The Queen v Craig Anthony Secombe , , the Queen and Joseph Damien Butkovic
[2010] VSCA 58
•25 March 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 535 of 2008
| THE QUEEN | |
| v | |
| CRAIG ANTHONY SECOMBE | 1st Applicant |
| No 703 of 2008 | |
| THE QUEEN | |
| v | |
| JOSEPH DAMIEN BUTKOVIC | 2nd Applicant |
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| JUDGES | BUCHANAN and ASHLEY JJA and HABERSBERGER AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 1 March 2010 |
| DATE OF JUDGMENT | 25 March 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 58 |
| JUDGMENT APPEALED FROM | R v Secombe and Butkovic (Unreported, County Court of Victoria, Judge Crossley, 15 November 2007) |
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Criminal law – Conviction – Whether deficiency in directions to jury regarding unanimity about the proof of element that converted burglary into aggravated burglary – Whether error in directions as to element of trespass in aggravated burglary – Whether judge impermissibly commented upon failure of applicant to give evidence – Identification evidence – Whether directions deficient in that the judge did not relate factors which may render identification unreliable to circumstances of the case – Whether convictions unsafe and unsatisfactory – Applications refused.
Criminal law – Sentence – Whether manifestly excessive – Whether judge erred in failing to fix non parole period but rather fixing a date upon which applicant was eligible for release on parole – Method did not invalidate the sentence – Application refused.
Criminal Law – Sentence – Applicant’s impaired mental functioning – Whether judge erred in finding equal culpability of both applicants – Application refused.
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| Appearances: | Counsel | Solicitors |
| For the Crown | Mr T Gyorffy | Mr C Hyland, Solicitor for Public Prosecutions |
| For the 1st Applicant | Mr P F Tehan QC | Ronald V Tait |
| For the 2nd Applicant | Mr L C Carter | Robert Stary & Associates |
BUCHANAN JA
ASHLEY JA:
Introduction
After a short trial in the County Court the applicants were each found guilty on one count of aggravated burglary, two counts of intentionally causing injury and two counts of false imprisonment.
Each of the applicants was sentenced to be imprisoned for a term of five years on the count of aggravated burglary and for a term of two years on each of the remaining counts. With a measure of cumulation, the total effective sentence imposed on each applicant was six years’ imprisonment. A minimum of four years’ imprisonment was fixed in respect of Butkovic’s sentence. As Secombe was currently serving a sentence of imprisonment, the sentencing judge fixed 31 December 2011 as the date upon which he was to be eligible for parole.
The applicants have applied for leave to appeal against their convictions and sentence.
The Evidence: an overview
The principal Crown witnesses were Tania Benson, whose home, a ground floor brick veneer unit in Ballarat, was alleged to have been invaded by the applicants, and another occupant of the unit, Aaron Harvey.
Ms Benson gave evidence that on the night of 20 October 2005 she was in the unit with her friend Harvey and her eight year old daughter, Tayla. Ms Benson had been drinking throughout the afternoon with Harvey and had also smoked cannabis. Ms Benson and Harvey were asleep on a couch in the lounge room. Ms Benson’s daughter was asleep in her bedroom. Ms Benson said that the front door of the unit was locked, but the back door was probably unlocked ‘because I used to often leave the sliding door open so my dog could come in and out’. Ms Benson said that she woke between 1.00pm and 11.30pm when she was assaulted by Secombe, who punched and kicked her and struck her with the plastic pole of a vacuum cleaner. Some weeks before, Secombe had left a car at the unit as he had no room for it. Ms Benson said that Secombe demanded the keys to the car and she handed the keys to him.
Ms Benson said that there was another person in the lounge room who was not known to her. She described him as large, aged in his late 30s or early 40s and wearing a hooded jumper. Ms Benson identified a photograph of Butkovic on a photo board as the unknown assailant.
Aaron Harvey gave evidence that in the evening of 20 October 2005 he woke on the couch in the lounge room of Ms Benson’s unit to see Secombe, whom he had known for some two years, hitting Ms Benson with the vacuum cleaner pole and heard him asking where the keys were. Another person, whom he did not know, was standing over him. The unknown man dragged Harvey into the kitchen and told him to stay there. The stranger was holding a peeling knife and ‘tried to slash me but I moved. I blocked it.’ Harvey’s arm was cut and later required two stiches. Secombe also hit Harvey on the head with the vacuum cleaner pole and punched him. The stranger pointed a black pistol at Harvey.
Harvey saw Ms Benson’s daughter in the room and heard her scream, ‘Leave mummy alone’. Ms Benson gave Secombe a bunch of keys and he and the stranger left.
Harvey also identified Butkovic from a photo board.
The applicants did not give evidence and called no witnesses.
Secombe - Conviction
Requirement of a unanimous verdict
The first ground of Secombe’s application for leave to appeal against conviction was abandoned. The second ground is as follows:
The learned trial judge erred in failing to direct the jury that as to the feature of aggravation on the count of aggravated burglary the jury would have to be unanimous as to which element of aggravation they were satisfied of if they were to convict the applicant.
The Crown advanced two circumstances in which the entry by the offenders as trespassers to Ms Benson’s unit constituted aggravated burglary. The first was that they had with them offensive weapons, the knife and gun carried by Butkovic. The second was that when they entered the unit they knew a person was present or were reckless as to whether a person was present. The Crown could establish the commission of the offence by proving either or both circumstances.
The jury were required to be unanimous as to the circumstance or circumstances which converted the trespass to aggravated burglary. So much was common ground. If discrete acts go to the proof of an essential element of the crime charged, the jury cannot convict unless they are agreed upon that act which, in their opinion, does constitute that essential ingredient.[1] The question was whether the trial judge conveyed this requirement in his charge to the jury.
[1]R v Walsh (2002) 131 A Crim R 299.
The trial judge directed the jury that their verdicts must be unanimous. He said that the elements of burglary were entry to a building as trespasser with the intention of assaulting an occupant. As to aggravated burglary, his Honour said:
In this case there are two elements of aggravation that are alleged to have existed, and either one would be enough, if the Crown has satisfied you on either one, then that is enough. The first element of aggravation alleged is that the accused had with them an offensive weapon … the second, or alternative element of aggravation alleged, is whether at the time he entered the house, a person was then present in the building, the accused knew that a person was present; or alternatively, was reckless as to whether or not a person was then present.
Counsel for the Crown submitted that the trial judge informed the jury that they were required to be unanimous in finding the particular which constituted aggravation. In our opinion, that was not so. The direction as to unanimity was limited to ‘your verdict’. It was not linked to proof of the element that converted burglary into aggravated burglary. The jury might have thought that they were all required to be satisfied that the applicants had committed an aggravated burglary, without realising that they all had to reach that conclusion by the same route.
In the present case, however, the deficiency in the trial judge’s charge did not result in a miscarriage of justice. The fact that the intruders knew that the unit was occupied was not in issue, for they clearly entered the unit with the expectation and intention of confronting Ms Benson. We think his Honour was correct when he said:
But there is no evidence really to contradict the victims here because it seems to me, it is a matter for you like all matters of fact, but I do not think it would be contentious to say, on any view, the intruders knew there was someone inside. The issue in this case really is, were the accused the intruders?
It is hardly surprising that no exception was taken with respect to the trial judge’s directions as to unanimity.
Trespass: honest belief of entitlement to enter premises
Ground 4 of the application for leave to appeal against conviction was that the trial judge erred in failing to properly direct the jury on the element of trespass in the count of aggravated burglary.
In the course of his charge his Honour said:
[T]he expression ‘as a trespasser’ is an adverbial phrase modifying the verb, ‘entered’. I assume you all knew that. It is the entry which must be trespassory. This means that the entry must be made without the consent, express or implied, of the occupier. In other words, that the accused must have had the character of a trespasser at the time he entered the premises, and as is the case of both accused, they say that they were not even there, there is not in fact any evidence contrary to the evidence of the complainant or the victim, and on that evidence the clear implication is, of course, that they entered as trespassers. They had gone to sleep and someone came in through the door uninvited, so they are trespassing. There is an element in this case, I am forced to say, of the defence being: ‘Well it wasn’t us but if it was we were invited in. Well, the Crown have to prove every element, so they had to prove that they were trespassers, so perhaps it is not as silly as it might sound at first, but it is important that you understand that the Crown had to prove that element as well as others beyond reasonable doubt. So perhaps it is not so silly after all.’
Counsel for the applicants submitted that the judge’s directions were deficient in that he failed to direct the jury that they were required to be satisfied that the applicants entered the house without any honest belief that they were entitled to do so. Counsel submitted that answers given by Secombe in his record of interview suggested that he had been invited into the unit in the past.
In the course of the record of interview, it was suggested to Secombe that he had been to Ms Benson’s unit by invitation on some 50 occasions, to which he answered: ‘No way … the only time that … I would ever go to her place, I’d go with someone that I know because I suffer with bad panic disorder … ‘ In our opinion, the record of interview simply did not permit the inference to be drawn that Secombe believed that he had a standing invitation to enter the unit. It is not necessary to canvas the question whether a person who enters property pursuant to permission becomes a trespasser because that person at the time of entry had an illegal purpose.[2] In the present case permission to enter the unit was not in issue.
[2]Barker v R (1983) 153 CLR 338; R v Taylor (2004) 10 VR 199.
A misdirection as to trespass?
The final ground of the application by Secombe for leave to appeal against conviction, ground 5, is that the trial judge erred in directing the jury that there was no evidence contrary to the evidence of the complainant that the applicants entered the unit as trespassers.
The direction was contained in the passage from the judge’s charge which we have quoted at paragraph [18] above.
Counsel for the applicant submitted that his Honour’s statement was incorrect in that in his record of interview Secombe said that he did not enter the unit. In our opinion, his Honour’s statement would not have been construed by the jury as a direction that there was no evidence that Secombe did not enter the unit on the night of 20 October 2005, but rather that there was no evidence that Secombe was invited to enter the unit. The impugned statement was made in the context of a direction explaining the requirement that trespass was constituted by entry to premises without the consent of the occupier. Counsel presumably saw the matter in this light, for he took no exception to this aspect of the charge.
Failure of accused to give evidence
A second complaint, raised by ground 5 of the conviction application, was that in the passage we have quoted the trial judge commented upon the failure of the applicant to give sworn evidence, in breach of provisions of s 399(3) of the Crimes Act 1958.
The section provides:
(3)The failure of any person charged with an offence to give sworn evidence shall not be made the subject of comment to the jury by either the prosecution, or by the presiding judge.
In our opinion, his Honour did no more than describe the state of the evidence without implying that the applicant could have given evidence and then failed to do so. It must be accepted that a jury will be aware of the right of an accused to give evidence in his own defence.[3] Nevertheless, the trial judge’s remarks were entirely general in that he spoke of an absence of any evidence without identifying the applicants as potential source of evidence. As King CJ said in R v Siebel,[4] speaking of the application of the section to a prosecutor:
It is lawful, in my opinion, for counsel for the prosecution to make the point to the jury that the only version of the facts before them is that proved by the prosecution witnesses and, if counsel for the defence has engaged in speculation as to alternative scenarios, that there is no evidence to support such alternative scenarios. Any comment, however, that the accused person has failed to contradict prosecution witnesses or to provide an alternative version of events, or that he has not given evidence, must, in my opinion, amount to a prohibited comment.[5]
[3]Bridge v R (1964) 118 CLR 600, 605 (Barwick CJ).
[4](1992) 57 SASR 558.
[5]Above, 103. See also R v Barron [1975] VR 496, 502 (Winneke CJ and Menhennitt J).
For the foregoing reasons, we would dismiss Secombe’s application for leave to appeal against conviction.
Butkovic’s conviction application
Butkovic made a very late application for an extension of time within which to lodge notice of application for leave to appeal against conviction. Nonetheless, the extension application was not opposed by counsel for the Crown in the event that the Court considered that there was ‘something in the identification point’. We consider, in the event, that the application to extend time should be granted.
In support of his conviction application, Butkovic relied upon two grounds in addition to three grounds raised by Secombe. The last-mentioned were the ground abandoned by both applicants before us, and grounds 2 and 5 as pursued by Secombe. We have rejected the argument on those grounds, and nothing more need be said about them.
The two grounds particularly pressed by counsel for Butkovic were that –
(1) The verdicts were unsafe and unsatisfactory; and
(2)The learned judge erred in his directions concerning the photo board ‘identification’ evidence by Aaron Harvey and Tanya Benson.
Identification
The two grounds were essentially argued as one. Counsel for the applicant submitted that, absent the purported identification evidence, there was no evidence upon which his client could have been found guilty to the criminal standard. The evidence of identification, he contended, was not evidence of identification at all: (1) both Ms Benson and Mr Harvey had been drug and alcohol-affected at the time of the home invasion; (2) both of them suffered from acquired brain injury; (3) neither of them had much opportunity to see the unknown man on the occasion of the incident. Their descriptions of the men, which were very vague, highlighted that fact. It was reflected also in their photo board identification of the applicants, which were of the ‘looks like him’ variety; (4) the photo board identification was the more doubtful because the applicant was only one of the men depicted wearing a ‘hoodie’. The jury had seen the point, as was to be discerned from a question which was asked after it had retired. Counsel contended also that two defective identifications were not given additional strength one by the other; or, put another way, one defective identification did not remedy the weaknesses in another defective identification.
Counsel submitted that the problems with the evidence relating to identification were heightened because the judge had misdirected the jury. His Honour had stated that Ms Benson and Harvey had identified the applicant. True it was that he had thereafter catalogued factors which may tend to show that identification evidence is unreliable; but he had failed to relate those factors to the circumstances of the case. In particular, his Honour had said nothing about a possible displacement effect. The problems with his Honour’s charge, counsel submitted, were not remedied because no relevant exception had been taken.
Counsel finally submitted that the transcript showed that trial counsel had lost his notebook before giving his final address, and had thus been impeded in prosecuting his client’s case. This ‘underscored the need for the trial judge to direct the jury by reference to the evidence and the final addresses’ (emphasis in original).
We have already referred briefly to the evidence given by Ms Benson and Harvey of their observation of the second offender on the night of the incident, and to their identification of the applicant on a photo board. We must now refer to the evidence of those witnesses in more detail.
In evidence in chief, Harvey, who stated that he was a prisoner and had acquired brain injury as the result of a motor vehicle accident years before, said that he was awakened by Secombe and Ms Benson screaming. He saw Secombe, whom he had known for several years, striking Ms Benson. There was another man present. He had not seen that man before. He, the witness, could not do anything to help Ms Benson because ‘there was someone else standing over me’. That was in the kitchen. He had been dragged there by the other man, who had a knife, and who slashed at him. He was also attacked by Secombe. The unknown man also pointed a pistol at him at one stage. They were then several feet apart.
The witness was questioned also about his photo board ‘identification’ of the applicant. There were these questions and answers:
On 28 October 2005 were you asked to look at a photo board, that is, a collection of photographs by the police? --- Yes.
…
Which police officer was it, do you recall? --- Female police officer.
Did you look at the photo board? --- Yes.
When you looked at it were you able to point out the person who was in the company of Craig Secombe in that unit on 20 October 2005? ---Yes, then I did but I wouldn’t - - -
I’m not worried about what you might or might not do now, but you pointed out the person that you say was in the unit with you on that night, didn’t you? --- Yes.
Did you have any difficulty pointing out that person at that time when you looked at the photo board? --- Yes, I did a bit.
Were you told by the police that you didn’t have to nominate anyone off the photo board, to be careful and look carefully at the board? --- Yes.
Is that what you did? --- Yes.
Cross-examined by counsel for Secombe, Harvey said that both he and Ms Benson had been drinking vodka and orange mixers. Later in the day, he had been drinking beer. He and Ms Benson had also used marijuana, after her daughter had gone to sleep. He was also taking a prescription drug for ‘impulse control’. He agreed that he should not have been drinking alcohol and using marijuana in conjunction with the prescription medication.
Cross-examined by counsel for the applicant, there were these questions and answers:
You said in your evidence-in-chief … that your first words were that, ‘you had some difficulty in identifying the other person’, is that right? --- Correct.
Would you say that the identification that you saw was more in the realm of you guessed that was the guy that you saw, when you had a look at the photo board? --- Could have been.
You have got to be distinct in this court, it could’ve is that what you’re saying? --- Could’ve been, yes.
What I’m suggesting to you is, would you agree that there is a danger that the person you identified on the photo board was a person that you may have seen with Craig on another occasion rather than this time? –-- Could’ve been, yes.
You would say that’s a distinct danger? --- Yes.
There was this re-examination:
You said in – or agreed with the proposition that you could have guessed when you saw the photo board; is there any reason why you agreed with that proposition?
[COUNSEL FOR APPLICANT]: Sorry, Your Honour, but what does that mean?
HIS HONOUR: I don’t know, there could be a reason; if it means something to do – no, I’ll allow that to stand. ‘Is there any reason?’
Any reason why you agreed with that proposition; that you could have guessed when you saw the photo board? --- No, it took a while for me to look through the board, look through it.
Ms Benson gave evidence that she was woken by being assaulted by Secombe. There was somebody else there. It was not someone she knew. She had never seen him before. All she could remember about the other man was that he had a hooded jumper, and that her impression was that he was large compared to her. As to his age, she had ‘no idea, around late 30s early 40s’.
The witness stated that she had problems with her memory, having been injured in a motor vehicle accident. Nonetheless, ‘when something bad happens it sort of sticks there a bit more than something that is not so serious’.
Concerning her photo board identification of the applicant, there were these questions and answers:
On 27 October 2005, did you go with police and look at a police photo board which contained a number of black and white images of about 12 men? --- Yes.
On that day, did you point out a photograph to the police of the person that you say was the person that was with Craig Secombe in your unit? --- Yes. I had to sort of get my hand and cup it – cup the picture to have it like the hood off the jacket sort of to give me a bit more indication.
In any event, you pointed out a photograph to the police? --- Yes.
Before being asked to look at the photos, were you told that you didn’t have to identify any particular person on this photo board but to look carefully and a similar warning to that? --- Probably, I can’t remember the photo.
Cross-examined by counsel for Secombe, the witness said that she had consumed alcohol and used marijuana on the day of the incident.
Cross-examined by counsel for the applicant, the witness agreed that in evidence in chief she had had ‘a fair bit of difficulty in seeing what he looked like’.
There were these questions and answers:
You just landed on this particular photo and you said, ‘That could be him’? –Yes, yes, I picked him
I think you said, ‘It could be him’, didn’t you? --- Yes, something like that, yes.
This was the second occasion upon which counsel for the applicant had misstated the earlier evidence of a witness concerning photo board identification.
Later, after having been warned by the learned trial judge not to ‘play fast and loose with the words’ there was this further cross-examination:
Did I put to you that you said, ‘That could be him?’ And you said, ‘Yes’? --- Yes, yes.
Is that the situation when you looked at this photo, just to go over it again? --- Yes.
You looked at the photo you and said, ‘That could be him’? --- There was a few times that I went back to that picture.
Back and forward and - - - ? --- Yes, and then that was the one that I picked out in the end.
Did you see any of the other faces that you knew? --- No
They didn’t appear to be to you - - -? --- I didn’t know anyone on the board at all.
How long have you been in Ballarat for? --- I’ve been here since ’86.
The other faces that you saw in the photo board you certainly wouldn’t connect with anyone you’ve ever met in Ballarat before? --- Not that I can recall, no, I can’t remember all the pictures but no.
I put to you that over the period of time of the people that you met recently: --- M’mm.
In a situation where Craig was, not that they’re necessarily being introduced through him, where Craig was - - -? ---Yes.
- - - you may be confused with a gentleman you saw in the company of Craig in the proceeding weeks, not necessarily with him but when you were - - -? --- Well, my recollection is that I’d never met Joe as it is, I don’t really know his name.
You have never been introduced to him had you? --- Not that I can recall, no.
What I’m suggesting to you is that you may have seen him in the proceeding weeks where Joe was? --- Where Craig was.
Sorry, where Craig was? --- Yes, no not that I can recall, no, I’d never met him.
When you say, ‘Not that I recall’ what do you mean by that? --- No.
As to the period during which the witness observed the second man, there was, inter alia, this cross-examination:
You only very briefly saw him? --- Yes.
What do you say he was wearing? --- The hooded jumper, yes.
Sorry? --- The hooded jumper.
The hooded jumper? --- Or whatever it was.
We’ve established probably that you’re drunk and stoned and that you were frightened because of what was happening to you with being frightened because of what was happening to you with being assaulted by someone else, you’d agree with that? --- Yes, a bit frightened, but.
And your view of this other man would have been just in passing, you weren’t paying him very much attention at all? --- No, I wasn’t.
You saw him probably for – can I guess and you tell me whether I’m wrong – for just a matter of seconds? --- It would have been longer than seconds.
But it would have been in darkness? --- All up a few minutes, yes.
But you weren’t really paying any attention to him, were you, because you --- ? --- Well, he wasn’t the one beating up on me.
No, well just what I put to you, you weren’t paying any attention to what he looked like? --- No.
Would you be saying to the jury that you really couldn’t see what he looked like on that night? --- Well, I obviously did see what he looked like.
Just have another sip and just tell me, you saw him for a few seconds? --- Yes. Longer than few seconds. Like I said they were at me house for about 15 minutes to half an hour, so.
There was this re-examination:
In terms of the person that you identified from the photo board as having been in your house on 20 October 2005, had you ever seen that person before 20 October? --- Not to my recollection, no.
Detective Senior Constable Jess gave evidence of showing Harvey a photo board containing 12 images on 28 October 2005:
Can you tell us essentially what the pro forma statement contains that you do read to persons before you show them the board? --- You just explain to them that you’re about to look at some images of some people that may or may not be involved, and basically they look at that and then they identify, if they identify, someone they’ll identify them.
Can you indicate whether or not they’re obliged to identify anyone? --- Yes we do.
What do you indicate to them? --- That they don’t have to identify anybody if they don’t want.
Did you give that standard warning to Mr Harvey on that day? --- I would have, yes.
Did you then show him a photo board? --- Yes
That photo board contained imagines of 12 persons? --- It would have, yes.
I wonder if you can have a look at this document please. Is that the photo board that you showed Mr Harvey on 28 October 2005? --- I believe this is the photo board, yes.
Did Mr Harvey identify a person as having of interest as being contained, or an image thereof, of No 11? ---Yes, he did.
…
Are you able to recall how long Mr Harvey looked at the photo board for? No.
The witness was not cross-examined by counsel for the applicant at all.
Detective Senior Constable Morris gave evidence of showing Ms Benson a photo board containing 12 images on 28 October 2005:
Did you administer the standard warning to Tanya Benson? --- Yes, I just read straight off the pro forma.
Did you then show her the photo board? --- I did.
I wonder if you could have a look at this document please? --- Thank you.
Is that the photo board that you showed Tanya Benson on 28 October of 2005? --- It is.
….
Did Ms Benson make an identification in respect of that photo board? --- She did.
Who did she point out as having been involved in the incident? --- She identified photograph no 7.
What is that a photograph of? --- It’s a photograph of the accused, Mr Butkovic.
That was a recent photo that you obtained for the purpose of having the photo board compiled, is that right? --- That’s correct, I’d taken the photograph the day before.
The witness also gave evidence that the applicant’s image on the two photo boards was in a different position. The same 12 photographs had been ‘jumbled from one board to the other’.
The witness was not cross-examined by counsel for the applicant to suggest that Ms Benson had experienced any apparent difficulty in picking out the applicant’s photograph.
We turn to counsel’s addresses. They began after the lunch break on the third day of the trial, the evidence having only begun on the morning of the second day.
Before the addresses began, counsel for the applicant told the jury that he had mislaid an exercise book which contained ‘the address, actually’.
The prosecutor drew attention to a number of matters which, in a particular case, might render identification uncertain. He accepted that Harvey had said that his photo board identification was ‘really only … a guess’. He said that if that had been the only evidence of identification, it would not have been ‘good enough’. A guess would not suffice. But there was, he submitted, other evidence. He referred to the fact that Harvey and Benson had selected the same photograph, despite the photos being jumbled; and he submitted that the nett effect of Ms Benson’s evidence was to identify the applicant. There was ‘the guess and the positive’.
There was also, the prosecutor submitted, a ‘circumstantial case’ that the other man was the applicant. Ms Michelle Scott had given evidence that on the evening of 20 October Secombe had been at her home in company of a man named Joe; and that the two of them had left together. There was no chance that ‘Joe’ was not the applicant.
Counsel for the applicant described Harvey as ‘a tough old prison bird … by the look of things’. He submitted that the prosecutor had said that both Harvey and Ms Benson were unreliable when it suited him. He contended that Ms Scott’s evidence about ‘Joe’ being in Secombe’s company got the Crown nowhere. He misstated the prosecutor when he asserted that the latter had said that the Crown ‘would not have a real case’, a ‘strong case’ without the evidence of Ms Scott and a police witness who had observed the applicant in Secombe’s motor vehicle about a week after the incident.
As for the photo board identifications, counsel submitted that two unreliable identifications did not make one good identification. He submitted also that Harvey had given evidence that he may have ‘confused the man [when he] saw him with a person that [he] may have seen in the recent past’; and that the witness had said he had ‘some difficulty’ in picking out the applicant. Ms Benson’s evidence was, he argued, unreliable. Her attention had been focused on the man who was assaulting her.
The learned trial judge gave general directions with respect to identification evidence which, in conventional language, warned the jury about the use of such evidence. He directed attention to particular dangers:
Mistakes can happen because identification evidence is potentially, but not always, but potentially very uncertain, it depends upon the witness having clearly observed the offender, often the circumstances in which they saw them will not be ideal, there might have been poor lighting or the witness may have been drunk or a long way apart or he was in a fog – there are any number of reasons you could work out why you need to know about these things and I am telling you that what you should do is consider the evidence about exactly how good a look and what circumstances existed that form the foundation for the identification in this case.
and
You should not assume that just because two different witnesses identify the same accused that it is necessarily reliable because a number of witnesses can be mistaken for the same reasons. So look carefully at the circumstances existing that surround that identification.
There is a big difference of course in those circumstances when you look at the identification evidence relating to both Secombe and Butkovic. The victims knew Secombe, they had seen him many times before, and that is a very compelling circumstance in determining whether that identification might be correct. They did not know Butkovic before that night. So there is one circumstance that is different between the two. So look independently at the circumstances existing.
Now look at some of the specific factors that you might think about and consider when you consider the identification evidence in this case. You have got to consider the circumstances in which the offender was observed, the characteristics of the witness who gave evidence, how well the witness knew the accused and the circumstances surrounding the identification of Butkovic with the use of a photo board.
You have got to examine each of these factors closely along with any other relevant factors in deciding whether to accept identification evidence. Now, look at some of these, and these are not exclusive but they might give you some idea of the ways in which you might go about this task. You might consider how long did the witness in each case have to identify the two people that they identified.
We have had various evidence about how long the incident took. It will be a matter for you but if it took ten minutes, five minutes, something of that order, then they would have had time to make their observation. It is obvious it would be important if a person only had a glimpse of another person or as to whether they were present in the same room for hours. That would be a relevant circumstance in determining whether you would accept the evidence of the identification. How far apart were they? Well, we haven’t got too many accurate statements of that. We have got the photographs which would help us if they were all within the same room and so the evidence on that might be looked at by you. The angle of observation, did the witness see the person’s face or only their back? Well, not a lot of evidence directly on it but no, I am not going to comment on what I think of the facts but you will consider what you make of the evidence and consider that.
What was the light like? A bit of cross-examination on that. There is some evidence on that. It was certainly night time, it was not bright but well, you heard the evidence and you will consider that. Did anything get in the way of the witness’s view such as passing people or traffic? Well, I do not think that is particularly relevant to this case but it is a matter for you.
Secondly, you have got to consider the witness who gave the identification evidence and you have got to ask yourselves some questions about that. Obviously that is Harvey and Ms Benson. You have got to assess the quality of that witness as an observer, how accurate they would be. Well, they had had a few drinks. You have got some evidence on that, including apparently, I have not seen this document yet, but I do not have to see it, you do; it has got a blood alcohol reading on it apparently, and you will look at that and you will consider the evidence. I do not know how strong cans of Vodka and orange juice are, or how big the cans are, but you have heard the evidence – and I do not propose finding out either, but you can pay regard to the evidence about that where the witness is stressed or fearful at the time of the observation – well, were they? They had the calming effects of what they had been consuming, but you will consider whether it was a frightening incident.
But, of course, you will also consider, some people under powers of stress and moments of extreme threat sometimes people’s powers of observation improve and they see a snapshot of what occurred, it sits in their mind like a photograph forever. Other people black out and have no idea of what happened, so you have got to look at the demeanour of the witnesses, which you can use them as an assessment of how good their evidence is, and make your own conclusions as to this sort of issue. Whether any other factors that might have affected it and so forth, your alcohol is there, there is fatigue or whatever else. If you think that would have affected them, take it into account.
and
You have got to consider how well the witness knew the accused. There is obviously a difference there, but it is a matter for me, it does not appear to be contentious that it seems both witnesses knew Secombe well, they had seen him well, they knew them in a social context. Each know him in a social context, that is Secombe, but that did not exist with Butkovic. That was a fresh observation, but nonetheless, that does not mean you should reject it, but just be careful about whether or not you accept it.
That is in the case of Butkovic. You have got to consider the way in which the accused was identified. See, did the accused give a description of the offender before identifying the accused? Well, I think it was Harvey, was it not, who gave the evidence that he was big and tall, solid build, and short hair at the sides and back. Michelle Scott, I apologise. There you go that is why judges do not get to deal with the facts, that is why we leave it to you, and you have got 12 minds to correct each other if you are wrong, but nonetheless, it was a description and the veracity of that will be taken into account.
You would look at whether or not there was a particularly memorable feature or characteristic of the accused in identifying him. I mean, the obvious example is something extreme like he was a hunchback. Well, none of that exists here, although look carefully at the photo board, if there is something about – that is characteristic of Butkovic, as against the others, then take that very much into account, but whether there is such a factor is entirely a matter for you. How long was there between the incident and the identification? Was it likely that the witness’ memory was affected by any delay where you have got the evidence, they were all pretty quickly after the event, but whether that was an excessive delay or not is a matter for you. Was the identification process conducted fairly? Well, this one was a photo board. I think the fairness of it probably, and you have been told by counsel to look at the photo board and see if you think it was fair.
and
There is also the warning sometimes given, the differences between photographs and real life – photographs are two dimensional, they do not show how a person moves, they do not show physical characteristics of movement and mannerisms, the range of facial expressions, body shape, many characteristics that can help you identify a person, so there is some deficiencies in the use of photographs.
The light in a photograph can be different from the light at the time, all of those matters, will just bear the fact that photographs add inherent limitations, but that is a matter for you and I think basically it is common sense, so I will just tell you to bear it in mind.
The only exception taken by counsel for the applicant was that his Honour had said that Harvey and Ms Benson did not know the applicant before that night. This was, he submitted, an endorsement of their evidence that they did see the applicant on that occasion.
The jury asked a question about the photo boards. The question and his Honour’s answer, were as follows:
‘Was Mr Butkovic instructed as to what clothing to wear in the photo-board?’ My answer is that I don’t know and I can’t get you an answer, and the reason I can’t is that you have to decide the case on the evidence that’s been led …
We deal first with the contention that the identification directions which the learned judge gave were deficient.
Counsel submitted that his Honour had not directed the jury that neither Harvey nor Benson had positively identified the applicant. Counsel relied upon his Honour’s comment that ‘the case against Butkovic is direct in the sense that he is identified on a photo board.’
The submission lacked force. His Honour simply noted that the prosecutor had been wrong in saying that the case against the applicant was circumstantial. He pointed out that there was direct evidence. Further, immediately following the passage relied upon by counsel, the judge added - ‘or he is not identified, you have heard the arguments about that.’ Moreover, later in his charge he referred many times to the potential unreliability of evidence of identification.
Counsel next submitted that the learned judge had not referred to the lack of confidence of Harvey and Ms Benson in their photo board identifications of the applicant. The submission assumed that the witnesses had lacked confidence in such identification. There was no evidence contemporaneous at the time of photo board identification to that effect. Further, notwithstanding the verbal gymnastics of trial counsel, I consider that Ms Benson did claim to have identified the applicant. In Harvey’s case, despite the prosecutor’s concession in final address, I also doubt the correctness of the assumption underlying the submission made in this Court. It was founded on cross-examination which misrepresented the witness’s evidence-in-chief and then misrepresented an answer given in cross-examination, the problem being compounded when the effect of the cross-examination was misstated by the prosecutor in re-examination. Fortunately, the trial was short, and the jury ought be taken to have attended to what the witness actually said.
As we said a moment ago, there was no evidence of uncertainty that was contemporaneous with the photo board identification. In that connection, we have already referred to the evidence of the police officers Jess and Morris, who were respectively present when Harvey and Ms Benson made their identifications. Neither of them was cross-examined to suggest that there had been any apparent hesitation or expressed uncertainty about the identifications which were made.
The next criticism made of the learned judge’s charge was that he did not relate the factors which may render an identification[6] unreliable to the circumstances of the case. He relied upon observations by Nettle JA in R v Dupas (No 3).[7] His main criticism was that the learned judge had said nothing about a possible displacement effect, which, he submitted, had been opened up by the evidence of Harvey and Ms Benson.
[6]Or similarity evidence.
[7][2009] VSCA 202, [4]-[10].
Generally speaking, in our opinion, counsel’s criticisms were unwarranted. We have set out much of what the learned judge said, and it shows why that is so. What his Honour said contrasts sharply with the charge discussed by Nettle JA in Dupas (No 3).[8]
[8]Ibid [5].
It is true, as counsel pointed out, that his Honour did not say anything about a possible displacement effect. If there had been evidence which as a matter of reality raised the issue (as was very obviously the case in Dupas (No 3)), his Honour’s failure to give such direction would have been an error – because, as was said in Domican v The Queen,[9] the trial judge should isolate and identify for the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.
[9](1992) 173 CLR 555, 562 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ).
But we consider that the supposed issue was more imagined than real. Both Harvey and Ms Benson said that they had not seen the second attacker before that night. In cross-examination by counsel for the applicant, Harvey said that he had seen Secombe on earlier occasions in company with other people; but not with the applicant. He did agree, having said that there ‘could’ve been’ a danger that the man whom he identified was a person he had seen with Secombe on another occasion, that this was a ‘distinct danger’. But that answer was opposed to the thrust of his relevant evidence. In cross-examination by counsel for the applicant, Ms Benson also stated that she had seen Secombe in company with other people. Repeatedly, she did not accept that the man whose photograph she identified was one such person.
Counsel then focused upon what the learned judge said about a physical description of the man ‘Joe’ whom Ms Scott had seen in company with Secombe. The judge initially attributed the description to Harvey. He was corrected. He then said ‘it was a description and the voracity (sic) of that will be taken into account’.
This short passage in the charge was somewhat confused. What is clear is that the initial error was corrected. The jury was not left thinking that Harvey had given a physical description of his attacker which fitted the man in the dock. Beyond that, Ms Scott’s description of ‘Joe’ was potentially relevant, for it bore upon the Crown case that the applicant had been in Secombe’s company not long before the home invasion.
Counsel’s next submission addressed what the learned judge said about the photo board identification. He submitted that it fell short of drawing attention to the judicially recognised dangers of identification of that kind. He relied upon passages in the judgments in Pitkin v R[10] and R v Campbell.[11]
[10](1995) 130 ALR 35, 38-9 (‘Pitkin’).
[11](2007) A Crim R 79, [21]-[22].
In Pitkin, where the question was whether the convictions were unsafe and unsatisfactory, the only ‘identification’ witness never went further than to say, on seeing photographs of the applicant, that ‘this looks like the person that I’ve seen take the lady’s handbag’. The Crown case rested on the purported identification. In terms, it was not an identification. The Court said that –
If words which are reasonably capable of being understood as consistent with an absence of positive identification are used without further explanation or elucidation, there is no question of impugning the language of the witness in denying the independent efficacy of the words as positive identification. All that is involved in such a denial is the application of the fundamental principle that proof of guilt must be beyond reasonable doubt.[12]
[12](1995) 130 ALR 35, 39 (Deane, Toohey and McHugh JJ).
In R v Campbell[13] it was said that authorities support the proposition that ordinarily a trial judge should give the jury appropriately tailored warnings of the potential dangers of photo board identification.[14] In that case, it was concluded that the dangers had been sufficiently conveyed by a Domican warning.[15]
[13](2007) 175 A Crim R 79.
[14]Ibid [21]–[22].
[15]Ibid [2] (Nettle JA), [22]–[24] (Ashley JA, Kaye AJA).
For reasons previously discussed, we do not consider that, sensibly understood, the evidence of Ms Benson or Harvey was evidence of similarity only. There was no evidence that, at the time when the purported identification was made either of the witnesses expressed uncertainty. Nor did Ms Benson retreat from that position in her evidence. The cross-examination of Harvey, much relied upon by counsel for the applicant, was unsatisfactory for the reasons which we have indicated. We further consider that, by a combination of the Domican warning and particular reference to potential problems of photo board ‘identification’, his Honour sufficiently addressed the dangers of that kind of identification.
We turn to the ground which alleges that the conviction was unsafe and unsatisfactory. The principles according to which that ground is to be considered are not in doubt, and we will not repeat them.
The gist of the submissions for the applicant was that the purported identification was of the Pitkin kind, and could not sustain the convictions, whilst the other evidence – that is, particularly of Ms Scott – did not take the Crown case beyond speculation.
We do not accept the characterisation of Ms Benson’s evidence which was advanced for the applicant. We consider that it stood as evidence of identification sufficient to enable the applicant to be safely convicted. It did not require the addition of the ‘coincidence’ of what, according to the contention for the applicant (which we have not accepted), was the similarity-only photo board identification of the applicant by Harvey in order to have that quality.[16] The suggestion by counsel for the applicant that Ms Benson’s photo board identification was doubtful because the applicant had been the only man wearing a hooded jumper – counsel alluded to the jury’s question in this connection – made two assumptions. Neither of them was explored in the evidence.
[16]As to the situation where there is more than one doubtful identification, see R v Burchielli [1981] VR 611, 616 (Young CJ and McInerney J); R v Dickson [1983] 1 VR 227, 234 and R vHaidley and Alford [1984] VR 229, 231 (Young CJ), 247-248 (Kaye J), 251-252 (Brooking JA). The state of the law, as we apprehend it, does not deny that identifications which are defective nonetheless form part of a body of evidence upon which the Crown may rely to establish guilt.
In the event, we consider that Butkovic’s conviction application should be refused.
Secombe - sentence
The grounds of the application by Secombe for leave to appeal against sentence are as follows:
1.The individual sentences, the total effective sentence and the date of eligibility for release upon parole are manifestly excessive.
2.The learned sentencing judge erred in failing to fix a non-parole period but rather fixing a date upon which the applicant was eligible for release on parole.
Secombe is now 40 years’ old. He has some 104 prior convictions from 19 court appearances, including convictions for theft, burglary, assault, assault with a weapon, recklessly causing serious injury, driving offences and drug offences.
The applicant’s father was Welsh, his mother Aboriginal. The applicant’s father died when he was 12 or 13 years’ old and in year 8 at high school. Secombe left school upon his father’s death and commenced an apprenticeship as an upholsterer. After four years he embarked on a plumbing apprenticeship, which he completed. The applicant worked for the Department of Conservation, Forests and Lands in Horsham and in the construction industry.
In the course of the plea two reports by psychologists were tendered. The first report expressed the opinion that the applicant did not have any anti-social personality disorders but suffered adjustment problems due to alcohol and drug abuse. The second psychologist expressed the opinion that Secombe suffered from a post traumatic stress disorder combined with autonomic hyper-arousal. The psychologist said that Secombe’s ‘test scores also indicate some severe psychological issues and possibly an anxiety disorder diagnosis along with a number of other personality problems, which have most probably been exacerbated by his use of speed and his alcoholism.’
Pursuant to ground 1 counsel for Secombe relied upon the following mitigating factors: the applicant had been in custody since 16 March 2007 and had been in custody in 2006 in relation to subsequent matters, so that the delay in proceeding with the matter meant he lost the benefit of concurrency with other sentences; the applicant had a good work record; the applicant had undergone a number of rehabilitative courses in custody; the applicant now had good contact with his children; the applicant had a difficult background; and suffered from the disabilities identified by the psychologists.
Matters to be weighed in the balance were the gravity of a frightening home invasion with a knife and a gun in the presence of a young child, lack of remorse, prior convictions for offences of violence and a finding by the sentencing judge that there was not ‘any great likelihood’ of the applicant’s eventual rehabilitation.
In our opinion, it cannot be said that the individual sentences, the total effective sentence and the non-parole period could not have been imposed in the proper exercise of the sentencing judge’s discretion.
As to the second ground, a like argument was dismissed by the Court of Appeal in R v Droste.[17] The Court held that the specification of a date was to be seen as a means of fixing a calculable non-parole period rather than fixing a parole eligibility date. This method of fixing a non-parole period did not invalidate the sentence, but the Court said:
The method is unusual and the potential for invalidity, confusion or complexity renders it generally undesirable.
[17][2009] VSCA 102.
We would refuse the application by Secombe for leave to appeal against sentence.
Butkovic – Sentence
Butkovic sought leave to appeal against sentence on the following grounds:
1.The individual sentences of imprisonment, the total effective sentence and the non-parole period are manifestly excessive.
2.The learned sentencing judge erred by failing to have any or any adequate regard to the implications of the evidence as to the applicant’s impaired mental functioning.
3.The learned sentencing judge erred in determining that the applicant’s level of culpability for the offending was approximately the same as that of the co-accused Secombe.
Ground 2 was argued first.
The learned sentencing judge had before him the reports of Djerriwarrh Health Service dated 25 September 2007, Dr Danny Sullivan dated 5 June 2007 and Dr Kevin Ong dated 1 November 2007.
The first of the reports showed that the applicant had attended a Men’s Behavioural Change Program Assessment in October 2005 and had attended educational sessions in the period January to March 2007 and August and September 2007. The author of the report stated that the applicant had not met ‘the requirements of the Educational phase of the program’, and that he had been encouraged to participate further so as to ‘reflect on his abusive behaviour’. The report also referred to the applicant’s ‘problematic alcohol and cannabis use’.
Dr Sullivan’s report was obtained in connection with the question whether the applicant was fit to stand trial. In addition to interviewing the applicant,[18] the doctor had access to records of the Mid West Area Mental Health Service and Grampians Psychiatric Services. He noted the following:
[16]His treatment plan from Midwest Area Mental Health Service (under s 19A of the Mental Health Act 1986) dated 10 August 2006 documented diagnoses of schizophrenia and antisocial personality disorder. A clinical review document noted that Mr Butkovic first presented in 1992 at Mont Park and was subsequently transferred to Aradale Forensic Unit. Documentation relating to 1990’s admissions was not available.
[17]Previous contact with Grampians Psychiatric Services related to an admission after he destroyed his unit in Daylesford while believing that it was bugged and the tiles contained asbestos. He had ceased methadone three weeks before this incident. He was psychotic and aggressive, eventually requiring transfer to the Austin hospital. Information in this treatment summary suggested a past history of amphetamine use in addition to heroin and cannabis. He settled on dept medication after admission and intensive treatment. A further admission occurred with dose reduction and cannabis use, after which he was discharged on a Community Treatment Order (CTO) to Mid West Area Mental Health Service.
[18]On 8 August 2006 his CTO was revoked due to poor attendance at appointments and difficulty in making contact. After administration of medication and development of a treatment plan, the CTO was renewed.
[18]The interview took place in July 2006. Dr Sullivan communicated with the applicant again, by telephone, in May 2007.
The history given by the applicant included the following:
He reported that he had been diagnosed with psychosis, characterised by derogatory auditory hallucinations. He had been admitted to Ballarat Base Hospital three times in the last couple of years, for ‘a nervous breakdown.’ [He] could not characterise these admissions any further. [He] told me of previous deliberate self-harm, once attempting to hang himself, and on occasion lacerating his arms.
At the time of interview in July 2006, the applicant was receiving a fortnightly injection of an antipsychotic drug.
Dr Sullivan concluded, after interviewing the applicant, and noting the medical records, that –
[22]Mr Butkovic has had previous contact with psychiatric services, and has attracted diagnoses of antisocial personality disorder, paranoid schizophrenia and polysubstance abuse. He is maintained on a Community Treatment order under the Mental Health Act 1986, and is prescribed depot antipsychotic medication.
[23]The diagnosis of polysubstance abuse is clear: he describes past opiate dependence and alcohol abuse, ongoing cannabis abuse; he reported limited amphetamine abuse although the materials suggest that this has been more significant.
…
[25]He has documented evidence of past psychotic symptoms. It is not clear whether these relate to substance abuse or methadone withdrawal, or to an underlying psychotic illness. A diagnosis of schizophrenia would be confirmed by the recurrence of hallucinations or delusions in the documented absence of substance use (verified by urine drug screens) for some months. However it is not clear that his previous psychotic episodes relate to paranoid schizophrenia rather than a vulnerability to the psychosis induced by substance use. On the materials available to me – which only refer to the last few years – he has been stable over the last 18 months and his only psychiatric contact has been related to provision of depot medication, and recall to hospital on one occasion when he was not compliant with treatment. Nevertheless, given his ongoing cannabis use, it would seem wise to continue Mr Butkovic on antipsychotic medication.
[26]Mr Butkovic has a clear understanding of legal process, and his current mental state is stable: having regard to the criteria at s6 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, I believe that he is fit to be tried, currently capable of meaningful participation in a trial, and able to interact sensibly with his legal representatives.
[27]Mr Butkovic denies participation in the aggravated burglaries. There is no evidence before me that suggests that, if the facts are as alleged, he was at the time mentally impaired. In considering the criteria at s20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, there is no occurrent (sic) information which suggests that Mr Butkovic was psychiatrically unwell at the time; or that (if the facts are as alleged) Mr Butkovic as the alleged assailant was affected by delusions or hallucinations which might have impeded his awareness of the nature or quality of the conduct or its wrongfulness.
Counsel submitted, on the plea, that –
When these offences occurred he really hit the wall psychiatrically speaking, and spent no less I think than three occasions as a patient in the Ballarat Hospital. This is around about the time of 2005 when he was living in Daylesford’.
and
At the time of these offences he was in a very, very bad way …
Counsel then spoke about obtaining ‘the records from the Ballarat Hospital’. He speculated that ‘it may well be that at the time of these offences he was … under some sort of incapacity’. But he was not mounting an argument that such was the case.
Counsel relied upon the report from Djerriwarrh to contend that the applicant was taking steps to change his ways.
The learned judge asked counsel whether he wished to seek an adjournment so that the Ballarat Hospital records could be subpoenaed. Counsel did not take up the suggestion. Rather, he pressed that the Court obtain a pre-sentence psychiatric report; and the judge agreed to do so.
The report which was obtained was the report of Dr Ong, a senior psychiatric registrar with Forensicare. That doctor opined that the applicant still had low grade psychotic symptoms and that he should remain on medication. The report did not address the applicant’s psychiatric state at the time of offending.
Having read the report, the judge observed that ‘while both (the applicant and Secombe) have got their psychological and/or psychiatric problems, none of it really goes to mitigation, does it?’ Counsel responded ‘I’m not actually going to the problem, or the issue really about mitigation’. He argued that the applicant’s mental state at time of offending went ‘to the relative culpability’ of his client and Secombe.
A little later, counsel put a different proposition. He submitted, in response to the judge’s observation that he could not see the position getting any better overall, that his client had been on a ‘cocktail’ of drugs at the time of offending, but had now desisted from drug-taking. This went to the prospect of rehabilitation.
In his sentencing remarks and with respect to the applicant’s psychiatric history, the judge noted receipt of the medical reports. He stated that ‘I have read all those documents and take the contents very much into account’. He did not say for what purpose or purposes.
Counsel for the applicant submitted in this Court that the applicant’s psychiatric illness ‘should have had some impact on his level of moral culpability and the weight to be accorded to general and specific deterrence’. He further submitted that the ‘history of [his] illness also meant that imprisonment would weigh more heavily upon him than a person in good health’.
Counsel for the Crown responded, citing R v Zander,[19] that R v Verdins[20] does not stand for the proposition that the mere co-existence of mental illness and offending leads to the mental illness becoming a circumstance of mitigation; and that ordinarily a judge is not required to consider possible effects of psychological or psychiatric disability beyond those raised by counsel.[21] He submitted that the applicant’s counsel on the plea had made a number of assertions about the existence and effect of mental illness that were not supported by such medical evidence as was adduced. In all, counsel submitted, there was no factual foundation for the application of Verdins, and counsel had not identified how Verdins should apply in the particular case.
[19][2009] VSCA 10, [29] (Dodds-Streeton JA).
[20](2007) 16 VR 269.
[21]Citing Zander [2009] VSCA 10, [36] (Nettle JA).
In our opinion, the submissions advanced for the Crown should be accepted. As we have attempted to show, counsel for the applicant below made a number of large statements as to his client’s mental condition at time of offending which were not supported by the reports which did go into evidence. Although addressed to a different topic, Dr Sullivan’s report did not support the contention that the applicant’s mental state bore upon him having offended in October 2005. Further, counsel did not take up the opportunity to have the Ballarat Hospital records subpoenaed. The applicant could not complain that the judge may have been, to an extent, left in the dark.
We should also say that, save for referring to relative mental culpability, counsel below did not address argument as to how Verdins might apply in the particular case. He made no submission about the impact of his client’s mental illness[22] upon considerations of specific and general deterrence. Nor did he make a submission that his client’s time in gaol would be harder than normal because of mental illness.
[22]Even if one assumed that it played some part in the offending.
Ground 2, then, should be rejected.
Counsel for the applicant next argued ground 3. He submitted that his Honour should have found that the applicant’s culpability for the offending was less than that of Secombe by reason of (1) the applicant’s vulnerability on account of his psychiatric illness; (2) the fact that it was Secombe’s idea to commit the offences; (3) the fact that Secombe had recruited the applicant to assist; and (4) Secombe having played a more active role in the assaults.
Counsel for the Crown responded that it had been the learned sentencing judge who raised the issue of relative culpability, that counsel for the Crown and Secombe had contended for equal culpability, and that counsel for the applicant had relied upon his client’s alleged mental impairment to distinguish between the offenders. He submitted that the applicant had been a willing and enthusiastic ally in the commission of the offences, and that it had been open to the judge to balance out different factors so as to arrive at a conclusion of equal culpability.
As counsel for the Crown noted, the issue of relative culpability was first raised by the learned judge; and counsel for the applicant alone argued that culpability was not equal. In that context, counsel submitted that his client’s alleged mental impairment at the time of offending was relevant. He put it this way:
… He was, at that stage, going in and out of Ballarat Hospital for schizophrenic symptoms when these offences occurred, and when these offences occurred, it was very much Mr Secombe’s issues that happened. There’s no evidence of Mr Butkovic having any contact whatsoever with anybody else, any other player in this tawdry little trial, and there’s no evidence to say that he, that Mr Butkovic, had any connection with the victims, other than through Mr Secombe. Mr Secombe has brought along Mr Butkovic. Mr Secombe, in my submission, has the greater culpability in the role.
But then the debate between his Honour and counsel changed tack. It focused on whose idea the house invasion had been, and how the roles of the offenders had differed.
In his sentencing remarks, the judge relevantly said this:
I sentence you both as principal offenders. The commission of the crime was probably your idea, Seacombe (sic) but when one considers the parts you each played in this disturbing incident, it seems to me that the relative culpability of each of you is approximately equal to that of the other. This was the subject of some discussion during the plea and I stand by what I said at that time.
There is no doubt what his Honour means by his reference to ‘the parts you each played’. In the course of the plea he had accepted that the home invasion was Secombe’s idea, that he had ‘recruited’ the applicant, and that he had been the main assailant. On the other hand, the applicant had provided ‘some muscle’, had been armed with two weapons, had used them to put a victim in fear, and had done some injury with one of them.
The parts played by the two men were different; Secombe was the person who formed the idea of the home invasion, recruited the applicant, and was the main assailant. Nonetheless, recruited though he was, the applicant apparently participated willingly in the pre-planned home invasion. He went armed, he used the weapons to put a victim in fear, and one of them to do injury. Further, both he and Secombe were repeat violent offenders.
In our opinion, in the circumstances described, the judge was entitled to conclude that the applicant’s culpability was approximately equal to that of Secombe.
This should be added. So far as counsel for the applicant relied upon the applicant’s alleged mental impairment at time of offending as a basis for making a distinction as to relative culpability, the evidence, as we have already said, did not support the premise.
Ground 3, then, should be rejected.
Ground 1 was last argued. Counsel for the applicant relied particularly upon the matters advanced in support of grounds 2 and 3 in submitting that the individual sentences, total effective sentences and non-parole period were manifestly excessive. He additionally relied upon the fact that the victims suffered only slight injuries, and that no victim impact statements had been made.
We consider that this ground also should be rejected. Neither of grounds 2 or 3 was made out on the facts. The victims’ injuries were slight, but that was only a fragment of the circumstances which bore upon sentencing. The absence of victim impact statements was neutral. We should not speculate why statements of that kind were not provided.
In the event, Butkovic’s application for leave to appeal against conviction should be refused.
Orders
For the foregoing reasons we grant leave to Butkovic to extend time to lodge notice of appeal against conviction to 25 February 2010, but refuse leave to appeal against each of the convictions and sentences.
HABERSBERGER AJA:
I agree with Buchanan and Ashley JJA, for the reasons given by their Honours, that leave to appeal against each of the convictions and each of the sentences should be refused.
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