Citation: [2002] NSWCCA 336; (2002) 132 A Crim R 371
Court: NSW Court of Criminal Appeal
Date: 20 August 2002
Judge(s): Spigelman CJ; Simpson J; Blanch AJ
Background
The appellant was convicted in the District Court on five counts arising from the dramatic helicopter escape of her partner, an inmate at Silverwater Gaol, on 25 March 1999. The Crown case was that the appellant booked a commercial joy flight at Bankstown Airport, produced a pistol during the flight, and forced the pilot at gunpoint to land inside the gaol grounds so that the inmate could board the aircraft. A second, larger weapon was also assembled and loaded during the flight.
After the helicopter landed at Macquarie University oval, the appellant and the escapee forced a member of the public at gunpoint to drive them to North Sydney, then fled the scene. The pair remained at large for approximately six weeks before being arrested at a Bass Hill tourist park cabin, where two loaded pistols were found. The appellant denied being the hijacker, claiming a professional had carried out the rescue and that she had met the escapee only after the event.
The appellant was convicted by a jury on all five counts: rescuing a prisoner in lawful custody by force, assaulting a member of an aircraft crew, detaining a person for advantage (kidnapping), and two counts of unauthorised possession of a firearm. She appealed against both conviction and sentence.
Legal Issues
- Whether pre-trial media coverage of the escape had improperly influenced the jury
- Whether the evidence was sufficient to support a reasonable conviction on the counts charged
- Whether certain evidence was correctly admitted at trial
- Whether the trial judge's directions to the jury were adequate
- Whether, on the firearms counts, the trial judge improperly removed questions of fact from the jury by not requiring a co-offender to testify on the issue of exclusive possession
- Whether the appellant was doubly punished because the use of force was an element of more than one offence
- Whether the sentences imposed were disproportionate compared to the sentence imposed on the co-offender (the escapee), and whether the overall sentence was manifestly excessive
Decision
The Court dismissed the conviction appeals across all counts. Spigelman CJ found sufficient evidence to support the jury's verdicts, and no errors were identified in the admission of evidence or the trial judge's directions. The identification issue, which formed the core of the appellant's defence, had been squarely put to the jury.
On the firearms counts, the Court rejected the argument that the trial judge was required to call the co-offender to give evidence. The issue of exclusive possession was properly left as a question of fact for the jury, and no error was established in the manner in which that question was handled.
On the sentence appeal, the Court considered the disparity between the appellant's sentence and the lighter sentence imposed on the co-offender. The Court acknowledged that elements of parity favoured the appellant, including her good character and better prospects of rehabilitation. However, it noted that the co-offender had been sentenced for additional offences, and that the execution of the escape demanded considerable boldness and detailed planning, which did not support the characterisation of the appellant as a passive or submissive participant.
The Court found no double punishment arising from the use of force appearing as an element in multiple offences. The ten-year head sentences on counts one and two, while substantial, were significantly below the fourteen-year maximum. The sentencing judge was entitled to place the offending in the higher range of seriousness, having regard to the threatened violence against the helicopter pilot. The sentences were within the range of a reasonable exercise of discretion, and the Court declined to interfere.
Orders Made
- Appeal dismissed.
Key Takeaways
- Sufficient evidence existed at trial to support the jury's verdicts on all five counts, and no error was established in the admission of evidence or the adequacy of jury directions.
- Pre-trial media coverage of a high-profile offence does not, of itself, invalidate a conviction; the appellant's argument that the jury was improperly influenced did not succeed on the facts.
- Where exclusive possession of a firearm is in dispute, the trial judge is not required to call a co-offender to testify; the question remains one of fact properly left to the jury.
- In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that a disparity between co-offenders' sentences does not automatically warrant appellate intervention, particularly where the co-offender was sentenced for a different mix of charges.
- Planning and executing an escape involving threats of violence with firearms places offending in the higher range of seriousness, even where the offender argues emotional vulnerability or the dominant influence of a co-offender, absent factual findings supporting that characterisation.
Legislation and Cases Referenced
Legislation:
- Correctional Services Act 1952 (NSW), s 32
- Crimes Act 1900 (NSW), ss 90A, 206(a)
- Evidence Act 1995 (NSW)
- Firearms Act 1996 (NSW), s 7(1)
Cases:
- Environmental Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502
- Glennon v The Queen (1992) 173 CLR 592
- Long v R [2002] QSC 54
- Murphy v The Queen (1988) 167 CLR 94
- Pearce v The Queen (1998) 194 CLR 610
- Pemble v The Queen (1971) 124 CLR 107
- Queen v Apostilides (1984) 154 CLR 363
- R v Bell, NSWCCA, 8 October 1998 (unreported)
- R v D'Arcy [2001] QCA 325
- R v Killick [2002] NSWCCA 1
- R v Milat, NSWCCA, 26 February 1998 (unreported)
- R v VPH, NSWCCA, 4 March 1994 (unreported)