R v Chandra[2014] QCA 234

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P:  I agree with Gotterson JA's reasons and with the orders he proposes.

[2] FRASER JA:  I have had the advantage of reading the reasons for judgment of Gotterson JA.  I agree with those reasons and with the orders proposed by his Honour.

[3] GOTTERSON JA:  On 17 October 2013, and at the conclusion of a trial over four days in the District Court at Beenleigh, the appellant, Shalvin Chandra, was found guilty on a single count (Count 1) that on 6 October 2008 at Springwood, he robbed Kelly Anne Sims whilst armed with a dangerous weapon, namely, a gun and thereby committed an offence against s 409 of the Criminal Code (Qld), with a circumstance of aggravation set out in s 411(2) thereof.  On the fourth day of the trail, the Crown elected not to proceed further with a second count (Count 2) on the indictment of unlawful use of a motor vehicle to facilitate the commission of an indictable offence to which the appellant had also pleaded not guilty.

[4] Upon conviction, the appellant was sentenced on 18 October 2013 to six years’ imprisonment.  A parole eligibility date at 18 October 2016, that is upon serving one-half of the sentence, was set.

[5] On 14 November 2013, the appellant filed a Form 26 in this Court by which he appeals against the conviction and applies for leave to appeal against the sentence.

Circumstances of offending

[6] Ms Sims, the complainant, was the manager of the Subway sandwich store at Rochedale Road, Springwood, in October 2008.  On Monday, 6 October she started work at 6.05 am.  A vegetable delivery driver arrived at about five or ten minutes later, made the delivery, and then left.  Ms Sims continued baking bread at the back of the store, preparing for opening at 7 am.  There was only one door to the store, located at the front.  According to Ms Sims, she heard it open and looked towards the front of the store.  She saw a man wearing dark clothing – baseball cap, jacket, pants and shoes.  He had a dark bandana covering his nose and mouth and a dark-coloured drawstring nylon bag on his back.  What she could see of his hair was long and black.  As to his build, Ms Sims gave the following evidence:

“Now, other than his clothing and accessories, can you tell us anything about the male’s physique?---He was medium build, I would say he would be 10 to 15 centimetres taller than what I was.

And how tall are you, Ms Sims?---167 centimetres.

So, somewhere between 177 and 182 on your estimate?---Yep.

And is there any reason you say that you believe he was 10 to 15 centimetres taller than yourself?---I remember, as he was walking towards me, he walked past our Coke’s mixed drink machine, and I remember his height as he has walked past that drink machine.”[1]

[7] As soon as the intruder saw Ms Sims, he shouted to her, “Kelly”.  She thought that this was strange since she did not recognise him and she was not wearing a name badge.  The intruder walked towards her and yelled at her to open the safe.  She walked to the safe.  He told her to hurry up.  He crouched down beside her and then said, “[L]ook at the gun.  I’ve got bullets”.[2]  Ms Sims described the intruder as having an “islander accent” which “sounded Samoan”.[3]

[8] The description of the gun given by Ms Sims was that it was “around 30 centimetres long with a wooden handle”, with “a metal black barrel at the top of it”.[4]  She did not know if it was loaded.  The intruder kept pointing the gun at her.  Ms Sims opened the safe and began putting money from it into his bag as he had directed her to do.  He then grabbed money out of the “normal till” and, after that, told Ms Sims to get “the 800 out of the back” which she understood to be a reference to the sum of $800 which was kept in another till at the back of the store.  She retrieved the money from that till and put it in the bag.[5]

[9] The intruder then ran out of the store.  An admission was made for the purposes of the trial that $11,522.60 was taken.  Ms Sims immediately rang 000.  A number of photographs and drawings as well as CCTV footage were tendered during Ms Sims’ evidence.  One of the photographs, No 6, depicted the drinks machine and an adjacent “Subway” advertising sign which Miss Sims had used as a point of reference for gauging the intruder’s height.[6]

[10] Another principal witness in the prosecution case was Kira Amy McCawley.  In December 2009, she pleaded guilty to participation in the robbery of the Subway store.  She acted as the driver of the getaway vehicle.  She had provided a statement to police in December 2008 and later signed an undertaking to cooperate with State law enforcement agencies pursuant to s 13A of the Penalties and Sentences Act 1992.[7]

[11] Ms McCawley’s evidence was that in October 2008 she was in a relationship with a Joseph Williams who had a young teenage stepson, Nephi Thompson.  She also knew a James Benson from school days.  She met the appellant through Mr Williams and Mr Benson.  Ms McCawley described Mr Benson as of Caucasian appearance and, at the time, having a shaved head with a rat’s tail on the back and being “a lot chubbier” than the appellant.  Her description of Mr Williams was that he spoke with a strong New Zealand accent.  He had a shaved head and was about “a head” or “20 centimetres” taller than her height of 163 centimetres.  She said that the appellant was even taller and that he spoke with an Indian accent.

[12] At the time, Ms McCawley worked at the Subway store at Springwood as a kitchen hand.  She, Mr Williams and the appellant drove to the Gold Coast on the afternoon of Sunday, 5 October to “pick up drugs” (“methamphetamine ice”).  They travelled in a “little white car” that was kept at the appellant’s residence at Slacks Creek.[8]  They met up later at his residence.  Mr Williams telephoned Mr Benson to tell him that he (Mr Williams) “had a job for us to do”.  The four of them sat around smoking ice and talking.  Ms McCawley told them who was to open the store on the Monday morning; that there was an early delivery; and that after the delivery, the front door was left unlocked.

[13] Mr Williams said that they were going to rob the Subway store in the morning.  He got out a gun and began explaining their respective roles to them: that they were to wear dark clothes; that the appellant was the one to go into the store; that Mr Williams would drive one car; that McCawley would drive her car (a blue AU Ford); and that Mr Benson was to drive the little white car.  They were all to keep in mobile phone contact.[9]

[14] They discussed arrangements.  Mr Williams was to sit in a nearby carpark to check when the delivery driver came and went.  Ms McCawley was to sit on an onramp to the Pacific Motorway just beyond the Subway store.  At one point, the appellant was absent for about 30 to 40 minutes because Mr Williams had asked him to pick up Nephi Thompson and Nephi’s cousin, Darren Williams.  The appellant returned with the boys and, by arrangement with the others, left them downstairs.  The appellant rejoined the others upstairs.  According to Ms McCawley, he had his dark clothes ready.  He had what looked like a scrunchy hair tie around his neck.  He pulled it up to about the base of his nose to see whether it covered the lower part of his face.  He was wearing his cap as well.[10]

[15] The four of them continued smoking and talking during the night, at times going over the plan.  Ms McCawley did not sleep.  To her knowledge, the others did not sleep either.  She left the appellant’s residence at about 5 am.  Before she left, the appellant asked her “the lady’s name” and she replied, “Kelly”.  She also told the appellant that there was, “usually $300 in the front till and $800 out the back”, and that Kelly knew the code to the safe.[11]

[16] Upon leaving, she called by the home of Mr Williams’ mother in Kingston Road (where Nephi Thompson resided) in order to drop off some cash in the letterbox to pay for a taxi fare home for Nephi Thompson and his cousin.  She then drove to the onramp.  She telephoned Mr Williams to tell him that she was there.  They spoke for about 10 minutes during which time he told her that the delivery driver had come and gone.  At times, she heard him speaking to Mr Benson on his other mobile phone.  Then she heard the appellant saying, “Go now”, whereupon she hung up.[12]

[17] Ms McCawley was asked whether she saw any of the vehicles involved after she hung up.  She said, “Yes”.  Her evidence continued:

“What did you see?---I seen the car that was from Shalvin’s house.

And that’s the white car?---The white car, yep.  Come past me and stop.  So, I’ve driven up a bit more, Shalvin has got out of the car, he was holding a backpack and the shotgun and he has jumped – well, he got out of the passenger side and he has jumped straight into my passenger side.

So, which car did Mr Chandra get out of, I’m sorry?---The car from his house, the white – the white one.

The white?---Yes.

And he got straight into your car?---Yes.

Well, did you speak to either Mr Benson or Mr Williams?---No.

Did you speak to any other occupants of the other vehicles?---No.

What happened then, please, Ms McCawley?---We were following the white car.

And who’s “we”?---Me and Shalvin.  Shalvin and I.  And we went in the car following the white car and then we lost the car, so Shalvin directed me on how to get to Darren’s house.

Now, you said that you lost the white car - - -?---Yep.

- - - that you were following.  How or whereabouts were you, do you know, when you lost the car?---Just going over the – going up onto the onramp onto the other motorway.

So you did go up onto the motorway? --- Yes.

And do you know how long you travelled down the motorway before you lost sight of the white car?---No.

And you said that from there Mr Chandra directed you to Benson’s house?---No, Darren’s house.

Darren’s house, sorry?---Yep.

I mean who is Darren?---Darren is Joseph’s brother.

Now, when did you find out that you were to be going to Darren’s house?---We – I didn’t – we hadn’t spoke about going to Darren’s house.

So, you went to Darren’s house because that’s where you were directed by Mr Chandra to go?---Yes.

Did you know how to get there otherwise?---Yes.  But I didn’t know where I was from that motorway on how to get to where I was going.

Now, whilst you were driving from the point where Mr Chandra got in your car - - -?---Yep.

- - - to the point where you got to Darren’s house, which is where, sorry?---Browns Plains.

Browns Plains.  Other than being directed by Mr Chandra, was there any other conversation?---Yes.  We were talking about how he went into the store and what he had said, and that he’s – he said to make it so that Kelly thought it was real he loaded the gun in front of her and, as he went to load the gun, the bullet has dropped, so he had to pick the bullet up and put it back in.

And did he tell you anything else about what he said or did other than about loading the gun?---He said that he used her name.

Did he tell you anything about what he had taken?---Just that he had the money.

So, he told you he had the money?---Yes.

Did you see the money at all?---Not until we got back to Darren’s house.

Okay.  So, when you got back to Darren’s house, what happened from there?---There was me and Shalvin had come in my car, Benson was already there in the white car and Joseph was there, but he was in a different car.  We got back there, we pulled all the money out of the little bags that they go in for the safe drops and we burnt the bags along with the little receipts that you get out of the – like, the register thing – cash register.”[13]

[18] In cross-examination, Ms McCawley said that later she threw the gun into the Logan River on Mr Williams’ instructions.[14]  She thrice rejected the defence case theory that the appellant was not present when the planned robbery was discussed and did not take part in it.[15]  Ms McCawley was also cross-examined about answers she had given in evidence in another proceeding in March 2012[16] when she was a prosecution witness.  She was asked about a record of interview she had given to police concerning the subject robbery.  The cross-examination is discussed later in these reasons.

[19] It is unnecessary for present purposes to detail the evidence of other witnesses, one of whom was Detective Sergeant Dean Godfrey of the Beenleigh Criminal Investigation Branch.  He was one of the investigating police officers.  He gave evidence that the appellant was 187.5 centimetres tall.  Nephi Thompson said that at about dawn on 6 October, Mr Williams woke him up and told him to ring for a taxi.  When it arrived, he, Mr Williams, the appellant and Darren Williams got in.  They travelled to the residence in Kingston Road.  His father paid the taxi fare.[17]

[20] The appellant neither gave nor called any evidence.  However, in the course of the prosecution case, the jury was shown DVD recordings of police interviews of the appellant on 5 September 2008 and 29 August 2010 in which Detective Sergeant Godfrey participated[18] and a signed statement given by the appellant to police on 5 December 2008 was read to them.[19]

The grounds of appeal against conviction

[21] At the hearing of the appeal, leave was given to amend the grounds of appeal against conviction to the following:

1.The verdict of the jury was unreasonable.

2.The trial miscarried in that a juror was not reasonably seen as impartial.

3.The learned judge in erred in failing to provide a lies direction that adequately covered alleged lies.

4.The trial judge erred in failing to instruct the jury as to the use that could be made of the evidence led for Count 2.

The Court also ruled that a proposed fifth ground of appeal, namely, that the trial otherwise miscarried such that the appellant was deprived of a fair chance of acquittal, be regarded as a particular of the first ground of appeal.[20]  It is convenient to discuss Grounds 2, 3 and 4 before discussing Ground 1.

Ground 2 – partial juror(s)

[22] At the hearing of the appeal, the appellant sought leave to adduce evidence by way of an affidavit of the appellant’s wife,[21] an affidavit of his mother,[22] and two affidavits of his father.[23]  The affidavits concern alleged interaction between Detective Sergeant Godfrey and certain jurors at the appellant’s trial.  Two separate instances are detailed.

[23] According to the appellant’s wife, she attended the trial.  After Detective Sergeant Godfrey gave his evidence on 16 October, he sat in the courtroom in the front row close to the jury.  The affidavit evidence continues:

“13.I saw Officer Godfrey move and leaned forward slightly changing his sitting position.  Officer Godfrey was looking at two jurors in particular – a male and a female juror who were sitting side by side.

14.I could see that it was Officer Godfrey looking at the jurors because I could see his face when I looked at him.

15.Officer Godfrey held the gaze of these two jurors for up to 5 seconds.  This happened 2 or 3 times.  It was obvious that Officer Godfrey was looking at these two jurors.

16.I saw the male juror nod at Officer Godfrey once or twice during these exchanges.

17.I did not see the female juror do anything aside from look at Officer Godfrey.

18.I could tell that the jurors were looking at Officer Godfrey because their heads were turned in his direction.

19.The rest of the jurors appeared to be looking at who ever was talking at the time.  I can’t recall who was talking when these exchanges took place.”

[24] The other incident occurred on the day of sentence, 18 October 2013.  The appellant’s wife described it as follows:

“25.While we were waiting, I saw Officer Godfrey walking up the corridor side by side with the jury foreperson.  The foreperson was a female, but not the same person Officer Godfrey had been looking at on the Wednesday.

26.I heard Officer Godfrey say words to the effect of “it was a long day, good it was in our favour”.  I did not hear any other conversation.  As Officer Godfrey reached the seat where we were sitting, he turned and saw me, looked at me, and then showed the jury foreperson into an interview room on the opposite side of the corridor.  Officer Godfrey closed the door.  They remained in the room for about 10 minutes.

27.I don’t know who opened the door, but Officer Godfrey held the door open for the jury foreperson to leave the interview room.

28.Officer Godfrey and the jury foreperson went into the court room together.  I did not notice any further discussion or conversation between Officer Godfrey and the jury foreperson.”

[25] The applicant’s mother’s affidavit was to similar effect, except that she said that she did not observe either of the jurors nod.[24]  The appellant’s father said that he saw interaction in the form of smiling during the prosecutor’s address between a female juror and a male who was sitting next to Detective Sergeant Godfrey after the latter had given evidence.  On his account, Detective Sergeant Godfrey attended court on the following day, 17 October 2013.  His affidavit evidence continues:

“24.My attention was drawn to Detective Godfrey when the seat made the noise.  I noticed that he and a male juror were looking at each other.  They looked at one another with clear eye contact for about five seconds.  I saw the juror’s head move downwards in a nodding fashion closing his eyes.  The juror then looked away and I saw Detective Godfrey remain sitting where he was.  He continued to look in the direction of the jury.

25.This male juror was sitting next to the female juror who the plain clothed officer had been smiling at the day before.  Detective Sergeant Godfrey was present for nearly the whole time after he was excused from giving evidence.

26.During the Judge’s summing up, I saw these two jurors look at Detective Sergeant Godfrey from time to time.  They looked at the Judge and then looked at Detective Sergeant Godfrey.  They did this a number of times somewhere around 10 – 12 times.”

[26] The appellant’s father stated that he mentioned the matter to his son’s legal representatives but that it was not raised with the learned trial judge.[25]  He also said that he and his son’s legal representatives observed the female juror and Detective Sergeant Godfrey walk from a room on the day of sentence.

[27] Counsel for the respondent indicated that he would not object to reception by this Court of all three of the appellant’s affidavits for the purpose of considering the leave application provided that the Court also received an affidavit of Detective Sergeant Godfrey sworn on 16 June 2014.  Leave was sought by the respondent to adduce that affidavit.

[28] With respect to the alleged interaction in the court room, Detective Sergeant Godfrey stated:

“10.I do acknowledge that while looking at the jury members, I may have made direct eye contact with any of them at such times.  I did not have any prolonged eye contact.  I did not nod at any juror.  I did not attempt to influence any member of the jury outside of my evidence.  The jurors did appear to me to be interested, attentive and professional throughout.

11.Throughout the trial I also looked at and shared eye contact with the accused man himself; each and every member of his support group, including his mother, father, wife and other associates that attended at various times; the defence solicitor and barrister; the various police officers guarding the accused; the prosecutor and her various associates; the bailiff, the Judge’s Associate and the Judge; and other members of the public that also attended.”

Concerning the interaction on the day of sentence Detective Sergeant Godfrey’s affidavit evidence is:

“15.I attended the following morning for the sentencing.  As I walked up the stairs to the upper level of the Courthouse, I noticed another juror standing in the public waiting area.  This juror was an older female, different from the one I spoke with the previous night.  The juror approached me and we had a conversation.  She asked me if she could attend Chandra’s sentencing.  Similar to the previous evening, I explained she was entitled to and could sit in the public gallery to watch.  The juror explained that she was concerned by Chandra’s family members who had glared angrily at her moments earlier; and that she thought she was the only juror that was likely to attend.  I then escorted the juror to a small office off the hallway outside the District Courtroom, where she waited for a few minutes until the courtroom opened.  I did not remain for any length of time in [the] small office with the juror, but did return to her to advise her when she could enter the courtroom.”

[29] None of the deponents were cross-examined on their affidavits.  The conventional directions with respect to external influences were given by the learned trial judge.[26]

[30] In R v Edwards, Heferen and Georgiou,[27] this Court considered whether a trial judge should have discharged a jury after irregularities in the trial were discovered.  de Jersey CJ observed:

“[10]In determining, under ss 53 and 54, whether to the judge, a particular contravention ‘appears likely to prejudice a fair trial’, the judge, having ascertained the circumstances as best he or she may, should consider not only the question of any established actual jeopardy to the justice of the proceeding, but also the question of how a reasonable and informed member of the public would see the matter.  In that latter regard, likelihood of a ‘reasonable suspicion’ that the proceeding could not justly be carried through would ordinarily warrant aborting the trial.

[11]I stress, however, that the suspicion must be reasonable, and its existence established as a matter of probability, not mere possibility.”[28]

[31] In that case the question was whether a trial judge had erred in ruling that certain irregularities involving apparent contraventions of ss 53(1) and 54(1) of the Jury Act 1995 were not such as to require him to discharge the jury.  Although the observations of the Chief Justice are directed towards those two sections, the approach reflected in them is, in my view, applicable more broadly to the question whether a fair trial has been prejudiced by partiality on the part of a juror.

[32] Here, the appellant has not adduced direct evidence of actual partiality on the part of any juror.  The issue is whether a reasonable suspicion of it arises from the whole of the evidence concerning these two instances of interaction.  I am satisfied that it does not.

[33] As to the first instance, the appellant’s evidence is both inconclusive and unpersuasive.  Each of the appellant’s wife and father speak of a male juror nodding towards Detective Sergeant Godfrey.  His father says that he “saw the juror’s head move downwards in a nodding fashion closing his eyes”.  Neither deponent speaks of the male juror moving his head down and up, once or more than once, in a way that might signify approval of, or empathy towards, Detective Sergeant Godfrey.  Moreover, the description given by the father is apt to suggest avoidance of direct eye contact, and no more.  Significantly, too, the appellant’s mother did not observe any nodding.  The only reference to smiling is in the father’s affidavit.  He says that it was between a female juror and an unidentified male, and not Detective Sergeant Godfrey.

[34] The second instance occurred on the day following the verdict and well after the jury had ceased their deliberations.  The explanation of it given by Detective Sergeant Godfrey is both benign and unchallenged.

[35] I am unpersuaded that the appellant has established any facts which give rise to a reasonable suspicion of partiality on the part of any of the members of the jury.  This ground of appeal cannot succeed and the applications to adduce evidence on this topic should be refused.

Ground 3 – lies direction

[36] In written submissions, the appellant summarised this ground as a failure to give a Zoneff lies direction.  Implicit in the reference to “other lies” in the articulation of the ground of appeal is the concession that there was a lie (or lies) for which an appropriate direction was given.  That indeed occurred.

[37] The prosecution relied on one lie only as demonstrating a consciousness of guilt.  That lie was that the appellant had said in his signed statement that that night he dozed off on the lounge at his residence and woke up between 10 am and midday the following morning, 6 October 2008.  He had a headache and went back to sleep.[29]  Nephi Thompson contradicted that statement.  He testified at the trial that the appellant travelled with him and others by taxi around sunrise that morning to his grandmother’s residence in Kingston Road.[30]  In the course of addressing the jury, the prosecutor described this matter as of “a different category”.  The appellant’s account that he slept through the morning, it was said to the jury, was a lie told by him that was indicative of guilt on his part.  It was told “in an attempt to distance himself from the offence”.[31]  The learned trial judge gave an Edwards direction in respect of the matter as was appropriate for him to do.[32]  No complaint is made in respect of that direction.

[38] However, in so far as the articulation of the grounds of appeal also implies that the prosecution spoke of “other lies” in her address, it is not correct.  There were other aspects of the accounts that the appellant had given to the police in both the interviews and the signed statement which the prosecutor suggested to the jury were internally inconsistent, inconsistent with other evidence or highly improbable so as to render his professed non-involvement in the robbery as fanciful.  The prosecutor addressed them in these terms:

“But you do need to consider his account in deciding what aspects, if any of it, you might accept in the factual matrix that you then go on to utilise in deciding whether the Crown has proved its case beyond a reasonable doubt.  I would suggest to you that his account was far from being consistent when you look at it internally but it’s also not consistent with other evidence.  He, of course, says he had nothing to do with the robbery.  In the final interview he says he doesn’t recall it.  He refers a lot to drugs and alcohol consumption which is a matter I’ll come back to and it’s a matter for you, ultimately, but I’d suggest that the chronology of events as he gives in his interview is not one, ultimately, that you could consider to be credible.  Even leaving aside issues of if and when he drove – and he’s said in his police statements why he might not have been upfront about that originally – there are a number of other inconsistencies.  At one time he says that he did not see the others, that is Williams and Benson, for two weeks after the approximate night in question: that’s in one of his earlier accounts to police.

Then it said he saw them two days after: that’s in his final account to police.  He then suggests that that was to show them the dings that Benson may have caused to the car.  It seems, you recall from his witness statement in particular, that Benson had driven the car earlier on the day of the 5th of October so, again, there’s that period of time that differs.  As do the accounts as to when he noticed the car to be stolen which could, depending on how you interpret it, be up to the day of the robbery or sometime prior or, perhaps, at least, sometime after he had his own car impounded on the 4th of October.

And it’s not better clarified in the evidence, to be fair, and that includes the fact that he’s said to be seeing Benson to show them the dings in the car even though that car, on any account, must have been stolen from that point in time because that’s a point after the timing of the robbery.  So I just raise those matters for you to consider how much weight you would place on Mr Chandra’s version of events which I’d suggest to you is, overall, a highly improbably [sic] account in any event.  In addition to those vagueties of when and how things came to happen you would conclude that meeting about a job – Mr Benson, Mr Williams and Ms McCawley meeting about a job at Mr Chandra’s house and that job being the armed robbery – is highly improbable if really they did consider him to be the nark and the unreliable person he presented to the police that they thought he was.

You’d also find it highly unlikely that they’d produce a gun and a bullet as he, himself, accepts they did at his house in the course of those discussions in those circumstances.  And noting the gun only got mentioned in the third and final account and that that’s not something that sits with a night of sitting around just drinking and smoking methamphetamine with no real other indication of what this big job was about.  So that, overall, I’d suggest that you find his account to be fanciful and you would reject it in favour of the other evidence in this case. …”[33]

At that point, the prosecutor then turned to “the lie of a different category”.

[39] The learned trial judge directed the jury with respect to these matters.  His Honour said:

“ … It was submitted to you that the accused’s account was internally inconsistent in many areas.  She gave you some examples where, for instance, he said he didn’t see the others for two weeks, and then later changed that to two days.  Or when he first noticed that the white car was missing.  Or how he could have shown Benson dings in the car at a time when he had claimed that the car had already been stolen.

Ms Wooldridge said to you – or posed the question, ‘Why would they meet and discuss and plan this robbery at his house if they thought he was a nark?  It just wouldn’t occur.’  You were reminded that his account was inconsistent in many areas, including the fact that he only mentioned the gun for the first time in the third account, and that his account, overall, you would consider to be fanciful, and should be rejected. …”[34]

He then mentioned separately the alleged lie about staying at home that morning for which an Edwards direction had already been given.

[40] After the jury had retired to consider their verdict and in response to a question from the learned trial judge whether there was anything arising from the directions, the prosecutor noted that a Zoneff direction had not been given and submitted that such a direction would not be required.  She said that she was raising the matter to ascertain whether her opponent was seeking any further directions about any other possible inconsistencies in the appellant’s evidence.  Defence counsel indicated that no such directions were sought.[35]

[41] In R v Frank,[36] on which the appellant relies, McMurdo P (with whom Muir JA and Cullinane J agreed) made the following observations concerning the directions suggested by the High Court in Zoneff v The Queen:[37]

“[38]In the later case of Zoneff v The Queen, Gleeson CJ, Gaudron, Gummow and Callinan JJ noted:

‘There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards-type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt. As a general rule, however, an Edwards-type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron JJ in Edwards, ‘the accused knew that the truth ... would implicate him in [the commission of] the offence’ and if, in fact, the lie in question is capable of bearing that character. …

Moreover, if there is a risk of confusion or doubt as to the way in which the prosecution puts its case, the trial judge should inquire of the prosecution whether it contends that lies may constitute evidence of consciousness of guilt and, if so, he or she should require identification of the lie or lies in issue and the basis on which they are said to be capable of implicating the accused in the commission of the offence charged.’[38]

[39]Their Honours discussed the distinction between lies told by an accused person which are relied upon by the prosecution as evidence of consciousness of guilt as discussed in Edwards, and those going merely to credibility. They determined that in Zoneff, an Edwards-type direction:

‘… could have had the effect of raising an issue or issues upon which the parties were not joined, and of highlighting issues of credibility so as to give them an undeserved prominence in the jury’s mind to the prejudice of the appellant.

…

A direction which might have appropriately been given and which would have allayed any concerns which the trial judge may have had, … is one in these terms:

‘You have heard a lot of questions, which attribute lies to the accused.  You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately.  It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.’

A direction in such terms may well be adaptable to other cases in which there is a risk of a misunderstanding about the significance of possible lies even though the prosecution has not suggested that the accused told certain lies because he or she knew the truth would implicate him or her in the commission of the offence’.”[39]

[42] Later, in Dhanhoa v The Queen,[40] the High Court gave further consideration to when a Zoneff direction might be required.  Drawing upon what was said in that case, this Court in R v Hunter[41] recently summarised the position as follows:

“It is to be noted that a direction of the type referred to in Zoneff may well be required in a case when there is a risk of a jury misunderstanding the significance of possible lies.  Whilst it is clearly necessary for Edwards-style directions to be given in a case where alleged lies are relied on as indicative of guilt, and a Zoneff-style direction may be necessary where there is a risk of misunderstanding, the mere fact that the Crown case includes allegations of lies going to credibility does not compel the giving of either of those style directions.  In Dhanhoa v The Queen, Gleeson CJ and Hayne J said:

‘It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards, or of the kind referred to in Zoneff, every time it is suggested in cross-examination or argument, that something that an accused person has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability.  Where the prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction.  Zoneff was said to be an unusual case, and the direction there proposed was said to be appropriate where there is a risk of misunderstanding about the significance of possible lies.  The present was not such a case’.”[42]

[43] The question that arises here is whether there was a risk of a misunderstanding on the part of the jury about the significance of the inconsistencies and improbabilities in the appellant’s accounts of the kinds identified by the prosecutor.  There are several factors which influence my consideration of that question.  First, the learned trial judge directed the jury that they could rely on those deficiencies for the purpose of rejecting the appellant’s versions of events.  Secondly, the suggested lie indicative of guilt was identified separately and expressly in the directions by the descriptor “a lie” and on the basis of its character as potentially indicative of guilt.  Thirdly, the Edwards direction was given in respect of that suggested lie only.  Fourthly, defence counsel did not request a Zoneff direction when the topic was canvassed.[43]

[44] By means of the directions to which I have referred, the jury was given clearly to understand that there was only one suggested lie which could be probative of a consciousness of guilt.  Not only were they not left possibly to think that the inconsistencies and improbabilities were of that character, but also the jury were told that the use they could make of the deficiencies was to decide whether to accept or reject the appellant’s versions of events.  These factors lead me to conclude that the answer to the question posed is in the negative.  In my view, a Zoneff direction was not required and the learned trial judge did not err in not giving one.  This ground of appeal also fails.

Ground 4 – direction concerning Count 2 evidence

[45] The prosecutor elected not to proceed with Count 2 in light of equivocal evidence from Mr Dhirendra Chand.  He was the owner of the “little white car” which he identified as being a Nissan Pintara four-door sedan.  He said that he had given the appellant the keys to the car to drive him (Mr Chand) to the airport.  He was unable to remember whether he had had any discussion with the appellant with respect to use of the vehicle after driving it back to Slacks Creek.

[46] The appellant contends that “much prejudicial evidence” was led concerning Count 2 before the election was made to proceed no further with it.  The submission in support of this ground is that no direction was given as to the use that could be made of that evidence and that a miscarriage of justice was thereby occasioned.

[47] In developing this submission, the appellant impliedly proposes that a direction in accordance with Benchbook direction 17.1 ought to have been given.[44]  Two things need be said at once about this proposition.  On is that direction 17.1 does not speak to use of evidence.  The second is that the direction that the learned trial judge did in fact give at that point in the trial[45] is not materially different from direction 17.1.

[48] That aside, the appellant gives some six instances of prejudicial evidence, submitting that it is “unlikely” that that evidence would have been admissible for Count 1.  These instances concern evidence that the appellant accessed the car; that his own car was impounded; that he had used the car on one occasion without regard for whether he had permission to do so or not; that he had been questioned by police about a theft of the car; that he had driven the car whilst his driver’s licence was suspended; and that he may have been untruthful in telling Mr Chand and police that the car had been stolen.

[49] I do not accept that this evidence would not have been admissible for Count 1.  The evidence of Ms McCawley was that both planning for and implementation of the robbery involved use of Mr Chand’s car.  Her evidence also linked the appellant to the car.  That the appellant had the keys to the car and access to it at the time of the robbery was relevant to the issue of his involvement in it.  So also was evidence about his use of the car on other occasions and why he used it rather than his own car.  What he said to Mr Chand and police about the car having been stolen was relevant both to the issue of his involvement in the Count 1 offending and to the credibility of his versions of events.

[50] Accordingly, in my view, a specific “use” direction was neither required nor appropriate for the evidence which the appellant has identified.  This ground of appeal cannot succeed.

Ground 1 – unreasonable verdict

[51] This ground of appeal requires the Court to ask itself whether it thinks upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.[46]  The testimony of Ms McCawley, if accepted by the jury, constituted a formidable body of evidence against the appellant.  It strongly implicated him in both the planning and execution of the robbery as the individual who carried it out.

[52] The cogency of Ms McCawley’s evidence is reflected in the structure of this ground of appeal.  Some 14 factors are advanced by the appellant as matters that ought to have caused doubt in the jury’s mind about her evidence.  Two factors are so advanced in relation to Ms Sims’ evidence.

[53] In relation to the height of the intruder, the appellant submits that Ms Sims’ estimate matched Mr Williams’ height rather than that of the appellant.  In admissions, Mr Williams’ height was accepted as being about 175 centimetres.  However, this is a little short of the range estimated by Ms Sims of 177 to 182 centimetres.  What is significant is that the range was an estimate made in hurried and upsetting circumstances where there was no opportunity for Ms Sims to make a studied assessment of the intruder’s height.  Ms Sims marked a point on a photograph of an advertising panel above the drinks machine to indicate the intruder’s height.[47]  The marked point was above the mid-point of the panel which extended between 162 centimetres and 190 centimetres above floor level.[48]  The mid-point of the panel was therefore 180 centimetres above the floor level.  Allowing for the inherent imprecision in an estimate made in these circumstances, I do not consider that Ms Sims’ evidence of height precluded an individual of the appellant’s actual height from being the intruder.

[54] The other aspect of Ms Sims’ evidence referred to by the appellant was her description of the intruder’s accent as “Samoan”.  It is of significance that Ms Sims identified the intruder’s accent as not native-born Australian.  It is also of some significance that she identified the accent as from the south-west Pacific.  The appellant’s accent was clear to the jury from the DVD of his record of interview with police.[49]  The appellant is of Fijian Indian background, having settled here as a young adult.  That Ms Sims untrained ear in these circumstances might have mistaken one south-west Pacific accent for another is of little relevance for the reliability of her evidence overall.

[55] The challenge to the reliability of Ms McCawley’s evidence begins with the fact that by virtue of her cooperation including her s 13A undertaking, she received a reduced sentence.  However, that fact did not necessarily require the jury to conclude there was a reasonable possibility that she falsely implicated the appellant.  She disclosed her own involvement.  She evidently was not the male intruder of whom Ms Sims gave evidence.  She did not manoeuvre to protect Mr Williams whom she implicated as the instigator of the robbery.  Moreover, her evidence was confirmed in material respects from other sources: that she spoke by mobile phone with Mr Williams from her car; that Ms Sims’ first name was used by the intruder; and that the intruder knew about the $800 in the till at the back.

[56] Next, it is suggested that Ms McCawley’s evidence was shown to be unreliable by a photograph of Mr Chand’s car on a toll infringement notice taken at the Kuraby Toll Plaza at 6.24 am on 6 October 2008.[50]  The applicant claims that the photograph suggests that there were three persons in the car whereas the plan, as described by Ms McCawley, envisaged that only Mr Benson would be in it.  The point is not well made.  The photograph is small; it is of the rear of the car; and it is quite indistinct.  It is not possible to tell from it how many persons were in the car at the time.

[57] Further, unreliability in Ms McCawley’s evidence is said to arise from the circumstance that she and the appellant went to Darren Williams’ house.  The appellant paints this as a “change in plan” of which Ms McCawley must have been unaware.  However, it is apparent from her evidence that she and the appellant were following Mr Benson who was driving Mr Chand’s car.  They lost track of it.  At that point, the appellant directed her to Darren Williams’ residence.  It appears that Ms McCawley did not know where the car driven by Mr Benson was leading them.  Quite possibly it was to Darren Williams’ residence.  That may have been the plan all along.  The fact that Ms McCawley may have been unaware of where the participants were to meet up afterwards does little to undermine confidence in her evidence concerning the execution of the robbery.

[58] Ms McCawley had given evidence that the appellant’s hair was the same length – about 2 inches long – all over his head.  The intruder’s hair as shown on still images from the CCTV footage,[51] the appellant suggests, appears to be much longer than that.  The hair that can be seen on the images is broadly consistent with the description in Ms McCawley’s evidence.  Of particular significance is that the hair seen on the images excludes the possibility of the intruder having had a shaved head of the type that, according to the evidence, both Mr Williams and Mr Benson had.

[59] The appellant also submits that Ms McCawley’s claim that the appellant had a scrunchy around his head was not apparent from the still images.  The still images show that the lower portion of the intruder’s face was masked.  Ms McCawley had described how, during the planning of the robbery, the appellant had a scrunchy hair tie around his neck which he pulled up to the based of his nose.

[60] Next, the appellant seeks to attach significance to the fact that Ms McCawley said that she put money in the letterbox to pay for the taxi fare.  It is suggested that that was implausible on two counts.  Firstly, that if Mr Williams had sufficient money to pay the fare, it would have been unnecessary for her to do that and, secondly, that had he not, then she could have given him the money before she left the appellant’s residence that morning.  On the state of the evidence these are points which are open for conjecture.  However, Ms McCawley was not examined in detail with respect to the circumstances that led her to put the money in the letterbox.  It is quite plausible that, at the last minute, Mr Williams decided to travel in the taxi.  In any event, this detail is incidental, rather than central, to Ms McCawley’s account.  Any uncertainty with respect to it is not such as to cause doubt about the reliability of her account overall or the evidence of Nephi Thompson that the appellant travelled with him in the taxi early that morning.

[61] In cross-examination, Ms McCawley said that Mr Williams had been violent towards her.  He bashed her frequently, once to the point of strangling her so that she could not breathe.  She feared him.[52]  The appellant submits that this state of affairs is relevant to the reliability of Ms McCawley’s account.  This submission might have had force had she not implicated Mr Williams in the planning and the robbery.  But she did; and as instigator.  Accordingly, for present purposes, the fear that Ms McCawley had is of marginal relevance to the reliability of her account concerning the appellant.

[62] As noted, Ms McCawley was cross-examined with respect to her evidence at the trial in March 2012.  At the appellant’s trial, the cross-examination proceeded as follows:

“And you were asked about having made admissions to that in the interview you had with the police.  Remember that?---Yes.

I’ll just read this to you?---Yes.

“You admitted that on the night prior to the armed robbery you were present with three others, including your boyfriend, where they made specific plans, prepared equipment, including dark clothing, mobile phones and a sawn-off shotgun.  Accept that.”  And you said “Yes”.  Do you remember that?---Yes.

Sorry, you said “Yep”?---Yes.

It means the same thing, doesn’t it?---Yes.

And you also made some admissions about driving a motor vehicle at that time to the police.  Yes?---Yes.

Now, you were then asked, “You admitted that the four offenders and yourself drove to Ballina, New South Wales, where you stayed in a motel for the night and spent the proceeds of the robbery on Ice, methylamphetamine and such”.  And your answer was “Yes”.  Do you remember that?---Yes.

And then you were asked “And that you pleaded to the fact that the person, was it your boyfriend Mr Williams?” and you said “Yes”.  Do you recall that?---Yes.

“Who has now been” – it said exported but it obviously means deported.  I suppose it depends on how you view it, your Honour.  I’ll read it as it says “Who has now been exported to New Zealand” and you said “Yes”.  Remember that?---Yes.

And then you were asked this, “That’s right.  He went into the store, a female was working and the offender was armed with a sawn-off shotgun.  His face was covered by a black bandana and he pointed the shotgun toward the victim and demanded money.  They were the facts that you were sentenced on.”  And you said “Yes.  I also admitted that I was on drugs at the time and I had been on drugs when I got put on probation”.  Do you remember that?---Yes.  But by he, I didn’t take it as Joseph.  I just meant I thought it was like he.

He?---He.

He.  Who’s he?---It could’ve been either three of the boys.

It could’ve been any three of them?---By that – by the way that that’s said.

No.  He’s just been asking you – I’ll read this to you again.  “And you pleaded to the fact that the person, was it your boyfriend Mr Williams” and you said “Yes”.  And then he said “That’s right.  He went into the store”?---But it wasn’t Joseph.

That’s the way the question was asked?---Well, I didn’t take it like that.”[53]

In cross-examination, Ms McCawley gave the following evidence on the topic:

“And my learned friend specifically referred you to a passage at page 51 and, again, I know you’ve already answered some questions in relation to it, but this specific passage, “And that you pleaded to the fact that the person, was it your boyfriend, Mr Williams”, and you answered “Yes”.  “Who has now been exported to New Zealand”, you answered “Yes”.  “That’s right.  He went into the store, a female was working, and the offender was armed with a sawn-off shotgun.  His face was covered by a black bandana and he pointed the shotgun towards the victim and demanded the money.  They were the facts that you were sentenced on?”  And you said “Yes”.  Now you’ve already given your evidence as to what you understood, or what you were meaning to communicate by that answer, however, was it, in fact, the case that you pleaded guilty and you were sentenced on the basis that Mr Williams had been the person who entered the store?---No.

When you were sentenced, what basis did you plead guilty on?---Guilty on being a part of planning it.

And did that include you at any stage indicating that Mr Williams was the person who entered the Subway store?---No.

Have you ever intended to indicate that Mr Williams was the person who entered the Subway store?---No.”[54]

[63] The appellant seeks to draw from the cross-examination of Ms McCawley at his trial, a concession on her part that she had told police, and later confirmed on oath in March 2012, that it was Mr Williams who entered the Subway store.  In my view, that overstates her evidence.  The critical passage put to her in cross-examination at the trial in March 2012 referred to “he” and “the offender” but not to any individual by name.  The question in the passage was directed to establishing the factual scenario on which she was sentenced and not to clarify the identity of “he” or “the offender”.  Moreover, it was open to the jury to accept Ms McCawley’s insistence that she did not mean to state at any time that it was Mr Williams who entered the store.

[64] The appellant refers to the fact that Ms McCawley did not herself see who entered the store or the carrying out of the robbery.  That is so.  Whilst she did not witness these events, she did give evidence of facts within her knowledge that provided credible circumstantial evidence that the appellant committed the robbery.  Those facts were that she heard him over the mobile phone saying, “Go now”; that he got into her car with the shotgun and money; and that in the car, he told her how he went into the store and what he had said and done there.  The jury were given specific directions concerning those statements and the need for them to be satisfied that the statements were made and that they were true.[55]

[65] There are two aspects concerning the car which Mr Williams used to which the appellant refers.  One is that Ms McCawley did not know who owned it; she “just [knew] it was off of a friend”.[56]  The other is that whereas Ms McCawley said that Mr Williams would watch from the car in the carpark, Ms Sims said that she did not notice any other vehicles at the time of the delivery.[57]  It is of no or minimal significance for the reliability of Ms McCawley’s evidence that she did not know the name of the friend from whom Mr Williams had borrowed the car.  Ms Sims’ evidence was no more than that the delivery van parked directly in front of the store and that she did not see any other vehicles.  She was not asked if she looked into the carpark at any time or noticed any vehicles there.  Her evidence clearly did not exclude the possibility that the car driven by Mr Williams was parked there.

[66] The last specific matter on which the appellant relies to challenge the reliability of Ms McCawley’s evidence is what is described in the written outline as a “recent invention”.  This epithet is attached to her evidence that, on the morning, the appellant asked her for the name of the Subway employee who would be on duty and that she told him.  The appellant’s point is that Ms McCawley had not in her statements or evidence in other proceedings previously referred to that conversation.  Ms McCawley conceded that she had not.  She said that she remembered the conversation only as she was reading her statement in the week before this trial.[58]  In re-examination, Ms McCawley said that she had not been asked before whether, when the plan was being discussed, anyone had asked her the name of the employee on duty.[59]  The explanation was not implausible; it was open to the jury to accept it.  Moreover, the jury may well have regarded that conversation as of secondary importance given her evidence that during the discussions on the evening before when all four were present, she had used the name “Kelly” in response to a question from Mr Williams as to who would be opening the store.[60]

[67] The trial judge prudently warned the jury that it was dangerous to convict the appellant on the evidence of Ms McCawley unless they found her evidence was supported in a material way by independent evidence implicating the appellant in the offending.[61]  There is no complaint about the matters his Honour identified as independent evidence supporting her account: telephone records of the telephone calls at the time of the robbery; the photograph taken at the Kuraby Toll Plaza of the Nissan Pulsar shortly after the robbery; and other such evidence.[62]  I am unpersuaded that the factors to which the appellant has specifically referred undermine, to any significant degree, the reliability or cogency of the evidence of either Ms McCawley or Ms Sims.  I consider that their evidence together was quite sufficient for the jury to have been satisfied beyond reasonable doubt of the appellant’s guilt.

[68] It will be recalled that the appellant particularised this ground of appeal with a contention that his trial miscarried such that he was deprived of a fair trial.  To advance this contention, leave is sought by the appellant to adduce evidence by way of two affidavits[63] made by his solicitor, Mr P J Saggers.

[69] The development of this contention begins with a rather bald assertion that new evidence establishes that the evidence at trial concerning the taxi trip was “a lie”.  The new evidence said to justify the assertion is no more than advices from Yellow Cabs and Black and White Cabs that, as of April 2014, they do not have taxi security footage for 2008 as there is a legislative requirement that it be destroyed within 30 days.  No lie is established by that evidence.  Next, there is reference to evidence that it is not now possible to obtain an enlarged or clearer print of the toll booth photograph.  It is implicit in this submission that had steps been taken earlier, a print could have been obtained for the trial which clearly depicts how many persons were in the car photographed.  There is no evidence to support that speculation.

[70] Whilst not damning conduct of the defence at trial as incompetent, a number of criticisms are made of it.  It is said that a Ms Mary Smith, a resident at Mr Darren Williams’ house, was not called as a witness.  However, a perusal of her statement made to police on 5 December 2008[64] reveals that it contains nothing of relevance to whether the appellant was a participant in the robbery or not.  Ms Awhina Holland who is Nephi Thompson’s mother and Mr Williams’ then partner, was called as a prosecution witness.  Criticism is made that she was not cross-examined about Mr Williams’ criminal proclivities.  To have highlighted them, however, might well have prejudiced the appellant who, on the evidence, was an associate of Mr Williams.

[71] Another criticism is that a third record of interview[65] of the appellant taken from 3.10 pm on 29 August 2010 was not heard by the jury.  In the course of the interview, Ms McCawley’s account was put to the appellant for comment by Detective Sergeant Godfrey.  The appellant’s responses consist of a series of denials of the account.  The appellant commented that he and the others were shown a gun that evening at his residence but that he did not touch it.  That defence counsel did not require the interview to be adduced is capable of rational explanation.  The repetition of Ms McCawley’s account would have been a re-articulation of evidence.  It would have risked undermining the defence tactic of capitalising on what it sought to characterise as prior sworn evidence given by Ms McCawley at the trial in March 2008 that it was Mr Williams who entered the store.  Moreover, the repetition would have reinforced in the jury’s mind that Ms McCawley had given to police an account which was consonant with the account she gave at trial.  Also, it was not necessary for the jury to hear this interview in order to know that the appellant denied involvement in the robbery.  They had that evidence in the interviews of him that they did hear and his signed statement.  In any event, the third record of interview was at least arguably inadmissible as self serving; it did not include admissions against interest.

[72] The final criticism is that neither Ms Sims nor Ms McCawley were cross-examined with respect to a topic on which they had been cross-examined in previous proceedings, namely, a break and enter at the same Subway store about one month earlier.  At the appellant’s trial in October 2013, in the course of cross-examination, Ms McCawley accepted that she and Mr Williams had broken into the store previously and that they had taken about $1,100.[66]  It was therefore unnecessary to cross-examine further on the topic in order to establish those facts.

[73] In my view, the appellant has failed to establish that the matters raised by him in the further evidence he wishes to lead, when combined with the evidence at trial, demonstrate that there is a significant possibility that a reasonable jury properly instructed would have acquitted the appellant.[67]  The appellant has not demonstrated a miscarriage of justice which deprived him of a fair trial.  This ground of appeal also is not made out and the application for leave to adduce the additional evidence must be refused.

Disposition – appeal against conviction

[74] None of the grounds of appeal against conviction have succeeded.  It follows that the appeal against conviction must be dismissed.

Sentence application

[75] The appellant seeks leave to appeal against his sentence on the ground that it is manifestly excessive.  He was 28 years old at the time of the offending and 33 years old at sentence.  He had no prior criminal history at the time of the offending and a minor criminal history thereafter.  His offending was at a time when his life lacked direction.  He was a drug user and on that account was vulnerable to the influences of others.  Recently his life has been more directed and settled.  He married in 2012.  When sentenced, he was in full-time employment and was studying accountancy part-time.  He is reported as being drug free.

[76] The appellant’s offending was serious.  The robbery was premeditated and planned.  It was carried out when the participants knew that there would be a lone female employee present.  The appellant was armed with a shotgun which he displayed during the robbery.  A substantial sum of money was stolen, none of which was recovered.  The appellant was convicted at a trial.  There has not been any demonstration of remorse on his part.

[77] At sentence, his Honour was referred to a number of decisions involving circumstances broadly comparable to those here.  Having had regard to them, I consider that they all but preclude argument that the head sentence of six years was manifestly excessive.  I would refer to what appears to me to be perhaps the most comparable of them.  In R v Lewis,[68] the offender entered a café carrying a gun.  He demanded money from the staff and stole $320 from the till.  He was 41 years old and on probation at the time.  He pleaded guilty.  The plea of guilty was reflected in ordering that he serve nine months’ concurrent imprisonment in respect of his earlier offending and in not making a serious violent offender order.  A sentence of six years’ imprisonment without a recommendation for a parole eligibility date earlier than the statutory half way point was regarded by this Court as appropriate.

[78] A central theme of the appellant’s submissions is that manifest excessiveness in his sentence is revealed by a comparison with the sentences imposed on his co-offenders, Mr Williams and Ms McCawley.  On a plea of guilty, the former who had a substantial criminal history, was sentenced in October 2008 to five years’ imprisonment suspended after one year.  It is apparent from the sentencing remarks that the learned sentencing Judge considered that a sentence of six years was appropriate for his participation in the armed robbery of the Subway store.  The reduction acknowledged that given his other offending, only 253 days of the 621 days that he had spent in custody prior to sentence was declared to be time already served.  Prison probation was also ordered in respect of an unlawful use of a motor vehicle offence.

[79] Ms McCawley, who had no prior criminal history, was sentenced in December 2009 to three years’ imprisonment for her participation in the armed robbery.  Immediate release was ordered.  She had pleaded guilty.  The sentencing remarks indicate that but for her s 13A cooperation, the sentence would have been four and a half years’ imprisonment to serve 18 months.

[80] His Honour observed at sentence that the offending of the appellant and of Mr Williams were approximately equal in terms of their criminality.[69]  The appellant was the principal offender; yet Mr Williams was the instigator and had a criminal history.  The offending of both of them exceeded that of Ms McCawley.  I agree with those observations.

[81] Parity considerations were, quite rightly, influential in his Honour’s approach.[70]  He saw little reason to distinguish between the appellant and Mr Williams with respect to sentence.  The appellant submits that notwithstanding the apparent objective of parity, true parity was not in fact achieved.  Under his sentence, Mr Williams was required to serve two years in prison; yet the appellant is required to serve three years imprisonment before becoming eligible for parole.  In oral submissions, the respondent made an appropriate concession that in this respect, there is a lack of parity between the two sentences.[71]

[82] In my view, the appellant’s sentence is manifestly excessive on this account even taking into account Mr Williams’ plea of guilty.  The appellant should be eligible for parole after serving the same period of imprisonment as Mr Williams.  I would vary it by setting a parole eligibility date after serving two years’ imprisonment, that is, at 18 October 2015.

Orders

[83] I would propose the following orders:

1.Applications for leave to adduce evidence refused.

2.Appeal against conviction dismissed.

3.Application for leave to appeal against sentence granted.

4.Appeal against sentence allowed.

5.Vary the sentence under appeal by substituting a parole eligibility date of 18 October 2015.

6.Otherwise confirm the sentence under appeal.