The application for leave to appeal against sentence
As indicated above, the sentencing judge imposed an aggregate sentence of imprisonment for 10 years with a non-parole period of 6 years. In doing so, in accordance with s 53A of the Sentencing Procedure Act, he specified the sentences he would have imposed in relation to each individual offence were he to sentence separately. Only one ground of appeal against sentence is proposed - that the sentence is manifestly excessive.
His Honour set out, in some detail, the facts he found based on the evidence in the trial. No complaint is made about the manner in which he did that.
His Honour also recounted, again in some detail, the evidence of the applicant's personal circumstances. No issue is taken with the manner in which he dealt with those circumstances. The relevant facts can therefore be outlined briefly.
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Personal circumstances
The applicant did not give evidence on sentence. He relied on three reports of a psychiatrist, Dr Allnutt. Dr Allnutt painted a powerful picture of a dysfunctional childhood and adolescence. The applicant was born in Iraq in 1984, of Kurdish ethnicity. Kurds were persecuted in Iraq. By the age of four the applicant was living in Iran. At that age, he witnessed his father kill his mother by stabbing her and slitting her throat. His father subsequently remarried. In 1994, when the applicant was 10, the family came to Australia as refugees. His father was abusive and controlling. From the age of 13 the applicant suffered from anxiety. He eventually turned to drugs. He used methamphetamine. Indisputably, the applicant's personal history has influenced, adversely, his adaptation to life in Australia.
He was 29 years of age at the time of this offending. By then, he had a significant criminal record to which the sentencing judge referred in detail.
In assessing the objective seriousness of Counts 1-2, the sentencing judge took into account that the offences were committed in the victim's home, for financial gain, and were planned and organised. He declined to take into account as an aggravating factor that the offences were accompanied by threats of violence, holding that that was "part of the overall factual matrix". He concluded that the offences were in the middle of the range of objective seriousness.
The argument presented in support of the appeal was that, in arriving at the indicative sentences the sentencing judge overstated the objective seriousness of the offences. It was submitted that the offences the subject of Counts 1-2, carrying a maximum penalty of imprisonment for 10 years, should be seen in the light of offences of armed robbery, which, by s 97 of the Crimes Act carry a maximum penalty of imprisonment for 20 years. Reliance was placed on the decision of this Court in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111, in which this Court promulgated, as a guideline, that sentences for offences against s 97 should normally fall into the range of 4 to 5 years fulltime (at [165]).
On behalf of the applicant it was therefore argued that an indicative sentence of 6 years for Counts 1-2, was manifestly excessive, and that this infected the aggregate sentence imposed.
One difficulty with the proposition is that it overlooks the circumstances to which the Henry guideline was directed. Spigelman CJ set out seven features of the category of case to which the guideline of 4 to 5 years was intended to apply. The features are:
"(i) Young offender with no or little criminal history;
(ii) Weapon like a knife, capable of killing or inflicting serious injury;
(iii) Limited degree of planning;
(iv) Limited, if any, actual violence but a real threat thereof;
(v) Victim in a vulnerable position such as a shopkeeper or taxi driver;
(vi) Small amount taken;
(vii) Plea of guilty, the significance of which is limited by a strong Crown case."
As can be seen, the applicant does not readily fit that profile. He could not be called a "young offender", and certainly he could not be said to have had little or no criminal history. There was more than a limited degree of planning involved in the offences constituting Counts 1-3. The amount taken, particularly in relation to the first offence, and that sought to be taken in relation to the second, could not be said, in the circumstances, to be "small". He did not plead guilty.
I do not accept that the sentences indicated in relation to Counts 1-2 were manifestly excessive.
It was then argued that the offence constituting Count 3 (attempting to steal the motor vehicle) was "persistent but not sophisticated" and was "unremarkable" and that a sentence of 5 years would be outside the legitimate range available (the maximum being 10 years). Again, I cannot agree. The applicant made significant preparations for the theft of the vehicle, over a number of days, attempting to take registration papers and returning to the premises, first with a mechanic, and then with a tow truck, in order to take the vehicle away. It was a serious offence of its kind.
The sentencing judge found that the weapons offences were within the middle of the range of objective seriousness; it was submitted that "the appropriate finding" was that they were at the lower end of that range, and that a sentence of 5 years would be outside a legitimate range.
Once again, I do not agree. In this case the sentencing judge was required to have regard, not only to the maximum prescribed sentence, but also to the standard non-parole period of 3 years.
Of course, the sentence in question is the aggregate sentence imposed. Reference was made to the indicating sentences in an effort to isolate some error of discretion. No such error has been established. Moreover, the aggregate sentence has to be seen in the light of the whole of the criminal conduct of the applicant. By reason of his lengthy criminal history he was not entitled to any leniency.
It is true that the applicant made out a significant case on his personal circumstances. However, it was not suggested that inadequate attention was paid to those circumstances.
I would grant leave to appeal against sentence but dismiss the appeal.
The orders I propose are:
1. Appeal against conviction dismissed;
2. Leave granted to appeal against sentence;
3. Appeal against sentence dismissed.
BELLEW J: I have had the advantage of reading in draft the judgment of Simpson AJA. I agree with her Honour's conclusions, and the orders she proposes.
CAMPBELL J: I have had the considerable advantage of reading the judgment of Simpson AJA in draft, with which I agree. Having reviewed the authorities to which her Honour refers and reviewed the matter in the light of them I too am of the view that no miscarriage of justice occurred notwithstanding the irregularities her Honour identifies in relation to grounds 3 and 4 of the amended grounds of appeal. I agree with her Honour for the reasons she gives that the exercise of the sentencing discretion by the learned primary judge did not miscarry. I agree with the orders proposed by Simpson AJA.
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Decision last updated: 09 August 2019
HEADNOTE
[This headnote is not to be read as part of the judgment]
In October 2016, the applicant was charged in the District Court on an indictment that contained seven counts. The conduct which constituted Counts 1-3 arose from his demand for money from a Mr Konchady and threatening to do harm to him, and his attempted stealing of a car. Counts 4-7 concerned prohibited weapons located on his property during the course of execution of a search warrant arising from the earlier counts.
The applicant entered a plea of not guilty to each count, and a joint trial of the two groups of offences proceeded. During the examination in chief of a Crown witness, the witness was questioned as to the intended use of the weapons, to which she indicated they were to be used for criminal activity. During cross-examination of that witness, defence counsel admitted into evidence the fact that the applicant had previously been in custody for a period of time. After the summing up, the jury returned verdicts of guilty on all counts. The applicant was sentenced to an aggregate term of imprisonment of 10 years, with a non-parole period of 6 years.
The applicant appealed his conviction and sentence on two main grounds:
(1) that there has been a miscarriage of justice as a result of his trial counsel's incompetence in failing to seek a separation of counts 1-3 from counts 4-7 on the indictment, in failing to seek directions after questions relating to the intended use of the weapons and in admitting evidence as to the applicant's time in custody.
(2) that the sentence imposed is manifestly excessive.
Held, granting leave to raise the appeal against sentence but dismissing the appeal (per Simpson AJA, Bellew and Campbell JJ agreeing):
In relation to ground (1):
(i) Generally speaking, a client is bound by the decisions made by their counsel. For an appellate court to intervene, it must be shown that the incompetence of counsel gave rise to a miscarriage of justice in the sense that the applicant lost a chance of acquittal that was fairly open: [31], [33]-[50], [98], [99].
R v Birks (1990) 19 NSWLR 677; TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46; Nudd v The Queen [2006] HCA 9; (2006) 162 A Crim R 301; Seymour v R [2006] NSWCCA 206; (2006) 162 A Crim R 576; Alkhair v R [2016] NSWCCA 4; (2016) 255 A Crim R 419 applied.
(ii) Despite their advice that an application for separate trials for the two groups of offences ought to be made, counsel are entitled to respect the autonomy of the applicant in consenting to a joint trial: [60], [61], [98], [99].
(iii) The line of questioning directed to the Crown witness about the intended use of the weapons was objectionable, and the trial judge's overruling of the defence counsel's objection was wrong. However, in the course of the summing up, the trial judge stated that that witness's evidence might be unreliable and that the jury should exercise caution before accepting it and attributing to it significance. There was therefore no miscarriage of justice: [64], [69], [71], [98], [99].
(iv) Although trial counsel's cross-examination of the Crown witness displayed a level of ineptitude that cannot be explained by any rational decision making, it did not result in a miscarriage of justice as the applicant was not deprived of a chance of acquittal that was fairly open to him: [73], [75]-[78], [98], [99].
Nudd v The Queen [2006] HCA 9; (2006) 162 A Crim R 301 applied.
In relation to ground (2):
(v) Having regard to the objective seriousness of the offences and the applicant's personal circumstances, the sentence imposed was not manifestly excessive: [89], [91]-[94], [95], [98], [99].
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 applied.
(i) joint trial
Section 29 of the Criminal Procedure Act 1986 (NSW) relevantly provides:
"(1) A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances:
(a) the accused person and the prosecutor consent,
(b) the offences arise out of the same set of circumstances,
(c) the offences form or are part of a series of offences of the same or a similar character."
For the purposes of the appeal, the Crown relied on affidavit evidence of the applicant's legal representatives at trial. Defence counsel deposed that the legal representatives had advised the applicant that an application for separate trials of the two groups of offences ought to be made, but that the applicant was strongly resistant to that course and wished all matters to be finalised without delay. That evidence was not disputed. However, it was argued that the legal representatives were not bound, with respect to the conduct of the trial, by the instructions of the applicant, but were both entitled and obliged to make independent decisions with respect to such matters. That counsel had a wide independent discretion in the conduct of the trial is established by the authorities referred to above. Whether that discretion extended to applying, contrary to firm and clear instructions by the applicant, for separate trials is another question.
It is plain, from the undisputed affidavit evidence of trial counsel, that the applicant consented to the joint trial of the offences and that s 29(1)(a) is satisfied. Nevertheless, on appeal, counsel submitted that the failure of counsel to seek an order for separate trials constituted incompetence such as to have caused a miscarriage of justice. Reliance was placed on the judgment of Brennan J (as he then was) in Sutton v The Queen (1984) 152 CLR 528; [1984] HCA 5.
Mr Sutton was charged in South Australia with the rape or attempted rape of three different victims. An application for separate trials was refused on the basis that the evidence in support of the charges in respect of each victim was admissible in the trial of the charges in respect of each other victim, on the then applicable principles relating to what was known as "similar fact" evidence, stated in Perry v The Queen (1982) 150 CLR 580; [1982] HCA 75.
The relevant procedural legislation (s 278 of the Criminal Law Consolidation Act 1935 (SA)) provided for joint trials of multiple charges if the charges were "founded on the same facts, or form or a part of a series of offences of the same or a similar character". Sub-section (2) reserved to the court the power to direct separate trials if of the opinion that the person accused may be prejudiced or embarrassed in his defence by reason being charged with more than one offence in the same information, or that, for any other reason, it was desirable to direct separate trials.
(iii) cross-examination of Ms Bain
The final instance of alleged incompetence lay in the cross-examination of Ms Bain in which counsel specifically disclosed that the applicant had been "in custody". It is impossible to attribute any rational forensic purpose to that question, and counsel acknowledged, in his affidavit, that the subject of Ms Bain's defalcations could have been introduced without reference to the applicant's incarceration.
In my opinion that question displayed a level of ineptitude that cannot be explained by any rational decision making. I am unable, however, to take the further step and conclude that the ineptitude resulted in a miscarriage of justice. To reach that conclusion it would be necessary further to conclude that the applicant was deprived of a chance of acquittal that was fairly open to him: Mraz v The Queen (1955) 93 CLR 493 at 514; [1955] HCA 59. In TKWJ (at [26]) Gaudron J emphasised the word "fairly".
That calls for examination of the whole of the evidence in the trial.
The applicant's participation in obtaining money from Mr Konchady was beyond doubt. He gave his name and bank account details to Mr Konchady. It was never suggested that he had not obtained money from Mr Konchady. His response to the Crown case appears to have been that Mr Konchady provided him with the money willingly and without demur. As counsel indicated in the opening of his final address, the issue was whether the applicant had obtained the money by "menaces" or by threat. In cross-examination it was more than once put to Mr Konchady that the applicant had at no time threatened him, a suggestion that Mr Konchady repeatedly and firmly rejected. He said:
"He was fierce with this force."
At no time was any reason that Mr Konchady might voluntarily have handed to the applicant the sums of money that he did postulated. It was merely put that, without any threat or menace, Mr Konchady agreed to go with the applicant and Ms Robson to the ATM to withdraw money. The prospect of the jury accepting that, even as a reasonable possibility, is so remote as to be fanciful. That would have been the position whether or not counsel had disclosed that the applicant had a custodial history.
Similarly, the count of attempted theft of the motor vehicle was virtually unanswerable. Police arrived as the applicant and the tow truck driver were attempting to load the vehicle onto the tow truck. The applicant attempted to flee.
The same must be said of the four counts of possession of prohibited weapons. Those weapons were located in the execution of a search warrant on the applicant's home. There was no evidence that any other person occupied the home.
In the course of considering that appeal, Brennan J made some general observations concerning joint trials. Since these were heavily relied upon on behalf of the applicant, I set them out in full:
"When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury's mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted. There may be an exceptional case where countervailing factors appear but I do not presently foresee them. As Lord Cross of Chelsea observed in Director of Public Prosecutions v. Boardman [[1975] AC 421 at p 459] so long as the general rule excluding similar fact evidence is maintained 'the courts ought to strive to give effect to it loyally and not, while paying lip service to it, in effect let in the inadmissible evidence by trying all the charges together'. It would be misleading for a judge to require some further 'special feature of the case' - the criterion adopted by Lord Pearson in Ludlow v. Metropolitan Police Commissioner [[1971] AC 29 at p 41] - before giving a direction for separate trials. The purpose of provisions such as s. 278 is to avoid the technicalities and rigid rules of criminal pleading and procedure, but not to impair the administration of criminal justice. Irvine C.J. pointed out in R. v. Brent [[1919] VLR 46 at pp 52-53] with respect to the corresponding Victorian provision, that it did not 'intend to introduce any fundamental alteration in the general rule that the tribunal to determine the guilt or innocence of a person charged should not be affected by the evidence given in relation to another charge - certainly not the evidence given by another person in relation to another charge'. The price of dispensing with the technicalities and rigid rules of criminal pleading and procedure is the imposition upon the trial judge of the onerous function of directing the course of proceedings to ensure that justice is properly administered. To that end he is given a discretion to order separate trials. Where the evidence admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the sound exercise of the discretion generally (if not universally) requires a direction for separate trials (cf. per Lord Hailsham of St. Marylebone in Boardman [at p 447]; Novac [(1976) 65 Cr App R 107 at p 111].
Usually, there is no risk of impermissible prejudice arising from the conduct of a single trial upon an indictment containing more than one count where the evidence relating to the accused's implication in an offence charged in one count is admissible in proof of his guilt of the offence or offences charged in the other count or counts. The admissibility of the evidence relating to one count upon a trial for another count is thus a question of importance affecting both the exercise of the discretion under s. 278(2) and, in the event of a trial on multiple counts, on the direction given to the jury relating to the way in which they may use the evidence tendered in proof of each count at the trial." (pp 541-543)
Here, there is no reason to suppose that, had separate trials been held, evidence in relation to the weapons charges would have been admissible in proof of Counts 1-3, or vice versa. I would therefore accept that there was at least a reasonable prospect that, had an application for separate trials been made, it would have met with success.
I would also accept that the applicant suffered, or potentially suffered, some prejudice as a result of the charges being tried jointly. If the jury were in any doubt about the applicant's guilt on the first group of charges, it may be inferred that they would, at the least, draw comfort from the evidence on the prohibited weapons charges. And if they were in doubt about the applicant's possession of the weapons, it may be inferred that they would have drawn comfort from the evidence of his dealings with Mr Konchady.
I accept, of course, as explicitly stated by Gleeson CJ in Birks and by McHugh J in TKWJ, that counsel's discretion as to the conduct of a trial is broad. Whether, in this case, counsel would have been within his rights to override the applicant's plainly expressed wish for a joint trial could be a difficult question, but is not presently to the point. In my opinion counsel, having given appropriate advice, was entitled to act on those plainly expressed wishes to proceed with a joint trial. It is not for the applicant now to complain that counsel did not override his firm instructions. Counsel was entitled to respect the autonomy of the applicant in decision making, providing that he had received appropriate advice.
I do not, therefore, consider that for counsel to proceed with the trial as he did was indicative of incompetence. The applicant having not only consented, but urged, that all charges proceed in a joint trial, it cannot then be said that a miscarriage of justice occurred.
In these circumstances, following the approach of the High Court in Nudd, I am satisfied that no miscarriage of justice has been identified. I would therefore dismiss the appeal against conviction.