New South Wales Court of Criminal Appeal CITATION : Regina v Colebrook [1999] NSWCCA 262 FILE NUMBER(S) : CCA 60247/97 HEARING DATE(S) : 9/8/99 JUDGMENT DATE : 27 August 1999 PARTIES : Regina Daniel Michael COLEBROOK JUDGMENT OF : Mason P at 1; Abadee J at 2; Simpson J at 3 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/21/1231 LOWER COURT JUDICIAL OFFICER : Holt DCJ COUNSEL : P Berman (Crown) SOLICITORS : S.E O'Connor (Crown) Appellant in person CATCHWORDS : CRIMINAL LAW; sexual assault; break enter and steal with corporal violence; false imprisonment; application for leave to appeal against conviction dismissed; application for leave to appeal sentences granted, appeal dismissed. ACTS CITED : Crimes Act 1900 R v EJ Smith [1984] 1 NSWLR 462 R v Brownlowe (1987) 7 NSWLR 461 R v Brotherton (1993) 29 NSWLR 95 CASES CITED: R v Bulejcik (1996) 185 CLR 375 at 393-4 Fleming v R [1998] HC 68; (1999) 73 ALJR 1 R v Giam [1999] NSW CCA 53 unreported, 10 March 1999 R v Pearce (1998) 72 ALJR 1416 DECISION : Appeal against convictions dismissed; leave to appeal the sentences granted but the appeal is dismissed. IN THE COURT OF CRIMINAL APPEAL 60274/97 MASON P ABADEE J SIMPSON J Friday 27 August 1999 REGINA v Daniel Michael COLEBROOK Judgment MASON P : 1 I agree with Simpson J. * * * * * * * * * * IN THE COURT OF CRIMINAL APPEAL 60274/97 MASON P ABADEE J SIMPSON J Friday 27 August 1999 REGINA v Daniel Michael COLEBROOK Judgment ABADEE J : 2 I agree with the orders proposed by Simpson J and with her reasons therefor. * * * * * * * * * * IN THE COURT OF CRIMINAL APPEAL 60274/97 MASON P ABADEE J SIMPSON J Friday 27 August 1999 REGINA v Daniel Michael COLEBROOK Judgment SIMPSON J : 3 On 7 March 1997 the appellant was convicted by a jury of all five counts on an indictment to which he had pleaded not guilty. The charges were: count (i) break enter and steal with corporal violence (Crimes Act 1900, s 112): counts (ii) and (iii) two counts of sexual intercourse without consent (s 61(I)); count(iv) attempted sexual intercourse without consent (ss 61(I), 344A); count(v) false imprisonment (common law misdemeanour). 4 Judge Holt sentenced the appellant as follows: count (i): penal servitude for ten years made up of a minimum term of seven years and an additional term of three years; counts (ii), (iii), and (iv): penal servitude for a fixed term of five years; count (v): imprisonment for a fixed term of two years. 5 All sentences were specified to commence on 12 February 1997 and to be served concurrently. 6 The appellant appealed the convictions and seeks leave to appeal the sentences imposed. Although he had the benefit of legal representation at trial and at the sentencing proceedings, he appeared unrepresented in this court. 7 All offences were alleged to have been committed as part of a single episode on 16 August 1996. The Crown Case The Crown case was that, during the early hours of that morning, the complainant, DV, was awakened by a male intruder who had entered the bedroom she occupied in a house at Bidwell. Her young son, B, then aged eighteen months, was in the bed with her. Her two other children, aged six and three and a half, were asleep in other bedrooms. The intruder placed his hands over the complainant's eyes. It was this that caused her to wake. She tried to push the hand away. The man told her to shut up and not move. She asked what he wanted and he twice repeated his order to shut up. He covered her face with a pillowcase and told her he wanted her money. She said she had none. He responded to this by hitting her across the face, using considerable force. He pulled a pillowslip over her face and the back of her neck but raised it at the front to expose her mouth. He pulled the complainant to the side of the bed, inserted his penis into her mouth and ordered her to suck it. She attempted to resist by pushing him away and he threatened to kill the child if she did not do as she was ordered. The man ejaculated into the complainant's mouth; she tried to spit it out. He ordered her to swallow and then he hit her across the back of the head, again with considerable force. This time she complied. The forced act of fellatio is the foundation for the first count of sexual intercourse without consent on the indictment (count ii). The man attempted to rip the complainant's nightdress but was unable to do so and instead took it off over her head. The complainant was then naked except for a pair of pants. The pillowslip was still over her head. The man pulled at the pillowslip, causing her to fall from the bed. He pulled again at the pillowslip, she stood up, and he forced her to walk from the bedroom and down the stairs. He took a drink from the refrigerator, continuing to hold the complainant by means of the pillowslip which he drew back behind her head. He forced her to walk back up the stairs. Two of the complainant's children were by this time crying. The youngest, B, was hanging on to the complainant's leg, but the intruder pushed him away. He pushed B into his sister's bedroom and closed the door. He forced the complainant back into her own bedroom and pushed her onto the bed, ripped her pants off and had penile/vaginal intercourse with her. This act was the foundation for the second count of sexual intercourse without consent on the indictment (count (iii)). This act was interrupted by the entry of two of the complainant's children, B who was still crying, and E who was calling to her mother. B lay across the complainant's chest, the man pushed him away and onto the floor. The child climbed back to her, the man again pushed him away. He told the complainant to get rid of the children and the complainant told E to take B to her room. The intruder again attempted penile/vaginal intercourse, unsuccessfully, and punched the complainant several times around the head and face, again with considerable force. The attempt at sexual intercourse is the foundation for the fourth count in the indictment. This time the complainant was still lying on the bed, her face covered by the pillowcase. The man demanded all her jewellery, calling her a slut. She removed two of the nine rings she was wearing and he forcibly removed the remainder. He held a serrated edge knife at her throat. He took the watch she had on her wrist. He then used rope to tie her hands behind her back. He pulled her from the bed and walked her into E's room, still with the pillowcase over her head, and pushed her onto the floor. B climbed onto her lap, still sobbing and distressed. E was in the room, also crying. The man told them all to keep quite while he went through the house and he then left the room. The pillowslip was still over the complainant's face and her hands were still tied behind her back. The man returned, and demanded to know the complainant's key card number, which she gave to him. He threatened her that if the number was incorrect he would return and kill the children. He left and shut the door again, taking the jewellery and watch. He took other items as well, including cash, a mobile phone and a bank card from the complainant's handbag. The theft of the property, together with the forced entry and the infliction of violence already described is the foundation for the first count in the indictment, of break enter and steal with corporal violence. The use of the rope to tie up the complainant and the act of leaving her in the children's room, is the foundation for the charge of false imprisonment. 8 The complainant was eventually able to free herself and obtain assistance from neighbours. 9 The sole issue at the trial was whether the Crown had established to the requisite standard that the appellant was the person who committed the offences. The Crown case was, except for one matter to which I will come, entirely circumstantial. The appellant was interviewed by police on 16 September 1996 and denied any involvement. He gave sworn evidence in the trial and again denied involvement. 10 As I have mentioned, the appellant prosecuted his appeal on his own behalf. He provided a comprehensive handwritten document encapsulating his argument against the convictions, and he supplemented this with equally comprehensive oral submissions. The essence of his argument was that the convictions were not reasonably open on the evidence, having regard to weaknesses, contradictions and inconsistencies he asserted affected the Crown case. 11 It is therefore necessary to spend some time on those aspects of the Crown case directed to identifying the appellant as the perpetrator of the offences. There were a number of these, which, in combination, the Crown argued, demonstrated beyond reasonable doubt the appellant's guilt. Circumstances pointing to the appellant as perpetrator 12 The offences were committed on 16 August 1996, in the house occupied by the complainant and her three children. From about February 1996 until May 1996 the appellant and his girlfriend, Amy Le Fevre, also lived in the house, using the downstairs dining room as their bedroom. Also living there at that time was the complainant's then de facto, J B. The appellant and Ms Le Fevre left at the instigation of officers of the Housing Commission, from which the complainant rented the house. The Crown case did not, as I perceive it, rely upon motive based on hostility engendered in the appellant as a result of his being asked to leave, but the appellant's former occupation of the house was associated with three further circumstances on which the Crown did rely. The first of these was the fact that the complainant kept a dog. Neither the complainant nor her neighbour, who was a light sleeper, heard the dog bark during the night. The jury were invited to draw the inference that the dog did not bark when the intruder entered the premises because that person was somebody with whom he was familiar. 13 A second matter advanced on behalf of the Crown concerned the way in which the intruder had gained access to the house. This was through a laundry window, which was frequently left unlocked, a fact that was known to the appellant by reason of his prior residence at the house, but could not have been expected to have been known to others. 14 A third matter related to items of correspondence, addressed to the appellant, that had been present in the kitchen, but which were not present when the complainant returned to the house several days after 16 August. The correspondence consisted principally of envelopes bearing a Vodafone insignia, assumed to have been bills for the appellant's mobile phone. The Crown invited the jury to draw the inference that the appellant, seeing the mail addressed to him, had picked it up and taken it with him. 15 The watch that the intruder had taken from the complainant was found, with another watch, concealed in the caravan in which the appellant was living when police searched on 16 September. When asked about the watches, the appellant asserted that they both belonged to Ms Le Fevre. Ms Le Fevre, however, claimed ownership of the second watch but denied ownership of the watch in question. She later suggested that it might belong to a person called Leonie. 16 The complainant positively identified the watch as hers, and as having been given to her for her birthday on 7 March 1996. A distinguishing feature of the watch was that she had earlier spilled paint on it, some of which she had been unable to remove. JB also identified the watch as the one he had given to the complainant. 17 Two fingerprints identified as the appellant's were located in the house. One was on a plastic compartment in a handbag found in the living room of the house; the other on a Social Security enquiry card that was kept in a wallet in the handbag. When he was interviewed by police the appellant was shown the handbag and said that it was not the handbag that was used by the complainant when he lived at the house. This was a matter of some significance, having regard to the explanation subsequently given by the appellant for the presence of his fingerprints, which he did not dispute. I will say more of this below. 18 The complainant's six year old son, M, gave evidence in the trial. He said that he had been wakened during the night by the noise of a car and had looked out the window. He saw a yellow car and he saw a person walk up the driveway. In evidence he did not identify the appellant as that person. In his evidence the appellant acknowledged that he had, at the time, owned a car that was yellow and black. 19 There was one important piece of evidence in the Crown case that is not properly classified as circumstantial. This arose from the complainant's account of the events given to police, to others immediately afterwards, and in the trial. Because of the use of the pillowcase, the complainant never really saw her attacker. However, she recognised, or thought she recognised, his voice. Her evidence in the trial was that when the attacker spoke for the first time his voice was at a deeper pitch than when he subsequently spoke. She said that she recognised the voice but could not immediately identify it. It was not until she was sitting in E's room that she could put a name to the voice. She believed that it was the voice of the appellant. She said that, once she had identified the voice she was "pretty definite" about the identification. 20 When the complainant made a statement to police she gave a description of the intruder's physical characteristics so far as she was able. She then said that his voice was deep, that he spoke without an accent and in plain English, and that when she first heard him speak she realised that she had heard the voice previously but could not figure out where. Absent from the statement she then signed was any mention of the complainant's belief that the voice she heard was that of the appellant. Indeed, included in the statement was the assertion "I still do not recognise his voice". 21 Notwithstanding this, the complainant said that she was, at that time "pretty sure" that it was the voice of the appellant. 22 The explanation for the omission from the statement of any reference to the complainant's belief that the appellant was the attacker was given both by the complainant and by the investigating police officer, Detective Senior Constable Jenkins. This explanation was, in short, that Detective Jenkins told the complainant that, unless she was "100 percent sure" of the voice identification, it should not be included in her statement. As the complainant was not prepared to commit herself to that extent, the detective took it upon herself to omit from this statement any reference to the complainant's belief that the voice she recognised was that of the appellant. Detective Jenkins agreed that the complainant had said that the voice was similar to that of the appellant. 23 The complainant made a second statement to police on 23 August. On this occasion she did positively identify the voice as the appellant's. 24 One other aspect of the identification of the appellant's voice requires mention. After freeing herself the complainant contacted her neighbour, Donna Spiteri. Ms Spiteri gave evidence that the complainant was crying and that her opening words were "someone broke in and raped me". A little later Ms Spiteri asked the complainant some questions, including a question whether the complainant knew who her attacker was. The complainant replied by saying "they put a pillowcase over my head." Ms Spiteri asked if she recognised the voice. The complainant said "it was like he was trying to disguise it". She then added "but I think it was Daniel", referring to the appellant. 25 This was, essentially the evidence on which the Crown relied to prove that the appellant was the person who broke into the house and assaulted the complainant. 26 The appellant gave evidence in the trial. He relied on a number of asserted circumstances to counter the Crown case. These were: 1. He had at the time of trial, and had at August 1996, a goatee beard, and his hair done in dreadlocks style. He is 173 cm tall. This evidence was given to mount an argument that, even with the pillowcase as a blindfold, the complainant would readily have recognised him had he been the assailant, bearing in mind that he had shared her home for three months. The description she gave of the attacker was only that he was roughly the same height as the complainant (which was about 5'4" or 5'5"), and that it looked as though he had his hair pulled back in a pony tail, and that the pony tail "looked like it had little bits sticking out of the side". 2. Sometime prior to 5 August he had left his mobile phone at a railway station and never recovered it. He had arranged for its disconnection through Vodafone. His argument in this respect was that this rendered it unlikely that he would have taken the Vodafone letters, which were surmised to have been principally bills. He expressly denied having done so. 3. He sought to explain his fingerprints on the interior surface of the complainant's handbag, and on the Social Security card, by saying that when he had lived at the house, there were occasions when the complainant's children, especially B, tipped the contents out of the bag and he scooped them up and replaced them. The appellant acknowledged that, during the interview with police, he had been shown the bag, and had said that when he had lived at the house the complainant had a similar bag, but it was not the one he was then shown. He retracted that answer during his evidence. 4. He said that, as at 16 August, he had a broken finger on his right hand with cuts on the knuckle. His argument in this respect was that he would not physically have been able to inflict the assaults described by the complainant. The appellant conceded that he had not sought medical attention in relation to his hand. His explanation for this was that he had injured his hand on many previous occasions, and the treatment had always been the same, and so he had simply treated himself by applying a bandage as medical practitioners had done in the past. He also said he held a First Aid Certificate. Ms Le Fevre supported the appellant's assertions about the injury to his hand. She said that at the time it was swollen, and he could hold it only in a cupped fashion, and it was bandaged. He called medical evidence from Dr Peretz to support the claim that he had had a broken hand. I will refer to this evidence below. 5. The appellant gave evidence that, as at 16 August, he was afflicted by some swollen sores on his penis, which he had scratched, causing sores and scabs. In this, too, he was supported by Ms Le Fevre. This evidence was given to support a contention that it was unlikely, in the events described by the complainant, that she would not have noticed this condition, and that, therefore, the jury should conclude that somebody other than the appellant was responsible for the attack, or at least that the Crown had not established to the requisite standard that he was the attacker. 6. The appellant sought to answer the Crown's evidence that the complainant's watch was found in his caravan by denying that it was in fact her watch, and refusing to answer further questions about his possession of the watch on the ground that he might incriminate himself on another matter. The Appeal 27 There is no obvious part of the appellant's submissions, written or oral, that challenged the admissibility of the voice identification evidence. However, having regard to his unrepresented status, and that the evidence was admitted at the trial over objection, after a hearing on the voir dire, it seems to me that fairness requires that consideration be given to that question. 28 In R v E J Smith [1984] 1 NSWLR 462 O'Brien CJ of Cr D undertook an exhaustive review of the authorities relating to the admissibility of voice identification evidence. 29 He drew a distinction between such evidence given by a witness who has a pre-existing familiarity with the voice the subject of the identification evidence, and such evidence given by a witness who has not. In the latter case, the evidence is usually only admitted where the voice has sufficiently distinctive characteristics. 30 The decision has been endorsed in this Court in R v Brownlowe (1987) 7 NSWLR 461 and R v Brotherton (1993) 29 NSWLR 95. It has been referred to, also with apparent approval, by the High Court in R v Bulejcik (1996) 185 CLR 375 at 393-4. 31 For present purposes, it is necessary to consider only that part of the decision that is concerned with identification of a voice with which the witness is already familiar. There can, in my view, be no doubt that the evidence was admissible. The issue concerning the evidence was the weight that could be attached to it, and that depends upon the particular facts and circumstances of each case. These were, in this case, thoroughly explored and were before the jury. The reasons for the absence of any reference to the voice identification in the complainant's first statement to police were fully canvassed, both on the voir dire and before the jury. In my view, the evidence was properly admitted, and the judge gave comprehensive and appropriate directions about it, including directions that voice identification evidence was "notoriously open to mistake", and he reminded them that the complainant's identification of the appellant's voice was qualified. He repeated particular passages of the evidence of the complainant and of Ms Spiteri. He pointed out that the intruder's voice was not said to have any distinctive feature. 32 I turn now to the argument advanced by the appellant in writing all of which went to the reliability of the convictions. They were, in essence, directed to the ground of appeal which used to be called the "unsafe and unsatisfactory" ground, but which is now more accurately pleaded as a miscarriage of justice: Fleming v R [1998] HCA 68; (1999) 73 ALJR 1; R v Giam [1999] NSW CCA 53; unreported, 10 March 1999. The essence of this ground of appeal is that it was not open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt of the charges on which he was convicted. 33 The appellant asserted that the jury may have been "taken in by the victim's theatrics and tears and therefore looked at this case from an emotional standpoint", rather than objectively. 34 The transcript discloses a number of occasions on which the judge expressed some concern for the complainant's condition, and allowed short breaks for her to rest or recover. It is plain that she manifested distress at times when she was asked to recount the events. However, there is no reason to think that this circumstance was mistreated by the jury. The judge gave the usual, and very comprehensive directions about the onus of proof. Although he did not directly instruct them to discard sympathy, emotion or prejudice, he expressly reminded them of counsel's address to that effect, with implicit endorsement. I see no reason to conclude that the trial miscarried because the jury failed to understand, or heed, their obligation to consider the issues objectively. 35 The remaining matters the appellant argued amounted to critical analysis of the various circumstances on which the Crown relied, or reiteration of the evidence given in his case, or a combination of the two. 36 His next argument concerned the evidence that the intruder gained access through the laundry window, the likely availability of which would not, on the Crown case have been known to many, but which was known to the appellant. The appellant pointed to evidence that entry had been attempted through at least two other windows. On one of these the flyscreen had been removed. This was a second floor window through which the six year old, M, had observed the yellow car and the man walking down the driveway. 37 The appellant referred to other evidence given by M, in particular his answer to questions concerning the identification of the person he saw. As the appellant pointed out, it was only three months since he had left the premises, after having lived there for about three months, and so M knew him well. The appellant gave evidence that M well knew his (the appellant's) name because his own two given names were the same as those of the appellant but in reverse order, and this had been a subject of comment during the time he lived there. M did not name the appellant. He said that he recognised the person but he could not or would not name him. 38 The appellant referred to the evidence of voice identification, arguing that, having regard to all the circumstances, it was unreliable. He argued that his dreadlocks were distinctive to a point that the complainant would have recognised him had he been there, and he relied upon her description of the intruder's hairstyle only as "a pony tail" to suggest that he did not fit her description. 39 He then referred to the evidence of his broken hand and argued that that condition would have left him without the capacity to inflict the blows described by the complainant. That argument must be seen in the context of the medical evidence called on his behalf. It established that the appellant had had a broken hand at some stage in his life - Dr Peretz had never examined the appellant and did not, for the purposes of giving evidence, have access to the x-ray itself, and worked only from an x-ray report. He was unable to give any date when the fracture might have occurred, and accepted that it may in fact have been up to ten years earlier. 40 Finally, the appellant asserted that 60 - 70 percent of the complainant's responses to questions put to her were vague, such as that she did not know or could not remember. A fair reading of the transcript simply does not support this assertion. 41 I have carefully considered all of the evidence, and all of the arguments advanced by the appellant. It must be remembered that the arguments that are presently put were put with some force to the jury, and their weight was very much a matter for the jury. I am quite satisfied that the verdicts of guilty on all counts were well open to the jury. The Sentence 42 The appellant was sentenced to a total term of ten years on the first count, a sentence in which was subsumed the fixed terms in relation to each of the other counts. It will be remembered that the first count was the charge of break enter and steal with corporal violence, an offence which carries a maximum penalty of penal servitude for twenty years. Counts (ii), (iii) and (iv) were the counts of actual and attempted sexual intercourse without consent, each of which carries a maximum penalty of penal servitude of fourteen years. On these counts the appellant was sentenced to a fixed term of five years' penal servitude. The final count, of false imprisonment, is a common law misdemeanour, in relation to which sentencing is in the discretion of the judge. 43 In my opinion, an anomaly is evident in the relationship of the sentence imposed in relation to count (i), and those imposed in relation to counts (ii), (iii) and (iv). However, this anomaly reflects an equivalent anomaly in the prescribed maximum penalties. 44 I mention this because, although there can be, in my view, no valid complaint about the overall sentence imposed on the appellant, the decision of the High Court in R v Pearce (1998) 72 ALJR 1416, requires that consideration be given to whether the penalties imposed in relation to the specific offences were appropriate. It is only because of the maximum penalties prescribed by the legislature that I have not come to the view that the sentences imposed in relation to the s 61I offences should have attracted a significantly greater penalty than the s 112 offence. In any event, the level of criminality disclosed was extreme. The appellant was born on 9 January 1972 and was 24 years of age at the time of the offences. He was twenty-five years of age when sentenced. His criminal record was extensive, commencing in 1989, when he was seventeen years of age, and extending to seventeen separate entries. These included offences of dishonesty, offences related to motor vehicles, assault (four entries), and, most significantly for present purposes, there is one entry for breach of an apprehended domestic violence order. Despite the length of the record there is nothing approaching the seriousness of the present offences. 45 Before his Honour was a pre-sentence report and a psychological report. The latter comprehensively reviewed the appellant's his background, his current living circumstances, his relationships, and his current psychological condition according to this report, the appellant had a stable early life but with somewhat disrupted schooling. (This was in conflict with the pre-sentence report which suggested a lack of stability in his early life.) His behaviour was of sufficient concern to cause him to be assessed at a juvenile psychiatric institution at age six or seven. He did not, however, receive any treatment. 46 He is described as having schizoid and passive aggressive personality elements, with less pronounced depressive and aggressive elements. Tests revealed a mixed borderline and schizo-typal personality. He has used marijuana and alcohol heavily although he claims to have reduced his intake of these drugs since the commencement of his relationship with Ms Le Fevre. 47 His relationship with Ms Le Fevre appears stable. A daughter was born in October 1996. Ms Le Fevre continues to visit the appellant in prison. They have plans to live in the country on his release. 48 These subjective features cannot outweigh the objective gravity of the offence. This was a particularly callous and brutal attack upon a woman in her own home, in the presence of her three young children, two of whom were manifestly distressed during the course of the attack. The appellant displayed no mercy for his victim throughout, and has displayed no remorse or contrition since then. In my opinion the sentence imposed, taking into account the totality of the offences, was well within the range available to the sentencing judge. 49 I would dismiss the appeal against the convictions; I would grant leave to appeal the sentences, but dismiss the appeal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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