Citation: Wilcox v Regina [2011] NSWCCA 42
Court: Court of Criminal Appeal, New South Wales
Date: 22 March 2011
Judges: McClellan CJ at CL, Hall J, Barr AJ
Background
The appellant was convicted by a District Court jury of two armed robberies committed in October 2004, at the Tahmoor Inn and the Dungog RSL Club. In each robbery, two masked men entered a small-town venue near closing time: a larger man carrying a shortened rifle and a slimmer man carrying a pistol. The victims were restrained with cable ties through the thumbs, the telephone was torn from the wall, and the smaller man remarked in both instances that he had learned the restraint technique in the military.
The Crown case identified the appellant as the larger, rifle-carrying robber. His alleged accomplice, Ric Anson, died in January 2005 before any proceedings could be brought against him. The Crown relied substantially on circumstantial evidence, including intercepted telephone conversations between the appellant and his partner.
At the conviction appeal, the appellant represented himself and argued that the admission of coincidence evidence had caused a miscarriage of justice. He also sought leave to appeal against the sentences imposed at trial, contending they were excessive.
Legal Issues
- Whether the trial judge erred in admitting coincidence evidence under ss 98 and 101 of the Evidence Act 1995, specifically whether the evidence satisfied the requirement that its probative value substantially outweighs any prejudicial effect on the defendant.
- Whether the admission of that evidence occasioned a miscarriage of justice.
- Whether the sentences imposed for the armed robbery offences under s 97(2) of the Crimes Act 1900 were excessive, having regard to the standard non-parole period, the principle of totality, and comparative sentencing statistics and cases.
Decision
Conviction appeal: The Court of Criminal Appeal dismissed the conviction appeal. The trial judge had correctly identified the striking similarities between the two robberies and was satisfied that the probative value of the coincidence evidence substantially outweighed any prejudicial effect, as required by s 101(2) of the Evidence Act 1995. The Court found the evidence was properly set out in the Crown's coincidence notice, the jury was entitled to consider all of the identification evidence (including any conflicting portions), and there was no rational view of the evidence consistent with innocence that the jury was required but failed to consider. No miscarriage of justice arose from the admission of the evidence.
Sentence appeal: The Court granted leave to appeal against sentence and allowed the appeal in part. The sentencing judge had applied the standard non-parole period to the s 97(2) offences and the Court accepted that the objective seriousness of the offending had to be properly assessed. Barr AJ cautioned that care must be taken when using Judicial Commission sentencing statistics, noting that maximum sentences are fixed by Parliament and that statistics alone do not determine where a particular offence sits within the range.
After reviewing a substantial body of comparative sentencing decisions, the Court concluded that the overall sentence was impermissibly high. In the Court's assessment, the totality of the appellant's criminality called for a non-parole period of 12 years and a balance of term of four years, producing a head sentence of 16 years. Barr AJ also observed that the Crown's practice of placing serious additional offences on a Schedule (rather than charging them) was one that should not be followed, though this observation did not alter the substantive outcome on the Tahmoor count.
Orders Made
- Appeal against convictions dismissed.
- Leave to appeal against sentence granted; appeal allowed in part.
- Sentence for the Smiths Lakes offence varied to commence 17 May 2008 and expire 16 May 2014.
- Sentence for the Tahmoor offence quashed; non-parole period of 8 years set (commencing 17 May 2010, expiring 16 May 2018) and balance of term of 4 years (expiring 16 May 2022), taking into account the Nambucca Heads offence.
- Appellant declared eligible for parole on 16 May 2018.
Key Takeaways
- Under ss 98 and 101 of the Evidence Act 1995, coincidence evidence is admissible in a criminal proceeding where the probative value substantially outweighs any prejudicial effect. The Court of Criminal Appeal confirmed that striking similarities in modus operandi across two robberies, including distinctive use of cable ties and identical verbal statements, can satisfy this test.
- In dismissing the conviction appeal, the Court held that the mere existence of conflicting identification evidence does not prevent the jury from considering that evidence. The jury's role is to weigh it, and its presence does not of itself create an unfair risk of miscarriage.
- A sentencing court must assess the objective seriousness of an offence independently, and cannot treat sentencing statistics as determinative. Maximum sentences are the province of Parliament, not of statistical averages derived from prior decisions.
- Comparative case analysis remains a valuable tool in sentence appeals. Where a survey of analogous decisions establishes that an aggregate sentence exceeds the permissible upper range, the appellate court will intervene and recalibrate through adjustment of individual sentences and their concurrency.
- The Court noted, as a matter of practice, that placing serious additional offences on a Schedule rather than charging them as counts is an approach the Crown should not follow, though it did not void the sentence in this case.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW), ss 98, 101
Cases:
- Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194
- R v Hayes [2001] NSWCCA 410
- R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
- R v Vuni [2006] NSWCCA 171
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- R v Zhang [2005] NSWCCA 437