Regina v Jason Shiagetz

[2003] NSWCCA 115

CITATION:	Regina v Jason Shiagetz [2003] NSWCCA 115
HEARING DATE(S):	8 April 2003
JUDGMENT DATE:	2 May 2003
JUDGMENT OF:	Sully J at 1; Levine J at 69; Buddin J at 70
DECISION:	Appeal against conviction dismissed; leave granted to appeal against sentence; appeal against sentence dismissed
LEGISLATION CITED:	Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Criminal Appeal Act
CASES CITED:	M v The Queen (1994) 181 CLR 487
PARTIES :	Regina Jason Shiagetz
FILE NUMBER(S):	CCA 60193/02
COUNSEL:	G.I.O Rowling - Crown In person - Applicant
SOLICITORS:	S. E. O'Connor - Crown In person - Applicant

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/11/1121
LOWER COURT JUDICIAL OFFICER :	Shillington DCJ

60193/02

SULLY J
LEVINE J
BUDDIN J

Friday 2 May 2003

REGINA v JASON SHIAGETZ

Judgment

1 SULLY J:

Introduction

In March 2002 the appellant, Mr. Shiagetz, stood trial in the District Court in Sydney and before his Honour Judge Shillington and a jury.

2 The appellant was so tried upon an indictment containing two counts. Count 1 charged an offence of robbery in company contrary to section 112(2) of the Crimes Act 1900 (NSW). Such an offence attracts upon conviction a statutory maximum penalty of imprisonment for 20 years. Count 2, which was laid in the alternative to Count 1, charged an offence of robbery contrary to section 112(1) of the Crimes Act. Such an offence attracts upon conviction a statutory maximum penalty of imprisonment for 14 years.

3 The jury found the appellant guilty as charged in Count 1. The appellant was thereupon convicted and sentenced to imprisonment for 4 years commencing on 1 July 2001 and expiring on 30 June 2005; with a non-parole period of 2 years to expire on 30 June 2003.

4 The appellant appeals against his conviction, and applies for leave to appeal against his sentence.

The Crown Case at Trial

5 The alleged victim was one John Mousinho. Mr. Mousinho gave evidence that on the evening of 20 April 2001 he attended a football match at the Sydney Cricket Ground. He arrived at the ground at about 7.00 pm and joined up with a party made up of his wife, and three friends: David Bishop, Susie Mason and Claire McCready. He had ingested no intoxicating liquor before arriving at the ground; and he drank some three schooners of full-strength beer while at the ground.

6 After the game the group went to the Fox and Lion Bar at Fox Studios. They were there from about 11.00 pm until midnight. During that time Mr. Mousinho drank two middies of full-strength beer.

7 After leaving the bar at about midnight the group set off for the Palace Hotel in Flinders Street, Surry Hills. The group walked past the Captain Cook Hotel, the Palace Hotel being somewhat further away on the same side of the street. Mr. Mousinho and Mr. Bishop were walking together, Mr. Bishop being the closer to the gutter. The other members of the group were about 10 metres ahead. Mr. Mousinho said that he had “a vague impression” of a group of four men approaching him and Mr. Bishop. The four men were in front of Mr. Mousinho and Mr. Bishop. Mr. Mousinho was carrying a back-pack over his left shoulder; and his wallet was in the right hand front pocket of his trousers.

8 According to Mr. Mousinho, the appellant was one of the four approaching men. As the two groups met, the appellant grabbed Mr. Mousinho on his left shoulder and said: “give me your fucking wallet”. Mr. Mousinho responded by throwing a punch at the appellant. He describes as follows what then ensued:

“I was throwing punches at him trying to fend him off me. I felt pressure on my right hand side. My wallet was gone, I felt my back-pack being ripped off me, I spun around, saw him running down towards the Captain Cook Hotel and then I saw the police get him.”

9 Mr. Mousinho could not say exactly who it was who had initially seized his back-pack and his wallet. He was aware that while he himself was engaged with the appellant, he saw “one of the other people in the group grab my friend David”.

10 Mr. Mousinho saw both his back-pack and his wallet on the ground near the appellant while the police were speaking to the appellant. When Mr. Mousinho looked into the back-pack he noticed that his wife’s wallet which he had been carrying in the back-pack was missing.

11 Mr. Mousinho described his assailant as having been of “stocky” appearance, roughly 175 cm in height, with a moustache and a goatee beard; and as having been wearing a T-shirt, a pair of shorts, and a peaked cap.

12 Counsel representing the appellant at trial cross-examined Mr. Mousinho extensively. The cross-examination put to Mr. Mousinho that what had really happened on the night was that he and Mr. Bishop walked through a group of eight to ten people; that the two men were drunk and speaking “quite” loudly; that somebody in the group told the two men “to shut up”; that an altercation thereupon broke out; that in the course of that altercation some unidentified person swung Mr. Mousinho around so that Mr. Mousinho found himself quite fortuitously facing the appellant; that Mr. Mousinho began to throw punches at the appellant who backed away, put his hands up defensively, and told Mr. Mousinho to “settle down, calm down”.

13 Mr. Mousinho categorically denied the entirety of what was thus put to him. He commented: “……………it’s a fine story but it didn’t happen like that”.

14 Mr. Bishop, who had been walking with Mr. Mousinho at the time of the attack upon the latter, gave evidence that corroborated generally Mr. Mousinho’s account; although he did not purport to have heard the verbal demand for Mr. Mousinho’s wallet. Mr. Bishop described Mr. Mousinho’s assailant as having been “stocky”, about the same height as Mr. Mousinho, and wearing a peaked cap and a green T-shirt.

15 Mr. Bishop was himself assaulted by an unidentified assailant and fell to the adjacent roadway. He said this:

“When I came back from the road I saw the police had somebody there, and I said – I thought to myself that’s good they’ve got that guy that was …………….. having a punch-up with John.”

16 Mrs. Mousinho gave evidence of having seen a group of four men come around a corner into Flinders Street as she and her companions were making their way, ahead of Mr. Mousinho and Mr. Bishop, to the Palace Hotel. Mrs. Mousinho said that she could remember that one of the men was wearing shorts, a fact which stuck in her mind because it had been raining and was cold, and she thought it odd that someone would dress in shorts in such weather. Mrs. Mousinho was cross-examined about the absence of any such information from the contemporaneous statement given by her to the police. Mrs Mousinho said that she thought she had told the police about those particular observations; but she accepted, albeit expressing surprise, that the statement was silent on those matters. She did not witness the actual attacks upon her husband and Mr. Bishop.

17 Three police officers, - Constables Hickey, Simundza and Debosz, - were involved in the handling of the incident previously herein described. Constable Hickey could not be located, being absent on annual leave. The other two police officers gave evidence in the Crown case.

18 Constable Simundza gave evidence that he saw a fight between two men while he was patrolling in a police vehicle driven by Constable Debosz. Constable Hickey was a back-seat passenger in that vehicle. The fight took place at about 12.20 am on 21 April 2001 in Flinders Street, Surry Hills. Constable Simundza saw, as well, a man wearing a suit and a red and white scarf fall to the roadway in Flinders Street. This was, plainly on the other relevant evidence at trial, Mr. Bishop.

19 The police pulled into the kerb. The appellant was then walking along Flinders Street in the general direction of the parked police vehicle. He was about 5 metres away from the vehicle. He had a green back-pack over his left shoulder. He was dressed in rugby-type shorts, a T-shirt, joggers, and a baseball cap. He had “like a goatee, and I think he was actually unshaven on the sides I believe”. He had a cut on one of his hands, “something along those lines”. The appellant’s custody record showed that in fact he was suffering from a broken knuckle on his right hand and that there was a bandage or dressing of some sort on the injured knuckle.

20 Constable Simundza’s evidence included the following:

“Q. Did you see that the accused had a green backpack over his left shoulder:
A. Yes I did
Q. Did you see that the accused looked at the police car and placed the backpack on the ground?
A. That’s right.
Q. Did you then see the accused place his right hand down the front of his pants?
A. Yes I did.
Q. Did you then see the accused remove a wallet from the front of his pants and throw it into the garden ledge outside 134 Flinders Street?
A. Yes I did.
Q. Did you then say something to Constables Debosz and Hickey, and did you step out of the police car?
A. That’s right.
Q. Did you say “Come here mate”?
A. That’s right, yes I did.
Q. Did the accused say “What”?
A. Yes.
Q. Did you say “Why did you drop the bag” and did he say “I just found it around the corner and I just put it down”?
A. Yes, that’s right.
Q. Did a male person, who you now know as John Mousinho come over to you and say “This guy just robbed us, he took my bag and wallet”?
A. That’s right.
Q. And did the accused say “I didn’t rob anyone”?
A. Yes he did.
Q. Did you go over to the garden ledge outside 134 Flinders Street and did you see a black wallet?
A. Yes I did.
Q. Was that the same wallet you saw the accused remove from his pants?
A. Yes I believe it to be the same wallet.
Q. Did you open it and see a New South Wales driver’s licence in the name of John Mousinho?
A. Yes I did.
Q. Did Mr. Mousinho take possession of that wallet?
A. I – yeah I looked through it, and had a look at the ID and then I gave it back to him.” [T 84, 85]

And later, in cross-examination:

“Q. You say that the accused said to you “I just found it around the corner and I just put it down”, in reply to a question by you, “Why did you drop the bag”?
A. That’s right.
Q. Tell me, in what you saw leading up to that, the most suspicious thing you saw of what that person did was put his hand down his pants and throw a wallet away?
A. I also found him putting the bag on the ground suspicious as well.
Q. Walking directly towards the police car, put a bag on the ground, that was suspicious?
A. And kept walking, yes.
Q. And kept walking, you’re sure of that, that he kept walking after he put the bag on the ground?
A. Well like he was heading – he was moving south and then while he was walking the actions were – taking the backpack off, placing it on the ground, hand in the pants and throw the wallet out. That was all a continuous movement.” [T102]

21 The cross-examination of Constable Simundza demonstrated a number of inconsistencies between aspects of his evidence, and his contemporaneous notes in his note book. According to the latter, the appellant had fought, not Mr. Mousinho, but Mr. Bishop. According to his trial evidence: “I couldn’t identify the person on the night and I can’t say if it is the accused”.

22 Asked by the cross-examiner: “…… ……are you accurate on that point about what the accused was doing, walking down?”, Constable Simundza replied: “Yes I remember that quite clearly”.

23 There followed these questions and answers:

“Q. You said in your notebook that the person of interest. I’ll read it again you “saw the person of interest and victim fighting on the corner of Flinders Street and South Dowling. Stopped the vehicle about five metres south of the person of interest. Person of interest walked towards me. Person of interest had a green backpack over his shoulder, looked at police car, dropped backpack onto the ground”. Just leaving aside the issue as to whether the accused was involved in that fight with the man in the suit or not, you’re saying you’re not sure about the accuracy of what’s in your notebook in effect. Are you accurate on that point about what the accused was doing, walking down?
A. Yes I remember that quite clearly.
Q. Why should we have any more reliance upon that than your reliance about who was fighting with the man in the suit?
A. Can’t answer that.” [T 96]

24 Later in Constable Simundza’s cross-examination, the following evidence was given:

“Q. You said in your statement of 3 July that this action of the accused, putting the backpack on the ground and then throwing the wallet, putting his hands down the pants and throwing the wallet, occurred as the accused was walking south towards the police vehicle --
A. Yes.
Q. --- and that’s what you said in your statement. In your notebook you said it occurred as the POI walked towards me. And to be fair, you later say in your statement that you got out of the police car. So the implication in your notebook was that he walked towards you while you were in the police car?
A. Yes, that’s right.
Q. And that as he’s walking towards you, you being south of him, that these actions of bag being put down and wallet being thrown away took place?
A. Yes, while he was walking towards me, yes.
Q. Yes, but you’ve said something else today, haven’t you, you understand that. You’ve said that he was immediately to your left. Not walking towards you, parallel. Parallel was the term you used?
A. Yes, that’s right.
Q. It’s different isn’t it?
A. It is different, yes.
Q. See I suggest that these differences are occurring because you never saw the accused put his hand into the front of his pants and throw away any wallet?
A. No, that’s not true, I saw him.
Q. What you say today about the accused being parallel to you and immediately to your left, is that the truth?
A. Yes that is true.
Q. Is what’s in your statement, that is, walking towards the police car, when that occurred, the police car having stopped, that’s not the truth is it?
A. He was walking towards me, and by the time those actions occurred he was a lot closer than five metres.” [T100, 101]

25 And a little later, he gave the evidence quoted at paragraph 20 hereto from T 102.

26 In addition to the foregoing matters, it emerged that Constable Simundza had spoken of Mr. Bishop, albeit by clothing description and not by name, as the victim of the appellant, when what the Constable had really meant to say was “witness” rather than “victim”.

27 Constable Debosz was the final witness in the Crown case. His examination was fairly brief, and gave some corroboration to Constable Simundza’s evidence at trial. The significant feature of Constable Debosz’s evidence in chief was his evidence that he had seen two fights. One had been the fight involving Mr. Bishop. The other had involved the appellant and Mr. Mousinho.

28 Constable Debosz was cross-examined extensively but was not moved from his evidence-in-chief about the two fights. The significant matters elicited by his cross-examination were: first, that he did not see the appellant put down the backpack, reach into his shorts and extract the wallet, and then throw the wallet away; secondly, that he, acting upon what Mr. Mousinho said, had originally charged the appellant with robbery simpliciter, rather than robbery in company; and thirdly, that he could remember “cuts”, but no bandaging,. to the appellant’s hand.

The Defence Case at Trial

29 The appellant gave evidence. He called no other witnesses.

30 The appellant could not remember how he had been dressed on the particular night. He “religiously” wears a baseball cap. Because of the weather he did not think that he would have been wearing shorts. His right hand had been bandaged, due to a chronic hand injury which he described in these words:

“The bone – scaphoid bone or whatever it’s called, it’s bent, broken, comes up at the top, no knuckle there. It’s forever giving me dramas and that. ………………… [T]he hand cannot hit anything, once it’s – it hits something it – I mean it’s stuffed virtually.”

31 According to the appellant, he was seated in the vicinity of the Captain Cook Hotel waiting “to meet somebody”. He was asked why he went there for that purpose; and he replied that he could explain “providing I’m not going to be prosecuted for it”. He added: “I had business activities to attend to, that’s a better way of putting it”. These rather elliptical answers had been preceded, in the absence of the jury, by a discussion as to whether the appellant might not need, in aid of his giving truthful evidence, some measure of protection in the form of a certificate under section 128 of the Evidence Act 1995 (NSW). In the event, this procedure was not employed.

32 The appellant went on to explain that a group of four men was standing nearby. He knew one of them by Christian name only.

33 Presently, Mr. Mousinho and Mr. Bishop came upon the scene. They were: “just carrying on, just bantering each other, just carrying on like idiots plainly, just drunken ………………. All I know is that they were drunk and they were acting drunk and they were carrying on drunk”.

34 The appellant’s evidence went on to describe the outbreak of fighting in which he himself took no offensive action of any kind. He moved away defensively, moving backwards, and tripped over a backpack then standing on the footpath. He regained his balance, picked up the bag, and moved towards the police, because: “I didn’t done nothing. I haven’t got nothing to hide”.

35 In a series of answers to his counsel, the appellant denied simply and comprehensively any wrongdoing as alleged against him by Mr. Mousinho. Asked by his counsel whether he could in fact have taken hold of Mr. Mousinho, having regard to his hand injury, the appellant replied: “Can’t got no power in it. That’s about it, but I guess if I really wanted to I could’ve grabbed hold of someone if I wanted to make a fist, grab someone I could of but I didn’t”.

36 The cross-examination of the appellant was comparatively brief. During its course, part of the custody management record of the appellant was tendered and read to the jury. The relevant entry was:

“The prisoner has a bandaged right finger with a broken knuckle, injuries that occurred days prior to this incident which required nil attention.”

37 Shortly thereafter, the following interchange occurred:

“Q. After they passed you – you saw them walk past you?
A. Yep.
Q. Why did you go down to where they’d walked to?
A. To?
Q. Why did you walk down to them?
A. To the group?
Q. Yes.
A. Just bored made [sic], I had about 15 minutes to go
Q. You didn’t go down to follow Mr. Mousinho and Mr. Bishop did you?
A. No.” [T 147]

38 And a little later, this interchange:

Q. The police then arrive?
A. Yep.
Q. And this man who’s assaulted you says, look this bloke’s just robbed me, he’s stolen my bag?
A. Yep.
Q. That’s right?
A. That’s right, that’s correct yep.
Q. And you said, no I didn’t or words to that effect?
A. I didn’t say anything. I’ve learnt from past experiences and what’s happened – what was happening then was a prime example you know. You’ve got a drunken lout standing there carrying on like a pork chop and you’ve got police running around with their heads cut off, don’t know shit from clay and my best option is to sit there and be quiet.
Q. Didn’t you say – have you finished?
A. Yep.
Q. Didn’t you say to the police officers there at the scene when Mr. Mousinho’s saying, well this bloke’s robbed me of my bag, didn’t you say no I didn’t?
A. And that’s all I said wasn’t it.
Q. All right, yes. That’s all I was asking. So --

A. Sorry.
Q. So you were – your version is that this man’s attacked you and that he’s not only done that but he’s accused you of robbing him of his bag?
A. The bloke is drunk, the bloke is scared you know the bloke’s caught in a situation you know, he’s – when he’s turned around to me he’s had his eyes shut. He’s had his eyes shut just swinging punches.
Q. You could have told the police --
A. I didn’t tell the police anything.” [T 149]

The Summing Up

39 The summing up, too, was comparatively brief. At its conclusion the following interchange occurred between the learned trial Judge and the appellant’s then counsel:

“HIS HONOUR: What is the factual matter?
COUNSEL: The factual matter, your Honour, said that the accused picked up the bag and started to walk back south along Flinders Street. His evidence was that he walked towards the police.
HIS HONOUR: It was, in fact, south, wasn’t it?
COUNSEL: Your Honour, his evidence was that he walked towards the police.
HIS HONOUR: Well I withdraw what I said, members of the jury. He walked towards the police. Now, it may be that the police were in a position in which he did not walk south but he walked north. Yes, anything else?
COUNSEL: Not of fact, there’s one of law. The nature of it, your Honour, your Honour has given a summary of the evidence. Your Honour has in doing that summary apart from one aspect your Honour just has adverted to evidence given in chief by the various witnesses and including that of the accused.
HIS HONOUR: Yes.
COUNSEL: Your Honour has mentioned that I put certain questions in cross-examination in terms of my submissions to the jury to witnesses but, your Honour, in your summing up did not canvass in any way apart from one question that evidence given in cross-examination.
HIS HONOUR: Well I thought I had summarised your, generally your submissions. What particular aspect of the matter are you referring to?
COUNSEL: Your Honour has not adverted to really any of the cross-examination that I conducted of Mr. Bishop, Mr. Mousinho. Your Honour has adverted only in passing to cross-examination of Simundza in respect of the notebook entry. Your Honour has not adverted to any cross-examination of that I made of Debosz and differences there.
HIS HONOUR: Yes, well, I don’t propose to go over those matters, Mr. ..[counsel].
COUNSEL: I thank your Honour.
HIS HONOUR: Obviously, you have heard what …[counsel]… said in that regard and you should take that into account.” [SU 15,16]

The Appeal against Conviction

40 In such a case this Court is bound by the law as established by the High Court of Australia in M v The Queen (1994) 181 CLR 487. The relevant principles are well known to lawyers but not, I imagine, to appellants in person; and so, in deference to Mr. Shiagetz, I set them out:

“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the Court of Criminal Appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.” [per Mason CJ, Deane, Dawson and Toohey JJ at 181 CLR 494, 495]

41 In my opinion, the foregoing principles, when applied to the entirety of the evidence given at the appellant’s trial, do not justify the setting aside by this Court of the jury’s verdict. It seems to me that the particular trial was one which turned essentially upon the view taken by the jury of the comparative credit of, in particular, Mr. Mousinho and Mr. Bishop on the one hand, and the appellant on the other hand. I see no basis upon which this Court could properly say that the jury could not reasonably have preferred to the relevant standard the version of events given by Mr. Mousinho and Mr. Bishop. That version, if accepted, was adequate, in my opinion, to carry the verdict of guilty.

42 It is, of course, open to this Court to intervene if the Court is satisfied “that on any other ground whatsoever there has been a miscarriage of justice” : section 6(1) of the Criminal Appeal Act.

43 Mr. Shiagetz has an obvious sense of grievance about a very late amendment which Shillington DCJ allowed to the indictment. Counts 1 and 2 as originally presented, charged the robbery of:

“…………… certain property, namely one green backpack containing clothing, a mobile phone, cash and credit cards, the property of John and Kerrie Mousinho.”

44 His Honour allowed an amendment of each count so as to add the words “and a wallet” after the word “cards”.

45 At page 4 of the summing up his Honour says that he indicated to the jury “this morning” , i.e. on 20 March 2002, the nature of the amendment, i.e. “That refers to the wallet which Mr. Mousinho says was in his pocket”. I can find in the appeal book no transcript recording the actual application for the amendment and the course of any argument. I cannot see, however, that there can have been in any event a miscarriage by reason of the allowing of the amendment. The trial was conducted from its inception upon the basis that Mr. Mousinho’s version of events was that he had been robbed of both the backpack and its contents, and his own wallet then located in the front pocket of his trousers.

46 Mr. Shiagetz has an equally powerful sense of grievance about the evidence of Mrs. Mousinho.

47 Mrs. Mousinho gave evidence in chief to the effect that her own purse had been in the backpack at the time when the backpack was allegedly stolen; and that the purse was missing from the backpack after its recovery.

48 There was some brief cross-examination of Mrs. Mousinho upon this topic; but it was not put to her that she was either untruthful or unreliable on the point.

49 In cross-examination of the appellant, the learned Crown Prosecutor asked the following questions, to which the appellant gave the following answers:

“Q. You have heard evidence from Mrs. Mousinho that there was a purse in that backpack which when she later inspected that bag – the bag was inspected it was missing, did you ever see such a purse?
A. No I never.
Q. Did you ever open the bag?
A. No I never.
Q. Did you see anyone open the bag?
A. No I never.
Q. Did you ever see anyone with that bag?
A. No.” [T 141, 142]

50 I must say that, proceeding only upon a reading of the trial transcript, I am not at all clear about the supposed relevance of the evidence concerning Mrs. Mousinho’s purse. It was never the Crown case that the appellant had taken the purse out of the backpack, and had then contrived in some way or other to conceal its whereabouts. The Crown case consistently linked the appellant with the direct carrying away of one wallet only, i.e. Mr. Mousinho’s wallet.

51 The amendment, in the terms allowed, is, as I respectfully think, unfortunately inexact. It might more helpfully have read:

“…………of certain property, namely a wallet, the property of John Mousinho, and one green backpack ………………….. .”

52 Alternatively, the amendment ought to have read:

“……….. credit cards, and a wallet, the property of Kerrie Mousinho.”

53 The former wording would have been unambiguously appropriate to the case as actually fought at trial. The latter wording would have been appropriate to a case alleging that the appellant had removed from the backpack, and either concealed, or got rid of, Mrs. Mousinho’s wallet.

54 I have given anxious consideration to this particular aspect of the present appeal, but I have come to the conclusion that the trial Judge’s reference in his Honour’s summing up, sufficiently clarified with the jury the identity of the wallet to which the amended indictment was intended to refer.

55 There remains to be considered the absence of Constable Hickey.

56 There is no evidence of what Constable Hickey could have been expected to say had he been called at the trial. At one point during the trial consideration was actually given to putting into evidence Constable Hickey’s statement; but the appellant’s then counsel objected, and nothing came of that proposal.

57 There was no application for an adjournment, or for any other relief against demonstrated prejudice flowing from the absence of Constable Hickey.

58 In those circumstances, I do not see any basis upon which this Court could now hold that the absence of Constable Hickey occasioned any, let alone any substantial, miscarriage of justice.

59 I would dismiss the appeal against conviction.

The Application for Leave to Appeal against Sentence

60 The remarks on sentence are very brief, but they are, with respect, clear.

61 His Honour took account of the appellant’s then age of 29 years. His Honour noted, correctly, that the appellant stood for sentence with a lengthy record containing, among other offences, “some minor offences of violence” but “no serious offences of violence”. His Honour noted the appellant’s concern for the welfare of a young child of whom the appellant had said in evidence that he was not the biological father, but was the emotional father. His Honour noted the appellant’s past history of drug abuse, and found “special circumstances” in the statutory sense, deriving from a perceived need to provide a longer than normal period of supervision in the community after service of any non-parole period. His Honour noted of course the absence of any mitigating contrition.

62 His Honour did not say a great deal about the objective gravity of the offence of robbery in company. His Honour noted, correctly, that the offence was “clearly a serious breach of the peace”, and that both Mr. Mousinho and Mr. Bishop “were clearly shaken by the experience, which was evident from the way they gave their evidence on trial”.

63 The appellant’s basic proposition is that the head sentence of 4 years is manifestly excessive. The appellant does not dispute that a non-parole period of 2 years was within the range of a sound exercise of sentencing discretion. In a letter faxed on 10 March last to the Registry, the appellant asks for “12 months off my parole date. This will give me a instant release date”.

64 As earlier herein noted, Parliament has set a maximum penalty of 20 years’ imprisonment for the offence of robbery in company. It could not be contended rationally that the appellant’s offence could possibly attract a head sentence of anything like the maximum; but the existence of that maximum indicates the serious nature of any offence of robbery in company.

65 I am wholly unpersuaded that the sentence imposed by Shillington DCJ is manifestly excessive. The offence was a bare-faced robbery of a citizen walking on a public street. Even were it to be accepted that Mr. Mousinho was behaving like a tiresome and boorish inebriate, - and the balance of the evidence is strongly to the contrary, - that would not have made him some kind of outlaw who could be attacked and robbed with impunity.

66 In the letter, earlier mentioned, which the appellant faxed to the Registry in March last, the appellant speaks of “certain Action which have happen in jail have put me in harms way. You may contact the ombudsman , Mr. Oliver Omoarse”. There is nothing before the Court to explain what this reference is actually intended by the appellant to convey to the Court.

67 In the light of the whole of the foregoing facts and circumstances, I would grant leave to appeal against sentence; but dismiss the appeal.

Orders

68 In my opinion, the Court should order:

[1] that the appeal against conviction be dismissed;

[2] that leave be granted to appeal against sentence;

[3] that the appeal against sentence be dismissed

69 LEVINE J: I agree with Sully J.

70 BUDDIN J: I agree with Sully J.

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Last Modified: 05/07/2003