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Court of Criminal Appeal 28 July 1999

Regina v A M P Helene

[1999] NSWCCA 203

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL PRACTICE & PROCEDURE DIRECTIONS ON THE ELEMENTS RELATING THE ELEMENTS TO THE EVIDENCE ARMED ROBBERY JOINT CRIMINAL ENTERPRISE AIDING AND ABETTING

Citation: Regina v A M P Helene [1999] NSWCCA 203
Court: Court of Criminal Appeal, New South Wales
Date: 28 July 1999
Judge(s): Ireland J, Kirby J, Carruthers AJ

Background

The appellant was convicted in the District Court following a trial arising from two incidents on the night of 29 August 1997 at Campbelltown. The first involved the production of a machete towards two teenage boys, giving rise to assault charges. The second, occurring minutes later, involved the robbery of those same boys of cash, with the machete and a walking stick said to have been used as offensive weapons.

The appellant was a distinctive figure: he walked with a limp following a serious motor vehicle accident, used a walking stick, and was wearing a bandanna that night. He admitted having the machete but denied pointing it at the complainants. His position was that others, not him personally, carried out the robbery of the boys' money, and that his role was peripheral at most.

On appeal, the appellant challenged both his conviction on the armed robbery counts and the sentences imposed by the trial judge.

  • Whether a trial judge is obliged to identify the elements of the offence charged in the summing up
  • Whether the trial judge was required to relate the evidence to each element of armed robbery
  • Whether the jury's attention should have been drawn to a significant discrepancy between the two complainants' accounts, and its relevance to the indictment
  • Whether the sentences imposed were outside the permissible sentencing discretion, having regard to the guideline judgments in Regina v Henry & Ors

Decision

Kirby J identified the central problem with the trial judge's summing up: the judge neither identified the elements of armed robbery nor directed the jury on the evidence capable of supporting each element. This was a material omission, and the jury's attention was not drawn to a notable discrepancy between the two complainants' accounts that bore directly on the terms of the indictment.

The Court allowed the appeal against conviction on that basis. The conviction was quashed and the matter remitted for a new trial on the assault counts.

On sentence, Carruthers AJ acknowledged favourable subjective features: the appellant was almost 20 at the time, had suffered serious orthopaedic injuries in a prior motor vehicle accident, had no substantial prior record, had offered assistance to authorities, and was considered unlikely to reoffend. However, the objective seriousness of the offences was significant. The appellant had been wandering with a machete concealed in his jacket sleeve, and the sentencing judge identified a strong public deterrence element. Carruthers AJ concluded that the sentences were not outside the available discretion and dismissed the appeal against sentence.

Orders Made

  • The appellant was granted leave to amend the Notice of Appeal to add Ground 7
  • The appeal against conviction was allowed
  • The conviction was quashed and the sentence set aside
  • A new trial was ordered in respect of counts 1 and 2 (the assault charges)

Key Takeaways

  • A trial judge conducting a criminal trial is obliged to identify in the summing up the elements of the offence charged, at least those that remain genuinely in dispute, and to relate the evidence to each element.
  • Failure to direct a jury on the elements of armed robbery, and to connect the evidence to those elements, constitutes a significant misdirection capable of vitiating a conviction.
  • Where a material discrepancy exists between two complainants' accounts and is relevant to the terms of the indictment, the jury must have its attention drawn to that discrepancy.
  • Upholding the sentences imposed at first instance, the Court of Criminal Appeal confirmed that objective seriousness, including the carrying of concealed weapons in public and the public deterrence imperative, can outweigh otherwise favourable subjective circumstances.
  • Guideline judgments, specifically Regina v Henry & Ors, serve as the benchmark against which sentences for armed robbery are assessed on appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61, 97(1)

Cases
- Yager v The Queen (1977) 13 ALR 247
- Zorad v The Queen (1990) 47 A Crim R 211
- Tangye v The Queen (1997) 92 A Crim R 545
- Osland v The Queen (1998) 159 ALR 170
- Alford v McGee (1951-52) 85 CLR 466
- Regina v C (CCA, unreported, 23 May 1994)
- Regina v Blanch (CCA, unreported, 9 August 1994)
- R v Lowery & King (No 2) [1972] VR 560
- Regina v Vester Fernando & Anor [1999] NSWCCA 66 (unreported, 14 April 1999)
- Regina v Henry & Ors [1999] NSWCCA 107 (unreported, 18 May 1999)