Citation: Spurling v Regina; Everuss v Regina [2006] NSWCCA 245
Court: NSW Court of Criminal Appeal
Date: 11 August 2006
Judge(s): McClellan CJ at CL; Johnson J; Latham J
Background
Two men, identified here as the appellant Spurling and the appellant Everuss, were jointly tried and convicted in the District Court of robbery in company under s 97(1) of the Crimes Act 1900 (NSW). The offence occurred on 5 January 2004, when the victim was confronted in his own backyard, physically attacked, and had his wallet taken.
At sentencing, Everuss was identified as the principal offender but received a shorter sentence than Spurling. Everuss was sentenced to three years' imprisonment with an eighteen-month non-parole period, while Spurling received four years with a two-and-a-half-year non-parole period. This disparity arose because Spurling carried a significantly more serious prior criminal record, including prior offences of a similar nature committed while armed, and was on bail at the time of the robbery.
Both men appealed against conviction and sought leave to appeal against sentence. Spurling raised an additional ground concerning the admission of his police interview, arguing he was a vulnerable person who had not been afforded the procedural protections required under the Crimes Act and its accompanying regulations.
Legal Issues
- Whether Spurling, who had a history of ADHD, was a "vulnerable person" under the Crimes (Detention After Arrest) Regulation 1998, and whether his record of interview should have been excluded as a result
- Whether the trial judge erred by refusing to adjourn the voir dire to allow Spurling to obtain expert evidence on his ADHD diagnosis
- Whether evidence of lies told by one co-accused was properly admitted and used against the other
- Whether the sentencing principle of parity was violated when the principal offender (Everuss) received a lighter sentence than his co-offender (Spurling)
- Whether the sentences imposed on each appellant were manifestly excessive
Decision
Admission of the record of interview (Spurling)
The trial judge had ruled that a person suffering from ADHD did not fall within the regulatory category of persons with "impaired intellectual functioning" for the purposes of vulnerable person protections. The Court of Criminal Appeal accepted this reasoning. The custody manager had specifically assessed Spurling's status and formed the view he was not a vulnerable person. In addition, the interviewing officer had voluntarily invited Spurling's father to attend as an informal support person, and Spurling had signed documentation acknowledging his rights under Part 10A of the Crimes Act. The Court found no error in admitting the interview.
Refusal of adjournment
The Court dismissed the argument that the trial judge had wrongly refused an adjournment to obtain expert evidence about ADHD. Given the findings already made about the regulatory definition and the procedural steps taken during the interview, the adjournment would not have altered the outcome.
Lies evidence and its use against a co-accused
The Court considered the admissibility and proper use of lies told by one accused as consciousness-of-guilt evidence, and whether such evidence could be deployed against the other co-accused. The Court's treatment of this issue confirmed that careful attention must be paid to the basis on which such evidence is admitted and the directions given to the jury about its limited use.
Parity and manifest excess in sentence
The Court rejected Spurling's parity argument. Although Everuss played the more significant role in the robbery, Spurling's extensive prior record, including serious offences committed while armed and the fact he was on bail at the time, justified the longer sentence. The Court found that Spurling did not have a justifiable sense of grievance. Both sentences, considered against the guideline in R v Henry, were found to be at the lower end of the available range and not manifestly excessive.
Orders Made
- Both conviction appeals dismissed
- Leave to appeal against sentence granted in each case, but both sentence appeals dismissed
Key Takeaways
- A diagnosis of ADHD alone does not necessarily place a detainee in the "impaired intellectual functioning" category of vulnerable persons under the Crimes (Detention After Arrest) Regulation 1998, and a custody manager's assessment of vulnerability informed by direct questioning will carry significant weight.
- Where an interviewing officer voluntarily provides an informal support person and the detainee acknowledges their Part 10A rights in writing, procedural compliance may be found even where the formal vulnerable person regime was not invoked.
- In dismissing the parity challenge, the Court of Criminal Appeal confirmed that a co-offender's more serious criminal history and bail status at the time of the offence are legitimate bases for imposing a heavier sentence than that given to the principal offender.
- No error was established in the sentences, which the court assessed as falling at the lower end of the range indicated by the R v Henry guideline, adjusted for the absence of a guilty plea, the ages of the offenders, their criminal records, and the actual violence involved.
- The admissibility and proper scope of lies evidence as consciousness of guilt, and the constraints on its use against a co-accused, remained live considerations in a joint trial.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 97(1), Pt 10A
- Crimes (Detention After Arrest) Regulation 1998 (NSW), r 5, Sch 1
- Criminal Appeal Act 1912 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(j)
Cases
- R v Henry & Ors (1999) 46 NSWLR 346
- R v Bright [2000] NSWCCA 258
- R v Cook [2004] NSWCCA 52
- R v Phung and Huynh [2001] NSWSC 115
- R v Veen (No 2) (1988) 164 CLR 465
- Webb & Hay v The Queen (1994) 181 CLR 41