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Court of Criminal Appeal 5 April 2019

Laughton v R

[2019] NSWCCA 74

Assault & violenceTheft & property
CRIME CONVICTION APPEAL CONVICTION APPEAL SENTENCING APPEAL WHERE RESPONDENT SPENT TIME IN PRE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Laughton v R [2019] NSWCCA 74
Court: Court of Criminal Appeal
Date: 5 April 2019
Judges: Meagher JA at [1]; Schmidt J at [65]; Button J at [97]

Background

The applicant was convicted after a jury trial in the District Court of aggravated break, enter and steal and assault occasioning actual bodily harm in company. The offences arose from an incident in May 2015 in which the complainant was attacked in his Dulwich Hill apartment by three intruders, sustaining serious head and facial injuries including skull and eye socket fractures. The complainant identified the applicant, a man known to him, as one of the attackers.

The applicant and complainant had a documented history of hostility, including a series of abusive Facebook messages exchanged in the weeks before the attack. The applicant denied any involvement and gave evidence that he did not know where the complainant lived and was unaware he was being accused until his arrest months later.

Following conviction, the applicant was sentenced to a total head sentence of 7 years imprisonment. He appealed both conviction and sentence on multiple grounds.

Legal Issues

  • Whether the trial judge erred in ruling that a post-assault Facebook message was capable of constituting an admission of involvement in the offence
  • Whether the trial judge erred in failing to give a Murray direction (a warning to the jury to scrutinise the evidence of a single uncorroborated witness with great care)
  • Whether the trial judge's summary of the medical evidence misstated the doctor's opinion about the cause of the complainant's injuries
  • Whether the verdicts were unreasonable or unable to be supported having regard to the evidence
  • Whether the total sentence of 7 years was manifestly excessive
  • Whether the sentencing judge erred by failing to credit the applicant for 97 days spent in pre-trial custody

Decision

Ground 1: Facebook message as admission

The applicant challenged the trial judge's ruling that a Facebook message sent some 80 hours after the assault was capable of constituting an admission of involvement. The message opened with "you want to continue?? One more word of bullshit cunt!!! 6 coories hey??" and ended with "Weren't ready for that one were you." The trial judge identified at least two available interpretations, one of which was that the opening words acknowledged the applicant's prior involvement in the assault and threatened further conduct. The Court of Criminal Appeal agreed that this reading was reasonably open, and that the trial judge did not err in so ruling (at [29]). The argument that the applicant was unfairly prejudiced because the ruling came after the close of the Crown case was rejected: the message had been admitted without objection during the complainant's evidence in chief, providing an opportunity to cross-examine that was not taken (at [27]-[28]).

Ground 2: Murray direction

A Murray direction warns a jury to scrutinise with great care the evidence of a single witness asserting the commission of a crime, particularly where features of that evidence may affect its reliability. Defence counsel applied for such a direction but did not press the application after the trial judge indicated reluctance to give it, and did not renew the application at the end of the summing up. Meagher JA (with Button J agreeing) held that the application had been abandoned, that Criminal Appeal Rules r 4 applied, and that leave should be refused because the features relied on did not make such a direction necessary to avoid a miscarriage of justice (at [36]-[41]). Schmidt J dissented, concluding that the circumstances, including recognition evidence, documented animosity, drug use, and inconsistencies in the complainant's account, raised real questions about reliability that required such a warning (at [68]-[95]). The majority view prevailed and leave was refused.

Ground 3: Medical evidence direction

The trial judge's summing up described the treating doctor as having expressed an opinion about "how the injuries were caused." The applicant argued this overstated the doctor's evidence, which was expressed only in terms of the injuries being "consistent with" the complainant's account. The majority found that the surrounding context of the direction made clear the doctor's opinion was limited to consistency, not causation, and the direction was neither misleading nor unfair (at [45]). No complaint had been made at trial, r 4 applied, and leave was refused (at [46]).

Ground 4: Unreasonable verdict

The applicant submitted that inconsistencies in the complainant's evidence, including discrepancies in the number of attackers, the absence of observable disturbance at the crime scene, and what was described as a "fanciful" account of events as the attackers left, should have left the jury with a reasonable doubt. The Court identified these as matters squarely within the jury's province to resolve, noting that the complainant's identification of the applicant, the injuries consistent with his account, his contemporaneous reports to police and his stepbrother, and the Facebook message were all capable of supporting the verdicts (at [61]-[62]). The Court was satisfied it was open to the jury to be satisfied of guilt beyond reasonable doubt on each count, and dismissed this ground (at [62]).

Ground 5: Manifest excess

The applicant argued the total sentence of 7 years was disproportionate to the sentencing judge's own findings on objective seriousness, and that the assessment of rehabilitation prospects was too pessimistic. Button J (with Meagher JA agreeing) rejected this ground. The offences involved a planned home invasion by multiple persons, the use of a weapon, and serious injury to the victim in his own home. The applicant had an extended criminal history, was on bail at the time of the offences, and expressed no remorse. A total head sentence of 7 years with a non-parole period of 4 years 6 months was not manifestly excessive in those circumstances (at [132]-[139]).

Ground 6: Pre-trial custody credit

It was agreed that neither the sentencing judge in this matter nor a subsequent sentencing judge had credited the applicant for 97 days spent in custody bail refused between October 2015 and January 2016. During part of that period the applicant was held on these offences alone; during the remainder he was held on these offences together with a drug offence that attracted a subsequent cumulative sentence. The Court held the applicant was entitled to credit for every day in custody, and adjusted the commencement dates of both the sentences under appeal and the subsequent sentence to give practical effect to that credit (at [147]-[148]).

Orders Made

  • Leave to appeal against conviction on grounds 1 and 4 granted; appeal against conviction on those grounds dismissed.
  • Leave to appeal against conviction on grounds 2 and 3 refused.
  • Leave to appeal against sentence granted.
  • The sentence for assault occasioning actual bodily harm in company adjusted to commence 3 September 2016 and expire 2 September 2019.
  • The sentence for aggravated break, enter and steal adjusted to commence 3 September 2017 and expire 2 September 2023, with a non-parole period expiring 2 March 2021.
  • Otherwise, those sentences unchanged.
  • The subsequent sentence imposed by Judge Wilson SC adjusted to commence 26 March 2019 and expire 25 March 2024, with a non-parole period expiring 25 March 2022.

Key Takeaways

  • A post-offence message sent by an accused is capable of constituting an implied admission where the jury could reasonably read it as acknowledging prior involvement, even where another innocent interpretation is also available. In that case, the competing readings are a matter for the jury to resolve (at [24], [29]).

  • Where an application for a Murray direction is not pressed at trial and counsel does not identify the specific features of evidence said to require the warning, the Court of Criminal Appeal will ordinarily apply Criminal Appeal Rules r 4 and refuse leave; the features must be of a kind that create a perceptible risk of miscarriage of justice, not merely inconsistencies that were apparent to the jury and addressed in addresses and summing up (at [36]-[41]).

  • In dismissing the unreasonable verdict ground, the Court confirmed the established principle that an appellate court must ask whether the jury must, as distinct from might, have entertained a doubt about guilt, giving particular weight to the jury's advantage of seeing and hearing the witnesses (at [48]-[49]).

  • A sentencing judge's guarded assessment of rehabilitation prospects is open where an offender has an extended history of serious criminal offending, was on bail at the time of the index offences, and expresses no remorse (at [125], [136]).

  • An offender is entitled to credit for all days spent in custody bail refused in connection with the relevant offences. Where multiple courts have imposed cumulative sentences and neither has given that credit, the Court of Criminal Appeal may adjust the commencement dates of all affected sentences to remedy the oversight, characterised as a discrete adjustment rather than a full resentencing exercise (at [147]-[149]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59, 112
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 59
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Appeal Rules 1952 (NSW), r 4
- Evidence Act 1995 (NSW), ss 136, 137

Cases
- AL v Regina [2017] NSWCCA 34; 266 A Crim R 1
- AP v R [2013] NSWCCA 189
- Ewen v R [2015] NSWCCA 117; 250 A Crim R 544
- Kentwell v R (No 2) [2015] NSWCCA 96
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- R v GW (2016) 258 CLR 108; [2016] HCA 6
- R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340
- R v Murray (1987) 11 NSWLR 12
- R v SJRC [2007] NSWCCA 142
- R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509
- R v Trudgett (2008) 70 NSWLR 696; [2008] NSWCCA 62
- Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- The Queen v GW (2016) 258 CLR 108; [2016] HCA 6
- Tully v The Queen (2006) 230 CLR 234; [2006] HCA 56