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Court of Criminal Appeal 12 July 2004

R v McKeon

[2004] NSWCCA 232

Assault & violenceTheft & property

Citation: R v McKeon [2004] NSWCCA 232
Court: NSW Court of Criminal Appeal
Date: 12 July 2004
Judge(s): Studdert J (primary judgment); Kirby J and Hislop J (agreeing)

Background

The appellant was convicted across multiple trials on counts of aggravated armed robbery and stealing motor vehicles. The appeals before the Court of Criminal Appeal concerned two trials, both commencing in November 2002, arising from robberies at a Westpac Bank in Picton and a separate matter at Warrawong. The Crown's case against the appellant for the Picton robbery rested entirely on circumstantial evidence, as there was no direct identification of the appellant during the robbery itself.

The prosecution relied on a combination of physical evidence, surveillance footage, telephone records, fingerprints, and items found in a backpack abandoned at Tweed Heads to establish the appellant's involvement. The appellant did not give evidence at either trial.

Following conviction, the appellant also challenged the severity of the sentences imposed by Latham DCJ in the District Court. Those sentences, when combined, produced an overall effective term of 24 years imprisonment with a non-parole period of 15 years.

  • Whether the trial judge erred in refusing to discharge the jury during the joint trial, given the appellant's claim of prejudice from being tried alongside his co-accused
  • Whether the circumstantial evidence was sufficient to support the convictions
  • Whether there were errors in the trial judge's directions or other procedural matters in the conduct of either trial
  • Whether the sentences imposed were manifestly excessive or otherwise infected by error, including a contention that the totality principle had not been correctly applied
  • Whether there was a relevant sentencing disparity between the appellant and his co-accused

Decision

The Court dismissed the appeals against conviction from both trials. On the joint trial ground, the Court affirmed that the question was not whether separate trials ought to have been ordered at the outset, but whether the joint trial had produced actual unfairness causing a miscarriage of justice. No such miscarriage was established on the facts.

On the sufficiency of the circumstantial evidence for the Picton robbery, the Court was satisfied that the combination of evidence, including the appellant's fingerprints on the vehicle, items in the abandoned backpack consistent with clothing observed at the bank, the appellant's use of a false name to check into a hotel on the day of the robbery, and phone records linking the hotel room to his sister, provided an adequate basis for the jury's verdict.

On the sentence appeals, the Court noted that Latham DCJ faced a difficult sentencing task given the number and gravity of the offences. The Court rejected the submission that the totality principle had been misapplied. The co-accused had himself raised a parity ground in separate proceedings, and the Court of Criminal Appeal in that matter had already rejected it, observing that the appellant had been sentenced for a significantly greater number of armed robberies, making direct comparison impractical.

The Court acknowledged that the overall sentence was severe but declined to find error. Aggravated armed robbery attracts a high maximum penalty under the legislation and the sentencing court was entitled to impose substantial cumulative sentences reflecting the multiple serious offences.

Orders Made

  • Appeals against conviction dismissed
  • Leave to appeal against sentences granted, but those appeals dismissed

Key Takeaways

  • In a joint trial, the relevant question for an appellate court is not whether separate trials should have been ordered but whether the joint trial produced unfairness amounting to a miscarriage of justice.
  • A conviction based entirely on circumstantial evidence may stand where multiple independent strands of evidence, taken together, adequately support the jury's finding of guilt.
  • The totality principle in sentencing requires a court to consider the overall effect of cumulative sentences, but an offender who has committed a significantly greater number of offences than a co-accused may not readily rely on that co-accused's sentence as a parity benchmark.
  • No error was established in the sentencing approach simply because the resulting total sentence was severe, where the number and gravity of the offences warranted substantial cumulative terms.
  • Aggravated armed robbery under the Crimes Act carries a high maximum penalty, reflecting the legislature's assessment of its seriousness, and this informs the weight a sentencing court may give to punishment and deterrence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(2) (aggravated robbery), 94 (robbery), 154A (stealing motor vehicles)

Cases
- R v Bavardra (2000) 115 A Crim R 152
- R v Henry (1999) 46 NSWLR 346
- R v Itamua [2000] NSWCCA 502
- R v Kain [2004] NSWCCA 143
- R v Lemene (2001) 118 A Crim R 131
- R v Middis (unreported, Hunt J, 27 March 1991)
- R v Patsalis (1999) 107 A Crim R 432
- R v Privett [2001] NSWCCA 518
- R v Skaf & Ors [2004] NSWCCA 74