R v Polizzi
[2005] VSCA 48
•28 February 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 118 of 2004
| THE QUEEN |
| v. |
| FERDINANDO POLIZZI |
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JUDGES: | VINCENT and NETTLE, JJ.A. and CUMMINS, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 28 February 2005 | |
DATE OF JUDGMENT: | 28 February 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 48 | |
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Criminal law – Conviction – Armed robbery – Whether verdict unsafe and unsatisfactory – Application dismissed.
Criminal law – Sentence – Manifest Excess – Prior criminal history for dishonesty – Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr K.G. Gilligan | Mr S.Carisbrooke, Acting Solicitor for Public Prosecutions |
| The Applicant | In person |
VINCENT, J.A.:
The applicant was presented before the County Court sitting at Melbourne on one count of armed robbery. After a trial occupying a little over a week, he was found guilty by the jury of the commission of that offence. Relevant to the present application is his subsequent admission of the commission of a substantial number of offences of dishonesty arising from court appearances between October 1980 and November 2001. After hearing a plea in mitigation of penalty, in the course of which the judge was requested to take into account a subsequent appearance before the court for another dishonesty offence, the learned sentencing judge, on 17 May 2004, imposed a sentence of 30 months' imprisonment, in respect of which a non-parole period of 15 months was fixed.
The applicant lodged a notice of appeal against his conviction on the ground that it was unsafe and unsatisfactory in the circumstances, with the indication that further grounds may be supplied prior to hearing. An application for leave to appeal against sentence was also lodged, relying on the single assertion that the sentence imposed was manifestly excessive in the circumstances.
The Background
There is no need to set out in great detail the factual background against which the matter has arisen for consideration by this Court. That is conveyed in the summary of evidence with which we have been provided. Briefly described, it appears that on, 7 October 2002, a young man named Robert Sterpin was in the St Kilda area in the early hours of the morning, in the company of his girlfriend, Bridget Chandler, who was working as a prostitute. It seems that Ms Chandler was a heroin addict and was engaged in that activity in order to secure money to purchase the drugs that she required. An argument developed between Chandler and Sterpin, in the course of which, according to the applicant, she called out for assistance. The applicant then approached the couple and observed Sterpin assaulting her. In due course he became aware of the character of the dispute. The victim indicated, it seems, that he wanted to cash a cheque, that he had obtained in the sum of approximately $3,500, in order to secure heroin for Ms Chandler. After some discussion, the applicant and Sterpin then made a number of endeavours to secure a quick cashing of the cheque. Eventually this was effected on the afternoon of 9 October 2002. According to the victim, on the following morning, the funds from the cheque were placed in an envelope and into the victim's pocket. The pair then travelled by tram to St Kilda, where they arrived at approximately noon. As they were walking through Talbot Reserve, according to Sterpin, the applicant produced a knife similar to a flick knife and demanded that the money be handed over. Sterpin did as he was requested. There was further evidence before the Court to the effect that later that day the applicant was observed at the Pakenham Inn Tavern, gambling heavily on gaming machines at the premises. There was also some further evidence from the then de facto wife of the applicant that he gave her the sum of $500.
In a subsequent interview with the police, the applicant accepted the basic elements of the victim's version of events, save that he said that, after the cheque was cashed and the money secured, he was given $40 and then the victim and he went their separate ways. He denied that he was in possession of a knife or that he had engaged in the conduct attributed to him by the victim. He accepted that he had been at the Pakenham establishment and that he had engaged in some gambling on poker machines, but he denied that it was of the order claimed by those who gave evidence in the trial. The applicant did not himself give evidence but, through his counsel, challenged the reliability of the evidence given by Sterpin and also the witnesses at the Pakenham Inn Tavern. It was, in essence, put before the jury that Sterpin was simply lying in his allegation that money had been taken from him by the applicant, and it was submitted that the police investigation was very poorly conducted so that the deficiencies in that evidence were not properly exposed. Of particular significance, it was said, was the absence from the trial of evidence that could possibly be provided by video cameras. This would cast doubt, the argument proceeded, upon the reliability of the version given by Sterpin and also that given by the two relevant witnesses who were present at the Pakenham gaming establishment.
As Mr Polizzi appeared unrepresented before this Court, at the commencement of the hearing I enquired of Mr Gilligan, who appears on behalf of the Crown, as to whether there were any issues that might be seen to arise from the trial or the manner in which it was conducted. Counsel drew the attention of the Court to matters which had been raised by him in any event in the written submissions with which we have been provided. The only subject of any possible concern about the conduct of the proceeding, he submitted, was the production in the trial of a photo-board on which a photograph of the applicant appeared. He acknowledged that this was not a case in which the identify of the applicant was ever seriously in issue. The applicant had accepted in his interview with the police that he had been in the company of Sterpin at the relevant times and, as I have said, argued that Sterpin simply did not tell the truth about what had occurred. With respect to the activities at the Pakenham Inn Hotel, again the applicant accepted that he was present on the occasion concerned and challenged rather the evidence as to the observations of the witnesses at the time. Against that background it was apparent, Mr Gilligan conceded, that the photo-board possessed no evidentiary value in the proceeding. The only question which then arose was whether, that being the case, it could have been the source of some prejudice being attracted to the applicant. The Court then requested that the board be produced in order to ascertain whether it possessed some feature that could possibly be perceived as impacting upon the fairness of the applicant's trial.
The mere production of the board would not of itself carry any adverse inference, and, having examined the board, I am of the view that there is nothing further that can be seen to arise from its production. In that situation, and in view of the specific instruction by the judge that, as identification was not in issue, the jury were not to draw any inference from its existence, I do not consider that the intervention of this Court would be justified. Nevertheless, it was proper for counsel for the Crown to deal with this matter as he has done.
The Grounds of Appeal
Proceeding then to the particular complaints which have been raised by Mr Polizzi this morning, he has advanced a number of propositions. First, he argued that in a case in which the evidence of the victim was crucial to any conviction being recorded against him, and where there was support, according to the prosecution, for that evidence from observations of the applicant at the Pakenham establishment, the police investigation should have at least extended to an examination of the security cameras which would have been present in that area. The failure to produce recordings from the cameras, or indeed even to ask the question whether such recordings may have been available, should be perceived, by this Court, as casting doubt upon the evidence of both Mr Sterpin and the two witnesses, Ms Kavanagh and Mr Mitchell from the Pakenham Inn Tavern, that the verdict should be regarded as unsafe and unsatisfactory. This issue was raised in the course of the trial quite squarely by counsel appearing on behalf of the applicant, and the possibility that evidence perhaps available from the cameras would have assisted the accused can be taken to have been well understood by the jury in arriving at their decision. I do not consider that there is any substance in this complaint. As I indicated to Mr Polizzi in the course of discussion this morning, this Court does not itself explore the possibility in the way that he has asserted, but where the issue was properly before the jury as it was here, then the jury is in a far better position to make an assessment as to the reliability of the witnesses' evidence.
Next, he claimed that perusal of the transcript of the trial would disclose that there were discrepancies between the evidence of Ms Kavanagh and Mr Mitchell as to the denominations of the money with which he was feeding the poker machines. There are some differences between their respective versions, but what is clear enough is that the central features of their evidence are consistent and that each claims to have seen him gambling with substantial amounts. I do not consider that there is any substance in this complaint.
Next, Mr Polizzi submitted that the Court should accept that Sterpin fabricated his version of events, perhaps by reason of the involvement of heroin and possibly as a consequence of the intrusion or perceived intrusion of the applicant into his personal affairs. The case of the defence in the trial centred upon the question of the reliability of Sterpin's evidence. The jury was clearly entitled to accept his version and to reject the challenges made to it.
Mr Polizzi argued that there were two other features which also could be seen to have rendered the verdict unsafe and unsatisfactory. The first of these was the absence of Ms Chandler, whose whereabouts have been unknown for quite some considerable time, and who accordingly was not called as a witness. The other matter he relied upon was the violence in which Sterpin engaged against Ms Chandler. In regard to this aspect, the applicant asserted that it exposed Sterpin himself as a person of violence whose evidence could accordingly be regarded as being of less value. There was one further feature to which I have omitted to make reference, and that was an asserted discrepancy between the evidence of Sterpin as to his reason for wanting a quick clearance of his cheque. At one stage he indicated that he wanted money in order to purchase heroin for Ms Chandler, and at another that he wanted to live in Queensland. As I indicated to Mr Polizzi in the course of the hearing this morning, I see no significant discrepancy, as it is quite possible that Sterpin wanted to achieve both objectives through a quick clearance.
Having embarked upon the exercise required in accordance with the principles laid down by the High Court in M. v. The Queen[1], that is, having reviewed the evidence, in particular in the light of the challenges made to it by the applicant, I have found myself unable to conclude that the verdict in this case was unsafe or unsatisfactory, or that for any other reason, including some defect in the judge's charge, the trial has miscarried. Accordingly I would refuse the application for leave to appeal against conviction.
[1](1994) 181 C.L.R. 487
With regard to the application for leave to appeal against sentence, little need
be said. The applicant has a substantial history of involvement with the criminal law extending over many years, albeit with no history of violent behaviour. On the occasion in question he befriended a young person, who was obviously in a difficult and stressful situation, for the purpose of ultimately securing the proceeds of the cheque that he knew the victim had in his possession. The production of a knife and the making of a demand in the circumstances of this case clearly called for the imposition of a term of imprisonment. I am unable to detect any error in the approach of the learned sentencing judge. There is nothing in her sentencing remarks nor in the sentence imposed which can be said to demonstrate or manifest error, and accordingly I would also refuse the application for leave to appeal against sentence.
NETTLE, J.A.:
I agree with the learned presiding judge, for the reasons that he gives, that the application for leave to appeal against conviction and the application for leave to appeal against sentence ought be refused.
CUMMINS, A.J.A.:
I likewise agree.
VINCENT, J.A.:
The orders of the Court are that the application for leave to appeal against conviction and the application for leave to appeal against sentence are dismissed.
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