AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 8 December 2004

Regina v Duncan and Perre [2004] NSWCCA 431 revised - 10

[2004] NSWCCA 431

Assault & violence
CRIMINAL LAW AFFRAY: S 93C CRIMES ACT 1900 APPEALS AGAINST CONVICTION AND SENTENCE ISSUE OF WHETHER CROSS EFFECT OF ALCOHOL CONSUMPTION WHETHER ERROR IN DIRECTIONS TO JURY

Citation: Regina v Duncan and Perre [2004] NSWCCA 431 revised - 10/12/2004
Court: NSW Court of Criminal Appeal
Date: 8 December 2004
Judge(s): Wood CJ at CL; Adams J; Hislop J

Background

Two appellants, Duncan and Perre, were convicted in the District Court of maliciously inflicting grievous bodily harm with intent (s 33 Crimes Act 1900 NSW) and affray (s 93C Crimes Act 1900) following a group fight in which the victim was attacked with poles, a machete and a wheel brace. The attack left the victim permanently disabled. Both appellants were sentenced to 16 years imprisonment with a non-parole period of 12 years for the s 33 offence, together with concurrent fixed terms of 2 years for affray.

Both appellants appealed against their convictions and sought leave to appeal against sentence. The Crown case relied in part on the evidence of a witness, Siljanoski, whose testimony at trial differed from his earlier out-of-court statement, leading to questions about the propriety of cross-examination and jury directions on identification.

  • Whether the trial judge correctly exercised discretion to allow the Crown to cross-examine witness Siljanoski under s 38 of the Evidence Act 1995 regarding visual identification
  • Whether the directions given to the jury on identification evidence were adequate
  • Whether the trial judge erred in his approach to the effect of alcohol consumption on the appellants' culpability
  • Whether the original sentences of 16 years with a 12-year non-parole period were within the proper range of sentencing discretion, given the appellants' youth, immaturity and prospects of rehabilitation
  • Whether evidence pertaining to s 13 of the Children (Criminal Proceedings) Act 1987 was properly admitted

Decision

On conviction, the Court dismissed both appeals. In Perre's case, the Court found the cross-examination of Siljanoski was permissible because the witness had sufficient prior familiarity with the accused, an identification parade had been effectively unavailable given Perre's earlier non-cooperation in a related parade, and no objection had been raised at trial. Appropriate directions on identification evidence had been given to the jury, and Rule 4 of the Criminal Appeal Rules applied to preclude the ground being argued on appeal.

In Duncan's case, the Court found the trial judge had correctly determined that Siljanoski's evidence was at odds with his earlier statement, satisfying the requirements of s 38(1)(b) and (c) of the Evidence Act, and that s 38(1)(a) was also available because the evidence in chief was unfavourable to the Crown. The Court found no error in the judge's treatment of the probative and prejudicial balance of the evidence or in the jury directions.

On sentence, the Court found latent error in the sentences imposed on both appellants for the s 33 offence. The 16-year head sentences were so far outside the proper range of sentencing discretion that insufficient weight could have been accorded to favourable subjective circumstances, including the appellants' youth, immaturity, first period of custody, and prospects of rehabilitation. For Perre, the Court also identified special circumstances relating to his age that had not been adequately reflected. The Court reduced the head sentence for the s 33 offence for each appellant to 13 years with a non-parole period of 9 years. The sentences for affray were not disturbed.

On the alcohol ground raised by Perre, the Court found no error. It confirmed that while alcohol may reduce culpability in some circumstances, it does not excuse criminal conduct, and the deliberate and sustained nature of the attack indicated the appellant was not significantly affected.

Orders Made

Perre:
- Appeal against convictions dismissed
- Leave to appeal against sentence granted, confined to the s 33 offence count
- Appeal against the s 33 sentence allowed; original sentence quashed
- Re-sentenced to 13 years imprisonment from 18 August 2003, expiring 17 August 2016, with a non-parole period of 9 years from 18 August 2003, expiring 17 August 2012

Duncan:
- Appeal against convictions dismissed
- Leave to appeal against sentence granted, confined to the s 33 offence count; otherwise refused
- Appeal against the s 33 sentence allowed; original sentence quashed
- Re-sentenced to 13 years imprisonment from 30 November 2002, expiring 29 November 2015, with a non-parole period of 9 years from 30 November 2002, expiring 29 November 2011

Key Takeaways

  • A sentence can be found to contain latent error where it falls so far outside the proper range of sentencing discretion that the sentencing court could not have given adequate weight to favourable subjective circumstances, even without an explicit identifiable mistake in reasoning.

  • Where a young, first-time offender faces custody in an adult prison, factors including age, immaturity, first period of custody, and prospects of rehabilitation must receive meaningful weight in fixing both the head sentence and the non-parole period.

  • Cross-examination of a witness under s 38 of the Evidence Act 1995 regarding visual identification is permissible where the witness had prior familiarity with the accused and an identification parade was not a practical alternative, particularly where non-cooperation in related proceedings made future participation effectively certain to be refused.

  • Alcohol consumption before an offence does not automatically mitigate culpability; its mitigating effect depends on the circumstances, and a deliberate, sustained attack may indicate the offender was not meaningfully impaired.

  • Failure to object to a ground at trial is a significant procedural barrier to raising it on appeal, with Rule 4 of the Criminal Appeal Rules and the principles in Dhanhoa v The Queen (2003) 199 ALR 547 operating to prevent certain grounds from being argued for the first time in the Court of Criminal Appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33, 93C
- Evidence Act 1995 (NSW), ss 38, 114(1)
- Children (Criminal Proceedings) Act 1987 (NSW), s 13
- Crimes (Sentencing Procedure) Act 1997 (NSW), ss 21A(3), 44(2)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Appeal Rules, Rule 4

Key Cases:
- Adam v The Queen (2001) 75 ALJR 1537
- Dhanhoa v The Queen (2003) 199 ALR 547
- Edwards v The Queen (1993) 178 CLR 193
- Festa v The Queen (2001) 208 CLR 593
- House v The Queen (1936) 55 CLR 499
- Lowe v The Queen (1984) 154 CLR 606
- McAuliffe v The Queen (1995) 183 CLR 108
- Osland v The Queen (1998) 197 CLR 316
- Postiglione v The Queen (1997) 98 A Crim R 134
- Stanoevski v The Queen (2001) 75 ALJR 454
- Zoneff v The Queen (2000) 200 CLR 234
- R v Fletcher-Jones (1994) 75 A Crim R 381
- R v Gordon (1994) 71 A Crim R 459
- R v Simpson (2001) 53 NSWLR 704
- R v Souleyman (1996) 40 NSWLR 712
- R v Stanley [2004] NSWCCA 278
- R v Tahere [1999] NSWCCA 170
- R v Taufua NSWCCA 11 November 1996
- R v Veleski (No 2) (1997) 93 A Crim R 420