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Court of Criminal Appeal 10 October 2000

Regina v Lee

[2000] NSWCCA 392

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW ASSAULT WITH INTENT TO ROB IDENTIFICATION EVIDENCE ACT SS 116, 165 DIRECTIONS AS TO IDENTIFICATION SENTENCE

Citation: Regina v Lee [2000] NSWCCA 392
Court: NSW Court of Criminal Appeal
Date: 10 October 2000
Judge(s): Newman J, O'Keefe J, Whealy J

Background

The appellant was convicted by a jury in the District Court of assaulting a video store owner with a firearm with intent to rob her, contrary to s 97(2) of the Crimes Act 1900. The offence carries a maximum penalty of 25 years' imprisonment. The trial judge, Davidson DCJ, imposed a head sentence of eight years, structured as a minimum term of six years and an additional term of two years.

The incident occurred on the evening of 21 March 1995 at a video store in Paddington. Two men entered the store; one, described as being of Asian appearance, produced a firearm and demanded money. The store owner resisted, struck the man with a stool, and he fled. Police subsequently showed witnesses photographs, and the appellant was identified.

The appellant appealed against both his conviction and his sentence. On conviction, the core ground was that the trial judge had misdirected the jury on identification evidence. On sentence, the appellant argued that the minimum and additional terms should be restructured to reflect special circumstances.

  • Whether the trial judge's directions to the jury on identification evidence complied with the requirements of the Evidence Act 1995 (ss 116 and 165) and the principles in Domican v R (1992) 173 CLR 555
  • Whether the conviction was unsafe given that identification was the central issue at trial
  • Whether special circumstances existed to justify altering the statutory ratio between the minimum and additional terms of the sentence
  • Specifically, whether serving a sentence in protective custody, or the contents of a psychologist's report, constituted special circumstances warranting a restructured sentence

Decision

On the conviction appeal, the Court considered whether the trial judge had adequately directed the jury about the dangers inherent in identification evidence. The Court found that the directions given satisfied the requirements under ss 116 and 165 of the Evidence Act 1995 and were consistent with the principles established in Domican v R. The identification evidence came from two witnesses who had observed the offenders under reasonably good lighting conditions, and the jury had been properly warned of the risks associated with relying on such evidence.

On the sentence appeal, the appellant advanced two arguments for finding special circumstances. First, that he was required to serve his sentence in protective custody. Second, that the trial judge failed to give proper weight to the report of a psychologist, which described the appellant's personal development during his time on remand. The Court rejected both arguments.

As to protective custody, the Court applied its earlier unreported decision in S (NSWCA, 24 February 2000), which established that the hardship of serving time in protective custody cannot properly operate either to discount the total sentence or to constitute special circumstances for reducing the minimum term as a proportion of the head sentence. As to the psychologist's report, the Court found that the sentencing judge had dealt with its contents in depth. The judge acknowledged the appellant's rehabilitation prospects but concluded that an extended additional term was not necessary to promote further rehabilitation. No error was identified in that reasoning.

Orders Made

  • Appeal against conviction dismissed
  • Leave granted to appeal against sentence, but appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that directions on identification evidence must comply with both ss 116 and 165 of the Evidence Act 1995 and the principles in Domican v R, but found no error in the directions given at trial in this case.
  • Serving a sentence in protective custody does not, of itself, justify discounting the total sentence or constitute special circumstances warranting an increase in the additional term as a proportion of the head sentence.
  • No error was established in the sentencing judge's treatment of a psychologist's rehabilitation report where the judge had engaged with its substance and provided reasons for declining to extend the additional term.
  • In dismissing both appeals, the Court applied existing authority to reinforce the limits of "special circumstances" as a basis for restructuring sentences under the sentencing framework then in force.
  • Sufficient evidence of identification existed, based on observations by two witnesses under good lighting conditions, to sustain the conviction despite identification being the central contested issue at trial.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(2)
- Evidence Act 1995 (NSW), ss 116, 165

Cases:
- Domican v R (1992) 173 CLR 555
- R v Heuston (1995) 81 A Crim R 387
- R v Davies & Cody (1937) 57 CLR 170
- R v Clarke (1993) 71 A Crim R 58
- R v Pitkin (1995) 130 ALR 35
- R v Lee, unreported, NSWCA, 24 March 1997
- S, unreported, NSWCA, 24 February 2000