SUPREME COURT OF QUEENSLAND

1. MUIR JA:  After a trial in the District Court at Ipswich, the appellant was convicted on 11 October 2007 of one count of breaking and entering at night with intent to commit an indictable offence in a dwelling (count 1), and two counts of armed robbery in company using personal violence.  He was sentenced to three years imprisonment for count 1 and to five years imprisonment for counts 2 and 3.  The terms of imprisonment were ordered to be suspended after two and a half years with an operational period of five years. 

2. The appellant appeals against his convictions and seeks leave to appeal against the sentences imposed on him in respect of counts 2 and 3. The grounds of appeal in the notice of appeal are that the verdicts are "unsafe and unsatisfactory". Counsel for the appellant explained that the contention in this regard was that the verdicts were "unreasonable, or cannot be supported having regard to the evidence." On the hearing, leave was given for the addition of four more grounds of appeal. Before discussing each of the grounds it is desirable to say something of the evidence before the jury.

The evidence

3. The prosecution case was that two offenders smashed their way into a dwelling house in Springfield late in the evening of 3 March 2006.  The residents of the house, which was low-set, were Mr Wormington, his two young children, and his sister and brother-in-law, Mr and Mrs Spooner.  After hearing a loud bang, Mr Wormington went to the glass sliding door at the back of the house.  Two people emerged from the shadows outside and one, or both, called out, "Want the stuff.  Let me in.  Let – I want the stuff."  One of the men smashed the glass door with a hammer in order to gain entry.  Mr Wormington retreated to the room in which his sister and brother-in-law were sleeping.  The intruders followed, yelling out, "Where’s all the stuff?", "Where’s the cash?  Where’s all the cash?  I want the cash?"  One of the intruders, wearing an item of clothing fashioned as a balaclava, was waving the hammer around. 

4. When one of the intruders started to walk towards the rooms in which the children were located, Mr Wormington demanded that he not go there and the person "Just like backed off and went back to the kitchen." The intruders, Mr Wormington and Mr Spooner were then all in the kitchen.  The intruder in the balaclava took Mr Wormington’s wallet and mobile phone, which were located in the kitchen.  Mr Wormington then leapt at him and was hit on his back with the hammer.  The two men wrestled and Mr Spooner came to his assistance.  They managed to gain hold of the hammer and Mr Wormington managed to hit the intruder with it.  In the process, his feet were cut by glass on the floor.  The intruders then managed to make their escape, leaving behind them the makeshift balaclava made from part of a Mossimo t-shirt which Mr Spooner had dislodged when grappling with its wearer.  It was collected by police and tested for DNA.

5. Ms Johnston, a supervising scientist employed by Queensland Health Pathology and Scientific Services, gave evidence. She described how DNA is extracted from samples and how individual or mixed profiles can be found. Without objection, she referred to the notes of the testing procedure, prepared by another person, followed for the testing of the balaclava. She said that a "tape lift" was carried out. That involved applying a small piece of adhesive tape to a surface to collect material. Using this process, materials were gathered for testing from the inside of the underarm part of the garment and from an area below the eye holes which had been cut in the material. It was considered that "that was the area that would most likely be close to the mouth and nose where you would get some sort of secretions – possibly … of saliva or mucus."

6. Only one sample was collected from the two areas described above by the application of the same piece of adhesive tape.

7. Ms Johnston gave the opinion that the DNA obtained from the balaclava matched the sample obtained from inside the appellant’s mouth and that the chance of the DNA profile from the balaclava matching that of another person was one in about 3,000 billion.

8. Ms Johnston could not exclude the possibility that the DNA analysed may have come only from the armpit area of the shirt. She accepted that if the shirt hadn’t been laundered, "the DNA could have been there for quite some time." In re-examination, in the course of discussing the longevity of DNA materials, Ms Johnston said:

"The DNA can last, so long as it’s stored well – it’s not wet and that it’s not out in the sunlight or the environment, because that can destroy the DNA.  The ability to obtain enough DNA depends on the length of the contact.  So, how much time it’s been worn – obviously the longer it’s been worn, the more chance the cells are going to come off from that person onto that garment.  So, if it’s only been touched for a short period of time, you are less likely to find DNA than if it’s been worn for a long period of time, and different fluids more or less DNA sort of thing as well.  So, touching DNA leaves behind less DNA than say, any blood stain, or another fluid stain."

9. Apart from the DNA profile of the appellant obtained in the testing, no other DNA profile was detected in the analysed material and there was “no other indication of a mixture” with other DNA.

10. The appellant gave evidence in which he denied any involvement in the subject incident. He said that the balaclava / t-shirt was not his and that he had never owned a Mossimo brand t-shirt. He was unable to explain how his DNA came to be on the item. He said that for about two weeks up to 13 March 2006 he had been living in a caravan park in Tivoli, Ipswich.  He said initially that he was 186 cm tall, (which, according to him, was five foot ten inches) left handed with green or hazel eyes.

Ground 1 - The learned trial judge erred in admitting into evidence the testimony of Ms Johnston that the defendant’s DNA was located on the balaclava found at the scene.

11. The appellant’s argument is as follows. The prejudicial effect of the evidence in question outweighs its probative value, which is very limited. The DNA evidence links the appellant to the balaclava but not directly to the scene of the crime. The evidence that DNA material can be deposited onto and remain on an item and the lack of evidence about the history of the shirt, necessarily restricts the value of the DNA evidence.

12. At best, the evidence shows only that at an undeterminable time, the appellant came into contact with the shirt.

13. The fact that the tape lift may have been carried out on the inside of the item does not increase its evidentiary value as:

1. The balaclava was simply placed in an envelope and DNA may be transferred from one part of the item to another by contact;

2. The lack of knowledge of the shirt’s history does not exclude the reasonable hypothesis that the appellant came into contact with that part of the item or another part of it in an innocent way.

14. The respondent’s counsel submitted as follows. The biological material was collected from positions on the balaclava where it would be expected that there would be "evidence of wear either as a t-shirt or as a balaclava."

15. The evidence was that the wearer of the balaclava spoke quite a lot and there is thus a reasonable expectation that there would be mucus or saliva near the eye holes. It was compelling evidence against the appellant that his DNA profile was the only one found. Even if there had been another profile discovered, it would still have been probative evidence against the appellant, but that his was the only profile found made the evidence more compelling and therefore admissible.

Discussion

16. The appellant's contentions ignore the fact that the DNA testing was of two areas of the t-shirt considered most likely to yield DNA and that the DNA of no other person was found in these two locations. The expectation of the tester, not submitted to be unreasonable, was that there could be mucus or saliva in the region under the eye holes as the wearer of the balaclava spoke "quite a lot". The appellant's DNA was found in one or both of the tested locations. There was thus strong evidence that no other person used the balaclava during the intrusion.

17. There is no doubt a possibility, largely theoretical, that the appellant's DNA was on part of the t-shirt as a result of his coming into contact with it on some prior occasion. The appellant, however, gave no evidence supporting any such possibility. If another person's DNA had been found on one of the areas tested, there would have been a more credible basis for an argument that the DNA evidence could not support a conclusion, beyond reasonable doubt, that the appellant was the user of the balaclava. But, even then, the evidence would have been relevant and admissible. This ground of appeal thus lacks substance.

Ground 2 - The learned trial judge erred in admitting into evidence general descriptions of the intruder wearing a balaclava given by Mr Wormington, Mr Spooner and Mrs Spooner.

18. The appellant's argument is as follows. The evidence of these three witnesses was vague and unreliable, given as it was after their involvement in a traumatic and volatile incident. The general nature of the descriptions means that it was able to apply to a large cross-section of the community. It thus provided no particular link to the appellant.

19. Mr Spooner gave the most detailed description and even it was very general. He agreed that his description as to height given to police was unreliable because of the circumstances. Mr Wormington’s description was limited to height and build and was unreliable. Asked in evidence about the build of the intruder he said, "…I picture him as a thickset sort of guy …"

20. The only description given by Mrs Spooner was that the intruder was taller than her and had brown eyes. The appellant’s evidence was that he had green or hazel eyes.

21. It was conceded that vague and unreliable evidence of this type might be admissible but it was submitted that the subject evidence was rendered inadmissible because there was no evidence as to the appellant’s appearance at or near the time of the offence. The offence occurred on 3 March 2006 and the trial commenced on 9 October 2007. It was argued that while an adult male’s height and eye colour are unlikely to change in 20 months, the same cannot be said for build, hair colour and hair line. Counsel for the appellant argued that, in those circumstances and because of their inherent unreliability, the descriptions given were of no evidentiary value and should have been excluded.

Discussion

22. Evidence which is relevant is admissible unless a good ground exists for excluding it. In HML v The Queen Gleeson CJ observed^[1]:

"Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings … information may be relevant, and therefore potentially admissible as evidence, where it bears upon assessment of the probability of the existence of a fact in issue by assisting in the evaluation of other evidence … it may cut down, or reinforce, the plausibility of something that a witness has said.  It may provide a context helpful, or even necessary, for an understanding of a narrative."

23. The evidence of Mr Wormington, Mr Spooner and Mrs Spooner of what transpired in the course of the incident was plainly relevant to the Crown case on each of the three counts. The identity of the intruders was also a critical issue for the jury to resolve. The evidence of the eye witnesses concerning the appearance of the intruders was just as relevant as their evidence of the actions of the intruders. The fact that those observations may not have greatly assisted the prosecution case does not render the evidence irrelevant and thus inadmissible. Nor can it affect the admissibility of the evidence of a witness that another witness’s evidence may be conflicting or more or less extensive. The jury may accept some or all of the evidence of one witness in preference to the evidence of any other witness.

24. The critical deficiency in the identification evidence requiring its exclusion is said to be the possibility that the build, hair colour and hair line of the accused may have changed in the 20 months between the date of the incident and the time of trial. The submission has an air of desperation about it. The possibility that any such change may have occurred and the likely extent of any change were matters which any jury was capable of assessing. In the absence of evidence to the contrary, which it was open to the appellant to lead, the jury was entitled to conclude that any change in appearance was no more than that which could be expected to result from the appellant's slightly increased age. This ground has not been made out.

Ground 3 -The learned trial judge erred in failing to warn the jury in relation to the evidence of general descriptions given by Mr Wormington and Mr and Mrs Spooner.

25. The thrust of the appellant’s submission is as follows. Each eye-witness gave evidence of physical characteristics which were not referred to by other eye-witnesses. Mr Spooner, for example, described hair colour. Only Mrs Spooner described eye colour. In those circumstances it is insufficient for the trial judge merely to draw attention to the varying descriptions of the witnesses, as there is "no conflicting (or similar) evidence from others on these points." The circumstances in which the sighting of the particular characteristic referred to by an eye-witness are important. The "seductive effect" of such evidence, particularly about hair colour and hair line and eye colour, is likely to be stronger, warranting a warning.

26. The failure to warn the jury about that evidence may have led the jury to place more weight upon it than they should, or to not consider it critically.

Discussion

27. The appellant’s reference to the "seductive effect" of identification evidence is derived from the joint reasons of Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ in Domican v The Queen^[2].  When referring to the extent to which a judge, in the course of summing-up, was required to comment on or discuss the evidence concerning identification of the accused, their Honours observed ^[3]:

"The foregoing statements are applicable to all criminal cases including those where the prosecution relies on identification evidence as the whole or part of the proof of guilt of an offence.  Nevertheless, the seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue."

28. The joint reasons continue ^[4]:

"Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed.  The terms of the warning need not follow any particular formula.  But it must be cogent and effective.  It must be appropriate to the circumstances of the case.  Consequently, the jury must be instructed 'as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case'. A warning in general terms is insufficient.  The attention of the jury 'should be drawn to any weaknesses in the identification evidence'.  Reference to counsel's arguments is insufficient.  The jury must have the benefit of a direction which has the authority of the judge's office behind it.  It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence." (footnotes deleted)

29. The joint reasons later warn that the existence of the evidence which, if accepted by the jury would be sufficient to support a conviction, does not relieve a trial judge from the duty to give an appropriate warning. In this regard the reasons state^[5]:

"A trial judge is not absolved from his or her duty to give general and specific warnings concerning the danger of convicting on identification evidence because there is other evidence, which, if accepted, is sufficient to convict the accused.  The judge must direct the jury on the assumption that they may decide to convict solely on the basis of the identification evidence.  If a trial judge has failed to give an adequate warning concerning identification, a new trial will ordinarily be ordered even when other evidence makes a very strong case against the accused.  Of course, the other evidence in the case may be so compelling that a court of criminal appeal will conclude that the jury must have convicted on that evidence independently of the identification evidence. In such a case, the inadequacy of or lack of a warning concerning the identification evidence, although amounting to legal error, will not constitute a miscarriage of justice. But unless the Court of Criminal Appeal concludes that the jury must inevitably have convicted the accused independently of the identification evidence, the inadequacy of or lack of a warning concerning that evidence constitutes a miscarriage of justice even though the other evidence made a strong case against the accused." (footnotes deleted)

30. The primary judge’s summing-up was short. All the evidence in the trial was led between 11.24 am and about 3.40 pm on one day. The primary judge pointed out in her summing-up that no-one had identified the appellant. Her Honour added:

"But what the Crown says is, if the combination of the DNA being on the balaclava, nobody else’s being detectable on the balaclava and that combined with the fact that the description is not dissimilar to this accused person and they say, 'What are the chances of all those things being present?' is there any other reasonable hypothesis consistent with innocence when you take those three factors into account?  And the Crown says, 'No, there is no other explanation other than it was the accused who was wearing the balaclava.' "

31. In her summing-up the primary judge repeated some of Mr Spooner’s evidence describing his assailant. She remarked that he was the only witness who "actually got a look at the person without the balaclava … because he had him by a headlock." Mr Wormington’s identification evidence was not mentioned and the full extent of what was said about Mrs Spooner’s evidence was:

"She did not see this person without the balaclava on but she said he was a fair bit taller than her.  Both people were about the same height.  She is about 159 centimetres tall and she said that he had brown eyes."

32. The most detailed evidence was given by Mr Spooner, whose description of the intruder whom he observed without his balaclava, was:

"Um, a bit of growth on the face.  Gingery-brown facial hair.  Very – real thick jaw.  Um, receding hairline … browny – light         browny-gingerish [short hair].  He said that the person was a bit taller than him [approximately six foot] of pretty solid build."

33. Her Honour reminded the jury that the appellant had said in his evidence that he was 186 centimetres tall but had "then said he was five foot ten which are obviously different measurements." She reminded them of the appellant’s evidence that he has green – hazel eyes, not brown, that he is "left-handed, not right-handed" and that the witnesses had said that the hammer was being held in the right hand.

34. No doubt it would have been preferable for the primary judge to have reminded the jury of the confused and stressful circumstances in which the witnesses’ impressions of the intruders were formed and of the consequential impact of those circumstances on the reliability of their respective recollections. But those were matters which would have been apparent to the jury without a warning from the trial judge.

35. In contrast with the circumstances under consideration in Domican, the physical descriptions given by the witnesses played a quite subsidiary role in the identification of the appellant as one of the intruders.  That role, in effect, was no more than establishing that the physical appearance of the appellant was not such as to exclude the possibility of his being one of the two intruders. 

The jury would have been conscious of the "weakness in the identification evidence", particularly as the primary judge warned that it "needs to be made very clear … that no one has identified Mr Wells as being the assailant."  That in itself was a warning about the weaknesses and limitations of the eye witness identification evidence.  The critical, and compelling, identification evidence was the DNA evidence.

36. In my view the primary judge's failure to give a more elaborate warning about the limitations of the identification evidence was not such as to adversely affect the jury's proper consideration of the evidence and was not productive of any unfairness to the appellant.

Ground 4 - The learned trial judge erred in failing to instruct the jury that the prosecution case that there was no other person’s DNA which could be extracted from the balaclava [or that nobody else’s DNA was detectable on the balaclava] was not supported by the evidence.

In the course of her summing-up the primary judge said:

"Well, basically there are three main pieces of evidence.  That is the evidence of Johnson that this balaclava was left behind, she examined the balaclava and the accused's DNA was on the balaclava, and the chances of that happening were one in three thousand billion persons - sorry - the chances of another person having left that same DNA was one in three thousand billion, and that she did not get any other DNA profile extracted from that piece of material.

So it is a combination of the accused DNA being on it and there being no other DNA material that was able to be extracted. So, there is that circumstance.  The Crown also says if you take into account that the person who had the balaclava on was doing a lot of talking saying, 'Where's the shit?', and that sort of thing apparently over and over so, that chances are there would have been some sort of bodily fluid expelled from the mouth while he was talking with the material near his mouth.  And that the description of the assailant wearing the balaclava is not dissimilar to the accused.

Now, it needs to be made very clear, ladies and  gentlemen, that no one has identified Mr Wells as being the assailant so none of these people in the house can say, 'Yes, I recognise the person in the dock as being the person who broke into the house', all right.  But what the Crown says is, if the combination of the DNA being on the balaclava, nobody else's DNA being detectable on the balaclava and that combined with the fact that the description is not dissimilar to this accused person and they say, what are the chances of all those things being present?  Is there any other reasonable hypothesis consistent with innocence when you take those three factors into account?  And the Crown says, no, there is no other explanation other than it was the accused who was wearing the balaclava. So that is essentially the Crown case." (emphasis added)

37. Counsel for the appellant submitted that contrary to the primary judge’s assertion, the evidence of Ms Johnston did not exclude "the likelihood of someone else’s DNA being on the balaclava." The testing done, as described by the witness, was simply "not extensive enough to exclude the possibility of some other person’s DNA … on the balaclava." It was further submitted that this evidence was important, having regard to the circumstantial nature of the Crown case.

Discussion

38. The relevant evidence of Ms Johnston is set out above. The passages emphasised in the above extract from the summing-up are capable of being construed as counsel for the appellant submits. But the summing-up was heard by the jury the day after Ms Johnston gave her brief evidence describing the taking of samples from two areas on the balaclava using adhesive tape. In her evidence-in-chief she stated clearly that she did not subject any other part of the balaclava to testing. The cross-examination made the evidence even clearer by focussing on the method of testing the armpit and under the eye hole areas. It is unlikely that the jury would have thought that the comment that "nobody else's DNA being detectable on the balaclava" was directed to anything other than the areas actually tested.

39. In her summing-up the primary judge, dealing with defence counsel's submissions, observed:

"He points out in relation to the DNA that the DNA evidence does not tell you when that DNA was left on the balaclava, that it does not tell you where the DNA sample that matched the accused came from – it could have come from another spot on the balaclava – or how much of his DNA was found on this piece of material and that is a problem." 

40. It would seem that reference to the possibility that the DNA came from "another spot" is to a submission by defence counsel that DNA could have been transferred from one part of the balaclava to another as a result of movement of the material in its container prior to testing. That possibility was not raised with Ms Johnston in her cross-examination.

41. It was correct that no DNA material relating to another person was detected on the material subjected to testing. As counsel for the respondent submits, there was surely a high degree of probability that the DNA of the last person who had worn the balaclava would have been detected in the parts of the balaclava which were tested. Only one person's DNA was detected: the appellant's. And the DNA was obtained from areas reasonably considered to be the areas most likely to have on them the DNA of the user.

42. Although a redirection was given in relation to the DNA evidence, none was sought by defence counsel in respect of the argument now advanced. That supports the conclusion that the jury were unlikely to have been misled into thinking that the DNA testing extended beyond the two areas to which the one piece of tape was applied. This ground has not been made out.

Ground 5 – the conviction was unsafe and unsatisfactory

43. This ground is an amalgam of the previous grounds. It is submitted that the prosecution case could not have satisfied the jury that the only rational hypothesis open was that it was the appellant who wore the balaclava during the subject incident, as:

1. DNA material can be deposited onto a surface by a mere touch;

2. DNA material may, in the right conditions, stay intact and very small amounts of it can be detectable for a long period of time;

3. The possibility that another person’s DNA was on the balaclava was not excluded;

4. The defendant denied participation in the intrusion;

5. The eye witness identifications were vague and unreliable.

44. These matters have all been discussed earlier. It was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt and this ground must be rejected also.

Conclusion

45. As none of the grounds of appeal have been made out I would order that the appeal be dismissed.

Application for leave to appeal against sentence

46. The application is made only in respect of the sentences imposed for counts 2 and 3.

47. The applicant was born on 11 February 1976 and was 30 at the time of the offences. He had minor drug convictions in 1993 and 1996, a conviction for receiving in 1994 and a conviction for going armed so as to cause fear in 1999. He also had some convictions for minor offences in 1996 in Western Australia.

48. The applicant had been in fairly constant employment since leaving school after Grade 10. It is submitted that the primary judge erred in concluding that an appropriate range of sentence for the offences was five to seven years and that a five year sentence was appropriate.

49. Reliance was placed by the appellant’s counsel on the following comparable sentences. In R v Suthern^[6], the applicant appealed against a sentence of three years for house breaking with actual violence in company while armed with an offensive instrument and three months for six other offences of robbery, wilful damage to property, common assault and assault occasioning bodily harm while armed with an offensive instrument and in company.  The applicant, in company with two others, went to a flat occupied by three people in order to exact payment for a drug supplied to one of the occupants by the applicant.  The applicant and his companions battered the front door of the flat in, entered and assaulted the three occupants.  The applicant struck the complainant twice on the arm with a piece of plastic pipe as the complainant shielded his head.  The group of intruders shouted demands for money and made death threats amidst loud banging. 

50. The applicant pleaded guilty on the morning of the trial after a count of robbery was discontinued by the prosecution. The sentences were held not to be manifestly excessive and it was observed in the reasons of Helman J, with whom the other members of the Court agreed, that the applicant had been allowed a substantial discount for his guilty pleas.

51. In R v Fatnowna; ex parte A-G^[7], an appeal by the Attorney-General against the sentence of three years imprisonment suspended after six months for aggravated burglary and 18 months suspended after four months for assault occasioning bodily harm while armed and in company, imposed after a trial, was dismissed. 

52. In committing the offences the subject of that case, the respondent and a companion entered the complainant’s house early in the morning. The respondent was armed with a wooden club which he used to strike the complainant a number of times, breaking his nose and causing bruising to his arms and chest. The companion remained outside the house. The motive for the attack appears to have been revenge for an attack by the complainant on the respondent’s companion some weeks earlier. The respondent was 41 at the time of the offences. He had been imprisoned on three previous occasions but had had no convictions of significance since 1980. Pincus JA remarked that the sentence was low but was not such as to warrant the interference of the Court. He added that he did not wish to encourage the thought that "this sort of sentence, in this type of case, is to be regarded as the standard."

53. In R v Kennedy^[8] the 32 year old applicant, with an extensive criminal history for dishonesty and minor drug offences, was convicted after a trial of one count of entering a dwelling house with intent with circumstances of aggravation and one count of grievous bodily harm.  He was sentenced to three years imprisonment for the grievous bodily harm offence and 12 months imprisonment for the other offence, with a recommendation that he be considered for parole after 12 months.  The applicant and another person knocked on the door of the complainant’s house.  When the complainant opened the door, the applicant forced his way in and demanded to know if the complainant’s niece, who was an ex de facto spouse of the applicant, was present.  The applicant grabbed the complainant, an older and smaller man, by his shirt collar and struck him two or three times in the face causing him to bleed around the mouth and under an eye.  The complainant suffered damage to the orbital fore of his left eye resulting in double vision.  The injury required surgical intervention to redress. 

54. The applicant had complained to the Department of Family Services in the past about an alleged molestation by the complainant of a daughter of the woman mentioned earlier. McMurdo P, with whose reasons the other members of the Court agreed, referred to a number of comparable sentences and remarked that the subject sentence was "well within the appropriate sentencing range." The application for leave to appeal was refused.

55. It is submitted that the subject sentences were excessive by virtue of the fact that the injuries suffered by the complainant arose only out of his attempt to restrain the applicant. There was no gratuitous violence and no use of firearms or inherently dangerous weapons such as knives or swords. The taking of property, other than the drugs and money of which the intruders had come in search, appeared to be an afterthought.

56. Counsel for the respondent placed principal reliance on R v Ginger^[9], R v Dodds^[10] and R v Stawicki and Meier.^[11] 

57. In Ginger, the applicant was sentenced to five years imprisonment with a recommendation for release on parole after 18 months after a plea of guilty to two counts of robbery with actual violence in company armed with an offensive weapon.  The applicant, who was in his early twenties, had been convicted of unlawful assault on a number of occasions.  The subject offences occurred when the applicant and his co-accused lay in wait for two men with a view to robbing them.  The co-accused was armed with a shotgun.  When the victims approached the applicant and his co-accused, the latter demanded money and the shotgun was pointed at one of the victims.  The applicant was armed with a baseball bat.  One of the victims denied having money but, when searched, was found to have a wallet.  The applicant's co-accused requested the applicant to strike the victim and the applicant did so three or four times with his baseball bat.

58. One of the victims ran off; the other, who had been struck with the baseball bat, was left lying in agony on the ground suffering from bruising and a fractured left kneecap. The applicant and the co-accused then departed.

59. The applicant had 309 days in pre-sentence custody. It was argued the recommendation did not take the pre-sentence custody into account in any appropriate way. Ambrose J, who gave the principal reasons, concluded that an effective sentence of 70 months, when regard was had to the combined effect of the pre-sentence custody and the recommendation, was not manifestly excessive. The other members of the court agreed.

60. In R v Dodds a sentence of five years imprisonment was imposed for counts of entering premises with intent to commit an indictable offence with a circumstance of aggravation, one count of robbery with violence while armed, one count of deprivation of liberty and a count of unlawful use of a motor vehicle with a declaration that the applicant was a serious violent offender.  The applicant also pleaded guilty at the same time to other offences on another indictment and was sentenced to an effective term of three years imprisonment. 

61. The applicant was 34 years of age at the time of the offences and had a lengthy criminal history which included robbery in company with personal violence. The complainant and the applicant resided in separate rooms at a hostel. The offences were committed when the applicant knocked on the complainant’s door, entered his room and, without warning, punched him on the nose. The complainant fell onto his bed and was punched three or four more times by the applicant. He verbally abused the complainant, made an indecent request, spat in the complainant’s face and threatened him with a mirror. He then tied him up and extracted the complainant’s pin number from him by threats. He then threatened to kill the complainant if he moved.

62. The applicant pleaded guilty at an early stage, co-operated with authorities and expressed remorse. The Court concluded that the sentencing discretion was to be re-exercised. as the sentencing judge had not imposed individual sentences in respect of each offence. In re-sentencing, the Court imposed a five year term of imprisonment with a serious violence offence declaration.

63. The applicant Meier pleaded guilty to one count of entering a dwelling house with intent to commit an indictable offence, one count of armed robbery in company and three counts of unlawfully using motor vehicles.  She was sentenced to three years imprisonment for the first mentioned offence and to five years imprisonment for the armed robbery.  The applicant Stawicki pleaded guilty to entering a dwelling house with intent to commit an indictable offence therein, one count of armed robbery in company and one count of unlawfully using a motor vehicle with a circumstance of aggravation.  He was also sentenced to three and five year terms of imprisonment respectively for entering with intent and robbery.

64. The applicants, in company with two others, with a view to stealing cannabis from the complainant pensioner who suffered from impaired vision and brain damage, went to the complainant’s flat at about 7 pm one evening. Meier, who knew the complainant, went to the door of the flat and was let in.  A few minutes later there was a knock at the door and the other members of the group entered.  One of them was armed with a knife and another with a piece of wood.  The complainant was menaced with the knife and hit a number of times with the piece of wood.  The assailants, who were not the applicants, threatened to kill the complainant.  The group then left with a stereo system, a watch and a wallet.  

65. Meier was 20 at the time of the offence and the mother of an infant child.  She was the de facto spouse of the intruder who carried the knife.  Stawicki was also 20 years of age, single and unemployed.  He had a previous conviction for unlawful assault.  Meier had been convicted of shoplifting, prostitution, drug offences and stealing.  The applications were dismissed. 

66. The decisions relied on by counsel for the respondent demonstrate that the sentences appealed against cannot be regarded as out of step with sentences imposed for generally comparable offending conduct. It is true that the evidence does not establish that the applicant set out with the intention of inflicting physical harm on any person. However, in company with another he formulated and carried out a plan to break into an occupied dwelling house at night with a view to taking drugs and money. He was armed with a hammer and effected his entry into the house in a violent, frightening manner. Once inside he and his companion continued to behave in a way calculated to frighten the occupants of the house. Although he may not have intended to harm his victims physically, the altercation which took place was a predictable enough consequence of his wrongful conduct. So, too, was the continuing emotional distress experienced by all occupants of the house.

67. Finally, I note that the sentence of the duration of that imposed was acknowledged to be within the appropriate range by the applicant's counsel on the sentencing hearing.

Conclusion

68. For the above reasons I would order that the application for leave to appeal be dismissed.

69. FRASER JA: I agree with the reasons of Muir JA and the orders proposed by his Honour.

70. FRYBERG J:  I agree with the orders proposed by Muir JA and with his Honour's reasons for those orders.