R v BURGESS [2001] NSWCCA 42

New South Wales Court of Criminal Appeal

CITATION : R v BURGESS [2001] NSWCCA 42 FILE NUMBER(S) : CCA 60519/99 HEARING DATE(S) : 12/02/2001 JUDGMENT DATE : 28 February 2001

PARTIES : REGINA v Robert John BURGESS JUDGMENT OF : Priestley JA at 1; Barr J at 2; Kirby J at 54

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/31/0041; 99/31/0150; 99/31/0230 LOWER COURT JUDICIAL Nield DCJ OFFICER :

COUNSEL : Crown: GE Smith SOLICITORS : Crown: SE O'Connor Appellant: In Person

CASES CITED: R v Birks (1990) 19 NSWLR 677 Rondel v Worsley [1969] 1 AC 191 DECISION : Appeal against conviction dismissed; Leave to appeal against sentence granted; Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL 60519/99

PRIESTLEY JA BARR J KIRBY J

Wednesday, 28 February 2001 REGINA v Robert John BURGESS

JUDGMENT

1 PRIESTLEY JA: I agree with Barr J. 2 BARR J: The appellant, Robert John Burgess, appeals against convictions and seeks leave to appeal against sentences imposed in the District Court. 3 On 17 August 1999 he pleaded not guilty to one charge of stealing and to one charge of assault. On the following day a jury found him guilty of both offences. The trial judge, Nield DCJ, proceeded to sentence the appellant for those two offences and for five other offences of which the appellant had previously pleaded guilty before the Local Court. Four of those offences were breaking, entering and stealing and the other was larceny. 4 For the two offences of which the jury convicted the appellant and for the offence of larceny his Honour sentenced the appellant to concurrent fixed terms each of one year, commencing on 19 August 1999 and expiring on 18 August 2000. For three of the offences of breaking, entering and stealing his Honour imposed concurrent fixed terms each of two years commencing on 19 August 1999 and expiring on 18 August 2001. For the final count, another count of breaking, entering and stealing, his Honour imposed imprisonment for five years six months, comprising a minimum term of four years, commencing on 19 August 1999 and expiring on 18 August 2003 and an additional term of eighteen months. In imposing that sentence his Honour took into account the offence of self-administration of a prohibited drug. In fixing sentence on the last count his Honour took into account that the appellant had spent about six months in custody already. The total effective sentence was therefore one of six years imprisonment, with a minimum term of four and a half years and an additional term of one and a half years. 5 There is only one ground of appeal against the convictions, namely that they are unsafe and unsatisfactory. I think, since the appellant appeared unrepresented in this appeal, that that should be taken to mean that the verdicts are unreasonable or cannot be supported having regard to the evidence or should be set aside on the ground of some wrong decision on any question of law or that there was otherwise a miscarriage of justice: s 6 Criminal Appeal Act. 6 The Crown case was that early on the morning of 23 September 1998 Mrs Pamela Dawn Shepherd was working in her retail shop at Wyoming. The business opened at 7.30 am and Mrs Shepherd first served a number of schoolchildren. Then she went outside to place a sign on the footpath, re-entered the shop through the front door and went into a back room to prepare food. She heard a noise, entered the shop and saw a man crouched at the cash register. He was holding a syringe containing a red substance. He told her to get out of the way or she would get AIDS. He ran away. Mrs Shepherd watched him as he did so and then returned to the shop. She discovered that the cash float of about $85 was missing from the till. She described to the police the clothing the man was wearing, including that he had on a black balaclava, and was wearing sunglasses and black mittens. 7 Mrs Shepherd described the man as five foot ten or five foot eleven tall and stocky in build. She said that he ran as though jogging normally, slowly up the street. 8 At the same time, Mrs Susan Joy Madden was seated in her car in the street near Mrs Shepherd's shop. There was a bus stop nearby and she noticed a man sitting whom she had seen a number of times before. Although at the time she had not seen him for three or four weeks, she had seen him frequently walking in the street, probably once or twice a week. She thought that he looked suspicious, and that might explain why she continued to watch him. He was holding something under one of his arms. He was wearing tracksuit pants and had orange hair. He went into Mrs Shepherd's shop a couple of seconds after she re-entered it after putting out the sign. Soon afterwards she saw him running from the shop. She described the direction in which he ran, and it corresponded with the description of the direction given by Mrs Shepherd. She said that the build of the man was solid and that he ran pretty fast. She could not remember his clothing at that time. 9 She went to the police station and was shown the faces of fourteen people on video tape. She picked out one of them as that of the man she had seen entering Mrs Shepherd's shop and running away and as she did so she said, "I'm pretty sure it's number thirteen". 10 Mrs Joan Whinnem lived nearby and had known the appellant for about six years. When called to give evidence she displayed an obvious reluctance to answer questions and in due course the Crown was given leave, pursuant to s 38 Evidence Act to cross-examine her. She claimed to be unable to remember much at all about the events with which the trial was concerned, other than that the appellant was living at her house on 23 September 1998 and that she had signed as true a statement made at the police station on 4 October 1998. 11 In the statement she had told the police that she had had a conversation with the appellant on the morning of 23 September 1998 in which he had asked her for a balaclava and gloves. She had told him that she only had a hood with an open face and gardening gloves. She said that he was wearing track pants and a sloppy joe. He had left her house between a quarter to eight and a quarter past eight but had returned after ten or fifteen minutes out of breath. He had changed his clothes. He had given her a $50 note. He had then got dressed and changed his appearance, apparently in order to attend a job interview. 12 Mrs Whinnem was shown two gloves and told the jury that she recognised the darker one and had its opposite number at home but did not recognise the other. The other was described as a "calico coloured lighter coloured" glove. 13 Detective Senior Constable Fitzsimons gave evidence about showing the video tape images to Mrs Madden and said that the two gloves which were shown to Mrs Whinnem had been handed by her to another police officer, presumably when she made her statement. 14 The appellant gave evidence. He said that he was the man Mrs Madden had seen sitting at the bus stop. However, he had not followed Mrs Shepherd into her shop but had gone to a public telephone near the shop in order to telephone his mother, and then to a nearby newsagency to buy cigarettes. He said that although he had lived at Mrs Whinnem's house on occasions he was not living there at the time. However, he had visited her house on that morning because he was a user of heroin and she was his supplier. He was "hanging out". He had only $55 and had tried to obtain a $100 deal of heroin, partly on credit. Mrs Whinnem had not been interested, so he had decided to telephone his mother to ask her to supply money. She was living at Woy Woy and he hoped that she would drive over and give him money, as she had done on previous occasions. Unfortunately she refused. He had to use a public telephone to do this because Mrs Whinnem's phone could be used to receive calls but not to make them. He denied entering Mrs Shepherd's shop, assaulting her or stealing her money. 15 Mrs Whinnem denied supplying the appellant with drugs but agreed that her telephone could be used only to receive calls. 16 There was a good deal of consistency in the evidence of the principal Crown witnesses, Mrs Shepherd and Mrs Madden. However, it became clear at the trial and in the appeal that a conviction of the appellant could not be justified unless the jury were and were entitled to be satisfied beyond reasonable doubt about the reliability of Mrs Madden's identification of the accused as the man who went into Mrs Shepherd's shop. 17 In writing and orally the appellant made a number of submissions about asserted inconsistencies between the evidence of the Crown witnesses, particularly Mrs Shepherd and Mrs Madden. It was submitted that Mrs Shepherd said that the man ran out of the shop wearing a balaclava and that he was wearing it as he ran away, whereas Mrs Madden said that she had seen the man run from the shop without the balaclava. This submission misstates or misunderstands the evidence. Whilst Mrs Shepherd described the man as wearing a balaclava during the time she saw him in the shop, she was not asked and did not say whether he was wearing it as he ran away. Mrs Madden said that she did not get a look at the clothing the man was wearing as she saw him running away. When asked whether she noticed any head wear or headgear, she said that she did not. 18 I do not think that the two accounts are inconsistent. They both permit a conclusion that the thief wore a balaclava during the time that he was in the shop but not before he entered it or after he left it. 19 The next submission was that whereas Mrs Shepherd said that the man was wearing black woollen mittens, Mrs Whinnem gave the police a pair of near-white garden gloves. 20 There is an obvious discrepancy between these two pieces of evidence. However, whereas there is nothing in the transcript that suggests that Mrs Shepherd was other than an honest witness, the jury had considerable reason to doubt the reliability of Mrs Whinnem's evidence. I have already mentioned the leave the Crown obtained to cross-examine her. Experienced counsel made no objection to the grant of that leave, and no point has been taken about it on appeal. 21 Secondly, it was not a critical part of the Crown case that any glove handed to the police by Mrs Whinnem was used by the appellant in the theft. In the result, I do not think that the inconsistency was one that ought to have caused the jury to have reasonable doubt about the identification of the accused as the man who went into Mrs Shepherd's shop. 22 The next submission was that Mrs Whinnem gave evidence that the accused handed her a $50 note, whereas Mrs Shepherd's evidence was that the float that was taken from her till comprised a number of $20, $10 and $5 notes. 23 In my opinion there was no necessary inconsistency between the two pieces of evidence. Mrs Shepherd had already served a number of customers before she was robbed and a $50 note could have come into the till by that means. In any event Mrs Whinnem was such an unreliable witness that her assertion about the $50 note ought not to have troubled the jury if they thought that there was any inconsistency in the evidence. 24 The next submission was that Mrs Madden had made two statements to the police, saying in the first that she heard about the robbery over the radio while driving in her car and in the second that she had seen it all happen. 25 It is obviously possible for both things to have happened and there is no inconsistency between the statements. 26 The next submission was that Mrs Shepherd said that the man was stocky in build (and I might add that Mrs Madden described him as solid), whereas at the time the appellant was thin and weighed only sixty-three kilograms. Mrs Shepherd also said that the man had a deep voice, whereas the appellant does not have a deep voice. 27 The Court has seen the appellant, of course, and the estimate of the height of the man at five feet ten or five feet eleven inches is consistent with the appellant's having been the man. The only evidence that he was of thin build, however, came from the appellant himself. Mrs Whinnem was not asked about it. The verdicts of the jury show that they disbelieved the appellant in important respects, and there seems no reason why they should have accepted his evidence about his weight and build in September 1998. 28 The assertion that Mrs Shepherd said that the man had a deep voice mistakes the evidence. In fact she said that he spoke in a gruff voice. The Court heard the appellant's voice during submissions and in my opinion it would not be correct to say that he was incapable of speaking in a gruff voice. 29 Finally, the appellant submitted that his barrister had withheld important evidence from the court of trial and the court of sentence. 30 It is difficult to evaluate that submission, since no further particulars were given of the kind of material that the appellant thought might be put before the Court. However, a reading of the transcript shows that the appellant was represented at trial and on sentence by a junior counsel who has had long experience in the conduct of criminal trials. The defence appears to have been competently conducted. The appellant has not put before the Court any evidence from the barrister who represented him. 31 In the circumstances I do not think that it has been established that the conduct of counsel was such that the appellant ought not to be bound by the consequences of the decisions his counsel made during the trial. Rondel v Worsley [1969] 1 AC 191; R v Birks (1990) 19 NSWLR 677. 32 The trial judge gave the jury appropriate directions, particularly about the crucial issue of identification. He gave appropriate warnings about the risks attending the reliance by a jury on evidence of identification. Not surprisingly, no complaint was made about the directions. 33 It seems to me that the jury were entitled to accept the reliability of Mrs Madden's identification of the appellant from the video tape. I think that the evidence was sufficient to found a safe conviction on each of the charges. I do not think that it can be said that the verdicts are unreasonable or cannot be supported having regard to the evidence or should be set aside on the ground of a wrong decision on any question of law or that there was otherwise any miscarriage of justice. I would dismiss the appeal against convictions. 34 The offences of which the appellant pleaded guilty may be summarised as follows. On 19 December 1998 he broke into a house at Bolton Point and stole jewellery, electrical goods and the like, which he sold. He used the proceeds to buy heroin. None of the property has been recovered. 35 On 19 December 1998 he broke into a house at Fennell Bay and stole goods, none of which have been recovered. He sold them to buy heroin. 36 On 19 December 1998 he broke into a car and stole a wallet and other items. Not all the property was recovered. 37 On 20 December 1998 he broke into a unit at Woy Woy, the home of his sister-in-law. None of the property stolen has been recovered. 38 On 2 January 1999 he broke into a house in East Gosford. All the stolen property was recovered. 39 The offence that his Honour was asked to take into account under the provisions of s 21 Criminal Procedure Act 1986 was the self-administration of heroin on 23 April 1999. 40 The appellant was thirty-one years old at the time of sentence, a widower whose wife had died in January 1999. There were five children of the marriage, who were being cared for by a grandparent. 41 The appellant had a serious criminal record. His Honour observed that it was the kind generally associated with those who abuse illegal drugs. The appellant had been convicted thirty-four times for various kinds of offences, ten of which had involved prohibited drugs. Others involved stealing or other dishonesty. The appellant had never been previously sentenced to a period of full-time custody and had been given every opportunity to rehabilitate himself. In December 1996 he was given the benefit of a two-year recognisance to be of good behaviour. Two of the subject offences were committed in breach of that recognisance. He had received two further recognisances, one in December 1997 and the other in August 1998, and all offences were committed in breach of those recognisances. In August 1998 he was given the benefit of a community service order and all the offences were committed in breach of the terms of that order. 42 Such was the seriousness of the offences that his Honour had no alternative but to impose periods of full-time custody. However, the appellant submitted some of the individual sentences and the overall sentence were manifestly excessive. 43 The first submission was that this was the appellant's first time in gaol. That was so, but his Honour was well aware of the fact and of the appellant's long criminal record, the majority of which related directly or indirectly to his abuse of the drug to which he was addicted. In view of the repeated breaches of the recognisances and of the community service order his Honour was in my opinion entitled to conclude that, lesser measures having failed to achieve the rehabilitation of the appellant, a substantial gaol term was necessary. 44 Then it was submitted that his Honour proceeded without the benefit of a pre-sentence report. I do not think that this caused the proceedings to miscarry. The appellant's counsel on sentence did not request such a report, perhaps accepting the inevitability of a substantial gaol term. 45 Then the appellant submitted that his Honour failed to take into account the hardship which resulted from the appellant's being sent to prison and the death of his de facto wife, leaving their five children without parental care. In fact the appellant's mother gave evidence, the effect of which was that the children were cared for from time to time by their paternal and maternal grandmothers. No claim was made by the appellant's mother of any hardship such as is now said to exist. In any event, it seems that a gaol term was inevitable. 46 Then it was submitted that the appellant had pleaded guilty to all charges other than the two of which he was convicted by the jury. His Honour was well aware of the fact and took into account all matters submitted in mitigation. However, his Honour concluded that there was very little that could be said in the appellant's favour. The appellant's record and the material put forward on sentence were such as to justify that conclusion, in my opinion. 47 Then it was submitted that the appellant's offences were due to a drug habit. His Honour was well aware of that fact also, but that fact did not entitle the appellant to lenient treatment. 48 In his written submissions the appellant referred to a number of respects in which he has made progress during his imprisonment and it may be said that the sentences imposed are already beginning to have the good effects his Honour no doubt hoped they would have. However, such matters may not be taken into account in an appeal against sentence to this Court. 49 It seems to me that individually and collectively the sentences were well justified. I would grant leave to appeal against sentence but would dismiss the appeal. 50 There is one further matter. During the appellant's remand awaiting trial and sentence he was granted bail on condition that he reside at the William Booth Institute, a residential drug rehabilitation programme. According to the written submissions of the appellant, he left the programme twice, first because he badly wanted to be with his family. I think that that must have been close to the time when his wife died. He says that he returned to the programme, but left it a second time because his eldest daughter told him that she did not want to see him again. He felt constrained to go home to try to foster his relations with his family. He said that the officials at the William Booth Institute said that he could go back there if given the chance. 51 In his oral submission the appellant asked the Court to do anything it could to enable him to re-enter the William Booth Institute programme. 52 The only other material bearing upon this question is a report of the Probation and Parole Service made on 13 August 1999. The report states that the appellant entered the William Booth Institute programme on 6 July 1999 and transferred to the institute's facility at Miracle Haven on 27 July 1999. He was discharged from the programme on 6 August 1999 for substance abuse. 53 Accordingly, the reasons why the appellant left the rehabilitation programme are the subject of some contention, and it does not seem possible or desirable for this Court to attempt to resolve the differences. Since the appellant is serving a number of custodial sentences it is for the officers of the Department of Corrective Services to see to his rehabilitation, including offering him participation in drug and other rehabilitation programmes in gaol. It is heartening that he appears now to have ceased using heroin and to have decided never to use it again, and no doubt he will receive benefit from participation in programmes conducted by the Department. 54 KIRBY J: I agree with Barr J. **********