Citation: McDonald v R [2015] NSWCCA 280
Court: Court of Criminal Appeal (NSW)
Date: 2 November 2015
Judge(s): Basten JA; Adams J; R A Hulme J (judgment by R A Hulme J, with whom Basten JA and Adams J agreed)
Background
The applicant was convicted by a jury in the District Court at Lismore of four offences: aggravated robbery, taking and detaining a victim without consent with intent to avoid police detection, and two counts of indecent assault. The offences occurred in Byron Bay in August 2008, when the offender approached an elderly woman working as a cleaner at a café in the early hours of the morning, threatened her with a wooden stake while wearing a balaclava and gloves, forced her to assist in stealing cash registers and alcohol, drove her to a nearby location in her own car, and subjected her to sexual touching.
Identity was the sole issue at trial. There was no dispute that the offences had occurred. The prosecution case relied significantly on DNA evidence obtained from a cigarette butt recovered from the victim's car and from items found at the scene.
The applicant was sentenced to a total of eight years imprisonment with a non-parole period of five years. He sought leave to appeal against both his convictions and his sentences, raising a total of six grounds across the two applications.
Legal Issues
Conviction appeal grounds:
- Whether the trial judge erred in allowing the prosecution to adduce evidence of the applicant's post-offence conduct
- Whether the trial judge erred in admitting DNA evidence, in circumstances where one key police officer was unavailable to give evidence at trial due to ill-health
Sentence appeal grounds:
- Whether the sentencing judge erred in applying the guideline judgment in R v Henry [1999] NSWCCA 111 to the robbery offence
- Whether the sentencing judge erred in taking use of violence and/or a weapon into account as an aggravating feature, when those elements were already part of the offence
- Whether the sentencing judge failed to have proper regard to any finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
- Whether the sentences were manifestly excessive
Decision
Post-offence conduct (Ground 1 of conviction appeal)
The court found no error in the admission of evidence relating to the applicant's conduct after the offences. This ground was rejected as lacking merit, though the judgment does not expand at length on the specific reasoning in the portions of the text provided.
DNA evidence (Ground 2 of conviction appeal)
The applicant challenged the admission of DNA evidence partly on the basis that Senior Constable Wisemantel, who had collected cigarette butts from the Ocean Street scene and made entries in the police exhibit book, was unavailable to give evidence due to ill-health. The court rejected this ground. The evidence established a clear chain of custody through other officers, and the court was satisfied that no error arose from the admission of the DNA evidence. Questions of contamination or misconduct had not been raised at trial and there was no evidentiary basis to support concerns about the integrity of the exhibit.
Sentence appeal
The court found no error in any of the four sentencing grounds. The sentencing judge's application of the R v Henry guideline, her treatment of aggravating features, and her approach to the applicant's subjective case (including his mental health history, ADHD, depression, and substance abuse background) were all upheld. The court noted that the sentencing judge had found no causal connection between any mental health condition and the offending. The court concluded that the sentences were not manifestly excessive and that the sentencing judge had carefully, if succinctly, addressed all relevant features of the applicant's circumstances.
Orders Made
- Leave to appeal against conviction refused.
- Leave to appeal against sentence refused.
Key Takeaways
- No error was established in admitting DNA evidence where the collecting officer was unavailable at trial, provided other evidence sufficiently established the chain of custody and no basis for contamination or misconduct had been raised.
- Evidence of post-offence conduct remained admissible at trial where the court identified no error in the ruling allowing its admission.
- Under the sentencing framework applied in R v Henry, a sentencing judge does not necessarily err by treating use of violence or a weapon as an aggravating feature, even where such conduct forms part of the offending context, provided the reasoning is applied correctly to the circumstances.
- Where an offender's psychiatric history (including depression, ADHD, and substance abuse) disclosed no causal link to the offending and no formal diagnosis of mental illness, the sentencing court was not required to treat those factors as placing the offender in any special position for sentencing purposes.
- In dismissing all six grounds across both applications, the Court of Criminal Appeal confirmed that leave to appeal on questions of mixed law and fact under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) will be refused where no identifiable error in the trial or sentencing process is established.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW) ss 61L, 86(1)(b), 95(1)
- Crimes (Forensic Procedures) Act 2000 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 44
- Criminal Appeal Act 1912 (NSW) s 5(1)(b)
- Evidence Act 1995 (NSW) ss 65, 103, 135, 137
- Mental Health (Forensic Provisions) Act 1990 (NSW) s 32
Cases:
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- Azzi v R [2008] NSWCCA 169
- Bin Sulaeman v R [2013] NSWCCA 283
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Hamze v R [2006] NSWCCA 36
- Jago v The District Court of New South Wales [1989] HCA 46; 168 CLR 23
- Poniris v R [2014] NSWCCA 100
- R v Cook [2004] NSWCCA 52
- R v Mauai [2005] NSWCCA 207
- R v Sing [2002] NSWCCA 20; 54 NSWLR 31
- R v Tortell; R v Tsegay [2007] NSWCCA 313
- R v Whyte [2002] NSWCCA 343; 55 NSWLR 252