New South Wales Court of Criminal Appeal CITATION : Regina v Russell [2003] NSWCCA 279 HEARING DATE(S) : 17 September 2003 JUDGMENT DATE : 1 October 2003 JUDGMENT OF : Hidden J at 1; Greg James J at 2; Smart AJ at 3 DECISION : (1) Appeal against conviction dismissed (2) Leave to appeal against sentence granted. Appeal against sentence allowed. Sentence quashed. (3) In lieu of the sentence imposed, the appellant is sentenced to 6 years imprisonment to date from 9 May 2002 and expiring on 8 May 2008, with a non-parole period of 3 years commencing 9 May 2002 and ending 8 May 2005. CATCHWORDS : Armed robbery - evidence sufficient to support conviction - forceful and adequate warnings as to possibly unreliable evidence - no miscarriage - fresh evidence and adverse publicity grounds rejected - mistake in sentencing exercise - offender convicted of lesser offence LEGISLATION CITED : Crimes Act 1900 CASES CITED : R v Henry (1999) 46 NSWLR 346 PARTIES : Regina v Glen Mark Russell FILE NUMBER(S) : CCA 60331/02 COUNSEL : (A) In Person (C) Mr D Arnott SOLICITORS : (A) In Person (C) S E O'Connor LOWER COURT District Court JURISDICTION : LOWER COURT 01/71/0095 FILE NUMBER(S) : LOWER COURT Morgan DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60331/2002 HIDDEN J GREG JAMES J SMART AJ Wednesday, 1 October 2003 R v. Glen Mark RUSSELL JUDGMENT 1. HIDDEN J: I agree with Smart AJ. 2. GREG JAMES J: I agree with Smart AJ. 3. SMART AJ: Glen Mark Russell appeals against his conviction of armed robbery with an offensive weapon contrary to s. 97 (1) of Crimes Act 1900. He was acquitted of the more serious charge of aggravated armed robbery, that is, being armed with a dangerous weapon, namely a sawn-off firearm and whilst being in company with Warren Harvey Stanton. Mr Russell also seeks leave to appeal against his sentence of seven years imprisonment with a non parole period of 4 years. Stanton who was jointly tried with the appellant was found not guilty of both the principal charge under s. 97 (2) and the statutory alternative under s. 97(1). The evidence against Stanton was weaker than that against the appellant. At the trial it was not disputed that there had been an armed robbery. The issues were whether the appellant was one of the robbers and whether Stanton was one of the robbers. 4. The appellant complained that the quality of the evidence against him was poor and insufficient to justify his conviction. Thus the verdict was unreasonable and could not be supported on the evidence. There had been a miscarriage of justice. The appellant also complained that pre-trial publicity had prevented him obtaining a fair trial, in Wagga and that his legal advisors had not carried out his instructions and had not called witnesses to support his case. He now wishes regard to be had to the evidence which he asserts they can give. In his oral submissions the appellant was passionate in his insistence that he was not guilty of any offence. The Crown Case 5. About 7pm on Saturday 28 August 1999 Mrs J. E. Carroll and her two children were in the residence part of her general store at Laurel Hill, a small hamlet about 15 km from Battow. Her husband was in Sydney. The store which sold groceries, cigarettes and had a liquor outlet, usually closed about 7.00 to 7.30pm. On hearing the bell ring signalling that someone had entered the shop she went into the shop. She was confronted by a man wearing a balaclava and holding a gun standing by the front entrance to the shop. Part of his beard protruded below the balaclava. As the door from her residence into the shop was slammed shut behind her she saw another man with a balaclava holding a red, white and blue carry bag. The man with the bag ordered her to open the till which she did. He scooped the money from the till into the bag. The same man asked for the cigarettes. On their location being indicated that man placed about a dozen packets of cigarettes from a shelf and after that about fifteen bottles of spirits into the striped bag. Mrs Carroll was petrified. Before leaving the robbers rendered the telephone inoperative. 6. On the robbers leaving and Mrs Carroll going to the front door she saw no sign of a vehicle but she heard voices from men walking in the direction of Tumbarumba. After comforting her children for about ten minutes she telephoned the police from the public phone outside the front of her store. 7. In cross examination Mrs Carroll agreed that in her statement to the police made on 2 September 1999 she said, "Earlier in the day I had some suspicious people come into the shop. There were three men who came in a red utility. They came in and asked a lot of questions about how much money he could get out on EFTPOS. Only two men came into the shop, the third stayed out with the car". She agreed that neither of the men who came into the store at that time was the appellant. 8. Richard Webb, who was given an indemnity from prosecution, stated that much of what he had told the police on 26 April 2000 was untrue. He maintained that what he told the police on 13 October 2000 and his evidence were correct. In his evidence Mr Webb said that he, the appellant and Stanton had been drinking together at Stanton's house, their wives and children also being there. In the presence of the appellant's then partner(Irene Pearse) and Stanton's wife (Sharon) the appellant suggested robbing the store and this was discussed. The appellant drove the three men to Laurel Hill in his car, being a dark green Commodore, parking it near a berry farm about half a kilometre from the store. Webb said that he occupied the driver's seat with the appellant and Stanton walking towards the store, carrying a red, white and blue bag and a gun. Upon their return they drove to Stanton's shed and shared the proceeds, Webb receiving $50 and a full bottle of rum. Webb said that Stanton had a beard. 9. The appellant, Irene Pearce, her brother and a man whose first name was Russell stayed with Kim Potter and her partner, Kirk Baines at their house in Tailem Bend, South Australia from mid December 1999 to January 2000. Kim Potter gave evidence that a day or so after the group's arrival the appellant and Baines had been drinking and laughing. Later she asked the appellant what the laughing had been about. He said that Webb and another man had robbed the Laurel Hill store at gunpoint, that they knew that Kevin (Mrs Carroll's husband) was going to be away, that he (the appellant) had worn a balaclava and a big black jacket, that he had a .22 gun ( possibly a shotgun) that he had pointed it at Jan (Mrs Carroll) who was beginning to lock up the shop. The appellant said he yelled at Jan and that he had stolen cigarettes, alcohol and money but that there was not a lot of money. Webb had stayed with the car- the appellant's green Commodore-near the berry farm. The appellant said that he ran back to the car with the bag, which was very heavy, and that as he got into the car the gun had gone off. Potter said that the next morning the appellant showed her and Baines the mark in the car where the bullet had gone in. 10. Baines said that the appellant had stated that he had held up the Laurel Hill store at gunpoint wearing a balaclava, that he had held a gun to Mrs Carroll's head, that he had a .22 sawn off, that he had forced the kids into the back room, and that the appellant had also mentioned ' Yabby and Webby' and that "they were standing outside, or one was left in the car" which was parked by the berry farm. Baines also stated that the appellant said he carried bags back to the car which were pretty heavy and that the appellant showed him the bullet hole behind the left front wheel in the guard of his car. At the committal proceedings Baines had stated that he was not sure from what the appellant had said whether the rifle had discharged at the time of the robbery or some other time. 11. When the police arrested the appellant about 26 April 2000 his car was seen to have "a gouge mark on the front passenger side front panel immediately behind the front wheel". 12. About 31 January 2000, a major argument occurred between Irene Pearse and Potter as a result of which the appellant, Pearse and their family left the home of Baines and Potter and moved to a caravan park just outside Tailem Bend. 13. Daniel Fisher, a friend of the appellant, gave evidence that two or three months prior to May 2000 while visiting him at the caravan park, three incidents happened in relation to a gun. On one occasion the appellant asked him if he wanted to buy a cheap gun for $100. The appellant indicated that the gun was not his. On another occasion the appellant brought a bag from his green Commodore containing a sawn off gun. On a third occasion the appellant retrieved a sawn off gun from inside a mattress and walked out with it tucked under his arm while wearing a big black trench coat which came down to his knees and demonstrated to Fisher how quickly he could pull it out. Fisher said that there was damage to the butt of the gun and something was wrapped around the butt. 14. There was evidence that the appellant lived in the area at the time of the robbery and had an intimate knowledge of the store and the Carroll family. About two years before the robbery he had been a tenant of Mr and Mrs Carroll for a few months at which time he lived in the house beside the shop. 15. When interviewed by the police the appellant said that he had nothing to do with the robbery. The damage to the front passenger side panel occurred about Christmas 1999 when having a few drinks. The incident occurred on a camping trip at a dam. When the police informed the appellant that " people in South Australia" had informed them he had admitted and given them details of the robbery, he said, "Yeah, that was probably just piss-drived talk. I wasn't telling the truth at all, if I even said anything like that, I have been on a bit of bender over there, who knows what I would have fabricated to sound interesting to someone, who knows, but I can tell you right now, I did not go anywhere near the Laurel Hill store…" .The appellant said that there was a berry farm about 2 kms from the store. He denied ever owning a firearm. He stated that he had never seen the store open after 7.00pm. Asked what details he knew of the Laurel Hill armed hold up the appellant said that he only knew what was on the news clip " that there was an armed robbery on the, such a night, just before closing time, or on closing time or something like that and two masked bandits entered the store, took an amount of cash and cigarettes and liquor". As to the quantity of alcohol, cigarettes and money stolen he said, "I wouldn't have a clue at all but I know the place would not be worth robbing anyway". 16. The Crown contrasted the limited knowledge of the offence as recounted by the appellant to the police with the detailed knowledge which the appellant disclosed to Baines and Potter. This included knowledge that "Webby" and "Yabby" were involved , that Mrs Carroll's husband was away at the time, that the 'kids' had been forced into the bedroom, not a lot of money was stolen, a bag was used, the bag was heavy to carry to the car and Webb had stayed with car near the berry farm. The Crown also contrasted the appellant's statement to the police that he had never owned a firearm and his evidence to that effect with his statement to Potter that he had a .22 gun (possibly a shotgun) and had pointed it at Mrs Carroll, his offer to Fisher of a cheap gun and his production on two occasions of a sawn off gun. There was the further aspect of the big black jacket. Appellant's Case 17. The appellant gave evidence that as at August 1999 he did not own a gun and that he at no time went with a gun or accompanied a man with a gun to the Laurel Hill store. He denied any involvement in the robbery of Mrs Carroll or that store. The appellant was employed by the Crozier family's logging company, Olying Pty Limited, from August 1998 until 8 September 1999. He produced records from that company or a related company. His group certificate showed that for the year ended 30 June 1999 he had earned $41, 093 gross and that tax deductions of $11, 026 were made. As at August 1999 he was earning a reasonable income. He said that after paying tax, car expenses and bills he was left with around $400 per week. 18. The appellant said that Webb had a disability and that he helped Webb cut his firewood. The appellant said that as at August 1999 he would describe Stanton as a mate. The appellant and his family had visited Stanton's home and Stanton had visited the appellant's home. The appellant said that he did not own a long or a big black jacket. 19. The appellant said that after September 1999 he started looking for work further afield. In December1999 to January 2000 he and his family stayed with Baines and Potter and their children. During that period there were a few times when he got rather drunk and once or twice when he got so drunk that he could not remember what he said at the time. He had no recollection of speaking about the Laurel Hill robbery or the damage to his car to either Baines or Potter. 20. The appellant said that he met Fisher at the home of Baines and Potter. Fisher visited their home every day. The appellant stated that after he moved to the caravan park he saw Fisher about once or twice per week. Fisher called in and had either coffee or a few beers. The appellant said that he never had a conversation with Fisher about a gun and that he (the appellant) did not have a gun with him. He did not own a black jacket . He never gave Fisher a demonstration of how to pull things out from a coat. 21. At the date of the trial Irene Pearse was no longer his partner. 22. In cross examination the appellant agreed that as at 28 August 1999 he owed Webb $2000, that money having been lent to him by Webb. The appellant said that Webb had offered him help but denied that they has a fairly close relationship. He said that he was not sure Webb was on a disability pension. Webb could have been. Just before Christmas Webb had telephoned him chasing the $2000. The appellant said that Webb had all his (the appellant's) furniture. When the appellant returned from Tailem Bend about the beginning of April 1999 he obtained most of his furniture from Webb who, however, retained some of the appellant's furniture but not $2000 worth. The appellant stated that Webb seemed upset because the appellant had not repaid $2000. 23. The appellant was pressed in cross examination about two of his statements to the police, first " Who knows what I would've fabricated to sound interesting" and secondly , "Yeah, that was probably just piss-drived talk. I wasn't telling the truth at all". The appellant stated that he was a practical joker, that he might have said something, that he did not know and that he had no recollection of telling anyone or ever having taken part in the Laurel Hill store robbery. He did not tell the police that he knew that the words "I robbed the Laurel Hill store" would never come out of his mouth although he maintained that he would never have uttered such words. It was open to the jury to take the view that the appellant had not satisfactorily explained what he had said to Baines, Potter and the police. 24. The Crown put to the appellant that Webb was not a very bright fellow to which the appellant replied that he did not know. The appellant denied that he had taken advantage of Webb when the store was robbed and when $2000 was borrowed. The appellant insisted that he did not have any part in the robbery of the Laurel Hill store. 25. The appellant said that while he went shooting with Stanton on occasions he (the appellant) did not have a weapon. He was loading firewood. 26. The appellant confirmed that he believed Webb was angry because of the money owed to him and had nominated the appellant as the person wearing the black jacket because he (Webb) was trying to give the police the information which they wanted. A little later the appellant said Webb may have done this to get back at him. The appellant said that he assumed that Baines and Potter had an axe to grind because of the argument between Potter and Pearse. The appellant believed that Fisher was lying. 27. The appellant confirmed that in about 1997 when he moved out of the house next to the store, he owed the Carrolls some money. Because of this he had not subsequently entered their shop. 28. The appellant relied on Mrs Carroll not recognising his voice although she knew him. Their last contact prior to the robbery was about 18 months to 2 years previously and the bag man had little to say during the robbery. 29. It was open to the jury to take the view that at times during his evidence, the appellant was being evasive. 30. Irene Pearse gave evidence that as at August 1999 she had been in a relationship with the appellant for 7 years. She did not have a recollection of what the family did on 28 August 1999. Nothing of note had happened during that month. She never heard talk about a robbery in the Stanton family home. She knew Webb and felt sorry for him because he had suffered a broken neck in a car accident and he was unable to do much. She cooked him meals about once a week. The appellant chopped firewood for him. Webb took her "down town" for shopping a couple of times per week. She met Stanton through Webb. The Stanton family had asked them to look after a block of land next to their home. 31. Ms. Pearse said that: (a) She had no recollection of Webb and her family visiting the Stanton residence in August 1999; (b) She never saw Stanton produce a gun at his residence; (c) She never heard the appellant talking about the Laurel Hill store or robbing that store; (d) She never saw Stanton, Webb and the appellant drive away together from the Stanton residence. 32. Pearse said that about the middle of November 1999 the family went fruit picking and eventually ended up at Tailem Bend on 12 December 1999. They were invited by Baines and Potter to stay at their home. The appellant and Baines each drank a lot. She said that she was generally present with the appellant. At no stage did she hear the appellant mention a robbery at Laurel Hill store or demonstrate with a gun. As a result of an argument between her and Potter, the latter called the police. The appellant, Potter and their children left the Baines' house and took up residence in the Tailem Bend caravan park. Pearse said that she met Fisher while at the house of Baines and Potter. After they left that house Fisher visited them at the caravan park. There was never any talk about a gun in her presence. She said that the appellant definitely did not have a gun while they were in South Australia. She said that the appellant did not have a long black coat. She never saw him demonstrating how to pull a gun out from under a coat. 33. Pearse said that she had separated from the appellant and was now in a new relationship. However, relations between them had remained amicable and he visited the children regularly. 34. In cross-examination she said that there was never an occasion when the appellant, Stanton and Webb were together at the Stanton's house. 35. Stanton's evidence did not assist the Crown case against the appellant. He denied being involved in any robbery of the store and he denied obtaining a gun, going out with the appellant and committing a robbery at the Laurel Hill store. In general, his evidence supported that of the appellant. He regarded Webb as a friend. 36. Mrs Sharon Stanton, Stanton's wife, gave evidence that the appellant and his partner were not at her home on 28 August 1999 nor was Richard Webb. At no stage did her husband obtain a gun on that day nor was there any plan to rob the Laurel Hill store. Her evidence also generally supported the appellant's case. 37. Stanton said that in about the first half of 1999 he met Steven Hillier (or Hilder) who was living with Webb and thereafter saw Hillier with Webb on occasions. There was a suggestion that the two robbers who entered the store were Webb and Hillier. Miscarriage of Justice- Unreasonable Verdict 38. The jury had to consider a considerable amount of conflicting evidence. That of the appellant, Irene Pearse, Stanton and Sharon Stanton all pointed to the appellant being not guilty. Webb's evidence was suspect, particularly because on his own evidence he participated in the robbery and had been granted immunity from prosecution. He had told the police lies on 26 April 2000. He had an axe to grind in that the appellant had not repaid Webb $2000. It also seemed that he had been much affected by his accident. As against Stanton the only evidence was that of Webb and the jury were not prepared to convict Stanton on Webb's evidence alone. 39. As the Crown case was one of joint enterprise there was no need for the jury to determine whether the appellant was the man at the front entrance to the store or the man with the striped bag who scooped up the money, the cigarettes and the liquor. Of course, the Crown had to establish that he was one of them. 40. The appellant has written that although he and Mrs Carroll knew each other well she did not identify him as the bag man. She did not recognise either the voice or the eyes of the bag man. Further, he was 6 feet 2 inches tall. She described the men who robbed her as of average build, "5 foot 8, 6 foot". She thought the men were of similar height. However, the man at the doorway was standing on a step which was above the floor level of the store and this could have affected her estimate of height. She said that the man at the door had a beard protruding below his balaclava. She agreed that a better description was "a bit of a beard". It was not very thick. The appellant pointed out that he did not have a beard. He agreed that sometimes he did not shave for some days and had some fluff around his jaw. The appellant submitted that as Mrs Carroll did not recognise him from his voice and eyes and he was taller than 5 feet 8 inches to 6 feet, he was not the bag man. Further, as he did not have a beard he could not have been the robber holding the gun at the front door of the store. The appellant also placed reliance on the visit of the three men in the red utility earlier on 28 August 1999. 41. It was some time since Mrs Carroll had heard the appellant's voice as he had not had contact with her after leaving the house rented from Mr and Mrs Carroll. He had also been away for about six months in Victoria and South Australia. There was little said by the bag man. In these circumstances it is readily understandable that Mrs Carroll would not recognise the voice and eyes of the appellant. The argument as to the beard is not of consequence. She said, and it can readily be accepted, that she was petrified. The appellant's arguments fell to be evaluated by the jury. They lacked substance. As at August 1999 Stanton had a beard. 42. The Crown pointed out that the evidence of Mrs Carroll of what occurred during the robbery was the touchstone by which the evidence of other witnesses, to whom the appellant had allegedly made incriminating remarks could be measured. Her description of the offenders was never central to the Crown case. The summing up reminded the jury of the limited description given by Mrs Carroll and that she could not recognise any voice although she knew the appellant. There is no reason to conclude that the jury did not give consideration to three men in the red utility coming to the store earlier in the day and asking questions about how much money could be obtained via EFTPOS. 43. The appellant launched a major attack on the evidence of Richard Webb contending, in effect, that it was of very poor quality and that Webb lacked credibility. It was submitted that no credence should be given to any of Webb's evidence. In his evidence Webb admitted that in the ERISP of 26 April 2000 he had told the police many lies. Some of the lies were on major matters. They were highlighted in cross examination of him by counsel for the appellant and counsel for Stanton. Webb made a second statement to the police on 13 October 2000 and gave evidence in accordance with it and was granted immunity from prosecution. He was cross examined vigorously and effectively by both counsel demonstrating that he had much to gain and that his evidence was suspect. 44. The judge pointed out to the jury in some detail the lies which Webb had told and the discrepancies in the account which he had given on 26 April 2000 (SU 22-23- Stanton, and SU 49-50-the appellant). She explained how the appellant had returned to the police on 13 October 2000 and made an induced statement. The judge explained the effect of an immunity and that if Webb had not given evidence in accordance with his induced statement he could have been prosecuted for the offence (SU 24). 45. The judge pointed out to the jury those statements of alleged fact which Webb had made for the first time on 13 October 2000(SU 24-25, Stanton and SU 50-52, the appellant). 46. The judge gave the jury a strong warning about the reliability of Webb's evidence when dealing with Stanton's case (SU 26-27). Dealing with the appellant's case the judge after pointing out the lies told by Webb on 26 April 2000 and the discrepancies and what he had said for the first time on 13 October 2000 reminded the jury of the appellant's indebtedness to Webb and Webb not having received the appellant's car as arranged. Webb was admittedly angry with the appellant. The judge left to the jury whether this was a motive for Webb to lie about the appellant's alleged involvement in the robbery. 47. The judge also reminded the jury that Webb's evidence in the committal proceedings in the Local Court was a number of times in various areas of his evidence, "totally different" from the evidence he gave at the trial. 48. The judge reminded the jury of the submission of counsel for the appellant not to accept Webb's evidence of the appellant's involvement in the offence because of Webb's admitted lies, his preparedness to tell lies on oath, his bad character and his anger because of the appellant's non payment of $2000 (SU 54). 49. The judge warned the jury of the evidence of Webb of Russell's involvement in the crime (SU 54). She continued (SU 55-58): "…the courts over the years have accumulated a great deal of experience which indicates that evidence given by such people as Mr Webb may be unreliable. It is a matter for you entirely whether you decide whether Mr Webb's evidence is unreliable and whether you cannot act upon it. It may be that considering the warnings that I give to you about his evidence and being satisfied of the truth and accuracy of Mr Webb's evidence relating to Mr Russell, that you feel that you could safely act upon it, that you may find that scrutinising his evidence with great care you are satisfied of its truth and accuracy and that you feel that you could therefore act upon it. But I warn you again in these sort of cases, there are many reasons why the evidence of such a witness as Mr Webb may be unreliable. It may be that that person wishes to shift the blame from himself to others, perhaps to minimise his role, perhaps to justify his own conduct, and in such a case, a witness may concoct an untruthful story. He may play up the part of the others, and he may, as I have said, even blame innocent people. His participation in the crime may make him less credit-worthy. His participation may cause him to have his own reasons to implicate or to protect other people. And experience has shown that once such a witness as Mr Webb has given a version to the police, he may feel that he is locked into that story and he may be unwilling to tell the truth later. I remind you that the risk that such a witness as Mr Webb-that such a risk is that he has told an untrue story and that may be certainly a greater risk when that witness, as Mr Webb has, has received immunity from prosecution. As I told you, I repeat, a person who receives immunity from prosecution receives that on the understanding that they will give evidence in accordance with the statement which goes to the Attorney General or his representatives to decide whether immunity will be granted, and a person who is granted immunity must give evidence in accordance with the statement upon which immunity is granted, and if that person does not give evidence in accordance with that statement, indeed does not give evidence against the person whom he names as being involved in the offence, there is every likelihood that that immunity will be removed and that person may well be charged or prosecuted in relation to the role that person took in the offence of which he is giving evidence. So there is a very strong reason why someone who has been granted immunity based on an induced statement continues to give evidence in accordance with that statement, so therefore that would indeed constitute , as I say, an inducement to continue with the account that he may well have been locked into. Accordingly, you must scrutinise with great care the evidence given by Mr Webb because you must be satisfied his evidence is true and reliable before you can act upon it, and indeed when you are considering his evidence as it relates to Mr Russell and Mr Russell's involvement in the case, you must be satisfied beyond reasonable doubt of its truth before you could convict on his evidence. Again I remind you that he has admitted that he is a person of bad character because he participated in the way in which he said in this robbery, that he was prepared to sign a document saying what he had told the police was true when he admits that what he told the police on 26 April consisted of a lot of lies. He agreed that he was prepared to tell lies on oath because of a document that he had signed that he would give evidence in accordance with the interview on 26 April, and he has agreed that he has tried to minimise his role and to deflect responsibility onto others. So those are matters, ladies and gentlemen, relating to Mr Webb when you are considering his evidence, and whether it is even worthwhile considering it is a matter entirely for you." 50. That is a very strong warning. The acquittal of Stanton where the Crown case depended on the evidence of Webb and there was no supporting evidence from Baines, Potter and Fisher illustrates that the jury acted on the judge's warning as to Webb's evidence. 51. Webb gave evidence that it was about one kilometre from the appellant's house to Stanton's house (T 52). Webb said that they arrived at Stanton's house at dark (T 50) at about 6.30, 6.40pm (T 57). He had two beers there. It was roughly a 20 minute drive, perhaps not that from Stanton's house to where the car was parked near the berry farm. The appellant pointed out that dark fell at 6.40pm according to the official records, that it was about 15-20 minutes drive from either his house or Stanton's house and that the car was allegedly parked some 500 metres from the store. The appellant seems to be suggesting that such a timetable was too tight bearing in mind that the robbery took place about 7pm. The appellant allies with this a submission that Webb's related evidence was not credible, that is, that out of the blue he (the appellant) said in front of Irene, "Let's go rob the Laurel Hill shop", a gun was produced and that they all jumped in his car and left for the store. The appellant also suggested that the assertion that he divided the haul and that Webb's share was $50 and a bottle of rum was incredible. In summary, the appellant submitted that Webb's account was unbelievable. These matters were forcefully brought to the jury's attention in Webb's cross examination and in the summing up. The jury may well have thought little of the time argument and that in broad outline Webb's account was correct. The jury may also have thought that a man with Webb's disability was likely to remain in the car and not be one of the men entering the store. 52. At SU 51 reference was made to Webb having told the police on 13 October 2000 that the appellant recounted after the robbery that he had jumped the counter. Mrs Carroll said that no offender jumped the counter. Webb was relating what the appellant had stated. The jury may have thought that " jumping the counter" was embellishment by the appellant. Reference was also made to Webb not being able to describe the gun allegedly used and that the question by one of the robbers, "Where are the cigarettes kept?" did not suggest a person familiar with the inside of the store ( See SU 25, 48). 53. The appellant was critical of the evidence of Baines and Potter and relied on a number of alleged inconsistencies and discrepancies in their evidence. The appellant complained that Baines could not remember the exact words of the conversation in which the appellant allegedly said that he had robbed the Laurel Hill store by jumping the counter and holding a gun to Mrs Carroll's head, demanding money from the till, grabbed the cigarettes and the spirits and left. Baines appeared to remember only this part of the conversation. However, it was a memorable piece of conversation. Potter was also criticised for not being able to remember the exact words of the conversation. The portion she remembered was also memorable. Few, if any, witnesses can recall a conversation verbatim especially after some months. The most that can be expected is that the witness will give the gist of the conversation. 54. Although not sure of the time this conversation occurred Baines thought it occurred in the late morning. He said that it occurred during a drinking session of bourbon/rum and continued into the evening. Potter stated that a few hours after she heard the appellant and Baines laughing she enquired about the subject of their laughter and the appellant told her about the robbery. She estimated that this occurred in the evening after she had bathed and fed the children. Potter did not recall when the conversation between Baines and the appellant took place. It was the gist of the conversations which was important. It is unlikely that any tribunal of fact would be troubled by any discrepancies as to the times of the conversations especially when they happened some months earlier. 55. Baines said that he was the only one shown the bullet hole in the car whereas Potter said she was shown it. She believed that Baines was present when she was shown the bullet hole( described as a dent in the car in places). This discrepancy is not of consequence. 56. The appellant relied strongly on the conflict between Potter and Renaee Shaw. They had been friends for many years when they both lived in the Battow area. When Potter moved to South Australia they kept in regular telephone contact. Shaw said that at the end of August/early September 1999 the Laurel Hill store robbery was a hot topic of conversation in the Battow-Tumbarumba area and she spoke to Potter about it on the telephone relatively soon after the robbery and quite some time before December 1999. At Christmas time Potter visited Shaw and stayed overnight. Shaw said that Potter stated that a person, Glen had told something to Baines who had then told her. Potter did not recall saying this to Shaw. This passage appears in Shaw's evidence: " Q: Ms Potter did not say to you that she had heard something directly from this person, Glen, did she? A: No I don't think so". 57. In summing-up the judge pointed up the conflict between the evidence of Ms. Shaw and that of Potter that Russell had made admissions as to the robbery. The judge gave this warning (SU 66): "…I must warn you again that you must scrutinise Miss Potter's evidence very carefully before you act upon it. She has given evidence of what might be called admissions by Mr Russell. She cannot give the exact words of what was said, she can only give her recollection of the effect of what she recalls. She said indeed that nothing had ever been put in writing, she made no notes about it and the very first time she ever had anything put in writing was in March of the year, some three months or so after the alleged conversation. So again you must scrutinise her evidence very, very carefully before you accept what she said as being true and reliable". 58. The judge summarised and discussed the evidence of Baines. She warned the jury about his evidence stating at SU 69: "… Again I should warn you, ladies and gentlemen, that the evidence from Mr Baines should be approached with caution because it again may be unreliable. Mr Baines is unable to give exact words that were used. He can only give a recollection which he said is not a good recollection of what was said. He agrees that it was not in writing, no notes were kept, and again it is a matter that I should warn you about. Again it is not a view that I take of his evidence, it is a matter of law that I must give you that direction because of the way in which he said these apparent admissions were made when drinking had been going on for some time. There was a possibility-probability even of being affected by alcohol at the time of hearing these alleged admissions. You must therefore be satisfied of its truth and reliability before you can act upon it". 59. The appellant highlighted that Webb, Baines and Potter chatted outside Holbrook Local Court before giving evidence at the committal proceedings, suggesting that it was a "get your story straight" session. This was denied by the witnesses. The appellant maintained that the "black jacket" was a product of a collusive false story. This was a matter of fact to be decided by the jury. 60. It was submitted that the evidence of Daniel Fisher was incorrect and unsatisfactory. Mr Fisher said that he was experiencing memory problems for some time prior to the date he made his statement to the police on 13 May 2000 as a result of drug use but it did not cause him to make anything up. The judge warned the jury about his evidence (SU 61): "…I should warn you that with respect to that evidence of Mr Fisher, because of his admitted problems with his memory, it may be that his evidence is unreliable. Again I give you this warning because I must do so as a matter of law. I do not give you this warning because of any view I have of Mr Fisher's evidence, but you should approach and scrutinise his evidence very carefully before you act upon it because of his admissions that he has made to you that his memory at that time was somewhat impaired. You must be therefore satisfied of its truth and reliability before you can act upon it". This warning was forceful and adequate. 61. The appellant submitted that in his Court room demonstration Fisher used his right hand when pulling the gun out from under his coat. The appellant contended that he was left handed. The transcript does not reveal whether the appellant's contentions are accurate; the matter was not raised with Fisher. The appellant did not give evidence on the point. The matter is not one of consequence. The importance of Fisher's evidence was that the appellant had a gun and a sawn off rifle. The appellant denied ever having had a gun. 62. The appellant claims that Fisher told him and Pearse that Baines wanted to shoot him for taking Baines' dope plants and that Webb rang Baines and Potter looking for his $2000 and the appellant and was threatening to fix him. 63. It was the appellant's contention that Webb, Baines and Potter were motivated by revenge and that that was why each had made a statement and given evidence against him. These matters were not raised in these terms with Fisher, Baines or Webb in cross-examination. 64. From the vigorous and effective cross examinations and the strong directions given by the judge the jury was made acutely aware of the problems in the Crown evidence, the discrepancies and the possible ulterior motives of the various witnesses, especially, Webb, Baines and Potter. Much would have depended on the assessment by the jury of each of those witnesses and of Fisher. Mrs. Carroll's evidence was not challenged but she could not identify the robbers. It was also noteworthy that Baines and Potter recalled the appellant telling them of features of the robbery which were reflected in Mrs Carroll's evidence. The account allegedly given by the appellant to Baines and Potter contained differences which could be described as embellishments. On the evidence adduced and notwithstanding its weaknesses it was reasonably open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. It is difficult for this Court to express a different view, not having seen and heard the witnesses. Neither the appellant's statements to the police in the ERISP nor his evidence wholly assisted him. There were difficulties with parts of them. Allowing for the advantages possessed by the jury and considering and examining the whole of the evidence I do not have a reasonable doubt as to the accused's guilt. Fresh Evidence 65. The appellant intimated that he wished to call fresh evidence. He contended that on the night of the robbery Webb had driven his green Commodore to Tumut and returned on Sunday 29 August 2003 around lunch time. It was suggested that Webb and his friends in Tumut used the appellant's car in the robbery. No evidence has been adduced by affidavit or otherwise in support of those contentions. 66. The appellant maintained that he and Irene Pearse had a telephone conversation with Kylie Pearse after 7pm on the night of the robbery. It was suggested that he said that he wanted more alcohol but had no way of obtaining it due to Webb having his Commodore. Evidence along those lines would not preclude the appellant participating in the robbery. No affidavit from Kylie Pearse was produced. 67. It appears that the legal representatives for the appellant at the trial were of the view that the evidence now foreshadowed should not be called. There are good reasons for that view. Both the appellant and Irene Pearse claimed that they could not remember what they were doing on the evening of the robbery. No case has been established for the calling of fresh or new evidence. Adverse Publicity 68. The appellant submitted that he could not obtain a fair trial because of the adverse publicity he had received. He produced a prominent and colourful article printed in the Daily Advertiser (Wagga) on 31 August 1999. He also produced a prominent article in the Daily Advertiser shortly after the appellant was charged and granted conditional bail. That contained an assertion by the police prosecutor that the appellant had boasted that he was holding the firearm during the robbery. It recounted the police opposition to bail as the "police were concerned for the safety of witnesses and Russell's previous criminal history". The appellant stated that there was other adverse publicity in The Daily Advertiser and in the papers of surrounding towns. The appellant also relied on publicity about June 2000 of two armed hold-ups involving hotels in the Battow-Tumut area. 69. The trial took place in May 2002. The judge directed the jury that they were required to determine all relevant issues of fact according to the evidence presented during the trial, that is, what had been said by the witnesses they had seen and heard and the various exhibits. The judge also said that that was the only material upon which they should arrive at their conclusions. 70. Because of the lapse of time any application for a change of venue was doomed to failure. Further the direction which the judge gave to the jury to decide the case only upon the evidence would have ensured that the adverse publicity, in the unlikely event that it was remembered, would be disregarded. See also a similar direction in the judge's opening remarks (T 12 of 30/4/02).There is no substance in the complaint of an unfair trial due to adverse publicity. 71. The appeal against conviction should be dismissed. Sentence 72. The Crown pointed out that the judge had sentenced the appellant for the more serious offence under s.97(2) of the Crimes Act whereas the jury had acquitted him of this offence and found him guilty of an offence under s. 97(1). She stated the maximum penalty as 25 years whereas for the offence of which the appellant was found guilty it was 20 years. It is a pity that the legal representatives of the Crown and the appellant did not draw the judge's attention to the correct position. 73. The judge regarded Henry as being of assistance even though she incorrectly regarded the subject offence as being more serious. She found that the appellant was immature and that his immaturity was exemplified by the way in which he exaggerated and bragged about his involvement in the robbery. She thought that that may well have been exacerbated because of the amount of alcohol he was drinking. She found that he evinced an extraordinary naivety and stupidity in involving himself in the offence. She noted that he was aged 24 at the time of he offence. She continued : "…he has little or no criminal history. There was a limited degree of planning. There was no actual violence but a real threat of it. Ms Carroll was in a vulnerable position. There was a small amount taken". 74. She noted that there was no plea of guilty and that in Henry there was a late plea of guilty. 75. The judge found that the appellant was a family man who had been gainfully employed for most of his adult life. His employers spoke highly of him. He was a good worker with a good attitude to his work and his employer's customers. He was also able to rely on good personal references. 76. The judge found special circumstances because of the appellant age, he had not previously been in custody and he had led a fairly reasonable and law abiding life until the commission of the offence. She also found that the appellant would require extended supervision to assist him in his rehabilitation. I agree that there were special circumstances for the reasons given by the judge. 77. The judge's slip as to the offence of which the appellant had been found guilty and her over-statement of the maximum penalty influenced her approach to sentencing the appellant and her reasons for the sentence which she imposed. R v. Shankley [2003] NSWCCA 253 is a recent example of the importance attached to an appreciation of the correct maximum penalty and the gravity of the offence. 78. The Crown submitted that notwithstanding the defects identified the sentence imposed was correct and that no lesser sentence was warranted in law. The Crown correctly stressed the seriousness of the offence and the need for deterrence. 79. Error has been demonstrated. However, the offence was serious and personal and general deterrence are important. The threat of violence had naturally affected Mrs Carroll. She was in an isolated location and vulnerable. If the appellant had been sentenced for the offence of which he was convicted with the correct maximum penalty borne in mind and regard had to the favourable subjective features of the appellant mentioned earlier as well as the objective gravity of the offence a lesser penalty would have been imposed but one which was still substantial. 80. I propose the following orders: 1. Appeal against conviction dismissed. 2. Leave to appeal against sentence granted. Appeal against sentence allowed. Sentence quashed. 3. In lieu of the sentence imposed, the appellant is sentenced to 6 years imprisonment to date from 9 May 2002 and expiring on 8 May 2008, with a non-parole period of 3 years commencing 9 May 2002 and ending 8 May 2005. The first date on which the appellant will be eligible for release on parole is 9 May 2005. ********** Last Modified: 10/03/2003 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.