Sheen v R

[2014] NSWCCA 42

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Sheen v R [2014] NSWCCA 42

Hearing dates:

18 February 2014

Decision date:

04 April 2014

Before:

Macfarlan JA at [1];
Garling J at [22];
RS Hulme AJ at [32]

Decision:

(1) The time for appeal in relation to Mr Sheen's conviction on the s 166 Certificate common assault charge is extended.

(2) The appeal made pursuant to that grant of leave is allowed and that conviction quashed.

(3) The application for leave to appeal against sentence is allowed but the appeal is dismissed.

Catchwords:

CRIMINAL LAW - conviction appeal - appellant inadvertently convicted of both offence of common assault and identical offence on a back up charge under Criminal Procedure Act 1986 (NSW), ss 165 to 169 - conviction on latter quashed

CRIMINAL LAW - sentence appeal - assessment of objective seriousness of offence - whether sentencing judge erred in characterising applicant's role in joint criminal enterprise - whether open to sentencing judge to conclude applicant was the instigator of the joint criminal enterprise - appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW), ss 61, 86
Criminal Procedure Act 1986 (NSW), ss 166, 167

Cases Cited:

Lowe v The Queen [1984] HCA 46; 154 CLR 606
R v JW [2010] NSWCCA 49; 77 NSWLR 7
R v Wright [2009] NSWCCA 3
Mercael v R [2010] NSWCCA 36
Michael v R [2014] NSWCCA 2
Mulato v R [2006] NSWCCA 282

Category:

Principal judgment

Parties:

Rikki Sheen (Applicant)
Regina (Respondent)

Representation:

Counsel:
T Gartelmann (Applicant)
S Dowling SC (Respondent)
Solicitors:
Matouk Joyner Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2010/19909

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2012-01-20 00:00:00

Before:

Freeman ADCJ

File Number(s):

2010/19909

Judgment

1. MACFARLAN JA: By an indictment dated 9 May 2011 the applicant was charged with the attempted kidnapping of Mr Glen Mara (s 86(2) of the Crimes Act 1900 (NSW)) and the specially aggravated kidnapping of Ms Shari Huggett (s 86(3)) of the Crimes Act). When the matter came before the District Court, the Crown provided the court with a certificate pursuant to s 166(1)(b) of the Criminal Procedure Act 1986 (NSW) stating that, in relation to the first count, the applicant had been charged with "the back up offence" of common assault of Mr Mara (s 61 Crimes Act). This assault was part of the incident that gave rise to the attempted kidnapping charge.

1. Following plea negotiations, the applicant pleaded guilty on an amended indictment to the offences of common assault of Mr Mara and specially aggravated kidnapping of Ms Huggett. The common assault charge thus replaced the attempted kidnapping charge.

1. On 20 January 2012 Freeman ADCJ sentenced the applicant in relation to the common assault and specially aggravated kidnapping counts charged in the amended indictment. As well, his Honour sentenced the applicant for the offence of common assault contained in the back up charge. The sentence of imprisonment for a fixed term of three months (commencing 22 January 2010 and expiring 21 April 2010) that his Honour imposed was the same as that for the common assault charge in the amended indictment. In relation to the offence of specially aggravated kidnapping, his Honour imposed a term of imprisonment for seven years and two months commencing on 22 April 2010, with a non-parole period of five years and two months. The overall sentence was therefore imprisonment for seven years and five months.

CONVICTION APPEAL

1. Mr Sheen appeals against his conviction on the back up charge. As the Crown accepts, his conviction on that charge was a mistake as the charge was intended as a back up to the charge of attempted kidnapping in the original indictment. When, by amendment of the indictment, that charge was replaced by the charge of common assault, the back up charge became otiose, because it duplicated it, and should have been dismissed.

1. This conclusion is consistent with s 167(1) of the Criminal Procedure Act which provides for the charge of the back up offence to be dismissed if the accused (whether after a plea of guilty or trial) is found guilty of the primary offence. In this case, the charge of the primary offence was replaced by a charge identical to the back up offence. It is clear that Mr Sheen should not have been convicted of both this offence and the identical back up offence.

SENTENCE APPEAL

1. The applicant also seeks leave to appeal against his sentence. The single ground upon which he relies is that the sentencing judge erred "in failing properly to assess the role of the applicant in the offences". I turn then to address this ground.

The factual circumstances

1. The following description of the factual circumstances is taken verbatim from the applicant's amended submissions. The Crown accepted that the summary, which is of the contents of an Agreed Statement of Facts, is accurate.

(1) Glen Mara (the victim of the common assault offence) owed the applicant $200. Mara had been uncontactable for several weeks as his phone was broken. On 13 January 2010, when Mara's phone was fixed, the applicant called him. The applicant said he wanted to be paid that day or he would 'get' Mara. They met later that day but the debt was not paid.

(2) On 14 January 2010, Mara spoke to the applicant on the phone. [The applicant] told [Mara] to hurry up and meet him at a service station in Loftus. At about 11.25pm, Mara's girlfriend Shari Huggett (the victim of the offence of specially aggravated detain for advantage) drove him to Loftus. Mara asked her to park behind a fire station and walked through a park to the service station.

(3) Mara felt uneasy when he saw the applicant standing near a Commodore with some men inside [these being Carroll, Wilken and Whiteman]. The applicant approached Mara and said, "Come in the car". Mara replied, "No, let's go for a walk". The applicant said, "Just get in the fuckin' car". Carroll yelled out from the car, "Get in the fuckin' car". The applicant swung a punch at Mara but missed (the offence of common assault).

(4) Wilken jumped out of the car and chased Mara, who ran down the road and hid in a driveway. Wilken was carrying something (in evidence he said it was a beer bottle). Wilken called Mara to come out. Mara thought he was going to be shot and sent a text message to Huggett warning her to go home.

(5) Huggett drove around the block and saw the Commodore. Whiteman drove the Commodore behind Huggett with the car's headlights on high beam. Huggett attempted to drive into the service station but Whiteman stopped the car diagonally across the road blocking traffic. [Carroll, Wilken and the applicant] jumped out of the car and ran towards Huggett's car.

(6) Huggett described a "larger guy" (Carroll), who appeared to be in charge. She saw another male on the passenger side of her car, pointing towards her (the applicant), and a third male (Wilken). The three offenders approached the car and one of them opened the driver's door. Huggett's phone fell on the road. An offender grabbed it.

(7) Carroll reached across Huggett's face and grabbed her hair. He pulled her hair so that her face was close to his and yelled, "Where's Glen?" Huggett said she did not know. Carroll accused her of lying and repeatedly hit her in the face. He said, "You're gonna take me to him now". Carroll pulled Huggett down out of view when [a] witness saw what was happening. The applicant and Wilken returned to the Commodore.

(8) Carroll climbed into the passenger's seat of Huggett's car and continued to question her about Mara's whereabouts. Huggett was extremely scared and suggested she show him where Mara had been staying at his brother's house in Loftus. Huggett was forced to drive with Carroll in the passenger seat. Wilken, Whiteman and the applicant followed in the Commodore.

(9) Huggett stopped the car and pointed out Mara's brother's house. Carroll became angry when she used the indicator. Carroll told her to turn off the headlights and take her foot off the brake. He demanded she give him the keys and he got out of the car, causing the cabin light to turn on. Carroll returned and asked Huggett if she was an "idiot" and told her to pull the door shut.

(10) The Commodore parked behind Huggett. The three offenders returned from the direction of the house. Carroll climbed back into the passenger seat of Huggett's car. Wilken and the applicant climbed into the rear. Wilken sat behind Huggett and the applicant behind Carroll. Whiteman was in the Commodore.

(11) One of the offenders found one of Huggett's dresses in the rear and pulled a piece of it around her neck jamming her head up and forcing her back in her seat. Wilken tried to choke Huggett using the fabric. She hooked her fingers over the material and pulled it outwards so she could breathe.

(12) Carroll said, "You are going to find Glen and help us get him otherwise this is what's gonna happen to you". Huggett said she had only known Mara a couple of weeks. Wilken said she was saying too much. Carroll said "We are going to kill you and bury you under concrete in a farm down in Goulburn" and, "Shut up and listen, if you don't shut up and listen I'm going to disfigure your face, I'll cut you".

(13) Wilken continued to pull the fabric around Huggett's throat, choking her for a minute or two. Carroll told the applicant to get out and drive Huggett's car. The applicant got into the driver's seat. Huggett was pulled between the front seats and into the rear by the material around her throat. Wilken said, "Get your head down". He pulled Huggett's jacket over her head and released the fabric around her neck. He held her head down with the jacket over it so she could not see. The offenders drove around the Loftus area then parked near some shops.

(14) Carroll said, "You're going to get out of this fine if you organise to meet Glen". Huggett agreed to help. They met up with the Commodore and Huggett was given her phone. Carroll told Huggett to tell Mara they had caught and scared her but were now gone and she needed him. She called Mara but he did not answer. Carroll dictated a message to Huggett. They waited for Mara to reply.

(15) Carroll and the applicant got out of the car. Someone said, "Make sure you wipe the dash down". Wilken remained in the car with Huggett still beneath the jacket. He said, "You'll get out of this okay if you help us. I'm the nicest one out of the group". Huggett started to cry and he told her it would be okay. Carroll and the applicant returned. Carroll said, "You're fucked, you're fucked", and Wilken fell silent. Carroll said, "Have you got hold of him yet?" Wilken said, "No she's just sent him a message". Carroll said, "Well call him again now".

(16) Huggett called Mara again, Mara had found that Huggett had left the fire station and was walking to find a pay phone when he received the call. Huggett told him she would collect him and Mara said he was at a swimming pool. Huggett told the offenders where Mara would be. Carroll told her what to do when they arrived. Huggett agreed to cooperate. She said Mara was expecting her and they let her drive.

(17) One of the offenders saw police patrolling the area and all went quiet. Huggett waited a while then lifted the jacket. She saw the offenders walking away. Wilken turned and pointed at her and told her to go straight to the pool. Huggett drove off and stopped when she saw a police car. The police officers were speaking with Whiteman in the Commodore at the time, but they let Whiteman go.

(18) Huggett approached police, appearing hysterical and terrified. She was sweating and seemed to have been crying. She was shaking and could not stand still. She told police, "They are going to kill me. They are after me". She said the offenders had seen her driver's licence and knew where she lived.

(19) Huggett sustained a swollen and bruised upper lip with a scratch above it and a split and tender lower lip. She had a scratch above her breast, bruising and soreness to her back and left arm, bruising beneath her chin and some small bruises to her right arm. Her neck was bruised and red. Her neck and jaw were sore.

The sentencing judgment

1. By his judgment of 20 January 2012, Freeman ADCJ sentenced three of the individuals, namely Carroll, Wilken and the applicant, who were involved in the events which I have described above. They each pleaded guilty to charges of common assault and specially aggravated kidnapping in terms corresponding to those contained in the Amended Indictment relating to the applicant. Having found that Ms Huggett had been given cause by the offenders to fear for her life, his Honour concluded:

"In this case I do not find, to the requisite standard, that there was much planning. It seems to me more likely that the presence of the victim, Shari Huggett, could not have been foreseen and the way in which she was dealt with strikes me as improvised rather than organised" (pp 10 - 11).

1. His Honour then said the following concerning the roles of the three offenders:

"It seems to me that the roles played by each of the offenders does not provide much material to differentiate between them. Sheen must have been the instigator, because he was the one attempting to collect money from Mara. Carroll appears to have taken the lead in terms of directing their activities and being the first to assault Huggett. Wilken was the one who strangled her and kept her pressed down with her head covered and none is entitled to be regarded as significantly less culpable than his fellows" (p 11).

The applicant's submissions

1. The applicant submitted that the fact that he was attempting to recover money from Mara did not demonstrate that he "instigated" the offence against Ms Huggett, as the sentencing judge held. He submitted that this finding was not open on the evidence.

1. He further submitted that the offence concerning Ms Huggett was "of a markedly different nature and gravity" to that concerning Mr Mara and was predominantly carried out by the applicant's co-offenders. He said that his physical participation was limited to driving the victim's vehicle at Carroll's direction.

1. He contended that the sentencing judge erred in treating the three offenders as equally culpable and that his Honour should have found that he was significantly less culpable than the others, resulting in the imposition of a substantially lower sentence. He submitted that as a result of the identity of the sentences imposed he had a justifiable sense of grievance (Lowe v The Queen [1984] HCA 46; 154 CLR 606 at 623).

Resolution of the application for leave to appeal

1. In sentencing participants in a joint criminal enterprise it is undoubtedly necessary to determine the level of culpability for which each is to be sentenced (R v JW [2010] NSWCCA 49; 77 NSWLR 7 at [161] - [162]). Whilst such participants are each liable for the acts committed in the carrying out of the enterprise, their individual roles, or other circumstances, may indicate that their sentences should differ. The participant in a joint criminal enterprise who actually performed the criminal act is not necessarily the most culpable of the participants (R v Wright [2009] NSWCCA 3 at [29]; R v JW at [162]).

1. The determination of a participant's role is part of the process of the court determining the objective seriousness of the offence committed by the accused, as distinct from those offences committed by his or her co-offenders. Accordingly, the following statement of principle from Mulato v R [2006] NSWCCA 282 is applicable to the applicant's attempt to have this Court review the sentencing judge's characterisation of his role in the criminal enterprise:

"46 The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance."

See also at [37], Mercael v R [2010] NSWCCA 36 at [85] and Michael v R [2014] NSWCCA 2 at [160].

1. In the present case, the sentencing judge recognised that the roles of the applicant, Carroll and Wilken in the enterprise were different but concluded that nevertheless their culpability was the same. Thus, his Honour treated the applicant's role as "the instigator" as bringing the level of his criminality to that of Carroll, who appeared to direct activities, and of Wilken, who engaged directly in physical violence in relation to Ms Huggett.

1. In my view it was open to the sentencing judge to conclude that the applicant was the instigator of the criminal enterprise. It was he who was owed $200 by Mara and pressed forcefully for repayment. When that did not occur, the applicant pressed Mara to meet him and, importantly, the applicant arrived for the meeting, not alone, but with Carroll, Wilken and Whiteman in the car and clearly galvanised to assist the applicant, with aggression or threats of aggression, to obtain his money. The applicant demanded that Mara get in the car, resorting to violence when he did not. The punch that the applicant threw (which missed) constituted the offence of common assault of which he was convicted. The applicant clearly had a significant role in inciting at least Carroll and Wilken to aggression and then violence, Carroll repeating the applicant's demand to Mara to "get in the fuckin' car". By having his co-offenders present to assist him to recover his money and by charging the atmosphere with aggression and violence, the applicant instigated the confrontation with Mr Mara.

1. The three offenders did not redirect themselves to another objective as events unfolded. On the contrary, the recovery of the applicant's money by the use of aggression and violence remained the objective of the offenders throughout, as evidenced by their continued efforts to have Ms Huggett lead them to Mr Mara. The conduct in relation to Ms Huggett did not assume a life of its own. That conduct was engaged in simply as a means to the end of recovering the applicant's money. The applicant was thus fairly to be regarded as the instigator of that conduct, as well as the confrontation with Mr Mara.

1. As the Crown pointed out, the applicant's ground of appeal was concerned solely with the sentencing judge's characterisation of his role in the criminal enterprise and did not, at least in terms, rely upon the parity principle by asserting that the imposition of the same sentences on the applicant and his co-offenders gave rise to a justifiable sense of grievance (Lowe v The Queen at 623). Nevertheless, as I have noted, the applicant's written submissions did make such an assertion.

1. It is sufficient to say in response that the rejection of the challenge to his Honour's characterisation of the applicant's role is inconsistent with the applicant having any justifiable sense of grievance in relation to the relative sentences of himself and his co-offenders.

ORDERS

1. An extension of time is required for the conviction appeal. It is not opposed and should be granted.

1. Accordingly, the orders I propose are:

(1) The time for appeal in relation to Mr Sheen's conviction on the s 166 Certificate common assault charge is extended.

(2)   The appeal made pursuant to that grant of leave is allowed and that conviction quashed.

(3)   The application for leave to appeal against sentence is allowed but the appeal is dismissed.

1. GARLING J: I agree with the orders proposed by Macfarlan JA and with his reasons.

1. I desire to add some additional remarks with respect to the sentence imposed on the applicant following his plea of guilty to the offence against s 86(3) of the Crimes Act 1900, of specially aggravated kidnapping.

1. The offence carries a maximum penalty of 25 years. The applicant was sentenced to imprisonment for 7 years and 2 months, of which 5 years and 2 months was the non-parole period.

1. As the facts agreed upon disclose, the applicant, together with three other men, embarked upon the task of collecting a very small debt of $200 owed to the applicant by Mr Mara. There is no doubt that the applicant was prepared to use violence, or at least the threat of it, to obtain the money.

1. Mr Mara escaped from the applicant and his fellow debt collectors. Whilst trying to avoid detection Mr Mara sought help from his girlfriend of two weeks, Ms Huggett, to collect him and drive him away. Whilst she was trying to help Mr Mara, the applicant and two of his fellow assailants forcefully entered her car, and the offence was committed.

1. Ms Huggett was physically assaulted by at least one of the men, threatened and made to drive her car as directed by of one or other of the applicant and his fellow assailants as they searched for Mr Mara. In the course of what must have been a most frightening and thoroughly unpleasant experience, Ms Huggett was threatened with being killed, and with being facially disfigured.

1. She was only saved from the offenders by the attendance, in the vicinity, of a police patrol car. When she spoke to the police officers, she appeared to them to be terrified and was hysterical. She had obvious physical injuries.

1. The plea of guilty by the applicant was a late one, entitling him to only a modest discount which the sentencing Judge allowed.

1. In light of the very serous nature of the criminal conduct involved in this offence, I am quite unable to see that any criticism can be properly made of the sentence imposed by the Court below. The applicant set in train all of the events which occurred that evening, and he bears the responsibility for what occurred.

1. There is no error on the part of the sentencing Judge, and in my view, in the proper exercise of the discretion residing in him, had a longer sentence been imposed, that would have been entirely justified.

1. RS HULME AJ: I agree with the orders proposed by Macfarlan JA and with his Honour's reasons. I agree also with the additional remarks of Garling J.

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Decision last updated: 04 April 2014