R v Kane

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Jason Michael Kane [2004] NSWCCA 78

FILE NUMBER(S):
60436/03
60029/04

HEARING DATE(S): 19 March 2004

JUDGMENT DATE: 19/03/2004

PARTIES:
Regina
Jason Michael Kane

JUDGMENT OF: Studdert J Sully J Dunford J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0815

LOWER COURT JUDICIAL OFFICER: Shillington DCJ

COUNSEL:
D. Howard - Crown
A. P. Cook - Appellant (60029/04)

In person - Appellant (60436/03)

SOLICITORS:
D. Kelly, DPP - Crown
Legal Aid Commission - Appellant (60029/04)

In person - Appellant (60436/03)

CATCHWORDS:

LEGISLATION CITED:
Crimes Act 1900
Crimes (Forensic Procedures) Act 2000

DECISION:
Leave to appeal against sentence granted
Appeal against sentence dismissed
Appeal against conviction dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

060436/03
060029/04
STUDDERT J
SULLY J
DUNFORD J
19 March 2004

REGINA v JASON MICHAEL KANE

Judgment

SULLY J: The appellant, Mr Kane, stood trial in the District Court before Judge Shillington QC and a jury in October 2002. He had been presented for trial in that Court upon an indictment containing two counts charged in the alternative.
The first count alleged an armed robbery: that is to say, a robbery while being armed with an offensive weapon, namely, a knife; an offence contravening s 97 (1) of the Crimes Act 1900 and attracting upon conviction a maximum penalty of imprisonment for twenty years. The second count charged in the alternative was a count of robbery from the person; an offence contravening s 94 of the Crimes Act 1900 and attracting upon conviction a maximum penalty of imprisonment for fourteen years.
The appellant pleaded not guilty to both charges but the jury found him guilty on the first count: that is, the count of robbery being armed with an offensive weapon, namely, a knife. In those circumstances no verdict was required of the jury in connection with the second and alternative charge in the indictment.
In due course the appellant stood for sentence, and he was sentenced to imprisonment for eight years with a non-parole period of six years.
The appellant appeals against his conviction and seeks leave to appeal against sentence.
So far as concerns the appeal against conviction, three grounds of appeal have been notified. The first ground of appeal is that the verdict is unsafe and unsatisfactory. The second ground of appeal focuses more particularly upon the admission in the trial of certain DNA evidence, and challenges the regularity and propriety of the admission in the trial of that material. The third ground is that the trial Judge erred in not directing a verdict of acquittal at the close of the Crown case. It is convenient to deal first with the second ground; and then successively with the third ground and the first ground.
The relevant facts are within a small compass and are set out conveniently in the following paragraphs extracted from the remarks on sentence:
“The Crown case was a circumstantial one. Kelly Judd, an employee of the TAB, was working alone at the Mascot branch on 14 December 2001 at about 10pm. The prisoner, wearing a balaclava and carrying a knife, burst into the agency. He forced the victim to open a door into the office part of the premises and seized $2,389 in money from a tray and left. Kelly Judd recognised the general demeanour and physical characteristics of the assailant as one of a regular customer to the agency. She took into account no doubt the above average height of the assailant when relating him to the person of the prisoner when he came at a later stage into the TAB agency.
The balaclava was thrown away by the robber a short distance from the premises and was recovered by investigating police. Remnants of skin above the eyeholes in the balaclava were forensically examined for hum DNA and a successful profile was obtained. This was compared with DNA from a cigarette later discarded by the prisoner and a hair sample taken after the prisoner's arrest. The profile of all of these DNA samples were identical. The probability of another person in the community having the same DNA profile was said to be extremely low. The robbery was committed with considerable threats of violence, and was clearly a traumatic experience for the victim. It demands a substantial custodial penalty".
The second ground of appeal rests upon submissions concerning the purported operation of certain provisions of the Crimes (Forensic Procedures) Act 2000. S 82 of that Act is in the following terms:
“Inadmissibility of evidence from improper forensic procedures
(1)This section applies where:
(a)a forensic procedure has been carried out on a person, and
(b)there has been any breach of, or failure to comply with:
(i)           any provision of this Act in relation to a forensic procedure carried out on a person (including, but not limited to, any breach of or failure to comply with a provision requiring things to be done at any time before or after the forensic procedure is carried out), or
(ii)          any provision of Part 11 with respect to recording or use of information on the DNA database system.
(2)This section does not apply if:
(a)a provision of this Act required forensic material to be destroyed, and
(b)the forensic material has not been destroyed.
Note.      Section 83 applies where this Act requires forensic material to have been destroyed.
(3)This section applies:
(a)to evidence of forensic material, or evidence consisting of forensic material, taken from a person by a forensic procedure, and
(b)to evidence of any results of the analysis of the forensic material, and
(c)to any other evidence made or obtained as a result of or in connection with the carrying out of the forensic procedure.
(4)If this section applies, evidence described in subsection (3) is not admissible in any proceedings against the person in a court unless:
(a)the person does not object to the admission of the evidence, or
(b)in the opinion of the court the desirability of admitting the evidence outweighs the undesirability of admitting evidence that was not obtained in compliance with the provisions of this Act, or
(c)in the opinion of the court, the breach of, or failure to comply with, the provisions of this Act arose out of mistaken but reasonable belief as to the age of a child.
(5)The matters that may be considered by the court for the purposes of subsection (4)(b) are the following:
(a)the probative value of the evidence,
(b)the reasons given for the failure to comply with the provision of this Act,
(c)the gravity of the failure to comply with the provisions of this Act, and whether the failure deprived the person of a significant protection under this Act,
(d)whether the failure to comply with the provision of this Act was intentional or reckless,
(e)the nature of the provision of this Act that was not complied with,
(f)the nature of the offence concerned and the subject matter of the proceedings,
(g)whether admitting the evidence would seriously undermine the protection given to suspects by this Act,
(h)whether the breach of or failure to comply with the provision of this Act was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights,
(i)whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the breach or failure to comply,
(j)the difficulty (if any) of obtaining the evidence without contravention of an Australian law,
(k)any other matters the court considers to be relevant.
(6)The probative value of the evidence does not by itself justify the admission of the evidence.
(7)If a judge permits evidence to be given before a jury under subsection (4), the judge must:
(a)inform the jury of the breach of, or failure to comply with, a provision of this Act, and
(b)give the jury such warning about the evidence as the judge thinks appropriate in the circumstances.”
S 3 of the Act, the definitions section, contains the following relevant definitions which touch upon the proper construction and operation of s 82:
“forensic material means:
(a)samples, or
(b)hand prints, finger prints, foot prints or toe prints, or
(c)photographs, or
(d)casts or impressions,
taken from or of a person’s body.
forensic procedure means:
(a)an intimate forensic procedure, or
(b)a non-intimate forensic procedure, or
(c)the taking of a sample by buccal swab,
but does not include:
(d)any intrusion into a person’s body cavities except the mouth, or
(e)the taking of any sample for the sole purpose of establishing the identity of the person from whom the sample is taken.
Note. Paragraph (e) makes it clear that the Act only applies to samples taken for forensic purposes and not to samples taken purely to establish the identity of a person.
Intimate forensic procedure means the following forensic procedures:
(a)an external examination of:
(i)the genital or anal area or the buttocks, or
(ii)the breasts of a female or a transgender person who identifies as a female,
(b)the taking of a sample of blood,
(c)the taking of a sample of saliva (otherwise than by buccal swab),
(d)the taking of a sample of pubic hair,
(e)the taking of a sample by swab or washing from:
(i)the external genital or anal area or the buttocks, or
(ii)the breasts of a female or a transgender person who identifies as a female,
(f)the taking of a sample by vacuum suction, by scraping or by lifting by tape from:
(i)the external genital or anal area or the buttocks, or
(ii)the breasts of a female or a transgender person who identifies as a female,
(g)the taking of a dental impression,
(h)the taking of a photograph of:
(i)the genital or anal area or the buttocks, or
(ii)the breasts of a female or a transgender person who identifies as a female,
(i)the taking of an impression or cast of a wound from:
(i)the genital or anal area or the buttocks, or
(ii)the breasts of a female or a transgender person who identifies as a female.
non-intimate forensic procedure means the following forensic procedures:
(a)an external examination of a part of the body other than:
(i)the genital or anal area or the buttocks, or
(ii)the breasts of a female or a transgender person who identifies as a female,
that requires touching of the body or removal of clothing,
(b)the taking of a sample of hair other than pubic hair,
(c)the taking of a sample from a nail or under a nail,
(d)the taking of a sample by swab or washing from any external part of the body other than:
(i)the genital or anal area or the buttocks, or
(ii)the breasts of a female or a transgender person who identifies as a female,
(e)the taking of a sample by vacuum suction, by scraping or by lifting by tape from any external part of the body other than:
(i)the genital or anal area or the buttocks, or
(ii)the breasts of a female or a transgender person who identifies as a female,
(f)the taking of a hand print, finger print, foot print or toe print,
(g)the taking of a photograph of a part of the body other than:
(i)the genital or anal area or the buttocks, or
(ii)the breasts of a female or a transgender person who identifies as a female,
(h)the taking of an impression or cast of a wound from a part of the body other than:
(i)the genital or anal area or the buttocks, or
(ii)the breasts of a female or a transgender person who identifies as a female,
(i)the taking of physical measurements (whether or not involving marking) for biomechanical analysis of an external part of the body other than:
(i)the genital or anal area or the buttocks, or
(ii)the breasts of a female or a transgender person who identifies as a female.”
The gist of the appellant's submission is that the retrieval by the surveilling police of the cigarette butt which the appellant had dropped on to the footpath, and the subsequent examination and analysis of the DNA contents of that butt amounted to a forensic procedure in the sense contemplated by the Crimes (Forensic Procedures) Act2000; and that the requirements of the Act in connection with a forensic procedure had not been followed. The consequence was, so it is submitted, that the DNA evidence which was obtained, in large part at least, from the analysis of the retrieved cigarette butt had been unlawfully obtained and ought not to have been admitted in the Crown case against the appellant at the trial.
It seems to me that the short answer to those submissions is that they misconceive the purpose and the scope and operation of the Crimes (Forensic Procedures) Act.
The long title to the Act explains relevantly that the Act is intended:
“to make provision with respect to the powers to carry out forensic procedures on certain persons ..."
A careful examination of the s 3 definitions earlier herein quoted shows, in my opinion, that what is contemplated by the notion of a forensic procedure, whether intimate or non-intimate, is that it is a procedure actually carried out on the person of some specific individual. The chance circumstance that a person throws away, relevantly, a cigarette butt which is retrieved without any reference to, or interference with the person, and which turns out to have significant probative value in terms of what it says about the relevant DNA profile, does not seem to me to satisfy, either in principle or in practice, either in law or in fact, what is contemplated by the Crimes (Forensic Procedures) Act 2000. In my opinion that ground of appeal fails at the threshold.
At the close of the Crown case there was in hand, in my view, a very strong case against the appellant. In part the case comprised direct eye witness evidence of a kind not inherently incredible, and in fact accepted by the ultimate tribunal of fact; and of high probative value in establishing the Crown case. The DNA evidence in question was also, in my opinion, of considerable probative value and significantly strengthened the Crown case. It is trite that at the conclusion of a Crown case the question whether there is a case fit to go to the jury is to be considered by looking at the entirety of the evidence in the Crown case at the high point in favour of the Crown. Judged in that way, it seems to me beyond argument that there was at the close of the Crown case, at the very least, a case fit to go to the jury. In my opinion the third ground of appeal has not been made out.
The first ground of appeal that the verdict is unsafe and unsatisfactory postulates in fact that the jury's verdict of guilty cannot be supported upon a reasonable view of the entirety of the evidence. The only evidence at trial was the evidence in the Crown case. I do not see why it was not open to a reasonable jury, properly directed, to be satisfied beyond reasonable doubt upon the entirety of that case that the charge laid in the first count of the indictment had been established by the Crown. In my opinion the first ground of appeal against conviction has not been made good.
It follows that, in my opinion, the appeal against conviction should be dismissed.
As to the application for leave to appeal against sentence I can state my position very simply.
The first question is not whether the sentence was high or low; or whether it falls on this or that side of some imaginary line; or this or that point on some imaginary scale. The first question is: what is said to be the error which vitiates the sentence? The submissions put for the appellant are, essentially, that there is no demonstrable patent error; but that, on the face of the sentence as passed, it is so manifestly excessive as to indicate latent error.
The learned primary Judge took a severe view of the objective criminality of the offence. In my opinion his Honour was perfectly entitled to do so. Courts of appellate authority have said time and time again that armed robbery in any circumstances, anywhere and by anybody, is a serious crime and is to be punished with appropriate severity having regard to the maximum sentence set by the Legislature.
So far as concerns subjective considerations, there is no doubt that in this case, as indeed in practically every case, there were subjective considerations properly requiring to be brought to account. I am not satisfied, having read the remarks on sentence, that his Honour can be said reasonably not to have brought them properly to account.
In my opinion leave to appeal against sentence should be granted but the appeal against sentence should be dismissed.
STUDDERT J: I agree with Sully J
DUNFORD J: As to the appeal against conviction, I agree that such appeal should be dismissed for the reasons given by Sully J. I also agree that, although the application for leave to appeal against sentence should be granted, such appeal should be dismissed.
This offence was serious but, and as his Honour, the learned sentencing judge observed, it was committed with considerable threats of violence. It was clearly a traumatic experience for the victim and, I might add, also presumably for the other persons who were in the TAB agency at the time. Such agencies are a facility available to members of the community for their recreation and relaxation and are accordingly open at night with minimum staff. It follows that such agencies need to be protected and, more importantly, their staff members and patrons need to be safe and secure from robbery, violence and threats of violence occasioned by incidents such as the present.
In sentencing for such offences, significant regard must be had to the protection of the community, public denunciation of the offence and general and personal deterrence, as well as the rehabilitation of the offender.
The applicant did not give evidence in the trial nor on sentence, but his Honour had available to him in addition to the criminal history, a report from Peter Champion, clinical psychologist and letters from the applicant’s mother and aunt.
The applicant was born on 17 November 1974 and was therefore 28 years at the time of sentence. He left school at aged about 15 years, having been previously asked not to return to a school that he had formerly attended. He initially worked as an apprentice pastry chef but subsequently had worked in a number of different gainful employments and was employed as a labourer at the time of his arrest.
He had been involved in a medium term relationship of four years which failed because of his heroin use, and a later short-term relationship in 2001 had also failed. His parents separated when he was about 18 years old after 22 years of marriage, and it appeared he had been quite upset by this although he retained contact with both of them. Subsequently his father, to whom he was close, became ill and eventually died in 1999.
Of particular significance has been the applicant’s substance abuse since an early age, including cannabis, amphetamines, heroin, alcohol and the occasional use of LSD and cocaine.
He has an extensive criminal record going back to 1993 including, on my calculations, 14 convictions for various forms of stealing, including steal from a dwelling and break, enter and steal, two convictions for goods in custody and also convictions for assault, malicious damage and enter dwelling with intent to commit a felony. The convictions for stealing and goods in custody are of particular significance in the present context.

There was no evidence directly linking this offence, or any of his other offences, with his drug use although a link may be inferred. Consistently with maintaining his innocence, as is his right, he has shown no remorse whatsoever for his offences.
It cannot be said that he has not been given a chance in the past to get his life in order. When one examines his criminal history, one is surprised at the leniency shown to him as a repeat offender. He has been released on recognisance on three separate occasions, in 1993, 1995 and 1998. On 16 May 1994, he was ordered to perform community service by the Waverley Local Court and on 1 September 1998 a number of concurrent sentences of periodic detention were imposed at the Central Local Court. All of these orders he breached and full-time sentences were subsequently imposed. In other words, he has been given a number of chances to avoid full-time custody and not taken advantage of them.
Ultimately, for a further group of offences, he was sentenced to 12 months imprisonment at the Waverley Local Court on 28 June 1999, but even this does not appear to have taught him very much.
The applicant told Mr Champion that in future he intends to avoid drug use, but to do so on his own without the assistance of any drug and alcohol programme, residential rehabilitation or professional assistance, notwithstanding that such unassisted efforts in the past have been unsuccessful.
It has been submitted on his behalf that the sentence was manifestly excessive and disclosed latent error. In particular, it was submitted:
That the objective seriousness was reduced by reason of a degree of clumsiness attending the offence, the weapon was only a knife and was not held close or pointed at any one in the agency, the victim was not alone and there was no physical contact or acts of aggression;
That the applicant had endured a sad life, particularly in recent years, and this has a causative role in the commission of the offence;
That the case fell substantially within the parameters of the guideline judgment in R v Henry [1999] NSWCCA 111, 46 NSWLR 346;
That the sentence was excessive when regard is had to the statistics produced by the Judicial Commission of New South Wales.
Dealing with each of these submissions, I do not consider the objective seriousness was in any way diminished by the factors indicated. A vulnerable target was attacked at night. The immediate victim, the employee, was terrified. A knife was produced and, even if not actually used or pointed at the victim, other patrons were also concerned to the extent that a number of them left the premises. The applicant was also armed with a brick, no doubt intended to be used to smash the glass walls of the stall where the employee attended to customers, and I fail to see how clumsiness in the execution of the crime, even if it were established, can be regarded as a mitigating factor.
It was submitted that the circumstances showed a lack of planning, but I do not see it that way. He attacked premises with which he was familiar, armed with a knife and a brick and wearing a balaclava, and he did so at night. I see a significant degree of planning in that operation.
Whilst the separation and subsequent divorce of his parents and the illness and death of his father were no doubt sad events in the applicant’s life, many persons have to deal with personal tragedies from time to time, and such events do not justify embarking on a life of crime or poly-substance abuse. In any event, the separation of his parents occurred in 1993 and the death of his father in 1999 and there is no evidence, except speculation from his mother and aunt, that this offence is related to those past events.
I also note that he was using cannabis, amphetamines and alcohol from an early age, prior to the separation of his parents and, according to what he told Mr Champion, he was using heroin from the age of twenty-two, which would have been 1996, well prior to his father’s death. In any event, I consider it probable that the effect on him of the separation of his parents, his father’s earlier illness and his subsequent death were taken into account by other Courts when extending to him the leniency to which I have previously referred.
I reject the submission that this case fell substantially within the parameters of the guidelines in R v Henry, whatever “substantially” is intended to mean in that context. The applicant was not a young offender and he did not have little or no criminal history. The amount taken was $2,389, not a small amount. There was a degree of planning, as I have indicated, and there was no plea of guilty.
This was therefore a more serious case than that contemplated in R v Henry and so the only relevance of the guideline was to point to a sentence greater than the head sentence of 4 or 5 years as indicated in that case, and it called for more than a small or nominal increment.
The statistics from the Judicial Commission can at times be useful, but their value is limited and they must be used with caution: R v Bloomfield (1998) 44 NSWLR 734. In R v Wu [2002] NSWCCA 214 at [14], in the context of this particular offence of armed robbery with its maximum penalty of twenty years, Greg James J expressed the view that:
“…if in the range of persons coming forward for sentences in such circumstances no one had managed to achieve a sentence in excess of the 7 years head sentence and 48 months non parole period noted in the statistics, notwithstanding the number of armed robberies that might have been committed, there would appear to be some difficulty either about the sentencing parameters being appropriate or the adequacy of the statistics”.
I see no error in his Honour’s reasoning, nor do I consider the sentence excessive. For these reasons, I agree with the orders proposed by the other members of the Court.

STUDDERT J: The orders of the Court then will be those proposed by Sully J.

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LAST UPDATED: 26/03/2004

[2004] NSWCCA 78

19 March 2004

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