Citation: Cheraghi v R [2020] NSWCCA 70
Court: Court of Criminal Appeal, NSW
Date: 15 April 2020
Judges: Simpson AJA; Beech-Jones J; N Adams J
Background
The applicant and a co-accused were charged with breaking and entering a dwelling house and committing an assault (assault occasioning actual bodily harm) therein, knowing a person was present, contrary to s 112(2) of the Crimes Act 1900 (NSW). They were also charged with stealing. The alleged offences occurred in the early hours of 26 August 2015, when the two men entered the home of an acquaintance, one of them armed with a knife and wearing a Halloween mask, the other wearing a balaclava.
The complainant recognised both men during the incident. A jury returned unanimous guilty verdicts on the aggravated break and enter count but was unable to reach a unanimous or majority verdict on the stealing count. The applicant was sentenced to an aggregate term of five years and six months imprisonment, with a non-parole period of three years and seven months.
The applicant sought leave to appeal against conviction on two grounds concerning jury directions, and also sought leave to appeal against sentence on the ground that the penalty was manifestly excessive.
Legal Issues
- Whether the trial judge's direction regarding the use of the co-accused's electronically recorded interview with police (ERISP) was inadequate, in that it failed to make clear the interview was not evidence against the applicant.
- Whether the trial judge misdirected the jury by stating that "not guilty is not a default position to a failure to agree about guilt," and whether this misrepresented the position of an undecided juror.
- Whether the sentence of five years and six months was manifestly excessive, having regard to the applicant's subjective circumstances and the time spent in immigration detention while on bail.
Decision
Ground One: ERISP direction
The Court refused leave to appeal on this ground. Examining the content of the co-accused's police interview, the Court found nothing in it that could have been used adversely to the applicant. Because the interview was entirely exculpatory, there was no occasion for the trial judge to give a direction of the kind now contended for on appeal. The Court also noted that, had such a direction been considered necessary at trial, it could have been sought by trial counsel at the time.
Ground Two: Unanimous verdict direction
The Court also refused leave on this ground. The impugned statement, that "not guilty is not a default position to a failure to agree about guilt," was directed at the jury's collective inability to reach a verdict, not at the position of any individual juror. The Court found no real prospect of confusion arising from the direction, and pointed to the jury's actual failure to agree on the stealing count as practical evidence that the jury understood the direction correctly.
Sentence appeal
Leave to appeal against sentence was granted, but the appeal was dismissed. The Court acknowledged the sentence was a stern one. A significant portion of the pre-sentence period the applicant spent in immigration detention was served while he was on bail, rather than in custody in relation to the offence. Despite this, the sentencing judge, in the exercise of his discretion, backdated the sentence to encompass the entire period. The Court noted that the applicant's own representatives had effectively conceded the appropriate approach at first instance, and that an applicant is generally bound by the conduct of their representative. The Court was not persuaded the sentence was unreasonable or plainly unjust.
Orders Made
- Leave to appeal against conviction refused.
- Appeal against conviction dismissed.
- Leave to appeal against sentence granted.
- Appeal against sentence dismissed.
Key Takeaways
- A direction about the use of a co-accused's ERISP will not be required where nothing in that interview could operate adversely to the other accused; the absence of an objection at trial is a relevant consideration when leave is required to raise the point on appeal.
- The Court of Criminal Appeal confirmed that a direction that "not guilty is not a default position" operates at the level of the jury's collective inability to agree, not at the level of an individual juror's state of mind, and carries no necessary risk of confusion.
- Time spent in immigration detention while on bail does not constitute time "held in custody in relation to the offence" under s 47(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), though a sentencing court retains discretion to backdate a sentence to account for such a period.
- Likely deportation does not, under NSW sentencing principle, alter the structure of a sentence, though it may found a finding of special circumstances justifying adjustment of the ratio between the non-parole period and the head sentence.
- An applicant on appeal is ordinarily bound by the conduct and concessions of their legal representative at first instance, a principle reinforced by reference to Zreika v R [2012] NSWCCA 44.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 112(2), 148
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A, 44, 47(2)(a), 47(3), 54B; Part 3, Div 1A
- Criminal Appeal Rules (NSW), r 4
- Jury Act 1977 (NSW), s 55F
Cases
- Black v The Queen (1993) 179 CLR 44; [1993] HCA 71
- Bland v R (2014) 241 A Crim R 51; [2014] NSWCCA 82
- Magro v R [2020] NSWCCA 25
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Mulato v R [2006] NSWCCA 282
- R v Pham [2005] NSWCCA 94
- Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44