Citation: Obierzynski v R [2019] NSWCCA 103
Court: Court of Criminal Appeal, New South Wales
Date: 7 June 2019
Judge(s): Macfarlan JA; Harrison J; Hamill J
Background
The applicant was tried in the District Court alongside two co-accused for an aggravated carjacking that occurred on 10 September 2015 in Homebush, Sydney. The victim was confronted at his Mercedes Benz by three men, one of whom was armed with a knife and forced him from the vehicle. The Crown alleged that the applicant was the knife-wielding offender who took the driver's seat and drove away.
The central factual dispute at trial was whether the applicant was one of the three perpetrators. The Crown relied on witness descriptions, CCTV footage showing three males in the vicinity approximately two hours before the offence, clothing and cap matches at the time of arrest, DNA evidence placing the applicant as the likely major contributor to a mixed DNA profile on the stolen car's steering wheel, and a flick knife bearing the applicant's DNA and fingerprint found near where the three men were stopped together the following night.
The applicant was convicted and sentenced to seven years imprisonment with a non-parole period of five years. Due to a sentencing error regarding the backdating of the sentence, the effective term was six years and six months with a non-parole period of four years and six months. The applicant sought to appeal both the conviction and the sentence.
Legal Issues
The court was asked to resolve the following questions:
- Whether the trial judge's circumstantial evidence direction to the jury was deficient, specifically in failing to properly articulate and apply the hypothesis that the applicant was not one of the offenders
- Whether the verdict was unreasonable or unsupportable having regard to the whole of the evidence
- Whether the sentence of seven years imprisonment (effective six years and six months) was manifestly excessive, given the applicant's age and cognitive difficulties arising from a prior serious motor vehicle accident
Decision
Circumstantial evidence direction: The Court rejected the submission that the trial judge failed to properly direct the jury on the need to exclude reasonable hypotheses consistent with innocence. The direction was assessed against the evidence as a whole, and the Court found no error that caused a miscarriage of justice. The identification of the applicant as a perpetrator was treated as the central issue, and the direction adequately addressed it.
Unreasonable verdict: The Court applied the established test from cases including M v The Queen and SKA v The Queen, conducting an independent assessment of the evidence. The cumulative weight of the CCTV footage, cap and clothing matches at arrest, DNA evidence from the steering wheel, the flick knife bearing the applicant's DNA found at the scene of the arrest, and the applicant's acknowledged presence with his co-accused the following night provided a substantial evidentiary foundation for the verdict. The Court was not persuaded that a jury acting reasonably could not have been satisfied of guilt beyond reasonable doubt.
Manifest excess in sentence: The Court noted that the applicant had suffered a serious motor vehicle accident at approximately 17 years of age, leaving him prone to impulsive behaviour, disinhibition, and reduced cognitive capacity. The sentencing judge had explicitly and carefully addressed these matters in the sentencing judgment. The Court acknowledged the sentence was a heavy one given the applicant's age and difficulties, but held it could not be characterised as plainly wrong or unjust. The wide discretion vested in sentencing judges was emphasised, and the Court noted that appellate intervention is not warranted merely because a different judge might have imposed a lesser sentence.
Orders Made
- Leave to appeal granted (to the extent necessary, given the length of the sentence)
- Appeal dismissed
Key Takeaways
- In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that a circumstantial evidence direction must be assessed by reference to the totality of the evidence, not in isolation, and a technically imperfect direction will not ground an appeal unless it caused an actual miscarriage of justice.
- Where multiple strands of circumstantial evidence converge, including DNA, physical item matches, and concurrent presence with co-accused, a jury's finding of guilt is unlikely to be characterised as unreasonable on appeal.
- A sentencing court's careful and explicit engagement with an offender's cognitive impairment and personal history will generally be sufficient to resist a manifest excess challenge, even where the sentence is concededly heavy.
- No single correct sentence exists in criminal proceedings, and appellate courts will not intervene simply because they might have arrived at a lesser term when exercising the sentencing discretion at first instance.
- Under s 154C(2) of the Crimes Act 1900 (NSW), aggravated take and drive carries a maximum of 14 years imprisonment with a standard non-parole period of five years, and sentences at or near the standard non-parole period remain available even where significant subjective factors are established.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 154C
Cases:
- Atai v R [2014] NSWCCA 210
- Barca v The Queen (1975) 133 CLR 82
- Dinsdale v The Queen (2000) 202 CLR 321
- Libke v The Queen (2007) 230 CLR 559
- Lowndes v The Queen (1999) 195 CLR 665
- M v The Queen (1994) 181 CLR 487
- Mackenzie v The Queen (1996) 190 CLR 348
- Markarian v The Queen (2005) 228 CLR 357
- MFA v The Queen (2002) 213 CLR 606
- Muldrock v The Queen (2011) 244 CLR 120
- Mundarra Smith v The Queen (2001) 206 CLR 650
- R v Wilson (2005) 62 NSWLR 346
- SKA v The Queen (2011) 243 CLR 400
- South v R [2007] NSWCCA 117
- The Queen v Baden-Clay (2016) 258 CLR 308