R v Jewell

[1994] QCA 229

IN THE COURT OF APPEAL  [1994] QCA 229

SUPREME COURT OF QUEENSLAND             C.A. No. 75 of 1994

Brisbane

[R. v. Jewell]

T H E  Q U E E N

v.

ROBERT LLOYD JEWELL         (Appellant)

_______________________________________________________________
  DAVIES J.A.
  MCPHERSON J.A.

DEMACK J.

Judgment delivered 24/06/1994

REASONS FOR JUDGMENT - THE COURT

APPEAL AGAINST CONVICTION DISMISSED.  APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:   CRIMINAL LAW - EVIDENCE - alibi - appellant's account generally supported by evidence of co-offender - inconsistencies between accounts - allegation of failure by legal representatives to adduce evidence from others to corroborate appellant's account - strong circumstantial case

CRIMINAL LAW - SENTENCE - armed robbery in company - appellant's youth - numerous previous offences involving dishonesty - lack of remorse

Counsel:The Appellant in person

J. Hunter for the Respondent

Solicitors:Director of Prosecutions for the Respondent

Date(s) of Hearing:20 June 1994

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 24/06/1994

The appellant was convicted in the District Court at Brisbane on 11 February this year on three counts, one of armed robbery in company, one of discharging a firearm with intent to alarm, and one of unlawful use of a motor vehicle with a circumstance of aggravation, that circumstance being the facilitation of the commission of the armed robbery.  He was sentenced to nine years' imprisonment on the first count, 18 months' imprisonment on the second, and two years' imprisonment on the third.  He appeals in person to this Court against his conviction and seeks leave to appeal against the sentence of nine years for armed robbery.

The appeal against conviction was on five grounds.  They were that:

1.the appellant's barrister failed to call witnesses (barmaid, bouncer at the nightclub) to verify his testimony;

2.his conviction was based on circumstantial evidence which he felt was not enough to warrant it;

3.he did not feel that he should have been tried as his co-offender said repeatedly that the appellant did not have any involvement in the crime;

4.he had no knowledge of the crime until he was arrested by the police;

5.evidence given by Noelene Beutel was not accurate as the appellant was not in the car just after the robbery; his alleged co-offender, Hollis, picked him up from a nightclub at 5.30 a.m. that morning.

The circumstances of the robbery were as follows.  At about 1.40 a.m. on 9 May 1993 Mr Richards, an employee of a service station at Holland Park West, was robbed by two men, both wearing balaclavas, one of whom was armed with a sawn-off shotgun, the other with a piece of timber.  During the course of the robbery the shotgun was discharged into the ceiling of the premises.  The offenders made their escape by commandeering a Mazda motor vehicle of a man who had pulled into the driveway after smashing both the driver's side and passenger's side windows of the vehicle.

Mr Richards described the man armed with the shotgun as wearing a white balaclava, creamy jacket with hood and gold tassels, light coloured jeans and high cut sports shoes.  The gun was sawn off at a "queer angle" and had a black webbing strap.  He described the height and build of this man in a way which was similar to that of the appellant.  The driver of the Mazda gave a similar description of the man with the shotgun. 

At a little after 2 a.m. on the following morning police intercepted a late model Holden Statesman sedan on the SouthEast Freeway.  The appellant was in the front seat and Hollis was driving.  The appellant was wearing a jacket later identified by Mr Richards as that worn by the gunman on the previous night.  Broken glass in the vehicle and in the clothing of the appellant was indistinguishable from glass from the broken windows of the Mazda.  A sawn-off shotgun was found concealed in the boot.  It was subsequently identified by Mr Richards as the gun used in the robbery and scientific examination confirmed that it had discharged at least one of the two spent cartridges located at the scene of the robbery.

Mr Richards said that he had seen a vehicle similar to the Holden Statesman drive slowly past his service station about 10 minutes prior to the robbery.  The Mazda was found abandoned about 350 metres from the service station.

Independent evidence placed the Statesman sedan in the Brisbane area less than an hour after the robbery.  Telephone calls were made from it at 2.27 a.m. and 2.37 a.m. on that morning.  The first of these, it was established, was made within five kilometres of the Oxley Telecom base station; and the second was made within five kilometres of a base station at Inala.  Noelene Beutel, a former girlfriend of Hollis, gave evidence that she was the recipient of both calls.  She also swore that she heard the appellant speaking on the telephone during one or other of those calls.

On the above evidence there was a very strong circumstantial case against the appellant.

The appellant, who gave evidence in his defence, swore that he was at a nightclub at the Gold Coast, to which he had gone on the evening of 8 May with Hollis, until dawn the following morning.  He said that he and Hollis had become separated in the nightclub and he next saw him at closing time, which was apparently about dawn, and they then drove from the nightclub to Oakey from where they had come on the previous evening.  He said that they returned to the nightclub the following evening, that is the night after the robbery, during which Hollis purchased the shotgun and it was on their return to Brisbane at the end of that evening at the nightclub that they were intercepted by police.

Hollis, who pleaded guilty and then gave evidence in the appellant's case, generally supported his evidence.  He said that on the night of 8/9 May he left the nightclub at the Gold Coast with two men whom he could no longer identify, but from whom he had intended to purchase the shotgun and, with one of them, committed the robbery.  He returned to the nightclub before closing time.  He then returned to the nightclub again the following night and purchased the shotgun.  There were nevertheless a number of discrepancies between his evidence and that of the appellant.  For example, in cross-examination the appellant, when asked about a black balaclava which was found under the dashboard of the Holden Statesman when the police searched the vehicle, said that he did not know it was there but later admitted that he had put it there.  He said that it came with the gun.  Hollis said that it belonged to one of his co-offenders and it did not come with the gun.  He said he was sure that the appellant was not responsible for concealing it in the vehicle.

The jury were thus presented with a very strong circumstantial case and improbable accounts by the appellant and Hollis, contradicted by Miss Beutel.  They must have believed Miss Beutel and disbelieved the appellant and Hollis.  No credible reason was advanced as to why Miss Beutel would want to implicate the appellant.

What we have said so far is sufficient to dispose of all except the first ground of appeal, to which we now turn.

Before us the appellant, a very articulate young man who appeared reasonably intelligent, told us that within two weeks of his arrest he had furnished to his solicitor the names of two bouncers, one or two barmaids (his versions before us differed on this) and another witness who could swear to his presence at the nightclub on the night in question.  We note in passing that his notice of appeal, which appears to have been drawn by him, refers only to one barmaid and a bouncer at the nightclub.  No notice of alibi was given and no attempt was made at the trial to call any witnesses to corroborate the appellant's evidence that he was present at the nightclub at the Gold Coast when the robbery occurred.  At the trial he was represented by experienced counsel instructed by experienced solicitors.  Nor was any reference made by the appellant in his evidence at the trial to any such persons who could verify his version.  Moreover, the notice of appeal was filed on 4 March this year and the appeal was not heard until 20 June.  No attempt in the meantime was made to place any evidence before this Court which might corroborate the appellant's alibi.  And finally in this respect it should be mentioned that it was never part of the Crown case that the appellant was not at the nightclub at some time during the night in question.

In those circumstances, we cannot accept that there is any substance in this ground of appeal.  If there had been, it would have come to light before now.

The appeal against conviction must therefore be dismissed.

The appellant, who was only 20 at the time he committed these offences and is now only just 22, had never previously been convicted of armed robbery.  Without more, those facts, his youth and the absence of a previous conviction for armed robbery, would incline us to think that a sentence of nine years' imprisonment was too high.  However, his previous criminal history, the seriousness of this offence and his apparent total lack of remorse have led us to think otherwise.

The appellant had been convicted of offences involving dishonesty on seven previous occasions.  On four of them he had been sentenced to terms of imprisonment, three of them being for 12 months, the other for a shorter period. 

We have already outlined the circumstances of the offence.  It was plainly the appellant who was bearing a loaded shotgun which he discharged into the ceiling.  The robbery appears to have been planned.

The appellant's plea of not guilty, his wholly improbable alibi given at the trial, and his persistence with that story on appeal, indicates a total lack of remorse.  Moreover before this Court he implied that, if his appeal were not allowed, his conduct could be expected to worsen in the future.

In those circumstances, although we think that the sentence imposed was at the high end of the permissible range, we do not think it was too high.

The application for leave to appeal against sentence must therefore also be refused.