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Court of Criminal Appeal 29 November 2007

SMALE, Garry Anthony v R

[2007] NSWCCA 328

HomicideTheft & propertyFirearms & weapons
APPEAL CONVICTION APPEAL APPLICATION OF THE PROVISO SENTENCE APPEAL GROUND BASED ON FRESH EVIDENCE CRIMINAL LAW

Citation: SMALE, Garry Anthony v R [2007] NSWCCA 328
Court: NSW Court of Criminal Appeal
Date: 29 November 2007
Judge(s): Mason P, James J, Howie J

Background

The appellant participated with a co-offender, Wigney, in an armed robbery at a Leichhardt hotel in the early hours of 19 July 2001. During the robbery, Wigney shot and killed the bar manager. The appellant had already pleaded guilty to armed robbery with a dangerous weapon while in company, and was subsequently convicted by a jury of murder on the basis of constructive (or "felony") murder.

The central factual dispute at trial was whether the appellant knew the revolver was loaded. Wigney, who pleaded guilty to murder and gave evidence for the Crown under a sentencing discount, testified that the appellant had wiped the weapon and bullets to destroy fingerprints. The appellant did not give evidence and had not participated in a police interview.

The appellant appealed against his murder conviction and sought leave to appeal against both sentences. He raised several grounds, including that the prosecutor's address was unduly prejudicial, that certain evidence of other offences was wrongly admitted, that the trial judge's summing up introduced a case the Crown had not relied upon, and that the sentences were manifestly excessive or otherwise flawed.

  • Whether the prosecutor's closing address was unduly prejudicial to the appellant
  • Whether evidence of other offences was inadmissible or unfairly prejudicial under the Evidence Act 1995
  • Whether the trial judge erred by directing the jury on a theory of liability that the Crown had not relied upon
  • Whether, if any such error occurred, the proviso applied (that is, whether no substantial miscarriage of justice resulted)
  • Whether the sentence for murder was manifestly excessive or infected by fresh evidence
  • Whether the concurrent sentence for armed robbery involved impermissible double punishment, given the same facts underpinned both the murder and the robbery convictions

Decision

The Court dismissed the conviction appeal. On the complaints about the prosecutor's address and the admission of other-offence evidence, the Court found no reversible error. The trial judge's summing up did introduce an element not specifically pressed by the Crown, but the Court applied the proviso, satisfied that no substantial miscarriage of justice had occurred given the strength of the evidence against the appellant on the element actually in dispute.

The appeal against the murder sentence was also dismissed. The Court accepted that no error had been demonstrated in the sentence of 18 years with a non-parole period of 13 years and 6 months.

The armed robbery sentence, however, was quashed. The Court, drawing on Pearce v The Queen (1998) 194 CLR 610, held that where an offender is sentenced for both a principal offence and an included or overlapping offence arising from the same facts, sentencing for the lesser offence must not take into account facts that are the very foundation of the greater offence. Here, the sentencing judge had factored in that the firearm was loaded when sentencing for the armed robbery. That was an error: under s 97(2) of the Crimes Act 1900, a "dangerous weapon" need not be loaded, and the question of whether the weapon was loaded (and whether the appellant knew this) was the core of the murder charge.

The Court re-sentenced the appellant for armed robbery on the basis that the weapon need not have been treated as loaded, while taking into account that he had stolen over $4,000. After applying the same 15 per cent discount for the guilty plea, the Court arrived at a sentence of 8 years and 6 months, concurrent with the murder sentence.

Orders Made

  • The appeal against conviction for murder is dismissed.
  • Leave is granted to appeal against sentence in respect of both sentences.
  • The appeal against the sentence for murder is dismissed.
  • The appeal against the sentence for armed robbery is allowed; the sentence imposed is quashed.
  • In lieu, the appellant is sentenced to imprisonment for 8 years and 6 months from 18 March 2002, with a non-parole period of 6 years and 4 months expiring 17 July 2008.

Key Takeaways

  • Under the constructive murder provision in s 18(1) of the Crimes Act 1900, the Crown must prove that the accused knew the co-offender was armed with a dangerous weapon and had in mind the contingency that the weapon might discharge, whether or not it was fired intentionally or in furtherance of the common purpose. This formulation, confirmed in R v Sharah (1992), was reaffirmed here.

  • Where a trial judge directs on a case not expressly relied upon by the Crown, that may constitute a misdirection, but the Court of Criminal Appeal may nonetheless apply the proviso and dismiss the conviction appeal if the evidence against the accused on the live issues was sufficiently strong.

  • Sentencing for an offence that overlaps factually with a more serious offence requires care: Pearce v The Queen establishes that the same facts should not result in double punishment, and the sentencing court must confine itself to aspects of the lesser offence that are not already the foundation of the greater.

  • A "dangerous weapon" for the purposes of s 97(2) of the Crimes Act does not need to be loaded. Treating a firearm as loaded when sentencing for armed robbery, where the loaded nature of the firearm was the gravamen of the accompanying murder charge, amounts to double counting.

  • In dismissing the murder conviction appeal, the Court confirmed that where an accused neither gives evidence nor participates in a police interview, and the only contested issue is knowledge, the jury is entitled to rely on a co-offender's direct testimony supported by circumstantial evidence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18(1), 97(2)
- Firearms Act 1996 (NSW)
- Evidence Act 1995 (NSW), ss 137, 165
- Criminal Appeal Rules, r 4
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(j), 23A(3)(j)

Cases
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- R v Sharah (1992) 30 NSWLR 292
- Weiss v The Queen [2005] HCA 81; 224 CLR 300
- Libke v The Queen [2007] HCA 30; 81 ALJR 1309
- Livermore v R [2006] NSWCCA 334
- R v Henry (1999) 46 NSWLR 346
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- R v Murray (1987) 11 NSWLR 12
- R v Solomon [1980] 1 NSWLR 321
- Robinson v R [2006] NSWCCA 192; 162 A Crim R 88
- Thorne v R [2007] NSWCCA 10
- R v Deng [2007] NSWCCA 216
- R v Fordham (1997) 98 A Crim R 359
- R v Stamboulis [2006] NSWCCA 56; 160 A Crim R 510
- R v HQ [2003] NSWCCA 336
- R v Oinonen [1999] NSWCCA 310
- R v Bo Too (NSWCCA, unreported, 16 July 1992)