David Scott PARKINSON v R

Conviction appeal on State offences 12All of these offences occurred in the course of an incident on 13 November 2005. It was not suggested that it was inappropriate for the sentences on the State matters to be served concurrently with each other. Wayne Brennan owned property on either side of Grey Gum Road near the township of Bowraville. In the previous September, trees had been knocked down and lay near the roadway. The appellant and his parents lived nearby and there was a dispute between them and Mr Brennan about ownership of the felled trees. On 13 November Mr Brennan arranged for friends, Mr Hartnett and Mr Cameron, to cut the logs into useable sizes and transport them. At some point the appellant and his mother came by and some argument took place. Some time later, while Messers Brennan, Hartnett and Cameron were absent the appellant and his father (Mr Clark) came and started cutting up the logs making, it was asserted, the cut pieces unsuitable for use. 13Mr Brennan and Mr Cameron returned and saw the appellant using a chain saw to cut the logs into smaller pieces. Mr Brennan left for the purpose of getting a camera and Mr Cameron drove his utility to collect Mr Hartnett and they returned in it to the site. Mr Cameron thought that Mr Clark was sneering at him and he reversed his vehicle so as to force him to step out of the way and in stopping the vehicle a block splitter slid off the tray of the vehicle and landed in front of Mr Clark. 14The appellant raised the level of revolutions of his chainsaw and came to the utility and used it to shatter the window glass in the driver's door thus protruding the moving blade towards the two occupants. Mr Hartnett and Mr Cameron fled from the blade leaving through the passenger door where they were confronted by Mr Clark who struck each of them with the block splitter. Neither man had been injured by contact with the chainsaw but the charges of assault involved them having been put in fear by its presentation to them. The charge of malicious damage referred to the damage to the utility and the charge of being armed with intent related to the attack which the appellant made with his chainsaw. 15Mr Cameron had seen the appellant coming towards him with the chainsaw after he got out of the vehicle and he fled and hid in the scrub. Something in the order of ten to fifteen minutes later he became aware that the appellant and his father were driving off in their vehicle and as they passed they called to him to "get out of here" whereupon he made his way to Mr Brennan's house where he found that Mr Hartnett had already arrived.

Grounds of appeal against conviction 16The appellant appeared in person at the trial (as he did in the Commonwealth offence prosecution) and, in accordance with convention, the Crown prosecutor elected not to make a final address. The appellant had some legal representation at the sentencing proceedings. 17Ground 1 as filed was abandoned. Ground 2 alleged that his Honour erred in admitting evidence of the alleged criminal use of the block splitter by the appellant's father. 18At the beginning of the trial the appellant availed himself of the opportunity to open to the jury and in a brief statement he said that the chainsaw was jammed in a log which had to be removed with a log splitter and a winch which was on the back his vehicle. 19The implication in his statement, that the anticipated evidence of Mr Hartnett and Mr Cameron in particular which had been summarised in the Crown opening was alleged to be a fabrication, was confirmed by the tenor of questions by the appellant to witnesses by which he suggested that he was being "set up". Along these lines he suggested that Messers Brennan, Hartnett and Cameron had damaged Mr Cameron's utility by themselves. 20Complaint was made of the use by his Honour of the expression joint enterprise in relation to the activities of the appellant and Mr Clark but this was used in an exchange with the appellant in the absence of the jury and was clearly not meant in the technical sense. It was never the Crown case that the appellant was liable for participation in a joint enterprise and the notion was not raised in front of the jury nor were they directed in relation to that concept. 21There were two reasons supporting the admissibility and relevance of the evidence of what transpired between Mr Hartnett and Mr Cameron and Mr Clark. First, it was admissible so that the jury could properly assess the facts and circumstances in the correct context. To discontinue the description at the point of wielding the chainsaw by the appellant would leave a gap in the intelligibility of what the Crown alleged had occurred. 22In O'Leary v The King [1946] HCA 44; (1946) 73 CLR 566 approved as a correct statement of doctrine was this extract from Roscoe On Evidence in Criminal Cases 14 th ed: "Thus evidence may be given, not only of the act charged itself, but of other acts so closely connected therewith, as to form part of one chain of facts which could not be excluded without rendering the evidence unintelligible - part in fact of the res gestae." 23In that case Dixon J (as he then was) spoke to the same effect in the context of that appeal: " Without evidence of what, during that time, was done by those men who took any significant part in the matter and especially evidence of the behaviour of the prisoner, the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event." 24O'Leary remains authoritative following the passing of the Evidence Act 1995: Adam v Regina (1999) 106 A Crim R 510. 25The second reason for admitting this evidence was its capacity to negate a contention of fabrication about which the Crown was on notice as a result of what the appellant had said in opening and the tenor of his questioning of witnesses to the same effect. The limitations on the ability of the Crown to reopen its case by calling evidence in reply are well established and it was correct for the Crown to respond in anticipation. 26It was submitted that the evidence was either not relevant or of negligible relevance. Its relevance was revealed by the two reasons just discussed. His Honour committed no error in not rejecting the evidence because its probative value was outweighed by its prejudicial effect. What his Honour was bound to do was to properly instruct the jury on the use that may not be made of the evidence. This he did in clear language. In summing up he directed: "I should say ladies and gentlemen you are not here to determine questions with regard to the conduct alleged of the accused's father. That was all part of the event in which things occurred, but you are not concerned with the accused's father. Whatever the accused's father decided to do, you may put to one side and take that evidence as only part of the circumstances in which the events unfolded. What you are concerned about is the behaviour alleged of the accused." 27Ground 3 asserted that his Honour erred in his directions to the jury regarding the evidence the subject of ground 2. No complaint was made concerning that part of his Honour's directions just extracted. In the appellant's written submissions no reference was made to it. It was submitted that his Honour's directions failed to provide the jury with any assistance as to the use to which the evidence was to be put. To the contrary, they were clearly told to ignore it in relation to the conduct of the appellant and use it only to understand the circumstances in which events unfolded. 28It was put that his Honour's directions "tended" to reverse the onus of proof although no specific misdirection of that nature was identified. The complaint focused upon passages in which his Honour was seeking to put before the jury the argument upon which the appellant had relied in his address. He had not given evidence. He called his mother but she had not been present at the time of the alleged commission of the offences. The gravamen of complaint appeared to be that, in dealing with the appellant's arguments about being "set up", his Honour drew attention to evidence which was inconsistent with that assertion. There was no error in so doing an the contention that in some way this gave the impression that the defence case asserted more than he needed to rely upon should be rejected. 29The appeal against conviction on the State offences should be dismissed.

The sentence appeal for the Commonwealth offence 30I should observe that it has been expressly conceded on behalf of the appellant that "unless the State conviction appeal is successful the applicant does not contend that his overall sentence should be reduced, or that he should be released from custody any earlier than 29 March 2012". 31The appellant registered a company called Theiss Pty Limited. In January 2005 on behalf of that company he lodged a Business Activity Statement with the Australian Tax Office claiming that there had been made capital purchases of over $5million and therefore he sought a refund of goods and services tax of over $500,000. On of the items was a bulldozer said to have been bought for $3million. A compliance officer from the Tax Office contacted the appellant to investigate the claim and there followed numerous requests for information and further detail. Inter alia , the appellant claimed to have bought equipment from D&P Timbers and Bricks Pty Ltd. This company had been deregistered in 2003 at which time his father, Mr Clark, was the sole director. 32The appellant claimed that the purchases had been funded by him from an inheritance of some $7million said to have been in bank notes sealed in bags and buried because his grandfather did not trust banks. There was evidence that neither of his grandfathers would have been in a position to leave him the legacy claimed. The trial judge's finding that there was no such inheritance has not been challenged. The appellant also claimed that the equipment, which he was unable to produce, had been sold to a man at Guyra. 33The appellant persisted in these claims at trial and, as the jury found, they were false. No refund was paid, hence the indictment charged attempt. 34In his remarks on sentence his Honour noted that he was satisfied that the appellant did not have the capacity to construct the fraud alone nor to perpetuate it and he contemplated that the appellant would be "paying the price" whether his mother or father or both of them were also participants. Those findings were compatible with the opinions of Mr Borenstein, a psychologist, who had assessed the appellant. He found the appellant to be of low intelligence, inarticulate and dependent, particularly on his mother, for business and financial aspects. It was not contended that his Honour had not given appropriate weight to Mr Borenstein's opinions. Although dependent upon his parents for most of his life (he was 29 at the date of offences and 34 when sentenced) he had for about 3 years previously entered into a relationship with a Ms Dizon who gave evidence on his behalf. Again it was not complained that his Honour did not give appropriate weight to that evidence. 35The first ground in this application asserted that his Honour erred in his treatment of delay. 36It was conceded that his Honour dealt extensively with this matter in his remarks. What was said by Street CJ in R v Todd (1992) 2 NSWLR 517 has been widely accepted as providing the guidelines when such an issue is raised. This is acknowledged and there is no need to recite the oft quoted passage from that judgment. 37Counsel for the appellant referred to cases in which delays of 2 or 2 years had been given account but it is not a mere matter of length rather it is whether the passage of time requires an element of mitigation for that reason in order to render fairness to an offender in that offender's present particular situation. 38The offence occurred in January 2005 but its detection followed the investigation by the compliance officer and obviously time passed while the credibility of the various responses of the appellant to inquiry were assessed. 39A Court Attendance Notice issued on 31 July 2006. The appellant was committed for trial on 3 October 2008. There is no information detailing the progress of the committal hearing to that date but by June 2006 the appellant was appearing in the District Court on the State offences. The chronology of bringing these to trial would lead to a reasonable inference that the proceedings on the Commonwealth offence might have followed a similar pattern and also might have been regarded by the appellant himself as a matter of lesser priority. 40After committal for the offence on 3 October 2008 it was listed at Coffs Harbour District Court on 23 March 2009 and mentioned on 9 April to confirm a trial date scheduled for 20 April 2009. This date was vacated on the application of the appellant. The trial was fixed again for 12 October 2009 and took place on that day and days following. The delay was unremarkable. It was submitted that his Honour erred because in dealing with delay the appellant had suffered no forensic disadvantage in his conduct of the trial. That paraphrase misinterprets his Honour's remark which was that it could not be said that "the offender suffered any disadvantage in the time that it has taken to bring these proceedings to conclusion". Thus his Honour was not referring only to the conduct of the trial, and that understanding is confirmed by his following references to take into account the appellant's circumstances and opportunities for rehabilitation. "Any disadvantage" was not a restrictive expression. 41This ground is not made out. 42The second ground contended that the sentence was manifestly excessive. It is of some interest when considering this ground that in written submissions the appellant extracted these remarks by the learned sentencing Judge which the Crown written submissions recorded as worth repeating. The extract reads: "I agree with the submission that there was a substantial degree of planning and a persistent series of lies that continued in the trial and beyond. He sought to exploit the arrangements for self-reporting, and had he succeeded he would have recovered in excess of half a million dollars. His activity included the placing of an advertisement in a newspaper for the sale of machinery worth seven million dollars, which was false. There was the creation of two documents purporting to be tax invoices, and he wrote or at least he is to be held responsible for the transmission of a statement, exhibit H, sent to the Tax Office in pursuit of his claim. There has been no contrition or remorse. There is a need to ensure adequate punishment and there is a need to give appropriate weight to general deterrence, subject to what must be said about this offender and the limitations identified by the psychologist Borenstein. I agree with the submissions regarding the seriousness of the offence and the need for general deterrence to be given appropriate weight." 43Although some summaries of sentencing decisions were provided to his Honour, those sorts of materials must now be looked at with the cautions expressed in Hili v The Queen [2010] HCA 45. His Honour did not purport to assess sentence by reference to statistical survey. 44The thrust of submissions by the appellant was the claimed unsophistication of the attempt which was described as "inherently ridiculous". However, it was not the attempt which constituted the offence which can be so described but rather the responses offered by the appellant to the ongoing investigation. 45This ground of appeal should be rejected.

The State offences - appeals by the Crown and the appellant 46It is convenient to deal with what might be conveniently described as these cross-appeals together. 47I have already noted the concession concerning "overall sentence" made on behalf of the appellant. There is also a limitation upon the relief sought in the Crown appeal against sentence in the State matters. It is not submitted that the individual sentences on the 4 counts were manifestly inadequate, the essence of Crown complaint is the absence of cumulation upon the sentence for the Commonwealth offence with the result, as previously mentioned, that no part of the minimum term of custody will be served for the State offences in addition to what is required to be served for the Commonwealth offence. 48The appellant raises 2 grounds in support of the application for leave to appeal against severity of sentence. The first complained that his Honour erred in his treatment of delay. 49As already observed, his Honour referred extensively to this matter. These offences occurred on 13 November 2005. The appellant (with his father who was also charged at the time) appeared in the District Court on 9 June 2006. A trial was fixed for 7 August 2006 but it was adjourned on that day on the application of both the appellant and his father. In relation to the adjournment and further adjournments in March and May 2007, the trial did not commence apparently for medical reasons affecting the appellant's father. In January, March, June and August 2008 the fixture of a date was not achieved for similar reasons. The matter was repeatedly listed during 2009 but the Court was unable to fix a trial, inter alia , because appeals against Legal Aid refusal had not been concluded. In September of that year the appellant's mother on his behalf applied to sever the trials of the appellant and his father. The Crown joined in this application. The appellant was not present because it was said that he had been delayed by a typhoon affecting the Philippines where he was at the time. Eventually the trial commenced on 23 October 2009 immediately following the trial for the Commonwealth offence. 50His Honour's findings about the absence of disadvantage have already been noted. Whilst in Todd Street CJ spoke of the passage of time, the reasons for that passage are not irrelevant: R v Borkowski [2009] NSWCCA 102. The Court was constantly in a position and trying to fix the trial. It was open to the appellant at any time to seek severance from the trial of his father but it was not until 2009 that he chose so to do. In so far as uncertainty in the mind of the appellant is argued to be a factor of mitigation, I would observe that the uncertainty was whether a tribunal of fact would attach any credit to his fabrications not the least of which was his claim that rather than wielding the chainsaw, it was stuck in a log. 51I would reject this ground. 52The second ground contended that each sentence was manifestly excessive. The chainsaw was described by his Honour as a "fearsome weapon" and the accuracy of that description cannot be denied. The appellant elevated its power as he approached and menaced the occupants of the utility and the level of fear which perceptibly would have been engendered in those to whom this weapon was directed entitled his Honour to categorise the assaults as in the category of worst cases. The total sentence for the offence of being armed with intent was half the prescribed maximum and it was well within the sentencing Judge's sound exercise of discretion so to assess the term. There was as he found a "grave risk of death" and that it did not come about was a matter of fortune and not the result of reticence on the part of the appellant. If confirmation be sought of his Honour's views it could be found in the fact the blade was of such lethality that it gouged the steel in the door of the utility as evidenced in the facts relating to the charge of malicious damage. 53None of the individual impositions for the State offences was manifestly excessive. 54As indicated, the ambit of the Crown's appeal is within a small compass and asserts manifest inadequacy in that, by reference to non parole periods, the appellant has "effectively escaped punishment for the State offences". 55It is true, as above mentioned, that in his remarks his Honour stated his intention to order some cumulation but, subject to the extension of 6 months balance term on the first count of the State offences when the appellant might be out of custody, he did not do so. The power of this Court to intervene is invoked, not to give effect to that stated intention, but upon demonstration of error which requires correction. 56Such error has been demonstrated. It is clearly seen and justified by the Crown's aphorism that the appellant has "escaped punishment for the State offences". That error should be corrected. The extent of correction need not be large but it should mark the commission of the separate constellation of offences against State law from the offence against the Commonwealth statute. The existence of the sentence for the Commonwealth offence makes the principle of totality operative. The subjective factors favourable to the appellant should also be given weight. 57It will in my view adequately fulfil what is required to extend the minimum term of custody by 6 months. This can be achieved in a practical way by advancing the commencement date of the sentences and non parole periods for the State offences. It follows that the submission by the appellant that the total effective sentence for both matters as ordered to be served by the sentencing Judge was sound should be rejected. 58I propose the following orders:

1. Application by the appellant for leave to appeal against sentence for the Commonwealth offence refused.
2. Appeal against conviction for the State offences dismissed.
3. Application by the appellant for leave to appeal against sentence for the State offences refused.
4. Crown appeal against sentence for the State offences allowed in part and orders made for service of those sentences quashed and in lieu thereof the sentences be ordered to be served as follows: (a)On count 1 being armed with a weapon, namely a chainsaw, with intent to commit the indictable offence of assault to imprisonment consisting of a non parole period of 1 year 6 months commencing on 30 March 2011 and expiring on 29 September 2012 with a balance term of 2 years commencing on 30 September 2012. (b)On count 2 maliciously damaging a car to imprisonment consisting of a non parole period of 1 year 6 months commencing on 30 March 2011 and expiring on 29 September 2012 with a balance term of 1 year commencing on 30 September 2012. (c)On count 3 assaulting Torquil Cameron to imprisonment consisting of a non parole period of 1 year 6 months commencing on 30 March 2011 and expiring on 29 September 2012 with a balance term of 6 months commencing on 30 September 2012. (d)On count 4 assaulting Albert Hartnett to imprisonment consisting of a non parole period of 1 year 6 months commencing on 30 March 2011 and expiring on 29 September 2012 with a balance term of 6 months commencing on 30 September 2012.
5. 29 September 2012 specified as the earliest date of eligibility of release to parole.

Amendments 24 June 2011 - Legal representation amended to include: State DPP, Ms Nicole Noman; and NSW Director of Public Prosecutions to appear under 'Solicitors', at request of ODPP, CCA Unit. Amended paragraphs: Cover sheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 June 2011