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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: NSW Court of Criminal Appeal
Date: 5 April 2019
Judges: Meagher JA at [1]; Schmidt J at [65]; Button J at [97]

Background

The appellant was convicted in the District Court of aggravated break, enter and steal and assault occasioning actual bodily harm in company, arising from an incident on 30 May 2015 at a Dulwich Hill apartment. The complainant was struck with a cylindrical object, assaulted by the appellant and two unknown companions, and had property stolen including cash, a mobile phone, a bank card, and a pair of shoes.

Prior to the attack, the appellant and complainant had exchanged hostile Facebook messages involving threats and accusations. A subsequent Facebook message sent by the appellant on 2 June 2015 became a central piece of the Crown's evidence, with the Crown arguing it constituted an admission of involvement. The defence challenged the conviction on multiple grounds and also appealed the sentence imposed.

The appellant was sentenced to a fixed term of three years for the assault charge and six years (with a non-parole period of three years, six months) for the break and enter charge, the sentences running cumulatively. A question arose as to whether 97 days of pre-sentence custody had been properly credited against those sentences.

  • Whether the trial judge erred in ruling that a Facebook message sent by the appellant was capable of constituting an admission of his involvement in the offences
  • Whether the trial judge erred in failing to give the jury a warning pursuant to R v Murray (1987) 11 NSWLR 12 (a direction cautioning a jury about the dangers of convicting on the uncorroborated or unreliable evidence of a single witness) given inconsistencies in the complainant's evidence
  • Whether the trial judge's directions regarding the treating doctor's evidence occasioned a miscarriage of justice
  • Whether the verdicts were unreasonable or unsupported by the evidence
  • Whether the sentences were manifestly excessive
  • Whether the trial judge erred in failing to credit the appellant's period of pre-sentence custody (16 October 2015 to 21 January 2016, totalling 97 days)

Decision

Facebook message as admission: The Court rejected the argument that the trial judge erred in admitting the Facebook message as capable of constituting an admission. The message, read in context alongside earlier exchanges between the parties, was open to be construed as relevant to the appellant's knowledge of and involvement in the events of 30 May 2015. Leave to appeal on this ground was refused.

Murray direction: The application for a Murray direction had been abandoned at trial. The Court found that the absence of such a direction did not give rise to a perceptible risk of miscarriage of justice. The case turned substantially on the jury's assessment of the complainant's honesty and reliability, and the existing directions were adequate to guide the jury through the inconsistencies in the evidence. This ground also failed.

Unreasonable verdicts: The Court was not persuaded that the verdicts were unreasonable or unsupported by the evidence. The jury had sufficient basis to accept the complainant's identification evidence and the other supporting material, notwithstanding inconsistencies that had been properly explored at trial.

Sentence and pre-sentence custody: The conviction appeal grounds were dismissed. On sentence, the Court upheld the appeal on the narrower ground that 97 days of pre-sentence custody had not been properly credited. Applying the approach in Lehn v R (2016) 93 NSWLR 205, the Court treated the correction as a discrete adjustment rather than a full resentencing exercise, moving back the commencement dates of both sentences by 97 days. A consequential adjustment was also made to a later sentence imposed by a different judge, to avoid any practical benefit to the appellant being negated by the sequencing of the sentences.

Orders Made

  • Leave to appeal against sentence granted; conviction appeal grounds dismissed.
  • The sentence for assault occasioning actual bodily harm in company is ordered to have commenced on 3 September 2016 and to expire on 2 September 2019 (previously commenced 9 December 2016).
  • The sentence for aggravated break, enter and steal is ordered to have commenced on 3 September 2017 and to expire on 2 September 2023, with a non-parole period expiring 2 March 2021 (previously commenced 9 December 2017).
  • Otherwise, the sentences imposed by Arnott SC DCJ remain unchanged.
  • A sentence imposed by Wilson SC DCJ (unrelated drug matter) adjusted to have commenced on 26 March 2019 and to expire on 25 March 2024, with a non-parole period expiring 25 March 2022 (previously commenced 1 July 2019).

Key Takeaways

  • Abusive social media exchanges can supply the context in which a later message is capable of being read as an admission, provided the message is interpreted in light of the broader exchange between the parties.
  • A Murray direction (warning a jury about the dangers of acting on the evidence of a single witness where that evidence is unreliable or uncorroborated) is not automatically required wherever there are inconsistencies in a complainant's account; its absence will only ground an appeal where there is a perceptible risk of miscarriage of justice.
  • Where a Murray direction was actively abandoned at trial, the threshold for successfully raising its absence on appeal is a demanding one.
  • Correction of a failure to credit pre-sentence custody does not necessarily require a full resentencing exercise. Following Lehn v R, the Court of Criminal Appeal confirmed that such errors can be remedied by a discrete adjustment to commencement dates.
  • Where adjusting one sentence's commencement date would be practically ineffective due to sequencing with a subsequent sentence imposed by a different court, s 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW) permits a corresponding adjustment to that subsequent sentence.

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