcomes, both could not be more probable than not.

55 The approach invited a direction in terms of probability as an excess over 50 per cent, an approach which has been described as undesirable: Boughey @ 19-20.

56 The submission overlooks that what his Honour spoke of was not a “real chance” but a real and substantial, not remote probability. I would reject this argument.

57 The appeal against conviction should be dismissed.

The Crown Appeal

58 The Crown Advocate who appeared on the appeal candidly accepted that this was not a case of a specific identifiable error on the part of the learned sentencing judge. Rather he submitted that the sentence was manifestly inadequate so that “there must have been some misapplication of principle, even though where or how is not apparent from the statement of reasons”: cf Wong v The Queen 2001 207 CLR 584.

59 His Honour had to give account to the circumstance that the victim was a police officer murdered in the course of duty. Such crimes usually involve what is more conventionally thought of as a weapon than a motor car, but the lethality of a vehicle is indisputable and is well recognized: R v Murnin NSWCCA unreported 16 August 1985 cited in R v Hall [2001] NSWCCA 202. There was an obvious need in this case, as in the case of any unlawful violence visited upon a police officer performing his or her duty for the sentence to reflect an element of general deterrence: cf R v Adam [1999] NSWSC 144. There is no prima facie presumption that murder resulting from reckless indifference to human life is less culpable than murder resulting from specific intention: R v Ainsworth 1994 76 A Crim R 127, but so to say inheres recognition that murder by reckless indifference is not necessarily as culpable as other forms. Each case must be considered on its own facts.

60 I have above indicated the nature of the “Form 1 offences” which had to be taken into account in sentence assessment. As is plain, the point of such process is to impose a longer sentence than would have been imposed if the primary offence (murder) had stood alone: Attorney General’s Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] 56 NSWLR 146.

61 Given these considerations and the facts which I have related in extreme short form above I conclude that the sentence imposed is very lenient. The issue is whether it was manifestly inadequate.

62 Every sentence results from an exercise of judicial discretion. There is no such thing as a correct sentence: See Ryan v The Queen 2001 206 CLR 267 @ 307; R v Ryan [2003] NSWCCA 202.

63 There is ample authority for the proposition that Crown appeal should be rare: Everett v The Queen 1994 181 CLR 295. Even less often will they succeed. In R v Baker [2000] NSWCCA 85, Spigelman CJ stated:

“In my opinion there is no warrant for this Court to interfere with the sentencing discretion by her Honour. The authorities make it clear that Crown appeals should be rare. It may be that present practice does not reflect that restriction, nevertheless, successful Crown appeals should be rare. This is particularly so with respect to that category of appeals in which no particular error can be identified in the manifest inadequacy as a basis for a conclusion that some error of principle must have occurred.”

64 Although it is apt to consider the surrounding circumstances, the appellant’s flight in defiance of police pursuit, the dangers of his high speed driving to the public, his passenger(s) and police, his critical culpability for the crime of murder was described by the learned sentencing judge as derived as follows:

“It was his driving from the time of veering to the right up to the point of impact which was the act causing death and which was therefore a relevant period to which the culpability of the state of mind of the (appellant) was considered and assessed by the jury.”

65 The identified period of time was very short. His Honour was entitled to take this into account in assessing sentence.

66 Both counsel at the hearing of the appeal have referred to the statistics collected by the Judicial Commission. These are useful but do not in this case demonstrate that the sentence was aberrant in the sense of lying outside the ambit of some established sentencing pattern.

67 Whilst, as I have said, I regard the sentence as very lenient, I am unpersuaded that it can be categorized as manifestly inadequate in the particular circumstances. I include in the circumstances the absence of entitlement to particular leniency by reason of the appellant’s antecedent criminal history.

68 I would dismiss the appellant’s appeal against conviction and also dismiss the Crown appeal against sentence.

69 HULME J: The circumstances which have given rise to this appeal are set out in paragraphs 1 to 18 of the reasons for judgment of Grove J which I have had the advantage of reading and I need not repeat them. As I see it, the essential question upon which the first to third grounds of appeal turn is whether the terms of s52AA(6)(a) of the Crimes Act precluded the Appellant from being prosecuted for murder and in particular whether at a, or the, relevant time he was a person who had been, convicted of an offence under s52A. So far as is presently relevant the sections provide:-

A person convicted of an offence under this subsection is liable to imprisonment for 10 years.

70 In R v Tonks and Goss [1963] VR 121, after an extensive review of the authorities, the Victorian Full Court said (at 127):-

“A conviction is a determination of guilt, and a determination of guilt must be the act of the court or the arm of the court charged with deciding the guilt of the accused. … There can accordingly be no conviction on a count to which an accused pleads guilty until by some act on the part of the court it has indicated a determination of the question of guilt.”

71 All five of the judges in Maxwell v R [1995-1996] 184 CLR 501 either quoted or referred to these remarks – at p 508, 520, and 529 – without disapproval.

72 In Maxwell v R, Dawson and McHugh JJ said (at p509):-

“Thus whilst a plea of guilty is a confession of guilt, it does not of itself amount to a conviction. A conviction does not occur until there is an acceptance of the plea amounting to a determination of guilt by the court. The determination of guilt forms part of the judgment of the court but it can occur otherwise than by the formal entry of the plea upon the record of the court. Of course, the formal entry of the plea upon the record may afford the clearest evidence of a determination of the court, but a determination may otherwise occur when the court acts so as to indicate unequivocally its acceptance of the plea.”

73 Their Honours went on to say:-

“In these days when there is often, as in this case, only a note or memorandum of a plea of guilty and nothing which could be described as a formal entry of the plea on the record of the court, a plea of guilty is not, in the ordinary course of events, accepted until sentence is passed on the accused….

It is the disposal of the case which results in the judgment of the court embodying a determination of guilt. For that reason, it seems to us that the hesitancy displaced by Gibbs J, when he said in the passage cited above from R v Jerome & McMahon that a determination of guilt may “even perhaps” be made “by adjourning the proceedings to enable information relevant only to the question of sentence to be obtained”, was justified.
……

74 I do not regard these latter passages as a departure from their Honours’ earlier view that “a determination (of guilt) may … occur when the court acts so as to indicate unequivocally its acceptance of the plea”.

75 Toohey J said (at p520-1):-

“Thus Australian authority indicates that at common law conviction encompasses a determination of guilt by the court and does not necessarily require judgment on the basis of that determination.

There are a number of ways in which a court may show acceptance of a guilty plea. The judge may expressly indicate that the accused was convicted before making any order in relation to that conviction. Another way in which the court may act upon a plea of guilty is by the allocutus to which reference was made earlier. … There may also be implied acceptance, for instance, by proceeding to pass sentence, or by calling for the record from the gaol recorder.”

76 In this and other passages I have omitted the references to prior authority.

77 Gaudron and Gummow JJ said (at p531):-

“…in our view, .. it must be concluded that conviction only occurs when the court does some act which indicates that it has determined guilt or, which is the same thing, that it has accepted that the accused is criminally responsible for the offence in question.”

78 Earlier, in the case of Griffiths v R [1977] 137 CLR 293, Barwick CJ had said (at 302);-

“Although it has not been the practice hitherto to do so, it seems to me that it would be prudent in the case where a plea of guilty is accepted, and no question of utilising s556A is in contemplation, that the trial judge should expressly indicate that the accused is convicted: and to do so before proceeding to make any order in relation to that conviction.”

79 At p317, Jacobs J remarked:-

“I therefore take the position to be that amendments could be made until the record was finally prepared and this would not usually be until the judgment of the court is complete, but that nevertheless, where there is no question of amendment, there is a conviction when it has been recorded. At the present time the record has not that formality which it previously had and therefore the exercise of the power of amendment may be much less formal. It can be inferred for instance from leave to alter a plea, or from a change of plea inferred from the circumstances to have been applied for and allowed. Nevertheless, so long as a conviction by verdict or confession is on the record it stands as a conviction under the general principles of criminal law unless any special meaning is given to the word in the context of a particular statute.

… in my opinion there is a conviction in the ordinary case when after arraignment a confession of guilt is recorded… “

80 At p336 Aicken J said:-

“In the present case the applicant adhered to his plea of guilty and it is plain that Judge Goran accepted that plea. The judge then went on to hear evidence appropriate to assisting in the determination of the sentence to be imposed … . Having heard that evidence what he did was first to remand the accused for sentence. That in my opinion is an unequivocal indication that he had found the accused guilty, i.e. convicted him of the offences, because the step of remanding for sentence could not be taken by any court without there having been a conviction.”

81 In Collins (1994) 76 A Crim R 204 at 210, McPherson and Lee JJ with, as I read his Honour’s remarks, the concurrence of Fitzgerald P on this point, said:-

“… it has been accepted in this State that a conviction occurs only upon some intimation by the court that it accepts the plea as its determination of guilt and, in effect, adopts it as its verdict. … All that is required for that to occur is some unequivocal and overt expression of acceptance by the court of the plea as its determination of guilt; how that acceptance is manifested is immaterial.”

82 Against the background of this authority, I turn to consider what Barr J did following on the Appellant’s plea on 1 March 2002. One option which was available to his Honour was to simply note or record the Appellant’s plea.

83 However it is clear that his Honour was not content to leave matters on that basis. He went on to say “The accused is convicted of the charge that on 14 January 2001 at Campbelltown he drove a motor vehicle … to escape pursuit by a police officer, whereby the vehicle was involved in an impact resulting in the death of James Affleck” and, having said that, remanded the Appellant for sentence on that charge.

84 It is not only a reasonable, but an inevitable inference that, in saying the accused was convicted, his Honour was not indulging in a solemn farce. Nor was he saying “The accused is convicted provisionally” or “unless or until I change my mind” or “unless I or some other member of the Court thinks I have made a mistake”. It is to my mind clear beyond argument that when his Honour said “The Accused is convicted … “ his Honour was convicting the Accused. His Honour was doing exactly what, in Griffiths v R, Barwick CJ had suggested, viz “clearly indicat(ing) that the accused is convicted”. He was, in the words of Dawson and McHugh JJ in Maxwell v R “act(ing) so as to indicate unequivocally (the court’s) acceptance of the plea”; in the words of Toohey J in that case, “expressly indicat(ing) that the accused was convicted”; and in the words of Gaudron and Gummow JJ “do(ing) some act which indicates that it (the court) has determined guilt or, which is the same thing, that it has accepted that the accused is criminally responsible for the offence in question.” His Honour was, in the words of Aicken J, giving “an unequivocal indication that he had found the accused guilty, i.e. convicted him of the offence”.

85 It is, of course, equally clear that during the proceedings before him his Honour was intending that the Appellant should still face a trial for murder. But that conclusion is not inconsistent with an intention to convict the Appellant of the lesser charge. That conviction is perfectly consistent with the view that at the time his Honour convicted the Appellant, his Honour was not conscious of the full ramifications of what he was doing. Indeed when the matter was again before his Honour on 14 March 2002, he acknowledged that he had not been aware of the provisions of s52AA(6). The transcript indicates that no one else, including the prosecutor, seems to have then been conscious either of the ramifications of his Honour’s remarks.

86 It may be recognised that Dawson, McHugh, Gaudron and Gummow JJ all accepted that a plea could be accepted “provisionally”. Dawson and McHugh JJ said (at 510):-

“Obviously, a court when it embarks upon a consideration of sentence is accepting a plea of guilty at least for that purpose, but there should be no difficulty in regarding that acceptance as provisional pending actual sentence or some other disposal of the matter.”

87 Gaudron and Gummow JJ said (at 531-2):-

“In Griffiths , Barwick CJ and Aickin J each accepted that what occurred in that case amounted to a conviction. Aickin J considered that the step of remanding the accused for sentence was “an unequivocal indication” that the accused had been found guilty because that step could not be taken without there being a conviction. Ordinarily, that will be so. However there may be circumstances which indicate that the remand is provisional, in the sense that it will be treated as if it were a remand for sentence rather than a general remand, if the plea is accepted and the accused convicted.”

88 All four judges in fact then examined the issue of whether in that case the remand for sentence should be regarded as provisional and held that it should. For the reason that Barr J chose to say expressly “The accused is convicted …. ”, I am unable to regard his decision as provisional in this case. In short, I am of the view that on 1 March 2002, Barr J convicted that Appellant of the charge, to quote his Honour, “that on … he drove a motor vehicle … to escape pursuit by a police officer, whereby the vehicle was involved in an impact resulting in the death of James Affleck”. Thus on that day the Appellant was, in the words of s52AA(6) “convicted … of an offence under s52A”.

89 On 5 April 2002, Davidson AJ ordered that “The order of conviction made by his Honour Justice Barr on 1st March 2002 is vacated”. His Honour saw himself as entitled to do so on 2 bases. One was what he saw as the provisional nature of Barr J’s order and the second was that the order had not been “perfected”. For reasons I have given I am unable to agree with the first of these. I turn to the second.

90 The Appellant was first arraigned on 1 February 2002, when pleas of not guilty were entered to both counts. He was re-arraigned on the same indictment on 1 March when he entered pleas of not guilty to murder and guilty to the aggravated dangerous driving charge. The back of the indictment is endorsed to reflect these pleas. Dates of 1 February 2002 and 1 March 2002 appear above both of these endorsements. There is no endorsement in the sections on the back of the indictment entitled “Verdict” and “Judgment”.

91 The “Associates Record of Proceedings” for 1 March 2002 contains a fuller record of what occurred that day. It includes the following:-

“Accused re-arraigned; count (i) not guilty Count (ii) guilty.

Trial date of 06-05-02 is confirmed. The parties are to advise the Court if there is any change to the estimate.

Accused is convicted of the charge that on 14 January, 2001, at Campbelltown in the State of New South Wales, he did drive a motor vehicle, viz a Toyota 4 wheel drive No VTG-388, to escape pursuit by a police officer, whereby the vehicle was involve in an impact resulting in the death of James Affleck”

92 In the ordinary course an order of the Supreme Court operates from the day it is pronounced. However, the authorities make it clear that until such an order is “perfected”, i.e. its recording in the Court records is formally complete, there is power in the Court to reconsider, withdraw, vary or amend or add to it. The topic was considered in Carrion [2002] 128 A Crim R 29 where many of the authorities are referred to. As authorities referred to in Carrion make clear, endorsement on the indictment is the way in which orders are formally recorded in first instance criminal proceedings in the Supreme Court. This did not occur in the case of the Appellant’s conviction before Barr J so that, notwithstanding there was a record of the Appellant’s conviction in the Associates Record of Proceedings, and in the transcript of proceedings on 1 March 2002 which Grove J has quoted, his conviction was not perfected and was liable to be reopened and vacated as Davidson AJ in fact ordered.

93 Once the conviction had been vacated, was the Appellant still someone who, within the operation of s52AA(6), had been “convicted … under s52A”? In my view he was not. Once an order is vacated or quashed, for most legal purposes, it is treated as if it had never occurred. Commissioner for Railways (NSW) v Cavanough [1935] 53 CLR 220 at 224-5. Just as if the conviction had been quashed or set aside on appeal, in ordinary legal understanding the Appellant would no longer be someone who had been convicted. Once Davidson AJ vacated the order of conviction, s52AA(6) did not preclude his prosecution for murder.

94 Accordingly, grounds 1, 2 and 3 of the Appellant’s appeal against his conviction for murder fail.

95 On the topic of the fourth ground of appeal, that relating to directions Davidson AJ gave to the jury, I agree with Grove J. Thus I agree that the Appellant’s appeal against his conviction for murder fails.

96 I turn to the Crown appeal against the sentence of 16 years imprisonment, including a non-parole period of 12 years. In my view that sentence was manifestly inadequate.

97 I take the circumstances of, and leading to the Appellant’s offence – it is convenient to continue to refer to him as the “Appellant” – from Davidson AJ’s remarks on sentence:-

5. … On 14 January 2001, at a distance of about 43 kilometres south of the point of impact on the M5 expressway, the prisoner was driving a stolen Prado motor vehicle. Another male was with him in the car, together with a four year old child.

6. The prisoner stopped the vehicle and a bag snatching offence was committed by the man with him who then returned to the car. The evidence that the vehicle was stolen and the evidence relating to this bag snatching was admitted as explaining what followed as far as the prisoner’s driving was concerned, the prisoner consistently asserting that he was motivated by a desire to evade arrest.

…

8. The prisoner then drove off. He was pursued intermittently over the following forty or so kilometres by the police, the pursuit being called off from time to time in the interests of safety.

9. During the course of the journey he exceeded the speed limit by substantial margins. He travelled on two occasions against the flow of the traffic. He narrowly evaded a head on collision with a motorist and he overtook a number of vehicles whilst he was in the breakdown lane.

10. Notwithstanding that Constable Andrikis, the driver of a police vehicle following the Prado up to the point of impact, expressed his opinion as an experienced pursuit police driver that the prisoner’s manner of driving was not dangerous or only dangerous in a limited respect or respects, Mr O’Loughlin of counsel conceded that it was both unlawful and dangerous and a formal admission was made as to this being the cause of death.

11. In my view, the concession is clearly correct and if I may say so entirely in accordance with what was apparently in the best interests of the prisoner at his trial.

12. During the course of the pursuit, arrangements were made over the police radio communication system for the deceased to deploy road spikes or road sticks on the M5. Mr O’Loughlin, in his submissions to me on sentence, emphasised that this procedure had not been previously used in New South Wales and that the deceased had only had about four hours in training before he proceeded to deploy them. He had never done so previously outside his period of training.

13. I accept Mr O’Loughlin’s submission that the deceased did emerge from behind the safety of a metal crash barrier on the eastern side of the north bound lane in order to deploy these road spikes but in my view he did so conscientiously with a view to more effectively doing his duty. For reasons not explained in the evidence the stop sticks were designed so that they could cover one lane only of this northbound stretch of the expressway.

14. The evidence of the prisoner’s course of driving up until a point where he veered to the right approaching the deceased went to the jury as evidence of his state of mind at and immediately before the impact, as did the evidence that the prisoner had in the vehicle with him, the four year old child who, for at least part of the journey to the point of impact was not restrained by a seatbelt. It was his driving from the time of veering to the right up to the point of impact which was the act causing death and which was therefore the relevant period in which the culpability of the state of mind of the prisoner was to be considered and assessed by the jury.

…

16. He (the Prisoner) claimed to have been two or three hundred metres away from the police officer when he first saw him with the road spikes. They were laid in lane number two, the lane nearest to the grass median strip and the prisoner said he then moved into lane one. He said that by this time he had slowed from a speed of about 180 kilometres per hour to about 166 kilometres per hour. He was asked whether he had considered stopping and he said:-

“I did at first but then I thought I could get around it because they, I thought they were, the spikes went right across so I was ready to stop but when I seen it was only one lane of spikes I thought I would get around them.” (Q & A 240 Ex 24)

17. He claimed that the deceased ran from lane two over to lane one and had grasped the spikes again. He said he tried to get away from the deceased by entering the second lane and the officer ran back from lane one to lane two with the spikes. He said:-

“And there was a bit of a gap between the car and himself and the spikes where the grass median was”.

18. The car referred to was a marked police car conspicuously parked on the median strip. It is clear from his own version that he had endeavoured to get between the deceased and the parked car but,

“I was going too fast and I was too close to swerve back and go back around the way, so I went this way and I tried to get between the car and the policeman but the policeman kept running back in front of the car trying to get the spikes under the wheels and I had nowhere to go and swerved. I couldn’t dodge him, I was going too fast to do anything”. (A & A 256).

He claims that he braked,

“As soon as I realised that he was standing right there and that, it was only a split second before but because I thought I would make it through the gap, as soon as I realised I didn’t I put on the brake.”

19. The vehicle came into impact with the deceased while still at high speed. …

20. Whilst there was evidence tending to support the contention of the prisoner that the deceased had found it necessary to cast the spikes twice in order to attempt to make them effective, the picture the prisoner suggests of the deceased, virtually running in front of the Prado vehicle, if this is what he intended to convey, was in my view rejected by the jury. It is a necessary conclusion from the verdict that the prisoner knew that from the moment he swerved to the right at a speed well in excess of the speed limit it was likely that someone would be killed and that recognising and foreseeing that, he continued in this manner of driving.

21. I am satisfied, as I believe the jury was satisfied, that by the simple expedient of stopping the vehicle, the police officer’s death would have been avoided. The prisoner did not take that step, motivated as he was by his own interests in evading lawful arrest for his manner of driving a stolen vehicle, and implication in the earlier bag snatching offence.

98 Although I am content to accept his Honour’s view in the paragraph numbered 14 which I have quoted that: “It was his driving from the time of veering to the right up to the point of impact which was the act causing death and which was therefore the relevant period in which the culpability of the state of mind of the prisoner was to be considered and assessed by the jury”, it is not inappropriate to observe that the irresponsibility then manifested was but the culmination of irresponsibility and anti-social behaviour which had been exhibited over what was obviously an appreciable period beforehand. Thus, the case is not one where the Appellant’s fault lay simply in error which, while gross was momentary. Notwithstanding that, for the purposes of defining the offence, it may have been appropriate to confine attention to the Appellant’s state of mind over the last 2 or 3 hundred metres, it is also appropriate to bear in mind that his offence was a not unlikely result of a lengthy course of conduct in which he had deliberately engaged. It was the Appellant who had, over the time taken to drive 40 kilometres, brought about the situation where decisions were likely to be required to be made by him in matters of seconds or fractions of seconds, and in circumstances of pressure and adrenalin and where there was no time for mature reflection. Although the period of actual recklessness considered by the jury may have been short, in the circumstances that is limited in its weight.

99 To take into account these surrounding circumstances is consistent with sentencing practice and, having regard to the fact that any offending involved in them is less than that in the offence for which the Appellant stands convicted, does not offend R v De Simoni [1980-1981] 147 CLR 383 - see R v Crump (Unreported, CCA, 30 May 1994).

100 The fact that the person killed by the Appellant’s conduct was a police officer both acting in the course of his duty and known by the Appellant at the time to have been so acting – indeed, it was to defeat that officer’s actions that the Appellant’s conduct was directed at the time - was a seriously aggravating actor. That that is so is apparent in 2 passages which bear repetition.

101 In R v Adam (Richard and Gilbert) [1999] NSWSC 144, Wood CJ at CL said, at [44-45]:-

“The courts have made it clear, more than once, that police who are threatened with or subjected to violence in the course of their duties, are entitled to the full protection of the law, and that offenders who are involved in crimes of this kind must expect condign sentences: Crump (Court of Criminal Appeal, New South Wales, 7 February 1995, unreported); Myers (Court of Criminal Appeal, New South Wales, 13 February 1990, unreported); Nasif (Court of Criminal Appeal, New South Wales, 10 March 1995, unreported); Rees (Court of Criminal Appeal New South Wales, 22 September 1995, unreported; and Hamilton (1993) 66 A Crim R 575 at 581.

102 In Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999, No 2 of 2002 [2002] NSWCCA 515 at [25-26], Spigleman CJ said, with the concurrence of the other members of a 5 person Bench:-

R v Hamilton

103 These latter remarks lose nothing of their force by reason of the fact that the Court, for other reasons, did not implement them in that case.

104 In sentencing the Appellant, his Honour also took into account a number of offences on a Form 1. Although radically different in criminality from murder, they were not insignificant. Details of them are:-

Date	Offence	Crimes Act Section and Maximum Penalty
17/12/00	Receiving – Prado motor vehicle	S188 – 12 years
9/1/01	Shoplifting – 4 quilt covers	S117 – 5 years
13/1/01	Shoplifting – 2 sheets	S117 – 5 years
14/1/01	Steal from the person – 1 wallet and $8.00	S94 – 14 years
14/1/01	Break & enter a dwelling house and steal	S112 – 14 years

105 The Prado the subject of the receiving charge was the same vehicle the Appellant was driving on 14 January. The “steal from the person” event was that committed shortly before the police chase began. No information concerning the other matters was brought to the Court’s attention.

106 It was also relevant for Davidson AJ to have regard to the Appellant’s record. His Honour described it as extensive, consistent with the history of a disrupted childhood and early youth and the Appellant’s almost non-existent employment record but that nothing in it approached the seriousness of the murder offence. All of these remarks are accurate but somewhat more attention to it should be given.

107 The Appellant’s antecedent report shows he was born in May 1975. His first recorded conviction was in March 1992, for larceny. Prior to the instant offence he had been convicted of at least 64 offences. Six were for stealing or illegal use of a motor vehicle, 7 were for breaking, entering and stealing and 30 were for other offences of dishonesty. He has been dealt with by a Childrens or Local Court on 26 separate occasions. There have also been some appeals to the District Court. In September 1994, on the 6th occasion on which a sentence was imposed, he received his first sentence of imprisonment. Putting aside his numerous concurrent sentences, he has been sentenced to imprisonment on 8 further occasions before he committed the instant offence. One group of sentences in March 1998 involved him attending the William Booth Institute although the Antecedents Report suggests he may not have done so, or attended for only a very short period. The longest single period of actual custody imposed seems to have been 12 months.

108 The Appellant’s conviction on the murder charge is not, of course, an occasion when he should again be punished for any of the offences on his antecedent report. However the history I have recounted shows that over a period of 9 years he has chosen to disregard the rules and mores of civilised society and had ignored the chances and leniency which many courts had extended to him. The offences on the Form 1 and his actions on 14 January 2001 prior to the time of colliding with his victim may fairly be regarded as a continuation of his attitude over the previous 9 years. In that situation, his past has a clear relevance - Veen v R (No 2) [1987-88] 164 CLR 465 at 477.

109 As the 9th offence of its type, the breaking entering and stealing offence on the Form 1, had it stood on its own, would have merited, indeed required, a substantial period of imprisonment. Albeit the offence on the Form 1 relating to the Prado was receiving, in light of the previous 6 offences of stealing or illegal use of a motor vehicle, the same may be said of that offence also.

110 Of course, the fact that these offences were, with others, included on a Form 1 means that their significance for sentencing purposes is attenuated – see Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999, No 1 of 2002 [2002] 56 NSWLR 146 at [39] – [44]. However this should not be into a state of oblivion, particularly when regard is had to the matters referred to in the immediately preceding paragraph.

111 Also relevant of course were the Appellant’s other subjective features. They are calculated to excite sympathy and undoubtedly argue for a lesser sentence than might otherwise be imposed.

112 He was always in trouble from a young age, sufficient for his mother to seek medical help and, when he was about 12, approach a solicitor about having the Appellant made a ward of state because she felt his parents’ lives were being totally destroyed by his delinquent behaviour. He was then put into a boarding school for children with behavioural problems. Apparently the Appellant’s biological father is in fact an uncle and on the advice of the school, the Appellant was then told so. This discovery totally destroyed his relationship with the person who he had thought was his father and led to behavioural problems so bad that he was asked to leave the school. In his early teens he was diagnosed as suffering from ADD.

113 The Appellant’s parents said that if he was to live at home he would have to work and work with a family friend was arranged. However this person sexually assaulted the Appellant and was, in due course prosecuted and convicted. After 9 months the Appellant could stand the treatment no longer and decided to live on the streets. He told the author of the Pre Sentence Report that he could not bring himself to tell his parents about the sexual assaults as he thought they would think that he was lying to get out of work.

114 According to a report from Messrs Duffy, Barrier, Robilliard, the Appellant began abusing cannabis at 13 and his use in this regard has continued. He began binge drinking at about the same age. The binge drinking significantly reduced when he was 19 at which time he began to use amphetamines and hallucinogens. At 21 he began using heroin when he was in Silverwater Correctional Centre. Since then there have been a number of attempts to control his addictions but none have been completely successful. According to the report, “Trevor said that during the past 18 months in custody his substance use has been significantly decreased, although he had not maintained total abstinence.” Gambling, another addiction, continues in a modified form in gaol.

115 The Appellant described himself to the author of that report as a quick learner and said that at he had found the school environment frustrating. Psychological testing revealed that he has a IQ of 117, placing him above 87% of the population. However testing in relation to emotional and interpersonal difficulties produced an invalid profile and his score indicated he had exaggerated his symptoms at a level greater than quite disturbed psychiatric populations. Testing for substance abuse led the psychologist to the conclusion that the Appellant needs relatively intensive rehabilitative treatment in this regard.

116 Given the age at which the Appellant’s behavioural problems commenced, it seems to me to be a proper inference that to some extent his congenital makeup is partly to blame for the lifestyle he has led. That is, in a way, mitigating. However, it may also argue for greater emphasis on personal deterrence and it certainly does argue for more weight to be given to protection of the community. These are 2 of the considerations to be taken into account in sentencing.

117 In terms of a sentence what should be the result of the above, to some extent conflicting, factors? Davidson AJ concluded that an appropriate starting point was 18 years from which he allowed a discount of about 11% or 2 years on account of the Appellant having pleaded guilty to manslaughter. Thus it was that his Honour arrived at a head sentence of 16 years and, declining to find special circumstances, a non-parole period of 12 years.

118 I have previously remarked on the limits on the usefulness of statistics in sentencing. However it may be noted that they show that 50% of offenders sentenced for one count of murder and who have pleaded not guilty receive a head sentence of, or less than a period of 18 years. 28% of such offenders receive head sentences of 16 years or less. The range of head sentences is from 9 years to life imprisonment.

119 While, by definition, in all cases the victim has died, experience shows that there is a large range of criminality within the commission of the offence. Parliament has provided that in most situations, including this one, the courts shall have a choice as to the punishment to be imposed in a particular case – from nothing (although I cannot conceive where such would be the penalty) to life imprisonment. Thus it is necessary for a court to embark on some assessment of where, within the range of criminality, a particular offence falls.

120 Experience has also shown that many cases involve much greater criminality than that here. For example, all other things being equal – which they rarely are – the presence of an intention to kill is generally regarded as involving greater criminality than the presence of an intent to do merely grievous bodily harm. On a similar basis, I would regard an intent to kill as involving greater criminality than reckless indifference to human life.

121 But that is to talk in generalities. There remains the question where does the Appellant’s offence fall. In my view the Appellant’s conduct in continuing to drive when, as the jury must have concluded, he knew by his manner of driving, there was a real and substantial, not remote, likelihood that someone would be killed, places his criminality higher than most cases with which the Court has to deal where death results from acts done with, merely, an intent to do grievous bodily harm. A fortiori is this so when regard is had to the fact that the conduct was, in the way I have indicated, not momentary but the culmination of actions over a substantial period and when there had been plenty of time to reflect on where his actions might lead. It is notorious that the sort of driving the Appellant engaged in prior to the last few moments often leads to serious injury or death. Indeed this must or should have been brought home to the Appellant when, earlier, he narrowly evaded a head-on collision with another motorist.

122 Of course, the Appellant does not suffer from the disadvantage or aggravation of having premeditated his victim’s death or that the victim would suffer grievous bodily harm. On the other hand, the Appellant does not have, by way of excuse or explanation for his conduct the sort of stress or emotion which leads, at times, to violence in a domestic or family situation. His motivation appears to have been solely to escape apprehension for other criminality. Not that, except insofar as it appears in the Form 1, he is to be punished for that criminality. I mention it solely to point out that he does not have in his favour some factors commonly regarded as mitigating.

123 In addition to these matters, which would place his offending in what I would regard as not less than the middle of the range of murder offences, there was the fact that the victim was a police officer killed in the circumstances I have described, and secondly, the matters of the Form 1. Notwithstanding the murder conviction itself is bound to result in a quantum leap in the length of the sentence imposed on the Appellant compared with those he had previously suffered, in light of the magnitude of his past offending, the offences on the Form 1 should have led to some increase in the sentence otherwise appropriate – and this even if, as Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999, No 1 of 2002 suggests, one regards the Form 1 offences as relevant to only personal deterrence and retribution. Having regard to his past, it would be quite wrong to say that, because he has to suffer a long sentence for the murder itself, the demands of personal deterrence and retribution are satisfied.

124 Indeed, his past demonstrates the contrary. Very many of the sentences imposed on the Appellant have been made concurrent. At a practical level, and notwithstanding the imposition of sentences, the courts have in fact not imposed any punishment on the Appellant for much of his offending. The extent to which he has re-offended demonstrates that there is no community purpose served by this approach. The time has surely arrived where, in terms of both personal deterrence and retribution, he should suffer, and obviously suffer, punishment for every occasion of offending.

125 To take account of the fact that the Appellant’s victim was a police officer killed in the circumstances he was, the increase from the sentence otherwise appropriate should have been substantial. I do not see any other way of giving effect to the authorities which I have quoted in this regard (and with which I respectfully agree). Nor, unless there be error in that too little weight was given to other factors, is it possible to avoid the conclusion that, in the sentence imposed, this has not occurred. It is impossible to find in the 18 year starting point, both proper reflection of the general pattern of sentencing for murder, apparent in the statistics to which I have referred and with which this Court has frequently to deal, and any proper allowance for the circumstances of the victim.

126 One particular factor which seems to me to argue very strongly for the conclusion that the sentence is too light is retribution. This Court said in R v Gordon (unreported, CCA, 7 February 1994):-

“Retribution, or the taking of vengeance for the injury which was done by the offender, is also an important aspect of sentencing: Regina v Goodrich (1952) 70 WN 42 at 43; Regina v Cuthbert (1967) 86 WN (Pt 1) 272 at 274; Regina v Rushby (at 598). Not only must the community be satisfied that the offender is given his just deserts, it is important as well that the victim, or those who are left behind, also feel that justice has been done.”

127 See also Veen v R (No 2) at 476.

128 While there is obvious difficulty in accepting that the family of a murdered victim are the best or perhaps appropriate judges of what an offender’s just deserts are, there is much to be said for the substance of this passage. After an irresponsible past which his prior court appearances and sentences must have demonstrated to him was unacceptable, on the day with which I am concerned he participated in a bag snatching. Then, to avoid a police pursuit and apprehension and his just desserts for the bag snatching, and/or driving a stolen vehicle, he embarked on a lengthy period of irresponsible driving, to some degree dangerous and which he must have known was dangerous. Finally, driving with reckless indifference to life he caused the unsurprising death of one of the police officers trying to apprehend him.

129 I am unable to regard, and I do not believe the community would regard, the 18 year starting point or the 16 year sentence imposed on the Appellant as justice done for such an offence.

130 In so concluding, I do not forget the Appellant’s unfortunate life, for at least some of which he cannot fairly be held responsible. But, demonstrably, the courts have given him chances. Although there is scope for much improvement there, gaols do have courses directed to helping offenders. Either, he has chosen not to learn or, if he cannot, then the need for protection of the community looms large. I do not forget the limits on the operation that can legitimately be given to this topic of protection - see Veen v R (No 2) at p 473 et seq.

131 I would accept that Davidson AJ’s starting point, although in my view low, could be justified had there been no Form 1 offences and the victim not being a police officer killed in the course of his duty. However I find it impossible to regard that starting point, or the sentence ultimately imposed as other than manifestly inadequate when these matters are taken into account and given their proper weight. There are, of course, restraints on this court in re-sentencing in consequence of a Crown appeal but the matters to which I have referred lead me to the conclusion that the minimum starting point which could reasonably be adopted in the sentencing of the Appellant is 22 years. Recognition of the fact that he pleaded guilty to manslaughter would lead me to reduce this period to 20 years. Davidson AJ said that there were no special circumstances, a view with which I agree, and accordingly the non-parole period should be 15 years. As did the sentence Davidson AJ imposed, both periods should date from 15 January 2001.

132 I would dismiss the appeal against conviction but allow the Crown appeal, quash the sentence imposed by Davidson AJ and impose in lieu a sentence in terms of that set out in the immediately preceding paragraph.

133 SMART AJ: I agree with Grove J.

Appeal Against Conviction

134 In Richards v The Queen [1993] AC 217 at 222-3 Lord Bridge in delivering the judgment of the Privy Council said:

"It has been said many times that the word 'conviction' is ambiguous and it has sometimes been construed in a statutory context as referring to nothing more than a finding of guilt. But, in the absence of something in the context which suggests that narrower meaning, the authorities in the 19th century and earlier all seem to point to the conclusion that the requirement to establish a conviction requires a proof not only of the finding of guilt but also of the court's final adjudication by sentence or other order."

135 In Maxwell v The Queen (1995) 184 CLR 501 AT 507 Dawson and McHugh JJ remarked:

"The question of what amounts to a conviction admits of no single, comprehensive answer. Indeed, the answer to the question rather depends upon the context in which it is asked."

136 The context in which the question arises for present purposes is a statutory one in which a person who has been convicted or acquitted of an offence under s 52A cannot be prosecuted for murder or manslaughter or for any other offence under this Act on the same or substantially the same facts. That could be described as broadly producing a statutory autrefois acquit. The person is not to be put in jeopardy twice nor punished twice.

137 At 509 of Maxwell Dawson and McHugh JJ, after referring to Griffiths v The Queen (1977) CLR 293 said:

"A conviction does not occur until there is an acceptance of the plea amounting to a determination of guilt. The determination of guilt forms part of the judgment of the court but it can occur otherwise than by the formal entry of the plea upon the record of the court."

138 In Maxwell (supra) at 509-510 Dawson and McHugh JJ said: (citations omitted)

"In a recent decision,

Richards v The Queen,

the Privy Council observed that the underlying rationale of autrefois convict is to prevent duplication of punishment and that, for he application of the doctrine, finality of adjudication is essential. They went on to say:

'The need for finality of adjudication by the court whose decision is relied on to found a plea of autrefois convict is even more clearly apparent where a defendant has pleaded guilty. Not only may the defendant be permitted, in the discretion of the court, to change that plea at any time before sentence, but, when a plea of guilty to a lesser offence than that charged has initially been accepted by the prosecutor with the approval of the court, there can, it appears to their Lordships, be no finality in that "acceptance" until sentence is passed.'

139 In Richards at 226 the Privy Council referred to some earlier remarks of Lord Reid in S v Recorder of Manchester [1971] AC 481 at 490:

"I do not think it is necessary to enter upon the technicalities of autrefois acquit. … authorities cited to us strongly suggest that this is not a good plea unless the earlier case was carried to a conclusion."

140 In Richards at 226-7 the Privy Council stated:

141 In Maxwell, supra, at 530 Gaudron and Gummow JJ said :

"… the present position in the United Kingdom appears to be that there is no conviction until final adjudication by sentence. That approach has the advantage that the question whether there has been a conviction is capable of simple and certain answer. However, that approach is not satisfactory if submissions have to be put to the Court with respect to sentence before there has been a determination of guilt. Particularly is that so if the accused can be required to stand trial on a more serious charge than that to which he has pleaded guilty.

"… it must be concluded that conviction only occurs when the court does some act which indicates that it has determined guilt or, which is the same thing, that it has accepted that the accused us criminally responsible for the offence in question."

142 Toohey J at 519 said:

"The meaning of 'conviction' generally depends on determining the sense in which it was used in the statute under consideration."

"Thus Australian authority indicates that at common law conviction encompasses a determination of guilt by the court and does not necessarily require judgment on the basis of that determination.

There are a number of ways in which a court may show acceptance of a guilty plea. The judge may expressly indicate that the accused was convicted before making any order in relation to that conviction. …"

143 Toohey J at 520 stated that it was important not to lose sight of the purpose for which the inquiry is being held as to the meaning of conviction. In the present case it is being pursued to determine the meaning of a statutory provision, that is, s 52AA(6) of the Crimes Act.

144 The indictment placed before Barr J was undesirable as to form but not objectionable: R v Thompson [1976] 2 NSWLR 453. In that case which was decided on the predecessor of s 52AA(6), namely, the proviso to s 52A(4) Street CJ said:

145 Section 52AA(6) prohibits convictions for both murder and aggravated dangerous driving causing death arising out of substantially the same facts. That involves double jeopardy. There could be a conviction on only one of those counts. Either a verdict would not be taken on the second count if a verdict of guilty on the first count was returned or no conviction would be recorded on the second count.

146 When on 1 March 2002 Barr J, after the appellant had been re-arraigned at his solicitor's request and entered a plea of not guilty to murder and a plea of guilty to aggravated dangerous driving causing death, confirmed that the trial of the appellant was to commence on 6 May 2002, this could only have been on the basis that the trial for murder was to proceed on that day. That is inconsistent with recording a final conviction for the offence of aggravated dangerous driving causing death, given the terms of s 52AA(6). I do not overlook that Barr J, in respect of the latter offence, followed the formula suggested by Barwick CJ in Griffiths. At the hearing on 1 March 2002 nobody appreciated the possible input of s 52AA(6) or the importance of the counts not being charged in the alternative.

147 While there is a difference between English law and Australian law as to the meaning in general of the word "conviction", it seems to be accepted in Australian law that regard must be had to the context in which the word "conviction" is used and where there is a statute, the sense in which it is used in the statute. Where the context under consideration is that of autrefois convict or an analogous field this may well point to the acceptance of any conviction being provisional until sentence is passed.

148 In the circumstances it is correct, following the remarks of Dawson and McHugh JJ in Maxwell, supra, to treat the acceptance of the plea of guilty to the offence of aggravated dangerous driving causing death as provisional only pending actual sentence, or some other disposal of that count. Of course, upon the conviction for murder there could be no conviction entered upon the other count.

The Crown Appeal against Sentence

149 While this has considerable merit and the leniency of the sentence has troubled me, I agree with Grove J that the sentence is not so low as to warrant the intervention of this Court.

150 Both the appeal against conviction and the Crown appeal against sentence should be dismissed.

**********

Last Modified: 07/02/2004

Actions

Download as PDF Download as Word Document

Citations

R v Holton [2004] NSWCCA 214

Most Recent Citation

R v Bartlett No. DCCRM-01-1207 [2002] SADC 142

Cases Citing This Decision

74

Putland v The Queen [2003] NTCCA 3

R v Mr L (a pseudonym) [2025] NSWSC 1194

R v Dean [2013] NSWSC 1027

Cases Cited

8

Statutory Material Cited

1

Director of Public Prosecutions v Helou [2003] NSWCA 301

R v Hall [2001] NSWCCA 202

R v Adam (Richard) and (Gilbert) [1999] NSWSC 144

CITATION:	Regina v Holton [2004] NSWCCA 214
HEARING DATE(S):	Friday 12 December 2003
JUDGMENT DATE:	30 June 2004
JUDGMENT OF:	Grove J at 1; Hulme J at 69; Smart AJ at 133
DECISION:	APPEAL AGAINST CONVICTION DISMISSED; CROWN APPEAL AGAINST SENTENCE DISMISSED (BY MAJORITY)
CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - MURDER AND DANGEROUS DRIVING CAUSING DEATH CHARGED IN INDICTMENT - PLEA OF GUILTY TO ONE COUNT - STATUTORY PROVISION AGAINST DOUBLE JEOPARDY - WHETHER OFFENDER CONVICTED IN CIRCUMSTANCES - WHETHER COURT RECORD PERFECTED - SENTENCE - CROWN APPEAL ASSERTING INADEQUACY
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	AG's Apln under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] 56 NSWLR 146 Boughey v The Queen 1986 161 CLR 10 Burgess v Boetefeur 1844 7 Man & G 481 Cmr for Railways (NSW) v Cavanough [1935] 53 CLR 220 Della Patrona v DPP (No 2) 1995 38 NSWLR 257 DPP v Helou [2003] NSWCA 301 DPP v McCoid [1988] VR 982 Everett v The Queen 1994 181 CLR 295 Gilbert v The Queen 2000 201 CLR 414 Griffiths v The Queen 1977 137 CLR 293 Maxwell v The Queen 1995 104 CLR 501 R v Adam [1999] NSWSC 144 R v Ainsworth 1994 76 A Crim R 127 R v Annakin 1988 17 NSWLR 202n R v Baker [2000] NSWCCA 85 R v Beeby 1998 104 A Crim R 142 R v Carrion 2002 128 A Crim R 29 R v De Simoni [1980-1981] 147 CLR 383 R v Gordon, unrep CCA 7 Feb 1994 R v Hall [2001] NSWCCA 202 R v Hura 2001 121 A Crim R 472 R v Jerome & McMahon 1964 Qld R 595 R v Murnin NSWCCA unrep 16 Aug 1985 R v Phillips & Lawrence 1967 Qd R 637 Richards v The Queen [1991] AC 217 R v Ryan [2003] NSWCCA 202 R v Thompson [1976] 2 NSWLR 453 R v Tonks & Goss (1963) VR 121 Ryan v The Queen 2001 206 CLR 267 Quartermaine v The Queen 1980 143 CLR 595 S v Recorder of Manchester [1971] AC 481 Veen v R (No 2) [1987-88] 164 CLR 465 Wilde v The Queen 1987 164 CLR 365 Wong v The Queen 2001 207 CLR 584
PARTIES :	Regina v Trevor Edward Holton
FILE NUMBER(S):	CCA 60440/02; 60466/03
COUNSEL:	R. Cogswell SC (Crown) P. Byrne SC and T. Corish (Applicant)
SOLICITORS:	S.E. O'Connor (Crown) R. Hill (Applicant)

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	70112/01
LOWER COURT JUDICIAL OFFICER :	Davidson AJ