MIFSUD, Michael Charles v R [2009] NSWCCA 313

New South Wales Court of Criminal Appeal

CITATION: MIFSUD, Michael Charles v R [2009] NSWCCA 313

HEARING DATE(S): 14 December 2009

JUDGMENT DATE: 22 December 2009

JUDGMENT OF: McClellan CJatCL at 1; Simpson J at 2; Hidden J at 54

DECISION: (i) Appeal allowed; (ii) Conviction quashed; (iii) A new trial be held.

CATCHWORDS: CRIMINAL LAW – particular offences – property offences – robbery in company – CRIMINAL LAW – appeal against conviction – leave sought to appeal against sentence – application of R v King [2004] – alternative verdict of larceny available on the evidence – failure to leave alternative – appeal allowed – conviction quashed – new trial ordered

CATEGORY: Principal judgment

CASES CITED : R v King [2004] NSWCCA 20; (2004) 59 NSWLR 515

PARTIES: Michael Charles MIFSUD (Applicant) Regina (Respondent)

FILE NUMBER(S): CCA 2008/17917

COUNSEL: S Flood (Applicant) F Veltro (Respondent)

SOLICITORS: Criminal & Traffic Law (Applicant) S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/11/1171

LOWER COURT JUDICIAL OFFICER: McGuire ADCJ

LOWER COURT DATE OF DECISION: 2 June 2009

IN THE COURT OF CRIMINAL APPEAL 2008/17917

McCLELLAN CJ at CL SIMPSON J HIDDEN J

22 December 2009 Michael Charles MIFSUD v R Judgment 1 McCLELLAN CJ at CL: I agree with Simpson J. 2 SIMPSON J: On 14 April 2009 the appellant was indicted on a charge of robbery in company. He entered a plea of guilty and a jury was empanelled. On 17 April the jury returned a verdict of guilty. On 2 June 2009 the appellant was sentenced to a term of imprisonment of 4 years and 9 months, made up of a non-parole period of 2 years and 9 months, commencing on 5 March 2009 and expiring on 4 December 2011, with a balance of term of 2 years, expiring on 4 December 2013. 3 The appellant now appeals against the conviction and seeks leave to appeal against the sentence. 4 The grounds of appeal against conviction were originally pleaded as: "(1) His Honour misdirected the jury by not leaving open the possible alternative verdict of larceny in answer to the jury question on this point viz. ' To find guilt, is it necessary for the violence to have been for the purpose of robbery, that is, if the violence occurred for some other reason and the taking of the wallet was simply opportunistic, does that constitute robbery in company? '