Starr v The State of Western Australia
[2011] WASCA 170
•4 AUGUST 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: STARR -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 170
CORAM: McLURE P
BUSS JA
MAZZA J
HEARD: 20 MAY 2011
DELIVERED : 4 AUGUST 2011
FILE NO/S: CACR 198 of 2010
CACR 199 of 2010
BETWEEN: MICHAEL McKAY STARR
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :O'NEAL DCJ
File No :IND KAL 122 of 2009
Catchwords:
Criminal law - Appeal against conviction - A photograph of the victim shown to the jury and the prosecutor's opening address to the jury did not occasion a miscarriage of justice - Trial judge did not err in dismissing application by defence counsel to discharge jury - Trial judge did not fail adequately to direct the jury in relation to the evidence of a cooffender called by the State - Application to adduce new evidence in the appeal dismissed - Extension of time to appeal refused
Criminal law - Sentencing - Appellant sentenced to 6 years' imprisonment for kidnapping - Sentence not manifestly excessive - Total effective sentence of 6 years' imprisonment for kidnapping and related offences - Totality principle not infringed - Extension of time to appeal refused
Legislation:
Criminal Code (WA), s 332(2)(d), s 317(1)(b), s 304(2)(b)
Result:
Application for leave to adduce additional evidence dismissed
Application for an extension of time to appeal against conviction dismissed
Application for an extension of time to appeal against sentence dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: No appearance
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Ahmad v The Queen [2003] WASCA 234
DPJB v The State of Western Australia [2010] WASCA 12
House v The King [1936] HCA 40; (1936) 55 CLR 499
Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
Maric v The Queen (1978) 52 ALJR 631
Narrier v The State of Western Australia [2008] WASCA 191; (2008) 38 WAR 161
Payne v The Queen [2002] WASCA 186; (2002) 131 A Crim R 432
Peters v The Queen [2000] WASCA 28
R v Birks (1990) 19 NSWLR 677
R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
R v Zammit [1999] NSWCCA 65; (1999) 107 A Crim R 489
Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Tubb v The State of Western Australia [2007] WASCA 106
Wheeler v The State of Western Australia [2008] WASCA 111
Wimbridge v The State of Western Australia [2009] WASCA 196
McLURE P: I agree with Buss JA.
BUSS JA: On 11 May 2010, the appellant was convicted, after a trial in the District Court before O'Neal DCJ and a jury, on three counts in an indictment.
In summary, these counts comprised kidnapping (count 1), unlawful assault occasioning bodily harm (count 2) and unlawfully doing an act, with intent to harm, as a result of which the life, health or safety of a person was or was likely to be endangered (count 4).
The appellant was acquitted of unlawful assault causing grievous bodily harm (count 3).
The trial judge imposed sentences, as follows:
(a)count 1: 6 years' imprisonment;
(b)count 2: 2 years' imprisonment; and
(c)count 4: 3 years' imprisonment.
The sentences were ordered to be served concurrently. The total effective sentence was therefore 6 years' imprisonment. A parole eligibility order was made.
The appellant has applied to this court for an extension of time to appeal, and leave to appeal, against his conviction and the sentencing decision.
The applications for an extension of time to appeal
The last date for the appellant to appeal against his conviction and the sentencing decision was 17 September 2010. He did not file his appeal notices until 12 November 2010.
The applicable principles governing the exercise of this court's discretion to extend time are set out in Wimbridge v The State of Western Australia [2009] WASCA 196.
It is convenient to consider the merits of the proposed grounds of appeal before deciding whether an extension of time should be granted.
The application for leave to adduce additional evidence in the appeal against conviction
On 22 March 2011, the appellant filed an application for leave to adduce additional evidence in the appeal. The appellant has sworn an affidavit dated 15 March 2011 in support of the application. The additional evidence comprises a statutory declaration dated 14 May 2009 made by the appellant's co‑offender, Joseph Williams, at Hakea Prison.
The facts and circumstances of the offending
Count 1 alleged that on 18 April 2009, at Kalgoorlie, the appellant unlawfully detained J (the victim), with intent to compel him to do an act he was lawfully entitled to abstain from doing, contrary to s 332(2)(d) of the Criminal Code (WA) (the Code).
Count 2 alleged that, also on 18 April 2009 at Kalgoorlie, the appellant unlawfully assaulted the victim and thereby did him bodily harm, contrary to s 317(1)(b) of the Code.
Count 4 alleged that, also on 18 April 2009 at Kalgoorlie, the appellant, with intent to harm the victim, did an act as a result of which the life, health or safety of the victim was or was likely to be endangered, contrary to s 304(2)(b) of the Code.
Before the commencement of the appellant's trial, the appellant's co‑offenders, Dallas Eriha and Joseph Williams, had pleaded guilty. Mr Eriha pleaded guilty to five offences, and Mr Williams pleaded guilty to four offences, arising from the mistreatment of the victim.
In early 2009, the victim, who was aged 17 years and weighed about 60 kg, commenced residing and working part‑time in Kalgoorlie. He lived in unit number 9 in a block of units. The victim met two other people who resided in the block. They were Mr Eriha, who lived in unit number 2, and Joshua Irvine, who lived in unit number 1.
About a week before the commission of the offences in question, a burglary occurred in the industrial area of Kalgoorlie. Four men were involved in the burglary, namely, Mr Eriha, Mr Irvine, the victim and a fourth (unidentified) man. The victim acted as the scout or lookout. He was aware that the others went into a set of storage units and stole some property. The property stolen included four firearms, being two rifles, a shotgun and a machine gun. After the burglary, they returned to the block of units in which Mr Eriha, Mr Irvine and the victim resided. Mr Eriha took the shotgun and the machine gun and placed them in his unit. Mr Irvine took the two rifles and placed them in his unit. The victim was supposed to receive some cannabis for his participation as the scout or lookout. He did not, however, receive anything.
During the interval between the burglary and the commission of the offences in question, Mr Irvine left unit 1 with the two rifles. His whereabouts were unknown.
A few days before the commission of the offences in question, Mr Irvine's unit (number 1) and the victim's unit (number 9) were broken into. The victim reported to the police the break‑in to his unit and, on 17 April 2009, police attended at and inspected the unit.
The trial judge found, in his sentencing remarks, that as a result of events commencing with the burglary, Mr Eriha developed a 'considerable enmity' for the victim (ts 590). His Honour said that Mr Eriha thought either that the victim knew something about Mr Irvine's disappearance and, perhaps, that Mr Eriha was entitled to the rifles, or he thought that, on the basis of the attendance of the police at the block of units, the victim had informed the police about the burglary (ts 590).
On 18 April 2009, Mr Eriha, Mr Williams and the appellant were drinking with other friends and associates at the block of units. Ms S, a friend of the victim, was present.
The victim had spent the night of 17 April 2009 with another friend, Mr L, who was also aged 17 years. On the following morning, 18 April 2009, the victim exchanged text messages with Ms S, who was of a similar age. They arranged to meet each other and Mr L at the Caltex service station on Great Eastern Highway, Kalgoorlie.
The exchange of text messages occurred while Ms S was with Mr Eriha and Mr Williams at the block of units. Mr Eriha and Mr Williams became aware of the meeting that had been arranged. Mr Eriha mentioned to some of the people who were drinking with him and Mr Williams that he disliked the victim. Mr Williams suggested that 'we', meaning Mr Eriha, Mr Williams and the appellant, could go to the arranged meeting. The trial judge found, in his sentencing remarks, that Mr Eriha said, 'I'm going to tear his fucking head off' (ts 591).
Mr Eriha then asked Mr Williams to drive him to the Caltex service station. As they got into Mr Williams' Nissan Patrol utility, the appellant asked if he could join them. He jumped into the vehicle.
The victim and Mr L rode bicycles to the Caltex service station. They arrived before Ms S. As the victim sat and waited, Mr Williams drove the utility into the service station and stopped abruptly. Mr Eriha, Mr Williams and the appellant alighted from the vehicle and ran towards the victim. Mr Eriha punched the victim to the face and forced him to the ground. Mr Eriha, Mr Williams and the appellant surrounded the victim. Mr Eriha continued to strike the victim, and each of Mr Eriha, Mr Williams and the appellant kicked him as he lay on the ground.
Mr Eriha was interested in ascertaining where Mr Irvine had gone and what had become of the two rifles. Mr Eriha asked the victim questions about these matters while he was being kicked.
The appellant admitted, in a video recorded interview with police, that while the victim was being beaten, he (the appellant) had said to him:
Oi man, if you know where he is just help him, you know, like just tell him where it is. Whatever it is, man, it's not worth getting fucking bashed or anything, you know (ts 591).
Mr Eriha had his foot on the victim's head while the victim was struck a number of blows and kicked. Mr Williams and the appellant then picked up the victim by his arms and forced him to walk to the utility. While this occurred, Mr Eriha confronted, assaulted and threatened Mr L with the object of ensuring his silence. Mr Williams assisted Mr Eriha's intimidation of Mr L. The appellant remained in the vehicle with the victim while Mr Eriha and Mr Williams dealt with Mr L.
The appellant, his co‑offenders and the victim then travelled in the utility to the block of units. Mr Williams was the driver. The victim was placed between Mr Williams and the appellant. Mr Eriha was in the tray of the utility.
The trial judge made these findings in the course of his sentencing remarks:
I'm satisfied, beyond a reasonable doubt, that you helped to put [the victim] into the ute, you kept him there while the others confronted [Mr L] ... and you remained next to [the victim] for the trip back to the [block of] units.
At this point, of course, the kidnapping which was the subject of the first charge against you had begun. [The victim] sat in the middle between you and Williams. Williams was driving and Eriha rode in the tray of the ute (ts 592 ‑ 593).
On arrival at the block of units, Mr Williams and the appellant carried the victim towards unit 1.
At this time, Douglas Fox, a 50‑year‑old man and an independent witness, was driving his vehicle in the vicinity of the block of units. He saw what was happening to the victim and stopped his vehicle. He enquired of the victim whether he was 'alright'. At the trial, Mr Fox gave evidence that the victim replied, 'yes. I'm okay'. The victim said in evidence that he did not attempt to resist, struggle or run away because he was worried about the consequences of attempting to do so. Mr Fox drove away after the victim told him that he was 'okay'.
Mr Eriha then bundled the victim into unit 1 with the appellant close behind.
The trial judge found, in his sentencing remarks, that the appellant and his co‑offenders 'stayed close together for the purpose of ensuring that [the victim] did not resist being put into that unit' (ts 594).
After the victim had been placed into unit 1, the door was closed and Mr Eriha began hitting and punching him. Each of the appellant and Mr Williams (and two other men from other units in the block who had joined the assailants in unit 1) took turns in kicking the victim while he lay on the ground and hugged his stomach with his knees drawn up to his chest.
The trial judge found, in his sentencing remarks, that the victim was kicked about 12 ‑ 15 times (ts 594). The attack continued for about 5 ‑10 minutes until other people in the block of units came to unit 1 to investigate (ts 594 ‑ 595).
The assault committed by the appellant in unit 1 formed the basis of count 2 in the indictment.
One of the other residents in the block of units, Reita Schild, gave evidence that she heard a high‑pitched scream coming from unit 1. As she approached the unit, she heard more screaming. The victim was then brought out of unit 1 by the appellant and Mr Eriha. As the victim was being brought out, Mr Williams violently assaulted him. The victim fell to the ground. He could not get up without assistance. Witnesses gave evidence at the trial that the victim appeared to be 'out of it' (ts 595). Ms Schild noticed that he had blood on his face in the vicinity of his eyes. The appellant and his co‑offenders carried the victim to the utility. Mr Eriha and Mr Williams held his arms and the appellant held his legs.
The trial judge found, in his sentencing remarks, that as a result of the violence which had been inflicted in unit 1, the victim was bleeding from the face. Also, he was holding his chest and ribcage area, which had been 'considerably battered' (ts 596). His Honour found that the victim was 'clearly in a bad condition' (ts 596).
Mr Eriha sluiced blood from the victim's face with water from a bottle. Mr Eriha then placed the victim in the middle seat of the utility and got in behind him. Mr Williams sat in the driver's seat. The appellant jumped into the tray of the utility.
The trial judge made these findings in the course of his sentencing remarks:
A submission was made on your behalf that because you were not in the cab, you were [not] a party to any discussion about what was to happen to [the victim] thereafter. From the evidence available, it doesn't appear that it was, in fact, necessary for any words to be spoken with respect to what was to happen next.
No one had to say what was to happen. Although, as Williams said in his evidence, as the three of you were about to drive away, one of the other residents of the [block of] units who'd been taking part in beating [the victim] inside Unit 1 came up and said, within your hearing as you sat in the tray:
'Don't kill him, just rough him up or just scare him.' (ts 596)
Mr Williams drove the utility out of Kalgoorlie. He turned onto a railway line access track and continued on that track for about a kilometre. Mr Williams then turned onto a bush track and proceeded for about 800 m. He then drove into the bush and stopped, about 8 km from Kalgoorlie.
The trial judge said in his sentencing remarks:
Williams described, and I accept, that with the excitement of driving at speed over the rough bush track, you were standing up on the tray, yahooing and carrying on.
When the ute stopped, Eriha took [the victim] out of the cab from the passenger side and put him face down on the ground. You jumped off the back of the ute and stood beside Eriha who was standing over [the victim] (ts 596 ‑ 597).
After the appellant, his co‑offenders and the victim had alighted from the utility, Mr Williams returned to the vehicle. He looked for and located a sling. When he rejoined the others, the appellant and Mr Eriha were urinating on the victim's head. The appellant urinated on his head for between 30 seconds and a minute. During this time, the victim was conscious. He knew what was happening because, amongst other things, he could taste the urine.
While the appellant and Mr Eriha were urinating on the victim's head, Mr Williams used the sling to secure the victim's ankles. Mr Williams then used a crane fixed to the rear of the utility to pick up the sling. The victim was lifted by his feet until he was suspended with his head pointing towards, and about 12 inches above, the ground.
During the period when Mr Williams was securing the victim's ankles with the sling and preparing the crane, either the appellant or Mr Eriha secured the victim's hands with nylon zip ties. The trial judge said, in his sentencing remarks, that it was unclear whether it was the appellant or Mr Eriha who had secured the victim's hands (ts 597). He noted that if it was Mr Eriha then the appellant must have witnessed it.
After the victim was hoisted by the crane, each of the appellant and his co‑offenders kicked the victim to the stomach and chest area. He was also kicked two or three times to the head. Each of the assailants took at least four turns to kick him, and each of the kicks was extremely hard. His Honour found that, at one stage, a kick inflicted by Mr Eriha produced 'an audible cracking noise' (ts 597). It was obvious that during this ordeal the victim was in extreme pain.
Also, while the victim was suspended by his feet, Mr Eriha used a pocket knife to tear and remove the victim's shirt, and carve some initials in his chest. These wounds were not particularly deep, but they caused the victim to scream in pain. The trial judge found, in his sentencing remarks, that the appellant stood by as this happened (ts 597).
Mr Eriha then returned to the utility and obtained a 28 inch long tungsten steel pry bar from the tray. Mr Eriha used the bar to strike the victim three or four times around his legs while he remained suspended from the crane.
At this stage, Mr Williams began to become concerned about the victim's condition. He lowered the crane and put the victim on the ground. The trial judge found, in his sentencing remarks, that when the victim was lowered to the ground, the appellant delivered two or three kicks to his ribs and body area (ts 598).
Mr Eriha then used the pry bar to strike the victim on his thighs, calves, arms, hands and feet. The trial judge found, in his sentencing remarks, that the appellant made no effort to attempt to stop Mr Eriha.
Next, Mr Eriha picked up a hammer from a tool box in the utility. As the victim lay on the ground, Mr Eriha struck him with the hammer on the base of his feet and on his hands. He struck his hands about 10 ‑ 15 times.
When Mr Eriha put down the hammer and picked up the pry bar again, Mr Williams intervened as Mr Eriha appeared poised to strike the victim on the head. Mr Williams removed the pry bar from Mr Eriha's hands and picked up the victim.
The trial judge made these observations, in his sentencing remarks, about the jury's verdict of acquittal on count 3:
The jury's verdict on count 3 reflects, in my view, their conclusion, or at least acceptance of a reasonable possibility, based on Williams' evidence that your disassociation from the assaults on [the victim] began when Eriha began to wield the hammer that caused the grievous bodily harm, or perhaps slightly before then when the pry bar was being wielded. From that point, although you were perfectly content, like the others, to abandon [the victim] in the bush, it appears that you were no longer prepared to take part in an assault of that magnitude upon him (ts 598 ‑ 599).
After Mr Williams intervened and stopped Mr Eriha's attack on the victim, the victim was wearing only boxer shorts and socks. His shoes had been thrown into the bush upon the appellant and his co‑offenders arriving at the bush site. His shirt had been torn from him by Mr Eriha. The victim stood with his hands tucked under his arms. He was unable to walk any significant distance. When Mr Williams encouraged the victim to run, the victim was unable to do more than hobble or limp. The trial judge found, in his sentencing remarks, that it was obvious that the victim could barely walk (ts 599). He was many kilometres from help and he had no way of communicating with anyone. Darkness was approaching. It was the middle of April and he had no food or water.
As the victim hobbled, after being chased briefly by Mr Eriha, the appellant and his co‑offenders got back into the utility and returned to Kalgoorlie. They abandoned the victim at the bush site.
At about 8.30 am on the next day, 19 April 2009, a man and his son were driving along the bush track. They saw the victim, who was lying at the side of the track. He had been at or near that location for about 18 hours. He could not walk and could barely move.
Appeal against conviction: proposed grounds of appeal
The appellant relies on two proposed grounds in his appeal against conviction.
Ground 1 alleges that the trial judge erred by failing to discharge the jury following an objection to the prosecutor's opening address. The particulars to this ground read:
(a)In the opening address a photograph of the victim and his injuries, which had not yet been tendered, was left on the screen in full view of the jury for a prolonged period of time, until the prosecution finished the opening address.
(b)The photograph along with the emotive speech of prosecution counsel would have unfairly prejudiced the minds of the jury against the Appellant before any evidence was led in a way that could not be cured by direction.
Ground 2 alleges that there was a miscarriage of justice in that a substantial part of the State's case against the appellant comprised the evidence of his co‑offender, Mr Williams, 'who gave inconsistent accounts of what occurred at different points in time and who had previously made a statutory declaration exculpating the appellant'.
Appeal against conviction: ground 1: the prosecutor's opening address
The prosecutor said in his opening address that the word 'torture' would not be out of place in describing what had been done to the victim by the appellant and his co‑offenders (ts 68).
He then described the nature and extent of the injuries inflicted on the victim:
[The victim] was assaulted so badly that he had to spend three weeks in hospital before he was able to be discharged. He was assaulted so badly that he sustained bruises and cuts and abrasions all over his body.
He was assaulted so badly that he sustained a fractured lower left leg, a fractured right knee cap, a deep laceration to the back of his right hip, broken fingers and bones on his left hand and broken fingers and bones on his right hand. Even now, a year on, he is still having to undergo surgery to try and get proper function of his right hand (ts 68 ‑ 69).
The prosecutor told the jury that the State alleged that three men, one of whom was the appellant, were responsible for causing these injuries. He noted that the victim was assaulted in a callous, brutal and prolonged manner. The prosecutor then qualified these remarks by emphasising that the State did not suggest that the appellant was 'the principal offender in all respects' (ts 69). In particular, the State did not suggest that the appellant was responsible for causing personally the most serious of the victim's injuries. For example, it was not suggested that the appellant had physically brandished weapons or used weapons against the victim (ts 69).
During his address, the prosecutor warned the jury that they would hear evidence which they might regard as 'fairly confronting and painful':
Ladies and gentlemen, I think it's only fair that I warn you now that during the course of this trial you will hear what you might think is a fairly confronting and painful description of assaults said to have taken place on [the victim]. I don't say that to try and shock you or try and excite some kind of prejudice.
I say that just to give you warning that you will be hearing those kinds of details. This is a criminal trial and because of that it is important, for the trial to run fairly and properly, that you hear the precise details of what is alleged to have happened because it's only when you hear those details that you'll be able to make a proper assessment of the evidence.
And, as I'm sure you can appreciate, it's only on the evidence that you can decide what happened, not upon feelings of prejudice or shock or any other type of emotional response that a person might, understandably, have. Let me outline in some detail now what this case is all about. As I said, [the victim] was 17 years old. Although he wasn't short by way of stature by any means, he was very skinny. He weighed all of 60 kilograms (ts 69 ‑ 70).
The prosecutor then displayed to the jury the photograph referred to in ground 1. He said:
Ladies and gentlemen, you'll see this photograph closer up during the course of the trial but that's [the victim] after the assault in the Kalgoorlie Hospital. I should stress that that is before he has been substantially cleaned up by medical staff. But you'll see from that photograph that he's young and he's of small build (ts 70).
The photograph in question was initially put up at 11.09 am on 4 May 2010 (being the opening day of the trial) and remained on display for 'a minute or so' (ts 108).
The prosecutor put up the photograph again, in the course of his opening address, at 12.16 pm on 4 May 2010, when he told the jury:
Ladies and gentlemen, before I continue I just want to correct an error that I made earlier. I said, in reference to that photograph, that that was the condition that [the victim] was in before he was cleaned up. That is - that photograph is after he's been substantially cleaned up by medical staff.
That was not the position or the way that he looked after these assaults. I just wanted to clarify that. I have that photograph kept up there because it's relevant to what I'm about to say. At one stage out in the bush after [the victim] had been urinated on [Mr Eriha] used a blade of some description to actually carve a word on to [the victim's] chest.
[The victim] thought he heard the word 'fag' and [Mr Eriha] say something to the effect of that's how he would remember who he was. You'll see from that photograph some lines running horizontally across [the victim's] chest and also two further lines in a V‑shape or perhaps an upside‑down A.
You may hear from Mr Williams that what [Mr Eriha] did wasn't anything to do with the word 'fag' but the word 'fade', f-a-d-e, and he'll explain that particular meaning of that word 'fade' to [Mr Eriha].
It was after [the victim] had been strung up by this crane and kicked, let down and urinated on and had that word or those lines, whatever they are, carved on his chest by [Mr Eriha] that [Mr Eriha] has then grabbed a claw hammer (ts 85).
On the second occasion, the photograph remained on display until the prosecutor completed his opening address at 1.26 pm on 4 May 2010.
At 1.31 pm on 4 May 2010, the trial judge adjourned the court until 10.00 am the following morning.
Appeal against conviction: ground 1: the application to discharge the jury
When the trial resumed on 5 May 2010, defence counsel made application to the trial judge, in the absence of the jury, for the discharge of the jury.
Defence counsel made, relevantly, these submissions in support of her application:
Your Honour, it's the State's opening address which is causing me concern. The State opened with an emotive speech, and that's all very well, but then a photo was put up before the jury showing the complainant with injuries and it's an emotive photograph. Now, that went on the screen for a short time at page - that's page 70 of the transcript.
It was there just for a minute or so. However, it went up again at 12.16 and it remained there until 1.26 when the State's opening address was completed. That means that the jury was looking at that photograph for 1 hour and 10 minutes.
...
The opening should be fair and measured. It's not intended as a tool to excite or inflame the jury. Combined with the emotive speech given by the State, this photograph being left in front of the jury for such a long period of time will colour their perception and prejudice ... their minds right from the beginning - before the evidence has even been heard - and I submit that this jury will begin the trial will a mind already focused on conviction.
The issue in this trial is not whether the complainant was injured. Of course he was injured. It's whether my client was criminally responsible. Your Honour, a graphic image once seen can be indelible on the mind, and in particular when it's in front of you for a long time and I submit that there's no judicial direction that can be given to cure the prejudice caused by that picture.
I submit that with this jury my client will not have a fair trial and he will be deprived of the opportunity for acquittal (ts 108 ‑ 109).
The trial judge dismissed the application to discharge the jury. His reasons were, relevantly, as follows:
[T]he photograph that was left on the document camera is one which, it appears to be conceded, is properly evidence that can be put before the jury. It's something that the jury will have with them when they retire to consider their verdict.
The facts of this case are such that it seems to me to be almost inevitable that anyone hearing what happened to the victim would quite naturally feel sympathy for him, with or without a picture. And there will, of course, be considerable evidence from the victim himself, as well as from other witnesses to the injuries that he sustained and the way in which they were sustained.
Now, I've described the complainant as a victim because there are two co‑offenders, both of them, I know, have pleaded guilty to this offence. The jury has been told that one of them has and that person will also be giving evidence. In the circumstances, it's fairly obvious that the man I'm speaking of was a victim in every sense.
And, as I say, I don't doubt that the jury will be sympathetic with respect to its position but the fact is, and the jury will know, that somebody has already pleaded guilty to that. And the State has put its case in the course of opening not on the basis that this accused man was necessarily responsible for inflicting the injuries that we've heard about and, in particular, the wound that was obvious in the course of the photograph.
Rather the State's case is that someone else inflicted the most significant injuries and the wound seen in the photograph. The State's case against the accused man here is put on the basis that he was either an aider because of some much lesser acts of violence or that, because of the role that he played in the series of events and a common intention on the part of each of the three men, he is culpable for those reasons. So I'm going to deny the application to discharge the jury (ts 114 ‑ 115).
Appeal against conviction: ground 1: the trial judge's directions to the jury
After the trial judge dismissed the application to discharge the jury, the jury returned and his Honour immediately gave them these directions:
Now having heard ... from [the prosecutor] about the nature of the injuries that [the victim] suffered, it'd be a pretty natural response for you to feel particular sympathy towards [the victim] as a very natural human response.
But, you'll remember what I told you earlier, your job here - your duty here - is to listen carefully to the evidence to reach conclusions about the facts and apply that to the directions that I'm going to give you about the law at the end of this case. You can't allow yourself to be swayed by emotion or sympathy or any factors like that.
And of course, you'll also recall the nature of the case that [the prosecutor] outlined to you. For example, you saw a picture of [the victim] and he had some wounds on his chest and [the prosecutor] told you how those were inflicted. It is not the State's case that it was [the appellant], the accused man, who inflicted those wounds that you saw in the picture.
The State's case is not that some of the more serious injuries that you heard about were personally caused by [the appellant] - that [the appellant] was the man who inflicted those blows or caused those wounds. That's not the basis upon which the State puts its case to you.
...
So I want you to understand that at the end of this case you're going to be directed with respect to all of those matters and I will remind you again that in carrying out your job to reach a true verdict on the evidence you're not to be moved by any emotion or sympathy or prejudice or anything of that nature (ts 116).
The trial judge returned to this issue in his summing up. He instructed the jury:
Because this is a criminal trial you have to determine it on the evidence. You should assess that evidence dispassionately. You should not decide the case on prejudice or sympathy. For many of you it would be natural to be sympathetic to [the victim] for the injuries that he received.
Maybe some of you regard him with less sympathy because of the people or some of the people that he chose to associate with and the kind of life that he was living.
...
But I know that you will understand this isn't a court of morals or manners. It's a court of law and your duty is to resolve the issues of fact in this trial without regard for matters of prejudice or sympathy (ts 480).
Defence counsel did not seek any redirection or further direction from his Honour.
Appeal against conviction: ground 1: its merits
Where an accused is convicted and appeals against the conviction on the ground that the trial judge's discretion miscarried when he or she refused to discharge the jury without verdict, the appeal is not against the failure to discharge the jury, but against the conviction. See Maric v The Queen (1978) 52 ALJR 631, 634 (Gibbs ACJ, Mason & Jacobs JJ agreeing). The appeal will only succeed if the appellant can demonstrate that the trial judge's exercise of discretion was vitiated by an error of law (see s 30(3)(b) of the Criminal Appeals Act 2004 (WA); House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505 (Dixon, Evatt & McTiernan JJ)) or that a miscarriage of justice has occurred (see s 30(3)(c) of the Criminal Appeals Act). See also Narrier v The State of Western Australia [2008] WASCA 191; (2008) 38 WAR 161 [31] (Buss JA, Martin CJ & Wheeler JA agreeing).
In R v Zammit [1999] NSWCCA 65; (1999) 107 A Crim R 489, the appellant was convicted, following a trial before a judge and jury, of armed robbery and murder. The identification of the offender was a crucial issue at trial. On appeal, the appellant submitted that photographs of the victim's wounds were prejudicial and should not have been admitted into evidence. The Court of Criminal Appeal of New South Wales held that the photographs were admitted to prove the state of mind of the offender and to show how close his face must have been to a witness at the time of the shooting. In the circumstances, the probative value of the photographs outweighed any prejudicial effect they may have had. In any event, any prejudice arising from the photographs was insignificant. Wood CJ at CL (Ireland & Kirby JJ agreeing) said:
The sensitivity of jurors to photographs can too easily be overstated. I can see no reason why a degree of robustness should not be extended in this regard. Nor can I see why the tender of selected photographs, so long as they have a probative value (O'Sullivan and Mackie (1975) 13 SASR 68 at 74 - 75), should be regarded as other than another step in the course of a trial in which the fact of violent death is patent for all: Green (1939) 61 CLR 167 at 172; Jeffrey [1967] VR 467 at 473 and Ames [1964] NSWR 1489 [156].
In the present case, the photograph in question depicted the victim lying on a bed in hospital. His wounds had been cleaned by hospital staff and his hands had been bandaged. His chest and abdomen, including the scratches made by Mr Eriha with the knife, are visible. His face, which shows some bruising, is also visible. The photograph could not reasonably be described as gruesome or shocking to an adult of ordinary robustness.
The prosecutor's opening address was not improper or unfair. He outlined for the jury the relevant chronology of events. This necessarily included a description of the manner in which the victim had been treated by the appellant and his co‑offenders, and the nature and extent of the injuries inflicted on him. The prosecutor did not misstate the role of the appellant in the offending. He stressed that the appellant was not responsible personally for causing the most serious of the victim's injuries and that the appellant had not physically brandished weapons or used weapons against the victim.
The photograph in question, and other photographs of the victim as he lay in bed in hospital, were taken by a police officer, Denise Graham, and tendered in evidence, without objection from defence counsel, in the course of the evidence‑in‑chief of another police officer, Detective Senior Constable Jason Macander (ts 334 ‑ 335). All of the photographs and the other exhibits were available to the jury when they deliberated on their verdict in the jury room. It is not alleged in the proposed grounds of appeal, and it was not contended by the appellant in his submissions, that the photograph in question was inadmissible at the trial.
In addition to the photographs, there was substantial oral evidence before the jury (admitted without objection from defence counsel) as to the nature and extent of the injuries suffered by the victim, the manner in which the injuries were inflicted, and the victim's appearance after the appellant and his co‑offenders had finished their attack upon him. I have no doubt that this evidence was likely to have produced a mental image for the jury of the victim's physical condition at the relevant time that was not materially different from the mental image produced while the photograph in question was displayed in the course of the prosecutor's opening.
The trial judge's directions, immediately after he dismissed the application to discharge the jury and in the course of his summing up, were more than adequate to ensure a fair trial. There is no reason to doubt that the jury would have acted faithfully in accordance with his Honour's directions.
It is not reasonably arguable that the trial judge's decision not to discharge the jury was vitiated by an error of law or occasioned a miscarriage of justice.
Ground 1 is without merit.
Appeal against conviction: ground 2: the evidence of Mr Williams
In the affidavit sworn by the appellant in support of his application to adduce additional evidence in the appeal, the appellant deposes, relevantly and in effect, as follows:
(a)before the appellant's trial, the appellant and Mr Williams were held on remand at Hakea Prison;
(b)before the trial, Mr Williams gave the appellant a statutory declaration at Hakea Prison;
(c)Mr Williams gave the appellant the statutory declaration 'without any coercion or pressure' from the appellant;
(d)the appellant faxed the statutory declaration to his then solicitor; and
(e)later, the appellant was represented by another solicitor, Ms L Zinenko, who also acted as defence counsel at the trial.
The appellant also deposes in his affidavit, as follows:
16.I was later represented by Lyn Zinenko. Lyn Zinenko advised me that Joseph Williams had given inconsistent statements. Lyn Zinenko was concerned that Joseph Williams may give evidence at trial that I forced him into making the statutory declaration. This view was based on Joseph Williams having changed his statements many times.
17.Based on Lyn Zinenko's advice I decided not to have Joseph Williams cross examined at trial on the comments made in the statutory declaration.
18.I believe the signed statutory declaration is evidence in support of my appeal against conviction.
Plainly, the statutory declaration is 'new', as distinct from 'fresh', evidence.
Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of new as distinct from fresh evidence, unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted. See Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 675 ‑ 676 (Mason J); DPJB v The State of Western Australia [2010] WASCA 12 [66] (Owen JA, McLure P relevantly agreeing).
The statutory declaration made by Mr Williams is dated 14 May 2009 and states, relevantly:
I, Joseph D Williams
Hakea Prison
sincerely declare as follows:-
That my coaccused Mr Michael Starr had no part in either of the assaults that took place at the service station or at [the block of units in] Kalgoorlie nor did he have knowledge that we were going to take the victim to a remote location in bushland Kalgoorlie were [sic] the victim was left. Mr Starr had asked to be taken back to his place of residence before we left [the block of units]. I agreed though it would not be immediately. This he did not know.
Mr Williams gave sworn evidence at the trial. He was called by the State.
The statutory declaration was available to defence counsel before the trial. She was aware of its contents. Defence counsel could have cross‑examined Mr Williams on the statements made by him in the statutory declaration and, if he denied having made them, tendered the declaration as a prior inconsistent statement. She chose not to cross‑examine him on the contents of the declaration.
Nevertheless, defence counsel did cross‑examine Mr Williams extensively. Mr Williams had made several statements about the facts and circumstances of the offending. Defence counsel questioned him about these statements including inconsistencies between them. She attacked his credit.
The trial judge gave the jury these warnings, in his summing up, about Mr Williams and his evidence:
[O]ne of the State's main witnesses is Mr Williams, a man who was accused of very similar offences and who, as you've heard, has pleaded guilty to them. You need to carefully scrutinise Mr Williams' evidence and the reason why you must carefully do so is that he has a certain degree of self interest in giving his evidence, such that he may be seeking to justify his own conduct in the offence so as to limit his own involvement and shift blame onto the accused.
Now, you'll take all of the evidence into account in determining whether or not you think that might be so. You'll recall that in the course of his cross‑examination it was suggested to him that his willingness to give evidence at this trial was the result of some sort of deal with the State, the implication being that there was an understanding or arrangement about the kind of sentence that Mr Williams might be received [sic].
Let me remind you what I said at the beginning of this trial and a bit earlier, the questions asked by counsel aren't evidence, it's the answer that provides the evidence, and here the only evidence is Mr Williams' unequivocal denial that there ... was or is any such deal.
But let me say this to you, ladies and gentlemen, I don't think it would surprise you to learn, that if someone pleads guilty to an offence as opposed to being found guilty after a trial, the fact that they've pleaded guilty at an early stage is a matter that a judge might take into account in determining what an appropriate sentence was.
Another thing that a judge can take into account in a favourable way is if somebody has cooperated with the police or with the prosecuting authorities, that is, if the cooperation is genuine and truthful. But what effect by either a plea of guilty or a cooperation might have is always a matter for the sentencing judge. It is his or her decision and no one else's.
But having said that, it's in Mr Williams' interest for the kinds of reasons that I've told you about to cooperate with the authorities and whether it's that that's prompted him to give evidence or something else. But the fact that there's a degree of self interest in the way that I've described is not a reason of itself for you to reject his evidence.
It's a reason for you to carefully scrutinise his evidence and compare it closely with what's known about the circumstances of these offences from other evidence and what other facts can be accepted by you as truthful or reliable.
You should also consider whether there's any other evidence which confirms the evidence of Mr Williams, and that's because you might not want to accept his evidence without seeing other independent evidence which confirms Mr Williams' evidence.
...
It's a matter for you to consider whether you accept the evidence of Mr Williams. But you have to carefully scrutinise his evidence before you accept his evidence and, of course, you'll bear in mind the extent to which there is confirmatory evidence (ts 478 ‑ 480).
The Australian criminal justice system involves a contest between the State or the Crown and the accused. In general, the accused is bound by the conduct of his or her counsel. The accused's counsel has a broad discretion in the conduct of the defence. As Gleeson CJ (McInerney J agreeing) noted in R v Birks (1990) 19 NSWLR 677:
Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case (683).
See also TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [8] (Gleeson CJ); R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 [168] (Kirby J).
An apparently rational decision made by the accused's counsel in the course of the trial will not result in an unfair trial or a miscarriage of justice merely because it may appear then or later on appeal that the decision was not carefully considered, was unwise, or produced consequences which operated to the disadvantage of the accused. See TKWJ, where Gleeson CJ explained:
It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks. In the present case, the decision not to adduce character evidence was made for an obvious reason: to avoid the risk that the prosecution might lead evidence from K.
Trial counsel made a decision not to call certain evidence. Viewed objectively, it was a rational tactical decision, made in order to avoid a forensic risk. It did not make the trial unfair, or produce a miscarriage of justice [16] - [17].
See also Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115 [21] (Gaudron, Kirby & Callinan JJ); TKWJ [95] (McHugh J), [107] (Hayne J, Gummow J agreeing).
An appellate court does not examine whether a decision taken by the accused's counsel at the trial was, in fact, taken for the purpose of obtaining a forensic advantage. Rather, the appellate court is concerned only with whether counsel's decision is capable of explanation on that basis. That is, could there be any reasonable explanation for the decision? The test is objective in character. See TKWJ [17] (Gleeson CJ), [27] (Gaudron J, Gummow J agreeing), [95] (McHugh J), [107] (Hayne J, Gummow J agreeing).
In my opinion, defence counsel's decision not to cross‑examine Mr Williams on the contents of his statutory declaration and, if the requisite conditions were satisfied, to prove the declaration as a prior inconsistent statement are capable of reasonable explanation on the basis of a tactical decision taken by defence counsel at or before the trial. It is not reasonably arguable that this decision resulted in an unfair trial or a miscarriage of justice.
In any event, there is no doubt that the statutory declaration does not establish the appellant's innocence or raise such a doubt that this court ought to be satisfied that he should not have been convicted. The declaration is not evidence as to the truth of its contents. It could only have been used at the trial to attack Mr Williams' credit.
It is true that a substantial part of the State's case against the appellant comprised the evidence of Mr Williams and that Mr Williams had given inconsistent accounts before the trial of some of the material events.
However, there was other evidence at the trial which, in some respects, confirmed Mr Williams' evidence. The trial judge referred to this other evidence in his summing up:
For example, his description of the events at the Caltex station was consistent in a number of respects with what several of the other witnesses said in suggesting that [the appellant] took an active part there. And of course, Mr Williams didn't say that he and [the appellant] took part in the beating that took place there, but you will recall [the appellant's] evidence as to how [the victim] was taken to the ute by Mr Williams and [the appellant] and that was, of course, very broadly consistent with what was said by [Mr L] and [Ms S].
Mr Williams' description of [the victim's] treatment at the bush location, [was] confirmed in many respects by the medical evidence, and in some respects by what [the victim] said. In his video record of interview, [the appellant] confirms, as Mr Williams said, that it was [the appellant] and Dallas Eriha who urinated on [the victim], although of course [the appellant] said that in his case it was an accident (ts 480).
The decision whether and, if so, to what extent, the evidence of Mr Williams should be accepted was a classic question for the jury. The trial judge gave the jury an appropriate warning in relation to Mr Williams and his evidence. Defence counsel did not complain about the adequacy of the warning. The proposed grounds of appeal do not allege, and the appellant's submissions did not contend, that his Honour's warning was deficient.
In my opinion, the fact that a substantial part of the State's case against the appellant comprised the evidence of Mr Williams did not result in a conviction that is unsafe or unsatisfactory or a conviction that is, having regard to the evidence, unreasonable. The jury's verdict was supported by evidence that the jury was entitled to accept. It is not reasonably arguable that any miscarriage of justice occurred at the trial.
Ground 2 is without merit.
Appeal against conviction: conclusion
The proposed grounds of appeal have no reasonable prospect of success. The absence of any merit in the proposed grounds is sufficient, of itself, to require that the application for an extension of time to appeal against conviction be dismissed.
I would refuse to grant an extension of time. Also, I would dismiss the application to adduce additional evidence because the additional evidence does not materially advance the appellant's case.
Appeal against sentence: proposed ground of appeal
The appellant relies on one proposed ground in his appeal against sentence.
The proposed ground alleges that the trial judge imposed a sentence for the offence of kidnapping, being count 1, that was manifestly excessive, and a total effective sentence that was disproportionate to the appellant's overall criminality. No challenge is made to the individual sentences for counts 2 and 4.
The proposed ground asserts the existence of inferred or implied error.
As I have mentioned, the trial judge sentenced the appellant to 6 years' imprisonment on count 1 (kidnapping), 2 years' imprisonment on count 2 (unlawful assault occasioning bodily harm) and 3 years' imprisonment on count 4 (unlawfully doing an act, with intent to harm, as a result of which the life, health or safety of a person was or was likely to be endangered). His Honour ordered that the sentences be served concurrently. The total effective sentence was therefore 6 years' imprisonment. The appellant was made eligible for parole.
The maximum available penalty for:
(a)count 1, which involved a contravention of s 332(2)(d) of the Code, was imprisonment for 20 years;
(b)count 2, which involved a contravention of s 317(1)(b) of the Code, was imprisonment for 5 years; and
(c)count 4, which involved a contravention of s 304(2)(b) of the Code, was imprisonment for 20 years.
I will consider, first, the appellant's challenge to the individual sentence imposed for count 1.
In Tubb v The State of Western Australia [2007] WASCA 106, McLure JA (Steytler P & Miller AJA agreeing) reviewed the sentences which have been imposed for the offence of kidnapping. It is unnecessary to reproduce her Honour's review.
In the present case, the trial judge made these observations in his sentencing remarks:
(a)The victim, in his victim impact statement dated 12 April 2010, refers to the physical and psychological consequences he has suffered as a result of the offending. He was in considerable pain for months until the casts and splints on his legs were removed. He can no longer participate in many of the physical activities he used to enjoy, for example, bicycle riding and rollerblading. He has experienced anxiety attacks and serious depression for which he has received treatment. He has nightmares concerning the events in question and he has made a suicide attempt (ts 601).
(b)The appellant was born on 12 May 1980 and was aged 30 years at the time of sentencing. He had a very difficult childhood. He experienced violent abuse at the hands of a step‑relative. He left home when he was 14 and spent time living on the streets. He was involved with negative peer groups and used drugs. The appellant ceased his schooling in year 9. He has no formal trade or other qualifications. He has worked in a variety of occupations including as a laboratory technician for a 12‑month period until he was made redundant in December 2008. He is in good physical health (ts 602 ‑ 603).
(c)The appellant has a prior criminal record. He has convictions for aggravated burglary, threats to injure, resisting arrest, possession of a smoking implement, disorderly conduct, aggravated assault occasioning bodily harm, breach of a violence restraining order, two counts of breach of protective bail conditions, two counts of assaulting a public officer, assault occasioning bodily harm, common assault and unlawful damage (ts 603).
(d)The appellant has significant difficulty in accepting any responsibility for his involvement in the offending. He has blamed his co‑offenders. He lacks genuine victim empathy (ts 604).
His Honour referred in some detail to a pre‑sentence report dated 31 May 2010 and a report dated 15 June 2010 from a clinical psychologist, Ms Roxanne Buktenica.
Ms Buktenica made these comments about the appellant's propensity for violence and his risk of reoffending:
5.[The appellant] has been exposed to violence and antisocial behaviour from a young age and he is likely to be desensitised to this type of behaviour and violence and offending is normalised for him at some level.
6.[The appellant] has rationalized his involvement to himself and has justified his involvement by not accepting responsibility (as this assists him to make sense of his behaviour). He has received significant negative attention as a result of his involvement in the current offences and this is likely to contribute to his strong stance of denial, justification and minimisation.
7.In terms of risk of future violent offending behaviour, aggravating factors include his difficulties accepting responsibility for his behaviour, poor decision making, poor impulsive control, poor problem solving skills, minimal supports, antisocial peers, alcohol use, relationship difficulties, employment difficulties and issues with emotional management. These are therefore issues that need to be targeted in intervention plans and reduction of these factors will reduce current risk.
8.His main area of risk for future violence therefore appears to be in the context of relationship issues or [the appellant] being triggered to an emotional response rather than using violence as a strategy to get his needs met (functional).
The trial judge made findings as to the extent of any cooperation by the appellant with the police, as follows:
The extent of your cooperation with the police was, so far as I can see, your voluntary attendance at the police station once you knew they were looking for you. Thereafter, what is described as cooperation consists of attempts on your part to mislead the police, first of all, as to your involvement in this offending, and second of all, as to the nature and extent of the violence that had been directed against [the victim] (ts 607).
The primary sentencing considerations in relation to the appellant's offending were punishment, and personal and general deterrence. Although the appellant was the least culpable of the three offenders, the trial judge correctly described the offending conduct as cowardly, brutal and sadistic (ts 608).
The appellant did not have the benefit of the mitigation that a plea of guilty would have brought. His Honour found that there was no remorse or contrition on his part (ts 608).
The trial judge made this finding as to the appellant's participation in the offence of kidnapping:
You are, however, I find, a joint principal offender with respect to the kidnapping. Your involvement was significantly more than that of a mere hanger‑on or aider. With respect to that offence, your culpability is less than that of Eriha and Williams, but it is still significant. That is the offence which, in my view, is the defining feature of your offending on 18 April 2009 (ts 608).
I have considered the sentencing outcomes in other cases involving kidnapping; in particular, Peters v The Queen [2000] WASCA 28; Payne v The Queen [2002] WASCA 186; (2002) 131 A Crim R 432; Ahmad v The Queen [2003] WASCA 234; Tubb; Wheeler v The State of Western Australia [2008] WASCA 111. The overall circumstances of the kidnapping in Peters, Payne and Ahmad were less egregious than those of the present case. Also, the offenders in Peters, Payne and Tubb pleaded guilty. The plea in Peters was on the fast‑track. I am satisfied, on the basis of my consideration of the other cases, that the sentence which the appellant received for count 1 was not disproportionate to the sentences which have been imposed for offending with at least some comparable features.
There is no reasonable basis for the appellant's allegation that the sentence of 6 years' imprisonment for count 1 was manifestly excessive. When this sentence is examined from the perspective of the maximum available sentence, the standards of sentencing customarily observed with respect to the offence of kidnapping, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the appellant, the only conclusion reasonably open is that the sentence was not unfair or unjust.
My opinion that the sentence for count 1 was not, on any reasonable view, manifestly excessive, necessarily disposes of the appellant's other allegation, namely, that the total effective sentence was disproportionate to his overall criminality. In any event, the total effective sentence of 6 years' imprisonment was well‑deserved and within the range of a sound exercise by the trial judge of his sentencing discretion. It is not reasonably arguable that the total effective sentence was disproportionate to the overall criminality of the appellant's offending, viewed in its entirety, and after having regard to the appellant's personal circumstances.
The proposed ground of appeal is without merit.
Appeal against sentence: conclusion
The proposed ground of appeal has no reasonable prospect of success. The absence of any merit in the proposed ground is sufficient, of itself, to require that the application for an extension of time to appeal against sentence be dismissed.
I would refuse to grant an extension of time.
The result of the applications
The applications for an extension of time to appeal against conviction and sentence should be dismissed.
MAZZA J: I agree with Buss JA.
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