R v Kane

[2001] NSWCCA 150

CITATION:	Regina v Kane [2001] NSWCCA 150
FILE NUMBER(S):	CCA 60717/00; 60780/00
HEARING DATE(S):	19/04/01
JUDGMENT DATE:	3 May 2001
PARTIES :	Regina v Peter Clive Basil Kane
JUDGMENT OF:	Handley JA at 1; Ipp AJA at 2; Greg James J at 90

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70087/97
LOWER COURT JUDICIAL OFFICER :	Barr J

COUNSEL :	T A Game SC (Appellant) L M B Lamprati (Crown)
SOLICITORS:	North & Badgery (Appellant) S E O'Connor (Crown)
CATCHWORDS:	CRIMINAL LAW - Appeal against conviction - arrest and detention unlawful - knowledge of reason for arrest - intention of police to bring accused before magistrate as soon as practicable - lack of evidence as to arresting officer's intention - common purpose doctrine - adequacy of directions to jury - no misunderstanding by jury as to judge's directions - provocation - whether rape of co-offender could properly amount to provocation - whether playing of pornographic video could properly amount to provocation - adequacy of direction to jury - directions appropriate - Crown appeal on sentence - accused sentenced at second trial after initial appeal succeeded and new trial ordered - sentence at second trial resulted in 18 month reduction - exercise of trial judge discretion as to sentence - sentencing discretion not limited by sentences imposed by other judges - Appeals dismissed.
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	Williams v The Queen (1986) 161 CL 278 R v Burns (unreported, NSWCCA, 19 August 1988) Christie v Leachinsky [1947] AC 573 Tangye (1997) 92 A Crim R 545 Johns v The Queen (1980) 143 CLR 108 R v Jurisic (1998) 45 NSWLR 209
DECISION:	Appellant's appeal against conviction dismissed; Crown appeal against sentence dismissed

IN THE COURT OF
CRIMINAL APPEAL

60717/00

60780/00

HANDLEY JA

IPP AJA

GREG JAMES J

REGINA v Peter Clive Basil KANE

JUDGMENT

1    HANDLEY JA: I agree with Ipp AJA.

2    IPP AJA: Peter Clive Basil Kane appeals against his conviction on a charge of murder after a trial on 27 October 2000 before Barr J and a jury. In addition the Crown appeals against the sentence imposed of 10 years 6 months imprisonment with a non-parole period of 7 years and 6 months. These reasons relate to both appeals.

3    I turn firstly to the appeal against conviction.

4    On 19 May 1990 Wayne George Tonks (the deceased) was killed in his home unit at Artarmon. The Crown alleged that the deceased was murdered by Kane (who, at the time, was a 16 year old school pupil) and a friend who was referred to at the trial as Andrew.

5    The principal Crown evidence against Kane came from admissions he made in a police interview on 16 May 1997 and to his former wife, Bedelia Dali, and his former mother-in-law, Robyn Unger.

6    The police interview concerned was the second interview which the police had had with Kane on 16 May 1997. There had been an earlier interview that morning. The first ground of appeal concerns the admission into evidence of the record of the first interview.

7    At the trial Kane contended that the evidence of the first interview had been obtained illegally and should not have been admitted. A voir dire was held by Barr J to determine the admissibility of the evidence in question.

8    Two police officers were present at the interview but Barr J considered the evidence of Detective Sergeant Smith to be the more important because it was he, as the senior officer, who had the responsibility of deciding what steps to take during the course of the investigation, including whether and when to interrogate Kane, arrest him and charge him.

9    During April and May 1997 police officers had spoken to Bedelia Dali and her mother. Each of them individually stated that Kane had confessed that he was in some way responsible for killing the deceased. The information from Ms Dali led the police to believe that Andrew was involved as well.

10    Prior to 16 May 1997, the police had established that one or more persons had entered the deceased’s unit at Artarmon, where he lived, assaulted him, taped his legs, arms and mouth and placed a plastic bag over his head. As a result he suffocated. Fingerprints were found on tape securing the body of the deceased that matched Andrew’s fingerprints and a fingerprint found on a glass at the deceased’s residence matched Kane’s fingerprints.

11    Knowing these facts, Smith and another police officer, Detective Perry, called at the residence of Kane and his parents at about 8 am on 16 May 1997. The police spoke to Kane briefly and asked him whether he knew anything about the death of the deceased. He said that he did not. Smith told Kane that he was under arrest and took him to the Surry Hills Police Station where he intended to ask him further questions. Precisely what was said to Kane before he was arrested is relevant to the first ground of the appeal and I shall return to this issue.

12    Shortly after 9 am on 16 May 1997, Smith commenced interviewing Kane at the police station with his father present. The interview continued until 9.51 am, during which time Kane made no admissions. He denied having been to any home unit in Artarmon, he denied knowing the deceased and denied having had anything to do with the death of the deceased. He denied having made any admission or confession to Ms Dali or Mrs Unger.

13    Thereafter Kane spoke privately to his father and requested a further interview. The second interview followed, commencing at 12.05 pm and ending at 1.47 pm. No objection was made to the tender of the video tape and transcript of this second interview.

14    At the voir dire, counsel then appearing for Kane submitted that when Smith arrested Kane he “intended to delay charging him until he had completed questioning him, however long that took”. As Barr J noted, it was submitted on Kane’s behalf that, in those circumstances, “the arrest itself was unlawful because the intention in effecting it incorporated an intent not to take the accused before the magistrate as soon as practicable”: see in this regard Williams v The Queen (1986) 161 CLR 278 at 295 and 300.

15    Smith testified in chief at the voir dire that on 16 May 1997, when he went to Kane’s house, the prospect of charging Kane was within his contemplation but he had not then made up his mind to charge him. In the course of the cross-examination of Smith the following exchange occurred:

“Q. You said that the purpose of I think going around to Mr Kane’s home and arresting him was for the purpose of interviewing him as to his knowledge regarding the death of Wayne Tonks, is that correct?
A. Yes.”

16    In other passages, including in his evidence in chief, Smith agreed that his intention in arresting Kane “was to interview him”. His Honour, in fact, accepted that, when Smith arrested Kane, he intended to interrogate him. But, it is apparent that, when Smith arrived at Kane’s home, he already had enough evidence to charge Kane. Relying partly on this fact, Barr J found that when Smith arrested Kane he “had already made up his mind to charge him with murder”. The fact that Smith also intended to interrogate Kane did not render the arrest unlawful: Williams at 283 to 284 per Gibbs CJ.

17    Barr J made the following further observations:

“It was submitted [that] the arrest itself was unlawful because the intention in effecting it incorporated an intent not to take the accused before the magistrate as soon as practicable.
It is for the accused to demonstrate that that was the state of mind of Detective Sergeant Smith at the time, and I am not satisfied that it was. I very much doubt whether when he arrested the accused shortly after 8 o’clock Detective Sergeant Smith was considering what the position would be when the Local Courts opened at 10 o’clock. He certainly intended to interrogate the accused and he knew that he would be charging him and would have to take him before a magistrate, but I am not satisfied that at the time of the arrest itself he intended to delay charging the accused until after the time when it first became practicable for him to be taken before a magistrate.
I conclude that the accused’s arrests and detention in the first place were lawful”.

18    The next question for Barr J at the voir dire was whether, as counsel for Kane submitted, the arrest and detention later became unlawful because of a delay in bringing Kane before a magistrate. Relevant to this issue was the fact that it only became practicable to bring Kane before a magistrate at about 9.51 am on 16 May 1999.

19    In R v Burns, unreported NSWCCA, 19 August 1988, Street CJ said:

“The requirement [to bring an arrested person before a justice ‘as soon as possible’] is not absolute. It is a requirement tinged, as are most common law principles, with an element of reasonableness and I see nothing unreasonable in the proposition that the requirement is not offended merely by reason of the failure of the police to go and find a Justice somewhere and bring him back to the police station in order to exercise his function”.

20    Barr J, in effect, adopted this approach. He accepted that once it became practicable to take Kane before a magistrate, it became unlawful, thereafter, to detain him other than for that purpose. Barr J considered that the police could have taken Kane to the Local Courts at 9.51 am and concluded that the detention of Kane after that time was unlawful and that the evidence he so obtained was unlawfully obtained.

21 Barr J proceeded to apply s 138 of the Evidence Act 1995 and determined that the evidence obtained in the interview after Kane was unlawfully obtained should be admitted. In exercising his discretion under s 138(1) to admit the evidence, Barr J said that he was satisfied that Smith did not deliberately or recklessly detain Kane after the time when it ceased to be lawful to do so. Moreover, the unlawfully obtained evidence represented a very small part of the interview. Further, his Honour observed:

“It is necessary to know what was said during the first interview in order to gain a proper understanding of what was being spoken about in the second. Accordingly, the evidence is very important and has significant probity value”.

His Honour concluded that the desirability of admitting the evidence outweighed the undesirability of admitting evidence that had been obtained in the way in which the evidence was obtained. There is no challenge to this decision.

22    On appeal, Mr Game SC, senior counsel for Kane, submitted that Kane’s initial arrest and detention were unlawful (and hence the evidence of the first interview was unlawfully obtained) on two bases.

23    Firstly, he submitted that the arrest was unlawful because, when Smith arrested Kane, he told him merely that he was doing so “in view of the information that we have received, regarding the death of Mr Tonks”. He argued that Smith should have told Kane that he was being arrested on a charge of murder and his failure to do so rendered the arrest unlawful.

24    Secondly, Mr Game submitted that the detention of Kane was and continued to be unlawful because at the time of the arrest Smith did not have the intention of taking Kane before a magistrate and charging him as soon as practicable.

25    In arguing the first point, Mr Game accepted that the lawfulness of the arrest was to be determined by the principles expressed in Christie v Leachinsky [1947] AC 573 by Viscount Simon (at 587-588). Relevantly, his Lordship said:

“(1) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words, a citizen is entitled to know on what charge or on suspicion of what crime he is seized.
(2) If the citizen is not so informed but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment.
(3) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained.
(4) The requirement that he should be so informed does not mean a technical or precise language need be used. The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed.
(5) …”

26    Mr Game argued, in effect, that Kane did not, in substance, know the reason why he was arrested.

27    In my view, this submission cannot be accepted. Immediately prior to telling Kane that he was under arrest in view of the information the police had received regarding the death of the deceased, Smith referred to that information in the following terms:

“Mr Kane, as I have already told you, I am Detective Sergeant Smith and this is Detective Perry. We are attached to the Major Crime Squad North at Chatswood. We are investigating the death of Mr Wayne Tonks, a 35 year old high school teacher who was murdered at his home unit at Artarmon on the weekend of the 19th, 20th May 1990. We have received information that you may have some knowledge of the death of Mr Tonks.”

28    Accordingly, Smith made it quite plain to Kane that the deceased had been murdered, that the police had received information that Kane might have some knowledge as to his death (and, implicitly, the murder) and in view of that information Kane was being arrested. That being so, Kane knew, in substance, that he was being arrested on a charge of murder. I would not uphold the arguments advanced on this issue on Kane’s behalf.

29    Mr Game submitted that Barr J had decided only the question whether Smith intended to delay charging Kane until he completed questioning him and he argued that this was not the correct question. He submitted that the correct question was whether, when arresting Kane, Smith had a concurrent intention to take him before a magistrate to be charged as soon as practicable.

30    Mr Game pointed to the fact that Smith had testified that, at the time of the arrest, he intended to question Kane and he did not intend to charge him until he had completed the questioning. Barr J rejected this evidence. As mentioned, his Honour found that, when Smith arrived at Kane’s parents’ home on the morning of 16 May 1999, he intended to charge Kane. Mr Game submitted, however, that it was to be inferred from Smith’s evidence that he did not intend to charge Kane as soon as practicable.

31    I do not accept these submissions. Three points can be made. Firstly, there was no finding that Smith did not intend to charge Kane as soon as practicable (albeit that his Honour was not asked to make such a finding). Secondly, it was not proved that, at the time of the arrest, Smith did not intend to charge Kane as soon as practicable. Such a conclusion inevitably follows from the absence of direct evidence on the issue together with the findings that Smith had decided to charge Kane with murder when he arrested him and that Kane had not proved that, at the time of the arrest, Smith intended to delay charging him. Thirdly, it is implicit in Barr J’s findings that at the time of the arrest Smith intended to charge Kane as soon as practicable.

32    In the circumstances I would not uphold the first ground of appeal.

33    I turn now to the second ground of appeal. This challenges the directions given by Barr J to the jury in regard to common purpose. In this regard it is necessary first to set out briefly the competing versions before the jury.

34    As I have mentioned, the Crown case was based on the second police interview and the evidence of Bedelia Dali and Mrs Unger. According to Ms Dali, Kane told her that when he and Andrew were aged 16 Andrew had told him that he had been raped by a man. Andrew asked Kane to go with him to the man’s home to murder him. The two had gone to the man’s unit, were invited in and were given some drinks. They bashed the man, tied him up and placed a plastic bag over his head. When Kane and Andrew left the unit they went to McDonalds to change their blood stained clothing into some clean clothes which they had taken with them. Kane told her that he and Andrew had together murdered the man.

35    Similar evidence was given by Mrs Unger.

36    In the second police interview Kane told the police that he and Andrew had been given spiked drinks by the deceased and another man at the deceased’s unit in Artarmon. Kane was tied up and was anally raped. He was compelled to perform oral sex on the deceased. Thereafter, he and Andrew discussed getting revenge for what the deceased had done. He was aware that some film or photographs had been taken of him and wanted to find out if the film or photographs were in the deceased’s unit. He also wanted to give the deceased a hiding. For this reason he took a small baseball bat which he owned and some tape to the flat. He and Andrew gained entry to the unit by telling the deceased that they wanted a good time. After demanding the handing over of film he and Andrew commenced to hit the deceased. He said that he had tied the deceased’s hands and feet with the tape but could not remember tying his knees or putting tape over his mouth and eyes. He said that he could not remember placing a bag over the deceased’s head and could not remember Andrew doing that. Eventually he said to Andrew “let’s get out of here” and Andrew left right away. They arrived at Artarmon station together, having walked there.

37    The case against Kane, based on the testimony of Ms Dali and Mrs Unger and on the police interview, was that either he, Kane, had placed the bag on the deceased’s head or Andrew had done so in Kane’s presence. If Kane had placed the bag over the deceased’s head he was the murderer. If Andrew had done that, this was part of the plan, Kane having agreed to help Andrew in killing the deceased.

38    Kane’s second ground of appeal is directed principally against written directions given by Barr J to the jury.

39    These written directions were supplemented by his Honour in considerable detail in the course of his oral directions. Moreover, his Honour said in regard to the written directions:

“I want to give you a particular warning about [the written directions.] [They are] intended for your assistance, but [they are] not intended to be a substitute for the complete directions that I give you orally. There is always a danger that when important directions are summarised in the very short way that these directions on the document I have given you have been that there will be a temptation to stop listening to anything else I say. You must avoid that temptation. The directions I have given you are only skeletal. They do not attempt to cover everything, every important thing that I shall say to you. You should continue to heed every word that I say to you.”

40    In the circumstances, the written directions cannot be looked at alone. They must be seen in context and in particular in the context of the oral directions given by Barr J.

41    The written directions asserted that, before the jury could convict Kane of murder, they needed to be satisfied beyond reasonable doubt that any of the following things happened, namely:

“2.1 Because the accused alone or jointly with Andrew did the act causing death intending to kill the deceased or do him grievous bodily harm; or
2.2 Because Andrew did the act causing death either pursuant to an agreement with the accused to kill the deceased or pursuant to an agreement to attack the deceased where the accused contemplated the death of the deceased as a possible result; or

2.3 Because Andrew did the act causing death intending to kill the deceased or do him grievous bodily harm and the accused, knowing what Andrew was doing and what his intention was, intentionally assisted or encouraged him to do the act causing death”.

42    Mr Game submitted that the second direction, that is, direction 2.2, was defective. The fundamental objection to direction 2.2 was that it did not make it plain that Kane had to contemplate the possibility that Andrew would, with intent to kill, place the bag over the head of the deceased and tape it. It was said that the jury might have thought that it was sufficient that Andrew did the act causing death pursuant to an agreement with Kane to attack the deceased with a baseball bat where Kane contemplated the death of the deceased as a possible result of such an attack.

43    Reference was also made to oral directions that were couched in terms of whether or not the “placing and taping of the bag by Andrew was within the scope of the joint criminal enterprise”. It was said that the learned judge did not expressly define for the jury the meaning of the phrase “within the scope of the joint criminal enterprise”, and the jury may well have understood that that issue was to be resolved by the application of the test articulated in the written directions. It was emphasised that the directions in these terms did not make it plain that Kane had to contemplate the possibility that Andrew would, with intent to kill, place the bag over the head of the deceased and tape it”. It was submitted that at the very least the directions on this point lacked the necessary clarity and the jury might well have found them confusing.

44    Direction 2.2 must, however, be seen in context. The context involves, firstly, the nature of the act the subject of direction 2.2 and, as I have said, the oral directions that supplemented the written document.

45    As regards the nature of the act, there could have been no misunderstanding on the part of the jury that the act that caused death was the placing and taping of the bag over the head of the deceased. As his Honour remarked when commencing the relevant part of his directions “this trial has been conducted from start to finish upon the well founded basis that nothing that happened to the deceased before the taping of the bag over the head was likely to kill him, and pretty clearly what killed him, and the only thing that killed him, was the act of putting the bag over his head and taping it tight so that he suffocated”. This was the “act” to which his Honour was referring in the phrase “the act causing death” in direction 2.2. It follows that the phrase in direction 2.2 “pursuant to an agreement to attack the deceased” must be understood as “pursuant to an agreement to attack the deceased by placing and taping a bag over his head.”

46    This was reinforced by other oral directions given by his Honour. For example, when dealing with the first scenario on which Kane could be found guilty, he said:

“The first way the Crown can prove the accused’s responsibility, criminal responsibility, for the death of the deceased, is if it can prove that he did the act causing death; put the bag over the head”.

He went on to say:

“The Crown does not have to prove that the accused did the act alone. It will be sufficient if the accused and Andrew did it together. The act of putting a bag over a prostrate man’s head and taping it seems capable of being done by one person or two …”

Barr J made it clear that the essential inquiry with which the jury was concerned involved the responsibility for putting the bag over the head of the deceased and taping it.

47    It is also important to note that the defence did not and could not suggest that the person or persons who put the bag over the deceased’s head and taped it did so with any intention other than killing the deceased. This is not a case where the criminal acts in question could have been perpetrated with any intention other than causing death. As his Honour said:

“A person who tapes a plastic bag securely over the head of a man who has been immobilised and has been beaten and cut and has his hands securely fastened behind his back and legs securely fastened together, must be taken to intend to kill him. The contrary has not been suggested here. There is no issue that who killed the deceased meant to kill him, and the second matter is not one about which the trial has been fought”.

48    Other oral directions given by Barr J further clarified what was meant by the phrase “within the scope of the joint criminal enterprise” in relation to the placing and taping of the bag by Andrew.

49    Barr J gave the jury unexceptionable directions as to the concept of joint criminal enterprise based upon the observations of Hunt CJ at CL in Tangye (1997) 92 A Crim R 545 at 556 to 557. He concluded his discussion of this topic by saying:

“A person participates in a joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant to the joint criminal enterprise to commit that crime. The presence of that person at the time when the time is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the another participants in the joint criminal enterprise to commit the crime”.

50    His Honour then gave some examples to show how the principles he had explained might be applied. One of the examples he gave was of three offenders who commit a bank robbery. One drives the get away car, another stands guard and the third enters the bank armed with a sawn off shotgun to steal money. His Honour pointed out that things do not always turn out precisely as planned. He said:

“The law therefore makes each of those involved in the joint criminal enterprise guilty not only for the acts done by each of them in the execution of that agreed joint enterprise, but also for any acts which are incidental to the execution of that joint enterprise, that is, for anything which might possibly happen which is within the contemplation of those involved in the joint criminal enterprise. If any one of them does an act which they all contemplated may possibly be done in the course of committing the agreed crime then all of then are criminally responsible for that act”.

51    Barr J then postulated, in the example which he had given, that if the man guarding the door punched a bystander to prevent him from interfering with their escape after the armed robbery was complete, all three would be guilty of the assault as well as the armed robbery. That is because the three of them obviously originally contemplated the possibility that the man on guard may have to do something like that.

52    His Honour then said:

“On the other hand, suppose the man guarding the door, unknown to the others, had a hand grenade in his pocket and he removed the pin and lobbed inside the bank to prevent those inside from interfering with their escape. That is hardly an act that the others would have contemplated might possibly happen, and therefore they would not be guilty with him for the injuries caused by the resulting explosion. His act would not have been incidental to the execution of the joint criminal enterprise to carry out an armed robbery”.

53    Barr J postulated further that the robber with the sawn off shotgun might have wounded a teller in the course of the robbery. His Honour said that, if the other members of the joint criminal enterprise were aware that the man concerned had the shotgun, and were aware that it was loaded, then:

“you may think that the original plan that he should threaten the teller with injury by the shotgun would almost necessarily include a contemplation or an awareness on their part that such a threat to injure may possibly lead to the infliction of such an injury, for one so easily leads to the other”.

He explained:

“The jury in such a case would be entitled to convict all three members of the joint criminal enterprise to carry out an armed robbery of the more serious crime of armed robbery with wounding even though the wounding was not part of the original plan, and even though only one of them was actually involved in the wounding.
Such a conviction would follow from the jury’s acceptance that they were all aware of the possibility that the shotgun would be fired and injured someone”.
This example was a useful illustration of the principle expressed in Johns v TheQueen (1980) 143 CLR 108 at 118 and 130 to 131.

54    His Honour then reviewed the evidence as to the alleged agreement between Kane and Andrew and the arguments of the parties in this connection. When dealing with the situation contemplated by the direction in 2.2 his Honour made it plain that the jury had to decide whether Kane contemplated that the deceased might be killed “in the manner in which the death was brought about”, namely by the tape and bag. True it is that Barr J did not tell the jury expressly that Kane had to contemplate the possibility that Andrew would place the bag over the head of the deceased and tape it with intent to kill. But he had dealt with that issue previously when telling the jury that there was no issue “that who killed the deceased meant to kill him” and that whoever taped the bag over the deceased’s head “must be taken to intend to kill him”.

55    His Honour went on to deal with how the jury were to consider the question whether Kane contemplated that the death of the deceased might result from the “attack”. He told the jury that this required drawing an inference and said:

“That inference would include some assumption that he knew something about the bag”.

This, quite clearly, again told the jury that the relevant act causing death was the placing and taping of the bag.

56    Barr J reminded the jury that they had to exercise extreme care when drawing inferences and said:

“You should not infer that the accused contemplated that the deceased’s death might result from the attack unless it is the only rational inference in all the circumstances”.

By “attack” in context it is quite plain that his Honour was referring to the attack by the bag and the tape. His Honour then went on to say:

“It is only if Andrew’s act was regarded by the accused as a possible result, the act causing death, that you could make a finding of criminal responsibility of the accused on this basis”.

Again, his Honour emphasised that the jury had to find that Kane contemplated the possibility that Andrew would put the bag over the deceased’s head and tape it.

57    Towards the end of his Honour’s directions he returned to the issue and said:

“Simply to remind you and encapsulate for you the respective cases on this question, I will tell you this. The Crown must prove that the placing and taping of the bag by Andrew was within the scope of the joint criminal enterprise, the agreement between the accused and Andrew.
The Crown case is that the placing and taping of the bag if done by Andrew, was within the scope of the agreement between them.
The defence case is that Andrew placed and taped the bag and that this act was outside the scope of the agreement between them. That is to say it is not incidental to the carrying out of the agreement to bash and tie up the deceased, and it was not contemplated by the accused as a possible act of Andrew. I suppose that case is like the incident in the bank with a man, unknown to anybody, took out the hand grenade, not contemplated”.

58    In my view, in all the circumstances, there could have been no misunderstanding on the part of the jury. With regard to the issue of common purpose, the jury would have been well aware, from the nature of the case and from what his Honour told them, that the Crown was required to prove beyond reasonable doubt that Kane contemplated the possibility that Andrew would, with intent to kill, place the bag over the head of the deceased and tape it. Further, the jury would have well understood the meaning of the phrase “within the scope of the joint criminal enterprise”.

59    Accordingly, I would not uphold the second ground of appeal.

60    The third ground of appeal concerns Barr J’s directions on provocation. His Honour told the jury that if they accepted the evidence of Ms Dali and Mrs Unger and if they thought that Kane was telling the truth when he told them that Andrew alone had been raped it would follow that Kane was not involved in any improper sexual conduct on the part of the deceased. It followed, he told the jury, that if they accepted that the deceased raped Andrew alone and that Andrew recruited Kane to help him kill the deceased, then the deceased’s conduct could not be evidence of provocation because it was not directed towards and did not affect Kane.

61    His Honour said, in this regard:

“In that case, all you would be left with would be the turning on and playing of the video tape on the night when the deceased lost his life”.

62    It was submitted on Kane’s behalf, however, that:

“The correct position is that the rape of Andrew would still have been relevant because, it being in the mind of Kane, would have affected the gravity of the provocation involved in the act by the deceased in the placing of the tape in the video (cf Green v R (1998) 191 CLR 334)”.

63    There is nothing in the police interview which suggests that Kane was provoked by the playing of the video. In his evidence in chief, Kane said that when he and Andrew were at the deceased’s unit on the occasion that he was killed, the deceased played a pornographic video involving sexual activities between men. Kane said that he indicated to Andrew that he wanted to leave and tried to leave. In fact, he did not leave. In cross-examination Kane said that when the deceased put the video on he hit him from behind. Kane accepted that he and Andrew had a pre-arranged plan that they were going to hit the deceased and he described the moment of playing the video as a “poignant time” and said that, given what had happened before. it was a suitable time to start hitting the deceased. He disagreed with the proposition that he was not provoked by the fact that the video was put on. He said that the video “pissed me off”. However, when he was asked whether he lost control of himself, he said “I don’t do that sort of thing”.

64    Although the playing of the video seems to have had only peripheral effect on Kane, Barr J gave the jury appropriate directions in regard to possible provocation caused by the playing of the video. These are not challenged. The sole point raised is that his Honour, it is said, wrongly told the jury that the rape of Andrew was not evidence of provocation of Kane.

65    In my view his Honour was justified in directing the jury as he did. It was not suggested that Kane had any peculiar sensitivity to homosexual conduct. In my view the rape of Andrew could not constitute provocation of Kane and Kane did not assert that he had been so provoked. His case was that he had been provoked by the rape of himself.

66    All his Honour did was to tell the jury that if they did not believe Kane and should they find that only Andrew had been raped then they should not regard the rape of Andrew as constituting provocation of Kane. In my view this direction was entirely appropriate. I would dismiss the third ground.

67    It follows that I would dismiss Kane’s appeal.

68    I turn to the Crown appeal against sentence.

69    The Crown’s submissions must be seen against the fact that the trial before Barr J was a re-trial. The respondent had been convicted of murder on 18 May 1999 and on 2 July 1999 was sentenced by Sully J to penal servitude for 13 years with a minimum term of 10 years and an additional term of 3 years.

70    In sentencing Kane, Sully J took into account a prior period spent by Kane in custody. The effect of this was that the effective overall minimum custodial period resulting from the sentence imposed by Sully J was 10 years and 2 months.

71    Barr J, as I have mentioned, on the other hand, sentenced Kane to a term of imprisonment of 10 years and 6 months to commence on 27 October 2000 and expire on 26 April 2011. A non-parole period of 7 years and 6 months to expire on 26 April 2008 was imposed.

72    In arriving at this sentence Barr took into account a period of custody served by Kane prior to being convicted at the second trial. On this basis the effective period of custody imposed by Barr J was 8 years and 8 months. This is to be contrasted with the period of 10 years and 2 months imposed by Sully J. It is, in effect, a reduction of 18 months.

73    The Crown contends that his Honour erred in this sentence in a number of respects.

74    The most important grounds relied on by the Crown concern two factual findings by Sully J made in the course of sentencing which differed from factual findings on the same issues made by Barr J. Firstly, Sully J found that in the first encounter between Kane and the deceased, the deceased had committed some gross sexual impropriety towards the respondent and the respondent was deeply aggrieved by this. Barr J, on the other hand, did not find that the respondent himself experienced sexual impropriety at the hands of the deceased. Secondly, Sully J found that Kane had intended to inflict grievous bodily harm upon the deceased. Barr J on the other hand found that Kane had intended to kill the deceased.

75    The Crown therefore submitted that the facts found by Barr J constituted a more serious set of circumstances than those found by Sully J. Nevertheless, the sentence imposed by Barr J was less than that imposed by Sully J. This was the Crown’s main complaint.

76    In my view, however, the fact that Sully J had imposed a higher sentence despite having found that the crime was committed in less serious circumstances, is not of paramount significance.

77    It is of the essence of the law of sentencing in this State that each individual judge is entitled and, indeed, obliged to exercise his or her own discretion in imposing an appropriate sentence on the facts found.

78    The dominant principle of sentencing law is that a sentence must be commensurate with the seriousness of the offence. In determining an appropriate sentence, there is ample room for the exercise of individual judgment and the appropriate sentence in each case is left to the discretion of the individual Judge.

79    Individual judges are not bound by sentences imposed by other judges sitting at first instance, albeit that the sentence in question may have been imposed on the same offender for the same offence. Even where that occurs the facts as found may differ in important respects and circumstances may alter. Additionally, a range of sentences would generally be available and judges might legitimately differ in philosophy, approach and result: R v Jurisic (1998) 45 NSWLR 209 per Spigelman CJ.

80    Accordingly, the sentence imposed by Sully J is not a benchmark against which the sentence of Barr J is to be measured. Moreover, it is to be borne in mind that the sentence imposed by Sully J was in fact set aside.

81    The true question, therefore, is simply whether the sentence imposed by Barr J fell within an appropriate sentencing discretion.

82    His Honour took into account a number of mitigating circumstances. I shall mention these.

83    Kane was only 16 years old when he committed the offence. His youth was plainly reductive of the criminality involved.

84    Even on the facts found by Barr J, there was some mitigatory force in the fact that the crime was not motiveless but was committed by an adolescent to support a friend. As Barr J put it Kane did not take part in any mindless attack. He played his part because of his indignation over what he believed the deceased had done to his friend and because his friend had asked him for help. That did not justify what he did but it does mitigate his criminality to some minor extent.

85    At the time of the trial before Barr J, Kane was nearly 27 years old. He had a modest record of offences involving drugs and dishonest behaviour, but that was principally associated with a period of immature and experimental behaviour during his formative years. Nothing had been recorded against him for more than 5 years.

86    Kane had expressed remorse. His parents and family supported him. He appeared to be on the road to rehabilitation. Barr J found that there was every indication that when Kane is released on parole he will be able to pursue a useful role in society and avoid offending again.

87    His Honour referred to the stress experienced by Kane through the mis-trial before Sully J, which was no fault of his. The mis-trial led to the second conviction, Kane’s remand in custody and his return to prison. These were legitimate factors for his Honour to take into account.

88    Barr J concluded:

“These matters justify a reduction in the non-parole period and, together with the need to provide a realistic period of time on parole to foster the offender’s rehabilitation, justify a parole period which is more than one quarter of the term of the sentence”.

89    In my view there can be no criticism of his Honour’s approach. I am of the opinion that the sentence was within his Honour’s discretion. I would dismiss the appeal.

90    GREG JAMES J: I agree with Ipp AJA.

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