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Court of Criminal Appeal 4 June 2012

SALMON v R

[2012] NSWCCA 119

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW CONVICTION APPEAL THEFT ASSAULT AND ROBBERY CONVICTIONS APPELLANT SELF REPRESENTED WHETHER JURY VERDICT UNREASONABLE

Citation: Salmon v R [2012] NSWCCA 119
Court: NSW Court of Criminal Appeal
Date: 4 June 2012
Judges: Hoeben JA; RS Hulme J; Schmidt J

Background

The appellant was convicted by a jury in the Sydney District Court in December 2009 on three counts arising from events on 12 March 2009 at Lane Cove: larceny of a computer and related equipment, common assault, and robbery of a laptop computer. The complainant was a chartered accountant who had performed work for the appellant's company. A long-running dispute over unpaid professional fees preceded the offending.

The sentencing judge imposed an aggregate sentence with a non-parole period of 15 months, commencing 14 December 2009, with a balance of term expiring 13 December 2011. The appellant was released to parole in March 2011.

The appellant, self-represented at the appeal hearing, filed extensively amended grounds of appeal raising fourteen conviction grounds and six sentence grounds. Earlier written submissions on the first two grounds had been prepared by counsel.

The court was asked to resolve the following questions:

  • Whether hearsay evidence was wrongfully admitted at trial
  • Whether the Crown prosecutor's address to the jury caused a miscarriage of justice by alleging the appellant had lied in relation to twelve matters not put to him in cross-examination
  • Whether the trial judge's directions to the jury were inadequate or incorrect, including directions on spent convictions and on the elements of the offences
  • Whether inadmissible police statements were wrongly admitted
  • Whether fresh evidence should be admitted on appeal (including material from the Institute of Chartered Accountants of Australia)
  • Whether conduct by the appellant's trial counsel caused a miscarriage of justice
  • Whether the revocation of the appellant's bail mid-trial caused a miscarriage of justice
  • Whether the jury's verdicts were unreasonable or unsupported by the evidence
  • Whether the sentencing judge erred in her assessment of objective seriousness and in applying the totality principle
  • Whether the sentence for the robbery count was manifestly excessive

Decision

Conviction grounds: The Court of Criminal Appeal dismissed all fourteen grounds of appeal against conviction. Hoeben JA examined each ground in detail. The court found no error in the admission of the evidence complained of, no miscarriage arising from the Crown address, and no inadequacy in the trial judge's directions that would have affected the verdicts. The fresh evidence grounds, including material from the Institute of Chartered Accountants, were rejected as either inadmissible or incapable of affecting the outcome. Complaints about trial counsel's conduct and the revocation of bail mid-trial were likewise dismissed, the court finding no substantial miscarriage of justice on any of those bases.

Sentence grounds: The court granted leave to appeal on sentence and allowed the appeal. Hoeben JA found a significant disconnect between the sentencing judge's own assessment that the robbery offence sat at the bottom of the range for objective seriousness and the sentence actually imposed. A head sentence of two years with a twelve-month non-parole period for an offence assessed as low in objective seriousness was found to be excessive on its face.

The court also found that the partial accumulation of the sentences for assault and larceny was not warranted, and that the sentences for all three counts should have run concurrently. Hoeben JA considered the appellant's strong subjective case: he was of mature years, had no prior offences, and character evidence unanimously described the offending as entirely out of character. These factors, while acknowledged by the sentencing judge, were found not to be adequately reflected in the original sentence.

On resentencing, the court found special circumstances justifying a departure from the statutory ratio between non-parole period and balance of term under s 44 of the Crimes (Sentencing Procedure) Act 1999, because the robbery sentence represented the appellant's first period in custody.

Orders Made

  • Leave to appeal against sentence granted.
  • Sentence appeal allowed.
  • Original sentences imposed on 19 March 2010 quashed.
  • In lieu thereof, the appellant was resentenced as follows:
  • Larceny: fixed term of 1 month commencing 14 December 2009, concluding 14 January 2010.
  • Assault: fixed term of 3 months commencing 14 December 2009, concluding 13 March 2010.
  • Robbery: fixed term of 6 months commencing 14 December 2009, concluding 13 June 2010.
  • All three sentences to run concurrently.
  • Conviction appeal dismissed.

Key Takeaways

  • A sentencing judge's own finding that an offence falls at the bottom of the range for objective seriousness must be meaningfully reflected in the sentence ultimately imposed; a material disconnect between that assessment and the sentence passed may constitute appealable error.
  • Where multiple offences arise from the same criminal episode, the totality principle requires careful consideration of whether partial accumulation genuinely serves sentencing purposes or results in effective double punishment.
  • Receiving a custodial sentence for the first time can constitute a special circumstance justifying a departure from the statutory ratio between non-parole period and balance of term under s 44 of the Crimes (Sentencing Procedure) Act 1999.
  • The Court of Criminal Appeal confirmed that a self-represented appellant bears the same burden on appeal as a represented one; an extensive list of grounds does not, without more, establish miscarriage of justice.
  • No error was established across fourteen conviction grounds, including complaints about hearsay, Crown address, jury directions, fresh evidence, conduct of trial counsel, bail revocation, and the reasonableness of the verdicts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 94, 117
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW), ss 33, 79

Cases:
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Craig v The King (1933) 49 CLR 429
- GAR v R (No 1) [2010] NSWCCA 163
- Gonzales v R (2007) 178 A Crim R 232
- Ignjatic v R (1993) 68 A Crim R 333
- Johnson v R [2004] HCA 15; 205 ALR 346
- Mickelberg v The Queen (1989) 167 CLR 259
- Monteiro v R [2011] NSWCCA 113
- Orchard v Spooner (1992) 28 NSWLR 114
- R v Abusafiah (1991) 24 NSWLR 531
- R v Abou-Chabake (2004) 149 A Crim R 417
- R v Birks (1990) 19 NSWLR 677
- R v Gallagher (1986) 160 CLR 392
- R v Trindall [2005] NSWCCA 446
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- Yassien v R [2006] NSWCCA 15