Wilcox v Regina
[2011] NSWCCA 42
•22 March 2011
Court of Criminal Appeal
New South Wales
Case Title: WILCOX v REGINA Medium Neutral Citation: [2011] NSWCCA 42 Hearing Date(s): Friday 8 October 2010 Decision Date: 22 March 2011 Jurisdiction: Before: McClellan CJ at CL at 1
Hall J at 2
Barr AJ at 3Decision: (1) Appeal against convictions dismissed.
(2) Grant leave to appeal against the sentences and allow the appeal in part.
(3) Vary the sentence for the Smiths Lakes offence so that it will be taken to have commenced on 17 May 2008 and will expire on 16 May 2014.
(4) Quash the sentence for the Tahmoor offence and, taking into account the Nambucca Heads offence, set a non-parole period of 8 years, commencing on 17 May 2010 and expiring on 16 May 2018, and a balance of term of 4 years, expiring on 16 May 2022.
(5) Declare that the appellant will become eligible for parole on 16 May 2018.Catchwords: CRIMINAL LAW - appeal against conviction - multiple armed robberies - coincidence evidence - evidence correctly set out in notice - conflicting witness identification evidence - jury obliged to consider that evidence - no injustice in admitting that evidence - whether there was a rational view consistent with innocence for the jury to consider - no risk of unfair prejudice or miscarriage of justice - conviction appeal dismissed
Sentence appeal - trial judge applied standard non-parole period to s.97(2) offences - question is whether sentences excessive - trial judge must consider objective seriousness - care to be taken when considering Judicial Commission Statistics - maximum sentence determined by Parliament, not statistics - analysis of comparative sentences - sentence was impermissibly high - adjustment through accumulationLegislation Cited: Crimes Act 1990
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Evidence Act 1995Cases Cited: Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194
R v Hayes [2001] NSWCCA 410
R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
R v Vuni [2006] NSWCCA 171
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
R v Zhang [2005] NSWCCA 437Texts Cited: Category: Principal judgment Parties: David Richard WILCOX v REGINA
Representation - Counsel: Counsel:
C: V Lydiard
A: In Person (for conviction appeal)
A: P Strickland SC (for severity appeal)- Solicitors: Solicitors:
C: S Kavanagh
A: S E O'Connor (for severity appeal)File number(s): 2006/9624 Publication Restriction:
Judgment
McCLELLAN CJ at CL: I agree with Barr AJ.
HALL J: I agree with Barr AJ.
BARR AJ: The appellant, David Richard Wilcox, appeals against convictions entered following his trial by a jury in the District Court of New South Wales sitting at Newcastle. He also seeks leave to appeal against the resulting sentences.
The offences found to have been committed by the appellant may be summarised as follows. At about 11:55pm on 7 October 2004 two men wearing balaclavas and long dark clothing entered the Tahmoor Inn as it was about to close. One man was large and carried a sawn-off rifle. The other was of slight build and carried a pistol. There were four staff members present and the two robbers ordered them to lie on the floor on their stomachs. They obeyed and the robbers tied their thumbs together with cable ties. As they did this, the smaller man said, "I learnt to do this in the war". He demanded the keys to the safe and they were produced. He took the manager, Mr Maddrell, into the office, gained access to the safe and stole money. While that was going on the larger man stood guard over the other staff members. During the robbery a taxi driver arrived to collect one of the staff members. The larger man pointed the shortened rifle at him and told him to do the right thing so that no one would get hurt. He tied the driver's thumbs behind his back by the use of the cable ties. He told the driver to get onto the floor but the driver, who was a large man, asked to be allowed to sit instead, so the robber obtained a milk crate for the taxi driver to sit on. Having emptied the safe, the smaller robber took the manager to the poker machines, intending to take money from them as well, but the larger man said that they were running out of time. The smaller man struck Mr Maddrell across the bridge of his nose with the pistol and took him back to the presence of the other disabled staff members. He tore the telephone from the wall. After warning them not to move for ten minutes the two robbers ran away. They took $27,982.50.
At about 11:00pm on 28 October 2004 two men entered the Dungog RSL Club. Both wore dark balaclavas and dark full length clothing. One was a larger man and carried a shortened rifle. The other was of smaller build and carried a pistol. Two persons were present in the club, one a staff member and the other a patron. The robbers threatened them with the firearms. The larger man tied the patron's thumbs together behind her back, using cable ties. The smaller man ordered the staff member to produce the keys to the office and the safes, and he did so. So the safes were opened and the contents removed. When that had been done the smaller man tied the staff member's thumbs together behind his back, and as he did so said that that was a little trick he had learnt in the forces. He tore the telephone from the wall. The two ordered their prisoners not to move for ten minutes and ran away. The proceeds of the robbery amounted to $33,332.93.
It was the Crown case that the larger of the two robbers, the one with the sawn-off rifle, was the appellant and that the smaller man, the one with the pistol, was a colleague of his, Ric Anson. Anson was found dead on 11 January 2005. The circumstances of his death are not material to this appeal.
The conviction appeal
The Crown presented an indictment containing two charges that may be summarised thus:
(1)On or about 7 October 2004 at Tahmoor, New South Wales, when armed with a dangerous weapon, the appellant robbed David Garry Maddrell of money at the property of Tahmoor Inn; and
(2)On 28 October 2004 at Dungog, New South Wales, when armed with a dangerous weapon, the appellant robbed Stephen Ronald Turner of money and cigarettes at the property of Dungog RSL club.
Before the trial, the Crown served on the defence a notice under s 98 Evidence Act 1995 of its intention to adduce coincidence evidence in accordance with s 98(1). Relevantly, the notice contained these passages:
...
2. The Prosecution will assert (David Richard Wilcox) was involved in two robberies, firstly, on 7 October 2004 at the Tahmoor Inn and secondly, on 28 October 2004 at the Dungog Memorial RSL club. The Crown will seek to have evidence of each robbery admitted as evidence in relation to the other.
3. The Crown will submit to the Court the evidence in support of the asserted coincidence evidence shows of the perpetrators of both robberies:
In each instance two men entered premises in a small country town with few staff and no sophisticated security devices at closing time on a Thursday night.
In each instance the two men were of like description, that is, one large man, one slimmer man.
In each instance the slimmer man carried a pistol and the large man a shortened rifle.
The two men wore dark balaclavas. They wore full length dark clothing.
The two men used cable ties to secure the arms of the victims behind their backs by the thumbs. Further, the slimmer man was heard to say in both cases in conjunction with the securing of victims, words to the effect of "I learnt to do this in the war/forces"
In both cases the slimmer man sought access by means of the manager/bar manager (keyholder) to the safes, tills and poker machines.
In both cases before leaving the slimmer man tore the telephone from the wall.
In both cases before leaving the victims were directed not to move for a stipulated period.
4. The Crown will submit to Court the evidence illustrates a pattern of conduct by the person which establishes a distinctive system, pattern and/or modus operandi.
...
The defence challenged the Crown's reliance on coincidence evidence and moved the court to sever the counts in the indictment. On 15 May 2007, Coolahan DCJ gave judgment, allowing the Crown to adduce coincidence evidence and refusing the application for separate trials.
The coincidence rule is set out in s 98 Evidence Act as follows:
98 The coincidence rule
(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless:
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
Note: One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding.
Relevantly s 101 Evidence Act provides:
101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
The trial judge expressed himself satisfied that the evidence passed the Evidence Act test in these words:
...there is, in my view, a striking similarity in the way in which both offences were committed. Further, there is evidence to link the accused firmly to the commission of the Tahmoor Inn robbery; I have already outlined that evidence.
Because of the striking similarities, I am of the view that the evidence is properly admissible as coincidence evidence in relation to both counts. In deciding to admit the evidence, I have taken into account section 101(2) of the Act. In my view, the probative value of the evidence substantially outweighs any prejudicial effect that it may have upon the accused.
In this court the appellant represented himself in the conviction appeal. He presented his submissions in writing and relied for the most part on arguments that had been put by his counsel before the trial judge.
There is one ground of appeal, the effect of which is that the admission of coincidence evidence occasioned a miscarriage of justice.
Before dealing with the argument put on appeal, it is necessary to say more about the evidence. The Crown case on both robberies was circumstantial.
The Tahmoor robbery
Evidence was adduced of a telephone conversation or conversations that took place between the appellant and his partner, Ms Mandy Sutton, on 6 May 2006, which ran as follows. DW means the appellant and Ms Sutton:
DW - DNA is inconclusive... you know what I mean... (IND) .. some other bloke wearing me clothes..... you know.. I though...IND.. all they are hoping on you hanging on you....they want you what happened at the you know... they want you saying it was me there. So it all hinges 'round...(IND)
TR70
DW - if you say that you are scattered out... you can't remember what you've said
DW - about whether what if said or whatever
MS - I'm not saying anybody said anything or whatever
DW - Hey?
MS - I'm not saying that I'd say anything or whatever or anybody said anything.
DW - Well what they ... (IND)
MS - I reck' I reckon... I reckon Rick"s missus that he was with, is, is the person that's fucken said shit to 'em, that she's told them everything. 'Cause they said, oh we've got like It, like someone who is involved in like sort of your situation in which would be like her probably. If they threatened her or something or offered her money or something, she fucken take it...
DW... it"s not work thinking about it...they are just coming to the end of the fucken.. they are just throw everything they can....
TR47
DW this is the their last straw... last straw.. he said to me today... he goes to me today... we put a IND out... someone rang through and said it was you, and said it was me... I said, oh yeah...I said, so fucken any cunt can ring up and say it was me... Could be dirty on me...could be fucken whatever.. he was like... he was like I wouldn't even fucken... mumble.. I want to formally interview ya, want to put you in a line up, we want to DNA test ya and it I was like..... he sort of wanted to do it then... They'll probably DNA me... right... that'll take a little while to come back you know what I mean,
TR 48
DW - And we'll just say... listen.. Me and me missus split up,, fucken I took all me clothes to Ricks. He borrowed me clothes and he had a mate staing saying with him. He was a big fucken Islander.... the cunt wore my clothes. I'll say I left all my clothes... you know what I mean... someone wore me clothes....
MS... mmmm
MS.. the other day.. he goes, we've got... we've all we need to can him... you could just be the icing on the cake, that would be sweet [laughing]. (14 Enhanced)
DW.. They need you just to keep the investigation open....
MS .. Hey?
DW.. They need you just to keep the investigation open....
TR 52
DW... thing is.. we know that you and Rick were running around doing stick ups together. We just want to know if you did the Dungog...
fucken...
MS... was he Aussie...
DW... mmm.... IND.. MUMBLES.
MS was that the other week?
DW... Today
MS... boy's been machine gunned
DW... mumbles... buy a Gun..... you know what I mean.... It goes like this....yeah, I've got some legal advice... I'll just tell them to charge me or let me go.. if they don't' charge me then they'll let me go.. What I'll say, is one thing me barrister told me to ask me was, how do you propose to do a line up when um.. apparently the people were wearing balaclava's as stated in the paper. So you'll put a balaclava on.. line me up wearing a balaclava on eh?
Although the conversation concentrated on the Dungog robbery it dealt also with cable ties and so was relevant to the Tahmoor robbery. The appellant gave evidence at trial and was asked about the conversation. He agreed that the "Rick" referred to was Anson. He said that he was formulating a lie to tell the police in case they obtained a sample of his DNA and falsely accused him.
The Crown called Ms Sutton and asked her about induced interviews she had had with investigating police officers on 2 and 15 June 2006. Ms Sutton agreed that on 9 February 2007 she had pleaded guilty to a charge of being an accessory after the fact of assault with intent to rob with a dangerous weapon. That offence took place at Smiths Lakes. She agreed that at her sentence hearing she had signed an undertaking to give evidence in the prosecution of the appellant on the Tahmoor and Dungog matters. Her evidence was to be in accordance with the answers she gave in the induced interviews. She accepted that she had received a corresponding benefit by reduction of her sentence.
It was the Crown case that Ms Sutton had told the truth in the answers she had given in the interviews. The transcript of what was said did not go into evidence but the Crown obtained leave to cross-examine Ms Sutton and put the text to her. There were these questions and answers. The references to "David" were to the appellant and those to "Carol" were to Carol Puru, the appellant's cousin:
Q. So, Carol said that. "She said, 'How - how about that taxi driver' and something about having to get it''--
A. Well, really, Carol couldn't have said it because she's just gotten out of gaol in Queensland, so--
Q. How about you just listen to what I'm reading? Your answer, "She said 'How - how about that taxi driver' and something about having to get it for and just sit on because he was so fat or something." "Carol said that?" Answer, "Yeah." Question, "What did Dave say?" Answer, "He was just laughing." Question, "he was just laughing?" "Yeah." Over the page, question 382, "Okay, so the next thing in my notes, they laugh about how scared the people were. Dave told me one job where a taxi driver turned up and was tooting his horn and then he came, he was scared, Dave was laughing, is that correct?" No reply. Question, "That's what you - that's the one, that's the one you just told me about?" Answer, "Yeah." Now, that's what you said, didn't you, on 2 June?
A. Well --
Q. I've read that correctly?
A.-I just read that last night, that I'd said that.
...
Q. On 2 May 2006 did you say this to Detective Revette, in the notebook that your initials appear on? "Dave told me one job where a taxi driver turned up and was tooting his horn, then he came in, he was scared. Dave was laughing"? That's what you said?
A. Yeah because he just told me that outside.
...
Q. Your answer, "They" and remember, mentioned shortly David and Carol, "They said at one job that they did they were in the middle of it and a taxi was beeping out the front or something. He came to pick someone up and then the taxi driver must have come inside." Question, "Right." Your answer continues, "And they told him to get down on the floor and he wouldn't and couldn't' because apparently he was large." Question, "Mm." Answer, "So they kicked in a crate and made him sit on the crate." Question, "okay, did they tell you anything else about that robbery?" Answer, "No audible reply." Question, "But more importantly what did David say about it?" and you knew he was speaking about David Wilcox; that's clear, isn't it? You're not disputing that? Correct?
A. Oh, correct.
Q. Your answer, "Just that I think they got - he", referring to David, "said"--
A. Does it say "David" or does it say "he"?
Q. All right, I'll read the question. "But more importantly what David said about it"?
A. Was that the question?
Q. Yeah, that was the question. Your answer, "Just that I think they got, he just said that they got about ten to fifteen grand each"?
A. So my answer was "he"? it wasn't "David".
Q. Oh I see. You were confused, were'nt you?
A. Yes, of course I was.
...
Q. Next question, toughy, "Okay." Answer, "That was." Next question, another tough one, "Yeah". Answer, "It was really just said about - about the taxi driver." Right? You go on there and you surmise that Puru may have been involved, then you were asked this, "Do you know which part of the State that job was in?" Answer, "New South Wales." Question, "But any idea where in New South Wales?" Answer, "I think it was Dungog, wasn't it or I think it was that one at Dungog"?
A. Because when my house got raided, they took me out to Minmi pub and sat me there and said, "Do you know anything about the robberies at Dungog" and this. They're the ones who told me.
Q. Oh, I see, so the police put in your head Dungog?
A. Yes, they did.
...
Q. You were asked about that in the first interview you did on 2 June 2006, weren't you?
A. (No verbal reply)
Q. About cable ties?
A. Correct.
Q. Right? Now, you told me either, didn't you, before I started to ask you about what you said in these interviews, that you spoke to the accused about cable ties some time after the police executed the search warrant at your premises, correct?
A. Correct.
Q. No problem with that, is that right?
A. Mm-hmm.
Q. And it was on that occasion that he told you that they were used for tying up garbage bags?
A. Mm-hmm.
Q. Right. Now, when you spoke to the police on 2 June, 392, you were asked this, question, "Cause, cause I asked you, you said you asked him, referring to David, what they were for, and he said, 'For tying people up'"?
A. Because that's what the police had told me at Minmi pub.
...
Q. ...Question, "You said to me he told you that they were for tying people up because", which of course is what you had at answer on the previous page. Answer, "Yes", or yeah. Question, "It was quicker and you put your hands together behind your back when you said that", you demonstrated it on the tape didn't you?
A. I can't remember, I was stoned.
...
Q. Bottom of page 21, question 183, "Did he, referring to the accused, tell you any other way in which they would control people on jobs?" Answer, "Putting guns to their heads", "Okay so pointing guns at them. Anything else to restrain people?" Your answer, "Tie, tie their hands behind their backs and Rick would say that he learnt that, that he used to be in the merchant marines". Question, "Right". Answer, "Something". Question, "okay". Your answer, "And they used, like, plastic cable ties", "All right how do you know that?" Answer, "Because the - he got me to go and get some, buy some once, and I asked him, 'What?'" Question, "All right". Answer, "What he was buying". Question, "Yeah?" Your answer, "Them and also in a raid they, they had down, when they raided my house at Minmi, they were looking for cable ties and I asked him why", referring to David, "And he, he said, 'That that's what they used to use to restrain their hands''", "Okay so hence the cable ties. Who asked you to but the cable ties?" Answer, "David", "David did?" "Yeah".
A. And garbage bags too.
Q. You went on again--
A. And chicken and bread rolls and beef and all the rest of it, what we used to get at the supermarket but it's not a big--
Q. Well did you tie that up with cable ties as well?
A. No, but if was, like, going to get your groceries, like, what's the big deal?
Q. In the same interview a few questions further on, page 23, question, "Is this when you were living at Minmi?" Your answer, "yeah". Question, "And the police executed a search warrant?" Answer, "yeah", or yes. Question, "You looked at that search warrant and read?" Answer, "What, yeah". Question, "and then did you ask David referring to Mr Wilcox?" Answer, "Yeah". Question, "What did you ask him?" Answer, "Why on earth would they have that for, like, why, what's, you know, that seems strange they'd found them". Question, "Mm-hmm". Answer, "they found cable ties, search in". Question, "What, what?" Answer, "That's what they used to restrain people's hands with". Question, "Okay". Answer, "And he said about Ric used to tell them that he was in the merchant marines and this is how he learnt to restrain people that way". That's what you said there, correct?
A. (No verbal reply)
Q. That's what you told the police isn't it?
A. The police told me.
Before the jury Ms Sutton explained a way her answers in two not entirely consistent ways. First, she said that she had not understood what was being said on the occasion of her answer because she was under the influence of heroin. Secondly, she had told lies at the suggestion of investigating police officers. The thrust of her evidence was that no answer she had given about the appellant was true. It thus appeared that her evidence before the jury was entirely opposed to the undertaking she had given to her sentencing court.
The jury were appropriately directed about her evidence in these terms:
You must decide, in the case of such a conflict, whether you accept the evidence given in the trial or what the witness said in the earlier statements. On the other hand, it may be that in view of the conflicts you feel that you should reject the evidence of Ms Sutton altogether, that is to say that you may not be able to be satisfied one way or the other as to whether she was telling the truth here or in the statements to police.
In any event, in respect of the earlier statements, I must warn you that such evidence may be unreliable. It may be unreliable firstly because it is hearsay evidence. She says she was relating to the police what she says someone else told her, or what she said the accused told her. The law recognises that hearsay evidence may be unreliable. Things tend to get lost in the translation and, of course, in any event, the accused was not present during the conversations that Ms Sutton had with the police in those interviews.
It may also be unreliable members of the jury because as you know, Miss Sutton obtained a benefit from making those statements. She obtained a reduction on her sentence for the offence that she was charged with and so therefore she had an incentive. Mr Stewart would say she told the police that she thought they wanted to know so that she could obtain that benefit. And she said it kept her out of gaol. So on that basis also, members of the jury, that earlier evidence as contained in her statements, may be unreliable. Whether it is or not is entirely a matter for you. All my task is to do is to alert you to the possibility that those statements may be unreliable and why.
Cable ties like those used in the Tahmoor and Dungog robberies were found amount Ms Sutton's toiletries. The appellant was residing with her at material times.
There was evidence showing that the appellant and Anson associated with each other. It derived not only from the telephone conversation between the appellant and Sutton extracted above. They resided together at times.
After Anson's death his house was searched. A rifle was found there, bearing the appellant's palm and fingerprints.
A DNA profile developed from a sample taken from one of two balaclavas found there matched the appellant's DNA profile.
A DNA profile developed from a sample taken from an unused cable tie found at the Tahmoor Inn matched the appellant's DNA profile.
The appellant's size and build were similar to the size and build of the larger man.
The occupants of the Tahmoor Inn gave evidence in which they described the appearance of the two attackers and the things they said and did. I shall deal with it as I deal with the appellant's submissions.
The Dungog robbery
Some of the things said by the appellant and Ms Sutton in the telephone conversation extracted above were relevant to the Dungog robbery.
Some of the words Ms Sutton attributed to the appellant in her interview with the investigating police officers were relevant to the Dungog robbery.
Mr Tracey, the bar manager at the Dungog RSL Club, was present when the robbery took place. He said that three or four weeks before the robbery he had seen two men in the club looking at the ceiling, as though looking for cameras. He identified one of the men as the appellant by choosing his photograph from a portfolio of 20 photographs.
At 2:30pm on the day of the robbery, the appellant and Anson were seen together in a car at Edgeworth, about 80kms from Dungog. It was a red Holden Commodore sedan with a spoiler. Anson owned a car of that description.
Between 9:30 and 10:00pm a call was made from Anson's phone to the club asking what time the club closed.
DNA matching Anson's profile was recovered from a soft-drink bottle found near the front door of the club. The bottle was of a type not sold by the club.
A box stolen in the robbery was found the next morning about 1 kilometre from Anson's house.
The appellant's size and build were similar to the size and build of the larger man.
Those present at the time of the robbery described the attackers, their appearance, the things they did and the things they said.
The coincidence evidence
It was the Crown case that the modus operandi employed in the robberies was identical was because:
·The offences were committed on licensed premises.
·The offences were committed at around closing time.
·Neither premises had security cameras or guards.
·The guns used were the same or similar in appearance. One was a shortened firearm and one was a pistol.
·There were only two persons participating in the robbery.
·The robbers were disguised in the same way, wearing balaclavas and dark clothing on each occasion.
·The manner in which the robbers threatened and treated the victims.
·The robbers' apparent knowledge of what they wanted and where to get it.
·The use of cable ties to bind the thumbs of persons present at the scene of each robbery.
·A statement by one of the robbers that in doing that he had learned the technique in the Services or something to that effect.
·The threats that the victims should not leave for a certain time after the robbers had gone.
It was the Crown case, and there was evidence, that the use of cable ties in armed robberies of licensed premises is unusual. Sergeant Dennett gave evidence that between 1 January 2004 and 6 November 2006 619 armed robberies took place in licensed premises in New South Wales. In only four of them were cable ties used. The first was committed at the Wentworth Hotel, Sydney on 31 July 2004. The weapons used were different from those used by the robbers at Tahmoor and Dungog. A shotgun and a machete were used. A walkie talkie was used. Persons other than the appellant and Anson were charged over that matter.
The fourth such offence took place on 23 January 2005, after Anson's death. It was committed at the Wallacia Golf club. The appellant was not a suspect.
The Crown also relied on evidence of the general appearance of the robbers. Although they were disguised, their general appearances were similar. One man, who carried a pistol, directed staff about keys and took money, disabled the telephone and said singular things, was small. The other was larger and younger.
The Appellant's submissions
The appellant said this in writing:
Firstly, it will be submitted that there was a miscarriage of justice as a result of the admission of coincidence evidence, whether the decision to admit the evidence was right or wrong, because as the trials were run on a joint basis, the accused had lost a chance which was fairly open to him of being acquitted of one of the charges, in particular, the Tahmoor Inn robbery.
...Having drawn attention to the provisions of s 6(1) Criminal Appeal Act 1912 the appellant continued:
Ultimately the appellant will be seeking to have new trials ordered pursuant to s 8(1) of the Criminal Appeal Act 1912 (NSW) and because of this, the focus during the course of these submissions will mainly be on the coincidence evidence and the Tahmoor Inn robbery, being the verdict that cannot be supported, having regard to the evidence.
The appellant then dealt with his submissions in four parts. The first part dealt with the witness statements put before the trial judge and with his Honour's express reasons for admitting coincidence evidence. It is convenient to defer dealing with those submissions. The strict inquiry for this court is whether, in the light of the evidence put before the jury and the conduct of the trial otherwise, the appellant lost a fair chance of acquittal. I shall deal in due course with all the appellant's submissions about that.
The second part of the submissions set out at considerable length and detail to attack the form and content of the notice served by the Crown under s 98 Evidence Act . Reference was made to R v Zhang [2005] NSWCCA 437 and to the requirements of ss 98, 99 and cl 6(3) of the Regulations promulgated under the Evidence Act . Reference was also made to other authorities and to statements made by the Australian Law Reform Commission.
It seems to me that the evidence the Crown wished to adduce was plainly set out in the notice, the substance of which I have extracted above, and that no difficulty arose in identifying it at trial. No objection was taken at trial about the form of the notice. No suggestion was made that the Crown's intent was unclear. No objection was taken to his Honour's encapsulation of the coincidence evidence in the summing up and no request was made for clarification or redirection.
I would refuse leave to the appellant to put this argument.
The third part of the submissions raises the evidence of Ms Sutton. In giving reasons for allowing coincidence evidence to be adduced the trial judge, having dealt with the statement of the taxi driver who entered the Tahmoor Inn, said this:
Ms Sutton will say that in a conversation she had with the accused about robberies in general, the accused joked about a robbery in which a taxi driver happened upon the scene and was too large to sit on the ground and was made to sit on a case.
It was submitted that the evidence was to be led to link the appellant with the commission of the robbery at Tahmoor Inn and that because Ms Sutton did not conform to her anticipated evidence the jury had less evidence to link the appellant with that robbery. So it became harder for the Crown to prove its case on that count. As I understood the submission, it was that injustice occurred because the or a basis on which coincidence evidence was to be admitted did not materialise.
It is difficult to understand how the unexpected event could produce injustice or render the coincidence evidence retrospectively inadmissible. It was for the jury to evaluate Ms Sutton's evidence in accordance with his Honour's directions. In my opinion there is no substance in this submission.
The last part of the appellant's written submissions came to the effect of the coincidence evidence at the trial. The appellant first drew attention to descriptions of the larger robber given by those present at the Tahmoor Inn. Mr Maddrell said:
Solid. Not overweight, just solid.
He had very blue eyes.
The two front teeth appeared to be crossed over.Mr Picaud said:
Fat, solid sort of bloke
(the eyes) were pretty well blue. Bright blue
I noticed (the teeth) were a bit crooked.Ms Larkin said:
From what he was wearing, to me he looked like he wasn't fat, he was built.
The last answer has been accurately extracted but looks wrong. Perhaps Ms Larkin said "well built".
Speaking of the eyes, Ms Larkin said:
They were crystal blue, bluest eyes I've ever seen in my life.
It was submitted that these descriptions, given by three of the five witnesses present at the robbery, were not consistent with descriptions of the appellant, he being a person with brown eyes and straight teeth. It was submitted that the evidence was capable of raising a reasonable doubt about his involvement. Even allowing for the fact that it was the Crown's contention that the appellant may have been wearing contact lenses, no evidence was given at trial to corroborate that allegation.
It was otherwise submitted that the evidence relating to the smaller man was, by reference to what he did and to what he said about what he had learned in the forces and about being a technician, more persuasive. On the other hand, the evidence of similarities between the larger men at Tahmoor and Dungog was unimpressive. There were various descriptions of the build of the larger man in each place which did not exactly coincide and there was also the problem of the Tahmoor robber's blue eyes and crooked teeth, which were plainly not the appellant's. The probative value of the evidence of the comparative descriptions was low if tendered to prove that the two men were one and the same. Injustice resulted from the juxtaposition of a remarkable comparison of descriptions of the smaller man and an unremarkable comparison of descriptions of the larger man.
I accept that the witnesses' descriptions of the appearance of the larger man lacked particularity, save for the evidence about the blue eyes and the crossed teeth, which the Crown asserted was evidence of further disguise. I accept that, standing alone, the evidence had low probative value, insufficient to prove the coincidence of identity contended for by the Crown. But that did not mean that the evidence could be discarded. This was a circumstantial case and the jury were obliged to judge it on all the evidence.
I do not accept the submission that the appellant suffered any injustice by a comparison of the evidence against the smaller man and the evidence against the larger. It would have been legitimate for the jury, if they considered that Anson was the smaller man, to reason that the appellant, who was demonstrated otherwise to have associated with Anson and bore a general description like that of the larger man at the two robberies, was more likely to have been Anson's associate in the robberies. There was nothing in the evidence that the appellant could not have met and challenged at trial.
It was submitted that the .22 calibre rifle found at Anson's house had not been identified as a weapon used in either of the robberies. It had been shown to three witnesses from the Tahmoor Inn. Two could not identify it and one, Mr Hoffman, thought that the weapon used in the robbery was greater than .22 calibre.
Again, it was not the Crown case that the firearm bearing the appellant's palm and fingerprint was the weapon used by the larger robber. While it might have been, the thrust of the evidence was to show an association between the appellant and Anson, involving the use of firearms and balaclavas, making it more likely that if Anson was the smaller man the appellant was his companion.
The next submission was that the evidence of the telephone conversation between the appellant and Ms Sutton was relevant to the Dungog robbery but not to the Tahmoor robbery. However, because it qualified as coincidence evidence it became admissible on both counts. That produced unfairness. The argument proceeded in this way. The telephone conversation was precipitated after the investigating officer, Detective Revette, spoke to the appellant about the Dungog robbery. The detective had seen a newspaper article, incorporating an identikit picture, and was aware of a telephone call that had been made by a member of the public saying that the appellant and Anson had committed the robbery at Dungog. It was only after the detective had spoken to the appellant that the he had the conversation with Ms Sutton.
The appellant referred to a passage in Report 38 of the Australian Law Reform Commission dealing with procedural fairness and submitted that he had not been able to meet and challenge the case presented against him in a fair manner because if the counts had been separated that conversation would have been inadmissible on the Tahmoor count.
I do not accept this submission. The appellant was able to meet the case presented by evidence of his telephone conversation with Ms Sutton. I have summarised how he explained it to the jury. The evidence had no direct relevance to the Tahmoor robbery, but insofar as it tended to prove the appellant's association with Anson, it was capable of supporting the case that they were associated in the robbery at Tahmoor.
It was next submitted that the only evidence capable of linking the appellant to the Tahmoor robbery was the presence of his DNA on the cable tie. He gave evidence at the trial in which he said he remembered giving Anson a bag of cable ties so that he could fix his car. He put them into a plastic bag and gave them to him. He did not know what Anson had done with them. Given that no cable ties were found at Anson's house and that the larger man at the Tahmoor robbery had blue eyes, as well as the fact that the placement of DNA on the cable tie could not be dated, the explanation was, it was submitted, plausible. The conclusion was that no reasonable jury properly instructed could have found the appellant guilty of the Tahmoor robbery.
I do not accept this submission. The evidence of the appellant's DNA on the cable tie was capable of being regarded by the jury as very strong. The only innocent explanation was the appellant's account of his handing the cable ties to Anson. That was an explanation the jury were obliged to evaluate by reference to all the evidence. It does not seem to me to be one that they were bound to consider reasonably possibly true. In any event, there was a large body of evidence linking Anson to the robbery and the appellant to Anson. I will not repeat it. The DNA evidence was not the only evidence connecting the appellant with the Tahmoor robbery.
The appellant drew attention to his Honour's direction that the jury had to be satisfied beyond reasonable doubt that the appellant was one of the robbers at the Tahmoor Inn and submitted that the jury must have failed to heed the direction, otherwise he would have been found not guilty on both counts. It was submitted that (where there was coincidence evidence going to both counts) no jury would find a person not guilty on two counts if they thought him guilty of one of them. It was submitted that the danger that the jury had used on one count evidence relevant only to the other was high. So high was the risk that no direction was sufficient to guard against it.
It was submitted that however the evidence was looked at, there would always be a rational view of the evidence consistent with the innocence of the appellant.
I do not accept these submissions. Whether there was a rational view of all the evidence consistent with the innocence of the appellant was a matter for the jury. They were appropriately instructed and no question about his Honour's directions was raised at trial or has been raised in this court. The jury were obliged to follow his Honour's directions.
In my opinion the evidence relied on by the Crown as coincidence evidence was capable of showing remarkable similarities in the events at Tahmoor and Dungog. In my opinion his Honour was entitled to form the view that, seen as a whole, the evidence had significant probative value which outweighed the risk of unfair prejudice. The evidence was correctly admitted. Although the evidence did not emerge precisely as his Honour anticipated, notwithstanding the changes in Ms Sutton's account at trial, the effect of the evidence, in my opinion, had significant probative value overall. In my opinion there was no risk of unfair prejudice.
The appellant has failed to make good his attack on the convictions. I would dismiss the appeal.
The sentence appeal
On 14 August 2005 the appellant was in the company of Rachel Stamper, his cousin, James Teriini, Stamper's husband, and Mandy Sutton. They went to the Pacific Palms Bowling Club at Smiths Lakes. While the women remained in the car, the appellant and Teriini entered the club in order to assess its suitability for a robbery. The appellant was carrying a revolver. Once inside, they decided to rob the club there and then. They put on balaclavas and the appellant brandished the revolver and ordered members of the staff and patrons to lie on the floor. During the attempted robbery the appellant pointed the revolver at the head of one of the patrons of the club. The bar tender ran out of the back door, intending to raise the alarm. Teriini ran after him. Another patron threw a chair at the appellant and he ran out of the club, following Terrini. Stamper and Sutton, still in the car, heard the bartender calling for help. Stamper drove the car to the club door and the appellant and Teriini got in. So the four got away. No money or property was taken.
At about 8:55pm on 5 December 2004 the appellant and two other persons entered the Nambucca Heads Bowling Club. All three were wearing balaclavas. The appellant had a shortened rifle. The other two were each armed with a pistol. Those in the club were ushered into the poker machine room and made to get down on the floor. On demand a key was produced and the three removed money from poker machines. They also took the money contents of an automatic teller machine. They locked staff and patrons in the cool room, having turned off the fans, and ran away. They got away with $32,493.95 and a quantity of alcohol.
Officers of the New South Wales Crime Commission were investigating the attempted armed robbery at Smiths Lodge and issued a summons for Mandy Sutton to appear to be questioned by the Commission. Between 4 and 9 May 2006 the appellant spoke to Sutton a number of times, attempting by threat and persuasion either to get her not to go to the Commission hearing or, if she did, to give false evidence to the Commission.
The appellant was arrested on 17 May 2006 and charged with offences arising out of the robberies at Tahmoor and Dungog, the attempted robbery at Smiths Lakes and with perverting the course of justice. On 1 November 2006 he was charged over the Nambucca Heads robbery. He pleaded not guilty to all charges. On 27 August 2007 his trial on the Tahmoor and Dungog robberies began and on 10 September 2007 the jury found him guilty.
On 7 November 2007 his trial on the Nambucca Heads matter began. The jury were unable to agree and were discharged on 16 November 2007.
On 15 November 2007 the appellant pleaded guilty to a charge arising out of the Smiths Lakes matter.
On 4 February 2008 the appellant was to stand trial on the charge of perverting the course of justice but on that day the facts of the matter were recorded on a Form 1 to be dealt with under the provisions of s 32 Crimes (Sentencing Procedure) Act 1999.
On 28 April 2008 the appellant's retrial on the Nambucca Heads robbery was to proceed but it was adjourned, and on 1 May 2008 the facts were recorded on a Form 1 for use under s 32 Crimes (Sentencing Procedure) Act .
The trial judge sentenced the appellant on three counts, namely the offences at Tahmoor and Dungog of which the jury had convicted him and the assault with intent to rob at Smiths Lakes, of which he had pleaded guilty. The first two counts attracted a maximum sentence of imprisonment for 25 years and the third for 20 years. His Honour accepted the appellant's request, when sentencing for the Tahmoor robbery, to take into account the offence of robbery whilst armed with a dangerous weapon at Nambucca Heads of which the appellant had pleaded guilty. Similarly, his Honour took into account the offence of perverting the course of justice when sentencing for the Smiths Lakes offence.
If they had been dealt with separately, the offence at Nambucca Heads would have attracted a maximum sentence of 25 years' imprisonment and that of perverting the course of justice a maximum penalty of 14 years' imprisonment.
For the Dungog offence, his Honour imposed a fixed term of six years' imprisonment commencing on 17 May 2006 and expiring on 16 May 2012.
For the Smiths Lakes offence, and taking into account the offence of perverting the course of justice, his Honour imposed a fixed term of 6 years' imprisonment commencing on 17 May 2009 and expiring on 16 May 2015.
For the Tahmoor offence, and taking into account the Nambucca Heads offence, his Honour set a non-parole period of 8 years, commencing on 17 May 2012 and expiring on 16 May 2020 and imposed a balance of term of sentence of five years, expiring on 16 May 2025.
The total effective sentence was therefore a non-parole period of 14 years and a balance of term of five years, producing a head sentence of 19 years.
The charges for the Tahmoor and the Dungog offences were laid under s 97(2) Crimes Act , 1900. The provisions of P4 Div 1A Crimes (Sentencing Procedure) Act 1990, which deals with standard non-parole periods, do not apply to offences under s 97. In imposing sentence his Honour said this:
So far as the Tahmoor and Dungog offences are concerned, for the reasons advanced by him, I agree with the submissions of the learned Crown Prosecutor that, objectively speaking, these should be assessed as somewhere above the midpoint. However, I do not think very much so. As there was no plea to be considered in those maters, the standard non-parole period becomes very relevant. However, as I said, I cannot agree with the course proposed by the learned Crown Prosecutor to the effect that all sentences should be totally consecutive. It is inevitable that sentences for each individual offence would be in themselves quite severe. At the end of the day one has to take a step back and decide what are the appropriate sentences to give effect to all of the objective and subjective matters, but also to take into account the principle of totality and reflect the total criminality involved. In formulating the sentences and in their structure I have attempted to do this.
There are three grounds of appeal, namely that his Honour erred in applying the standard non-parole period to the s 97(2) offences, that the total effective sentence of 19 years with a non-parole period of 14 years was manifestly excessive and that the sentence for the Tahmoor robbery was manifestly excessive. It is convenient to deal with them together.
Mr Strickland, SC, who appeared for the appellant on sentence, submitted that his Honour's remark that the standard non-parole period became "very relevant", there being no plea of guilty, was a significant error and contaminated all the sentences for the s 97(2) offences (Tahmoor, Dungog and Nambucca Heads).
I note that a little before the passage quoted above, his Honour said this about a submission made by defence counsel:
As I understand him, Mr Barber submitted that an offence under s 98 of the Crimes Act is to be regarded more seriously than an offence under s 97(2) of the Act and it is relevant that the s 98 offence carries a standard non-parole period of seven years. I really do not quite understand what this submission goes to and I cannot see the relevance of any comparison of the offences to be dealt with here with offences created by some other section of the Act, particularly when the other offence in any event carries the same maximum penalty.
His Honour made no further reference thereafter to a standard non-parole period or to any use of it as a guideline in imposing sentence: see R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168. There may therefore be some doubt whether his Honour treated the s 97(2) offences as attracting a standard non-parole period.
Assuming, however, that his Honour erred in referring to a standard non-parole period, that does not of itself oblige this court to interfere with the sentences. The question still arises whether any lesser sentence or sentences were warranted in law: Criminal Appeal Act s 6(3), and see R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 per Spigelman CJ at [79].
The requirements of Pt 4 Div 1A to assess the objective seriousness of an offence by reference to the middle of the range of objective seriousness of such offences is a recent and special requirement. However, assessment of the objective seriousness of an offence is a process that sentencing judges have always had to follow. Whether or not there was any applicable standard non-parole period, his Honour had to assess the objective seriousness of the offences for which he had to sentence the appellant and to set an effective non-parole period according to that assessment.
The offences covered a range of criminality and his Honour made clear that he wished to impose an overall sentence that reflected their totality of criminality. While I acknowledge the need to impose for any individual offence a sentence appropriate to that offence, it seems to me that the principal question that arises is whether the overall sentence fell outside his Honour's proper range of discretion.
Recognising this, Mr Strickland, apart from addressing the court on the relevant aspects of the subject offences, put before the court a schedule of sentences for offences under s 97(2) which have been considered by this Court. The Crown also provided a schedule. An amalgamated form is annexed to this judgment.
In striving for consistency in sentencing, the court may examine comparable cases to determine whether patterns exist and to shed light on the proper sentence in any case under consideration: Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194 per Basten JA at [123-124] and McClellan CJ at CL at [197]. The schedules deal with numerous cases, I understand all or most relevant appeals decided by this Court over the last decade. It is accordingly appropriate to consider the sentences set forth in the schedules provided by the parties.
Mr Strickland also referred the court to Judicial Commission statistics, showing that between January 2002 and December 2008 250 persons had been sentenced for offences under s 97(2). Of them, 235 were sentenced to imprisonment. The longest head sentence was 18 years and the longest non-parole period 12 years. The statistics included offenders who had committed more than one s 97(2) offence and offenders who had Form 1 matters taken into account. However, the statistics do not reveal the number or proportion of such offenders.
Caution needs to be exercised when considering the appropriateness of a sentence by comparison with published statistical ranges. The maximum sentence imposed, as revealed by statistics, is not the maximum sentence that may be properly be imposed in any individual case. That is the maximum penalty prescribed by Parliament, and that is where the court must begin when considering whether a sentence challenged on appeal was too long. As Grove J said in R v Hayes [2001] NSWCCA 410 at [14]-[15]:
14. ... there is a misconception that the upper limit of the range of sentence is that of the statistical publications of sentence information by the judicial Commission. ...
15. The upper limit of sentence is in fact the maximum set by Parliament. If the upper limit of the statistical range is treated as reserved for the worst case or the worst offender, then persistent selection of sentences for others within that range will inevitably reduce the upper figure.The oral submissions on sentence were directed to the appellant's assertion of manifest excess, both as to the sentence imposed for the Tahmoor robbery and as to the overall sentence.
In R v Vuni [2006] NSWCCA 171 Hoeben J, with whom Tobias JA and James J agreed, said at [33]:
To establish that a sentence is manifestly excessive an applicant has to demonstrate that the sentence was "unreasonable or plainly unjust" ( Dinsdale (2000) 202 CLR 321 at 325). This has to be established in a context where there is no single correct sentence and that judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. Most pertinently the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing judge merely because it may have exercised its discretion in a manner different from that of the sentencing judge. ( Markarian v The Queen [2005] HCA 25 at [26] - [28]).
It seems to me that the principal features for sentencing were these. I shall deal with the offences in the order in which the sentences were ordered to commence.
The Dungog robbery
·The offence was well planned;
·The appellant was in company;
·Two weapons were used, though no shot was fired and there was no evidence that either was loaded;
·Two people were held up;
·The robbers pointed weapons at them to subdue them;
·They tied up their victims;
·The robbery lasted between 20 and 35 minutes.
·They stole more than $33,000.00;
The Smiths Lakes matter
·The offence was moderately well planned;
·The appellant was in company;
·The appellant pointed the gun directly at one of the patrons;
·A substantial number of people were menaced.
Perverting the course of justice
·The offender used threats and persuasion;
·His object was alternatively to prevent Ms Sutton from giving evidence and to prevent her from telling the truth;
·His intent was thereby to frustrate lawful inquiries into a serious indictable offence.
The Tahmoor robbery
·The offence was well planned;
·The appellant was in company;
·Two weapons were used, though no shot was fired and there was no evidence that either was loaded;
·Five people were put in fear and tied up;
·The victims suffered lasting effects;
·One of them was struck and sustained a minor wound;
·The robbery lasted 15 to 20 minutes;
·The robbers stole about $28,000.00.
The Nambucca Heads matter
·The offence was well planned;
·The appellant was in the company of two others;
·There were three firearms, but there was no evidence that they were loaded;
·An unknown number of staff and patrons were held up;
·The robbers intentionally put their victims in fear and they locked them in a room;
·They stole more than $32,000.00.
Generally
The offences were committed over an appreciable period of time. The Tahmoor, the Dungog and the Nambucca Heads robberies took place over a period of almost three months late in 2004. The Smiths Lakes offence took place in August 2005 and the perversion of the course of justice was in May 2006.
Subjective matters
The appellant was 29 years old when he committed the first offence and 31 years at the time of the last. He had a number of traffic and drug offences on his record. There were also a few convictions for stealing and kindred offences. More importantly, in 1994 he was sentenced to imprisonment for four years with a non-parole period of 1 year and 6 months for armed robbery. In 1999 he was fined for possessing ammunition without a licence.
His record would not be regarded as an aggravating feature, but it could give him no assistance.
The appellant pleaded guilty to the Smiths Lakes offence and he was entitled to consideration for the utilitarian value of the plea.
There was no finding of remorse in respect of any offence.
According to the pre-sentence report tendered on sentence the appellant had completed his last period of parole and was apparently drug free. His Honour doubted whether the appellant was prepared to undertake rehabilitation.
The submissions on appeal
Counsel relied on the schedule of cases decided by this court. Mr Strickland submitted that those cases in total demonstrated that the overall sentence, as well as the sentence for the Tahmoor robbery, fell outside the proper range of his Honour's sentencing discretion.
When this court allows an offender's appeal against sentence and reduces the sentence it enters upon the sentencing process a second time, and it becomes manifest that the substituted sentence lies within the range the court considers appropriate. The substituted sentence does not indicate the limits of the range, however, unless the court says so. When the court dismisses an offender's appeal against what is claimed to be an excessive sentence it does not thereby imply where the sentence lies, or whether it lies, within the appropriate range. It simply declares that the sentence is not excessive.
There are cases, however, where the remarks of the court indicate the upper limits of the appropriate range. Two such cases are Penfold & Ward and McKeon .
When the court allows a Crown appeal against the inadequacy of a sentence, the substituted sentence will often indicate the lower limit of the appropriate range.
So the cases decided by this court may to some extent indicate the limits of appropriate sentencing ranges. With that in mind I proceed to consider the cases listed in the schedule.
In my opinion the cases of Pintos, Evans, Tuncbilek, Raad, El-Hage, Gardner, Dimoski, Hudson, Cook, Bell & Jelisavac, Heatley, Fepuleai, Hudson, Hamied, Barudi, Tilyard, Huynh, Huang and Dougan do not assist in identifying the appropriate range of sentence in the present appeal. For the most part that is because the facts of those cases or other relevant circumstances are significantly different from those of the present case. Counsel did not rely on those decisions.
Mr Strickland submitted that the following cases supported the appellant's case because the criminality they demonstrated was at least as serious as his:
Dwight Offender's appeal dismissed. Head sentence 12y, non-parole period 8y. Four offences, eight robberies and other thefts taken into account. $100,000.00 taken. Weapons and period unstated. Favourable: guilty pleas, remorse, rehabilitation prospects, offender psychiatrically unwell.
Bavadra Crown appeal allowed. HS 12y, NPP 8y substituted. 7 robberies, 11 similar taken into account. $33,000.00 taken over 22 months. Guns, knives, machete. History of same. Favourable: pleas of guilty, offender young, some remorse.
Bates Offender's appeal allowed HS 8y, NPP 6y substituted. Two offences, one an attempt. Loaded shotgun discharged. On recognisance. Favourable: guilty pleas, less culpable then co-offender.
Berrell Offender's appeal dismissed HS 10y NPP 6y 8m. 16 robberies over two months, amount of money not great. Replica pistol. Long record. Favourable: guilty pleas, remorse, depression.
Yin Offender's appeal dismissed HS 11y NPP 8y 3m. 7 offences, five taken into account. Amount and period unstated. Gun/knife. Favourable: guilty plea. Starting point 14y.
Baleiovalau Offender's appeal dismissed HS 10y 6m NPP 7y 6m. Three offences, one taken into account. Almost $50,000.00 taken. Firearm. On parole, priors for similar. Favourable: guilty pleas.
Ta Leave to appeal refused, called "manifestly inadequate." HS 8y NPP 6y. Three offences inc 1 attempt. Two co-offenders. Planning, pistol, sword. All in one night. Offender drove car at man. Favourable: nothing apparent.
Johnson Co-offender of Moody below. Offender's appeal dismissed. HS 9y 10m, NPP 6y 10m. Three offences over a short period. Driver and gunman. Shortened rifle. Favourable: guilty pleas, role less serious than Moody's.
Moody Co-offender of Johnson above. Offender's appeal dismissed. HS 11y 6m, NPP 8y Sm. Same offences. Favourable: guilty pleas.
Spinks Offender's appeal dismissed. HS 15y NPP 8y 9m. Four offences, 8 taken into account. $4,000.00 taken over a few weeks. Shortened rifle. Favourable guilty pleas, remorse. Starting point 20y.
Mr Strickland submitted that the following cases were more serious than the appellant's, yet all but the most serious resulted in head sentences and non-parole periods that were equal to or lower than his:
Itamua Offender's appeal allowed, HS 17y NPP 6y substituted. 43 offences. More than $120,000.00 taken over five months. Guns, strikings, tyings-up. Favourable: early pleas of guilty, assistance, remorse, excellent prospects.
Cowan Crown appeal allowed, HS 11y 6m, NPP 8y 6m substituted. 14 offences, 22 taken into account. Offences committed over two months, total amount unstated. Axe, knife, replica pistol. Serious threats. Lengthy criminal record of similar offences. Favourable: early guilty pleas.
Penfold & Ward Offender's appeal dismissed HS 19y, NPP 14y 6m. 4 offences, one taken into account. Firearm discharged causing most serious injuries. Described as worse case, no mercy shown. CCA described sentence as "severe". Favourable: guilty pleas. Starting point 24 y.
McKeon Offender's appeal dismissed HS 24y NPP 15y. 11 armed robberies. Handgun $93,000.00 taken over four months. On parole for similar offences. Weapon discharged on one occasion. CCA: criminality of a very high order, sentence very stern punishment. Favourable: nothing apparent.Reference was also made to these cases:
Aguirre Offender's appeal dismissed apart from technical interference. HS 11y 6m, NPP 8y 6m. Two armed robberies. $170,000.00 taken from armoured trucks. Three co-offenders. Semi automatic weapons. On bail. Favourable: early guilty pleas.
Kidd Offender's appeal dismissed HS 16y NPP 12y. Three offences. Home invasions, extensive planning. Sawn-off shotguns, $275,000.00 taken. Long record. On bond. Favourable: delay, advanced age.
Sua Offender's appeal dismissed HS 13y NPP 10y. Five robberies plus two firearms offences. Period and amount unstated. Loaded sawn-off shotgun. On parole for armed robbery. Favourable: early guilty plea, starting point 15y 3m.
Street Offender's appeal allowed, HS 10y NPP 7y substituted. Five offences, 8 taken into account. Two rifles, co-offenders, stolen cars, attacks on hotels and bowling club. Over a short time, amount taken unstated. Favourable: early guilty pleas, young offender.
Resolution
The longest sentences, those imposed on McKeon and Penfold & Ward , were described by this court as "very stern" and "severe". The facts of those cases are far worse than those in the present appeal. The objective facts of Itamua were far worse than those of the present case. Notwithstanding the varying subjective cases of the offender's in those appeals, it seems to me that the cases give some indirect but valuable indication of what must be the upper limit of the range of the effective head sentence and non-parole period in the present appeal. The impression left by these few cases, moreover, is supported by the ranges of criminality and the ranges of sentences in the other cases cited, particularly Dwight , Berrell , Yin , Baleiovalau , Johnson & Moody , Spinks , Aguirre , Kidd and Sua .
It seems to me, by reference to the sentences imposed in the whole body of the cases I have referred to, that the overall sentence imposed on the appellant was impermissibly high. In my opinion the totality of the appellant's criminality called for a non-parole of 12 years and a balance of term of four years, producing a head sentence of 16 years.
I conclude for the same reasons that the sentence imposed for the Tahmoor robbery was excessive, notwithstanding that in imposing sentence for that offence his Honour had to take into account a further offence attracting a maximum sentence of 25 years. I should add that though the cases cited contain many examples of the inclusion of such serious offences on a Schedule, it is a practice which in my opinion the Crown should not follow. I would substitute a head sentence of 12 years.
Like the sentencing judge, I am of the opinion that the only feature calling for any adjustment of the parole - non-parole relationship is the accumulation of the sentences.
I would not interfere with the sentence imposed for the Dungog offence. I would interfere with the sentence for the Smiths Lakes offence only to increase its concurrency with the former offence.
121I propose the following orders:
(1) Appeal against convictions dismissed.
(2) Grant leave to appeal against the sentences and allow the appeal in part.
(3)Vary the sentence for the Smiths Lakes offence so that it will be taken to have commenced on 17 May 2008 and will expire on 16 May 2014.
(4)Quash the sentence for the Tahmoor offence and, taking into account the Nambucca Heads offence, set a non-parole period of 8 years, commencing on 17 May 2010 and expiring on 16 May 2018, and a balance of term of 4 years, expiring on 16 May 2022.
(5)Declare that the appellant will become eligible for parole on 16 May 2018.
*****
Schedule of Sentences
0
9
4