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[2006] NSWCCA 162
Court of Criminal Appeal (NSW)
2006-03-10
Spigelman CJ, Simpson J, Johnson J
Original judgment source is linked above.
the application for leave to appeal against sentence 66 A sentencing hearing took place on 1 April 2005. By that time Hesham El-Sobky had entered a plea of guilty to the charge of having been an accessory after the fact of the armed robbery of his wife. The sentencing proceedings in relation to the appellant and Hesham El-Sobky took place together. Mrs El-Sobky gave evidence. Her evidence was primarily related to her husband's proceedings. In particular, she gave evidence about her state of health. She said that she had arrived with her husband from Egypt in Australia in January 1987. Shortly after her arrival she had been involved in a motor vehicle accident in which she suffered fractures to two spinal discs and both ankles. As a result she was left in a state of disability. Subsequently, in December 2004, she suffered another back injury. This evidence was directed to demonstrating her dependence upon her husband. However, as will become apparent, it is relevant to one of the grounds upon which the application for leave to appeal against sentence was advanced. 67 The appellant was arrested on 4 February 2003, and was refused bail. On 11 June 2003 she was released on conditional bail. In May 2004 she was again arrested on unrelated matters and spent about a month in custody specifically in relation to those matters. She was again released on bail on 9 June 2004 and remained at liberty until 16 February, the date of the jury's verdict. During the course of sentencing submissions, counsel who appeared for the appellant advised his Honour that the appellant had spent about four months in custody before being granted bail. At that time, it appears, precise information as to the period of time she had spent in custody was not available. His Honour appears to have indicated that he proposed to take the pre-sentence custody into account, because he said: "Well, I might be able to do it by reference to the papers. There's bound to be the bail undertaking in the court papers, so I'll know the date of charging from the charge sheet, and the date of release on bail. And that will come also from the - and I don't have it - custodial record." 68 The appellant did not give evidence in the sentencing proceedings. Nield DCJ had available to him a pre-sentence report, a report from a "Services and Programs Officer" of the Department of Corrective Services, and a report from a psychologist. All were dated March or April 2005. 69 From these reports Nield DCJ was given a picture of the appellant's personal circumstances. She was, as has already been mentioned, born on 22 March 1983. She was therefore about two and a half months short of her twentieth birthday at the time of the offence. She had, considering her age, a significant criminal history which included many offences of dishonesty, two of common assault, and another of assault occasioning actual bodily harm. In January 2002, in relation to one count of common assault and the offence of assault occasioning actual bodily harm, she was sentenced to imprisonment for two years, with the sentence suspended on her entering into a two-year bond pursuant to s12 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"). In February 2002, in respect of an offence of larceny, she was subjected to a bond under s9 of the same Act, for twelve months. Accordingly, she was subject to both bonds at the time of the offence against Mrs El-Sobky. She was born of a Fijian mother and Australian father. Her parents separated while she was a small child, and her father subsequently remarried. For many years she had no contact with her mother. She lived with her father and stepmother for some time and was there well cared for. Notwithstanding that, and devoted care given to her by her stepmother, she began using drugs, beginning with cannabis and progressing to heroin, at about the age of 14. She became addicted to heroin. She gave up using the drug for about two years from 1999, but relapsed after the breakdown of a relationship. She worked as a prostitute for a time. She has attempted methadone rehabilitation but has not met with great success. She met Hesham El-Sobky (under his alias of Mark David) in 2001 at the time she was working as a prostitute and was drug dependent. She made a suicide attempt in late 2002. 70 The psychological report disclosed an unusual and concerning personality profile, combining a high level of dependency with symptoms consistent with paranoid personality disorder. This combination, the psychologist said, created "an uncomfortable construct and dynamic". The psychologist wrote: "Someone who has strong elements of dependent and paranoid behaviours would be in a constant state of conflict and fear about interpersonal relationships - wanting to trust and depend on others yet at the same time fearing they could be harmed or damaged in relationships." 71 In her discussion with the psychologist, the appellant maintained her innocence of the charge.
the remarks on sentence 72 The appellant and Hesham El-Sobky were sentenced together. 73 Nield DCJ outlined the chronology relevant to the commission of the offence and also the chronology relevant to the charge against the appellant. This demonstrated that considerable delay had occurred before the trial was brought on. The appellant was arrested and charged on 4 February 2003, but was not brought to trial until 9 February 2005. The reason for the delay does not clearly emerge. Hesham El-Sobky entered a plea of guilty on 2 February 2005. Until then it was anticipated that both would enter pleas of not guilty. On 31 May 2004 the appellant applied for a separate trial, which was refused on 2 June. The joint trial was then fixed for 6 September 2004. However, three days before that, the trial date was vacated because of Hesham El-Sobky's ill-health. The trial was re-fixed to commence on 7 February 2005. 74 Having recounted those chronologies, Nield DCJ observed that the offence was very serious, and was planned (as shown by the appellant's possession of the knife). He did, however, also observe that the planning was "without sophistication". He noted that at the time of the offence the appellant was on two forms of conditional liberty, and that the offence resulted in Mrs El-Sobky being injured and her property being stolen. His Honour then said this: "It was committed upon a vulnerable victim, as, to the knowledge of Ms Collins, Mrs El-Sobky was disabled by her spinal injury and used her crutch to aid her walking."
This observation gives rise to the principal basis of the application. 75 His Honour then referred to the subjective materials that had been placed before him and then turned his attention to s21A of the Sentencing Procedure Act. He took into account, as aggravating factors: (i) that the offence was committed while the offender was on conditional liberty (s21A(2)(j)); (ii) that the victim was vulnerable (s21A(2)(l)); and (iii) that the event was part of a planned or organised criminal activity (s21A(2)(n)). 76 He said that he took into account, as mitigating factors, those identified in s21A(3)(a) and (k). S21A(3)(a) requires to be taken into account as a mitigating factor the fact that the injury, emotional harm, loss or damage caused by the offence was not substantial. S21A(3)(k) relates to a plea of guilty. It is obvious that the reference to s21A(3)(k) is a mistake. It is not possible to determine if his Honour intended to take into account some other mitigating factor, although it is not easy to identify any that applies. He specifically referred to the need for the sentence to reflect principles of specific and general deterrence. His Honour then imposed the sentence I have already set out. He made no mention of the period of pre-trial custody.
the grounds of the application 77 On behalf of the appellant it was contended that two specific errors could be identified in the sentencing process. 78 The first concerned his Honour's decision to take into account, as an aggravating factor within s21A(2)(l), that the offence was committed upon a vulnerable victim. This was, his Honour said, because the appellant knew that Mrs El-Sobky was disabled by spinal injury and used a crutch to aid her in walking. 79 It was argued that no evidence to this effect was before the court. The evidence given by Mrs El-Sobky in the sentencing proceedings was given in the proceedings relevant to her husband. During the course of that, in another context, his Honour made it clear that, although the proceedings were heard jointly, he regarded the evidence in each as entirely separate from the other. 80 There was, however, evidence in the trial from Mrs El-Sobky that her husband was her carer. And there was evidence from Detective Sergeant Harding, who saw Mrs El-Sobky at the Liverpool Police Station on the evening of 18 January, that she needed crutches to walk. There was also evidence that the contents of her handbag included taxi vouchers. These were in fact in evidence, although they have not been produced to this Court. 81 It may be that the observation, as expressed by his Honour, that the appellant knew that Mrs El-Sobky was disabled by spinal injury, was something of an overstatement. But it must have been obvious to the appellant that Mrs El-Sobky was disabled to the extent that she used a crutch to aid her walking. I do not think it was incorrect to say that the offence was committed upon a vulnerable victim; nor do I think it was incorrect to say that this was known to the appellant. The most that could be said to be incorrect in the observation is that the appellant knew that the cause of the disability was spinal injury. Even that, in the circumstances, is unlikely - his Honour was entitled also to take into account the relationship between Hesham El-Sobky and the appellant, and draw such inferences as seemed appropriate. 82 In my opinion this error has not been established. 83 The second ground on which the application is advanced concerns the appellant's pre-trial custody. His Honour specified that the sentence was to commence on 16 February 2005, the date the appellant was taken into custody following conviction. There is no reference in the remarks on sentence to the period of pre-trial custody. In the ordinary course of events a sentence will either be reduced by a term equivalent to the amount of pre-trial custody, or made retrospective to incorporate that period of time. Neither was here done. I accept that this error has been demonstrated. Accordingly, the commencement date of the sentence should be adjusted so as to take account of that period. 84 I would otherwise grant leave to appeal against the sentence but dismiss the appeal. 85 The orders I propose are:
(i) appeal against conviction dismissed; (ii) leave granted to appeal against sentence; (iii) appeal against sentence allowed to the extent only that the sentence of imprisonment for eight years with a non-parole period of five years to commence on 16 February 2005 be set aside. The appellant be re-sentenced to a period of imprisonment for eight years, commencing on 8 October 2004 and expiring on 7 October 2012, with a non-parole period of five years, expiring on 7 October 2009. 86 JOHNSON J: I agree with Simpson J. **********
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Collins
R
M v The Queen [1994] HCA 63; 181 CLR 487 CASES CITED: MFA v The Queen [2002] HCA 53; 213 CLR 606 R v Rose [2002] NSWCCA 455; 55 NSWLR 701
His Honour gave detailed directions in relation to each of these questions and returned to the description originally given of her attacker by Mrs El-Sobky. 56 Counsel for the appellant drew a distinction between two categories of evidence, which may broadly be characterised as "identification evidence" (although not necessarily within the meaning of the Evidence Act definition). The first category is what she termed the general descriptive evidence - that is, the description of her attacker given by Mrs El-Sobky, and the descriptions of the woman they had observed given by Mr Chand and Mr Deo. The second category was the identification, by Mrs El-Sobky only, of Cassandra Collins as the woman who had perpetrated the robbery. This was identification evidence, properly so called, within the meaning of the definition. 57 As will be seen from the italicised passage in the summing-up, the trial judge treated the two kinds of evidence in the same way, as requiring the same kind of caution on the part of the jury. In a nutshell, the ground was that only Mrs El-Sobky's identification should have been the subject of the cautionary directions. The descriptive evidence, which counsel sought to turn to the appellant's advantage, ought not, she argued, to have been the subject of such directions. 58 On behalf of the appellant the submission was (correctly in my opinion) made that the descriptive evidence alone would have been insufficient to sustain the conviction. The conviction depends upon the positive identification by Mrs El-Sobky. 59 Counsel contended that to treat the two kinds of evidence in the same way was erroneous. This was because of the explanation given by Mrs El-Sobky for having wrongly (as she then claimed) nominated the appellant. Her explanation was that, knowing of the appellant's association with her husband, she had made an assumption that she later learned to be wrong. To support the submission counsel pointed to some common elements between the appearance of the appellant and the descriptions of the woman. These were to do with her body size and build and colouring. She argued that the descriptive evidence assisted the defence because it made it more probable that Mrs El-Sobky's explanation was correct - that because of the consistency between the descriptions of the woman and the appearance of the appellant, the jury might more readily accept that Mrs El-Sobky had wrongly jumped to a conclusion about the identity of her attacker. Succinctly, counsel submitted: "With the knowledge that she [Mrs El-Sobky] had of such a woman, it would have been unlikely she would presume the assailant to be Cassandra Collins had she been blonde, pale and petite." 60 There is nothing in the relevant provisions of the Evidence Act that requires a warning to be given in relation to the descriptive evidence. That is for the simple reason that that evidence does not come within the Dictionary definitions of identification evidence. Ss116 and 165 are directed to identification evidence within that definition. S116 did call for a warning in respect of Mrs El-Sobky's identification. No complaint is made about the terms in which that was given. Counsel complained that to include the descriptive evidence in the warning had two different impacts upon the appellant's defence. The first she specified as the likelihood that the direction weakened the impact of the warning that was required in relation to the identification evidence properly so called, and genuinely in dispute; the second as the potential of the direction to undermine the exculpatory capacity of the evidence in question (the descriptive evidence). In making this latter submission, counsel relied upon the descriptions of the woman by both Mr Chand and Mr Deo as of middle-eastern (not islander or Fijian) appearance, and the failure of both of these men to identify the appellant's photograph from the array presented to them. These circumstances favoured the appellant, by suggesting that she was not the woman they had seen, or, at least, that the jury ought to experience a reasonable doubt about whether she was. But the direction given to the jury invited caution in the approach to the descriptive evidence. 61 It is correct, as counsel argued, that neither s116 nor s165 obliged the trial judge to give a direction to the jury to exercise caution in relation to the descriptive evidence. But neither is there anything that prevents a trial judge giving such a direction where it is appropriate to do so: see R v Rose [2002] NSWCCA 455; 55 NSWLR 701, per Wood CJ at CL and Howie J. It was perfectly appropriate, in this case, for the judge to draw to the jury's attention any potential weaknesses in the descriptive evidence. Recognition of such weaknesses might explain to the jury the description of the woman as of middle-eastern rather than islander or Fijian appearance, and the failure of Mr Chand and Mr Deo to identify the appellant from the photographs. It has often been said that the requirements concerning directions to a jury are designed to ensure a fair trial to all parties. The task of judges in directing juries is to assist them to reach the correct verdict. Pointing out potential weaknesses in evidence that may appear to favour the defence, provided it is done with restraint, is a proper approach to that task. 62 While I accept that the direction had some potential to undermine the exculpatory capacity of the descriptive evidence, I do not see that it was in any way unfair to do so. I am unable to accept that including in the direction a reference to the descriptive evidence had any likelihood of weakening the impact of the warning given in respect of Mrs El-Sobky's identification of the appellant. 63 I would reject that aspect of this ground that complains that, in respect of the descriptive evidence, warnings which should not have been given were given. 64 There is another aspect to this ground of appeal. It was submitted that the identification evidence direction required reference to a number of specified circumstances. These were said to be: "- the direct and circumstantial evidence as to the general description of the woman who attacked Mrs El-Sobky;
[2002] HCA 53