Wood v Regina [2001] NSWCCA 228

New South Wales Court of Criminal Appeal

CITATION : Wood v Regina [2001] NSWCCA 228 FILE NUMBER(S) : CCA 60755/00 HEARING DATE(S) : 12 June 2001 JUDGMENT DATE : 20 June 2001

PARTIES : Mark James Wood v Regina JUDGMENT OF : Smart AJ at 1; Newman AJ at 1; Badgery-Parker AJ at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/41/0274 LOWER COURT JUDICIAL Twigg DCJ OFFICER :

COUNSEL : (A) H Dhanji (C) P G Berman SC SOLICITORS : (A) D J Humphreys (C) S E O'Connor CATCHWORDS : Evidence possibly unreliable - accomplice - informal admission - identification - adequacy of warnings and directions to jury - points not taken at trial - no miscarriage of justice - evidence sufficient to support conviction. - Sentencing - parity of sentences - sentence reduced. LEGISLATION CITED : Crimes Act 1900, s117 Evidence Act 1995, s165 Lowe v The Queen (1984) 154 CLR 606 CASES CITED: M v The Queen (1994) 64 ALJR 83 Postiglione v The Queen (1997) 71 ALJR 875 R v Williams (1999) 104 A Crim R 260 DECISION : 1. Appeal against conviction dismissed; 2. Leave to appeal against sentence granted. Appeal upheld, sentence quashed; in lieu thereof the appellant is sentenced to imprisonment for two years to commence 16 November 2000 and expire on 15 November 2002 with a non-parole period of eight months expiring 15 July 2001. The appellant is to be released on parole on that latter date.

IN THE COURT OF CRIMINAL APPEAL

60755/00 SMART AJ NEWMAN AJ BADGERY-PARKER AJ Wednesday, 20 June 2001

MARK JAMES WOOD v REGINA

JUDGMENT

1 THE COURT: This matter involves an appeal against conviction and an application for leave to appeal against sentence which were heard by this court on 12 June 2001.

2 At the conclusion of the appeal the court announced that the appeal against conviction would be dismissed but the application for leave to appeal would be granted and the appeal consequent upon that grant of leave was successful. A fresh sentencing order was then made which we shall refer to later in these reasons.

3 The appellant had been indicted before the District Court at Goulburn on a charge of larceny contrary to the provisions of section 117 of the Crimes Act. Following the trial, which lasted a number of days, the jury convicted the appellant of that offence. In the event, his Honour Judge Twigg QC sentenced the appellant to a head sentence of imprisonment for three years and a non-parole period of twelve months.

4 The larceny involved the theft of money from a service station at Goulburn. The Crown case was that an employee of the station, one Michael Hartley, became aware in June of 1997 that there was a large amount of money at the service station in a part of the station safe which could be accessed by staff members. The night before the theft took place, Hartley spoke to the appellant and one Craig Bain at the Flamingo nightclub in Goulburn and proposed that they steal the money from the service station. His proposal was that an artificial robbery would occur and then thereafter the proceeds would be equally divided amongst the three. The plan was that one person was to enter the service station shop while the other would remain outside keeping a lookout. Beforehand, Hartley would switch off the shop's surveillance camera.

5 In evidence, Hartley deposed that things went according to plan. In the early morning of 27 June 1997, a person entered the store whom he believed to be Craig Bain. He on directions from Bain placed cash into a plastic bag, saw the intruder leave and then noticed two people running away from the service station. He stated that at the time it was dark, raining and overcast and he could not distinguish the features of the people. In cross-examination he decribed both the people who had taken part in the escapade as being about six feet three inches tall.

6 As part of his fabrication of events, Hartley gave a statement to police along the lines of the matter we have just narrated. It was not until some six months later that he admitted his involvement in the affair.

7 Hartley further deposed that he had seen the appellant a couple of weeks after the robbery at a hotel. When he asked the appellant for his share of the proceeds of the robbery he was told that it had all been spent. He noticed at the time that the appellant had some type of a sports car.

8 Another witness, one Paul Fahey, deposed that he overheard a conversation between the appellant and another man whom he could not identify in the Astor Hotel at Goulburn. He said that he heard them talking about knocking over the Woolworths service station and they were trying to work out how it could be done. We should add that Fahey placed this conversation as being in July of 1997. He agreed in cross-examination that a jukebox in the hotel was playing in a loud fashion, that he had been drinking at the time and that he was not friendly with the appellant. He further deposed that he saw the appellant at a service station some weeks after hearing that conversation. He noticed the appellant was driving a car which he had not seen him in before. The appellant told him that he had bought the car in Canberra, having saved up for it.

9 Another witness, one Wayne Capner deposed that he had had a conversation with the appellant at a farmhouse in which the appellant told him that they had planned a robbery on the service station and that he had the money and he wanted Capner to go with him to buy a car with him. Thereafter, Capner deposed, he went with the appellant a few days later to Canberra where the appellant purchased a Datsun car for around three thousand dollars. He conceded in cross-examination that he had been suffering from marijuana psychosis for which he had started to take medication at the time he had given a statement to police in relation to the events. He conceded that the marijuana psychosis caused him to have a long-term memory loss.

10 Detective Lang told of being called to the scene of the theft on the morning of 27 June 1997. When he arrived it was raining quite heavily and dark. He produced the surveillance video which had been shut off just before the theft occurred. He deposed that he had received in the course of investigations a docket outlining the purchase of a Datsun motor vehicle by the appellant in Canberra for the amount of two thousand nine hundred and ninety nine dollars.

11 The appellant gave evidence in the matter. He denied taking part in the theft. He stated that Craig Bain was a lot taller than him and that he himself stood some five feet ten inches in height. He conceded that he went to Canberra with Capner to purchase the car. However, he claimed that he purchased the car with money given to him by Craig Bain as payment for an old debt. He also said that he had been unemployed for some months before 27 June 1997.

12 As far as Hartley was concerned, he said he knew Hartley but had disapproved of a relationship which Hartley had formed with the appellant's sister. He agreed in cross-examination that he had had a drink once with Hartley, not at the Flamingo nightclub, but at the Empire Hotel. On the other hand, he agreed that he had had a drink with Craig Bain at the Flamingo nightclub.

13 As far as Fahey was concerned, he knew him, but did not get on with him. He denied having any conversation with Fahey at the Astor in July of 1997 about robbing the service station. Furthermore, he stated that he rarely went to the Astor Hotel.

14 He said that he knew Capner but did not get on too well with him, albeit they had grown up together. Indeed, he had formed a relationship with a girlfriend of Capner in 1999. He stated that Capner had not taken this well. He denied ever telling Capner about planning a robbery at the service station and indeed denied that he had ever mentioned to Capner how he had obtained money to buy the car.

15 By his notice of appeal, the appellant raised five grounds of appeal. Before this court, he abandoned one of those grounds. We now turn to the grounds which were argued before the court.

Ground 2: The learned trial judge failed to warn the jury of the dangers in relying on evidence of an admission.

16 The nub of the submission made in support of this ground was that the evidence of Hartley, Fahey and Capner relating to admissions made to them by the appellant was vague and lacking in detail to the extent where a caution should have been given by the learned trial judge in relation to the reliability of the evidence given by each of them. No request was made at the trial by counsel for a direction pursuant to section 165(2) of the Evidence Act. That section requires a judge to warn and inform the jury of the danger that evidence may be unreliable but a judge is only obliged so to do upon request. It was conceded that no such request was made but it was submitted, relying upon R v Williams (1999) 104 A Crim R 260 at 268 that a caution in relation to the reliability of a witness's evidence does not depend solely on whether or not the accused seeks a direction pursuant to section 165 of the Evidence Act.

17 In fact, a warning was given in relation to the evidence of Hartley in these terms by the trial judge: - "If you are satisfied that there is no evidence which in your mind confirms the accomplice's account in a material aspect then I warn you as a matter of law that you should exercise considerable caution before you can convict the accused on any uncorroborated evidence".

18 Indeed, in relation to the evidence of Hartley, his Honour did in dealing with his evidence warn the jury that it might in general be unreliable.

19 As far as Capner and Fahey were concerned, his Honour, in reviewing their evidence, pointed to certain aspects of it which could lead to a finding of unreliability. For instance, in the case of Fahey, he pointed out that he had placed the conversation which he said he overheard in the Astor Hotel as being in July, ie after the theft had taken place.

20 What in effect his Honour did was to point to features of the evidence of Hartley, Fahey and Capner which could lead the jury to believe that their evidence could be unreliable. As we have said, in the case of Hartley, a specific direction was given that in general, his evidence could be unreliable. In these circumstances, it is not surprising that trial counsel did not ask for a specific direction of the type contended for on appeal. In the court's view, no miscarriage of justice has been established in the absence of a specific direction of the type contended for; thus, Rule 4 would apply and this ground must fail.

Ground 3: The learned trial judge erred in failing to adequately warn the jury of the dangers in relying on the evidence of a witness who is criminally involved in the events giving rise to the proceedings.

21 The learned trial judge in fact did give a direction that the evidence of Hartley should be approached with caution. The criticism raised is that his Honour should have given a different direction in this regard. Specifically it was argued that his Honour should have given a direction which included the following elements: - 1. Persons involved in the commission of an offence may make false claims as to the involvement of others out of motives of revenge or antipathy;

2. A person involved in the commission of an offence may be motivated to give false evidence in order to qualify for a reduction in his sentence;

3. There may be reasons not capable of being readily ascertained as to why false evidence may be given and it is not for the accused to establish why it is that the witness is lying. 22 The last of these matters in the court's view is implicit in the directions given by his Honour. As to the second, it appears that a discounted sentence which Hartley had received was known at the time and nothing was put to him as it should have been which would lead to such a direction being given. As to the first of these matters, the court is of the view that the matter is so obvious as not to require a direction. In short, the court is of the view that the direction given was adequate and again, no request was made to his Honour to alter the direction he gave. Once again, the court is of the view that no miscarriage of justice has been demonstrated by the appellant and this ground must also fail.

Ground 4: The learned trial judge erred by giving the jury an identification warning in circumstances where there was no identification evidence and the description of the offender given by the only eyewitness was exculpatory of the accused.

23 The only eyewitness to the fake robbery was of course Hartley. The appellant's contention was that when his Honour warned the jury of the dangers of convicting on identification evidence, his Honour effectively reversed the onus of proof. It was submitted that his Honour's warning watered down the effect of Hartley's misdescription of the person keeping lookout (if it were the appellant) as being six feet three inches tall. All of this must be considered in the light of his Honour's clear direction that the evidence given by Hartley must be regarded with caution. In fact, no reversal of onus did occur. Indeed, his Honour did stress the difficulty in the Crown case which emerged as a consequence of Hartley's description of the person in the bowser area of the service station being about the same height as Bain whom in fact he identified. Again, no direction was sought at the trial in this regard and once more it is not surprising that trial counsel did not seek any such direction. No miscarriage occurred as a consequence of the directions given in this regard and accordingly this ground must also fail.

Ground 5: The verdict is unreasonable and cannot be supported having regard to the evidence.

24 Essentially it was submitted in support of this ground that the credibility of the three Crown witnesses Hartley, Fahey and Capner was so severely damaged that no jury could reasonably convict on their testimony. The jury were fully directed by his Honour as to their role in assessing the credibility of witnesses. Plainly enough, the jury concluded that the evidence given by the trio whose evidence is impugned by the appellant was acceptable to the requisite degree. Once the jury was so satisfied, it was open to them to convict the appellant. Accordingly this court should not interfere: see M v The Queen (1994) 64 ALJR 83. This ground must also fail.

25 Accordingly, the appellant's appeal against conviction must be dismissed.

Application for leave to appeal against sentence.

26 As the court has remarked earlier, his Honour sentenced the appellant to a head sentence of three years with a non-parole period of twelve months. Section 117 of the Crimes Act 1900 prescribes a maximum sentence of five years for the offence of simple larceny.

27 Hartley was sentenced prior to the appellant. He pleaded guilty to two charges: one, larceny as a clerk which carries a maximum penalty of twelve years; and two, attempt to pervert the course of justice which carries a maximum penalty of fourteen years. He received a sentence of nine months periodic detention.

28 Bain pleaded guilty in the Local Court at Port Macquarie and was placed on a recognisance.

29 The appellant's submission was that, having regard to the respective criminal responsibility of the three offenders, the sentence imposed upon him when compared to those imposed upon the two other offenders would leave him with a justifiable sense of grievance.

30 The law in the matter may be simply stated. In Lowe v The Queen (1984) 154 CLR 606, Gibbs J at 609 said: -

"It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters such as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence have to be taken into account."

31 Furthermore at 613, Mason J observed: - "The justification which the courts assign for intervention in the case of disparity is that disparity engenders a justifiable sense of grievance in the applicant and an appearance of injustice to that impassive representative of the community, the objective bystander." 32 In Postiglione v The Queen (1997) 71 ALJR 875, Dawson and Gaudron JJ at 878 observed: - "Equal justice requires that like should be treated alike but if there are relevant differences due allowance should be made for them."

33 Here, both Hartley and Bain were entitled to a discount by reason by their pleas of guilty. Additionally, Hartley was entitled to a further discount of sentence by reason of his agreement to assist the Crown in this prosecution.

34 Even taking into account these mitigating factors in the case of Hartley and Bain, in the court's view the sentences are so disparate as to require the interference of this court. His Honour in his reasons on sentence referred to the sentences imposed upon Hartley and Bain, but did not specifically refer to the requirement of parity. The Crown argued that the sentence imposed upon Bain in particular was so light as to not form a proper basis for parity in the matter. Indeed, the learned District Court judge who sentenced Hartley made an observation of a similar type in relation to Bain's sentence.

35 However, even if Bain's sentence is so light as to warrant it to be disregarded in considering the question of parity, the sentence imposed upon Hartley is such as in the court's view to give rise to a justifiable sense of grievance in the appellant. We say this for several reasons. First, Hartley was in fact charged with crimes which carry a heavier penalty than that which the appellant was convicted. Second, it was Hartley who hatched the plot which gave rise to the commission of the crime. While he received no proceeds of the theft, his criminality could not be assessed as being any lower than that of the appellant; indeed, there is a sound argument that his criminality was of a higher order. Even taking into account his plea of guilty and his offer of assistance which was of course crystallised, the court is of the view that the sentences are so disparate that this court, as previously stated, should interfere.

36 In resentencing the court has taken into account the material relating to the appellant's progress since he was incarcerated following the trial. Taking those matters and the other matters properly to be considered in passing sentence, the court is of the view that the head sentence should be amended to a sentence of two years imprisonment and the non-parole period should be one of eight months. In this regard the court agrees with the learned trial judge that special circumstances exist in this case. The orders of the court are as follows: - 1. Appeal against conviction dismissed.

2. Leave to appeal against sentence granted. Appeal upheld, sentence quashed; in lieu thereof the appellant is sentenced to imprisonment for two years to commence 16 November 2000 and expire on 15 November 2002 with a non-parole period of eight months expiring 15 July 2001. The appellant is to be released on parole on that latter date.

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