REGINA v Stephen Andrew GORDON

REGINA v Stephen Andrew GORDON - [2004] NSWCCA 45 - NSWCCA 2004 case summary — Zoe

[29]

31 After some further exchanges the Judge said: "You say it shouldn't get to the jury. LOZINA: That's right, and it is because of the lack of variety in - or persons, which would fit the description given by the witnesses. As I said there's no blonde headed person there. There's no … HIS HONOUR: Yeah I understand your submission. Look if it was a matter for me I might agree with you, but it's not a matter for me. That's as I say as I understand - is that right Mr Crown? CROWN PROSECUTOR: Your Honour's being asked to exercise your discretion but I would agree with your Honour that this is a case for the jury. HIS HONOUR: See it's not a question of discretion. The evidence is either admissible or it's not admissible. CROWN PROSECUTOR: I've just taken what my friend was saying to be couched in terms of your Honour's discretion as to the probative value of the evidence as opposed to … HIS HONOUR: Well I think that's - questions of identification, that's a matter for the jury and as I understand the law and the Court of Criminal Appeal says it's not a matter for me to say that the evidence is insufficient, if there is evidence they're to go to the jury. It's a matter for the Court of Criminal Appeal. CROWN PROSECUTOR: The Crown acknowledges there are difficulties with the evidence but it's certainly evidence that a jury should see. In fact I'm surprised the defence are complaining that, where somebody's described as blonde and twenty photos of someone with dark hair are shown, I would have thought that would have assisted the accused rather than militate against … LOZINA: Your conclusion I think is … HIS HONOUR: No look I just think it's a matter for the jury. As I say I don't think it's the best Crown case I've seen by a long time, but I just think it's a matter for them to consider. LOZINA: Please the Court." (T 15 23/09/02) 32 On the hearing of the appeal counsel focussed attention on his Honour's remark, "look if it was a matter for me I might agree with you, but it's not a matter for me". In her submission this passage demonstrated that the Judge did not appreciate that s 135 and/or s 137 conferred on him a discretion to refuse to admit the evidence of identification. In her submission the Judge, wrongly, approached the voir dire on the basis that the identification evidence was admissible and that he was required to admit it. I am not inclined to accept that the Judge was not aware that he had a discretion to refuse to admit evidence tendered by the prosecution in criminal proceedings. If it were the Judge's understanding that the evidence was admissible and that he was required to admit it, it is not clear why he acceded to the request that he hold a voir dire hearing.

[35]

37 In Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 McHugh J observed at [50], [51] and [52]: "The evidence identifying Ms Festa as the woman seen on the days of the robberies was weak. The identifications were obtained in circumstances marked by an absence of the precautions usually taken in the identification of suspects. They were made in informal circumstances, as Ms Festa was entering a court building unaccompanied by any other women. No police officer kept a record of the identification process. No one made notes of the process. No one took photographs of the identifications or recorded them on video camera. By asking the witnesses to look out for the female participant and allowing them to remain together, Detective Holmes also removed the possibility of each witness spontaneously identifying Ms Festa as the woman he or she had seen. But the weakness of relevant evidence is not a ground for its exclusion. It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task. Nor is it an automatic ground of exclusion that the identification took place at a court house or after someone has suggested that a suspect may be present at a particular place. The courts have not gone so far as to say that a court house identification must be automatically excluded where a police officer or other person has suggested that the identifying witness should be on the lookout for the perpetrator of the crime at the court house. Such statements inevitably weaken the effect of the identification evidence. They are matters to be considered in determining whether evidence should be excluded because its probative value is outweighed by its prejudicial effect. Of itself, however, a statement such as that made by Detective Holmes does not provide a ground of exclusion."

[51]

53 In the event, on 22 November 2002 the applicant was arraigned on an indictment and he entered pleas of guilty to the following charges: (i) Steal from the person in an amount of $750 on 8 October 2001, (ii) assault Stephen Watson a police officer whilst the officer was acting in the execution of his duty thereby occasioning actual bodily harm to him, (iii) attempt escape from lawful custody on 9 November 2001. 54 The Form 1 document recorded three further offences: (i) common assault committed on 9 November 2001; (ii) assaulting a police officer (throwing a shoe at an officer in the charge room at the police station on 9 October 2001); and (iii) assaulting Police Officer Bates (punch to the head in the charge room at the police station on 9 October 2001). 55 Count one in the indictment, the charge of steal from the person, was preferred under s 94 of the Crimes Act and carries a maximum penalty of 14 years' imprisonment. 56 Count two in the indictment, the charge of assaulting a police officer in the execution of duty thereby occasioning actual bodily harm is provided by s 60(2) of the Crimes Act and carries a maximum penalty of seven years' imprisonment. 57 Count three in the indictment, the charge of attempted escape from lawful custody is a common law offence for which the maximum penalty is at large. 58 The facts of the offences for which the appellant stood for sentence on 22 November 2002 were described by the Judge in his reasons for sentence as follows: "The facts in relation to the accused are that at the time these offences were committed, he was on parole from a sentence imposed by the Court of Criminal Appeal, and the parole was to expire on 19 March 2004. The offender has been in custody since 9 October serving the balance of his parole. The facts in the armed robbery found by the jury, as I understand, are that the accused entered on the date 25 September the Windsor branch of the Westpac Bank armed with a firearm, and the four customers in the Bank and the staff were threatened, customers were told to lie on the floor, and the tellers threatened and told to pass over the money they had. They passed over some $12,000 and the prisoner fled. It was a terrifying incident for all those people who were in the Bank. Subsequently, before his arrest, he went into premises in relation to the Dural Pet Shed at 387 Old Northern Road, Dural, and in the ultimate there he stole $750 from the cash register and he told the young lady who was there words to the effect, 'don't do anything, don't you fucking move'. She was petrified. He was arrested on 9 October and charged with that offence and the offence of armed robbery. He subsequently made an application to the Local Court at Penrith for bail. In the course of that application, he attempted to escape. He was held by officers there including the Police Prosecutor, a struggle ensued and the Police Prosecutor suffered some injury, glasses were broken and his eye - the area around his eye was cut and so on." (ROS 1-2) 59 The applicant was aged 29 at the date of sentence. He had been in custody since his arrest on 9 October 2001. As the Judge noted, he was serving the balance of parole in respect of a sentence imposed by this Court on 4 March 1998 following a successful appeal against the severity of sentences imposed in the Sydney District Court on 9 May 1997 in relation to a number of offences including robbery, steal motor vehicle (seven counts) break, enter and steal and stealing from the person (four counts). The sentence that was substituted in this Court provided a minimum term of five years' imprisonment, to date from 20 March 1996 and to expire on 19 March 2001 together with an additional term of three years. 60 The applicant is a person with a lengthy criminal record, dating back to entries for offences that were dealt with in the Children's Court. As an adult he has been convicted and sentenced to terms of imprisonment on a number of occasions for offences including larceny, steal motor vehicle, assault prison officer, escaping from lawful custody, assault occasioning actual bodily harm and those the subject of the sentence that he was serving at the date of the commission of the present offences. 61 The Judge noted the subjective case made by the appellant in these terms: "Subjectively, the prisoner is a young man of some twenty-nine years of age. His history and background have been set out in a psychological report. He did not give evidence, but I see no reason not to accept the evidence of what told the psychologist in the circumstances of this particular case, and it would appear that he has had a somewhat, indeed more than a somewhat, dysfunctional upbringing and background. He has a record going back to juvenile court when he was very young. The offences for which he has appeared before these Courts are serious. On prior occasions, he has a history of violence both in custody and out of custody by the very nature of the offences that he has committed, and he has spent a large portion of his adult life in custody and indeed some of his growing up years as well." (ROS 2-3).

[52]

His Honour went on to note that the appellant's criminal record did not "mean that he gets more because of that record" (ROS 3), however it did not entitle him to leniency. No discount applied to the sentences for the armed robbery offences. However the Judge allowed a discount of 20% with respect to the offences to which the appellant pleaded guilty on 22 November 2003. 62 The Judge took into account that in pleading guilty the appellant had spared Ms Freeman, the complainant in the steal from the person count, the ordeal of giving evidence. He noted that the appellant had written to each of the people involved in the escape episode at the Local Court and to the victims of the offences recorded on the Form 1. His Honour accepted that this evidenced remorse. 63 The Judge considered that this was an appropriate case in which to provide for a measure of accumulation in the sentences to be imposed. It cannot be said that he was in error in this respect. He found special circumstances taking into account the submission made by Ms Spears that the appellant was a person at risk of being institutionalised. 64 On the charge of steal from the person the Judge imposed a fixed term of 18 months' imprisonment to commence on 22 November 2002 and to expire on 21 May 2004. 65 On the charge of assaulting a police officer in the execution of his duty thereby occasioning actual bodily harm a fixed term of three years' imprisonment was imposed. That sentence was specified to commence on 22 November 2002 and to expire on 21 November 2005. 66 On the charge of attempted escape a fixed term of two years' imprisonment was imposed. That sentence was expressed to commence on 22 November 2002 and expire on 21 November 2004. Each of the offences to which the appellant pleaded guilty on indictment was ordered to be served concurrently. The longest of these was expressed to expire on 21 November 2005. 67 In relation to the two convictions for the offences of armed robbery sentences of eight years imprisonment were imposed. These were expressed to commence on 22 November 2004. They were thus partly accumulated on the sentences imposed for the three offences to which the appellant had pleaded guilty. A non-parole period in relation to the armed robbery offences of three years was specified to commence on 22 November 2004 and to expire on 21 November 2007. 68 The overall sentence imposed by the Judge was one of ten years' imprisonment. The effective non-parole period was one of five years.

[55]

75 The appellant sought to lead new evidence on the hearing of his application. The evidence was contained in an affidavit affirmed by the appellant on 4 March 2004. He stated: "I have been on protection since 1994 when I was the victim of knife attack at Silverwater Jail. When I returned to jail after the attempted escape from Penrith Court on 9/11/01, I was classified as an 'extreme high risk' inmate. At the time I was sentenced I was on segregation. I did not realise that I should point out to my counsel that my 'normal' classification was as a protection inmate. Since 2/7/03 I have been housed at the High Risk Management unit ('Supermax') at Goulbourn Correctional Centre. I am not classified as being on segregation." 76 The appellant went on to describe the conditions for prisoners held in the High Risk Management Unit. Conditions are considerably more restrictive for prisoners housed in that Unit than they are for prisoners in ordinary discipline. 77 This Court has exceptionally allowed new evidence on the hearing of an application for leave to appeal against the severity of sentence in a case where the applicant failed to understand the significance of the material: R v Many (1990) 51 A Crim R 54 at 61. In that case the applicant had not appreciated the significance of his assistance to the authorities to the exercise of the sentencing discretion. Many was an unusual case. The present application does not raise like considerations. The applicant's custody is likely to be of a more restrictive nature than applies to other inmates because of his history of attempting to escape from custody. I do not consider that a person who has a history of escaping or of attempting to escape from custody can claim a discount on his sentence because the correctional authorities classify him as a prisoner who requires to be held in conditions of high security: Killick [2002] NSWCCA 1; (2002) 127 A Crim R 273 per Smart AJ at 283. The material contained in the applicant's affidavit would not in my view have led the Judge to impose a different and lesser sentence.

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