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Court of Criminal Appeal 18 August 2004

Regina v Dennis John Adams

[2004] NSWCCA 279

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW EVIDENCE RELEVANCE PROBATIVE VALUE UNFAIR PREJUDICE IDENTIFICATION

Citation: Regina v Dennis John Adams [2004] NSWCCA 279
Court: New South Wales Court of Criminal Appeal
Date: 18 August 2004
Judge(s): Dunford J, Adams J, Howie J

Background

The appellant was convicted in the District Court following a jury trial before Hock DCJ on four charges arising from an armed robbery at a Chipping Norton newsagency on 16 April 2001. The charges were robbery while armed with a dangerous weapon, firing a firearm with disregard for safety, and two counts of maliciously discharging a firearm with intent to resist or prevent lawful apprehension. A co-offender drove the getaway vehicle while the appellant, on the Crown's case, entered the newsagency and later fired shots at pursuing police from the passenger seat.

The Crown's case rested on two principal pieces of evidence: an admission the appellant allegedly made to an acquaintance, and identification evidence given by a police officer who had observed the occupants of the fleeing vehicle. The appellant did not give evidence at trial, but had denied involvement during a police interview.

Following conviction, the appellant was sentenced to an effective overall term of 12 years' imprisonment with an effective non-parole period of 8 years. He appealed against both conviction and sentence.

  • Whether the identification evidence, including evidence from a witness who initially misidentified the appellant as the driver before correcting himself, was properly admitted and adequately dealt with in the trial judge's directions to the jury
  • Whether the overall sentence of 12 years for the armed robbery offences was excessive
  • Whether the sentencing judge erred in the extent of the variation from the statutory non-parole period ratio under section 44 of the Crimes (Sentencing Procedure) Act 1995, given a finding of special circumstances

Decision

On the conviction appeal, the Court examined the identification evidence closely. Senior Constable Wildbur had initially selected the appellant's photograph as the driver, then corrected himself and identified the appellant as the passenger. He explained that both the appellant and the co-offender looked "very similar" and believed they could be brothers. Despite this initial confusion, Wildbur maintained his identification of the appellant as the passenger was "100 percent" certain and stated the memory would stay with him. The Court found that the admissibility of the identification evidence was not in dispute on appeal, and the grounds relating to the conduct of the trial and the adequacy of the directions given to the jury did not succeed.

A second witness, Mr Frances, had also participated in a photo board procedure and identified a photograph he said was "very similar" to a man he had seen near the newsagency that morning. A third identification was made by Constable Waibel, though he identified a photograph of neither the appellant nor the co-offender. The Court considered these matters, including the directions given to the jury, and found no error warranting the conviction being overturned. The appeal against conviction was dismissed.

On sentence, the Court found no error in the sentencing judge's approach to the serious offending, noting the use and discharge of a firearm warranted the sentences imposed and that they fell within the proper range of sentencing discretion. On the special circumstances point, the Court held that a reduction in the non-parole period from 9 years to 8 years (representing a ratio of approximately 66 percent rather than the statutory 75 percent) was a substantial rather than marginal variation. The Court also observed that a longer period of parole supervision would not necessarily have been more conducive to rehabilitation. Leave to appeal against sentence 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

  • A finding of special circumstances does not automatically require a variation from the statutory non-parole period ratio under section 44 of the Crimes (Sentencing Procedure) Act 1995, nor does it require any variation to be substantial: the circumstances must be sufficiently special to justify a departure.
  • In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that a reduction in the effective non-parole period from 9 years to 8 years (approximately 66 percent of the head sentence rather than the statutory 75 percent) constituted a substantial, not marginal, adjustment.
  • Where an identifying witness initially selects the wrong person from a photo board but then corrects the identification and provides a confident, reasoned explanation for the original error, the jury is entitled to evaluate that evidence, provided appropriate directions are given.
  • No error was established in the sentencing judge's exercise of discretion in relation to serious firearms offences involving pursuit of police and discharge of a weapon, even where the statutory ratio was varied only modestly.
  • Under the principles confirmed in R v Simpson (2001) 53 NSWLR 704 and R v Fidow [2004] NSWCCA 172, a wide range of matters may constitute special circumstances, but their presence does not compel any particular variation to the ratio between the non-parole period and the head sentence.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1995 (NSW), s 44
- Evidence Act 1995 (NSW)

Cases
- Domican v The Queen (1992) 173 CLR 555
- Festa v The Queen [2001] HCA 72, 208 CLR 593
- Pitkin v The Queen (1995) 69 ALJR 612
- R v Clarke (1993) 71 A Crim R 58
- R v Coe [2002] NSWCCA 385
- R v Fidow [2004] NSWCCA 172
- R v Simpson (2001) 53 NSWLR 704