Citation: Scott Raymond Brown v Regina [2006] NSWCCA 395
Court: NSW Court of Criminal Appeal
Date: 12 December 2006
Judge(s): Mason P, Sully J, Latham J
Background
The appellant was convicted after a six-week trial in the Supreme Court, alongside a co-offender, on five counts arising from a violent armed robbery at a retail appliance store in Matraville on Christmas Eve 2002. The offences included the murder of the store's proprietor, two counts of aggravated armed robbery, malicious wounding with intent to cause grievous bodily harm, and assault occasioning actual bodily harm.
The robbery involved two men entering the store before opening, forcing staff to the floor at gunpoint, tying victims with plastic electrical ties, and stealing cash and personal items. In the aftermath, the deceased proprietor freed himself, retrieved a machete, and pursued the offenders into the street, where he was shot dead at point-blank range by the co-offender.
Newman J sentenced the appellant to an effective head sentence of 21 years and 10 months, with a non-parole period of 16 years and 10 months. The appellant, who was self-represented at the appeal after legal aid was withdrawn, sought to challenge both his convictions and his sentences.
Legal Issues
- Whether the convictions were unreasonable having regard to the evidence
- Whether the trial judge erred by failing to leave manslaughter as an alternative verdict for the jury to consider, and whether directions on joint enterprise liability were adequate
- Whether the joint trial with the co-offender caused a miscarriage of justice
- Whether the sentences imposed were appellably excessive
Decision
Convictions: Sully J (with whom Mason P and Latham J agreed) dismissed all three grounds of appeal against conviction. The court was satisfied that the verdicts were not unreasonable on the evidence. No error was found in the trial judge's approach to the manslaughter alternative or the joint enterprise directions. The joint trial with the co-offender was not found to have produced a miscarriage of justice.
The self-defence argument on sentence: The appellant argued that the deceased had been an unprovoked aggressor and that the co-offender had shot him in self-defence. Sully J rejected this argument in emphatic terms, describing it as "affronting, both to common morality and to common sense." The robbery was characterised as a premeditated crime that was, from first to last, instinct with violence.
Sentences: The appellant submitted that his sentences should be reduced to a 15-year head sentence with an 11-year non-parole period. The Court of Criminal Appeal declined to accept that submission. Sully J held that the overall head sentence and non-parole period could not reasonably be regarded as appellably excessive for offences that included cold-blooded murder, two premeditated armed robberies accompanied by egregious violence, malicious wounding, and assault occasioning actual bodily harm. Leave to appeal against sentence was granted but the appeal was dismissed.
Orders Made
- The appeal against convictions was dismissed.
- Leave was granted to appeal against the sentences passed at first instance.
- The appeal against those sentences was dismissed.
Key Takeaways
- In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that verdicts supported by the trial evidence, and directions on joint enterprise that were not shown to be inadequate, will not be disturbed on appeal.
- A co-accused's claim that a victim killed in the aftermath of a joint criminal enterprise was an aggressor acting without provocation will not, without more, undermine a murder conviction under a joint enterprise theory.
- The Court firmly rejected the proposition that a victim who pursues fleeing robbers contributes to, or diminishes the culpability for, their own death.
- Sentencing courts are required to strike a balance between subjective considerations and objective criminality, and Sully J cautioned that subjective factors must not "simply swamp" the relevant objective seriousness of the offending.
- Where an effective sentence reflects a cluster of serious offences involving premeditation, sustained violence, and a fatal outcome, the Court of Criminal Appeal will not interfere unless the overall sentence is unreasonable on proper sentencing principles.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW)
Cases:
- M v The Queen (1994) 181 CLR 487
- Hui Chi-ming v The Queen [1992] 1 AC 34
- R v Britten and Eger (1988) 36 A Crim R 48
- R v Vandine [1970] 1 NSWR 252
- R v Spathis and Patsalis (2001) NSWCCA 476
- R v Mills (unreported, NSWCCA, 3 April 1995)