New South Wales Court of Criminal Appeal CITATION: SPURLING v REGINA EVERUSS v REGINA [2006] NSWCCA 245 HEARING DATE(S): 5 June 2006 JUDGMENT DATE: 11 August 2006 JUDGMENT OF: McClellan CJ at CL at 1; Johnson J at 56; Latham J at 57 DECISION: 1. Both appeals dismissed; 2. Leave to appeal against sentence is granted in each case but the appeals are dismissed. CATCHWORDS: CRIMINAL LAW - criminal procedure - detention after arrest - interviewing a vulnerable person - whether accused was a vulnerable person by reason of mental impairment - duties of custody managers - EVIDENCE - lies - consciousness of guilt - admissibility and use against co-accused - SENTENCING - parity - where co-accused receives heavier sentence than principal due to prior criminal record - whether sentences for each offender were manifestly excessive Crimes Act 1900 (NSW) Pt 10A LEGISLATION CITED: Crimes (Detention After Arrest) Regulation 1998 r 5, Sch 1 Criminal Appeal Act 1912 Crimes (Sentencing Procedure) Act 1999 R v Bright [2000] NSWCCA 258 R v Cook [2004] NSWCCA 52 CASES CITED: R v Henry & Ors (1999) 46 NSWLR 346 R v Phung and Huynh [2001] NSWSC 115 R v Veen [No 2] 1988 164 CLR 465 Webb & Hay v The Queen (1994) 181 CLR 41 Travis Leigh Spurling (Appl) PARTIES: Michael John Everuss (Appl) The Crown FILE NUMBER(S): CCA 2006/436; 2006/435 D Dalton (Spurling) COUNSEL: A Francis (Everuss) J Dwyer (Crown) Legal Aid Commission of NSW (Spurling) SOLICITORS: Legal Aid Commission of NSW (Everuss) Director of Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/61/0198 LOWER COURT JUDICIAL OFFICER: Shadbolt DCJ LOWER COURT DATE OF DECISION: 13 May 2005 IN THE COURT OF CRIMINAL APPEAL 2006/435 2006/436 McCLELLAN CJ at CL JOHNSON J LATHAM J FRIDAY 11 AUGUST 2006 EVERUSS, Michael John v REGINA SPURLING, Travis Leigh v REGINA Judgment 1 McCLELLAN CJ at CL: Travis Spurling and Michael Everuss were jointly tried and convicted of one count of robbery in company contrary to s 97(1) of the Crimes Act 1900. Spurling was sentenced to a term of imprisonment of four years with a non-parole period of two and a half years to date from 17 March 2005 and to expire on 16 September 2007. Everuss, who was identified as the principal, was sentenced to a term of imprisonment of three years with a non-parole period of eighteen months to date from 17 March 2005 and to expire on 16 September 2006. Relevant factual matters 2 When sentencing the trial judge summarised the relevant facts in the following terms: "The circumstances giving rise to these convictions were about 10.00 pm on Monday 5 January 2004 Mr Wayne Williams was working in his backyard. He gave evidence that Spurling and Everuss walked into his driveway and demanded money. The victim knew both men. He was grabbed by Everuss and hit. Spurling was standing near a trailer in the driveway. Everuss and he fought around the house to a fence and he ran back down the driveway to escape. Spurling pushed him backwards. He said: 'I only have ten dollars' and proffered his wallet. It was taken and both men left. He went to the hospital that evening and went to the police to complain the following day. On that day he was handed a wallet by a plumber who had seen it on the front lawn. It was the defence of Spurling that Williams was biased against him as a result of a fight which they had had and there had been, prior to this, some agreement as to Spurling [although it is agreed that his Honour meant Everuss] agisting dogs for Williams. Spurling was to deny the robbery but to admit his presence. He maintained he had gone to Williams house to inform him that he, Spurling, [should read: with Everuss who was going to inform the victim, that he, Everuss], had nothing to do with the break entering and stealing that occurred at the victim's house. It was the case for Everuss that whilst present at the house on that evening and time, he had gone to the house solely to talk to Williams about the break entering and stealing for which he felt he was being unjustly blamed, a conversation made impossible because Williams attacked him. Both men deny demanding money, taking money, or disposing of the wallet." 3 Spurling had given a record of interview which was tendered at the trial. Objection was taken that the record should not be admitted because Spurling was a "vulnerable person" and there had been a failure to comply with Pt 10A of the Crimes Act 1900 (NSW) and with the regulations made pursuant to that Act contained in the Crimes (Detention After Arrest) Regulation 1998. 4 Spurling gave evidence on the voir dire in which he indicated that he had suffered attention deficit hyperactivity disorder (ADHD) since he was eight years old. He was 23 at the time of the interview. He indicated that he had received prescribed medication for the disorder until he was 18 years old and had thereafter self medicated by the use of amphetamines. The interview was conducted by Snr Const Hall, who was not called at the trial, The following exchange occurred: "Q. All right. How old are you, Travis? A. 24. 23 turning 24. Q. No offence Travis. Do you have, do you have learning difficulties or anything like that? A. Yes, sir. Q. Your father's out the front? A. I think he still is. Q. Would you, would you like your father present in this interview or you feel comfortable by yourself? A. No, if I can, please. Q. Interview suspended at 10.45 am Senior Constable leaves the room. Travis, I'll just let you know that this is, this is still operating, this video and audio. A. Yes, sir Q. O.K. I'm going to leave the room and I'm going to duck down and see if your dad's there. A. Yes, sir Q. And if your dad's there, I'll bring him up and he can sit, sit with us, and then I'll go through a few more formalities and introduce your father, and your father can sit right over there. A. Yes, sir. Q. Your father is only an observer only. A. Yes, sir. Q. And is to say nothing and you're not to say anything to him. A. Yes, sir. Q. Do you understand that? A. I understand that, sir. Q. O.K. Senior Constable Hall leaves the room. INTERVIEW SUSPENDED INTERVIEW RESUMED SENIOR CONSTABLE HALL Q. Senior Constable Hall enters the room at 10.52 am, daylight savings time. Travis, I've just asked your dad to come up here and sit in the interview, like I explained. A. Yes, sir. Q. O.K Mr Spurling, I just want to explain to you on video that you're here for a support role only, O.K. I'll be asking Travis some questions, but you're an observer only. Do you understand that?" 5 The appellant gave evidence that he knew the officer from prior interviews which explained how the officer knew he had learning difficulties. His father was brought into the room as an informal support person although the appellant was not given the opportunity to speak with him at that time. Spurling was cross-examined to the effect that he understood his rights regarding a support person from previous interviews. He also accepted that his rights were explained to him by reference to the document entitled "Caution and Summary Part 10A of the Crimes Act" which both he and his father signed. 6 The custody manager, Sgt Holland gave evidence. One of Sgt Holland's responsibilities as custody manager was to ascertain whether Spurling was a vulnerable person, and he asked Spurling a number of questions in relation to this issue before he was interviewed by Const Hall. Sgt Holland indicated that he did not form the opinion the appellant was a vulnerable person notwithstanding the information Spurling gave him about his ADHD. Sgt Holland was not aware that Const Hall stopped the interview and invited Spurling's father into the room. Sgt Holland said he had explained to Spurling's father his rights and responsibilities as a support person (although not in the terms of the support person for a vulnerable person) and had told him that he was only there as an observer and he could not say anything during the interview and was not to provide legal advice. 7 During the argument on the voir dire his Honour indicated that he was of the view that a person suffering ADHD was not a vulnerable person within the meaning of regulation 5(1) of the Crimes (Detention After Arrest) Regulation 1998 being "(b) persons who have impaired intellectual functioning." At that point counsel for Spurling asked for an adjournment so that he could obtain expert evidence on the question. His Honour declined the application. First ground of appeal by Spurling (i) His Honour erred in admitting the appellant's record of interview; and/or (ii) His Honour erred in predetermining an application for an adjournment to obtain expert evidence regarding the appellant's Attention Deficit Hyperactivity Disorder (ADHD). 8 Regulation 5 of the Crimes (Detention After Arrest) Regulation 1998 is in the following terms: "(1) A person who falls within any of the following categories (referred to in this Regulation as categories of vulnerability ) is a vulnerable person for the purposes of this Regulation: (a) children, (b) persons who have impaired intellectual functioning, (c) persons who have impaired physical functioning, (d) persons who are Aboriginal persons or Torres Strait Islanders, (e) persons who are of non-English speaking background. (2) Pursuant to section 356A of the Act, the application of Part 10A of the Act to vulnerable persons is modified by the provisions of Parts 4 and 5 of this Regulation. (3) However, the requirements of this Regulation with respect to a detained person who is in a particular category of vulnerability do not apply if the custody manager believes on reasonable grounds that the person is not in that category of vulnerability. (4) Further, the requirements of this Regulation with respect to persons who have impaired physical functioning do not apply if the custody manager believes on reasonable grounds that the nature or extent of the impairment is so minor that the person will not be disadvantaged by it to any significant extent with respect to their participation in any investigative procedure (in comparison with members of the community generally). (5) If a detained person falls within more than one category of vulnerability, the requirements of this Regulation with respect to each of those categories must be satisfied in respect of the person." 9 Accordingly, it was for the custody manager to determine whether or not Spurling was a vulnerable person. That decision had to be made having regard to the Guidelines for custody managers contained in Schedule 1 of the Regulations which indicate that when considering whether a person is vulnerable by reason of impaired intellectual functioning custody managers should have regard to whether the person appears: "(a) to have difficulty understanding questions and instructions; or (b) to respond inappropriately or inconsistently to questions; or (c) to have a short attention span; or … (g) to have an inability to understand the caution." 10 The appellant submitted that applying the appropriate analysis the custody manager should have concluded that Spurling was a vulnerable person. This submission is founded upon the fact that Spurling told the officer that he had previously been treated for ADHD. It is submitted that the custody manager should have asked whether the lack of present treatment for ADHD was because his condition was under control or whether he still had the condition and a lack of treatment caused him to be more vulnerable than if he was being properly treated. 11 It is submitted the need for concern on the custody manager's part is highlighted by Snr Const Hall's questions shortly thereafter, which demonstrated that a simple enquiry regarding his intellectual functioning would have revealed that the appellant suffered learning difficulties. 12 As I have indicated the decision as to whether or not Spurling was a vulnerable person was required under the regulation to be made by the custody manager. Once made the obligation under the regulation had been discharged. The custody officer interviewed Spurling for a considerable period of time and certainly sufficient time to enable him to form a judgment about whether or not Spurling was able to respond in the manner contemplated by the Guidelines. To my mind the officer did not err when he was informed of Spurling's ADHD condition particularly in light of the fact that he was informed that he was no longer being treated. The decision being one for the custody manager his Honour was only required to determine whether the decision which was made was reasonably open to him. In my opinion his Honour was correct to find that the custody officer's decision was appropriate. 13 This Court has had the opportunity to observe the video of Spurling's interview. The trial judge had the same advantage. Observation of the video indicates that Spurling had no difficulty in understanding the questions he was asked, or making an appropriate response during the interview. There was no suggestion that he did not understand the caution administered to him. 14 My conclusion in this matter in no way diminishes the significance of the remarks by Wood CJ at CL said in R v Phung and Huynh [2001] NSWSC 115 at [39]. However, there is nothing to suggest in the present case that the officer did not do other than carry out an appropriately thorough examination of Spurling's relevant capacities before determining that he was not a vulnerable person. 15 As I have indicated, once the decision had been made, the obligations under the Regulation had been fulfilled. The offer by Snr Const Hall for Spurling to have his father present was an act of grace. There is nothing to suggest that notwithstanding Spurling's acknowledgment that he had learning difficulties "or anything like that" it was inappropriate for the interview to continue. As I have indicated whatever those difficulties may be they are not reflected in the interview. 16 I do not believe his Honour erred by rejecting the application of counsel for an adjournment to obtain expert evidence regarding Spurling's ADHD. Although counsel may have been recently briefed the trial had been fixed for a considerable period of time and, if expert evidence was proposed or thought necessary, arrangements should have been made before the commencement of the proceedings. 17 In any event for the reasons I have already indicated I do not believe that the evidence would have been material to the resolution of the matter. A decision as to whether or not Spurling was a vulnerable person had to be made by the custody officer having regard to the material available to him. It was that decision which the court could review. 18 Application was made to tender the evidence of Dr Taylor on this appeal. Dr Taylor is a clinical forensic psychologist, not a psychiatrist, and proffers an opinion in the nature of an assessment of the process of interview conducted with Spurling having regard to the relevant regulation. He carries out an assessment of the ERISP. 19 Dr Taylor offers the opinion that Spurling is a vulnerable person because of an intellectual impairment. This opinion is based upon his assessment of Spurling's IQ. It is not based upon the fact that Spurling has suffered from ADHD although he says this condition may have the effect of placing Spurling's IQ at the lower end of the assessed range. 20 In my view the report from Mr Taylor should be rejected. Apart from limited reference to the assessment of Spurling's IQ and reference to ADHD the report is in effect a submission advocating a particular conclusion which the trial judge, in Mr Taylor's opinion, should have determined. Even if it were now appropriate to admit expert evidence, and I do not think it is, the report of Mr Taylor is so infected by argument that I would give it little if any weight. 21 It is important to appreciate that the Regulation is required to be administered by the custody manager in the course of an investigation carried out within the ordinary duties of the police. The decision which the custody manager must make is not expected to be informed by the views of a clinical forensic psychologist or undertaken after conducting an IQ test or some other psychological or psychiatric examination of a person being interviewed. It is a decision which the custody manager is required to make after forming an assessment in discussion with the person being interviewed. There is no suggestion, even in the material from Mr Taylor, that the fact that Spurling had suffered from ADHD, but was no longer being treated, impaired his capacity so that he should have been considered a vulnerable person. The officer was required to form an opinion in relation to the apparent capacity of Spurling. Having regard to the observations available from the ERISP I am satisfied, if it be a matter for this Court, that the conclusion which the custody manager reached was appropriate. Ground 2 (Spurling): His Honour erred in failing to discharge the jury or at least juror 59 as a result of the juror indicating that she knew the appellant's fiancée/de facto wife 22 During the trial the judge received a note from the foreperson of the jury which read: "Juror 59 has former knowledge of two persons mentioned in the evidence yesterday. (1) Laura Green, is known to me through my work as a youth worker, she was under my supervision at the local youth refuge when she was 15 or 16. She was accommodated periodically during these years. This was about 5 years ago. (2) Anthony Davis – is possibly another youth also supported by myself and other workers. I am not certain if this is the same person. Anthony received intermittent support from 12 years old to 17 years. My last contact with him was about 2 years ago." 23 The appeal is concerned with the juror's knowledge of Laura Green. The evidence revealed that Laura Green had been the girl friend and fiancée/de facto wife of Spurling. As a result of the note the Crown Prosecutor made application that his Honour ask the juror whether the juror's knowledge of those persons would affect her decision-making process. Counsel for Spurling applied for a discharge of the jury. His Honour refused both applications. 24 Laura Green was not called as a witness in the proceedings. It was submitted that his Honour in determining this issue only considered the matter in terms of the suggested animosity between Spurling and the victim because the victim had slept with Laura Green. His Honour found that if the jury accepted that there was such a disagreement they would determine that Williams may have a bias against Spurling and accordingly reason to lie in order to inculpate him in the matter. Accordingly, his Honour accepted that any adverse view of Laura Green would only enhance the likelihood of the juror forming that view. Any contrary view would merely leave the matter in a neutral position. Accordingly, his Honour concluded that the matter was so remote that it was inappropriate to discharge the jury. 25 Having made this determination his Honour instructed the juror in the presence of the jury that he was of the view that these matters were so remote it would not interfere with the juror arriving at a proper verdict and that the juror should put the knowledge to one side and decide the matter upon the evidence at the trial. 26 In my opinion his Honour's decision was correct. That decision was reinforced by the direction that the juror should put the matter to one side and decide upon the evidence at the trial. The juror's knowledge related to Ms Green some five years earlier and there was no suggestion that she had any more recent knowledge or that she had any knowledge as to the circumstances of the offence. The juror knew Ms Green purely in a professional capacity. In my opinion there could be no apprehension of lack of impartiality in a fair minded and informed observer: (see R v Bright [2000] NSWCCA 258 and Webb & Hay v The Queen (1994) 181 CLR 41. Ground 2 (Everuss); Ground 3 (Spurling) – His Honour erred in failing to direct the jury regarding lies To this ground Everuss adds a ground "that the joint trial gave rise to a miscarriage of justice in the circumstances of the case." 27 The events which give rise to this ground of appeal derive from the fact that during his evidence Spurling changed his account of relevant events from that which he gave in his record of interview. In his evidence he said that he had made a mistake in his record of interview when on a number of occasions he said Everuss went to the victim's premises to discuss a $20 debt, as opposed to going there to clarify a suggestion that the co-appellant was responsible for breaking into the victim's premises. When cross-examined he admitted that he had lied to the police regarding how they came to be walking past the victim's house and that he did not know why he told police that Everuss went there regarding a $20 debt. 28 The Crown Prosecutor ultimately addressed the jury in these terms: "You see Travis Spurling has also lied and he admitted that he lied to the police. And you can take that on board as evidence of a guilty mind." 29 His Honour in the summing-up made the following remarks: "The Crown relies not only on Williams but also on the records of interview of these two men for several of the matters that they have to prove. Each of them admits his presence, each of them admits their presence together, each of them admits that there was an altercation in which blows were struck and the Crown says that you would not believe Spurling's evidence before you that he told lies for no good reason to the police. … He said to his own counsel that he does not know why he told the police officers investigating this matter that Everuss went there to collect twenty dollars which was owing to him. … He was then cross-examined by the Crown and you will recollect the Crown cross-examined him about these statements which he made to police officers from which he has resiled and on four occasions he had mentioned this presumed debt of twenty dollars and he had, he said, no idea why he told the police that. The Crown put to him that 'all of the evidence put before you had been nothing more than a fabrication in order to accommodate the record of interview of Everuss' but he says he has never discussed the matter with Everuss. … That you would also take into consideration that what was told to police officers by Spurling was perhaps a little closer to the truth than what he told you. There was a demand for money. That is what they had gone around there for. That is what he told the police. But he had had nothing to do with it. He was merely an innocent bystander but he has moved from that story, the Crown would say. No longer the innocent bystander, he and Everuss together are innocent of making any demand of money on Mr Williams. The Crown says that such a fundamental shift would leave you not believing Spurling's evidence." 30 In these circumstances the appellants submitted that the trial judge was required to inquire of the prosecutor which lies were relied on as a consciousness of guilt and determine whether this submission could be sustained (R v Cook [2004] NSWCCA 52) and, if it could, give appropriate directions. 31 It is submitted that the manner in which Spurling's lies were left to the jury intrinsically implicated Everuss as they related to assertions by Spurling in his record of interview that Everuss went to see the victim regarding a $20 debt. Accordingly, it is submitted that it is important to Everuss that the jury were properly instructed regarding Spurling's lies and further that they could not be used against Everuss upon any basis including credibility or consciousness of guilt. It is submitted that a failure to deal with these matters has led to the miscarriage of the trial of Everuss when tried jointly with Spurling. 32 The issue was not raised at the trial and leave is required. I would decline that leave. 33 I have set out above some of the directions which his Honour gave in relation to these matters. His Honour was also careful to instruct the jury that the evidence of what each appellant said to police officers was evidence only against that particular appellant. The two records of interview were required to be separated out. Although Everuss now suggests that Spurling's record of interview at least as to the parts on which he was cross-examined was admissible against him this was not the basis upon which the trial judge left the matter with the jury. In relation to the evidence given in court the accounts of the appellants could both be considered. Of this evidence his Honour said: "In this case the Crown says that the words which Dale heard, 'Come on out Wayne we want to speak to you,' those words were said to be spoken by Everuss but it really does not matter who spoke them if indeed they were spoken because they will be attributed to both, but what they each individually said to police officers when the matter was at an end, that is evidence only against them each. So as it were those two records of interview which you have seen on the television screen have to be separated out one to Everuss and one to Spurling, but the evidence which they have given in this Court is evidence in the case itself and you may look to that evidence and perhaps as it were take apart from one piece of evidence and compare it with the other evidence which was given by the other accused. So the only two matters which you have to separate out are the two records of interview." 34 It was ultimately accepted by Everuss' counsel that in the first paragraph of the passage from the summing up to which I have referred in paragraph 29 the trial judge was merely summarising the Crown case. So much is plain from the directions which follow that detail the defence position. However, complaint is made that at this point his Honour did not return to his remarks made earlier in the summing up which told the jury that the impact of lies was confined to the issue of credit. 35 Complaint is also made in relation to the trial judge's remarks later in the summing up where his Honour said of Spurling's evidence: "He was cross-examined by Mr Ginges for Everuss, particularly in relation to his intention to leave Lithgow and the need for Spurling, who lived with him, to find other accommodation. Further he said that Dale Green was not there but Donna Chandler was. He was then cross-examined by the Crown and you will recollect the Crown cross-examined him about these statements which he made to police officers from which he has resiled and on four occasions he had mentioned this presumed debt of twenty dollars and he had, he said, no idea why he told the police that. The Crown put to him that 'all of the evidence put before you has been nothing more than a fabrication in order to accommodate the record of interview of Everuss' but he says he has never discussed the matter with Everuss." 36 Further: "That you would also take into consideration but what was told to police officers by Spurling was perhaps a little closer to the truth than what he told you. There was a demand for money. That is what they had gone around there for. That is what he told the police. But he had had nothing to do with it. He was merely an innocent bystander but he has moved from that story, the Crown would say. No longer the innocent bystander, he and Everuss together are innocent of making any demand of money on Mr Williams. The Crown says that such a fundamental shift would leave you not believing Spurling's evidence and you would have, having watched Everuss giving evidence, watched his demeanour, you would be able to place no reliance whatsoever on his evidence." 37 I am not persuaded that the directions given by the trial judge reveal error. His Honour's direction, explained and repeated, at an early stage of the directions was firm in confining the admitted fact that Spurling lied to matters of credit. These remarks were made before his Honour gave consideration to the evidence and the respective cases made by the Crown and the appellants. His Honour was also careful to confine the use of Spurling's statement. No injustice was occasioned by the fact that no additional direction in relation to Spurling's statement was given. 38 It is significant that in this case no complaint was made by counsel at the trial. This cannot have been through inadvertence. The question of lies would plainly have been anticipated before the trial and was not obscured during the trial itself. Neither would incompetence in trial counsel provide a satisfactory explanation. Having drawn attention to the lies but then confined them to matters of credit, any further directions from his Honour could only have served to highlight the lies. There was a real risk that by repetition the submission would have been given undue emphasis. The fact that there was no application from counsel for a further direction confirms that they were content for the issue to be left in the way in which his Honour had confined it. 39 Everuss argued that because he was tried jointly with Spurling the complications by Spurling's apparent lies meant that Everuss' trial miscarried. It will be apparent that I do not accept this submission. A joint trial was obviously appropriate and protected, as I have discussed, by appropriate directions from the trial judge. No injustice was occasioned. Ground 4 – Spurling: His Honour erred in failing to direct the jury they could not consider the co-appellant's record of interview when considering the case against that appellant. 40 This ground was also originally advanced by Everuss but was abandoned at the hearing. Complaint is made by Spurling that although his Honour correctly directed the jury that they could not consider the record of interview of one appellant when considering the case against the other his Honour left the following Crown submission uncorrected saying: "The Crown put to him that – all of the evidence put before you has been nothing more than a fabrication in order to accommodate the record of interview of Everuss but he says he has never discussed the matter with Everuss." 41 Spurling acknowledged that his Honour did direct the jury that they could not use the record of interview of one accused when considering the case against the other. The statement about which complaint is made came later in the context of his Honour's general overview and summary of the evidence. It is a reference to Everuss' evidence and reflects a summary of his Honour's understanding of the thrust of the Crown's cross-examination. However, it does not to my mind invite the jury to use the record of interview of one appellant impermissibly against the other. To my mind the earlier direction was not diluted by these later remarks. No point was taken by counsel at the trial which confirms that counsel did not discern a difficulty having regard to the complete summing up. 42 I would refuse leave to raise this point. The proviso 43 It is apparent that in my opinion no error has occurred. If I was of a different view it would be necessary to consider the proviso (s 6(1) of the Criminal Appeal Act 1912). A careful reading of the evidence of Williams indicates a coherent account of the relevant events. Both his credibility and reliability were not significantly diminished and he was supported by Dale Green who saw both appellants chasing the victim down the backyard. By contrast the credibility of Spurling was seriously compromised and his evidence at the trial was of little value. I have set out below the Crown's summary of the relevant evidence. "The appellant Spurling gave evidence in his case. Incidentally, a reading of the transcript suggests that he had no difficulty understanding the questions he was asked and answering them with appropriate responses. In effect the evidence he gave was different to the version he told police in his recorded interview as to the demand for $20 by Everuss. He said in response to cross-examination by the Crown that he did not know why he had mentioned the demand for $20 at least four times during the interview, and said that what he had told the police in that respect was untrue. This change to his version of events brought his evidence into line with that of Everuss, who denied demanding any money at all from Williams and denied taking $10 from his wallet. However, to his detriment, it also brought his credibility into issue. He said that Dale Green had shown them where Williams lived on the night in question. Dale Green denied this in cross-examination. Consistently with his interview, he denied touching, blocking or pushing Mr Williams and he denied seeing Everuss taking the wallet from Williams. Consistently with his interview, he claimed that Williams struck the first blow and Everuss retaliated in self defence. The appellant Everuss gave evidence in his case. He denied demanding money from Williams and said that there was no conversation about money at all. He said he went there to try to tell Williams information about who had broken into his house about a month earlier. He said Williams hit him first and he defended himself, resulting in a scuffle that took both men around to the back of the house. During that time he did not see where Spurling or Donna Chandler were. He said he did not raise his voice and he was calm. However, when asked earlier in cross-examination to state the reason he went to Williams house he said: 'To confront, to, yeah 20 Lockyer Street you said sorry? … Yes to speak to Wayne Williams in regards to the break and enters that I was being accused of.' Then when he was asked about his use of the word 'confront' he said 'to speak to him' … 'to discuss the situation.' Donna Chandler was the girlfriend of Everuss and was present during the incident. She gave evidence broadly supporting Everuss' version of events. However, in the end her evidence did not assist the defence case when, in cross-examination by the Crown Prosecutor, she was referred to a portion of the statement she gave to the police in which she stated that Everuss was pushing Williams and they ended up halfway down the driveway, and Everuss had 'pushed Wayne with force and a metal pipe attached to the house has fallen down.' She said that she did not remember saying that. In addition, she had a criminal record that included matters of dishonesty and some of her convictions were put to her in cross-examination, as a result of which her credibility would have suffered some damage. 44 In my opinion this was a strong Crown case. If it had been necessary I would have applied the proviso. 45 Both appellants made application to appeal against their sentence. Ground 5: (Spurling) given the sentence imposed upon the co-appellant the appellant has a justified sense of grievance in accordance with parity principles 46 Although his Honour found that Everuss played the more significant part in the robbery he imposed the more significant sentence on Spurling. The justification for this sentence was Spurling's prior criminal history which denied him any leniency and required his Honour to impose a sentence which recognised Spurling's continuing disobedience of the law (R v Veen [No 2] 1988 164 CLR 465 at 472). 47 Spurling's antecedents included two offences of armed robbery, one robbery and one offence of being armed with intent to commit an indictable offence, as well as other offences the most serious of which was that of assaulting a police officer in the execution of duty. He had previously received sentences for the above offences comprising a minimum term of 1 year 2 months that commenced on 5 May 1999 and expired on 4 July 2000 and an additional term of 2 years 9 months that commenced on 5 July 2000 and expired on 4 April 2003. 48 A report from W John Taylor a clinical forensic psychologist was tendered in evidence. He reported that the applicant had a border-line level of intellectual ability, and that there was no indication that the applicant experiences any thought process or thought content disturbance. The applicant was assessed as having a moderate likelihood of recidivism. His Honour reflected the psychiatric material in the finding which he made of special circumstances. 49 The applicant was on bail at the time of the offence in relation to two charges of break, enter and steal in respect of which he was charged on 15 December 2003 (about 3 weeks before the subject offence) but not sentenced until 25 March 2004. However, his Honour did not mention this fact when sentencing but could have done so and recognised it as an aggravating feature having regard to s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999. 50 In my opinion Spurling does not have a justifiable sense of grievance. Although Everuss played the more significant part in the robbery his criminal record is far less significant than Spurling's. Everuss has convictions for a number of minor offences, many of which were dealt with in the Children's Court. Of greater significance is the fact that he has no prior convictions for robbery or offences involving violence. 51 The applicant was sentenced to a non-parole period that was 12 months longer than that of Everuss and a total sentence that was 12 months longer. However, the serious nature of Spurling's prior offences including offences committed when he was armed and the fact that he was on bail at the time required a more significant sentence than that imposed on Everuss. Ground 6 (Spurling) and Ground 4 (Everuss): In all the circumstances the sentence imposed on each of the applicants was excessive. 52 The Crown submitted that the guideline judgment in R v Henry & Ors (1999) 46 NSWLR 346 provides guidance as to the appropriate sentence in these matters, although that decision relates to offences where there is a plea of guilty. The guideline in Henry provided for a total sentence within a narrow sentencing range of 4 to 5 years. However, the circumstances of the present case have a number of significant differences from that in Henry: · there was no plea of guilty; · the applicants were not young. Everuss was 43 and Spurling was 24 at the time of the offence; · both applicants had reasonably extensive criminal records, and that of Spurling contained 4 serious offences of a similar nature; · there was actual violence, although there was no weapon. 53 In these circumstances I am satisfied that a sentence of a total of 4 years for Spurling was not excessive and a sentence of a total of 3 years for Everuss was also not excessive. In my opinion, having regard to the objective seriousness of the offence when regard is had to the subjective features of each applicant the sentences imposed were at the lower end of the available range. 54 Although I would grant leave to appeal against sentence I would dismiss both of those appeals. 55 In my opinion the following orders should be made: 1. Both appeals are dismissed. 2. Leave to appeal against sentence is granted in each case but the appeals are dismissed. 56 JOHNSON J: I agree with McClellan CJ at CL. 57 LATHAM J: I agree with McClellan CJ at CL. 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.