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18
Court of Criminal Appeal 5 February 2016

Alkhair v R

[2016] NSWCCA 4

Also reported as (2016) 255 A Crim R 419
Theft & property
CRIMINAL LAW AGGRAVATED BREAK AND ENTER WHETHER MISCARRIAGE OF JUSTICE OCCURRED WHETHER SENTENCE MANIFESTLY EXCESSIVE PARITY APPEAL DISMISSED

Citation: Alkhair v R [2016] NSWCCA 4
Court: Court of Criminal Appeal, New South Wales
Date: 5 February 2016
Judge(s): Macfarlan JA (principal judgment); Rothman J and Bellew J (agreeing)

Background

The applicant was convicted after a jury trial in the District Court of aggravated break and enter under s 112(2) of the Crimes Act 1900 (NSW). The charge arose from an incident in October 2012 when a ground-floor unit in Alexandria was entered through a window by removing glass louver panels. Police found the applicant's fingerprints on the removed louvers, along with those of a co-offender, Mr Michael Hanna. The applicant was sentenced to four years imprisonment with a three-year non-parole period.

In his police interview (an ERISP), the applicant offered explanations for how his fingerprints came to be on the louvers. He mentioned working as a cement renderer in the inner city, which his trial counsel later used in closing address to suggest he may have touched the louvers legitimately during renovation work. References to drug use and other criminality were removed from the interview before it was admitted, partly through successful objections and partly through Crown concessions.

Before the Court of Criminal Appeal, the applicant contended that his trial counsel had conducted the trial incompetently. He alleged that counsel had prevented him from giving evidence, failed to call the co-offender as a witness, and mishandled the ERISP, thereby causing a miscarriage of justice. He also challenged his sentence as manifestly excessive and raised a parity argument by reference to the lower sentence received by Hanna.

  • Whether the applicant required, and should be granted, leave to raise grounds of appeal not raised at trial
  • Whether his trial counsel's conduct of the trial was incompetent, and if so, whether that incompetence resulted in a miscarriage of justice
  • Whether the applicant was wrongly denied the opportunity to give evidence or call the co-offender as a witness
  • Whether the sentence of four years (with a three-year non-parole period) was manifestly excessive
  • Whether an unjustifiable sentencing disparity existed between the applicant and his co-offender

Decision

Because none of the conviction grounds had been raised at trial, the applicant needed leave under r 4 of the Criminal Appeal Rules (for questions of law) and under s 5(1) of the Criminal Appeal Act 1912 (NSW) (for questions of fact and sentence). The Court proceeded to examine the substance of each ground despite this procedural barrier, ultimately finding none had merit.

On the incompetence ground, the Court applied the established principle that alleged incompetence of trial counsel will only vitiate a conviction where there is no reasonable explanation for counsel's conduct and a miscarriage of justice has resulted. The Court accepted trial counsel's evidence that he had made a deliberate and reasoned tactical choice: admitting the drug-related portions of the ERISP would have been severely prejudicial to the applicant, while retaining the cement-rendering reference provided a plausible innocent explanation for the fingerprints. That strategy was not only explicable, but was a coherent forensic decision. Similarly, counsel's advice that the applicant should not give evidence was explained as a considered judgment about the risks of cross-examination given the applicant's background.

On the failure to call the co-offender, the Court found no basis for the complaint. There was no evidence before the Court to suggest Hanna's testimony would have assisted the applicant. The Court rejected the claim that the applicant had been denied a fair trial or that any miscarriage of justice had occurred as a result of counsel's decisions.

On sentence, the Court found the term was not manifestly excessive. The sentencing judge had taken into account relevant factors including the applicable standard non-parole period, that the applicant was on parole for two separate offences at the time of the offending, his extensive criminal history, and his ongoing drug use while in custody. As for parity with Hanna, the Court found the disparity between the sentences was explained by Hanna's demonstrated movement toward rehabilitation, the absence of any such progress by the applicant, and the significant difference in their criminal records. No justifiable sense of grievance arose.

Orders Made

  • Leave to appeal granted
  • Leave refused under r 4 of the Criminal Appeal Rules to rely on grounds of appeal against conviction (to the extent such leave was required)
  • Appeal dismissed

Key Takeaways

  • A conviction will not be set aside on the basis of counsel's alleged incompetence unless there is no reasonable explanation for counsel's conduct and a miscarriage of justice actually resulted from it. The Court of Criminal Appeal confirmed this two-limb test applied squarely to the circumstances here.

  • Deliberate tactical decisions made by experienced trial counsel, including choices about admissibility of evidence and whether to call witnesses, are unlikely to constitute incompetence simply because the outcome of the trial was unfavourable to the accused.

  • Where a defendant alleges they were prevented from giving evidence, the court will scrutinise the claim carefully. Evidence from trial solicitor and counsel that advice was given and discussed, and that the accused was not overridden, can displace an accused's contrary assertion in an unwitnessed affidavit.

  • Sentencing disparity between co-offenders does not automatically give rise to a justifiable sense of grievance. Differences in criminal history, rehabilitation progress, and applicable sentencing provisions can each independently explain divergent sentences.

  • In dismissing the sentence appeal, the Court of Criminal Appeal reaffirmed that a sentencing court may weigh an offender's prior criminal record and conduct while on parole as aggravating factors without amounting to double punishment for past offences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2)
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Appeal Rules (NSW), r 4

Cases:
- Ahmu v R [2014] NSWCCA 312
- Ali v R [2005] HCA 8; 79 ALJR 662
- Green v The Queen [2011] HCA 49; 244 CLR 462
- Matthews v R [2013] NSWCCA 187
- Nudd v The Queen [2006] HCA 9; 80 ALJR 614
- Outram v R [2013] NSWCCA 329
- R v Birks [1990] 19 NSWLR 677
- TKWJ v The Queen [2002] HCA 46; 212 CLR 124
- Vella v R [2015] NSWCCA 148
- Weininger v The Queen [2003] HCA 14; 212 CLR 629