R v Brown[2023] QCA 238

SUPREME COURT OF QUEENSLAND

1. [1]
   FLANAGAN JA:  On 8 June 2022, in the District Court at Mackay, the appellant was arraigned on an 11 count indictment.  He pleaded not guilty to counts 7, 8, 9 and 10 and guilty to all other counts.
2. [2]
   The trial proceeded before a jury on the same day in respect of those four counts.  Count 7 alleged an offence pursuant to ss 421(1) and 535 of the Criminal Code of attempting to enter premises with intent to commit an indictable offence.  Counts 8 and 9 alleged offences pursuant to ss 421(2) and (3) of the Criminal Code of breaking and entering premises and stealing.  Count 10, which was the most serious count, alleged an offence pursuant to ss 411(1) and (2) of the Criminal Code of armed robbery.  The offending covered a period from approximately 11.00 pm on 25 August 2020 to just after 10.00 pm on the evening of 26 August 2020.  The offences to which the appellant entered pleas of guilty were wilful damage (counts 1 and 6), unlawfully using a motor vehicle to facilitate the commission of an indictable offence with damage (count 2), breaking and entering premises and stealing (count 3), stealing after previous conviction (count 4), dangerous operation of a vehicle with prior convictions (count 5), and possessing a dangerous drug (count 11).
3. [3]
   On 9 June 2022, the jury found the appellant guilty of counts 8 and 10 but not guilty of counts 7 and 9.
4. [4]
   On the same day, his Honour Judge Farr SC imposed the following sentences in relation to counts 8 and 10 and the other seven counts to which the appellant had pleaded guilty:

Count 1: 3 months imprisonment.

Count 2: 2 years imprisonment.

Count 3: 3 years imprisonment.

Count 4: 3 months imprisonment.

Count 5: 18 months imprisonment.

Count 6: 9 months imprisonment.

Count 8: 3 years imprisonment.

Count 10: 5 years, 6 months imprisonment.

Count 11: 9 months imprisonment.

5. [5]
   His Honour ordered that the terms of imprisonment be served concurrently with each other but cumulatively with the sentence of nine years six months which the appellant was currently serving.  His Honour fixed a parole eligibility date of 9 September 2025.  His Honour also ordered that in relation to count 5 the appellant be disqualified absolutely from obtaining or holding a driver’s licence.
6. [6]
   The appellant, who is now self-represented, appeals against his convictions for counts 8 and 10 on the following grounds:

1. the verdicts are unsafe and/or unsatisfactory (Ground 1);

2. the verdicts are not supported by the evidence (Ground 2); and

3. the verdicts of guilty on counts 8 and 10 are not consistent with the verdicts of not guilty on counts 7 and 9 (Ground 3).

7. [7]
   The appellant also applies for leave to appeal against the sentence imposed on the ground that it is manifestly excessive.

The appeal against conviction – Grounds 1 and 2

8. [8]
   The issue raised by these grounds of appeal is whether this Court, as an appellate court, is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence pursuant to s 668E(1) of the Criminal Code.^[1]  On the authority of M v The Queen,^[2] that involves a determination as “to whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the [appellant] was guilty”.
9. [9]
   In R v Conn; R v Conn; Ex parte Attorney-General (Qld),^[3] Sofronoff P identified the following principles from M v The Queen (footnotes omitted):

“In M v The Queen the plurality emphasised the kind of case in which an appellate court might conclude that a reasonable jury ought to have entertained a doubt.  Their Honours said:

‘If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.’”

10. [10]
    The relevant principles were also identified by Fraser JA (with whom Gotterson and McMurdo JJA agreed) in R v Clapham (footnotes omitted):^[4]

“The Court is required to make an independent assessment of the sufficiency and quality of the evidence at trial and decide whether, upon the whole of the evidence, it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence of which he was convicted.  In considering this ground of appeal the ‘starting point … is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses’, but:

‘In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.  It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.’”

The Crown case

11. [11]
    The Crown case concerned offending which occurred on 25 and 26 August 2020 at Mackay.  The offending targeted four businesses, namely the Coalpoint Cash store at Hay Point, the Hay Point Hotel, the Five Star Handimarket and the Shamrock Hotel.  The Crown’s case was circumstantial.  The Crown prosecutor in his opening to the jury conceded that there was no evidence directly implicating the appellant and accepted that the Crown had to exclude any reasonable hypothesis consistent with the appellant’s innocence.^[5]
12. [12]
    The Crown called an eyewitness in relation to count 7 and count 10 but neither witness gave any evidence positively identifying the appellant.  The Crown’s case consisted primarily of closed-circuit television (CCTV) footage relevant to each of the four counts (Exhibits 1, 4, 6 and 8) together with 19 admissions (Exhibit 2).  The Court has reviewed the footage.  It may be accepted that in reviewing the footage, this Court is in no different position than the jury.
13. [13]
    Admissions 1, 2 and 3 relate to the appellant being seen driving a white utility with registration plates 814YCQ at 7.21 am, 10.00 am and 6.35 pm on 25 August 2020 at various locations.  The Crown relied on these three admissions as establishing the fact that prior to the offending constituting count 7, which was alleged to have occurred at approximately 11.00 pm on 25 August 2020, the appellant was in possession of and driving the white utility.
14. [14]
    Admission 1 is that at approximately 7.21 am on 25 August 2020, the appellant was seen driving the white utility on Victoria Plains Road, Victoria Plains.  It is also admitted that the appellant was wearing an orange hi-vis vest at the time.  Exhibit 5 is a photograph taken at 7.24 am which shows the appellant in the white utility.  The utility has a logo on the driver’s door, and the appellant is shown to be wearing an orange hi-vis vest and a cap.  Admission 2 is that at approximately 10.00 am on 25 August 2020, the appellant was seen driving the white utility on McDermotts Road, Calen.  Admission 3 is that at approximately 6.35 pm on 25 August 2020, the appellant was seen driving a white utility at 10 Eimeo Road, Rural View.  Exhibit 3 is a photograph of the appellant refuelling the white utility at the EG Fuelco service station at 10 Eimeo Road, Rural View on 25 August 2020 at 6.35 pm.  The appellant is wearing a black t-shirt and black shorts.  The photograph shows that the appellant’s right arm is extensively tattooed and there is a distinctive tattoo on the right side of the appellant’s neck.  The appellant is sitting on the tray of the utility, leaning against the petrol bowser and using his right arm to pump petrol into the utility.  It was not disputed at trial that the person depicted in the photograph constituting Exhibit 3 is the appellant.

Count 7

15. [15]
    The Crown particularised the appellant’s conduct in relation to count 7 as follows:^[6]

“The [appellant] attempted to enter Coal Port [sic] Cash store with intent to steal

and/or

By his deliberate presence in the car without dissent he aided and/or encouraged another person to attempt to enter Coal Port [sic] Cash store to steal”

16. [16]
    There was an eyewitness to this offending.  Mr Johnston lived directly across the road from the Coalpoint Cash store at Hay Point.  At approximately 11.00 pm on 25 August 2020, he saw two persons jump out of a utility and walk over to the door of the business with jimmy bars.  These two persons commenced to try to pry the door open.  Mr Johnston yelled at them, and they jumped back into the utility and took off towards the Hay Point Hotel.  The only identification Mr Johnston could make from approximately 80 metres away was that both persons were wearing dark clothing.  He did not see their faces, nor was he was able to recall the registration of the utility.  He did not consider either of the men to be very large.  The Hay Point Hotel is approximately 500 to 600 metres from the Coalpoint Cash store.
17. [17]
    There is no CCTV footage of this incident.  There is however, footage from the nearby Coal Terminal (Exhibit 6).  CCTV from the main entry shows a white utility with registration plates 814YCQ driving up to the main boom gate at 9.29 pm on 25 August 2020.  The accuracy of this time and date stamp is the subject of admission 15.  The CCTV footage shows that the utility has two occupants, neither of whom can be identified as the appellant.  The occupant in the passenger seat is wearing a grey jumper with white stripes down the sleeves.  Separate cameras show the utility reversing into an adjacent carpark and turning off its lights.  Neither occupant exits the utility.  Approximately one minute later, the utility drives away.

Count 8

18. [18]
    Count 8 concerned the breaking and entering into the Hay Point Hotel and the stealing of a number of beverages, including a blue bottle of Curacao and two cans.  The Crown particularised the appellant’s conduct as follows:^[7]

“The [appellant] entered Hay Point Hotel and stole a bottle of Curacao and two cans.  The [appellant] smashed a window to gain entry to Hay Point Hotel

and/or

By his deliberate presence in the car without dissent he aided and/or encouraged another person to enter the Hay Point Hotel by break and steal alcohol.”

19. [19]
    Police obtained CCTV footage of this incident which was tendered by the Crown (Exhibit 1).  The CCTV footage shows a white utility with registration plates 814YCQ arriving at the Hotel at around 11.15 pm on 25 August 2020.  The accuracy of this time and date stamp is the subject of admission 16.  Two occupants are visible.  The occupant in the passenger seat is wearing a grey jumper with white stripes down the sleeves.  Separate CCTV footage shows the utility parked outside the Hay Point Hotel.  The utility is facing away from the camera, with its aluminium tray positioned towards the door of the Hotel.  There are no identifiable markings on the utility’s tray.  The logo which had been previously visible on the driver’s side of the utility (as shown in the photograph constituting Exhibit 5) has been painted over with white paint.
20. [20]
    A male person exits the driver’s side of the utility.  The person is wearing dark clothing (a black t-shirt with a diagonal white stripe across it and dark blue trousers), blue and black ASICS brand running shoes, black gloves, a dark bucket hat and a mask.  He also has a navy-blue hood around his neck.  In his hands are a hammer and a knife.  On his right arm is a yellow sleeve with two dark stripes.  The sleeve covers from his wrist to just below the sleeve of his t-shirt.
21. [21]
    Initially, the person walks away from the utility towards the car park, leaving the camera frame, before returning to the vehicle and approaching the door to the Hotel.  As the person approaches the door, he looks over his left shoulder, displaying the right side of his neck.  No neck tattoos are visible.  The person unsuccessfully attempts to gain entry to the Hotel by leveraging open the door.  He then walks away from the door and stands by the tray of the utility, facing away from the camera with the hammer and knife behind his back.  There is a visible marking on the person’s right arm above the yellow sleeve consistent with a tattoo.  After a few seconds, the person returns to the door of the Hotel and manages to gain entry by using the hammer to smash part of the glass door.  While this is occurring, movement can be seen inside the utility through the rear window.  This is consistent with there being a second person in the passenger seat.
22. [22]
    Separate footage from inside the Hay Point Hotel shows the principal offender removing items from a fridge located behind the counter.  The footage concludes at 11.22 pm with the principal offender returning to the utility.

Count 9

23. [23]
    The Crown particularised the appellant’s conduct in relation to count 9 as follows:^[8]

“The [appellant] entered 5 Star Handimarket and stole two ice creams.”

24. [24]
    CCTV footage (Exhibit 8) shows a single male person approaching the door of the Handimarket at 3.07 am on 26 August 2020.  In his hand is a hammer.  The person is wearing the same clothing, shoes, mask and yellow sleeve as the person captured on the CCTV footage relating to count 8, save for the fact that the person is now wearing yellow gloves and his head is covered by a navy-blue hood instead of a bucket hat.  The white utility is not visible.
25. [25]
    After looking through the glass door, the person unsuccessfully attempts to smash one of the panes using the hammer.  He then walks away from the door, leaving the camera frame.  The footage then skips forward approximately three minutes, and shows the person returning to the door, this time with a fluoro-yellow piece of clothing tucked into the front-right pocket of his trousers.  The person manages to gain entry to the Handimarket by kicking through the damaged window he had earlier tried to smash with the hammer.
26. [26]
    Separate footage from inside the Handimarket shows the person removing items from an ice-cream fridge near the counter.  The footage concludes at 3.11 am with the offender fleeing the Handimarket.

Caltex service station in Paget

27. [27]
    On 26 August 2020 at 12.49 pm a white utility with registration plates 814YCQ was captured on CCTV at a Caltex service station in Paget (Exhibit 7).  A red “x” symbol is marked on the wall of the utility’s tray.  The footage shows a single male person fuelling the utility.  He is wearing a dark coloured t-shirt, dark coloured shorts and a dark bucket hat similar to that worn by the offender as shown in the CCTV footage relating to count 8.  There appears to be a tattoo on his right arm.  He is also wearing ASICS brand running shoes that resemble those worn by the person captured on the CCTV footage relating to counts 8 and 9.  No second occupant is visible in the utility.  The footage concludes at 12.53 pm with the person entering the utility on the driver’s side and closing the door.

Count 10

28. [28]
    The Crown particularised the appellant’s conduct in relation to count 10 as follows:^[9]

“The [appellant] stole cash from Shamrock Hotel and at the time threatened to use actual violence to Leanne Reeves.

At the time, the [appellant] was armed with a machete.”

29. [29]
    Ms Reeves was working as a retail assistant at the drive-through liquor store at the Shamrock Hotel on 26 August 2020.  At approximately 9.50 pm, she noticed a white utility.  The utility subsequently left at approximately 9.55 pm.  Ms Reeves then went into the cold room and heard the buzzer go off, alerting her that a customer had arrived.  She observed that the same utility was now in the drive-through closest to the service counter and she could see a person fidgeting around inside the vehicle.  When the person alighted from the utility, Ms Reeves noticed that he was wearing a balaclava, was covered head to toe and had a big knife.  The person said words to the effect of “open the fucking till and give me the fucking money”.  The person then jumped over the counter and Ms Reeves started to walk away.  He threw a bag down.  She placed approximately $720.00 into this bag which she described as a creamy yellow calico bag.^[10]  In cross-examination, Ms Reeves accepted that the offender was covered head to toe and was wearing a balaclava, a big hoodie and gloves.  The Crown tendered CCTV footage from the Shamrock Hotel (Exhibit 4).
30. [30]
    The CCTV footage does not have a date or time stamp, but there is unchallenged evidence from Ms Reeves that the offending took place at approximately 10.10 pm on 26 August 2023.^[11]  The footage shows a white utility with registration plates 814ZTU arriving at the drive-through liquor store at the Shamrock Hotel.  Only one person is visible in the utility.  A red “x” symbol is marked on the wall of the utility’s tray.
31. [31]
    As the utility arrives at the liquor store, Ms Reeves emerges from the cold room and approaches the register.  The utility then reverses and parks parallel with the service counter.  It is identifiable from the footage that the utility’s registration plates have been tampered with.  The right half of the rear registration plate is covered by half of a different plate which reads “ZTU”.
32. [32]
    A male person exits the driver’s side and approaches the service counter.  He is wearing a dark jumper with the hood pulled over his head, dark trousers, black gloves, and blue and black ASICS brand running shoes.  It is not readily apparent from an examination of the CCTV footage that the offender is wearing a balaclava as Ms Reeves described but rather a tightly pulled hood.  His face is covered from below his eyes by a black mask.  The offender’s arms and neck are completely covered.  In his hands are a yellow bag and a machete with a yellow handle.  The offender mounts the countertop.  Once on the staff-side of the service counter, he places the yellow bag on the countertop and Ms Reeves begins filling it with the contents of the register.  While she is doing so, the offender returns to the driver’s side of the utility and deposits the machete, before returning to the register.  Several seconds later he retrieves the machete from the utility.  The offender then collects the yellow bag from Ms Reeves, enters the driver’s side of the utility and flees.

The appellant is apprehended

33. [33]
    Admission 7 is that at approximately 2.45 am on 27 August 2020 the appellant was seen driving a white utility with registration plates 814YCQ at the Moranbah Hospital.  Senior Constable Walsh, who was stationed at the Moranbah Police Station, was called out at approximately 2.00 am in response to a telephone call from staff at the hospital concerning a suspicious vehicle.  This was approximately four hours after the offending constituting count 10 had occurred.  Moranbah is around a two hour drive from Mackay.
34. [34]
    On arrival at the hospital, Senior Constable Walsh did not locate the utility.  After patrolling the Moranbah township, Walsh located a vehicle which matched the description that had been disseminated across Mackay policing.  The vehicle was parked in the Town Square in Moranbah, near one of the local banks.  The appellant was the sole occupant of the vehicle.  Walsh was under the impression that the appellant was trying to sleep.
35. [35]
    When contact was made with the appellant, he attempted to start the vehicle, which resulted in Walsh smashing the driver’s side window and arresting the appellant.  In cross-examination, Walsh accepted that he observed the appellant in the utility at approximately 3.40 am.

Scene of crime and forensic evidence

36. [36]
    The contents of the utility were photographed on 27 August 2020 by Senior Constable Hogan, who was at the time attached to the Emerald Scenes of Crime. She also obtained DNA samples and fingerprints from a number of items found in the utility.
37. [37]
    The photographs of the utility show that the red “x” symbol which had previously been marked on the wall of the utility’s tray was no longer present.  Further, photographs of both front and rear of the utility show registration plates 814YCQ.  By comparison, it will be recalled that the CCTV footage (Exhibit 4) in relation to count 10 shows a white utility with registration plates 814ZTU.  One of the photographs taken (Exhibit 48) shows a partial number plate found on the passenger seat of the utility which reads “ZTU”.  Two other partial number plates were located on the floor of the driver’s side of the utility which both read “263”  (Exhibit 49).  The photographs of the contents of the utility include a roll of red tape in the driver’s door, a brown paper bag containing food, food items found inside the car, a green manilla folder containing documents personal to the appellant, a date planner, a receipt, a knife, a blue Curacao bottle found in the glove box, and a blue bag containing clothing and blue and black ASICS brand running shoes.  Similar brand and colour shoes are depicted in the CCTV footage relevant to counts 8, 9 and 10 (Exhibits 1, 8 and 4) as well as the CCTV footage at the Caltex service station from 26 August 2020 (Exhibit 7).  The clothing items found in the blue bag included gloves and a Nike jumper.  Located behind the driver’s seat was a machete wrapped in a black t-shirt with a white design on the front consistent with the shirt worn by the offender in Exhibit 1.  A mask was found underneath the driver’s seat as well as a red bag containing assorted items including clothes, a toothbrush and toothpaste.
38. [38]
    Neither the creamy yellow calico bag, nor its contents of $720.00, was located in the utility.  Nor do any of the photographs of the contents of the utility show a dark bucket hat resembling that which was worn by the person depicted in the CCTV footage from the Hay Point Hotel and the Caltex service station.
39. [39]
    Admissions were made in relation to some of the contents found in the utility as well as DNA, fingerprint and other forensic testing.  The relevant admissions are as follows:

“8. On 27 August 2020, the police located a green manilla folder in the white utility with registration plates 814YCQ.  The folder contained several personal documents belonging to the defendant.

9. On 26 August 2020 police located a footprint of the offender on the service counter of the Shamrock Hotel.  In January 2021 Allison Smith compared the footprint found at the Shamrock Hotel with the pair of ASIC [sic] shoes found in the white utility on 27 August 2020.  Ms Smith opined that the footprint and the left ASIC [sic] shoe shared an association of class characteristics.

10. A DNA sample was taken from the left ASIC [sic] shoe found in the white utility on 27 August 2020.  The presence of DNA from a single contributor was found.  That single contributor was not the defendant.

11. A bottle of blue Curacao was found in the glovebox of the white utility on 27 August 2020.  A fingerprint was taken from that bottle and analysed.  The fingerprint did not match the defendant.

12. The defendant’s DNA or fingerprints were not recovered from any item found in the white utility on 27 August 2020 which are linked to the contested charges on the indictment.

13. The defendant’s fingerprints were not found on the glass panel broken at the 5 Star Handimarket.

14. The defendant’s DNA and fingerprints were not found on the counter of the Shamrock Hotel.”

40. [40]
    The appellant did not give evidence.

The Crown’s closing address

41. [41]
    The Crown’s primary submission to the jury was that it was the appellant who was the principal offender for all four offences.  The jury were invited, by reference to Exhibit 3 which was the photograph of the appellant taken on 25 August 2020 at 6.35 pm at the EG Fuelco service station, to conclude that it was the appellant who committed each of the four offences.  This conclusion was able to be reached, according to the Crown, because the photograph identified that the appellant had tattoos on his right arm.
42. [42]
    As to count 7, the Crown conceded that neither occupant of the white utility could be identified from the CCTV footage from the Coal Terminal (Exhibit 6).  Mr Johnston’s evidence was referred to, including his observation of two persons in a white utility wearing dark clothing who were attempting to enter the Coalpoint Cash store.
43. [43]
    As to count 8, the Crown emphasised that clothing (including the ASICS brand running shoes that were worn by the offender), a mask, black gloves, a hammer and a kitchen knife were found in the white utility when the appellant was apprehended by police.  The clothing also included the black shirt with the diagonal white stripe within which was wrapped the machete.  Also located in the glovebox of the utility was a blue Curacao bottle.  The CCTV footage showed that the offender’s right arm was covered by a yellow sleeve, but part of a tattoo was visible.
44. [44]
    Consistent with the Crown particulars, it was submitted that the appellant did not have to be the person who actually entered the Hay Point Hotel.  He could be found guilty and would otherwise be guilty by his presence if the jury was satisfied that the appellant was the person in the utility.
45. [45]
    The Crown invited the jury to conclude that, upon an examination of the CCTV footage from the Hay Point Hotel (Exhibit 1), the Five Star Handimarket (Exhibit 8), the Shamrock Hotel (Exhibit 4) and the Caltex service station (Exhibit 7), it was the appellant.  The Crown submitted that this examination revealed a similarity in the body language of the person shown in the footage.  This body language included the person being “[hunched] forward, the rounded shoulders and the arms behind his back”.^[12]  The Crown also relied on the fact that the person in the footage was wearing ASICS brand running shoes as well as a bucket hat as shown in Exhibit 1 in relation to count 8 and the CCTV footage of the Caltex service station.
46. [46]
    The Crown’s invitation to the jury to compare body language extended beyond the CCTV footage.  The jury were asked to compare the body position of the appellant in refuelling the white utility as shown in the photograph at the EG Fuelco service station (Exhibit 3) with the body position of the person shown in the CCTV footage from the Caltex service station (Exhibit 7).
47. [47]
    The Crown made the following submission in relation to the DNA evidence:^[13]

“Defence will also, in my submission, rely heavily on the DNA evidence.  Now, there’s no shying away from that fact.  The Crown has made the relevant admissions about the DNA.  And there was no DNA of the defendant found.

But that doesn’t mean he’s not guilty of these offences.  The DNA is just one piece of the puzzle.  This is a circumstantial case.  It is not the sole determiner of this case.  It would be like me relying on the fact that he was found in the Hilux alone and suggest that he’s guilty.”

The Defence’s closing address

48. [48]
    By reference to the photograph of the appellant at the EG Fuelco service station (Exhibit 3), defence counsel highlighted that the photograph clearly depicts tattoos on the right side of the appellant’s neck as well as tattoos down his right arm.  The same neck tattoo is not visible in the CCTV footage from the Hay Point Hotel (Exhibit 1).  The right side of the neck of the offender shown in Exhibit 1 did not therefore match the photograph of the appellant at the EG Fuelco service station.  As to part of a tattoo being visible on the right arm of the offender shown in the CCTV footage from the Hay Point Hotel, defence counsel submitted that a lot of people have tattoos on their right arm.  The CCTV footage did not show what sort of tattoo was on the right arm of the offender.  It was submitted that the absence of a neck tattoo in the CCTV footage would cause the jury to have a reasonable doubt that the appellant committed count 8.
49. [49]
    Defence counsel also referred to the fact that the logo on the driver’s door of the utility had been painted over.  Flecks of white paint were also found on some of the clothes in the blue bag.
50. [50]
    It was submitted that an examination of the CCTV footage did not permit the offender to be identified as the appellant.  To the contrary, the bucket hat that is depicted in the CCTV footage for count 8 resembles the bucket hat shown in the Caltex service station footage.  Similarly, it was emphasised that the ASICS brand running shoes were depicted in all the CCTV footage.  The shoes, together with the clothing worn for the offending with paint flecks, were also located in the blue bag.
51. [51]
    Defence counsel emphasised that what was not located with the appellant when apprehended, was the creamy yellow calico bag and the money.  Reference was also made to no balaclava being located, but as already noted, an examination of the CCTV footage in relation to count 10 does not reveal that the offender was wearing a balaclava.
52. [52]
    Defence counsel referred to the fact that none of the appellant’s DNA was located on any of the items in the blue bag in circumstances where the presence of DNA from a single contributor was found in the left ASICS shoe.  Reference was also made by defence counsel to the fingerprint found on the blue Curacao bottle not matching those of the appellant.  Defence counsel also referred to the fact that the shirt wrapping the machete had the same pattern as the shirt depicted in the CCTV footage relevant to both counts 8 and 9.

The summing up

53. [53]
    Consistent with the Crown’s particulars, his Honour directed the jury that the appellant could be found guilty in relation to counts 7 and 8, either as the principal offender or as a party and that his presence at the scene of the offences constituted aiding and/or encouragement.  In relation to count 7, consistent with the CCTV footage from the Coal Terminal and Mr Johnston’s evidence, there were two persons in the utility.  Similarly, the CCTV footage relevant to count 8 from the Hay Point Hotel showed two persons in the utility.
54. [54]
    His Honour gave standard directions in relation to circumstantial evidence and the requirement for the jury to give separate consideration to each charge.
55. [55]
    No complaint is made as to his Honour’s summary of the rival contentions.  In summarising the defence contentions, his Honour identified that there was no real dispute that it was the same person shown in the CCTV footage for counts 8, 9 and 10 as well as the CCTV footage from the Caltex service station.  His Honour made specific reference to the fact that the person depicted in the CCTV footage from the Caltex service station was wearing a bucket hat, as was the principal offender shown in the CCTV footage from the Hay Point Hotel.  This CCTV footage did not however, show any tattoo to the right side of the offender’s neck.

Consideration of Grounds 1 and 2

56. [56]
    It is convenient to deal first with these grounds in relation to count 8.  As particularised, the appellant was sought to be made criminally liable either as a principal or as a party to the offending.  The appellant submits that as the CCTV footage from the Hay Point Hotel does not reveal any tattoo on the right side of the offender’s neck, he could not have been the principal offender.  He further submits that he should not have been convicted as a party to this offence as no identification can be made of the other person in the utility from the CCTV footage.
57. [57]
    From a review of the evidence, it may be accepted that neither the principal offender, nor the passenger in the utility, can be positively identified as the appellant.  It was nevertheless open to the jury to be satisfied beyond reasonable doubt that the appellant was the passenger in the utility and therefore a party to the offending.  First, it was not disputed that the utility shown in the CCTV footage from the Hay Point Hotel was the same utility as the one driven by the appellant throughout the day on 25 August 2020.  Further, the appellant, when apprehended by police on 27 August 2020, was the sole occupant of the utility.  While the appellant’s DNA was not found on any of the clothes or instruments shown in the CCTV, it remained the fact that these items were found in the utility when the appellant was apprehended.  The absence of the appellant’s fingerprints on the blue Curacao bottle is not necessarily inconsistent with the appellant being the other occupant of the utility at the time of the offending constituting count 8.
58. [58]
    As distinct from count 8 however, the appellant’s criminal liability in relation to count 10 was only as a principal.  The Crown case for count 10 was entirely circumstantial.  It was incumbent on the Crown to exclude, beyond reasonable doubt, any reasonable hypothesis consistent with the appellant’s innocence.  When the evidence is considered as a whole, there is, in my view, a significant possibility that an innocent person has been convicted and that this Court is bound to set aside the verdict of guilty in relation to count 10.
59. [59]
    The starting point is that there were two offenders involved in counts 7 and 8.  For count 9 only one offender is evident from the CCTV footage and the white utility is not visible.  The offender shown in the CCTV footage for both counts 8 and 9 is wearing the same clothes, shoes, mask and yellow sleeve, save for the fact that the offender is wearing yellow rather than black gloves and his head is covered by a navy blue hood instead of a bucket hat.  In circumstances where two offenders had been previously involved but the offending in relation to count 10 only involved one offender, the Crown was required to exclude beyond reasonable doubt the reasonable hypothesis that it was the other offender and not the appellant who committed the armed robbery.
60. [60]
    The Crown had to establish beyond reasonable doubt that it was the appellant depicted in the CCTV footage from the Shamrock Hotel.  There are a number of evidentiary matters which, in my view, should have led the jury, acting rationally, to have entertained a reasonable doubt that the Crown had failed to exclude the reasonable hypothesis that it was the other offender, not the appellant who committed the armed robbery.
61. [61]
    First, both the Crown and defence counsel invited the jury to conclude that it was the same person depicted in the CCTV footage from the Hay Point Hotel, the Five Star Handimarket, the Shamrock Hotel and the Caltex service station.  This footage uniformly showed the offender wearing blue and black ASICS brand running shoes.  DNA from a single contributor was located on the left ASICS shoe.  As has already been observed, that single contributor was not the appellant.
62. [62]
    Secondly, the CCTV footage in relation to count 8 does not show any tattoo on the right side of the offender’s neck.  This fact is directly inconsistent with the offender depicted in the CCTV footage from the Hay Point Hotel being the appellant.
63. [63]
    Thirdly, the ASICS brand running shoes as well as some of the clothing worn by the offender depicted in the CCTV footage for counts 8, 9 and 10 were subsequently located in the blue bag in the utility.  The mask and machete were found in the utility with the machete wrapped in a t-shirt similar to that worn by the offender as shown in the CCTV for counts 8 and 9.  The clothes found in the blue bag and the other items were tested for both DNA and fingerprints.  It was an admitted fact that the appellant’s DNA and fingerprints were not recovered from any item found in the utility on 27 August 2020 which were linked to any of the counts.  The fact that the appellant was not a contributor to the DNA present on the left ASICS shoe is particularly significant, as the footprint of the offender on the service counter of the Shamrock Hotel “shared an association of class characteristics” with that shoe.^[14]
64. [64]
    Fourthly, there is no independent evidence that the appellant was ever seen wearing either the blue and black ASICS brand running shoes, or the bucket hat shown in the CCTV footage from the Hay Point Hotel and the Caltex service station.
65. [65]
    Fifthly, it is irrelevant that the CCTV footage in relation to count 8 showed some part of a tattoo on the offender’s right arm.  This is because the same CCTV footage did not show any tattoo on the right side of the offender’s neck.
66. [66]
    Sixthly, when the appellant was apprehended by police, neither the creamy yellow calico bag, nor the stolen $720.00, was located in the utility with the appellant.  Nor does an examination of the evidence reveal that the bucket hat was located in the utility.
67. [67]
    Seventhly, any comparison of the body language of the offender in the CCTV footage for counts 8, 9 and 10 with that of the person shown in the CCTV footage from the Caltex service station does not support a conclusion that the person depicted in that footage is the appellant.  This is because it is not possible to positively identify the appellant from any of this footage.  The only evidence which positively identifies the appellant is Exhibit 3 and Exhibit 5, being the photographs of the appellant.  Any suggested identification of the appellant by a comparison of his body position in the photograph constituting Exhibit 3 with the CCTV footage of the person shown at the Caltex service station is wholly unsatisfactory.  It constitutes a comparison of the moving body language of the person shown in the CCTV footage with a still photograph.  The dangers of relying on that comparison alone for the purposes of identifying the appellant as the person in the CCTV footage are well known.^[15]
68. [68]
    It follows that the verdict of guilty and conviction in respect of count 10 should be set aside and a verdict of not guilty be entered.

Ground 3 – Inconsistent verdicts

69. [69]
    As the jury’s verdict in respect of count 10 should be set aside, the issue raised by this ground of appeal is whether there is a rational way to reconcile the acquittals on counts 7 and 9 with the conviction on count 8.  As observed by Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen (footnotes omitted):^[16]

“[T]he respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense.  Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted.  If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.  In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt.”

70. [70]
    The appellant submits that because of the way the Crown presented the case at trial, he was either guilty or not guilty of all four offences.^[17]  That is, he could not be found guilty of one, yet acquitted of others.
71. [71]
    The appellant’s submission however, does not give sufficient consideration to how the Crown particularised counts 7, 8 and 9 as outlined at [15], [18] and [23] above.  When regard is had to the particulars and the evidence for each count, there is in my view, a reasonable and logical way to reconcile the verdicts.
72. [72]
    The jury’s verdict of not guilty for count 7 is explicable when regard is had to the evidence set out at [16] and [17] above.  There was no actual CCTV footage of the attempted break in at the Coalpoint Cash store.  Mr Johnston was unable to identify the persons attempting to break in.  He did not see their faces, nor was he able to recall the registration of the utility.  The earlier CCTV footage from the nearby Coal Terminal did depict a utility with registration plates 814YCQ.  While this CCTV footage shows that the utility had two occupants, neither are able to be identified as the appellant.
73. [73]
    In light of this evidence, it was open to the jury in applying the standard of proof to entertain a reasonable doubt as to whether the offenders who were observed attempting to break into the Coalpoint Cash Store were the same offenders involved in count 8.
74. [74]
    The factual circumstances for count 9 are outlined at [24] to [26] above.  In none of the relevant CCTV footage for the Five Star Handimarket is the white utility visible.  In order to convict the appellant, the jury had to be satisfied beyond reasonable doubt that the principal offender depicted in the CCTV footage was the appellant.  The verdict of not guilty in relation to count 9 is consistent with the jury not being satisfied beyond reasonable doubt that the offender depicted in the CCTV footage was in fact the appellant.
75. [75]
    This is to be contrasted with count 8 where the verdict of guilty did not require the jury to be satisfied beyond reasonable doubt that the appellant was the principal offender shown in the CCTV footage from the Hay Point Hotel.  Unlike count 9, count 8 contained the alternative basis for criminal liability, namely that the appellant’s deliberate presence in the car without dissent amounted to aiding and/or encouraging another person to break and enter into the Hay Point Hotel for the purpose of stealing alcohol.  As explained at paragraphs [56] to [57] above, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was the other person in the utility and therefore a party to the offending.
76. [76]
    Ground 3 fails.

Application for leave to appeal against sentence

77. [77]
    The effect of allowing the appeal against conviction in respect of count 10 is that the term of imprisonment of five years six months imposed by Judge Farr SC is set aside.  It is therefore necessary for this Court to exercise the sentencing discretion afresh in relation to the balance of the counts.
78. [78]
    Section 668E(3) of the Criminal Code provides:

“On an appeal against sentence, the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.”

79. [79]
    Substituted sentences under s 668E(3) have consistently been imposed as applying from the date of the original sentence.^[18]  The substituted sentences to be imposed by this Court will therefore commence from the date of the sentences passed by Judge Farr SC, namely 9 June 2022.  As at this date, the appellant was serving a term of imprisonment of nine years six months which commenced on 17 October 2014.  The parole eligibility date for the sentence of nine years six months was 19 March 2020.  The appellant was released on Board ordered parole on 27 July 2020.  The full-time expiry of that sentence is stated in the Presentence Custody Certificate to be 9 November 2023.^[19]  Pursuant to s 209(1) of the Corrective Services Act 2006 (Qld), the appellant’s parole was automatically cancelled on 20 August 2020, being the date on which count 1 occurred.  The seven offences for which the appellant is to be re-sentenced occurred between 20 August 2020 and 27 August 2020.  As the appellant was not received into custody until 27 August 2020, an additional seven days are to be added to the full-time expiry date of the sentence imposed by Bradley J.  The true full-time expiry date is therefore 16 November 2023.
80. [80]
    The sentences imposed by Judge Farr SC for counts 1, 2, 3, 4, 5, 6, 8 and 11 are outlined at [4] above.  Sentences of three years imprisonment were imposed for the break and enter offences (counts 3 and 8) with lesser terms of imprisonment imposed for the balance of the offences.  Each term of imprisonment was to be served concurrently but cumulatively with the sentence of nine years six months.
81. [81]
    Pursuant to directions made by this Court at the hearing of the appeal, the parties filed supplementary submissions on sentence.

The appellant’s submissions

82. [82]
    The appellant submits that as counts 3 and 8 do not require a cumulative sentence, any sentences imposed should run concurrently with the sentence of nine years six months.  The appellant further submits that any sentence imposed should not be crushing as he has already served “a great deal of time” incarcerated.  In this respect, he emphasises that he was returned to custody on 27 August 2020 and has served at least an additional three years.  If any sentence is made cumulative with the sentence of nine years six months, the appellant submits that he would have served a significant amount of time in custody in excess of four years which he submits “is a really lengthy sentence for property charges”.
83. [83]
    The appellant refers to what he describes as the “significant amount of rehabilitation” he has undertaken while in custody.  This includes being enrolled on 20 September 2022 in a Certificate III Fitness Course.  In 2021, he obtained a Certificate II in Skills for Work and Vocational Pathways as well as a Certificate II in Retail Services.  Other courses completed in 2021 include a Certificate II in Health Support Services and Certificate II in Sport and Recreation as well as First Aid.  In July 2023, he completed a Substance Abuse Maintenance Intervention Course.  He has also taken steps to improve his numeracy and literacy.
84. [84]
    In a letter to the Court dated 4 October 2023, the appellant refers to successfully finishing school and completing the introduction to a university program while in custody.  In this letter, he expresses remorse for his previous actions.

The Crown’s submissions

85. [85]
    The Crown submits that as the appellant is now self-represented, the fairest manner in which to proceed is to adopt the submissions that were made at first instance and which were accepted by the appellant’s counsel, leaving aside the armed robbery offence.
86. [86]
    The Crown refers to the offending occurring after the appellant had been released on parole.  His criminal history was summarised by Judge Farr SC as “appalling”^[20] and includes 28 convictions for break and enter or burglary, 30 convictions for unlawful entry or use of a motor vehicle and a number of property offences as well as a previous conviction for robbery.
87. [87]
    At first instance, the Crown’s submission was that counts 3 and 8 warranted a sentence of imprisonment in the range of four to five years.  As the appellant had been convicted of armed robbery, s 156A of the Penalties and Sentences Act 1992 (Qld) mandated that the sentences imposed had to be served cumulatively.  This was because the offence of armed robbery is a schedule 1 offence for the purposes of s 156A(1)(a)(i) and was committed in circumstances where the appellant had been released on parole under the Corrective Services Act 2006 (Qld).  The Crown accepts that s 156A no longer applies and the Court has a discretion under s 156 whether to make any sentences concurrent or cumulative.  The Crown maintains however, that the Court should exercise the discretion to impose a cumulative sentence, given the offending occurred so shortly after the appellant’s release on parole.  Such an exercise of discretion would, however, require the sentence to be moderated to take into account the totality principle.
88. [88]
    The Crown therefore submits that this Court should impose the same head sentences as those imposed by Judge Farr SC, to be made concurrent with each other but cumulative on the sentence of nine years six months.
89. [89]
    The Crown accepts that matters favourable to the appellant can be reflected by the Court setting an appropriate parole eligibility date.  Although the sentences imposed for counts 3 and 8 are three years, the Court can only set a parole eligibility date rather than a parole release date.  This is because if the offender is already serving a period of imprisonment at the time of sentencing, this must be taken into account when calculating whether the new period of imprisonment will be three years or less:  ss 160B(2) and 160F of the Penalties and Sentences Act.  The appellant is also required to remain in custody until 16 November 2023, which is the full-time expiry date of his sentence of nine years six months.
90. [90]
    The Crown submits that the appellant’s date for eligibility for parole should be a date between “the date of sentence up to 12 months of that sentence”,^[21] depending on the Court’s conclusions regarding matters in the appellant’s favour.

The facts of the offending

91. [91]
    The facts in relation to count 8 are set out at [19] to [22] above.  The facts in relation to the balance of the counts are set out in an agreed schedule of facts.^[22]
92. [92]
    Count 1, wilful damage, concerned the appellant removing an electronic monitoring device which had been fitted to him on 12 August 2020 as a condition of his release on parole.
93. [93]
    Count 2 concerned the appellant unlawfully using the white utility with registration plates 814YCQ between 25 and 27 August 2020.  The appellant damaged part of the utility by removing the ignition cover that was later located in his pocket.
94. [94]
    Count 3 concerned the breaking and entering of the Mackay District Target Rifle Association at Victoria Plains Road, Victoria Plains.  This occurred at 7.21 am on 25 August 2020.  The appellant drove the stolen utility into the Association’s premises.  He reversed the utility into a galvanised shed and stole a new television.  He also smashed a window and stole $120.00, six shooter bags and an iPad.  He damaged a padlock to a fridge by trying to open it.  The appellant drove out of the premises with the stolen television strapped to the back of the utility.  Police subsequently located a laptop bag, power cord and computer mouse discarded on the patio floor of the Association’s premises.
95. [95]
    Count 4 involved the appellant failing to pay $55.18 for the fuel used in the refuelling of the utility as shown in Exhibit 3.
96. [96]
    Count 5, which was the dangerous operation of a vehicle with prior convictions, involved the appellant swerving onto the wrong side of a road to get closer to a Nissan motor vehicle.  The vehicle was occupied by a couple and their 18 month old son.  The appellant threw a hammer at the Nissan from the driver’s window which impacted against the Nissan.  The appellant then swerved to return to the correct side of the road but lost control.  The utility skidded across the road onto a person’s property.
97. [97]
    Count 6 involved the appellant reversing the utility and the utility’s tray colliding with the front bonnet and grill of a police car, resulting in damage to the front of the car.  The damage to the police car cost $12,238.20 to repair.
98. [98]
    Count 11 relates to when the appellant was apprehended by police on 27 August 2020.  Police located 13 MDA pills and a MDMA capsule inside a medication container that was in the red bag located in the utility.

Antecedents

99. [99]
    The appellant was 27 years of age at the time of committing the offences.  He is now 30.
100. [100]
     As previously observed, he has an appalling criminal history and is rightly to be regarded as a recidivist offender.  His criminal history extends over 14 pages, with the first offences being committed when he was 18 years of age.
101. [101]
     At first instance, his Honour noted the appellant’s disadvantaged and dysfunctional upbringing.  The appellant’s father has passed away since the appellant has been in custody.  The appellant was educated to Grade 10.
102. [102]
     His misuse of drugs has been a consistent theme in his offending, including the present offending.

Consideration

103. [103]
     The most serious offending concerns count 3 and count 8.  Pursuant to s 421(2) of the Criminal Code, the maximum sentence for any person who enters or is in any premises and commits an indictable offence in the premises is 14 years imprisonment.  The appellant was not only charged under s 421(2), but also s 421(3) for which the maximum term is life imprisonment.  The head sentences of three years imposed by his Honour are well within range for this type of offending.
104. [104]
     In R v Byrant,^[23] the applicant was a 35 year old man who had pleaded guilty to nine counts of offences involving property, primarily breaking into business premises. The total value of the unrecovered stolen property and the damage caused was approximately $6,500.  The applicant had an extensive criminal history for similar offences.  The offences for which he was being sentenced were committed while he was on bail and, in some instances, on probation.  He was sentenced to five years imprisonment with parole eligibility after two years.  Jerrard JA, with whom the other members of the court agreed, observed that sentences in the five to six year range were appropriate where considerably more was stolen. The application for leave to appeal and appeal were allowed, the head sentence was set aside and a sentence of four years imprisonment with a parole eligibility date after 18 months was substituted.
105. [105]
     The decision in Bryant has been followed consistently in this State.^[24]
106. [106]
     As the other sentences are to be concurrent, the head sentence of three years for counts 3 and 8 must also adequately reflect the criminality involved in the other counts.
107. [107]
     In arriving at an appropriate parole eligibility date, there are a number of factors in the appellant’s favour.  First, the appellant pleaded guilty to counts 1 to 6 and 11.  While these pleas cannot be considered to be early, they were timely and assisted the course of justice.  Secondly, the appellant has taken significant steps while in custody to rehabilitate himself.  Thirdly, although it was the appellant’s offending while on parole that resulted in his return to prison to serve out the sentence of nine years six months, it remains the fact that since his return to custody on 27 August 2020, he has remained in custody for approximately three years and three months.  Apart from his short release on parole commencing on 27 July 2020, he has been incarcerated from 17 October 2014.  Taking these matters into account, the parole eligibility date should be fixed as at the date of delivery of these reasons for judgment.

Disposition

108. [108]
     I would propose the following orders:

1. The appeal against conviction in respect of count 8 (breaking and entering premises and stealing) is dismissed.
2. The appeal against conviction in respect of count 10 (armed robbery) is allowed.
3. The verdict of guilty and conviction in respect of count 10 is set aside.
4. A verdict of not guilty is entered in respect of count 10.
5. The application for leave to appeal against sentence is granted.
6. The appeal against sentence is allowed.
7. The sentence imposed by his Honour Judge Farr SC on 9 June 2022 is varied as follows:
   1. the term of imprisonment of five years six months in respect of count 10 is set aside.
   2. the remaining terms of imprisonment for counts 1, 2, 3, 4, 5, 6, 8 and 11 are to be served concurrently with each other but cumulatively with the sentence the appellant was currently serving as at 9 June 2022.
   3. order that the date the appellant is eligible for parole be fixed at the date of delivery of these reasons for judgment.

109. [109]
     The proposed variations to the sentence imposed on 9 June 2022 do not affect the order made by his Honour in respect of count 5, namely that the appellant be disqualified from holding or obtaining a driver’s licence absolutely from 9 June 2022.
110. [110]
     BUSS AJA:  I agree with Flanagan JA.
111. [111]
     KELLY J:  I agree with the reasons of Flanagan JA and with the orders proposed by his Honour.