Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: HAMED v REGINA [2011] NSWCCA 219 Hearing dates: Wednesday 11 May 2011 Decision date: 30 September 2011 Before: Johnson J at [1] Hall J at [2] Price J at [133] Decision: (1) Appeal against conviction dismissed. (2) Leave to appeal against sentence granted. (3) The appeal against sentence dismissed. Catchwords: CRIMINAL LAW - appeal against conviction - robbery in company - identity of other offenders unknown - applicant not identified during robbery - circumstantial evidence - whether monies stolen were "owned" by the victim - whether verdict unreasonable CRIMINAL LAW - appeal against conviction - circumstantial evidence - DNA evidence - competing DNA evidence - whether verdict unsafe or unreasonable CRIMINAL LAW - appeal against sentence - whether sentence manifestly excessive - whether De Simoni principle contravened - whether trial judge correctly took into account the weapon - trial judge entitled to take into account circumstances of aggravation and to assess objective seriousness Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Cases Cited: CW v R [2011] NSWCCA 45 Flack v R [2011] NSWCCA 167 Ilich v The Queen (1986-1987) 162 CLR 110 Rasic & Ors v R [2009] NSWCCA 202 Raumakita v R [2011] NSWCCA 126 R v De Simoni (1981) 147 CLR 383 R v Dinsdale (2002) 202 CLR 321 R v Li (CCA unreported, 9 July 1997) R v Serratore [1999] NSWCCA 377; (1999) 48 NSWLR 101 SKA v The Queen [2011] HCA 13; (2011) 85 ALJR 571 Category: Principal judgment Parties: GHAZWAN HAMED v REGINA Representation: C: V Lydiard A: G I Foster C: S Kavanagh A: Phillip A Wilkins & Associates File Number(s): 2009/40553 Decision under appeal Date of Decision: 2010-06-10 00:00:00 Before: Ashford DCJ File Number(s): 2009/40553 Judgment 1JOHNSON J: I agree with Hall J. 2HALL J: The appellant by notice of appeal dated 31 January 2011 appeals in respect of a conviction by a jury on one count of robbery in company contrary to the provisions of s.97(1) of the Crimes Act 1900. 3The trial commenced in the Parramatta District Court on 30 November 2009 and continued until 11 December 2009. 4The Crown case alleged that the appellant was a participant in a robbery which occurred at the St Mary's Post Office, St Mary's, Sydney on 13 February 2009 as a result of which an amount of money was stolen. 5The single charge in the indictment was in the following terms:- "On 13 February 2009 at South St Mary's in the State of New South Wales, being in the company of a person whose identity is unknown, did rob Daxa Dilal of property belonging to Australia Post, namely, a sum of cash." 6The Crown case was a circumstantial one. 7Section 97(1) of the Crimes Act is in the following terms:- " 97 Robbery etc or stopping a mail, being armed or in company (1) Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person, robs, or assaults with intent to rob, any person, or stops any mail, or vehicle, railway train, or person conveying a mail, with intent to rob, or search the same, shall be liable to imprisonment for twenty years. " 8In addition to the appeal against his conviction, the appellant seeks leave to appeal against sentence. On 10 June 2010, he was sentenced to a non-parole period of 5 years commencing on 11 May 2009 and expiring on 10 May 2014 with a balance of term of 3 years expiring on 10 May 2017. Facts 9On 13 February 2009, the Post Office at St Mary's was robbed by two people. Both concealed their identity. The Crown case was that one of the robbers entered the store through the front of the premises carrying a firearm. The other robber entered the premises through a side door carrying a knife. Both weapons were used in the course of the robbery to menace customers and staff of the post office in order to obtain money. 10The Crown case was that the second person was the appellant and it is clear that the jury so found. 11Immediately following the robbery, the first robber entered a vehicle which was parked close by to the post office. It was a stolen Holden Apollo and was driven by a third person. The vehicle was driven a short distance to Collins Street, St Mary's where another vehicle, a Holden Commodore, was parked. Number plates stolen earlier that day were attached to the Holden Commodore. 12The identity of the first and third offenders, to which reference has been made, has never been directly ascertained. 13Personal property belonging to the owner of the Holden Apollo had been removed and left near the Holden Commodore prior to the robbery. Inside the Holden Commodore was a bag containing property belonging to the appellant, being a change of clothes, shoes, a set of keys, a mobile phone and a Health Care concession card in his name. There was a second bag in the car with a pair of shoes and a change of clothes. 14Three males were seen by a witness, a Mr Wilson, in the vicinity of the Holden Commodore. One of the men was noted to be trying to break into the car. When the vehicle was later found by police, the Commodore's front passenger window had been smashed. There was a Samurai sword lying beside the car and a knife. The knife was similar in size and shape to the knife shown as being held by the second robber, which, as stated above, the Crown alleged to be the appellant. The knife could be seen on the CCTV footage (Exhibit E). Keys fitting the Holden Commodore were later found by police in a drain behind the car. 15The Holden Apollo was recovered more than a kilometre away in Smith Street, St Marys. The Crown case was that the appellant had left a pink glove and a black balaclava that had been worn during the robbery inside the Holden Apollo. 16A further segment of CCTV footage was shown at the trial. This depicted the appellant being present in a Quix Service Station on the day of the offence not far from the scene of the robbery. 17At no stage during the robbery or immediately after it was the appellant identified as being involved in the robbery. Accordingly, the Crown case at trial was an entirely circumstantial one. Grounds of appeal 18The present appeal was filed on 21 January 2011 by way of Notice of Appeal. The grounds of appeal are as follows:- " As to Conviction 1. The verdict was unreasonable, unsafe unjust or dangerous in that the matter should have been taken away from the jury at the close of the Crown case, because the Crown did not prove the goods were the property of Australia Post as per the indictment; 2. That the verdict was otherwise unreasonable, unsafe unjust or dangerous. As to Sentence 3. That the sentence was manifestly excessive in the circumstances." (1) Ground 1: The verdict was unreasonable, unsafe unjust or dangerous in that the matter should have been taken away from the jury at the close of the Crown case, because the Crown did not prove the goods were the property of Australia Post as per the indictment 19The first ground of appeal raises an issue concerning the ownership of the stolen property (money). It was contended on behalf of the appellant that the Crown did not prove that the money that was stolen was the property of Australia Post in the terms charged in the indictment. The point was raised at the end of the Crown case. 20An application was then made by counsel for the appellant that the matter should be taken away from the jury on the basis that the Crown had failed to prove "the property belonged to Australia Post" (transcript, 9 December 2009, at p.302.35). 21The submission was made, despite the fact that there was evidence from the licensee of the post office, Ms Daxa Dilal, that the money stolen did not belong to her, but belonged to Australia Post. 22In response, the Crown Prosecutor observed that a robbery must amount to a larceny and a larceny is an offence against possession, not an offence against ownership. It was submitted, however, that the evidence of Ms Dilal was very clear, namely, that the stolen money did not belong to her but that it belonged to Australia Post. This was explained upon the basis that a licensee such as Ms Dilal received money on behalf of Australia Post and, at the end of each day, the money went into an Australia Post account and not into her own account. 23Accordingly, the Crown Prosecutor submitted that the element of the offence had been proved, namely, a forcible taking of property from the possession of a person effected by fear or threats by persons in company. 24On 9 December 2009, the trial judge gave judgment in which her Honour stated that there was evidence that the money belonged to Australia Post, rather than belonging to Ms Dilal and, on that basis, the application on behalf of the appellant was refused. 25Ms Dilal's evidence was that she operated the post office under licence from Australia Post as a business for profit. She had conducted the business since 2005. It was operated upon the basis that she purchased stock from Australia Post and from other external dealers. 26Stock received from Australia Post was paid for at the end of the month, following each month's accounting, by direct debit from the abovementioned account operated on behalf of Australia Post. Stock purchased from outside dealers was paid for by cheque. 27Ms Dilal's evidence was that the takings during the course of a trading day were first placed in a drawer with any "surplus" being placed into a time delay safe. Australia Post provided Armaguard as the security company for collection of the money on a daily basis, the amount taken being recorded on Ms Dilal's computer after receipting. The money was then recorded as going into an Australia Post account. 28Additional cash money, when needed, could be obtained from the monies held for the purpose of effecting daily transactions. 29The submissions for the appellant were that, notwithstanding the evidence given by Ms Dilal, it was reasonably clear that the money in the drawer and the safe "... must have belonged to the business" : Appellant's Further Amended Submissions at p.5, paragraph (f). 30It was further contended that the money was collected by Armaguard for "security purposes" and that, prior to the accounting function undertaken at the end of the month, it could not be suggested that money received and held in the drawer or the safe belonged to Australia Post. This submission was made upon the basis that the money could be easily accessed, should the post office need extra cash for operating purposes, such as giving change. 31Accordingly, the submission for the appellant was that the money taken during the course of trading neither belonged to Australia Post nor was held upon any trust for Australia Post. The arrangement was said to be "a normal business arrangement whereupon payments due to Australia Post were made on a monthly basis out of an account into which money had been transferred on a daily basis" : Appellant's Further Amended Written Submissions , at p.6(g). 32The Crown submitted that it was clear that the money taken was in the possession of Ms Dilal and it is also clear that it was money that belonged to Australia Post, but "... as a matter of law, the Crown did not have to prove that ownership beyond reasonable doubt in order to prove the larceny charge" : Crown's Written Submissions at [11]. 33The Crown submitted that Ground 1 should be dismissed. 34On consideration, I do not consider that there was an error in the trial judge's ruling and, accordingly, there is no basis for this Court intervening on the basis of Ground 1. The basis for that conclusion is discussed below. 35Ground 1 is a somewhat ambiguous ground of appeal. On the one hand, it asserts that the matter should have been taken away from the jury at the close of the Crown case. There was an application that the matter be taken away from the jury on the basis of the ownership issue, an application rejected by the trial judge on 9 December 2009 (AB14-15). If this ground of appeal seeks to challenge the ruling that there was a case to answer on this element, the ground raises a question of law alone: R v Serratore [1999] NSWCCA 377; (1999) 48 NSWLR 101 at 130 [127]; Flack v R [2011] NSWCCA 167 at [33]-[34]. 36However, the ground also contends that the verdict was unreasonable with respect to this issue. This aspect of the ground asserts, for the purpose of s.6(1) Criminal Appeal Act 1912 , that the verdict was unreasonable or cannot be supported having regard to the evidence. This aspect of the ground does not involve a question of law alone, so that leave to appeal against conviction is required under s.5(1) Criminal Appeal Act : Rasic & Ors v R [2009] NSWCCA 202 at [12]. 37The test to be applied by the Court in determining an unreasonable verdict ground was summarised recently in the following way in Raumakita v R [2011] NSWCCA 126 at [31]-[34]:- "31 In determining a ground of appeal which asserts, for the purpose of s.6(1) Criminal Appeal Act 1912, that the verdict was unreasonable or cannot be supported having regard to the evidence, this Court is required to apply the test set down in M v The Queen [1994] HCA 63; 181 CLR 487 at 493, and restated in MFA v The Queen [2002] HCA 53; 213 CLR 606. The Court is to make an independent assessment of the evidence, both to its sufficiency and quality. This involves a question of fact. The Court is to determine whether the evidence is such that it was open to a jury to conclude beyond reasonable doubt that the Appellant was guilty. The central question is whether this Court is satisfied that the Appellant is guilty of the offence charged in the first count: Morris v The Queen [1987] HCA 50; 163 CLR 454 at 473; SKA v The Queen [2011] HCA 13; 85 ALJR 571 at 575 [11]-[14], 576-577 [20]-[22]. 32 In exercising that function, the evidence ought not be considered piecemeal: The Queen v Hillier [2007] HCA 13; 228 CLR 618 at 637-638 [46]-[48]; The Queen v Keenan [2009] HCA 1; 236 CLR 397 at 435 [128]. This Court is required to consider the totality of evidence before the jury. This involves an assessment of direct evidence of witnesses, and inferences to be drawn from a combination of events: Rasic v R at [29]. 33 In some cases, the fact that the Court of Criminal Appeal has not seen or heard the witnesses at trial may have a bearing on the outcome of an appeal on an unreasonable verdict ground. In M v The Queen, Mason CJ, Deane, Dawson Toohey JJ said at 494-495:- 'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.' 34 The M v The Queen formulation of the task of this Court has been emphasised by the High Court in later cases: The Queen v Nguyen [2010] HCA 38; 85 ALJR 8 at 14 [33]; SKA v The Queen at 575 [13]." 38The tenor of the written submissions in this Court, and the oral submissions of counsel for the appellant, was that the verdict was unreasonable having regard to the evidence adduced concerning this element. On this approach, Ground 1 should be taken as an unreasonable verdict ground, and not a ground raising a question of law alone by reference to the refusal of the judge to direct a verdict of acquittal at the end of the Crown case. Of course, if the appellant made good his unreasonable verdict submission, the greater would include the lesser and this Court would make appropriate orders. 39Given the issues raised under this ground, leave ought be granted to the appellant to rely upon it: Rasic (supra) at [2], [12]. 40There was evidence adduced at trial as to ownership. That evidence was given by Ms Dilal in cross-examination and no application was made for any of that evidence to be struck out. Additionally, there was no evidence contradicting Ms Dilal's evidence that the money belonged to Australia Post. 41The evidence also made clear that Ms Dilal was operating under licence to Australia Post and the system, including the accounting system that operated, in itself, supported an inference that the relevant "person" who had a claim to an interest in the money was Australia Post, consistently with the evidence given by Ms Dilal. 42In Ilich v The Queen (1986-1987) 162 CLR 110, it was stated (by Wilson and Dawson JJ) that at common law, larceny involves "... the taking of something without the consent of the owner who may, for this purpose, include the person in possession of the thing ..." . 43In the present case, the evidence was that two men entered the premises of Australia Post and took a sum of money from the drawer or till of the premises, there being no suggestion of any assertion of a claim of right or any other entitlement in either of them. 44In determining Ground 1, this Court is to undertake its own independent assessment of the evidence as to whether there was a sufficiency of evidence on the question of the ownership of the stolen property so as to sustain the conviction: SKA v The Queen [2011] HCA 13; (2011) 85 ALJR 571 at 577 per French CJ, Gummow and Kiefel JJ at [20]. In other words, the question raised by Ground 1 requires an independent assessment by this Court of the whole of the evidence so that a determination may be made as to whether the verdict of guilty can be supported: SKA (supra) at [22]. In doing so, the Court is to evaluate and weigh any competing evidence on the question as to the ownership of the stolen money in order to determine whether the verdict of guilty was, as was contended, unreasonable or could not be supported. 45The relevant evidence has been identified above. In circumstances in which there was no evidence that qualified or contradicted the affirmative evidence as to Australia Post's ownership of the stolen money, there is no basis to support the unreasonable verdict ground in Ground 1. 46Accordingly, for the reasons set out above, I am of the opinion that this ground should be dismissed. (2) Ground 2: That the verdict was otherwise unreasonable, unsafe unjust or dangerous 47The central issue at trial was whether the appellant was one of the robbers. That was a question of fact. In those circumstances, the Crown contended that the appellant would require leave to argue this ground: Rasic (supra). 48The Crown opposed leave being granted. 49Initially, the Crown sought leave to file in Court relevant material in relation to a statement made by the appellant to police on 18 March 2010 with respect to matters on which he was convicted at trial. However, the Crown ultimately did not press its application to rely upon this material. Accordingly, it is not necessary for this Court to consider the matter further. 50I return to the question of leave. 51In the submissions for the appellant it was observed that the men who entered the Australia Post premises were never positively identified during or immediately after the robbery as having participated in it or as being occupants of the getaway car. The two persons who entered the post office were wearing facial covering as a disguise. 52It was also noted that the only positive identification evidence concerning the appellant being in the vicinity of the post office came from the Quix Service Station attendant, Mr Nagarzai, who was called by the Crown. He identified a man said to resemble the appellant as being present within a short time after the robbery. 53The appellant was clearly identified on CCTV footage taken at the service station to which I have referred above. It depicted him walking outside the premises and purchasing a phone card inside the premises. It was accepted on behalf of the appellant that the service station was within walking distance of the post office and that the appellant was the person identified in the CCTV footage. 54The aspects of the evidence said to support the appellant's position in relation to this ground were set out in the Further Amended Written Submissions made on his behalf. 55The trial judge, in her summing up to the jury, identified that circumstantial evidence including:- · The appellant's DNA on the pink glove and the balaclava and the comparison with those items being shown on the CCTV footage. · The appellant's personal belongings, which were found in the Holden Commodore, being phone, keys, ID and change of clothes. 56The robbery, as earlier noted, was captured on CCTV (Exhibit E). The person who was alleged to be the appellant was depicted as wearing a blue hooded jacket, pink gloves and was carrying a knife. 57At trial, a series of seven photographs taken from the CCTV footage were tendered and admitted into evidence (Exhibit P). Photograph 4 taken from "Cam 3" showed a blue hooded person wearing pink gloves and carrying a knife. Photographs 6 and 7 showed a man wearing what appeared to be "a balaclava" or some darkened covering over his face. 58Mr McDonald was called by the Crown as a witness after the robbery. His evidence was to the effect that he was able to see the two robbers leave the post office from his position at the adjacent chemist shop. He saw them get into a vehicle which he described as "Holden Apollo, similar to a Toyota Camry" , which was parked in front of his truck. In evidence, he said that what stood out most was "... the pink washing-up gloves" . His evidence was that the person with the gloves was "hooded up" with a "bluey spray jacket, kind of thing" . He said that that person got into the "... back passenger side of the car" . He identified a pink glove in evidence (MFI 3). He said that he had been watching for "close to 1 minute" . 59The pink glove (MFI 3), which became Exhibit AK in the proceedings, was found in the rear of the getaway car, the Holden Apollo. Also found in the rear of the Holden Apollo was a black-coloured nylon fashioned balaclava (Exhibit AL). 60The Crown relied upon expert opinion evidence based on DNA analysis. It also relied upon the evidence of the appellant being seen at about 3.50 pm walking around in the Quix Service Station on Mamre Road and the evidence of Ms Hopkinson to the effect that a person fitting the description of the appellant was in her backyard in Mitchell Street, St Mary's about 3.20 pm on Friday 13 February 2009. He was seen to be carrying a bundle under his arm. Ms Hopkinson said that someone was chasing him. She told him to leave and he ran out of her driveway. She later found a plastic resealable money bag in her backyard which she gave to police (Exhibit R). 61The summing up by the trial judge referred to the evidence to which reference has been made above. No complaint is made in this appeal about the trial judge's directions. 62The appellant gave evidence in relation to certain of the items found. In relation to the "David and Goliath" jacket (Exhibit X), the appellant's evidence was that four or five days before the robbery, a person by the name of "Sam" asked him to go for a drive, which he did and he then returned to Sam's house about two hours later. He said that "Sam" dropped him off at St Mary's, but he forgot his bag which contained the "David and Goliath" jacket and other items. These are the items that were found in the stolen Holden Commodore on the day of the robbery. 63In relation to the pink glove (Exhibit AK) and the black-coloured nylon fashion balaclava (Exhibit AL), which were found at the rear of the getaway vehicle, the Holden Apollo, DNA material on analysis matched the appellant's profile. The appellant's gave evidence as to circumstances he claimed would explain how the DNA material had been deposited on those items. He said that, on the same day as he went for a drive with "Sam" , he went to "Sam's" house and tried on the pink glove and the black balaclava. 64As observed in the Crown's submissions, the real issue for the jury to decide was whether the man seen on the CCTV film with the pink glove, balaclava and the knife and wearing the blue hooded coat was the appellant. 65The appellant always denied that he was one of the robbers. 66He was arrested on 11 May 2009 and interviewed by police which interview was recorded on video. When asked what he had been doing on Friday 13 February 2009, the appellant replied that he had been at a friend's house with his girlfriend when a man called Sam rang and asked him to help him. The appellant's account was that he went to meet Sam near the Quix Service Station on Mamre Road, as Sam had told him that he needed help. He said that he had driven Sam away and Sam gave him $300. Later in the interview, the police told the appellant that he was a suspect in the armed robbery. The appellant then told police that he knew about the robbery but was not prepared to speak on camera, that is, to have any discussion recorded on video. 67The video was turned off and the appellant told police he had been at a friend's place, that he got the call from Sam, but did not pick Sam up. He did get a bag of cash from Sam. His account was that he took the bag of money to Sam's girlfriend's place and met Sam there again there. Sam gave him some money and asked him to go back to the area to look for his gun, and the appellant did go to look for the gun but he could not find it. 68The appellant also told police that Sam had a "hottie" , a stolen car, a white car. The appellant said that he had never been in that car. He did have things in Sam's car, but that they had been left there on another occasion. The appellant also denied that he had been in the Quix Service Station that day, saying he had been in a fight. It was after the interview that the police took a sample for analysis of the appellant's DNA that was used to match the jacket from the Holden Commodore and the balaclava and the glove from the Holden Apollo vehicle. 69There was some dispute at the trial as to what had been said by the appellant after the recorded interview. The two police officers who spoke to the appellant after that interview were Bowers and Mirabito. In evidence, the accused denied that he made statements which the police attributed to him and suggested that their evidence was not consistent with what he actually said to them. Both police officers were cross-examined about how they made their statements in relation to what the appellant said to them. They had made contemporaneous notes of the conversation after the electronic interview had been stopped. 70Detective Senior Constable Bower, in evidence, said that, at the conclusion of the electronically recorded interview, the appellant said "I'll tell you what happened. I just won't do it on record. I won't be a dog" . Detective Bower then said that Detective Senior Constable Mirabito said to the appellant, "Are you going to tell me the truth about what happened, as everything you have said so far doesn't add up" . The appellant replied, "I was at Andy Havich's house. I got a call from Sam" . He then proceeded to recite in detail the appellant's account. 71At the end of it, Detective Senior Constable Mirabito, according to Constable Bower, said "Ghaz, stop lying to me. What you're telling me is not making sense" . The appellant replied, "I wouldn't lie to you. Stan had a hottie. It was a white car. He dropped the gun when he was jumping fences and I went to find it. Someone must have picked it up and not reported it to the police" . 72Detective Senior Constable Mirabito, at the conclusion of the discussion, completed a statement of facts. 73In cross-examination, Detective Senior Constable Bower said that he was taking notes during the "off the record" discussion. He said that immediately after completing his notes, he commenced to prepare his statement of facts including the conversation that took place after the interview. He completed the statement which he signed the following day. 74In her summing up, the trial judge adverted to the fact that the appellant had denied that he had made the statements attributed to him by Detective Senior Constables Bowers and Mirabito and that their evidence was not consistent with what he had actually said to them. The trial judge gave an appropriate direction to the effect that the jury had to be satisfied the police were telling the truth about the interview and what they had recorded. Their evidence clearly, if accepted, was relevant to the appellant's credibility. An inference may be drawn from the verdict returned that the jury accepted the evidence of the police officers. 75The Crown contended that the circumstantial evidence adduced connected the appellant to the robbery. It relied upon the CCTV footage (Exhibit E), the evidence of the lay witnesses who gave evidence as to the events following the robbery including that referred to above, the finding of the pink glove (Exhibit AK) and the balaclava as well as the items belonging to the appellant found in the Holden Commodore. The Crown, in particular, relied upon the results of DNA analysis concerning the jacket, the pink glove, the balaclava and the CCTV image of the appellant at the Quix Service Station. 76It was, the Crown contended, the cumulative effect of the evidence that had to be assessed and, when assessed, the jury's verdict was a reasonable one and available to it on the evidence. 77The trial judge, it was noted, gave the jury an appropriate caution as to the approach to be taken to the abovementioned evidence given by police officers. Appellant's submissions 78On behalf of the appellant, it was submitted:- (1) That the Crown case was "simplistic" and relied on what was referred to as a superficial application of DNA tests. In this respect it was contended, "It is clear the expert was unable to confirm when the DNA was deposited. It is clear that there are a number of potential participants in the robbery, apart from the appellant, including Sam and Individual A" . (2) That the appellant gave a version "... which could be quite true" . That version, it was argued, would have explained how the DNA material came to be deposited and, furthermore, it was a version that the Crown could not disprove. "Sam" did not give evidence, nor did the person whose DNA matched the Individual A profile. (3) At no time did the appellant admit his involvement and denied his involvement. (4) That there are a number of potential participants in the robbery apart from the appellant, "Sam" and "Individual A" referred to in the "Individual A profile" . (5) The DNA testing revealed that another person had (at some time) worn the gloves. (6) That at least two (or more) person's DNA had been present on the balaclava. (7) "Individual A" was described in the expert report of Ms Friedman as a contributor in relation to the balaclava and that person's DNA was also said to have been found on the ski gloves found in the unidentified vehicle (not being the pink glove) and on a black anorak. (8) It must have been possible for "Sam" to have been wearing the pink glove (if that glove had, in fact been worn at the robbery). (9) It was unclear that the pink glove found in the "unidentified" vehicle was actually used in the robbery. (10) The Crown case relied upon the evidence of Mr McDonald as confirming that the pink glove was worn in the robbery. That evidence was asserted to have been weak on the point and the CCTV evidence is unclear as to what glove was worn. 79It was submitted that the jury should have had a reasonable doubt and returned a verdict of not guilty. 80Mr G I Foster of counsel, who appeared on behalf of the appellant, in addressing Ground 2, analysed the evidence in support of the Crown case relied upon to prove that it was the appellant who was a participant in the robbery. Insofar as the Crown case was a circumstantial evidence case, the submissions focussed attention upon what Mr Foster referred to as the "linking process" . This included the following:- (1) The CCTV footage recording of the robbery (Exhibit E). Of the two robbers shown, the Crown case was that the second of them was the appellant. The CCTV footage displayed the two men undertaking the robbery, one wearing particular items (including an item intended to disguise identity) and the other with a darker jacket and what appeared to be a rifle and some ski gloves. (2) The second link was said to be the police locating the Holden Apollo in which various items were located including the pink glove, other gloves and the black balaclava and stocking. (3) A third link was the evidence based upon DNA analysis given by Ms Friedman (Exhibit AU). In that respect, submissions focussed attention on the items being the ski gloves, a black anorak and a "David and Goliath" jumper and a white baseball cap. 81Mr Foster submitted that there was no proof that the balaclava was, in fact, used in the robbery, as the CCTV footage was unclear. It was said that there were a number of witnesses who identified the first robber as wearing the balaclava but whether it was the balaclava in question was in doubt and, assuming that it was, there were other people who had also contributed to the DNA on the balaclava including the individual referred to as "Mr A" who had been identified as having worn a black anorak at some time. 82Mr Foster continued:- "So what our submission is so far ... is... (that) the only linking DNA from my client is found in the balaclava and in the pink gloves found in the Apollo, both of which were worn by other people, unidentified other people, one of whom emerges wearing the gloves and the anorak as well as the black balaclava." 83Mr Foster acknowledged that the Crown case at trial was that it was the appellant who wore the balaclava and that the DNA material found on it was evidence of that fact. Similarly, the Crown case was built upon the proposition that it was the appellant who was wearing the gloves as depicted in the CCTV footage again by reason of the matching DNA material. 84Mr Foster added (transcript 11 May 2011, p.11):- "We say the problem with that sort of analysis is this, it really ignores the possibility, well not the possibility, and what is evident from the finding by the expert that there was somebody else, if not more than one person who wore both items, in particular, individual A who has been shown as having deposited DNA on the balaclava which the Crown asserted was worn by my client during the robbery. The black anorak was also worn which we say can be observed from the CCTV footage, and also the gloves ..." 85Mr Foster then observed that the CCTV footage revealed that there was a person, an unidentified male, who was one of the robbers (unidentified male "A"). It was said that he was shown to have deposited DNA on the black balaclava and it may well have been that it was individual male "A" who wore the black balaclava. 86Mr Foster further submitted (transcript, 11 May 2011, p.11):- "Now, that is either accepted as being the case, or if it is accepted as being a real possibility, then the Crown case which was put to the jury on the basis that it was Mr Hamed who wore the black balaclava and the gloves, robber number 2, we say is significantly weakened." 87Mr Foster contended that an examination of the CCTV footage indicated that there was a person who was not the appellant who had something dark on his face and the contention for the appellant was that that, by reason of "eyeholes" , indicated that that person was wearing a balaclava. The second robber, it was contended, was not wearing any sort of balaclava on his face but perhaps a stocking. 88In the course of oral submissions, Mr Foster acknowledged that there was, however, evidence at trial that the second man seen in the CCTV footage was wearing a balaclava (transcript, 11 May 2011, p.12). Mr Foster also accepted that there was evidence before the jury that the second robber was said to have been wearing a black balaclava as well as pink gloves (transcript, p.12). 89Mr Foster also properly accepted that the rational alternative explanation relied upon by the appellant at trial in answer to the Crown's circumstantial evidence case depended upon the jury accepting him as a witness of truth. On the basis of the verdict returned, the jury clearly did not accept his account. Crown submissions 90On behalf of the Crown it was submitted that, on an assessment of the whole of the evidence, the jury's verdict was a reasonable one and available to it on the evidence. 91The jury had the advantage of seeing and hearing the witnesses. In particular, it had the benefit of assessing the evidence given by the appellant. The directions by the trial judge, it was submitted, emphasised the need for the jury to adopt a proper approach in relation to "reliability issues" in the trial and that no criticism had been made in relation to the trial directions. 92The Crown's written submissions set out in some detail the relevant evidence which supported the Crown case. It is not necessary here to reproduce to any extent the evidence as summarised in those submissions as the central factual matters have been identified above. 93The Crown submissions also set out the relevant principles to be applied in relation to an appeal on the ground that a verdict of a jury is unreasonable or cannot be supported. Those principles, as the Crown observed, were set out in the judgment of Whealy JA in CW v R [2011] NSWCCA 45 at [96] to [98]. In accordance with them, the Crown submitted that, on an assessment of the whole of the evidence, the jury's verdict was a verdict that was both available on the evidence and was a reasonable verdict. 94The Crown, accordingly, submitted (on the assumption that leave were granted) that the appeal against conviction must fail and that the appeal should be dismissed. Consideration 95The central issue is the contention in Ground 2 that the verdict was unreasonable, unsafe, unjust or dangerous was whether the appellant was one of the robbers. 96I have earlier referred in paragraphs [37] and [44] to the principles by which this Court is to assess and determine an unreasonable verdict ground. Accordingly, in relation to Ground 2, this Court is to undertake an independent assessment of the whole of the evidence in order to determine whether the verdict of guilty was supported by the evidence. 97It was contended that the only DNA evidence that linked the appellant was the DNA material on the balaclava and the pink glove found in the Holden Apollo, both of which were said to have been worn by other (unidentified) people. 98The trial judge in her summing up gave directions in relation to circumstantial evidence and, in particular, directions in relation to the DNA evidence including:- · The evidence that the DNA material on the pink glove and on the balaclava matched the appellant's DNA profile. The evidence, it was noted, was to be considered in conjunction with the items that were shown on the CCTV footage. · The fact that the appellant's personal belongings were found in the Holden Commodore being a phone, keys, ID and a change of clothes. 99The evidence of the presence of DNA material (in particular, the pink glove and the balaclava) which matched the profile of the appellant clearly had significant probative value unless the evidence given by the appellant which was directed to explaining how the DNA material became deposited on the particular items was accepted. His evidence, as earlier observed, in that respect depended upon his credibility. There was an amount of evidence that was adverse to his truthfulness and reliability as a witness. 100In determining Ground 2, the issue as to whether the verdict of a jury was unreasonable or cannot be supported on the evidence requires a consideration of both the evidence and the application of the well-established principles to which reference has been made above. 101The issue raised by the appellant as to the circumstances in which the DNA material found its way onto the pink glove and the balaclava depended upon the jury's acceptance of his evidence. In that respect, it is apparent that the jury rejected his evidence and there was in evidence, in my opinion, a sound basis upon which it was open to them to do so. 102The jury had the advantage of hearing and seeing the appellant and police officers in evidence and being cross-examined. The account given by the appellant as to his off the record discussions with Detective Senior Constables Bowers and Mirabito after the recorded interview finished was, in my view, a highly implausible one. 103As the Crown observed in its written submissions, specific directions were given by the trial judge to the jury that they were required to be satisfied beyond reasonable doubt that the police officers were telling the truth about the interview and what they recorded. The jury were told that they were to examine the evidence closely. 104I am of the opinion that, upon an assessment of the whole of the evidence, it was well open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. That assessment has been made upon a consideration of the evidence in the Crown case and the appellant's evidence, including his evidence as to the circumstances said to have explained how his DNA material became deposited on the balaclava and pink glove. The jury's rejection of his evidence can only have been upon the basis that the jury disbelieved him. There was ample evidence for such disbelief. 105The circumstantial evidence case brought against the appellant was, in my assessment, a very strong one. This was not a case, in my opinion, which depended upon alleged discrepancies, inadequacies or tainted evidence. Unless the jury had been prepared to accept the appellant's explanation as to how his DNA material had been deposited on the balaclava and gloves, the evidence derived from the DNA analysis was very cogent evidence that incriminated the appellant. When so considered along with the other evidence in the Crown case, the guilty verdict returned by the jury could hardly have been a surprising outcome. 106I return to the issue as to whether the appellant requires leave to argue Ground 2, insofar as it involves a question of fact. 107In Rasic (supra), the appellants were each charged with an offence of robbery in company under s.97(1) of the Crimes Act and two of the appellants were also charged on three counts of obtaining a valuable thing by deception under s.178BA(1) of the Crimes Act . 108In the course of its judgment, the Court observed that the ground of appeal relied upon did not involve "a question of law alone" . As a result, the appellants were to be treated as applicants for leave to appeal against conviction: s.5(1) of the Criminal Appeal Act . Johnson J, with whom Basten JA and Hulme J agreed, observed that a ground which involves a mixed question of fact and law is not a question of law alone and that the statutory requirement of leave to appeal should not be treated as a mere formality. 109I have determined that leave to appeal should be granted in respect of Ground 2, but that, on the bases discussed above, the appeal should be dismissed. (3) Application for leave to appeal against sentence 110The application for leave to appeal against sentence was argued upon the basis that the sentence was manifestly excessive. 111As earlier noted, the applicant was sentenced to a total term of 8 years with a non-parole period of 5 years commencing on 11 May 2009 and expiring on 10 May 2014. 112In the written submissions on behalf of the applicant, it was noted that the amount of cash alleged to have been taken in the robbery was in the region of $9,000 which, it was contended, was not an excessively large amount. 113In her remarks on sentence, the trial judge observed that the maximum penalty of 20 years for an offence under s.97(1) of the Crimes Act reflected the seriousness of the offence. 114In evaluating the objective seriousness of the offence, the trial judge, in particular, took into account:- · That the offence involved a fair amount of planning. · It was committed in company. · It was committed whilst the applicant was on parole for robbery. 115In evaluating objective seriousness, the trial judge observed:- "... I take into account the fact that this offender had a knife. There was a potential harm to the public, being in a public place and it seems to me there is a substantial criminality which would take this matter above the mid-range of objective seriousness, but not within the high range, in my view." 116Mr Foster initially argued that the sentencing judge ought not to have taken into account the fact of a knife being held thus occasioning a potential harm to the public, as to do so would contravene the principle in R v De Simoni (1981) 147 CLR 383 at 389. It was said that this was by reason of the fact that the use of a knife could have supported a charge under s.97(2) or an alternative charge under s.97(1) of robbery being armed with an offensive weapon. 117The submission was:- "4. Therefore, although a knife would be aggravating, it should have been disregarded for the purposes of sentence." 118In the course of oral submissions, Mr Foster ultimately accepted that it is difficult to see how the sentencing judge could be said to have increased the sentence imposed by virtue of the fact that the applicant held a knife (t.22). Mr Foster also appeared to accept that her Honour was entitled in determining the gravity of the offence to have regard to his possession of the knife (t.23). 119In reply, the Crown submitted that a sentencing judge is entitled to take into account circumstances of aggravation proved by the evidence. For that proposition, the Court relied upon the judgment of this Court in R v Li (CCA unreported, 9 July 1997). The Crown further submitted that any circumstance of aggravation must be proved beyond reasonable doubt and that there was no issue in this case that the second robber, alleged to have been the applicant, was carrying a knife. 120In Li (supra), the applicant had been charged with one count of break and enter in circumstances of special aggravation in breach of s.112(3) of the Crimes Act . It had been argued that the sentencing judge, (then) Howie DCJ, erred in taking into account circumstances of aggravation, beyond those raised in the indictment. Abadee J, with whom Studdert J agreed, held that the sentencing judge was correct to take into account as aggravating features that the applicant was in the company of another person, deprived the victim of his liberty and knew that the victim was in his home immediately before the offence was committed. 121It was held that the taking of these circumstances into account did not breach the principle in De Simoni (supra), it being observed that the sentencing judge was entitled to take into account those circumstances of aggravation which applied to the case as they would not have "warranted a conviction for a more serious offence" . 122The Crown submitted that, in assessing the objective gravity of the offence, the trial judge was entitled to take into account the fact that the applicant had a knife and that there was potential harm to the public in a public place. 123Mr Foster properly accepted during the course of oral submissions that, whilst the trial judge referred to the fact of the presence of the knife, there was no reference to it in a way that suggested that it became or was used as a factor that operated on the sentence as opposed to it being part of a recitation of the facts. Consideration 124An offence under s.97(1) carries a maximum penalty of 20 years imprisonment. There is no prescribed standard non-parole period. However, the sentencing judge was required to identify the relevant factors bearing upon the objective gravity of the offence. As indicated above, her Honour did identify them. 125I do not accept that the sentencing judge took into account the fact that the applicant held a knife as an aggravating factor contravened the De Simoni (supra) principle. Whilst it is accepted that a sentencing judge, in imposing sentence, may not have regard to a circumstance of aggravation which should have been charged in the indictment if it was intended that reliance should be placed upon it, read in their entirety, I consider that the sentencing judge took the use of a knife into account only as one aspect of the assessment of objective seriousness, but not in a way that contravened the abovementioned principle. 126One aggravating matter was the fact that, at the time of committing the subject offence, the applicant was on parole for a robbery offence for which he was sentenced on 22 November 2007. 127The sentencing judge also had regard to relevant subjective factors including the applicant's age, his experience in Lebanon and the report from Dr Yolande Lucire together with a pre-sentence report. 128The applicant had been convicted of armed robbery, robbery in company and kidnapping in 2005 and an offence of assault and robbery in 2007. The sentencing judge referred to the principle that the history of prior offences permitted little leniency in relation to sentencing for the subject offence. 129The sentencing judge found special circumstances by reason of the applicant's continuing rehabilitation directed to addressing his drug problems and as well his psychological need for treatment and the fact that he would be required to be in protective custody or, at least, in circumstances of non-association whilst in custody. 130The applicant has not, in my opinion, established any latent or patent error in relation to the sentence imposed. Further, the appellant has not, in my opinion, established that the sentence was either unreasonable or plainly unjust: R v Dinsdale (2002) 202 CLR 321 at 325. 131I am of the opinion that no lesser sentence is warranted in law: s.6 of the Criminal Appeal Act . 132I propose the following orders:- (1) Appeal against conviction dismissed. (2) Leave to appeal against sentence granted. (3) The appeal against sentence dismissed. 133PRICE J: I agree with Hall J. 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. Decision last updated: 30 September 2011