Citation: Regina v Makisi [2004] NSWCCA 333
Court: NSW Court of Criminal Appeal
Date: 22 September 2004
Judge(s): Spigelman CJ, Barr J, Hoeben J
Background
In the early hours of 31 May 2002, a group of approximately seven men attacked three other men outside a building in Burwood. Two of the victims were robbed and one was wounded. Police attended the scene and found the appellant and his brother hiding in a nearby laneway, where the appellant was observed discarding a mobile telephone later identified as belonging to one of the victims.
The appellant was tried in the District Court before Sorby DCJ on charges of assault with intent to rob (count one) and two counts of robbery in circumstances of aggravation involving corporal violence (counts two and three). The jury convicted him on all three counts. At trial, the appellant had initially given police an account claiming heavy intoxication and lack of memory, but at trial he changed his position and said he had been trying to pull his brother away from the fight.
Sorby DCJ sentenced the appellant to fixed concurrent terms of four years on counts two and three, and five years with a three-year non-parole period on count one. The five-year term commenced one year after the fixed terms, producing an overall sentence of six years with a four-year non-parole period. The appellant appealed against both the convictions and the sentences.
Legal Issues
- Whether the trial judge misdirected the jury on the standard of proof applicable to the intoxication defence (specifically, whether the jury had to find beyond reasonable doubt that the appellant lacked the capacity to act intentionally)
- Whether the trial judge erred by leaving the intoxication direction only in relation to count one, rather than all three counts
- Whether the overall sentence was manifestly excessive
- Whether the sentencing disparity between the appellant and his brother, who pleaded guilty, gave rise to a legitimate grievance warranting intervention
Decision
On the intoxication directions, Barr J found that Part 11A of the Crimes Act 1900 (NSW) draws a clear distinction between offences of specific intent and other offences. Count one (assault with intent to rob) is an offence of specific intent under section 428B, because an intention to cause a specific result is an element of the offence. For such offences, evidence of intoxication may be taken into account in assessing whether the accused held the requisite intent. Counts two and three, however, were robbery charges involving the use of corporal violence as a circumstance of aggravation. The aggravation element does not require proof of a specific intended result, and so those counts were not offences of specific intent. The trial judge was therefore correct to confine the intoxication direction to count one.
On the framing of the intoxication direction given for count one, Barr J concluded that the trial judge's formulation, though imperfect, did not misstate the law in a way that would have misled the jury. The direction told the jury to consider whether, in light of the intoxication, the accused had the relevant intention, which was consistent with section 428C. No miscarriage of justice was established.
On sentence, the Court rejected the argument that the sentence was manifestly excessive. It also addressed the parity argument arising from comparison with the brother's sentence in some detail. The brother had pleaded guilty at an early stage, which entitled him to a significant discount reflecting the utilitarian benefit to the justice system and contrition. The appellant, by contrast, contested the charges, and the sentencing judge doubted the genuinely expressed remorse. The Court also noted the age difference: the brother was twenty years old at the time of the offending, a factor attracting distinct sentencing considerations that did not apply to the appellant who was twenty-five. The differences in sentence were explained by these legitimate distinctions, not by any error in the sentencing exercise.
Orders Made
- Appeal against conviction dismissed
- Leave granted to appeal against sentences
- Appeal against sentences dismissed
Key Takeaways
- Under Part 11A of the Crimes Act 1900 (NSW), intoxication evidence is only relevant to mens rea for offences of specific intent (as defined in section 428B). Where a circumstance of aggravation does not require proof of an intention to bring about a specific result, the offence does not attract the intoxication direction under section 428C.
- The Court of Criminal Appeal confirmed that a trial judge is not required to leave an intoxication direction in relation to counts that are not offences of specific intent, even where the accused was intoxicated at the time of the offending.
- Sentencing parity between co-offenders is not absolute. Where differences in sentence are explained by a co-offender's early guilty plea, evidence of contrition, and youth, no legitimate sense of grievance arises from the comparison.
- In dismissing the sentence appeal, the Court underlined that an early plea of guilty carries a substantial discount for multiple reasons: saving court resources, sparing victims the ordeal of giving evidence, and demonstrating genuine remorse.
- Age at the time of offending remains a distinct and substantive sentencing consideration. The Court found that sentencing a twenty-year-old calls for different treatment than sentencing a twenty-five-year-old, even where the two are siblings involved in the same offending.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), Part 11A (sections 428A to 428I), including:
- Section 428B (offences of specific intent)
- Section 428C (intoxication and offences of specific intent)
- Section 428D (intoxication and other offences)
- Section 428G (intoxication and the actus reus)
- Section 428H (abolition of common law relating to self-induced intoxication)
- Drug Misuse and Trafficking Act 1985 (NSW) (referenced in definitions)
- Poisons Act 1966 (NSW) (referenced in definitions)
- Nurses and Midwives Act 1991 (NSW) (referenced in definitions)
Cases cited: No cases were identified in the portions of the judgment provided.