Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Sheen v R [2011] NSWCCA 259
• Hearing dates: 11 May 2011
• Decision date: 09 December 2011
• Before: Johnson J at 1; Hall J at 180; Price J at 181

Decision

1. Appeal against conviction dismissed.

2. Leave is granted to appeal against sentence and allow the sentence appeal in part.

3. The sentence imposed for the offence of break, enter and steal on 19 August 2008, being a sentence of imprisonment comprising a non-parole period of three years to commence on 1 September 2008 and to expire on 31 August 2011, with a balance of term of one year to expire on 30 August 2012 is confirmed.

4. The sentence imposed on the fourth count, the offence of specially aggravated break, enter and commit serious indictable offence on 29 August 2008 is quashed and, in its place, the Appellant is sentenced to imprisonment for a non-parole period of five years and three months commencing on 1 September 2009 and expiring on 30 November 2014 with a balance of term of one year and nine months commencing on 1 December 2014 and expiring on 31 August 2016.

5. The earliest date upon which the Appellant will be eligible for release on parole is 30 November 2014.

• Catchwords: CRIMINAL LAW - conviction appeal - convicted at trial of break, enter and steal and specially aggravated break, enter and commit serious indictable offence - whether trial Judge erred in leaving without notice to parties statutory alternative verdict under s.115A(1) Crimes Act 1900 - no practical injustice to Appellant - no miscarriage of justice - whether verdicts inconsistent - whether verdicts of guilty unreasonable - verdicts not inconsistent - verdicts of guilty not unreasonable - conviction appeal dismissed; CRIMINAL LAW - sentence appeal - standard non-parole period offence - standard non-parole period imposed directly in accordance with R v Way [2004] NSWCCA 131; 60 NSWLR 168 - principles in Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154 applied - Appellant resentenced
• Legislation Cited: Crimes Act 1900; Criminal Appeal Act 1912; Crimes (Sentencing Procedure) Act 1999; Criminal Appeal Rules
• Cases Cited: R v Abusafiah (1991) 24 NSWLR 531; Papakosmas v The Queen [1999] HCA 37; 196 CLR 297; R v Wilson [2005] NSWCCA 20; 62 NSWLR 346; R v Murray (1987) 11 NSWLR 12; Robinson v The Queen [1999] HCA 42; 197 CLR 162; Kaifoto aka Teaupa v R [2006] NSWCCA 186; R v King [2004] NSWCCA 20; 59 NSWLR 515; R v Cameron [1983] 2 NSWLR 66; R v Winner (1989) 39 A Crim R 180; Carney v R; Cambey v R [2011] NSWCCA 223; Mifsud v R [2009] NSWCCA 313; R v Jones and Ors (No. 9) [2007] NSWSC 1160; R v Pureau (1990) 19 NSWLR 372; R v Lykouras [2005] NSWCCA 8; Chand v R [2011] NSWCCA 53; Robinson v R [2006] NSWCCA 192; 162 A Crim R 88; Smale v R [2007] NSWCCA 328; Tekely v R [2007] NSWCCA 75; R v Sieders [2008] NSWCCA 187; 72 NSWLR 417; Qoro v R [2008] NSWCCA 220; Rasic v R [2009] NSWCCA 202; Raumakita v R [2011] NSWCCA 126; Still v R [2010] NSWCCA 131; Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154; R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566; Dunn v R [2010] NSWCCA 128; Markarian v The Queen [2005] HCA 25; 228 CLR 357; Lowndes v The Queen [1999] HCA 29; 195 CLR 665; House v The King [1936] HCA 40; 55 CLR 499; Hili v The Queen [2010] HCA 45; 242 CLR 520; R v Way [2004] NSWCCA 131; 60 NSWLR 168; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
• Texts Cited: ---
• Category: Principal judgment
• Parties: Michael Richard William Sheen (Appellant); Regina (Respondent)
• Representation: Mr MC Ramage QC (Appellant); Ms V Lydiard (Respondent); Jeffreys Lawyers (Appellant); Solicitor for Public Prosecutions (Respondent)
• File Number(s): 2008/19524
• Publication restriction: ---

Decision under appeal

• Citation: ---
• Date of Decision: 2009-07-03 00:00:00
• Before: Freeman DCJ
• File Number(s): 2008/11/1304

Judgment

1 JOHNSON J : The Appellant, Michael Richard William Sheen, seeks an extension of time to appeal against conviction and sentence following a trial which took place in the Sydney District Court in 2009.

The Charges, Verdicts and Sentences

2 The Appellant stood trial before Freeman DCJ and a jury between 4 and 12 May 2009. The jury returned the following verdicts:

 

Charge	Verdict
Count 1 - On 30 July 2008 at Kirrawee, the Appellant did assault David Potts (contrary to s.61 Crimes Act 1900)	Not guilty
Count 2 - On 19 August 2008 at Menai, the Appellant broke and entered the dwelling house of David Potts and committed a serious indictable offence therein, by stealing a certain amount of money and other personal items, the property of David Potts, in circumstances of aggravation, namely being armed with an offensive weapon, a knife (contrary to s.112(2) Crimes Act 1900)	Not guilty, but guilty of break, enter and steal (contrary to s.112(1) Crimes Act 1900)
Count 3 - On 20 August 2008 at Miranda, the Appellant assaulted David Potts (contrary to s.61 Crimes Act 1900)	Not guilty
Count 4 - On 29 August 2008 at Menai, the Appellant broke and entered the dwelling house of David Potts and committed a serious indictable offence therein, by wounding David Potts with intent to do grievous bodily harm in circumstances of special aggravation, namely at the time of the commission of the offence he wounded David Potts (contrary to s.112(3) Crimes Act 1900)	Guilty

 

3 For the offence of break, enter and steal found proved as an alternative to Count 2, the Appellant was sentenced on 3 July 2009 to imprisonment comprising a non-parole period of three years to commence on 1 September 2008 and to expire on 31 August 2011, with a balance of term of one year to expire on 31 August 2012.

4 On the fourth count, the Appellant was sentenced to imprisonment comprising a non-parole period of seven years to commence on 1 September 2010 and to expire on 31 August 2017, with a balance of term of three years to expire on 31 August 2020.

5 The total effective sentence comprised a non-parole period of nine years with a balance of term of three years.

Extension of Time

6 A Notice of Appeal and a Notice of Application for Extension of Time were filed on 4 February 2011, together with an affidavit of the Appellant's solicitor, Philip Edward Green, sworn 2 February 2011. The Crown did not oppose an extension of time. In light of the matters contained in the affidavit of Mr Green, time should be extended to permit the Appellant to proceed with the appeal.

 

Grounds of Appeal

7 The Appellant relies upon the following grounds of appeal against conviction:

(a) Ground 1 - the trial miscarried.

(b) Ground 2 - the trial Judge erred in his directions to the jury in:

(i) failing to give a "Murray" type direction,

(ii) respect to the drawing of inferences,

(iii) giving misleading directions to the jury regarding self-defence,

(iv) failing to summarise the evidence relevant to his directions on self-defence.

(c) Ground 3 - the trial Judge erred in directing the jury on an alternative count.

(d) Ground 4 - the verdicts were inconsistent and the verdicts of conviction were unreasonable.

8 The Appellant seeks leave to appeal with respect to sentence upon the following grounds:

(a) Ground 1 - the total sentence and individual sentences were unduly harsh and severe.

(b) Ground 2 - the sentencing Judge erred by taking into account as an aggravating factor the prior criminal record of the Appellant.

(c) Ground 3 - the sentencing Judge erred in sentencing on the basis of possibility.

(d) Ground 4 - the sentencing Judge erred in sentencing on the basis that it was a mid-range offence.

(e) Ground 5 - the sentencing Judge erred in failing to take into account the principle of totality.

A Short Factual Overview

9 At the time of relevant events in July-August 2008, the Appellant was aged 41 years, and the complainant, David Potts, was 48-49 years' old.

10 In summary, the Crown case in relation to the four charges was that Mr Potts was in a relationship with a woman called Anita McCarthy. Ms McCarthy had a friend, Karen Crothers, whom she had known for many years. Ms Crothers' partner was the Appellant.

11 Mr Potts said that he had first met the Appellant about three years earlier when Ms Crothers first took up with him. The two men would see each other socially, but because of the Appellant's erratic behaviour, the relationship started to deteriorate.

Count 1

12 In relation to Count 1, Mr Potts gave evidence that on 30 July 2008, the Appellant assaulted him by punching him in the face with a closed fist. This occurred as Mr Potts and Ms McCarthy were leaving Ms Crothers ' place. Neither Ms McCarthy nor Ms Crothers saw the assault, but Mr Potts complained about it to Ms McCarthy immediately afterwards.

13 The Appellant (who gave evidence at the trial) admitted that he was present on this occasion, but denied the assault.

14 The Appellant was acquitted on this count.

Count 2

15 In relation to Count 2, Mr Potts gave evidence that he arrived home from work on 19 August 2008 at about 1.00 pm. He was having a shower when he heard a noise downstairs. He emerged from the shower and looked downstairs, and saw the Appellant in his premises going through his things. Mr Potts said the Appellant was aggressive and said "I want to borrow some things" . According to Mr Potts, the Appellant was holding a knife with a greenish handle and a sheath. Mr Potts alleged that the Appellant took some DVDs, a scuba knife, an MP3 player and some cash. Mr Potts alleged that the Appellant had entered through the garage, as the front door was locked. Mr Potts said that the garage door had been tampered with.

16 The Appellant denied this incident completely.

17 The Appellant was acquitted of the offence of aggravated break, enter and steal charged in the second count, but was convicted of break, enter and steal simpliciter.

Count 3

18 In relation to Count 3, Mr Potts alleged that on 20 August 2008, he was walking through Westfield Miranda Fair, when he saw the Appellant. He said that the Appellant produced the same knife as he had the day before and, with a stabbing motion towards Mr Potts' eyes, the Appellant said: "You're effing lucky I didn't cut your eye out yesterday" . Mr Potts said the knife came close to his eye and he felt very shocked and scared.

19 The Appellant denied this incident completely.

20 The Appellant was acquitted on this count.

Count 4

21 In relation to Count 4, Mr Potts alleged that, on 29 August 2008, he had been at a hotel with his employer and had consumed about eight schooners of full-strength beer. Mr Potts arrived home at about 5.30 pm and about 10 minutes later, he heard a bang on the security door.

22 Mr Potts opened the door and saw the Appellant. The Appellant asked him if he could come inside and Mr Potts said "No" . The Appellant asked him to go outside and Mr Potts said he would go and get the key. He said he had no intention of opening the door and he grabbed the telephone to ring the police. Before he had even dialled the number, Mr Potts heard a smash in the garage.

23 Mr Potts said that after the incident on 19 August 2008 (Count 2), and in case the Appellant turned up again, he had braced the garage door by wedging some of his bricklaying tools behind the frame so the door could not be pulled out. After the Appellant had broken in on 19 August 2008, Mr Potts had checked the garage door and saw that it had been tampered with.

24 Within seconds of hearing the smash in the garage, Mr Potts said he was attacked by the Appellant in the stairwell of the house. The Appellant came for him and was hitting him to the face with his fist. Mr Potts said that the Appellant had the same knife he had had with him on two previous occasions.

25 Mr Potts and the Appellant started wrestling and fell down the stairway. The Appellant grabbed a vase off the cabinet and smashed it over Mr Potts' head. The Appellant then used pieces of the broken vase to cut Mr Potts' throat and face. Mr Potts said he was fighting for his life on the ground with the Appellant on top of him. The Appellant was cutting Mr Potts' face and throat, saying "I'm going to kill, I'm going to kill you" .

26 While they were rolling on the floor, and while the Appellant was on top of him, Mr Potts said that he was stabbed in his kidney region. The Appellant kept calling him a dog and saying he was going to kill him.

27 While the two men were on the ground, a car was heard pulling up outside. Initially, Mr Potts thought it was Ms McCarthy coming home. However, it turned out to be the next-door neighbour. According to Mr Potts, at the sound of the car outside, the Appellant stopped and said "Oh fuck, it's Anita well she can clean you up now" . He took Mr Potts' wallet and his mobile phone and walked out through the garage door, which was open and broken. Mr Potts said he tried to make a call, but the house telephone was broken and he had no energy left, so he just lay on the floor and waited. When Ms McCarthy arrived home, she called the ambulance. The police attended.

28 There was medical evidence concerning the serious and extensive injuries suffered by Mr Potts, including significant injuries to his face, neck and back.

29 The Appellant admitted that he entered Mr Potts' house on 29 August 2008, but denied that he had broken into the premises. He said that Mr Potts attacked him and that he acted in self-defence thereafter.

30 The Appellant was convicted on the fourth count.

 

Appeal Against Conviction

31 Conviction Ground 1 is a bare assertion that the trial miscarried. This is a conclusion and not a separate ground of appeal. It may be taken as the Appellant's ultimate contention arising from the suggested errors contained in the following conviction grounds.

32 Conviction Grounds 2(i)-(iv) and 3 contend that the trial Judge erred in various respects in his directions to the jury. Rule 4 Criminal Appeal Rules applies to each of these grounds. It is for the Appellant to demonstrate that the grounds are arguable and that a miscarriage of justice has resulted so that this Court should grant leave under Rule 4 to permit these grounds to go forward: R v Abusafiah (1991) 24 NSWLR 531 at 536; Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 at 319 [72]; R v Wilson [2005] NSWCCA 20; 62 NSWLR 346 at 352-353 [20]-[24].

Conviction Ground 2(i) - Failure to Give a "Murray" Type Direction

Submissions of the Parties

33 Mr Ramage QC, for the Appellant, submitted that the trial Judge erred in failing to give the jury a direction in accordance with R v Murray (1987) 11 NSWLR 12 with respect to the evidence of Mr Potts. Although the trial Judge spent a considerable time summarising counsel's arguments about the evidence of Mr Potts and the Appellant, Mr Ramage QC submitted that at no stage did his Honour give the jury a warning either using the word "warning" or counselling caution.

34 It was submitted that such a direction should always be given in cases where there is a single vital witness and a perceptible risk of miscarriage of justice if the jury is not warned of the need to scrutinise the evidence of a complainant with care before arriving at a conclusion of guilt: Robinson v The Queen [1999] HCA 42; 197 CLR 162 at 168-171 [21]-[26].

35 Whilst acknowledging that leave under Rule 4 is required to rely upon this ground, Mr Ramage QC submitted that a miscarriage of justice had resulted so that leave ought be granted.

36 The Crown submitted that leave under Rule 4 should be refused. It was submitted that as the jury had acquitted the Appellant of Counts 1 and 3 and had returned an alternative verdict of guilty of break, enter and steal with respect to Count 2, it was clear that the jury did consider the evidence of Mr Potts with care, even though a direction in the form suggested by this ground had not been given. The Crown submitted that there was no particular form of words prescribed for giving a "Murray" direction, nor is there any obligation to use the word "scrutinise" : Kaifoto aka Teaupa v R [2006] NSWCCA 186 at [72].

37 The Crown submitted that the summing up made clear to the jury the significance of the evidence of Mr Potts with respect to each of the counts and that, in relation to Count 4, there was a considerable amount of evidence in addition to that of Mr Potts, so that a "Murray" direction was not required in that respect.

Decision

38 In approaching this ground, it is necessary to keep in mind the fact that the jury acquitted the Appellant on Counts 1 and 3 and returned an alternative verdict of guilty with respect to the second count. It is immediately apparent that the jury was alive to the need to consider carefully the evidence of Mr Potts with respect to each count.

39 Trial defence counsel did not seek a "Murray" direction. In my view, the summing up conveyed sufficiently to the jury the need for care in examining the evidence of Mr Potts, with a particular eye upon the onus and standard of proof which lay upon the Crown. It is clear that the jury understood this aspect of their task.

40 I do not think that anything said in R v Murray or Robinson v The Queen requires that such a direction be given in every case as contended by senior counsel for the Appellant. The decision of this Court in Kaifoto aka Teaupa v R makes clear that no particular form of words is required. The Court will look at the substance of what was conveyed to the jury by the summing up and, in this case, what may be discerned from the various verdicts returned by the jury.

41 The trial Judge gave the jury appropriate directions concerning the process of assessment of the honesty and reliability of witnesses, including Mr Potts, with associated directions concerning the reliance in the main upon the evidence of Mr Potts.

42 With respect to Count 4, there was a considerable volume of evidence in addition to that of Mr Potts. The Appellant acknowledged that he had entered the house of Mr Potts and that there had been a physical confrontation between the two men in which the Appellant had inflicted injuries to Mr Potts. The only real issue with respect to the fourth count was the issue of self-defence, which the jury determined adversely to the Appellant. The evidence of injuries to Mr Potts and the relative lack of injury to the Appellant was pertinent, as was the immediate complaint by Mr Potts to Ms McCarthy, Ms Taylor and Senior Constable Wilkinson.

43 The fact that no application was made at the trial for a direction of this type supports the view that the directions given were sufficient in the context of the trial, a view supported by the verdicts returned by the jury which themselves reflected careful evaluation by the jury of the evidence of Mr Potts.

44 I would refuse the Appellant leave under Rule 4 to rely upon Ground 2(i), but would, in any event, reject this ground of appeal.

Conviction Ground 2(ii) - Directions Concerning Drawing of Inferences

Submissions of the Parties

45 The Appellant seeks leave under Rule 4 to contend that an inadequate direction was given to the jury concerning the drawing of inferences. This ground relates to the fourth count where an element required proof that the Appellant wounded Mr Potts with intent to do grievous bodily harm.

46 Mr Ramage QC submitted that the trial Judge had failed to explain to the jury the process of drawing inferences, including the danger of drawing false conclusions, and had invited the jury to consider the process in terms of drawing a "reasonable inference" . He submitted that the trial Judge had failed to make it clear that in drawing an inference as to the intent of the Appellant, it had to be the actual intent of the Appellant with this being the only inference that could be drawn. He submitted as well that the trial Judge had failed to connect, or sufficiently connect, his directions to the evidence from which the jury were being invited to draw an inference and, in particular, the medical evidence.

47 The Crown submitted that the directions concerning the drawing of inferences in this case were sufficient. Given that the Appellant had admitted that he stabbed Mr Potts, asserting that such a stabbing was done in self-defence, the Crown submitted that the directions in relation to inferences required no further elaboration.

Decision

48 The directions concerning the drawing of inferences in this case fell within a narrow compass. The issue for the jury with respect to the fourth count related to the inference or inferences to be drawn concerning the intention of the Appellant from the evidence relating to the fourth count including the range and nature of injuries sustained by Mr Potts.

49 There was no issue in the trial that the Appellant had inflicted very significant injuries to Mr Potts. The issue with respect to the fourth count was one of self-defence.

50 The jury had before them photographic evidence of Mr Potts' injuries, together with evidence from Mr Oke, an ambulance officer, and Dr Morgan, the medical practitioner who treated Mr Potts upon his admission to hospital. Mr Potts sustained very severe facial lacerations and lacerations to the small of his back, with the loss of a considerable amount of blood. The Appellant admitted that he had wounded Mr Potts with a shard of broken vase.

51 It was necessary for the Crown to prove that the Appellant wounded Mr Potts with intent to cause grievous bodily harm. His Honour gave the jury appropriate directions concerning the meaning of grievous bodily harm.

52 I detect no error or deficiency in the directions given by the trial Judge concerning the drawing of inferences. Nor did defence trial counsel who sought no further direction in this respect.

53 I would refuse leave under Rule 4 for the Appellant to rely upon Ground 2(ii) but would, in any event, reject this ground of appeal.

Grounds 2(iii) and (iv) - Directions to the Jury Concerning Self-Defence

54 It is appropriate to consider Grounds 2(iii) and (iv) together, as they each involve complaints concerning the approach of the trial Judge to the issue of self-defence.

Submissions of the Parties

55 Mr Ramage QC submitted that, although the directions given to the jury concerning self-defence were correct in principle, further elaboration should have been given in the context of the trial. He submitted that the trial Judge gave misleading directions by leaving to the jury the scenario that the Appellant had stabbed Mr Potts with a shard of broken vase, and not a knife.

56 With respect to Ground 2(iv), Mr Ramage QC submitted that it was incumbent on the trial Judge to give directions by reference to relevant evidence concerning self-defence and that his Honour had failed to do so adequately in this case.

57 The Crown submitted that the directions given to the jury concerning self-defence were appropriate in the circumstances of the case. Although Mr Potts had given evidence that the Appellant possessed a knife prior to the physical altercation which was the subject of the fourth count, Mr Potts had not asserted directly that the knife had been used by the Appellant to stab him. Further, the Appellant gave evidence denying he had a knife, but admitting that he had stabbed Mr Potts with a shard of broken vase. The Crown submitted that there was no deficiency in the summing up with respect to this issue.

Decision

58 No complaint is made under these grounds of appeal concerning the directions of law given to the jury concerning self-defence in this case. Rather, the complaint concerns the factual content of the directions given to the jury by the trial Judge.

59 It is not the case that Mr Potts asserted definitively that the Appellant had stabbed him with a knife. It was the evidence of Mr Potts that he was struck over the head by the Appellant with a vase which broke, and that thereafter he was cut to the face by the Appellant and stabbed in the back. The medical evidence demonstrated that Mr Potts had sustained very severe facial lacerations and lacerations to the small of his back. Mr Potts expressed an assumption or belief that he had been stabbed in the back with the knife. However, he did not claim to have seen the knife used in this way and acknowledged that he may have been wrong.

60 The Appellant admitted that he had stabbed Mr Potts with a shard of broken vase, but claimed to have done so in self-defence.

61 It is erroneous to contend that the Crown was, in some way, confined to a case that the Appellant had used a knife to stab Mr Potts. This was not the evidence of Mr Potts and the Appellant himself admitted the use of a shard in wounding Mr Potts.

62 I am entirely unpersuaded that there is any merit in Grounds 2(iii) and (iv) concerning the directions regarding self-defence and the summary of evidence bearing upon self-defence in this case. This view is fortified by the absence of any application by defence trial counsel for any further direction on this aspect.

63 In my view, these grounds are without merit and I would refuse the Appellant leave under Rule 4 to rely upon Grounds 2(iii) and (iv), which I would, in any event, reject.

Ground 3 - Directions to the Jury Concerning an Alternative Verdict on the Second Count

Submissions of the Parties

64 Mr Ramage QC submitted that the trial Judge had erred in leaving to the jury an alternative verdict on the second count of guilty of break, enter and steal simpliciter. He submitted that the trial had been conducted upon the basis that the incident on 19 August 2008, which was the subject of the second count, had been committed whilst the Appellant was armed with an offensive weapon, being the green cylindrical knife as asserted by Mr Potts in his evidence.

65 It was submitted that neither the Crown nor the defence at trial had adverted to the prospect of such an alternative verdict, and that the trial Judge did not raise the matter with counsel before informing the jury of this available alternative verdict in the course of the summing up. He submitted that this course was contrary to law and gave rise to a miscarriage of justice in the circumstances of the case.

66 The Crown submitted that there was an obligation on the trial Judge to leave an alternative verdict where it arose in the circumstances of the trial, and that it was not to the point that the Crown had not opened, nor relied upon such an alternative verdict: R v King [2004] NSWCCA 20; 59 NSWLR 515 at 516 [5], 525 [55].

67 The Crown emphasised that defence trial counsel had not objected when the trial Judge introduced the possibility of an alternative verdict during the course of summing up. Further, the Crown observed that counsel did not object or make any submission opposing the alternative verdict direction when the issue was raised again in response to a jury note indicating that verdicts had been reached (SU36-37). Given that no complaint had been made at the trial concerning any suggested unfairness to the Appellant in this respect, the Crown submitted that no miscarriage of justice had resulted.

Decision

68 The second count in the indictment charged the Appellant with an offence of aggravated break, enter and steal contrary to s.112(2) Crimes Act 1900 , an offence punishable by imprisonment for 20 years, with a standard non-parole period of five years. The circumstance of aggravation charged in the second count was that the Appellant was armed with an offensive weapon: s.105A(1) Crimes Act 1900 .

69 During the course of the summing up, the trial Judge instructed the jury in the following terms concerning a possible alternative verdict on the second count (SU13-14):

"Now it is theoretically possible that you might find, I am not suggesting this is what you should or would find but I am obliged to describe to you the full range of legal options open to you, and that is it is entirely possible that you might find that you are persuaded beyond reasonable doubt that the accused broke into, entered the house of and stole property from Mr Potts. But if for some reason you are not satisfied beyond reasonable doubt that he was armed with the green cylindrical knife, the offensive weapon, at that stage then you would find him not guilty of this charge but you would need to tell me then that you find him guilty of the charge of breaking, entering and stealing. Because there is a breaking, entering and stealing and then there is the aggravating element of being armed with the offensive weapon. So that charge is, if you like, subdivisible."

70 This direction left open to the jury the prospect of returning a verdict on the second count of not guilty of the charge under s.112(2) Crimes Act 1900 , but guilty of break, enter and steal under s.112(1) Crimes Act 1900 , an offence punishable by imprisonment for 14 years.

71 The legislature envisaged that such a scenario may present itself by enacting s.115A(1) Crimes Act 1900 , which is in the following terms:

"115A Alternative verdicts

(1) Aggravated offence reduced to basic offence

If on the trial of a person for an offence under section 106 (2), 107 (2), 109 (2), 111 (2), 112 (2) or 113 (2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under section 106 (1), 107 (1), 109 (1), 111 (1), 112 (1) or 113 (1) as appropriate, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly...."

72 Section 115A(1) reflects the common law position which permits an alternative verdict to be returned for a lesser included offence not charged in the indictment: R v Cameron [1983] 2 NSWLR 66 at 67-70; R v Winner (1989) 39 A Crim R 180 at 181.

73 Accordingly, the course taken by the trial Judge was open as a matter of law. The complaint here is that, in the circumstances of the case, the trial Judge erred in leaving the alternative verdict to the jury in the summing up when there had been no earlier reference to that possibility by the Crown or the trial Judge. In effect, the Appellant submits that unfairness resulted to him in these circumstances and that a miscarriage of justice has occurred.

74 The circumstances in which a possible alternative verdict has, or has not, been left the jury in a criminal trial have given rise to grounds of appeal to this Court. The more common scenario is a complaint that an alternative verdict was not left to the jury, whether or not defence counsel sought such a direction at trial. An example of this type is an appeal upon the basis that the trial Judge ought to have left an alternative verdict of manslaughter in a murder trial: Carney v R; Cambey v R [2011] NSWCCA 223 (where the relevant High Court authorities are considered).

75 It is accepted that a trial Judge may fall into error where a lesser included offence is not left to the jury as an alternative verdict: R v King (armed robbery/robbery); Mifsud v R [2009] NSWCCA 313 (robbery in company/larceny).

76 As Buddin J observed in R v Jones and Ors (No. 9) [2007] NSWSC 1160 at [16], the trend of authority (including R v King ) makes it plain that, if an alternative verdict is open upon the evidence, a trial Judge is bound to leave it for the jury's consideration regardless of the attitude of the accused.

77 In the context of the present case, and using the reasoning in Mifsud v R at [43]-[50], the questions that arise in a case such as this may be framed in any of the following ways:

(a) whether an alternative verdict of break, enter and steal would, on the evidence in this case, represent a viable outcome;

(b) whether a conviction for break, enter and steal would produce a "rational result" ;

(c) whether, in circumstances where the principal offence under s.112(2) is undoubtedly grave, the alternative of break, enter and steal is "comparatively trifling and remote" .

78 It has been said that a trial Judge should leave a lesser included offence as an alternative provided it is in the interests of justice and in the interests of the accused to do so: R v King at 516-517 [5], [12]-[13], 534-535 [110]-[115]. It is in the public interest that alternative verdicts which are open on the evidence should be considered so that a correct outcome is achieved: R v King at 532 [99].

79 Although an argument may be advanced that the accused may obtain an advantage where the lesser offence is not left to the jury, it has been observed that such an argument is unsound: R v King at 535 [112].

80 In the circumstances of this case, it was open to the trial Judge as a matter of law to leave the alternative verdict on the second count to the jury. Indeed, the authorities support an argument that the trial Judge was bound as a matter of law to do so. It appears that this was his Honour's view as he told the jury that he was "obliged to describe to you the full range of legal options open to you" (see [69] above).

81 That leaves a further question concerning the manner and timing of the alternative verdict being raised. The Crown did not open to the jury upon this aspect. Nor was mention made during the trial by the trial Judge, the Crown Prosecutor or defence counsel concerning the possibility of an alternative verdict on the second count. The topic was not referred to in closing addresses. The trial Judge did not raise the issue with counsel in the absence of the jury. Rather, the topic was mentioned for the first time in the extract from the summing up set out at [69] above.

82 This Court has emphasised the strong desirability of the prospect of an alternative verdict being raised at an early time in the trial. To raise the question for the first time at the conclusion of the Crown case may, in many cases, produce an injustice to the accused. It has been said to be unwise for a trial Judge to introduce these matters on his own initiative: R v Cameron at 71. In R v Pureau (1990) 19 NSWLR 372 at 376, Hunt J observed that normally the prospect of an alternative verdict should be raised by the Judge with counsel before the closing addresses to enable counsel to consider what, if anything, they wish to say on the issue. Hunt J said that it was difficult to imagine circumstances which would justify such an issue being raised for the first time during the summing up, when neither counsel had had at least the opportunity of addressing upon it if they so wished.

83 A test of practical unfairness should be applied in circumstances such as this: R v Lykouras [2005] NSWCCA 8 at [22]-[24]; Chand v R [2011] NSWCCA 53 at [60]-[67]. This approach is consistent with that taken by this Court where complaint is made that unfairness has resulted for an accused, with a consequential miscarriage of justice, where a trial Judge directs a jury during summing up on a factual scenario not advanced by the Crown during the trial: Robinson v R [2006] NSWCCA 192; 162 A Crim R 88 at 127-129 [138]-[149].

84 The question for this Court to consider is whether there has been an unfairness to the Appellant giving rise to a miscarriage of justice by reason of the conduct of the trial, requiring the intervention of this Court: Robinson v R at 129 [149]; Smale v R [2007] NSWCCA 328 at [97].

85 In the context of a ground of appeal complaining of an alternative verdict being left to the jury by a trial Judge, it has been considered significant that no objection had been taken by trial defence counsel to the alternative count being left to the jury, with the absence of objection supporting the view that there was no prejudice as a result of the alternative count being left: Chand v R at [58]-[62].

86 Where there is contemporaneous objection to the course taken by the trial Judge, there is practical recognition, in the atmosphere of the trial, that the accused has been prejudiced and that unfairness has resulted from the trial Judge's directions: Robinson v R at 130-131 [156]. Complaint may be made that the trial would have been conducted differently or that submissions would have been made to the jury if it had been known that the trial Judge intended to raise the particular issue in the summing up. In some cases, defence counsel may contend that the jury should be discharged. Contemporaneous complaints and applications of this type were made in Robinson v R .

87 It has been said that it would be a rare case, where elements of unfairness were absent, that this Court would find that it was unfair or oppressive for the Crown to rely upon an alternative count simply because it might deprive the accused of a chance of an acquittal on the principal charge: Chand v R at [61].

88 In R v Pureau , Hunt J observed at 377D-E that it may be difficult for an accused person to complain of a miscarriage of justice as a result of the late raising of an alternative verdict of attempt where the accused's case was a complete denial, so that there would be nothing which counsel could usefully have said in his closing address which would have assisted him on the alternative verdict. As Howie J (Mason P and James J agreeing) said in Smale v R at [97], "if by putting an argument or a case to the jury that was not put by the Crown some real unfairness had arisen to the accused, it is difficult to imagine that defence counsel would not object" . A failure to raise objection at the close of the trial Judge's summing up is usually a reasonably reliable indicator of its fairness and adequacy: Tekely v R [2007] NSWCCA 75 at [89], [130]-[132].

89 Considerations of this type are pertinent both on the question whether leave should be granted under Rule 4 to press this ground and, if leave was granted, whether the ground is made good: Chand v R at [67].

90 As a matter of proper trial practice, it was undesirable that the prospect of an alternative verdict was raised by the trial Judge for the first time during the course of the summing up. The observations made in R v Cameron and R v Pureau emphasise the strong desirability of this step being flagged prior to closing addresses, if not earlier.

91 However, the question remains whether there has been any procedural or substantive unfairness to the Appellant: R v Sieders [2008] NSWCCA 187; 72 NSWLR 417 at 450-454 [197]-[205]; Qoro v R [2008] NSWCCA 220 at [47]-[56]. Has the Appellant demonstrated that a miscarriage of justice has occurred so that the conviction for an offence under s.112(1) Crimes Act 1900 should be quashed?

92 When the issue was raised by the trial Judge, neither the Crown Prosecutor nor (more particularly) defence counsel raised any concern or objection to that course. There was no submission made that the late raising of this prospect had taken counsel by surprise or that any aspect of the trial, including closing addresses, may have been handled differently if counsel had been told that this was to occur.

93 The observations of Hunt J in R v Pureau (at [88] above) are pertinent in this respect. If the complaint is, as in Chand v R , that the Appellant was somehow entitled to run an "all or nothing" defence on the second count, then that approach is not supported by authority. It is difficult to see how unfairness resulted to the Appellant where an alternative and lesser included count was left to the jury. Senior counsel for the Appellant before this Court has not articulated any practical unfairness which is said to have resulted from this course.

94 In all the circumstances, without seeking to endorse the approach of the trial Judge in this case, I am not persuaded that there was a practical injustice to the Appellant resulting from the course taken by his Honour.

95 I am not satisfied that a miscarriage of justice has occurred in this case. I would decline the Appellant leave under Rule 4 to rely upon this ground, but, even if leave was granted, I would reject the ground of appeal.

Conviction Ground 4 - The Verdicts Were Inconsistent and the Verdicts of Guilty Were Unreasonable

96 Although there are two elements to this ground of appeal, they were argued together and there are overlapping features so that it is appropriate to determine the contentions as a single ground.

Submissions of the Parties

97 Mr Ramage QC submitted that the verdicts of the jury were inconsistent and that the convictions on the alternative charge under Count 2 and on Count 4 were unreasonable and cannot be supported, having regard to the whole of the evidence and all of the relevant facts and circumstances of the case, including the acquittals on Counts 1, 2 (the aggravated offence) and 3.

98 Senior counsel submitted that the Crown case on each count depended on the truthfulness, reliability and accuracy of the complainant, Mr Potts. It was submitted that the only reasonable (or the principal) explanation for the acquittals and partial acquittal, must have been doubt about the veracity of Mr Potts and rejection of his evidence. Mr Ramage QC submitted that the suggested inconsistent verdicts lacked any rational explanation other than doubt about the credibility of Mr Potts.

99 In relation to Count 1, Mr Ramage QC submitted that the jury must have doubted the credibility of the evidence of Mr Potts that he had been punched in the face by the Appellant with a closed fist.

100 With respect to the acquittal on the aggravated break, enter and steal charge in Count 2, Mr Ramage QC submitted that the jury must have rejected the evidence of Mr Potts that he had been menaced with a knife. He submitted that the jury may well have been led, as a result of the alternative verdict direction, into making an inconsistent and illogical decision, which rejected an integral part of the evidence of Mr Potts, but apparently accepted the balance. He submitted that the asserted presence of a knife could not be simply ignored as it was fundamental to the reason for Mr Potts surrendering his property to the Appellant.

101 Concerning Count 3, Mr Ramage QC submitted that the acquittal must have involved the total rejection of the evidence of Mr Potts that a threatening act with a knife had occurred at the Westfield Miranda Fair on 20 August 2008. He submitted that the rejection of the evidence of Mr Potts on this count should have logically affected the jury's acceptance of any of the evidence of Mr Potts with respect to the other incidents. It was submitted that rejection of this incident should have been reflected in doubt about the entire incident the previous day (Count 2).

102 With respect to Count 4, Mr Ramage QC submitted that the veracity of the evidence of Mr Potts was of fundamental importance, in particular with respect to the circumstances in which the fight started between the two men. He submitted that the acquittal of the Appellant on the second and third counts, where Mr Potts alleged that the green knife had been brandished, had a flow-on effect to the fourth count, where Mr Potts alleged that the knife was again used by the Appellant.

103 Mr Ramage QC submitted that it was likely that the jury rejected the evidence of Mr Potts concerning the knife, but convicted on the basis that the Appellant had used excessive force with a shard. He submitted that such an approach "smacks of compromise" and effectively denied what had been an integral part of the Crown case which could not logically be separated out from the balance of the evidence of Mr Potts.

104 The Crown submitted that there was evidence which corroborated the evidence of Mr Potts with respect to the offences for which the Appellant was convicted and that this served to explain the verdicts returned by the jury.

105 With respect to the first count, the Crown noted that the prosecution case depended upon the evidence of Mr Potts that he had been punched by the Appellant, with the only additional evidence being the complaint made by Mr Potts to Ms McCarthy.

106 In relation to the third count, there was no evidence independent of Mr Potts, not even evidence of complaint.

107 With respect to the conviction for the offence which was an alternative to Count 2, the Crown submitted there was evidence which corroborated the account of Mr Potts concerning the elements of the offence of breaking, entering and stealing. There was evidence that the garage door (the point of entry of the Appellant) was broken and that Mr Potts had thereafter braced the door with a tool. Ms McCarthy gave evidence of early complaints by Mr Potts that the Appellant had come to the house to rob him. After the incident, Ms McCarthy observed that Mr Potts wanted her to lock all the windows and to make sure that doors were locked securely because he was worried that the Appellant was going to come back. However, Mr Potts had not referred to a knife in his complaint to Ms McCarthy. The Crown submitted that this may well explain the jury's verdict on this count.

108 With respect to the fourth count, the Crown submitted that the only real issue was whether the Appellant had acted in self-defence and that the jury clearly found that he had not, or alternatively, the jury found that what he did was excessive in the circumstances. In response to the Appellant's submissions concerning the knife, the Crown submitted that there was no issue on this count that the Appellant had wounded Mr Potts. Any argument based upon the presence of the knife was not critical to this count, where there was a substantial body of physical, medical and forensic evidence in addition to that of Mr Potts.

109 The Crown submitted that there was no relevant inconsistency between the verdicts and that the Appellant has not demonstrated that the verdicts of guilty were unreasonable.

Decision

110 As this ground of appeal against conviction does not involve a question of law alone, the Appellant requires leave to appeal against conviction: s.5(1) Criminal Appeal Act 1912 ; Rasic v R [2009] NSWCCA 202 at [12]. Having regard to the arguments advanced, I would grant leave to the Appellant to rely upon this ground of appeal with respect to conviction.

111 The task of this Court when considering a ground such as this was summarised in Raumakita v R [2011] NSWCCA 126 at [31]-[36]:

"31 In determining a ground of appeal which asserts, for the purpose of s.6(1) Criminal Appeal Act 1912, that the verdict was unreasonable or cannot be supported having regard to the evidence, this Court is required to apply the test set down in M v The Queen [1994] HCA 63; 181 CLR 487 at 493, and restated in MFA v The Queen [2002] HCA 53; 213 CLR 606. The Court is to make an independent assessment of the evidence, both to its sufficiency and quality. This involves a question of fact. The Court is to determine whether the evidence is such that it was open to a jury to conclude beyond reasonable doubt that the Appellant was guilty. The central question is whether this Court is satisfied that the Appellant is guilty of the offence charged in the first count: Morris v The Queen [1987] HCA 50; 163 CLR 454 at 473; SKA v The Queen [2011] HCA 13; 85 ALJR 571 at 575 [11]-[14], 576-577 [20]-[22].

32 In exercising that function, the evidence ought not be considered piecemeal: The Queen v Hillier [2007] HCA 13; 228 CLR 618 at 637-638 [46]-[48]; The Queen v Keenan [2009] HCA 1; 236 CLR 397 at 435 [128]. This Court is required to consider the totality of evidence before the jury. This involves an assessment of direct evidence of witnesses, and inferences to be drawn from a combination of events: Rasic v R at [29].

33 In some cases, the fact that the Court of Criminal Appeal has not seen or heard the witnesses at trial may have a bearing on the outcome of an appeal on an unreasonable verdict ground. In M v The Queen , Mason CJ, Deane, Dawson Toohey JJ said at 494-495:

'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.'

34 The M v The Queen formulation of the task of this Court has been emphasised by the High Court in later cases: The Queen v Nguyen [2010] HCA 38; 85 ALJR 8 at 14 [33]; SKA v The Queen at 575 [13].

35 Where an unreasonable verdict ground is said to be supported by a claim of inconsistent jury verdicts, the focus of the enquiry is upon any explanation for an acquittal, not for a conviction: R v TK at 321 [128].

36 The Appellant bears the burden of establishing inconsistency of verdicts. This Court has said that it is only where inconsistency rises to the point that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside: Dungay v R; R v Dungay [2010] NSWCCA 82 at [22]; Still v R [2010] NSWCCA 131 at [57]-[61]."

112 The following statement of this Court in Still v R [2010] NSWCCA 131 at [60] should also be kept in mind in considering a ground which asserts inconsistent verdicts:

"An appellate court should be cautious before concluding that a jury (as a whole) has acted contrary to its clearly explained duty. There may be many reasons why a jury does not convict on a particular count and an appellate court must allow for the advantage of the jury when considering questions arising under s.6(1) Criminal Appeal Act 1912: R v TK [2009] NSWCCA 151; 74 NSWLR 299 at 301-302 [6], 331 [194]. Where there is evidence to support the verdict, there is a need for great caution in presuming that a jury has acted inappropriately in reaching a conclusion of guilt in some circumstances, and a contrary conclusion in others: Jovanovksi v Director of Public Prosecutions (NSW) at [23]."

113 The trial Judge directed the jury concerning the need for separate verdicts in the following passage which was not challenged in this Court (SU32-33):

"Now there are four counts, that means you have to decide them individually and you have to deliver a separate verdict in respect of each of them. Theoretically at least that means that you may decide the answer is different in respect of one or more of them. However, you should bear this in mind. That if when you have considered some charge and the reason you are not persuaded beyond reasonable doubt, if that is the situation in which you find yourself, is because you have some reasonable doubt about the evidence of Mr Potts then you have to bear that fact in mind when you come to consider the other charges on which you are required to be satisfied beyond reasonable doubt by his evidence. In other words, if there are different results to the different charges they have to be logically defensible. You have to have some logical reason for having arrived at a different conclusion in respect of one or more to what you decide in relation to the others. I am not saying you will, I am simply reminding you that you do have to deliver separate results and those results must be unanimous."

114 This direction invited the jury, correctly, to consider their verdict on each count and to take into account any conclusion reached by them with respect of the evidence of Mr Potts in considering the subsequent count. Thus the jury were invited to consider the evidence (including that of Mr Potts) in a way that could give rise to different results on different charges, but with those differences needing to be "logically defensible" .

115 The acquittal of the Appellant on the first and third counts is to be explained by the limited evidence adduced by the Crown on those counts. On the first count, there was the evidence of Mr Potts together with evidence of complaint that there had been a relatively minor assault in the form of a push. The Appellant give evidence denying that such an incident occurred.

116 With respect to the third count, the only evidence was that of Mr Potts describing the incident said to have occurred in a shopping centre. There was no evidence of complaint. The Appellant gave evidence denying that this incident occurred.

117 In my view, the acquittal of the Appellant on these counts reflects the jury applying the demanding criminal standard of proof to the limited evidence before them on those charges.

118 The acquittal of the Appellant for the offence charged in the second count is to be explained by the jury having a reasonable doubt that the Appellant possessed a knife at the time of that offence. In assessing the evidence of Mr Potts and in accordance with the directions of the trial Judge, the jury may have considered this feature of the evidence of Mr Potts which was common to the second and third counts. However, there was additional evidence which supported the account of Mr Potts that the premises were broken and entered by the Appellant on 19 August 2008 and that property of Mr Potts was stolen by the Appellant on that occasion. The verdict of guilty on the s.112(1) statutory alternative is understandable when viewed in this light.

119 The fourth count was the most serious charge before the jury. It is fair to say that the great bulk of the trial was taken up by evidence which bore upon this charge. There was a substantial body of evidence in addition to that of Mr Potts which implicated the Appellant in this crime.

120 The Appellant's argument concerning inconsistency on the fourth count depends upon an acceptance that the suggested possession of a knife was fundamental to this charge, and that the verdicts on other counts where a knife was said to have been possessed, meant that acquittal of the Appellant on this count was effectively inevitable. I do not accept his analysis.

121 With respect to the fourth count, the Appellant admitted that he had entered the premises and that an altercation occurred leading to the Appellant inflicting wounds upon Mr Potts. Although Mr Potts asserted that the Appellant was armed with the green knife inside the house, Mr Potts did not assert that the various serious and undisputed injuries which he sustained were caused by the use of the knife. The closest the evidence came to this was what Mr Potts described as an assumption (which he acknowledged may have been wrong) that the knife had been used to stab him in the back. There were undisputed injuries to Mr Potts' back, the depth of which tended to support they were caused by some type of stabbing. In my view, the knife was not a fundamental feature of the fourth count.

122 Mr Ramage QC submitted that the evidence of Mr Potts concerning the commencement of the altercation ought to have been rejected by the jury, and that this ought to have led to the acquittal of the Appellant on this count. I do not agree. There was a substantial body of further evidence which incriminated the Appellant on this count.

123 With respect to the submission under this ground of appeal based upon the claim of inconsistent verdicts, I express the conclusion that, applying the relevant principles referred to above (at [111]-[112]), there was no relevant inconsistency so that the convictions on the alternative offence under the second count and on the fourth count ought be set aside. Rather, the verdicts suggest that the jury approached their task in a principled way, returning separate verdicts on each of the counts which make sense and are rational in the context of the trial.

124 With respect to the balance of the submissions advanced asserting that the verdicts of guilty were unreasonable, it is necessary to approach the matter in accordance with the principles set out above (at [111]).

125 I have referred earlier to evidence which bears upon the verdict of guilty on the alternative charge under the second count, namely breaking, entering and stealing committed on 19 August 2008. It is important to bear in mind that aspects of the evidence of Mr Potts on this count were corroborated by physical evidence of breaking and entering through the garage. Further, Ms McCarthy gave evidence that Mr Potts complained that such an incident had occurred and, importantly, that he thereafter wished her to lock all the windows and to make sure all the doors were locked securely because of his worry that the Appellant would come back. The complaint made by Mr Potts to Ms McCarthy did not include any reference to a knife. This may serve to explain the acquittal on the charge of aggravated break, enter and steal. However, the jury had before them the evidence of Mr Potts as to what had occurred, accompanied by evidence that the garage had been broken and entered and evidence of a contemporaneous concern by Mr Potts expressed to Ms McCarthy that there would be repetition of such conduct by the Appellant.

126 The jury had the advantage of seeing the witnesses giving evidence, including Mr Potts and the Appellant. Counsel for the Appellant at trial put to Mr Potts that he had supplied the drug, ice, to the Appellant and that this aspect of their association shed light upon the events raised in the trial. Mr Potts strongly denied such allegations. There was evidence from a police officer in the trial that there was no evidence or police intelligence to support the suggestion that Mr Potts was a drug supplier.

127 A reading of the transcript suggests that Mr Potts gave his evidence in a forceful fashion, strongly defending himself against allegations of this type. The transcript also revealed that aspects of the evidence of the Appellant under cross-examination were troubling, and that the jury would have been unlikely to find the Appellant's evidence persuasive. An example of this is the evidence of the Appellant (concerning the fourth count) that he fell over the coffee table in the lounge room in a manner that would have objects spreadeagled on the table. Yet the crime scene photographs depicted a number of items still sitting on the table. Of course, as the jury was directed, it was for the Crown to prove the guilt of the Appellant, even if the jury did not accept the Appellant's evidence. However, an examination of the transcript suggests that there were significant credibility issues impacting upon the Appellant's account. It is necessary to keep in mind the restricted ability of this Court in exercising its present appellate function, as opposed to the advantage of the jury in seeing and hearing the witnesses giving evidence in areas where strong challenges to credibility were being made with respect to both Mr Potts and the Appellant.

128 As mentioned above, the fourth count involves a substantial body of evidence extending beyond that given by Mr Potts and the Appellant. Having considered that evidence, I record the following matters.

129 There was evidence before the jury that the Appellant had reported at a police station on the evening of 29 August 2008 shortly before he attended the home of Mr Potts. Sergeant Papworth gave evidence that the Appellant was aggressive and antagonistic towards him at that time, which was only 10 minutes before the events which occurred at Mr Potts' Menai home.

130 The Appellant said that he went to Mr Potts' home to obtain the drug ice. Mr Potts denied this. What is clear, however, is that it was the Appellant who attended the home of Mr Potts in an aggressive frame of mind. There was some discussion between Mr Potts and the Appellant at the front door, but it is common ground that Mr Potts did not let the Appellant in through that door. The Appellant entered via the garage door, with physical evidence observed by the police supporting a conclusion that the Appellant had forced the garage door open by manipulating the tool which had held it in place following the earlier break, enter and steal on 19 August 2008. There is a strong body of evidence that the Appellant broke and entered the premises on the occasion of the fourth count.

131 There is a dispute in the evidence as to what was said between the two men before the physical altercation commenced. Mr Potts maintained that the Appellant possessed the green knife. The Appellant denied this. What is clear, however, is that the Appellant had broken and entered the premises of Mr Potts in an aggressive state. It was the Appellant who sought to confront Mr Potts in his home. The conclusion ought be reached that he initiated the physical contact with Mr Potts which thereafter involved the infliction of very serious injuries by the Appellant to Mr Potts.

132 I accept the account of Mr Potts that the two men wrestled on the stairs and rolled downstairs into the living room. Thereafter, the Appellant picked up a vase and smashed it over Mr Potts' head. The Appellant then picked up a shard and slashed at the face of Mr Potts, causing a serious wound to the eyelid and an injury to the throat. This is sufficient to constitute the offence charged in the fourth count. Although the strong likelihood is that the Appellant inflicted wounds to Mr Potts' back using a shard, there is a reasonable possibility that these injuries were sustained by Mr Potts rolling on broken vase pieces. Accordingly, I am not satisfied to the criminal standard that the Appellant stabbed Mr Potts in the back. However, as I have said, this does not assist the Appellant on this count.

133 That multiple cutting and stabbing injuries of this type were inflicted upon Mr Potts is not in doubt. The evidence of Mr Oke, the ambulance officer, and Dr Morgan demonstrates the range and severity of injuries inflicted upon Mr Potts. The inflicting of these injuries caused significant blood loss from Mr Potts, with areas of the house and his body and clothing being heavily blood stained.

134 This may be contrasted with the comparative lack of injury to the Appellant. He had a minor injury to the hand.

135 I am satisfied that the sound of a neighbour arriving home led the Appellant to desist from his attack on Mr Potts and to flee the house. At that time, it ought to have been apparent (even allowing for the darkness of an early winter evening) that Mr Potts had been severely injured. The Appellant departed the premises. He travelled to his mother's home and then to a club where he spent an extended period of time drinking and playing pool. He did not appear to be impeded by any injuries.

136 Although the process of fact finding in a case such as this, where self-defence is raised, is not to be confined to a bare comparison of the injuries sustained by the two protagonists, that feature nevertheless remains a most important part of the fact-finding function. The range and seriousness of injuries inflicted by the Appellant upon Mr Potts sheds very considerable light upon the identity of the aggressor and the question whether the Appellant was acting in self-defence.

137 Of course, it remains for the Crown to negative self-defence once it is raised. However, having examined the evidence adduced at the trial, I am well satisfied that the Crown discharged that onus.

138 Having undertaken the task required, I express the conclusion that it was open to the jury to conclude beyond reasonable doubt that the Appellant was guilty of the alternative offence under the second count. I am satisfied beyond reasonable doubt that the Appellant is guilty of that offence.

139 In my view, it was open to the jury to conclude beyond reasonable doubt that the Appellant was guilty of the offence charged in the fourth count. I am satisfied beyond reasonable doubt that the Appellant was guilty of that offence.

140 Having regard to these conclusions, I reject the fourth ground of appeal against conviction.

141 The appeal against conviction should be dismissed.

Appeal Against Sentence

142 Before turning to the grounds of appeal concerning sentence, I observe that the Appellant was sentenced, and the appeal was argued, before the decision of the High Court of Australia on 5 October 2011 in Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154, where the High Court altered significantly the law relevant to sentencing for standard non-parole period offences. The offence contained in the fourth count is a standard non-parole period offence. The alternative offence under s.112(1) Crimes Act 1900 with respect to the second count is not a standard non-parole period offence.

143 Having regard to the decision in Muldrock v The Queen , I will put to one side, for the moment, consideration of Sentence Grounds 1, 4 and 5. Initial consideration will be given to Sentence Grounds 2 and 3, which make specific complaints concerning the remarks on sentence.

 

Sentence Ground 2 - Suggested Error in Taking into Account as an Aggravating Factor the Prior Criminal Record of the Appellant

144 The Appellant had a significant criminal history extending back over many years. The convictions included break, enter and steal (in 1986), assault occasioning actual bodily harm and contravening an apprehended violence order (in 1999), assault with intent to rob in company with wounding (in 2002), possession of a prohibited drug, receiving and possession of a shortened firearm (in 2006). The Appellant had been sentenced to terms of imprisonment in 2002 and 2006.

145 The Appellant was subject to conditional liberty (a bond) at the time of the offence under the second count, and also at the time of the offence in the fourth count on 29 August 2008 (conditional bail) having been charged with destroying or damaging property, common assault and assault occasioning actual bodily harm. It was in connection with these charges that the Appellant was reporting pursuant to his bail conditions shortly before the commission of the offence in the fourth count.

146 Mr Ramage QC submits that the sentencing Judge erred by taking into account the Appellant's criminal history in making an assessment of the objective seriousness of the offence in the fourth count, contrary to the principles in R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566.

147 I do not accept this submission. His Honour adverted to the Appellant's criminal history in the following way in the remarks on sentence (ROS4-5):

"The factors of a subjective nature which need to be considered consist of both positives and negatives. Clearly there is the aggravating factor present that the prisoner had a previous record. He has a reasonably extensive record marked by a sentence of four years imprisonment with a non-parole period of two years imposed for robbery in company and he, also, was on conditional liberty at the time at least of the final offence. He was on bail having been involved in some criminal activity on what appears from the record to have been the previous day of 28 August 2008. I know nothing of those offences, except that he was charged on 28 August, admitted to bail, committed the specially aggravated breaking and entering on 29 August, was ultimately sentenced to terms of imprisonment commencing from 1 September 2008 of four months for malicious damage, six months for assault and seven months for assault occasioning actual bodily harm, all of them being concurrent.

As at the time of committing the first breaking entering and stealing he was also on conditional liberty, being subject to a bond to be of good behaviour for three years which had been imposed as from December 2006."

148 As the opening words in this passage make clear, his Honour was having regard to these matters as part of an assessment of the Appellant's subjective circumstances, with the Appellant's criminal history, and the fact that the offences were committed whilst he was subject to conditional liberty, being aggravating factors on sentence. This proposition is consistent with s.21A Crimes (Sentencing Procedure) Act 1999 and is not in conflict with the decision of this Court in R v McNaughton. His Honour did not have regard to these matters in assessing the objective seriousness of the offences.

149 I reject this ground of appeal.

Sentence Ground 3 - The Sentencing Judge Erred in Sentencing on the Basis of Possibility

150 This ground of appeal arises from the following findings made by the sentencing Judge with respect to the fourth count (ROS4):

"The facts of course are that the prisoner did attend Mr Potts' home on 29 August, that he did force entry and that he did wound Mr Potts. The jury were perfectly justified in concluding that in doing so and the extent to which he did was indicative of an intention to do serious physical harm and I find that is what he did. He did so by smashing a ceramic vase over Mr Potts' head and by slashing him around the face and very possibly by stabbing him in the back with shards of that broken vase."

151 Mr Ramage QC submitted that the sentencing Judge erred in that the verdict of the jury did not dictate that they had made any finding regarding the stabbing in the back. He submitted that whether the Appellant had deliberately stabbed Mr Potts with either a knife or a shard was an important matter for the sentencing Judge to determine beyond reasonable doubt. He submitted that a finding expressed in terms of something being "very possible" was not an appropriate basis to make such a finding.

152 The Crown submitted that the evidence indicated that the Appellant had stabbed Mr Potts in the back with the shard and that there were injuries to Mr Potts' back consistent with such a stabbing. Although an issue had arisen at the trial as to whether a knife or a shard had been used to stab Mr Potts, the Crown submitted that there was no dispute that the Appellant had wounded Mr Potts. Although the use of the words "very possibly" may, in the Crown submission, be unfortunate, it did not denote error.

153 The evidence indicated that Mr Potts had sustained injuries to the back. However, the most significant injuries, for the purpose of the fourth count, were those to the face and neck of Mr Potts. There was a suggestion at the trial that the injuries to Mr Potts' back might have resulted from him rolling on shattered vase pieces on the ground, although the evidence pointed strongly to these back injuries being stab wounds. However, as mentioned earlier (at [132]), I am not satisfied to the criminal standard that the Appellant stabbed Mr Potts in the back. Nor was the sentencing Judge, which explains the language used by his Honour in this respect.

154 In my view, the sentencing Judge proceeded to sentence the Appellant on the fourth count for the injuries sustained through the smashing of the vase over Mr Potts' head and the slashing around his face. His Honour did not sentence him upon the basis that he had stabbed Mr Potts in the back.

155 In my view, this ground of appeal has not been made good.

 

Sentence Grounds 1, 4 and 5 - Challenges to the Individual Sentences and the Total Effective Sentence

156 Mr Ramage QC submitted that the total sentence and the individual sentences were unduly harsh and severe (Sentence Ground 1). I take this to be an assertion that the sentences were manifestly excessive.

The s.112(1) Offence Alternative to the Second Count

157 Reliance was placed by the Appellant on sentencing statistics and the theoretical possibility that the offence under s.112(1) Crimes Act 1900 might have been dealt with summarily in the Local Court with a lower jurisdictional limit.

158 However, in the course of argument, Mr Ramage QC acknowledged that the theoretical prospect of summary disposal in the Local Court was of no assistance to him given that the offence actually charged in the second count was not capable of summary disposal: Dunn v R [2010] NSWCCA 128 at [23]-[25].

159 The Crown submitted that the sentence on this count was within the range available in the exercise of sentencing discretion.

160 The maximum penalty for this offence was imprisonment for 14 years. The Appellant was sentenced to a total term of four years' imprisonment comprising a non-parole period of three years and a balance of term of one year.

161 In my view, this was a serious offence of breaking, entering and stealing. The Applicant had a significant criminal history for offences of dishonesty and violence. The offence was committed whilst the Appellant was subject to conditional liberty. He was convicted at trial and thus there was no discount for a plea of guilty let alone any allowance for contrition and remorse.

162 To establish a ground claiming manifest excess, it is necessary for the Appellant to demonstrate that the sentence under challenge is unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [27]. Absent error, the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because (if it be the case) the Court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his discretion: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 671-672 [15]. Nor is appellate intervention on the ground of manifest excess justified simply because (if it be the case) the result arrived at in the District Court is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where error is established in accordance with the principles in House v The King [1936] HCA 40; 55 CLR 499 at 505: Hili v The Queen [2010] HCA 45; 242 CLR 520 at 538 [58].

163 Having applied these principles, I am not persuaded that the sentence imposed for the offence under s.112(1) Crimes Act 1900 is manifestly excessive. The sentence was substantial but lay within the range for the proper exercise of sentencing discretion in the circumstances of the case.

The Fourth Count

164 I turn to the sentence imposed on the fourth count. The maximum penalty for that crime is imprisonment for 25 years with a standard non-parole period of seven years. The Appellant was sentenced to a total term of 10 years' imprisonment comprising a non-parole period of seven years and a balance of term of three years.

165 The sentencing Judge passed sentence for this offence applying the principles in R v Way [2004] NSWCCA 131; 60 NSWLR 168. His Honour said (ROS6):

"I am unable to find that there is any reason to depart from the standard non-parole period in respect of the most serious of the offences."

166 Applying the principles in R v Way , his Honour held that the standard non-parole period had direct application to the Appellant who had been convicted of the offence after trial. That approach to sentence is no longer correct given the decision in Muldrock v The Queen at 1162 [25].

167 In my view, the appropriate course is to resentence the Appellant on the fourth count and then to consider issues of concurrency, accumulation and totality as between the two sentences. In these circumstances, I do not see any useful purpose in considering the specific complaints raised by Sentence Grounds 1, 4 and 5 concerning the sentence passed in the District Court on the fourth count.

168 I am satisfied that the Court should move to resentence the Appellant on the fourth count in accordance with s.6(3) Criminal Appeal Act 1912 .

169 It remains necessary, of course, to have regard to the objective gravity of the offence contained in the fourth count, together with all relevant subjective factors and other sentencing principles which bear upon the imposition of sentence in this case: Muldrock v The Queen at 1162 [26]. The maximum penalty and standard non-parole period are "legislative guideposts" to be borne in mind when considering the appropriate penalty, having regard to the objective circumstances of the offence and the subjective features of the Appellant: Muldrock v The Queen at 1162-1163 [27]-[31].

170 This was an objectively grave crime. The Appellant broke into the residence of Mr Potts whilst in an aggressive state and physically confronted him, leading to a sustained attack by him upon Mr Potts. This included the smashing of a vase over the head of Mr Potts and the use of a shard from that broken vase to wound Mr Potts to the face and neck in a serious fashion.

171 The gravity of the injuries sustained by Mr Potts would have been apparent to the Appellant, who departed the premises without any attempt to assist Mr Potts or to ensure that assistance was to be provided to him. The evidence of Mr Oke, the ambulance officer, describes the bloody scene which presented itself to him upon arrival at the house, and the extent of the injuries suffered by Mr Potts, including blood loss, and the potentially fatal consequences if those injuries had remained untreated.

172 Sentencing of the Appellant for this offence should be approached upon the basis that the Appellant attacked Mr Potts and there was a struggle between the two men. In the course of the struggle with the unarmed Mr Potts, the Appellant smashed a vase over the head of Mr Potts, with the Appellant then using a shard to slash the face and neck of Mr Potts. Although self-defence was raised so that it was appropriate for the trial Judge to give the jury directions on self-defence, the jury was satisfied (as am I) that the Crown negatived self-defence. This was a sustained and gratuitous attack upon Mr Potts by an aggressive Appellant wielding a shard as a weapon. Accordingly, this is an objectively grave crime.

173 To the extent that an opinion concerning the objective seriousness of the Appellant's crime should be expressed to allow the standard non-parole period to have some practical utility as a "legislative guidepost" , I consider that this offence lay within the middle of the range of objective seriousness.

174 The Appellant's subjective circumstances did not assist him. His criminal history, and the fact that the offence was committed whilst subject to conditional liberty, are matters which operate strongly against him on sentence. The very fact that the Appellant had only shortly before the commission of the offence on 29 August 2008, reported to police as a condition of his bail, serves to illustrate somewhat starkly the gross nature of the breach of conditional liberty involved in the commission of the offence.

175 The evidence revealed that the Appellant has a history of drug use and was using the drug, ice, at about the time of the commission of the offence. His prospects of rehabilitation must be somewhat guarded having regard to his criminal history and the commission of offences of this type, in the context of drug use, by a man then in his early 40s.

176 Having regard to objective and subjective factors, the need for personal deterrence and for the sentence to reflect general deterrence, the appropriate sentence for this offence involves a head sentence of seven years. I see no reason for varying the statutory ratio under s.44 Crimes (Sentencing Procedure) Act 1999 . There are no factors which could constitute special circumstances which have not already been taken into account in the determination of sentence. Accordingly, I propose a head sentence of seven years for this offence with a non-parole period of five years and three months.

177 I turn to the issues of concurrency, accumulation and totality. There were two separate crimes committed on separate days. It is appropriate that there be a measure of accumulation, although in all the circumstances of the case where there was a course of conduct between the two men, a substantial measure of concurrency is also appropriate. I consider that the measure of accumulation adopted by the sentencing Judge was excessive in all the circumstances of the case. I would accumulate the sentence for the fourth count by one year.

178 The total effective sentence will compromise a non-parole period of six years and three months with a balance of term of one year and nine months. Although the non-parole period will constitute about 78% of the total effective term, I do not consider that any lesser non-parole period is appropriate in the circumstances of this case. The proposed non-parole period represents the minimum period which the Appellant ought spend in custody, having regard to all the elements of punishment, including the objective gravity of the offences, the Appellant's subjective circumstances, rehabilitation and specific and general deterrence: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at 717 [59].

179 I propose the following orders:

(a) appeal against conviction dismissed;

(b) grant leave to appeal against sentence and allow the sentence appeal in part;

(c) confirm the sentence imposed for the offence of break, enter and steal on 19 August 2008, being a sentence of imprisonment comprising a non-parole period of three years to commence on 1 September 2008 and to expire on 31 August 2011, with a balance of term of one year to expire on 30 August 2012;

(d) quash the sentence imposed on the fourth count, the offence of specially aggravated break, enter and commit serious indictable offence on 29 August 2008 and, in its place, sentence the Appellant to imprisonment for a non-parole period of five years and three months commencing on 1 September 2009 and expiring on 30 November 2014 with a balance of term of one year and nine months commencing on 1 December 2014 and expiring on 31 August 2016;

(e) the earliest date upon which the Appellant will be eligible for release on parole is 30 November 2014.

180 HALL J : I agree with the reasons and orders proposed by Johnson J.

181 PRICE J : I agree with Johnson J.

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Amendments

13 March 2012 - Calculation error
Amended paragraphs: [179](d) and coverpage

Decision last updated: 13 March 2012