Laughton v R

Court of Criminal Appeal (NSW)|2018-07-04|Before: Meagher JA, Schmidt J, Button J

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 The Queen v GW (2016) 258 CLR 108; [2016] HCA 6 Tully v The Queen (2006) 230 CLR 234; [2006] HCA 56 Category: Principal judgment Parties: Peter Edward Laughton (Applicant) Regina (Respondent) Representation: Counsel: P McDonald SC (Applicant) M England (Respondent)

Solicitors: Legal Aid (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2015/302418 Publication restriction: N/A Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 09 December 2016 Before: Arnott SC DCJ

The Crown case

The incident in which the complainant, Peter Vandersteen, was assaulted occurred in the early evening of 30 May 2015 in his one bedroom apartment in Dulwich Hill. The applicant and the complainant had first met in 2014. In December 2014, the complainant was living in a caravan outside a house at St Clair. The applicant was then in a relationship with Rebecca ("Bec") Miller, although they did not live together. Ms Miller met the complainant whilst he was living in that caravan.
The owner of the St Clair property asked the applicant to get the complainant to move out of the caravan. He obliged, telling the complainant to: "Pack your shit and fuck off". The complainant moved out with his three dogs, living for a period of time in his car in Marrickville before moving to the Dulwich Hill apartment in mid-April 2015. During this period Ms Miller, who was living at Pennant Hills, remained in contact with the complainant, mostly via telephone, Facebook or text messages. Ms Miller visited the complainant while he was living at Dulwich Hill, and during May 2015 he stayed in the garage of her house in Pennant Hills for 4 or 5 days. At some stage, the applicant became aware that the complainant had stayed with Ms Miller.
The complainant was in contact with the applicant via Facebook whilst staying at Ms Miller's house. The Facebook messages exchanged on 21 May 2015, and one later message, became exhibit 4 in the trial. The messages between the two men were very abusive, with threats being made on each side, as the following exchange, which occurred at about 7:41pm, shows: Applicant: Yeah, as if cunt, come say it to my face you brave cunt. Your the only pedophile cunt I know. Seems like you have a bit of a grudge hero. Hey dickhead, find out the full story before you go blabbering your big mouth ya dumb cunt. Fucken Moron, only a brain of your size would think the way you do. Complainant: Don't blame [B]'s mother its you that is the rock spider cunt. Get the story I want and need. OK, your call, we will come to your house to sort it. Done.
A few hours before the assault, Ms Miller sent the complainant a message that she was going to contact the police because he had "stolen" things from her that belonged to the applicant. The complainant understood that reference to be to a small wheeled recycling bin containing some of the applicant's belongings which Ms Miller had earlier left at his apartment. They included garden equipment, tools, chemicals such as weed killer, glasses or mugs and a hot water urn.
In the afternoon of 30 May 2015, the complainant had been to the local IGA store to buy groceries. When he returned to his apartment, he put the bag of groceries on the couch in the lounge room. He then left the apartment to talk to "Henry's mum", whom he had seen walking down the street. He accompanied her around the corner. After about 15 minutes at approximately 6 pm, he returned, having previously closed but not locked the wire screen and wooden doors to the apartment. He re-entered, turning to his left from the kitchen into the lounge room. At that point he was hit in the head from the left with a "pole", which he later described as like a Maglite, a cylindrical flashlight, and about 18 inches or so in length.
The complainant recognised and identified his attacker as the applicant, who was dressed in a black long-sleeved hoodie and black jeans, and wearing black gloves. There were also another man and woman present. He described the woman as thin, aged between 25 and 30 years old with shoulder-length black hair; and the man as having a walking stick and aged in his 50s or 60s, with a "flat-top haircut" and tattoos on his arms and legs. As the applicant again tried to hit the complainant, he caught the "pole" in his left hand and dragged it to his right. At some point the two men wrestled on the couch. The complainant in his evidence in chief said he was kicked in the right eye whilst that wrestling occurred. However, in describing what had happened to the doctor on duty at Royal Prince Alfred Hospital, Dr Amber Shuja, he said that he had been hit in the face "multiple times with a pole or a Maglite". Earlier he had told Constable Cocking that after he was first hit he "grabbed the pole, wrestled with him, grabbed the pole, and I was pulled up against the doorframe. Then I was hit with a metal pole from the right side".
As this happened, the woman present threatened to stab the complainant if he did not let go of the "pole". She then said to him how damaging it was when people had allegations made against them, or how damaging it was to be accused of "messing with kids". After that she asked the complainant for the "passcode" to his mobile phone, which was on the coffee table in the lounge room. He refused to give it to her. In final address, those references were said to link the purpose of the assault to the allegations of paedophilia and a Facebook message to the applicant that he had "every single message that [the applicant has] written to [B] and her mother" on his phone.
At some stage, the complainant's three dogs came back inside the apartment and the Staffordshire terrier "went for" the applicant. The three intruders then left the apartment, having been there for about 5 minutes, taking with them the complainant's new Nike shoes, his phone, $450 in cash from the coffee table, and a Commonwealth Bank credit card. In a statement made the day the trial commenced, the complainant added to those "stolen" items the recycling bin and a small blue suitcase containing borosilicate glassware.
The complainant sustained injuries to the back of his skull (a small undisplaced fracture of the right occipital bone, which means that the bone ends were still connected) and to the base of his right eye socket (a comminuted right orbital floor fracture, which means that the bone had been broken into multiple pieces), as well as bruising to his right upper cheekbone and both eyes, left wrist, forearm and right arm below the shoulder. Dr Shuja described those injuries as "consistent with" the complainant's history that he had been hit "in the head and the face multiple times with a pole or Maglite", which he gave her that night.
After the incident, the complainant went to his stepbrother, Michael Wicks' house, which was about 200 metres or so "down the road". The ambulance and police were called. The police officers who visited the complainant's apartment that night were Constables Portbury and Cocking, and Senior Constable van der Reyden. The complainant was taken to Royal Prince Alfred Hospital, where he was examined by Dr Shuja. He gave statements to the police on that evening and on 2 June 2015. None of these signed statements or the police notebooks were in evidence, although each officer was cross-examined on their contents.
At 1.10am on 2 June 2015 (80 hours or so after the assault) a further Facebook message was sent from the applicant to the complainant: You want to continue?? One more word of bullshit cunt!!! 6 coories hey?? I know u can't seem to experience a day without lies and fabricated stories but it's like this. YOU HAVE NO EXCUSE. If you create one more bit of grief in Becks life, I will rain hell on yours. UNDERSTAND ME MOUTHPIECE?? That includes storytelling to claudine or nikki, whateva u call her. Either tell the truth or shut the fuck up ya snake. Not saying anything to you again, you get me dickhead. Wayne wants to talk to you too stupid. Weren't ready for that one were you. Your pissing us both off. One more peter , one more word

The defence case

The applicant's case was that he did not attend the complainant's premises on 30 May 2015, that he did not break into those premises, that he did not steal from the complainant and that he did not assault the complainant.
His evidence was that he only became aware that he was being blamed for these events when he was arrested on 15 October 2015. By that time he could not remember where he was or what he had been doing on the evening of 30 May 2015. He admitted that he knew and did not like the complainant. He also accepted that he was aware that the complainant had stayed at Ms Miller's house during May, but was not able to say when he first became aware of that.

Ground 1: Error in finding that the 2 June 2015 Facebook message was an admission

Although this ground as formulated is that the trial judge erred in finding that the Facebook message (extracted in [17] above) contained an "admission", the ground as argued was that his Honour erred in finding that it was "capable of constituting an admission" that the applicant was "involved" in the break and enter, and assault. Thus the question raised is whether the trial judge erred in ruling that such an inference was reasonably open to be drawn by the jury: see R v SJRC [2007] NSWCCA 142 at [38] - [40] (James J, Rothman and Harrison JJ agreeing).
The occasion for that ruling arose in the following way. The Facebook messages were tendered and admitted without objection during the complainant's evidence in chief. They were relevant on the Crown case as revealing the significant animosity between the two men and as identifying possible motives for the alleged assault, including it being in response to accusations by the complainant of paedophilia, and motivated by jealousy, following the complainant's recent contact with Ms Miller.
When the messages were first tendered, there was no debate about the use to be made of them, no application under Evidence Act 1995 (NSW), s 136 to limit their use, and no objection to their admission under s 137 on the basis that their probative value was outweighed by any danger of unfair prejudice to the applicant.
After the close of the Crown's case, the Crown having indicated that it proposed to address the jury on the basis that the last Facebook message was capable of conveying an admission, defence counsel sought the ruling now challenged. In delivering his reasons for that ruling, the trial judge also held that the use of the evidence as an admission did not carry with it a danger of unfair prejudice to the complainant. In doing so, his Honour cited the following statement of James J in R v SJRC at [38]: … provided that the evidence is capable of bearing the interpretation or of giving rise to the [inference] contended for by the Crown, the fact that the defence can suggest some other interpretation or inference which would be consistent with the innocence of the accused does not, of itself, show that any probative value the evidence has is outweighed by the danger of unfair prejudice.
The trial judge considered there were at least two relevantly available interpretations of the message. One was that the introductory words "you want to continue?? One more word of bullshit cunt!!! 6 coories hey??" and later statement "Weren't ready for that one were you" were references to the assault, the introductory question both acknowledging the applicant's involvement in that earlier conduct and raising the spectre of more. Another was that the later sentence "Weren't ready for that one were you" was directed to the immediately preceding statement, "Wayne wants to talk to you". The latter interpretation, contended for by the applicant, reads the two sentences following the reference to "Wayne", as concerned with him, whereas the former, contended for by the Crown, treats the message as more disjointed with the first of those two sentences harking back to the subject adverted to by the opening words. In my view, the message is capable of being read in either of these ways.
After the trial judge's ruling, the applicant gave evidence acknowledging that the reference to "6 coories" was to a story he had heard about the complainant having been "bashed" by 6 or 8 Aboriginal people, or that at least that was what he was alleging. The applicant also gave evidence that the complainant "didn't know I was friends with Wayne and Wayne was this guy he looked up to and admired like an icon". There was no application after that evidence was led for the trial judge to revisit the ruling as to the admissibility of this Facebook message. Nor is there any appeal from the trial judge's directions to the jury as to the respective interpretations of the message contended for by the Crown and defence.
Finally, it was suggested in oral argument that because the challenged ruling was made after the close of the Crown's case, the applicant was unfairly prejudiced because he lost the opportunity to cross-examine the complainant about this Facebook message.
The applicant's submissions should not accepted. As the Crown submitted, the evidence was admitted without objection during the complainant's evidence in chief. There was then the opportunity to cross-examine, which was not taken, even though the purposes for which the evidence might be used then undoubtedly included as an admission, because there were at least two relevantly available interpretations of the message, as the trial judge found.
Further, there was no application made to limit the use of the evidence under Evidence Act, s 136 because of any unfair prejudice said to arise from the timing of the ruling: see R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509 at [126] - [127], in which Wood CJ at CL (Sully and Howie JJ agreeing) accepted that an inability to cross-examine may constitute unfair prejudice.
In the result, while the applicant should have leave to argue ground 1, it must be dismissed, because there was no error in the ruling that the message was capable of constituting an admission that the applicant was "involved" in the break and enter, and assault. In the circumstances, that inference was reasonably open to be drawn by the jury.

Ground 2: Error in failing to warn jury appropriately about complainant's evidence

At the conclusion of the evidence, counsel for the applicant sought a Murray direction. The trial judge responded that he did not propose to give that direction and would give reasons "tomorrow morning". On the following day, His Honour stated to counsel, in the absence of the jury: My thinking was that the Murray direction is given in circumstances where the only evidence in the Crown case is that of the complainant. To give a Murray direction requires identifying what other evidence might be there in the Crown case and, if there is, it rather rebounds on…
To which the applicant's counsel responded: Yes, I see your Honour's point.
The matter was left there, the Crown submitting that the application was "ultimately abandoned", without the applicant having identified the features of the evidence which were said to require that a Murray direction be given in this case to avoid a perceptible risk of a miscarriage of justice: see, for example, the features identified by the Court in Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42 at [25]; by Kirby J in Tully v The Queen (2006) 230 CLR 234; [2006] HCA 56 at [57]; and as relied on by the defence in AL v Regina [2017] NSWCCA 34 at [62]; (2017) 266 A Crim R 1.
The need for a Murray direction has been particularly seen as arising in cases involving charges of sexual misconduct where there is "only one witness asserting the commission of the crime" and other features of that evidence which may affect an assessment of its reliability. In R v Murray (1987) 11 NSWLR 12, Lee J observed at 19: There will be cases where the failure to bring home to the jury the position of the uncorroborated witness will undoubtedly lead to the verdict being set aside but that is a different matter altogether from requiring a direction that it is unsafe to act on the uncorroborated evidence of the complainant in a sex case.
As explained by the Court in R v GW (2016) 258 CLR 108; [2016] HCA 6 at [50]: … A perceptible risk [requiring such a warning] arises when there is a feature of the evidence which may adversely affect its reliability and which may not be evident to a lay jury. The risk is perceptible to the court because judicial experience has shown that evidence of this description may be unreliable. Subject to any statutory prohibition, where there is a feature of that kind the fair trial of the accused requires the judge to draw it to the jury's attention, explain how it may affect the reliability of the evidence and warn the jury of the need for caution in deciding whether to accept it and the weight to be given to it.
And as emphasised in Robinson at [26], such a warning must be "of a kind which [brings] home to the jury the need to scrutinise with great care the evidence of the [uncorroborated witness] before arriving at a conclusion of guilt". In doing so the warning should refer to the particular features of the case which give rise to that need and be "expressed in terms which [make] clear the caution to be exercised in the light of those circumstances".
The Crown's submission that the application for a Murray direction was not pressed should be accepted, especially in circumstances where in the face of the trial judge's observation, counsel did not attempt to identify the features of the evidence that required such a warning be given. Nor did counsel make, or renew, that application at the end of the summing up.
Finally, the features of the evidence now relied upon, but not argued before the trial judge, did not make this a case in which it was necessary to give such a warning to avoid a perceptible risk of a miscarriage of justice. In this respect, they differ significantly from the features relied on in Robinson (at [25], [26]). In relation to charges of sexual assault and in circumstances where the victim's evidence was wholly uncorroborated, those features included the victim's youth at the time of the alleged offences, the 3-year period that had elapsed before the victim made his complaint which rendered it impossible to verify the complaint through medical examination, the maintenance of a "harmonious relationship" between the victim and appellant, the absence of any suggestion of earlier or later misconduct by the appellant towards the victim; and the possibility of a degree of suggestibility on the part of the victim.
The first of such features in this case is that the Crown relied principally on the evidence of the complainant. That is so, however this was not a case where his was the only evidence and wholly uncorroborated. For instance, the Facebook message of 2 June 2015 was capable of constituting an admission. Moreover, it was obvious that the case turned principally on the jury's assessment of the honesty and reliability of the evidence of the complainant, especially in the face of the applicant's sworn denial of his having been involved in the assault. Other than in relation to the complainant's identification evidence, there was no feature of his evidence which may have been unreliable in ways not apparent to the jury; and the trial judge gave specific directions about the reliability of his identification evidence, as well as a more general direction about the assessment of witnesses and the reliability and credibility of their evidence.
The next group of "features" are the complainant's intense dislike of the applicant and the aggressive tone of the Facebook messages which they exchanged. However, the jury were in as good a position as the trial judge to assess the reliability of the complainant's evidence in the light of that mutual dislike and aggression. The third is said to arise because there was evidence the complainant was using drugs. However, as the Crown submits, the unchallenged evidence was that the complainant was not using drugs or drug-affected at the time of the assault, and the trial judge made an observation about that in his summing up which is not the subject of complaint.
The final "feature" is that there were inconsistencies in the complainant's account of the theft and assault. Those inconsistencies were emphasised in defence counsel's closing address, and referred to in the trial judge's summing up as relied on to support the defence's claim that the complainant was a "dishonest witness" who engaged in "fabricating evidence". There was no aspect of this evidence of the complainant which may have been unreliable in a way that was not readily apparent to the jury or required some explanation.
As the application for the Murray direction was not pressed, and no further direction was sought at the close of the summing up, r 4 applies. The leave required by that rule should be refused, there being in the respects relied on no irregularity in the conduct of the trial involving a departure from what the law required.

Ground 3: Miscarriage of justice occasioned by directions as to Dr Shuja's evidence

Dr Shuja's qualifications included a Bachelor of Medicine, a Bachelor of Surgery and a Bachelor of Molecular Biology and Genetics. She examined the complainant in the Emergency Department of Royal Prince Alfred Hospital late in the evening on 30 May 2015. She noted he had head and facial injuries and took a history which included: … [h]e has entered his own house at about 6.00pm that night and had been assaulted by three or four people that were in his house, and they hit him in the head and the face multiple times with a pole or a Maglite, and then he called the ambulance himself after that… … [h]e did not lose any consciousness and that he remembered everything before and after the alleged assault, and that they were mainly facial injuries and he did not have any pain or any other obvious injuries anywhere else… … [he] did not have any headaches, did not feel nauseous, did not have any neurological symptoms, so, essentially, he didn't have any weakness or any pins and needles or numbness and was steady on his feet - he didn't have any … leaking of fluid from running - coming out of the nose or from the ears and he didn't have any blurry vision.
On the basis of this history, Dr Shuja concluded, there being no neurological symptoms, that there might not be a significant head injury to the brain. She also interpreted his CT scan, reporting that the complainant had a small subgaleal hematoma over the occipital region with an undisplaced linear fracture to the right occipital bone; comminuted right orbital floor fracture with 5 millimetres of depression and mild impingement of the inferior rectus muscle; and extensive right maxilla and periorbital soft tissue hematoma. Finally, she agreed that the complainant's skull fracture, fracture of the right eye socket, bruising of both eyes and bruising to the right maxilla were all consistent with the history he provided to her of having been hit to the head and face.
In his summing up having referred to Dr Shuja's evidence as to her examination and treatment of the complainant, the trial judge turned to her evidence based on the complainant's account of how he had been assaulted: An expert witness is a person who has specialised knowledge based on their training, study or experience. Unlike other witnesses, a witness with such specialised knowledge may express an opinion on relevant matters within his or her particular area of expertise. Other witnesses may speak only as to facts, that is, what they saw or heard, and are not permitted to express an opinion. Dr Shuja not only told you about these injuries but also expressed an opinion as to how they were caused. She said these injuries were consistent with how Mr Vandersteen said he sustained the injuries. Of course, the value of an expert opinion is very much dependent on the reliability and accuracy of the material which the expert used to reach their opinion. This is particularly so when the facts upon which the opinion is based do not accord with the facts as you find them to be… The expert evidence of Dr Shuja is before you as part of all the evidence to assist you with the area of her medical expertise which I have outlined to you. You should bear in mind that, if, having given the matter careful consideration, you do not accept her evidence, you do not have to act upon it. However, there has been no challenge to her expert evidence either in cross-examination or by calling evidence to the contrary. Accordingly, if the evidence of Dr Shuja is not inherently unbelievable, you would need to have a very good reason to reject it - for example, because it does not fit with the other facts which you have found proved.
The applicant maintains that this aspect of the trial judge's summing up was wrong in the following respects. First, it is said that Dr Shuja did not express an opinion about how the injuries "were caused". Strictly speaking that is correct because she made a statement as to the injuries being "consistent" with how the complainant said he received them, and not that they had been caused as the complainant alleged. However that was made clear to the jury by the following sentence of the summing up, the effect of which was no more than that the injuries could have been caused in the way the complainant reported. Secondly, it is contended that "by saying to the jury that [Dr Shuja] expressed an opinion about how [the injuries] were caused" the trial judge was suggesting that Dr Shuja's evidence in some way supported the conclusion that the injuries were caused by an assault occasioned by the applicant, as the complainant alleged. This second submission ignores the trial judge's language, which made clear that Dr Shuja's evidence was limited to an opinion that the injuries could have been caused in the way reported by the complainant, that report describing conduct and not identifying the applicant. The trial judge went on to emphasise that that opinion of Dr Shuja could be rejected if the jury did not find that the injuries happened as the complainant described.
This aspect of the summing up was not the subject of any complaint by defence counsel, and accordingly leave to argue this ground is also required by r 4. The absence of any such complaint ordinarily provides a reasonable basis for concluding that there was nothing unfair or misleading about the relevant direction: R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [90]; AP v R [2013] NSWCCA 189 at [29]. That is also my conclusion in this case. Leave to argue this ground should be refused.

Ground 4: Verdicts are unreasonable or cannot be supported having regard to the evidence

The applicant submits that in circumstances where the Crown case was principally reliant on the evidence of the complainant, the inconsistencies in, as well as the "fanciful" aspects of his evidence and absence of crucial evidence that the applicant knew where the complainant lived, should lead to a conclusion that the verdicts are unreasonable or cannot be supported, having regard to the evidence.
The appeal on this ground is brought under Criminal Appeal Act, s 6(1). The question the Court must ask itself in order to conclude that the verdicts are "unreasonable" or such as "cannot be supported, having regard to the evidence" is "whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty": M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63 (emphasis added); SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [11] - [12]; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66]. Another way of putting this question is, as Hayne J observed (Gleeson CJ and Heydon J agreeing) in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113], "whether the jury must, as distinct from might have entertained a doubt about the appellant's guilt". His Honour went on to emphasise: "It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard… [the evidence must] require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt."
That question is to be answered by this Court making its own independent assessment of the evidence: M v The Queen at 492; SKA v The Queen at [14]. Because the question is directed to whether the jury must have entertained a doubt, the difference between the jury's role and the court's role must be kept firmly in mind. The jury's role is to decide all issues of fact and accordingly in considering what was open to the jury this Court must give particular regard to the advantages enjoyed by the jury from seeing and hearing the witnesses called in the trial: M v The Queen at 493; Baden-Clay at [65]. Thus, in cases where the result may have turned wholly or largely upon questions of credibility, the jury's advantage in seeing and hearing the evidence may resolve a doubt experienced by an appellate court and result in a conclusion that it was open to the jury to be satisfied beyond reasonable doubt: M v The Queen at 494; SKA v The Queen at [13].
In support of this ground it is submitted that the "evidence of the complainant was not consistent with previous statements he had given, was inconsistent with objective evidence from the crime scene examination and as a whole raised issues which should have lead the jury to have a reasonable doubt".
First, it is pointed out that there was no direct evidence that the applicant knew where the complainant lived, and the applicant denied having such knowledge. However the complainant identified the applicant as being in his apartment and striking him. It was open to the jury to infer that the applicant had obtained such information from Ms Miller, the complainant's evidence being that she had visited his apartment "a few times". It was not necessary for her to know the street number of the apartment in order to tell or show the applicant where it was. The resolution of these issues of fact was for the jury, and depended critically on their assessment of the credibility of the complainant.
Secondly, it was said that there were no signs of any disturbance in the lounge room of the apartment where the assault was alleged to have occurred, making the complainant's version of events improbable. Senior Constable van der Reyden, from the Crime Scene Investigation Section, who inspected the apartment on the evening of 30 May 2015 and was present when photographs were taken, recorded: I commenced an examination of the living room. The room consisted of a brown fabric sofa, two single armchairs, a coffee table and television set. Opposite the doorway on the far wall is the further doorway leading into the bedroom. The [floor] was cluttered with rubbish, dog toys and grey-coloured sofa cushions. The wooden coffee table was positioned in front of the brown sofa and was cluttered with food items, bottles, drug paraphernalia, scissors and blister packets of medication. On the floor between the kitchen doorway and the coffee table I observed a square grey-coloured sofa cushion, which was partially covering a length of white metal pole. The pole was 78 centimetres in length. I did not observe any obvious stains…
The Senior Constable agreed that she specifically looked for blood but found no substance that was obviously blood in the kitchen, lounge room or bedroom. In cross-examination, she also agreed that she looked for but could not find any signs of "some kind of disturbance".
Her evidence was to be considered in the light of the evidence of Mr Wicks and Constables Portbury and Cocking. Mr Wicks' evidence was that when he visited the premises, which was just after the ambulance had left, he noticed "the door open, blood, shopping on the ground everywhere". He said he did not do anything at that time because the police would not let him do so until they had completed their investigation, but that at some later stage he had put "the frozens in the freezer so that they wouldn't go off", a reference to the complainant's groceries. Constable Cocking's evidence was that he saw the complainant at his stepbrother's house and then went to the complainant's house and established "a crime scene", suggesting that no one could have interfered with the apartment from that time. Constable Portbury visited the complainant's apartment sometime after Constable Cocking, but before the crime scene officers had arrived. She had a quick look inside the apartment describing it as "in disarray. There was things thrown all over the place. It looked like some kind of disturbance had happened there". This witness was not shown the photographs later taken by the crime scene officers and asked to comment on whether they showed the inside of the apartment as it was when she saw it.
The resolution of these differences in the evidence was for the jury. Their significance ultimately was as to whether what was described by the complainant as happening inside his apartment could have occurred without resulting in more disturbance and disarray than was observed by Senior Constable van der Reyden. That question directed attention both to the evidence of the other police officers and that of the complainant as to what happened.
The complainant's evidence in chief was that he had been hit in the head by the applicant as he entered the lounge room from the kitchen, and that shortly after that the applicant attempted to hit him again, there then being "a bit of a wrestle on the, on the couch for the torch". Constable Cocking's note, made on the evening of the assault, of what the complainant described after he walked into the lounge room and was hit from the left side with a "metal pole" included that he had wrestled with the applicant, grabbed the pole, "was pushed up against the doorframe" and "was hit with a metal pole from the right side". In taking account of this evidence, the jury also had the photographs of the lounge room, as well as the complainant's sketch showing his position and that of the applicant when he was "first hit". That sketch, drawn on 2 June 2015 when he was interviewed by Constable Chan, shows the applicant standing with his back to the wall beside the end of the couch furthest from the coffee table, making it plausible that the two men could have wrestled at that end of the couch without necessarily disturbing the contents of the coffee table. Accordingly, the absence of any evidence of disturbance to the surface of the coffee table was not inconsistent with the jury's acceptance of this evidence of the complainant as to how the attack proceeded. That version was also consistent with his reports of what had happened nearly three days later.
Thirdly, reference was made to other inconsistencies in the complainant's versions of events given at different times. As to the number of people involved in the break and enter, Constable Cocking recorded being told on the evening of the attack that one of the persons was the applicant wearing a "black jumper and blue jeans" and that there "was two other males, and a female". Later at the hospital, Dr Shuja recorded being told that the complainant had been "assaulted by three or four people". Earlier Constable Portbury had written in her notebook that there were "two blokes and girl" and later that "there were four people there". In cross-examination and in response to the suggestion that he had reported there were four people in the apartment, the complainant said that he explained to the police that he also heard people outside, and was sure that they must have been with "them". He also said that he did not mean by that to "put it across" that there were four people in the apartment. Again, it was for the jury as to whether they accepted the complainant's plausible explanation for these apparent discrepancies in his evidence. The complainant also gave evidence that there was blood splatter on the wall above the lounge. Mr Wicks gave similar evidence. The crime scene evidence was to the contrary. This also was a matter for the jury to resolve in assessing the complainant's overall credibility and the reliability of his evidence.
Fourthly, the complainant's evidence in chief as to the circumstances in which the dogs entered the apartment and three intruders left was described as "fanciful". That account included that as they were leaving the applicant took off his gloves and picked up a bottle of leather tanning fluid made from acacia and asked what it was, the complainant answering that it was "leather tanning". The applicant was said to have then put the bottle back on the bench and walked out. In cross-examination, he said that he was pretty sure that "both my dogs would have gone them". For the applicant, this account - which has him removing his gloves, presumably worn to prevent fingerprints being captured, and picking up a bottle, and thus leaving finger prints on it - is described as "fanciful". However, whether it was and how it affected the assessment of the credibility and reliability of the complainant's evidence remained matters to be assessed by the jury in the light of all the evidence.
One of the matters relied on by the applicant involves a misreading of the complainant's evidence. It was suggested that the complainant explained the motivation for his "abusive and threatening" Facebook messages as being to return certain possessions to the applicant, whereas those messages did not address that subject. However, the complainant was relevantly referring to his text messages to the applicant, as distinct from the Facebook messages, it being the complainant's evidence that those text messages initially commenced on Ms Miller's phone.
Finally, the applicant points out that the day before he gave evidence the complainant added a small blue suitcase containing borosilicate glassware, and the applicant's recycling bin and its contents to the things that had been taken from his apartment. Neither of these items was the subject of count 1. The complainant acknowledged that those items were first mentioned as "stolen" in a statement he made at the start of the trial. His omission to do so earlier was then the subject of brief cross-examination which left the position in relation to the glassware confused, the complainant believing that he had told the police about it at the outset and not having noticed that it was not mentioned in his statements. This is another asserted inconsistency in the complainant's evidence which the jury had to take into account, and may have done so by regarding it as immaterial to the central issues.
It was for the jury to deal with these inconsistencies and uncertainties in the complainant's evidence in the light of all of the other evidence, including the applicant's denial of any involvement. The other evidence included the complainant's identification of the applicant as being in the apartment and having struck him, the applicant's intense dislike of the complainant, the Facebook message relied on as an implied admission of the applicant's involvement, the complainant's contemporaneous reports to Mr Wicks and the police officers that the applicant was one of his attackers and the fact of his having suffered injuries which were consistent with his version of the attack as reported to Dr Shuja.
There is no matter in the evidence which required the conclusion that the jury should necessarily have had a reasonable doubt about the applicant's guilt. Having considered the evidence I am satisfied that it was open to the jury to be satisfied of his guilt beyond reasonable doubt on each of the counts charged. Leave is granted to the applicant to argue this ground, however the ground is dismissed.

Sentencing

As I have indicated above I agree with Button J in relation to the outcome of the applicant's sentencing appeal.

Conclusion

For the reasons set out above and given by Button J in relation to sentencing, the orders that I propose are: 1. Grant leave to appeal against conviction on grounds 1 and 4 and dismiss the appeal against conviction on those grounds. 2. Refuse leave to appeal against conviction on grounds 2 and 3. 3. Grant leave to appeal against sentence. 4. The sentence imposed by Judge Arnott SC for the offence of assault occasioning actual bodily harm in company that his Honour ordered was to commence on 9 December 2016 is ordered to have commenced on 3 September 2016 and to expire on 2 September 2019. 5. The sentence imposed by Judge Arnott SC for the offence of aggravated break, enter and steal that his Honour ordered was to commence on 9 December 2017 is ordered to have commenced on 3 September 2017 and to expire on 2 September 2023 with a non-parole period to expire on 2 March 2021. 6. Otherwise, those sentences are unchanged. 7. The sentence imposed by Judge Wilson SC that was to commence on 1 July 2019 is adjusted to have commenced on 26 March 2019 and to expire on 25 March 2024 with a non-parole period to expire on 25 March 2022.
SCHMIDT J: I have had the advantage of reading the judgments of Meagher JA and Button J.
I also agree with Meagher JA's reasons in relation to ground 1 and 3 on the conviction appeal and with those of Button J on the sentence appeal. I differ, however, with their Honours on ground 2, which I consider should be upheld, for reasons which follow. Accepting, however, that mine is the minority view on this ground, I also agree with the conclusions which their Honours have reached on ground 4 and with the orders which should accordingly be made.

Ground 2 - should a Murray direction have been given?

The reasons for the conclusions I have reached on ground 2 are as follows.
There is no question that the Crown is correct in submitting that while the application for a Murray direction was made at trial, it was not pressed by the applicant after an exchange between the trial judge and the applicant's counsel. Accordingly r 4 of the Criminal Appeal Rules (NSW) applies, but in all of the circumstances, I consider that the necessary leave should be given and this ground upheld, because the applicant has established that there is a risk that there has been a miscarriage of justice as the result of the failure to give that direction.
The key issue at trial was, as the Crown submitted, not the fact of the assault, but the complainant's identification of the applicant as the assailant, there being no other witness to the assault.
That raised issues of the kind discussed in R v Trudgett (2008) 70 NSWLR 696; [2008] NSWCCA 62 at [26] and [29]. Namely, that while recognition may be more reliable than identification of a stranger, mistakes in recognition are sometimes made and that there is also a danger that such a witness will propound his or her conclusion with force and conviction, with the result that the evidence is likely to be given special weight by a jury, even where its reliability is dubious.
The applicant's case that the complainant's evidence was not reliable was pursued in cross-examination. That was later argued to have established by the undisputed animosity which existed between he and the complainant; the complainant's drug use; the inconsistencies between the accounts the complainant had given to police and that given in his evidence; and that the state of the place where he claimed the assault in which he was injured had occurred, was not consistent with what the complainant had described having occurred there.
It was in that context that the application for the Murray direction arose to be considered. It was not pressed, after the following exchange: "HIS HONOUR: … My thinking was that the Murray direction is given in circumstances where the only evidence in the Crown case is that of the complainant. To give a Murray direction requires identifying what other evidence might be there in the Crown case and, if there is, it rather rebounds on … JEFFERY: Yes, I see your Honour's point. HIS HONOUR: … The other evidence in that case are these pockets of evidence, a dislike by the accused for Mr Vandersteen evidence of complaint to other people very promptly after the alleged offence in which he nominates the accused as the culprit, and also what the Crown would say is an admission in that last text message. There may be other things but they're the pockets of evidence which spring out"
On appeal the applicant thus submitted that the failure to give the Murray direction had the unjust result that he had been deprived of the benefit of the jury being warned by the trial judge that they had to take care in assessing the complainant's evidence, both as to its honesty and reliability, given that the complainant was the only person who was asserting that he had committed the offence with which he was charged.
Further, that he had also suffered the disadvantage that in the summing up, the trial judge not having given the Murray direction, still he referred the jury in any event, to the matters which his Honour considered would "rebound" upon him, if the Murray direction were to be given.
This unjust result was argued to have been compounded by the jury also being directed that the evidence of the complainant and the applicant had to be assessed in the same way.
There is no question that an accused can be convicted on the evidence of a single witness: Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42 at [19]. In such a case questions of unreliability can arise from matters personal to the witness, or from other circumstances. Thus a Murray warning must be given "when that is necessary", in order to avoid a perceptible risk of miscarriage of justice arising.
The circumstances in which such a risk may arise were discussed by Lee J in R v Murray (1987) 11 NSWLR 12 in the context of sexual offences and approved in Robinson at [21]. There Lee J said: "In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witness' evidence is unreliable. There will be cases where the failure to bring home to the jury the position of the uncorroborated witness will undoubtedly lead to the verdict being set aside but that is a different matter altogether from requiring a direction that it is unsafe to act on the uncorroborated evidence of the complainant in a sex case."
In Ewen v R [2015] NSWCCA 117; 250 A Crim R 544, Simpson JA observed at [140] that giving a Murray direction only because of the absence of corroboration, would be "tantamount to a direction that it would be dangerous to convict on the uncorroborated evidence of the complainant". That was not this case.
From her Honour's analysis of the cases in which members of the High Court had concluded that a Murray direction ought to have been given, she concluded that there were in each case "circumstances other than the absence of corroboration of the complainant's evidence that led to that conclusion": at [132]. Here there were such other circumstances, which thus had to be considered.
In The Queen v GW (2016) 258 CLR 108; [2016] HCA 6, where the question of the reliability of unsworn evidence arose to be considered, observations made at [50] are apposite to the giving of Murray directions: AL v Regina [2017] NSWCCA 34; 266 A Crim R 1 at [82]. The Court there said: "The requirement of the common law explained in Bromley, Crofts and Longman is to warn the jury whenever a warning is necessary in order to avoid a perceptible risk of a miscarriage of justice. A perceptible risk of that kind arises when there is a feature of the evidence which may adversely affect its reliability and which may not be evident to a lay jury. The risk is perceptible to the court because judicial experience has shown that evidence of this description may be unreliable. Subject to any statutory prohibition, where there is a feature of that kind the fair trial of the accused requires the judge to draw it to the jury's attention, explain how it may affect the reliability of the evidence and warn the jury of the need for caution in deciding whether to accept it and the weight to be given to it (footnotes omitted; emphasis added)."
Here there was certainly only one person, the complainant, who on the Crown case asserted that the applicant had assaulted him. The matters on which the applicant relied raised obvious questions as to the reliability of his evidence. The Crown thus relied on other circumstantial evidence to meet the onus which fell upon it, to establish the reliability of the complainant's evidence.
In those circumstances, in my view, there was a perceptible risk of a miscarriage of justice, there being features of the complainant's evidence which could adversely affect its reliability, which may not have been evident to the jury and thus ought to have been drawn to its attention, by a Murray direction.
The directions which were given, did not remove this risk.
Having refused to give the Murray direction, the trial judge directed the jury that it was part of their function to assess the evidence and that: "In making an assessment of whether you accept evidence is established by a particular witness's account you need to bear in mind that what you are concerned with is not just the honesty of a witness but the reliability of a witness. Of course, you may well decide not to rely on the evidence of a particular witness if it appeared to you that that witness was not giving evidence honestly. But, quite apart from questions of truthfulness, you should bear in mind that the evidence of a completely honest witness may not be reliable because of errors in observation or errors in a witness's recall of events or a witness's inability to accurately describe what he or she heard or saw. When you come to making an assessment of witnesses, and when you come to making an assessment of the evidence of witnesses, you should bear in mind that you do not have to accept everything that a witness said or reject everything that a witness said. It is open to you to conclude that you would not accept a particular witness at all as to anything that the witness said to you but, equally, it is open to you to say, "I accept certain parts of what the witness said as reliable evidence that I can act on, but I am not prepared to accept that witness about certain other parts of the evidence that he or she gave." In making your assessment of witnesses, you are not obliged to confine yourself to looking at the evidence of a particular witness in isolation. You are entitled to weigh all the evidence together in arriving at the factual determinations that you make. The question of the credibility or reliability of the evidence of the witnesses from whom you have heard is a question of fact and it is, therefore, a question for you to decide."
As to the applicant's evidence, his Honour directed: "The accused has given evidence in this trial on oath. He was not obliged to do that. He could have said nothing at all. He chose to give evidence and thereby to expose himself to cross examination. His choice to do that does not, of course, mean that the evidence that he gave was necessarily true. His evidence falls into the same category as the evidence of all other witnesses and you assess it in exactly the same way. By going into the witness box he made himself a witness like all others. Exactly the same principles then apply as you evaluate his evidence. The same considerations relating to his truthfulness and to his reliability of his evidence apply. What I want to emphasise to you is this: that by taking the course he did he in no way altered the fundamental principle concerning where the onus of proof lies. It is not for the accused to satisfy you of his innocence but the Crown to satisfy you of his guilt. In his evidence he said that he had nothing to do with breaking into Mr Vandersteen's unit and took no part in assaulting him. He said he had nothing to do with these allegations made by the Crown."
Later his Honour turned to the "central issue" in the trial, how the Crown set about proving beyond reasonable doubt that the accused was one of those who entered complainant's unit and attacked him. His Honour then described "the pockets of evidence" on which the Crown's case relied, beginning with the complainant's evidence that he had recognised the applicant. The other pockets of circumstantial evidence identified were:

the applicant's intense dislike of the complainant, revealed by the evidence of the complainant, applicant and the Facebook messages;
the admissions in the Facebook messages;
the evidence of complaint to the complainant's stepbrother and police; and
the applicant having the means to know where the complainant lived.

The trial judge then returned to each of these, explaining the Crown case in relation to each of them.
As to the recognition evidence he gave a warning in unexceptional terms, that the applicant's evidence had to be approached with caution, because his recognition could be unreliable, before identifying various matters which arose for consideration, in assessing its reliability. They included the circumstances in which he made the identification; that the applicant was not a stranger and the nature of their past interactions; the opportunity the complainant had to observe the person he thought was the applicant for about 5 minutes, during which the struggle in which he was assaulted occurred; what the complainant heard being said; the lighting; what was distinctive about the applicant; and whether the applicant was unconsciously influenced by his dislike.
As to that dislike, the trial judge directed: "Another pocket of evidence the Crown relies upon was the intense dislike, the Crown submitted, by the accused for Mr Vandersteen. The Crown asked you to look at the history of the relationship between them. How exactly their dislike for each other initially arose was not the subject of great detailed evidence in this case but there was the event of the accused telling Mr Vandersteen to get out of the caravan."
As to the complainant's drug use, the trial judge reminded the jury of the Crown's case that its only relevance was to support the conclusion that the complainant had been frank in his evidence as to his past drug use and that there was no evidence that he was drug affected at the time of the assault, only that he had consumed drugs a week before.
The trial judge then reminded the jury of the applicant's case, which included that the complainant was a dishonest witness; that the Crown case depended on acceptance of his evidence that his injuries had been suffered in the way he described; the state of the scene, however, was inconsistent with the struggle he described having there taken place; that the account he had given in his evidence differed to that given to police; and that he had fabricated his evidence. The applicant had also invited the jury to conclude that the complainant was a troublemaker who had falsely accused him, taking advantage of the Facebook messages, when it was the complainant who had been itching for a fight.
I consider that this case is akin to that which arose in Robinson, where a Murray direction had not been sought, in circumstances where the appellant had also given evidence. In that case there had been belated complaint made, but it was a combination of other factors peculiar to the complainant, which it was concluded required that a warning be given.
It was the absence of corroboration and the inconsistency and uncertainty of aspects of the complainant's evidence which together were there considered to have "created a perceptible risk of a miscarriage of justice which required a warning of a kind which brought home to the jury the need to scrutinise with great care the evidence of the complainant before arriving at a conclusion of guilt": at [26]. Further, that warning should have referred to those circumstances and "should have been expressed in terms which made clear the caution to be exercised in the light of" them.

Appeal against conviction

I have read the judgment of Meagher JA in draft with regard to the four grounds of appeal against conviction. I agree with his Honour that none of those grounds should be upheld.
With regard to ground 1, in my opinion the crucial Facebook message was certainly capable of constituting an admission by the applicant.
With regard to ground 2, I agree that r 4 should apply. I also agree that the evidence of the complainant was not uncorroborated; again, that is not least because of the available reading of the Facebook message. In those circumstances, I prefer not to go further to consider whether a "qualitative analysis" of assertedly crucial and uncorroborated prosecution evidence is appropriate in the context of an application for a "Murray direction".
With regard to ground 3, although the form of words used - in speaking of the doctor as having expressed an opinion as to how the injuries were caused - was not quite correct, r 4 should apply, and in any event, seen in context, the form of words cannot be characterised as a miscarriage of justice.
With regard to the contention in ground 4 that the verdicts are unreasonable or unable to be supported, in my opinion the crucial Facebook message rendered the Crown case quite strong.

Appeal against sentence

With regard to the application for leave to appeal against sentence, to recap: Judge Arnott SC imposed the following sentences for the two counts.
On count 1, the break, enter, and steal in circumstances of aggravation, a head sentence of imprisonment for 6 years, with a non-parole period of 3 years 6 months, to commence on 9 December 2017.
On count 2, the assault occasioning actual bodily harm in company, a fixed term of imprisonment for 3 years, to commence on 9 December 2016.
Accordingly, the longer sentence on count 1 commenced 1 year after the fixed term on count 2 commenced. The result of that is that a total head sentence of 7 years, with a total non-parole period of 4 years 6 months, was imposed for the two offences.
The annexed diagram sets out in readily comprehensible form that sentence structure. It also captures a subsequent sentence imposed by Judge Wilson SC, which is indirectly relevant to the orders that would need to be made if the second ground of appeal against sentence were successful.

Some aspects of remarks on sentence

In assessing the objective seriousness of the offence of aggravated break, enter and steal, Judge Arnott referred to various factors, including the quantity and value of the stolen property; the fact that that the offence was committed in the home of the victim; the fact that the offence was committed by the applicant in the company of two people; the fact that that there was no damage to the premises; the fact that the intruders were on the premises for a limited amount of time; the fact that the offence occurred in the early evening when it was dark; and that there was some degree of planning involved.
His Honour concluded that the objective seriousness of the first count "fell just below the middle of the range for offences of this type".
In relation to the second count of assault occasioning actual bodily harm in company, Judge Arnott took the view that serious injuries were inflicted, including fractures to the skull.
His Honour also assessed the applicant's role in the offence, finding that it was not proven to the requisite standard that it was the applicant who kicked the victim in the face. His Honour also observed that the injury by way of the fracture of the victim's right eye socket was amongst the most serious injuries inflicted. Whilst his Honour could not find that it was the applicant who caused this particular injury, Judge Arnott found that the applicant at least foresaw the possibility of this occurring. Therefore, the favourable finding did "little to lessen the seriousness of his actions".
Judge Arnott also had regard to the following in assessing the objective seriousness of the offence of violence: that the attack was unexpected, brutal, and involved a significant degree of violence and numerous injuries; that there was some planning involved; that a weapon, that is, a pole, was used; the favourable fact that the applicant could not have foreseen the possibility that one of his co-offenders would grab one of the victim's knives and threaten the victim with it; that the offence occurred in the victim's home; and that the Facebook message between the applicant and the victim indicated that the applicant took a leading role in the commission of the offences.
Accordingly, his Honour found that the offence "fell well within the middle of the range of objective seriousness for offences of this type".
Judge Arnott separately noted that there was a need for both personal and general deterrence, irrespective of the applicant's alleged motive for the commission of the offences.
In relation to the applicant's subjective circumstances, his Honour found the following.
The applicant was 40 years old at the time of the offence, and 42 when he stood for sentence.
As for the applicant's criminal history, the applicant's first offending was in 2006 for an offence of larceny. In 2007 he was imprisoned for offences of manufacturing prohibited drugs and possessing prohibited weapons without a permit. The applicant also has convictions for possessing or making explosives that were not for a lawful use (2007), contravention of an apprehended domestic violence order (2011), possession of a prohibited drug (2013 and 2015), and entering a building or land with intent to commit an indictable offence (2013). In January 2014 the applicant committed an offence of possessing identity information in order to commit an indictable offence, and possessing a prohibited drug.
At the time of the commission of the offences relevant to this appeal, the applicant was on bail for the January 2014 offences described above. His Honour noted that this was an aggravating factor.
As for matters of general background, the applicant's parents separated when he was 10 years old and he was raised by his mother. She had died a few years prior to the time of imposition of sentence. His father was hard, strict and violent at times. The applicant did not keep regular contact with his three siblings.
In relation to education and employment, the applicant did not finish high school, leaving halfway through year 11. He then undertook an apprenticeship in mechanics for four years, and then ran his own business in that area, as well as a machining and fabrication business, for a few years. He then constructed battery boxes for a forklifting company until he was imprisoned at the age of 30. After that, whilst the applicant did find work as a dogman and rigger, he experienced difficulty in finding employment due to his criminal history. His Honour recounted the applicant's aspirations to purchase a crane and run his own business when he is released from custody.
At the time of sentencing, the applicant was engaged to his partner, with whom he had been in a relationship for three to four years. The applicant stated he had numerous friends with no criminal history.
His Honour remarked that the applicant had a history of persistent drug use. The applicant had been using prohibited drugs occasionally in his younger years. However, from the age of 28 the applicant was heavily using amphetamines, until his arrest when he was 30 years old. The applicant stated to a psychologist that he had last used prohibited drugs "a couple of years ago", and had not used drugs in custody. The applicant also disclosed that whilst he has completed drug and alcohol courses in custody, he had learned "nothing new" because he had already decided to become abstinent.
His Honour also noted that the applicant started playing poker machines a few years prior to sentence, and that he was likely to be experiencing a "cognitive distortion" in relation to his seeming winnings.
It was found that the applicant was not contrite or remorseful for his offending.
After reflecting upon the applicant's criminal history, drug use history, cognitive distortions, and various problematic personality traits (such as an absence of accountability), Judge Arnott concluded that his prospects of rehabilitation and the unlikelihood of his reoffending were "presently guarded".
Lastly, his Honour considered that the applicant, by way of agreement to certain facts, economised the running of the trial, but only to a "minimal" extent; accordingly, his Honour gave moderate consideration for it.

Grounds of appeal

The following grounds of appeal on sentence were notified and pressed: 5. The sentence imposed on the [Applicant] was manifestly excessive in the circumstances. 6. His Honour erred in failing to take into account the [Applicant's] period of presentence custody from 16 October 2015 to 21 January 2016.

Submissions in relation to ground 5

In support of ground 5, senior counsel submitted that the finding made by his Honour about prospects of rehabilitation was erroneously adverse. It was said that, in finding that the applicant possessed a "persistent history of drug use", and that he possessed "cognitive distortions" about his gambling, his Honour had been too pessimistic.
It was also submitted that sentencing statistics demonstrate that the sentences ultimately imposed simply do not reflect the relatively measured findings made by the sentencing judge about the objective seriousness of each offence.
In oral submissions, senior counsel explained that the complaint about findings of fact was really to be understood as an explanation of how it was that sentences that, in her submission, did not give appropriate weight to the prospects of rehabilitation, came to be imposed.
As for the second aspect, the point was emphasised that, bearing in mind that the finding about the objective seriousness of the aggravated break and enter was "just below the middle of the range for offences of this type", and the finding about the objective seriousness of the offence of violence in company was that it was "within the middle of the range of objective seriousness for offences of this type", the sentences were simply too long, especially when one considers the total sentence arrived at due to the cumulation, to the point of being manifestly excessive.

Determination of ground 5

In my opinion, this ground should not be upheld. I say that because, as a reflection of the objective features of both offences, and the subjective features of the applicant, a total head sentence of imprisonment for 7 years with a total non-parole period of 4 years 6 months is unable to be characterised as manifestly excessive. I say that for the following reasons.
Objectively, this was a serious example of a planned invasion by a number of people of the home of the victim, whereby reasonably valuable items were stolen, and significant injuries were inflicted. In my opinion, it called for a substantial sentence of imprisonment.
Subjectively, the applicant did not accept his guilt at any stage, and expressed no remorse.
Regrettably, he was a man of mature years who had been intersecting with the criminal justice system since 2006. It is true that he did not have a record for violence, but there had been some serious convictions entered against him, including for manufacturing a prohibited drug, possessing a prohibited weapon, and possessing an explosive. Nor was he free of previous sentences of imprisonment. As well as that, the applicant was on bail for at least one other offence when he committed these two offences.
Separately, it could not be denied that his life had been distorted by dependencies, and he had certainly been a member of the drug milieu for an extended period. For those reasons, the guarded assessments of his prospects of rehabilitation and of his ability to avoid further offending were quite open to his Honour.
In similar vein, the findings about objective seriousness were not particularly beneficial to the applicant. For that reason, there is no disjunction between those findings and the length of the sentences imposed, whether one analyses them individually or as a total structure.
And in any event, it is important to bear in mind that the degree of concurrence between the two sentences was quite significant.
In short, it is true that the total head sentence of imprisonment for 7 years and the total non-parole period of 4 years 6 months must be characterised as substantial. But neither of those periods, in all the circumstances of this case, can be characterised as patently beyond the discretion reposed in the sentencing judge.
I would reject ground 5.

Submissions in relation to ground 6

As for ground 6, by the end of the hearing before us, it was the subject of a great deal of agreement between the parties.
It was agreed that the sentence structure imposed by Judge Arnott commenced on the date upon which the verdicts of guilty were returned, and the bail of the applicant was revoked; that is, 9 December 2016.
It was also agreed that, for a period between 15 October 2015 and 26 November 2015, the applicant was bail refused solely with regard to these two offences.
During the period from 26 November 2015 until 21 January 2016 (on which date the applicant was released to bail), the applicant was bail refused on these two offences, as well as at least one drug offence that ultimately led to the imposition of a partly cumulative aggregate sentence by Judge Wilson, as reflected in the diagram annexed to this judgment.
It was further agreed before us that neither Judge Arnott nor Judge Wilson gave the applicant credit for that period from 15 October 2015 until 21 January 2016.
The simple submission on behalf of the applicant was that, in the circumstances, this Court should take the opportunity to give him credit for each and every day that he has spent in custody with regard to these matters, whether solely or otherwise. As well as that, it was said that, if that submission were accepted and the commencement date of the two sentences was adjusted, but the sentence imposed by Judge Wilson was not identically adjusted, then the effective release date of the applicant would remain unchanged.

Determination of ground 6

Although the Crown faintly argued before us that, if the sentences imposed by Judge Arnott were otherwise appropriate, this Court retained a discretion not to adjust their commencement date, there is no reason why the applicant should not have credit for each day that he spent in custody bail refused. And in light of the fact that the "shared" period in custody was not given credit in the sentence imposed by Judge Wilson, the entirety of the period under discussion should be reflected in the sentence structure imposed by Judge Arnott. Accordingly, the commencement date of the sentence structure comprising both sentences under appeal should be "moved back" from 9 December 2016 by a period of 97 days, to 3 September 2016.
The diagram demonstrates that, if that were to occur, but the subsequent aggregate sentence imposed by Judge Wilson were not similarly adjusted, there would be no practical benefit to the applicant. But that can be readily solved, pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW), by moving back by 97 days as well the commencement date of that sentence, from 1 July 2019 to 26 March 2019.
Finally, in my opinion this is certainly one of the discrete adjustments, in accordance with Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255, that can be made in order to correct something in the nature of an oversight at first instance, without requiring a broad consideration of re-sentence, in accordance with Kentwell v R (No 2) [2015] NSWCCA 96.

Orders

The orders that I propose are: 1. Leave to appeal against sentence granted. 2. The sentence imposed by Judge Arnott SC for the offence of assault occasioning actual bodily harm in company that his Honour ordered was to commence on 9 December 2016 is ordered to have commenced on 3 September 2016 and to expire on 2 September 2019. 3. The sentence imposed by Judge Arnott SC for the offence of aggravated break, enter and steal that his Honour ordered was to commence on 9 December 2017 is ordered to have commenced on 3 September 2017 and to expire on 2 September 2023 with a non-parole period to expire on 2 March 2021. 4. Otherwise, those sentences are unchanged. 5. The sentence imposed by Judge Wilson SC that was to commence on 1 July 2019 is adjusted to have commenced on 26 March 2019 and to expire on 25 March 2024 with a non-parole period to expire on 25 March 2022.

R v Laughton (61.8 KB, pdf) R v Laughton (117 KB, jpg)

Amendments 05 April 2019 - 5/04/2019 - insert appendix 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: 05 April 2019

Criminal Appeal Rules 1952(NSW)

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