Citation: Regina v F.D; Regina v F.D; Regina v J.D [2006] NSWCCA 31
Court: NSW Court of Criminal Appeal
Date: 21 February 2006
Judge(s): Sully J, Hulme J, Hall J
Background
In March 2003, two offenders (referred to by the Court as F.D. and J.D.) were involved in an armed robbery at Glebe that ended in the death of Simon Taylor. F.D. carried a knife; J.D. carried a replica pistol. Simon Taylor was fatally stabbed during the incident. His father, Robert Taylor, was wounded, and his mother, Rosalie Taylor, was robbed of her handbag and a diamond ring.
F.D. and J.D. were tried jointly before Levine J and a jury in the Supreme Court in late 2004. F.D. was convicted of murder, malicious wounding with intent to do grievous bodily harm, and robbery while armed with an offensive weapon. J.D. was acquitted of murder but convicted of manslaughter and robbery while armed with an offensive weapon.
Three appeals came before the Court of Criminal Appeal: F.D.'s appeal against his murder conviction, F.D.'s application for leave to appeal against sentence, and two Crown appeals against the sentences imposed on each offender.
Legal Issues
- Whether F.D.'s murder conviction was unsafe or unreasonable, particularly given the evidence of self-defence and defence of another
- Whether the trial judge gave adequate directions on self-defence, defence of another, "citizen's arrest," and the use of the word "immediately"
- Whether the sentences imposed on F.D. were manifestly inadequate (Crown appeal)
- Whether the sentences imposed on J.D., particularly for manslaughter and robbery, were manifestly inadequate (Crown appeal), including whether concurrent sentences were appropriate where separate crimes were committed against separate victims
Decision
Conviction appeal by F.D. The Court dismissed F.D.'s appeal against his murder conviction. The Court found that the jury's verdict was not unsafe or unreasonable, and that the trial judge's directions on self-defence, defence of another, citizen's arrest, and the statutory language were adequate in the circumstances. No error was established on any of the grounds advanced.
Sentence appeals by F.D. The Court granted F.D. leave to appeal against sentence but dismissed the appeal. The Crown's appeal against F.D.'s sentence was also dismissed.
Crown appeal against J.D.'s sentence. The Crown argued that J.D.'s sentences were manifestly inadequate, particularly because the sentencing judge had ordered the robbery and manslaughter sentences to run concurrently. Hulme J, in a dissenting opinion, considered this approach erroneous: the two offences involved different crimes against different victims, and absorbing the robbery sentence entirely within the manslaughter sentence was inconsistent with the principle, confirmed in cases such as R v Wilson, that some accumulation is required in such circumstances. However, the majority (Sully J and Hall J) agreed that the Crown appeal against J.D.'s sentence should be dismissed, and that was the order of the Court.
Orders Made
- F.D.'s appeal against conviction: dismissed
- F.D.'s application for leave to appeal against sentence: leave granted; appeal dismissed
- Crown appeal against F.D.'s sentence: dismissed
- Crown appeal against J.D.'s sentence: dismissed
Key Takeaways
- In dismissing F.D.'s conviction appeal, the Court of Criminal Appeal confirmed that a murder verdict will not be set aside as unsafe merely because a manslaughter verdict was also open, provided the jury was properly directed and the evidence reasonably supported the finding.
- A trial judge's directions on self-defence and defence of another are assessed in the context of the whole charge; the absence of particular requested formulations does not constitute error where the overall directions convey the correct legal standard.
- Where two offences involve separate crimes against separate victims, the principle in R v Wilson indicates that some accumulation of sentences is ordinarily required, rather than full concurrency.
- Hulme J's dissent highlighted that concurrent sentencing for distinct offences against distinct victims may understate the true criminality involved, even where an offender is young and did not personally inflict the fatal wounds.
- On Crown appeals against sentence, the Court's practice is to impose the least sentence that should have been imposed at first instance, taking into account all relevant mitigating factors including youth, absence of prior convictions, and the degree of the offender's participation.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 19A, 24, 33, 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 4 Division 1A
- Evidence Act 1995 (NSW)
Cases
- M v The Queen (1984) 181 CLR 487
- The Queen v Glennon (1992) 173 CLR 592
- Veen v The Queen (No. 2) (1988) 164 CLR 465
- Pearce v The Queen (1998) 194 CLR 610
- Reg v Simpson (2001) 53 NSWLR 704
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Way (2004) 60 NSWLR 168
- Reg v Allpass (1993) 72 A Crim R 561
- Reg v Bermingham (No. 2) (1997) 96 A Crim R 545
- Reg v Previtera (1997) 94 A Crim R 76
- R v Richards [1981] 2 NSWLR 464
- R v Readman (1990) 47 A Crim R 181
- R v Berg [2004] NSWCCA 300
- R v Tzanis [2005] NSWCCA 274
- R v Wilson [2005] NSWCCA 219
- R v Reid [2005] NSWCCA 309
- Attorney General's Application Under s37 of the Crimes (Sentencing Procedure) Act 1999 No. 2 of 2002 (2002) 137 A Crim R 196