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Court of Criminal Appeal 14 May 2007

VORHAUER v R

[2007] NSWCCA 125

Assault & violenceFirearms & weapons
CRIMINAL LAW APPEAL AGAINST CONVICTION WHETHER SELF DEFENCE CONSIDERED BY THE JURY

Citation: Vorhauer v R [2007] NSWCCA 125
Court: New South Wales Court of Criminal Appeal
Date: 14 May 2007
Judges: McClellan CJ at CL, Hulme J, Rothman J

Background

The appellant, a 64-year-old woman living in Tamworth, was convicted by a jury of three offences arising from a violent confrontation on 14 July 1999. The offences occurred when Tamworth City Council officers and police attended her property to enforce a Land and Environment Court order requiring her to reduce her flock of chickens from approximately 300 to 15. The appellant had not complied with the order by the required deadline, and the order authorised the Council to carry out the work in her default.

The appellant had fortified her property in advance, with steel-reinforced fencing, a steel gate, and corrugated iron sheeting. When council officers and police arrived, she initially thrust a sharpened crowbar through the fence toward the officers, then threw two lit Molotov cocktails over the fence. After police entered the property and sought to arrest her, she produced a Stanley knife attached by an elastic band to her clothing and slashed one officer across the wrists, also cutting a second officer's leg.

The appellant represented herself throughout the trial. She disputed the validity of the Land and Environment Court order, challenged the Council's and police's authority to enter her property, and argued she had acted in self-defence. She was convicted and sentenced to four years imprisonment with a two-year non-parole period. She appealed both the conviction and the sentence.

  • Whether the Land and Environment Court order was valid and authorised entry to the appellant's property without her express permission
  • Whether the Council and police had lawful authority to enter the premises
  • Whether the jury properly considered the appellant's claim of self-defence
  • Whether local councils had constitutional authority to take the relevant action
  • Whether the trial judge failed to properly address the appellant's fitness to stand trial under the Mental Health Act 1990 (NSW)
  • Whether the sentence was manifestly excessive given the appellant's personal circumstances, mental illness, and caring responsibilities

Decision

The Court of Criminal Appeal dismissed the conviction appeal. McClellan CJ at CL (with Hulme J and Rothman J agreeing) found no error in the way the trial was conducted or the jury was directed. The appellant's arguments challenging the validity of the Land and Environment Court order and the authority of the Council and police to enter her property were not accepted.

The Court considered the self-defence ground and was satisfied that the issue had been properly addressed at trial. The jury, having heard the evidence and the directions, was entitled to reject that defence. The appellant's contention that local councils lacked constitutional authority, and that all state law was invalid, did not establish any ground for overturning the convictions.

On the fitness to stand trial issue, the sentencing judge had observed that throughout the proceedings the appellant was capable of following the case and adapting her approach as circumstances required, albeit sometimes refusing to do so. The Court found the trial judge had given appropriate consideration to the appellant's mental illness in accordance with the requirements established in R v Presser [1958] VR 45.

Leave to appeal against sentence was granted, but the appeal was dismissed. The Court accepted the Crown's submission that the offences were serious, involving deliberate preparation, the use of a weapon to resist arrest, and the infliction of significant injuries on police officers. The sentencing judge had considered the appellant's mental illness, ill health, and family circumstances, including her daughter's serious illness, and the Court found the total sentence of four years with a non-parole period of two years was appropriate.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted, but the sentence appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a Land and Environment Court order authorising a council to "enter" premises in default of compliance provided sufficient lawful authority for the council and accompanying police to attend and act on the property.
  • A self-defence claim does not succeed where the jury, properly directed, rejects it on the evidence, including where the defendant had made advance preparations to confront law enforcement officers arriving to enforce a court order.
  • Broad constitutional challenges to the validity of state law and local council authority did not constitute grounds for overturning convictions in this proceeding.
  • In dismissing the sentence appeal, the Court affirmed that serious offences involving premeditation, weapons, and injuries to police will attract significant weight to general deterrence, even where the offender has no prior criminal history and is in poor health.
  • Mental illness and personal caring responsibilities are relevant subjective factors at sentencing, but their consideration by the sentencing judge does not require a reduced sentence where the objective gravity of the offending is significant.

Legislation and Cases Referenced

Legislation:
- Companion Animals Act 1998 (NSW)
- Judiciary Act 1903 (Cth)
- Mental Health Act 1990 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Jury Act 1977 (NSW)

Cases:
- Adams v Kennedy (2000) 49 NSWLR 78
- Maxwell v R (1996) 184 CLR 501
- R v Macks and Ors; Ex Parte Saint (2000) 204 CLR 158
- R v Presser [1958] VR 45
- R v Vorhauer [2002] NSWCCA 483
- University of Wollongong v Metwally (1984) 158 CLR 447