R v Makisi

[2004] NSWCCA 333

Reported Decision: 151 A Crim R 245

New South Wales

Court of Criminal Appeal

CITATION:	Regina v MAKISI [2004] NSWCCA 333
HEARING DATE(S):	Wednesday 22 September 2004
JUDGMENT DATE:	22 September 2004
JUDGMENT OF:	Spigelman CJ at 1; Barr J at 2; Hoeben J
DECISION:	Appeal against conviction dismissed; leave granted to appeal against sentences; appeal dismissed.
PARTIES :	Regina v Manuel Arnean MAKISI
FILE NUMBER(S):	CCA 2004/2117
COUNSEL:	Appellant: J Stratton Crown: G I O Rowling
SOLICITORS:	Appellant: S O'Connor Crown: S Kavanagh

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/21/0363
LOWER COURT JUDICIAL OFFICER :	Sorby DCJ

- 15 -

2004/2117 CCAP
(60341/04)

SPIGELMAN CJ
BARR J
HOEBEN J

WEDNESDAY 22 SEPTEMBER 2004

REGINA V Manuel Arnean MAKISI

Judgment

1 SPIGELMAN CJ: I agree with Barr J

2 BARR J: The appellant, Manuel Arnean Makisi, appeals against convictions entered up in the District Court and seeks leave to appeal against the resulting sentences. On 14 October 2003 he stood trial before a jury on charges that may be summarised as follows –

1 that on 31 May 2002 at Burwood, being in company with other persons, he assaulted Xing Zhou Liu with intent to rob him and at the time wounded him;

2 that at the same time and place he robed Rui Wang of a mobile telephone, a wallet and a sum of money in circumstances of aggravation in that corporal violence was used; and

3 that at the same time and place he robbed Qi-Ming Fan of a mobile telephone, a wallet and a sum of money in circumstances of aggravation in that corporal violence was used.

3 The jury found him guilty on all counts and the trial judge, Sorby DCJ, sentenced him on the second and third counts to imprisonment for fixed concurrent terms of four years and on the first count to imprisonment for five years with a non-parole period of three years. The five-year sentence commenced one year after the commencement of the fixed terms and the result was an overall sentence of six years with a non-parole period of four years.

4 Early on 31 May 2002 a group of about seven men, who had been drinking at Burwood Park since the previous evening, chased three other men and caught them outside the Telstra building in Burwood. They assaulted the three men and robbed two of them. They wounded the third. One of the attackers was described as being dark skinned and wearing a jersey with a number five on it. That was the brother of the appellant, John Makisi. The identifying witness telephoned the police, who attended the scene and found the appellant and John Makisi hiding in a laneway behind a paling fence. One of the police officers saw the appellant throw away a mobile telephone. That telephone was later identified as belonging to the complainant Qi-Ming Fan. The police noticed that the appellant smelled of alcohol and formed the view that he was moderately intoxicated. They therefore deferred interviewing him. When he was eventually interviewed, the appellant gave the police an account including an assertion that he was very drunk and did not remember much after leaving the park. Although he remembered being arrested in a laneway, he knew nothing about the assaults or the mobile telephone which was found behind the fence. His evidence at trial changed. He said that he had lied to the police in order to protect his brother and that his only involvement in the attack had been to seize his brother to take him away from the fighting. He denied throwing away the mobile telephone.

5 I will not set out in detail the evidence about the appellant’s drinking for it sufficiently appears that he was intoxicated within the meaning of that term as it is used in part 11A Crimes Act 1900. Relevantly, Part 11A is as follows –

Part 11A Intoxication

428A Definitions
In this Part:
"drug" includes a drug within the meaning of the Drug Misuse and Trafficking Act 1985 and a poison, restricted substance or drug of addiction within the meaning of the Poisons Act 1966 .
"intoxication" means intoxication because of the influence of alcohol, a drug or any other substance.
"offence" includes an attempt to commit the offence.
"offence of specific intent" is defined in section 428B.
"relevant conduct" means an act or omission necessary to constitute the actus reus of an offence.
"self-induced intoxication" means any intoxication except intoxication that:
(a) is involuntary, or
(b) results from fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force, or
(c) results from the administration of a drug for which a prescription is required in accordance with the prescription of a medical practitioner, a person authorised under the Nurses and Midwives Act 1991 to practise as a nurse practitioner or a midwife practitioner, or dentist, or of a drug for which no prescription is required administered for the purpose, and in accordance with the dosage level recommended, in the manufacturer’s instructions.

428B Offences of specific intent to which Part applies
(1) An "offence of specific intent" is an offence of which an intention to cause a specific result is an element.
(2) Without limiting the generality of subsection (1), the offences referred to in the Table to this section are examples of offences of specific intent.
Table
(a) an offence under the following provisions of this Act:

(The table which follows has no relevance for present purposes)

(b) an offence under the following provisions of this Act to the extent that an element of the offence requires a person to intend to cause the specific result necessary for the offence:

(The table which follows includes these items -
s 95 (assault with intent to not in circumstances of aggravation)
s 98 (assault with intent to rob))

(c) any other offence by or under any law (including the common law) prescribed by the regulations.

428C Intoxication in relation to offences of specific intent
(1) Evidence that a person was intoxicated (whether by reason of self-induced intoxication or otherwise) at the time of the relevant conduct may be taken into account in determining whether the person had the intention to cause the specific result necessary for an offence of specific intent.
(2) However, such evidence cannot be taken into account if the person:
(a) had resolved before becoming intoxicated to do the relevant conduct, or
(b) became intoxicated in order to strengthen his or her resolve to do the relevant conduct.

428D Intoxication in relation to other offences
In determining whether a person had the mens rea for an offence other than an offence of specific intent, evidence that a person was intoxicated at the time of the relevant conduct:
(a) if the intoxication was self-induced—cannot be taken into account, or
(b) if the intoxication was not self-induced—may be taken into account.
…

428G Intoxication and the actus reus of an offence
(1) In determining whether a person has committed an offence, evidence of self-induced intoxication cannot be taken into account in determining whether the relevant conduct was voluntary.
(2) However, a person is not criminally responsible for an offence if the relevant conduct resulted from intoxication that was not self-induced.

428H Abolition of common law relating to self-induced intoxication
The common law relating to the effect of intoxication on criminal liability is abolished.

428I Application of Part
This Part applies to any offence (whether under this Act or otherwise) committed after the commencement of this Part.

6 The first two grounds of appeal may be dealt with together. They are as follows –

1 The learned sentencing judge incorrectly directed the jury in relation to intoxication that the jury had to “work out beyond reasonable doubt whether the accused had, in relation to charge number one the capacity to act intentionally; and

1A His Honour erred in only leaving the defence of intoxication in relation to count one in the indictment.

7 Having dealt with other ingredients in the first count, the trial judge dealt with specific intent. His Honour said this –

The next element is that the accused had the intention of robbing or stealing property from the victim Mr Lu. To rob or steal means that there was a taking away of property of some value which belonged to the victim and that the taking was unlawful and the accused intended to permanently deprive the victim of that property. The concept of taking and carrying away needs no explanation. The property must have some value. All that is required is that the property had some value to the victim. What the actual value is is not important. The taking away must be unlawful and what that means is that there must not be any claim of right to that property. Finally the property must be taken with the intention of depriving the owner of it permanently. Now intent and intention are familiar words and in their legal context they have their ordinary meaning. A person’s intention is established by having regard to what he says or does in all the circumstances of the case and by having regard to the conduct of the accused before, after or at the time that the accused did the act. In some cases a person’s acts may provide the most convincing evidence of his intention. Where a specific result is the obvious and inevitable consequence of a person’s act and he deliberately does that act, you may conclude he did that act with the intention of achieving that specific result.

…
Members of the jury there is one other direction I want to give in relation to the first offence and it concerns the first charge and the first charge only and it relates to the amount of alcohol that the accused said he consumed in the park on 30 May 2002 before the events at the Telstra Building courtyard. He said he consumed “a box and a half” of beer. He said he “felt pretty drunk”. I have already directed you as to the general meaning of the word “intent”. One of the matters you have to consider on the question of whether the accused, being in company, did intend to rob Mr Lu, is the effect upon the accused of alcohol he consumed before the events of 31 May 2002, in relation to the first charge. As a mater of law, evidence of self-induced intoxication by drink is relevant in determining whether the accused had formed the requisite intent to commit the offence charges. It is for the Crown to satisfy you beyond reasonable doubt that the accused had the intent to rob Mr Lu but notwithstanding the evidence relating to the ingestion by him of alcohol prior to the alleged events of 31 May 2002. If the Crown has failed to satisfy you that the accused, then the accused must be acquitted of this charge.
In circumstances an intoxicated person may act without forming any intention at all. On the other hand a person may be considerably affected by alcohol yet still be able to act intentionally. The fact that his judgment was affected so that he acts in a different way from the way in which he would act if he were sober does not necessarily mean that he was not acting intentionally. The evidence of the accused drinking comes from the accused himself with some support from his younger brother. You will have to consider both their evidence carefully and work out, beyond reasonable doubt, whether the accused had, in relation to charge number one, the necessary capacity to act intentionally. If the accused lacked the capacity, through the ingestion of alcohol, to act intentionally, then he did not act intentionally.

8 It was submitted for the appellant that the greater part of what his Honour said was correct in its reference to evidence of intoxication as it bore on the appellant’s intent to rob, but that his Honour erred at the conclusion of the passage extracted in directing the jury to work out beyond reasonable doubt whether the accused had in relation to charge number one, the necessary capacity to act intentionally. If the accused lacked the capacity, through the ingestion of alcohol, to act intentionally, then he did not act intentionally.

9 The distinction has long been drawn between the effect of intoxication on the capacity to form the requisite specific intent and the formation of that intent. In Broadhurst v The Queen [1964] AC 441 Lord Devlin said at 461 –

“If an accused is rendered incapable of forming an intent, whatever the other facts in the case may be, he cannot have formed it; and it would not therefore be sensible to take the incapacity into consideration together with the other facts in order to determine whether he had the necessary intent.”

10 In Viro v The Queen (1976 – 1978) 141 CLR 88 Gibbs J said at 110 that a statement that evidence of drunkenness should be taken into consideration with the other facts proved in order to determine whether the accused had the necessary specific intent would be correct. His Honour continued at 111 –

“It would be contrary to fundamental principle to hold that evidence of intoxication not amounting to incapacity is irrelevant to criminal responsibility where the commission of the crime requires a special intent. In the case of such a crime the issue is not whether the accused was incapable of forming the requisite intent, but whether he had in fact formed it. The Crown must prove beyond reasonable doubt that the accused actually formed the special intent necessary to constitute the crime. If no more were proved than that the accused was capable of forming such intent, the case for the prosecution would not have been established.”

11 In R v Coleman (1990) 19 NSWLR 467 Hunt J said at 486 –

The judge in such a case, being required to direct the jury in terms which make it clear that the Crown carries the onus upon this issue of intoxication, will fall easily into the error of stating that the Crown must therefore establish that the accused was capable of forming that state of mind, overlooking the logical corollary that, even if such capacity be established, it does not necessarily follow that it was exercised on this occasion. Stating the issue as one of capacity is both unnecessary and confusing, and in my view the issue which the jury have to decide should never be stated in terms of capacity.”

12 The Crown had to prove that the appellant intended to rob. Evidence of the effect on him of alcohol was relevant to that question. As Hunt J said in R v Coleman, reference to the effect of alcohol on the accused’s capacity to form the requisite intent is unnecessary and confusing. Of course, a conclusion that an accused lacked the capacity to form an intent would mean that he did not form the intent. But if the Crown proved that the accused did not lack the capacity to form the intent that would not be proof that he formed the intent.

13 The evidence of intoxication was important because it had the potential to raise a reasonable doubt whether the appellant had formed the intent to rob. If the jury understood that they were concerned with the potential of the evidence to raise a reasonable doubt not about whether the appellant had formed the intent to rob but about whether he had been rendered incapable of forming that intent they would have been diverted from their task. From a practical standpoint, a jury might think that drunkenness would be less likely to remove the capacity to form intent than to inhibit the formation of the intent. So to leave the question as one about capacity would be to disadvantage the accused because it would be more difficult to raise a reasonable doubt about capacity than about the actual formation of the requisite intent.

14 The question is whether the jury were diverted from their task by the last few words of the charge. The whole of the charge must be considered. In the first portion that I have extracted his Honour used the word ‘intention’ six times. The jury could have been in no doubt that the Crown had to prove that when he attacked Mr Liu the appellant intended to rob him. When his Honour introduced the need to consider evidence of intoxication he referred three times to the subject of intent. He used the words -

…whether the accused, being in company, did intend...

…whether the accused had formed the requisite intent… and

…it is for the Crown to satisfy you beyond reasonable doubt that the accused had the intent to rob…

15 The statement that if the appellant lacked the capacity to act intentionally then he did not act intentionally was logically correct and in accordance with the authorities; see Viro v The Queen. The emphasis as I read the last few words of the charge was on the question whether the appellant acted intentionally.

16 I do not think that the reference to capacity, read in context, diverted the jury from their task. I think that the jury understood that their task was relevantly to decide whether the Crown had proved beyond reasonable doubt that the appellant had formed the intent to rob.

17 His Honour took the view that only the first count charged an offence of specific intent and therefore that s428B prevented the appellant from raising self-induced intoxication, which this was, as relevant to mens rea on the remaining counts. The appellant would wish to argue on appeal that the second and third counts, which were laid under s95, Crimes Act, charged offences of specific intent, and to mount an argument that that his Honour erred in not directing the jury to consider the evidence of intoxication on those charges.

18 I do not think it necessary to enter upon an inquiry whether those counts charged offences of specific intent, because there is no proper basis upon which the evidence of intoxication could have produced any result on the second or the third count different from that on the first. Counsel fairly conceded as much.

19 Accordingly, I think that these grounds of appeal have not been made good.

20 The remaining ground of appeal against conviction complains that the judge erred in not giving directions as to what use the jury could make of evidence of the appellant’s good character. The appellant wished to raise good character in part. Although he had been found guilty in the past of having goods in custody reasonably suspected of having been stolen or otherwise unlawfully obtained and of having used offensive language in a public place, he had never been convicted of any offence of violence. Defence counsel raised the matter at the beginning of the trial. There was a discussion which included this exchange -

His Honour: So you are not putting his character in, you are putting a qualified character is it?
Webb: That’s so. I’m not suggesting honesty but I would be seeking, subject to your Honour’s ruling in advance, of course to lead evidence firstly from the officer in charge as to whether or not he’d been convicted or investigated prior to his matter for any offences relating to violence and subsequently to call some character evidence, if I can, on the issue of his not being a violent person or a person given to violence.

21 In the debate that followed his Honour expressed doubt whether good character could be raised in part. The debate on that day ended with this exchange -

His Honour: I will consider whether I should give any direction about it at all in due course but at the moment it’s not – now the second point is the question of his character. We can deal with that later, is that the situation?

Prosecutor: Yes, I think so. I think --
His Honour: I will need some authority on that, it seems quite novel to me but I mean I’m happy to learn.
Webb: In relation to the more general issue of character I have had the opportunity to reflect on that over the adjournment and I think that issue may in fact become one which is no longer significant.

His Honour: It is an interesting point and I am unable to find anything myself just then, but that’s not to say nothing exists about it, but it is hard to understand how you could put half character in, but I will look at that in due course, it’s not immediately a problem…

22 The crown raised the matter again on the following day and handed up to the judge a report of a case dealing with the partial raising of good character. The debate continued and included these exchanges -

His Honour: Anyway, I’ll look at it and find out what it was. But thank you – I take it that’s – the judgment says you can’t raise a character in part in effect.

Crown Prosecutor: Well no it actually says that you can raise it in part…
…
Crown Prosecutor: No it doesn’t go to that point, it really just goes to that question of whether or not you can raise it in part which clearly you can.

His Honour: Not in the part that’s been relied upon or was going to be relied upon by Mr Webb.

Crown Prosecutor: No.
His Honour: That’s the different part.
Crown Prosecutor: Yes.
His Honour: You see what the accused usually does is raises “I’m a person of good character.” And usually there’s a discussion between Crown and the accused is anything known. The reason that is because if it’s not I think good character must be given its broadest meaning.
Crown Prosecutor: Yes.
His Honour: And to do what Mr Webb had planned to do would be contrary to that it seems to me. And anyway Mr Webb’s no longer going to take that approach.
Crown Prosecutor: Thank you your Honour.
His Honour: But I’ll keep this particular authority. That’s correct is it Mr Webb, I haven’t misrepresented your position?
Webb : No your Honour, there may be some argument at the appropriate time as to what your Honour may be invited to consider as to an appropriate direction on the limited issue of there being no convictions for violence or violent related matters .
His Honour: I’ll think about that but I think that’s that a matter for you in your address. You put to the investigating officer the following question and you got the following answer.
Webb: If that be your Honour’s view.
His Honour: I don’t really think I should go down the question of character from there. Because it’s not to character, it’s to one specific aspect of character you see.
Webb: That’s so.
His Honour: But I’ll hear you at the time when we come down to the question at the end of the trial with directions and perhaps if by then I may have rethought that through or you may have some view of it Mr Crown that you wish to put to me. Is there anything further?
Crown Prosector: No your Honour.

23 The luncheon adjournment was taken and immediately afterwards the debate continued as follows -

Webb: May it please your Honour if I could just advise the court that over the adjournment period I spoke with the Crown in relation to the issue of some evidence being a part of the defence case on a limited character basis and I understand that there’s agreement as between the Crown and the defence in the way that that evidence is to be used, subject of course to your Honour’s own rulings in that regard.
His Honour: Mr Crown I’ve read this authority of – that you handed up.
Crown Prosecutor: Yes.
His Honour: That one of Zurita.
Crown Prosecutor: Yes your Honour.
His Honour: It seems to me to be actually in point and I take it that you – the old common law position on character and it’s now been overridden by section 110 of the Evidence Act.
Crown Prosecutor: Yes your Honour.
His Honour: On that basis it seems to me that particular aspects of character can actually be led and therefore if the defence wants to do that, we’ll have to deal with it.

24 The trial proceeded. During cross-examination of one of the police witnesses counsel for the appellant adduced this evidence -

Q Sir, has the accused ever been charged or convicted of any offence of assault prior to his being charged with these matters?
A No .

25 There was no further evidence on the topic. There was no application or debate about the topic and no reference to it in the summing-up.

26 When good character is raised, either generally or in a particular respect, it is ordinarily appropriate for the trial judge to instruct the jury as to the use they may make of the evidence. The rule is not invariable, however: Melbourne v The Queen (1999) 198 CLR 1.

27 It appears clear that right from the start defence counsel was considering raising the good character of the appellant in a particular respect, namely in the respect that he had no propensity to violence, and was inviting a response from the judge and perhaps an indication of the kind of direction the judge might be prepared to give to the jury about it. Three discrete questions were raised, namely whether the appellant could raise good character in part, whether if he did the Crown could adduce evidence of bad character and if so in what respect, and what direction, if any, ought to be given to the jury. Unfortunately the debate proceeded upon a series of misunderstandings, the principal one of which was not resolved until the end, when his Honour observed that s110 Evidence Act applied and that defence counsel could do what he was intending to do.

28 But there the matter was left. It was two days later that defence counsel adduced the evidence to which I have referred. Shortly before the end of the summing-up, and again at the end of the summing-up his Honour invited counsel to raise any matters they wished over the directions he had given. On both occasions defence counsel said that he did not wish to raise anything. It seems to me that at the end of the debate on the second day defence counsel must have understood that the judge had come to the view that defence counsel could raise good character in a particular respect and that if he did the court would have to deal with it. What his Honour was doing in the last passage I have quoted was impliedly inviting defence counsel to raise the matter at an appropriate time. Defence counsel never did. It is not speculative, I think, to observe that defence counsel might have considered the evidence to be of little value in the overall case. It was not, as evidence of good character generally is, available to support the truthfulness of the accounts given from time to time by the appellant. He was an admitted liar in any event. It is possible, given the limited remaining value of the evidence and having in mind that the question whether to direct the jury was ultimately one for the discretion for the trial judge, that counsel simply decided not to bother asking. I note that counsel who appeared for the appellant at the trial, who has not appeared in the appeal, has sworn two affidavits that have been read in the appeal dealing with the other two ground of appeal against conviction. There is no reference in either of the affidavits to counsel’s failure to ask for any direction about good character.

29 In my opinion this is a matter in which in Rule 4 ought to be applied and the appellant ought to be refused leave to rely on this ground of appeal. I think that the appeal against conviction fails.

30 There is one ground of appeal against sentence, namely that the appellant has a legitimate sense of grievance by a comparison of the sentences imposed upon him with that imposed upon his brother John Makisi.

31 The ground of appeal implies an acceptance that but for any question of disparity the sentences fell within his Honour’s proper range of sentencing discretion. The appellant and his brother John Makisi had similar backgrounds and there was no real distinction to be made between them in that respect. Both had suffered at the hands of a violent father. Both had attempted to work their way through their difficulties and both had the support of their families and the wider community. The appellant was twenty-five years old at the time of the offence and John Makisi twenty years old. I have mentioned the appellant’s minor criminal record. John Makisi had a prior conviction for assault occasioning actual bodily harm and a prior finding of guilt for the offence of resisting police. John Makisi pleaded guilty to one count of assault with intent to rob in company. Two counts of robbery using corporal violence were taken into account. Those three offences corresponded to the offences for which the appellant was convicted. His Honour sentenced John Makisi to imprisonment for four years and fixed a non-parole period of two years six months.

32 In my opinion the appellant can have no legitimate sense of grievance by comparing his sentences with his brother’s sentence. Whereas the appellant required the Crown to prove his guilt, his brother entered an early plea of guilty. That entitled him to a substantial discount, not only because the State was saved time and money and the victims were saved the ordeal of giving evidence, but because it was evidence of contrition. Although counsel made a claim from the bar table that the appellant was remorseful, his Honour entertained serious doubts about that. In fact the appellant told the psychologist whose report was tendered on his behalf that he did not intend to rob.

33 Secondly, the appellant, notwithstanding the difficulties of his childhood and youth, had reached mature manhood, whereas his brother was only twenty years old. The sentencing of a twenty year old is a very different procedure from the sentencing of a twenty-five year old, even when the two are brothers. John Makisi had a history of offences of violence, of course, but that did not disentitle him to the consideration which his youth attracted. I do not think that the challenge to the sentence has been made good.

34 I propose the following orders -

1 The appeal against conviction is dismissed.
2 Leave is granted to appeal against the sentences but the appeal is dismissed.

35 HOEBEN J: I agree with Barr J.

36 SPIGELMAN CJ: The orders are as proposed by Barr J.

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Last Modified: 10/18/2004