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Court of Criminal Appeal 12 September 2002

Regina v Cohen

[2002] NSWCCA 339

Sexual offencesAssault & violenceTheft & property
CRIMINAL LAW EVIDENCE CRIMINAL LAW DIRECTIONS TO JURY CIRCUMSTANTIAL EVIDENCE CRIMINAL LAW

Citation: Regina v Cohen [2002] NSWCCA 339
Court: NSW Court of Criminal Appeal
Date: 12 September 2002
Judge(s): Santow JA, Hidden J, Adams J

Background

The appellant was convicted in the District Court following a three-day trial on multiple offences arising from a break-and-enter at a Post Office residence in Peak Hill. During the incident, the offender confronted the occupants at knifepoint, stole approximately $4,400 from the safe, and sexually assaulted the female occupant. The central issue at trial was whether the appellant was correctly identified as the offender.

Evidence against the appellant included a fingerprint on the flyscreen of the entry window, DNA on the knife handle consistent with his profile, and testimony from his then-partner. She recounted that he returned in the early hours of the morning after the offence, said he had "done something silly" and needed to leave town, and that a sum of $3,100 in cash was later found under a pile of clothes in her home.

The appellant was sentenced to a total effective term of eight years with a non-parole period of six years, commencing 3 May 2001. He appealed against both conviction and sentence.

  • Whether cash seized from the appellant's partner's home was relevant and properly admitted into evidence
  • Whether a conversation between the appellant and his partner (in which he said he had "done something silly" and needed to leave town) was properly admitted
  • Whether identification evidence was properly admitted and whether it went to the identity of the appellant as the offender
  • Whether the trial judge adequately directed the jury on circumstantial evidence, including the principle that suspicion alone is insufficient for conviction
  • Whether the trial judge erred by failing to give a direction on the significance of flight
  • Whether the sentence was excessive, and whether special circumstances existed to justify departing from the standard non-parole period ratio

Decision

The Court dismissed each ground of appeal relating to evidence. The money found at the partner's home was relevant given the circumstances in which it was discovered, the timing relative to the offence, and the amount involved. The conversation in which the appellant said he had "done something silly" and needed to leave town was properly admitted and was probative of consciousness of guilt. The identification evidence, including the fingerprint and DNA, was appropriately placed before the jury and went directly to the question of the appellant's identity as the offender.

On the jury direction grounds, the Court found no material misdirection. Although the grounds raised complaints about the adequacy of directions on circumstantial evidence and the absence of a specific flight direction, the Court was not persuaded that these deficiencies, to the extent any existed, constituted appealable error on the facts of this case.

Regarding sentence, the Court accepted that the sentencing judge had not expressly addressed the question of special circumstances (which would allow a longer parole period relative to the head sentence). Adams J noted it would have been preferable to do so. However, the Court was not persuaded that special circumstances justifying a departure from the statutory ratio were actually present, given in particular the appellant's apparent refusal to engage with treatment for alcohol dependence and other underlying issues. The sentence was not found to be manifestly excessive, having regard to the serious aggravating factors: the offender was armed, on parole for robbery at the time, knew the premises were occupied, inflicted physical harm, committed sexual assault, and showed no remorse.

The Court also noted that the sentencing judge had considered the principles from R v Fernando regarding the relevance of the appellant's Aboriginal background, treating it as a material factor in the sentencing exercise.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Circumstantial evidence, including cash found at an associate's home, statements indicating a need to flee, and forensic material, can together support an identification finding where no single piece is conclusive on its own.
  • A sentencing court's failure to expressly address special circumstances under the Crimes (Sentencing Procedure) Act 1999 is not automatically a ground for appellate intervention if the evidence before the court does not in fact support a finding of special circumstances.
  • Under the Fernando principles, an offender's Aboriginal background and associated factors such as alcohol dependence are material considerations in sentencing, though they may not operate as mitigating factors where, for example, the offender refuses to engage with available treatment.
  • No error was established in the trial judge's handling of jury directions on circumstantial evidence or flight, notwithstanding that a flight direction was not given.
  • In dismissing the appeal, the Court of Criminal Appeal affirmed that aggravating features including the use of a weapon, commission of the offence while on parole, awareness that the premises were occupied, and the infliction of physical and sexual harm, are weighty considerations that can sustain a substantial sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 105A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Evidence Act 1995 (NSW), ss 55, 90, 135, 137

Cases:
- R v Alexander (1981) 145 CLR 395
- R v Davies and Cody (1937) 57 CLR 170
- R v Fernando (1992) 76 A Crim R 58
- R v Pitkin (1995) 80 A Crim R 302