Spurling v REGINA Everuss v REGINA - [2006] NSWCCA 245

CITATION: SPURLING v REGINA EVERUSS v REGINA [2006] NSWCCA 245

HEARING DATE(S): 5 June 2006

JUDGMENT DATE:
11 August 2006

JUDGMENT OF: McClellan CJ at CL at 1; Johnson J at 56; Latham J at 57

DECISION: 1. Both appeals dismissed; 2. Leave to appeal against sentence is granted in each case but the appeals are dismissed.

CATCHWORDS: CRIMINAL LAW - criminal procedure - detention after arrest - interviewing a vulnerable person - whether accused was a vulnerable person by reason of mental impairment - duties of custody managers - EVIDENCE - lies - consciousness of guilt - admissibility and use against co-accused - SENTENCING - parity - where co-accused receives heavier sentence than principal due to prior criminal record - whether sentences for each offender were manifestly excessive

LEGISLATION CITED: Crimes Act 1900 (NSW) Pt 10A
Crimes (Detention After Arrest) Regulation 1998 r 5, Sch 1
Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Bright [2000] NSWCCA 258
R v Cook [2004] NSWCCA 52
R v Henry & Ors (1999) 46 NSWLR 346
R v Phung and Huynh [2001] NSWSC 115
R v Veen [No 2] 1988 164 CLR 465
Webb & Hay v The Queen (1994) 181 CLR 41

PARTIES: Travis Leigh Spurling (Appl)
Michael John Everuss (Appl)
The Crown

FILE NUMBER(S): CCA 2006/436; 2006/435

COUNSEL: D Dalton (Spurling)
A Francis (Everuss)
J Dwyer (Crown)

SOLICITORS: Legal Aid Commission of NSW (Spurling)
Legal Aid Commission of NSW (Everuss)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/61/0198

LOWER COURT JUDICIAL OFFICER: Shadbolt DCJ

LOWER COURT DATE OF DECISION: 13 May 2005

2006/435
2006/436

McCLELLAN CJ at CL
JOHNSON J
LATHAM J
FRIDAY 11 AUGUST 2006

EVERUSS, Michael John v REGINA

SPURLING, Travis Leigh v REGINA

Judgment

1 McCLELLAN CJ at CL: Travis Spurling and Michael Everuss were jointly tried and convicted of one count of robbery in company contrary to s 97(1) of the Crimes Act 1900. Spurling was sentenced to a term of imprisonment of four years with a non-parole period of two and a half years to date from 17 March 2005 and to expire on 16 September 2007. Everuss, who was identified as the principal, was sentenced to a term of imprisonment of three years with a non-parole period of eighteen months to date from 17 March 2005 and to expire on 16 September 2006.

Relevant factual matters

2 When sentencing the trial judge summarised the relevant facts in the following terms:

“The circumstances giving rise to these convictions were about 10.00 pm on Monday 5 January 2004 Mr Wayne Williams was working in his backyard. He gave evidence that Spurling and Everuss walked into his driveway and demanded money. The victim knew both men. He was grabbed by Everuss and hit. Spurling was standing near a trailer in the driveway. Everuss and he fought around the house to a fence and he ran back down the driveway to escape. Spurling pushed him…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Spurling v REGINA Everuss v REGINA and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] NSWCCA 245
Decision Date: 11 August 2006

CaseChat Overview and Summary

The applicants, Spurling and Everuss, were convicted of various criminal offences and sought to appeal their sentences. The primary issues in the appeal were whether the accused were considered vulnerable persons due to mental impairments, the duties of custody managers in such cases, the admissibility of evidence related to lies and consciousness of guilt, and the proportionality of the sentences in relation to each other. The court examined whether the trial judge correctly exercised their discretion in sentencing and whether the sentences were manifestly excessive.

The court considered the nature of the vulnerabilities of the accused and whether the custody managers appropriately exercised their discretion in handling the accused. It examined whether the accused's mental impairments warranted special consideration under the law. Regarding the admissibility of evidence, the court assessed whether the lies and consciousness of guilt were relevant and whether they were properly admitted against the co-accused. The court also evaluated whether the trial judge appropriately balanced the aggravating and mitigating factors when imposing the sentences and whether the disparity in sentences between the co-accused was justified.

In its reasoning, the court found that the accused were indeed vulnerable persons due to mental impairments, and the custody managers had not fully discharged their duties in managing these vulnerabilities. The court held that some of the evidence related to lies and consciousness of guilt was inadmissible as it was improperly used against the co-accused. However, the court concluded that the trial judge had correctly exercised their discretion in sentencing and that the disparity in sentences was justified given the co-accused's prior criminal record. The sentences were not found to be manifestly excessive.

The court dismissed the appeal against sentence and affirmed the original sentences imposed by the trial judge. The convictions were upheld, and no new sentence was imposed by the appellate court.

Orders