Citation: Regina v Kemsley [2003] NSWCCA 221
Court: New South Wales Court of Criminal Appeal
Date: 8 August 2003
Judges: Wood CJ at CL; Simpson J; Adams J
Background
The appellant was convicted by a jury in the District Court of aggravated robbery under s 95(1) of the Crimes Act 1900, with the aggravating circumstance being the use of corporal violence. The offence arose in the early hours of 19 January 2002 in Gosford, when the appellant confronted a man who had been in a relationship with his girlfriend during the appellant's twelve-month absence overseas.
The appellant struck the complainant, placed him in a headlock, and tore a necklace and earring from him while the complainant was on the ground. The appellant was subsequently sentenced to two years' imprisonment with a non-parole period of twelve months.
The appellant appealed both his conviction and the severity of the sentence. The conviction appeal centred on evidence that emerged during the trial about a separate alleged assault by the appellant on a Crown witness, Derek Clay.
Legal Issues
- Whether evidence adduced during cross-examination of Crown witness Clay, relating to a separate alleged assault by the appellant on that witness, was so prejudicial that it should have been excluded under ss 135 or 137 of the Evidence Act 1995, rendering the conviction unsafe.
- Whether the defence's tactical decision to elicit that evidence in cross-examination affected the admissibility argument.
- Whether the sentence of two years' imprisonment with a twelve-month non-parole period was outside the range available to the sentencing judge.
Decision
Conviction appeal
The conviction appeal arose from a tactical decision by trial counsel to cross-examine Crown witness Clay about alleged hostility toward the appellant. That line of questioning led Clay to disclose that the appellant had elbowed him in the head and that he had undergone facial reconstruction as a result. The Crown then expanded on this in re-examination.
The appellant argued on appeal that this evidence was unfairly prejudicial and should have been excluded under ss 135 or 137 of the Evidence Act 1995. However, the Court found that the evidence was introduced by the defence itself, and that the Crown's subsequent re-examination flowed directly from that cross-examination. In those circumstances, no error was established in the trial judge's handling of the evidence, and the conviction appeal was dismissed.
Sentence appeal
The sentencing judge found that the appellant had formed a pre-existing intention to assault the complainant and executed that plan as soon as he identified him. Although the primary motivation was not theft, the jewellery was taken to humiliate the complainant. The sentencing judge found no remorse and observed that the appellant appeared to regard his admitted assault as wholly justified.
Special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 were found, extending the parole period to allow the appellant to address anger management and cannabis dependency issues. The Court of Criminal Appeal accepted that another judge might have imposed a lower sentence, but found the sentence was within the range legitimately available. Leave to appeal was granted but the appeal was dismissed.
Orders Made
- Appeal against conviction dismissed.
- Leave to appeal against sentence granted; appeal against sentence dismissed.
Key Takeaways
- Where defence counsel elicits potentially prejudicial evidence through cross-examination, a subsequent argument that the same evidence should have been excluded under ss 135 or 137 of the Evidence Act 1995 faces significant difficulty.
- A Crown re-examination that expands on matters first raised by the defence in cross-examination will not readily be characterised as an independent error, particularly where the line of questioning was a deliberate tactical choice.
- In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that an appellate court will not intervene merely because a different judge might have imposed a lower sentence; the question is whether the sentence fell outside the range legitimately open to the sentencing judge.
- Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, a finding of special circumstances can justify extending the parole period where a young offender has rehabilitative needs, such as anger management and substance dependency treatment, that are best addressed under supervision in the community.
- A sentencing court's finding that an offender showed no remorse and treated an admitted assault as justified remained a relevant consideration in declining to suspend the sentence.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 95(1) (aggravated robbery)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2) (special circumstances)
- Criminal Appeal Act 1912 (NSW), s 6
- Evidence Act 1995 (NSW), Part 3, ss 135 and 137
Cases
- R v Birks (1990) 19 NSWLR 677