Update on criminal cases
Joanna Murray, CSO A/Senior Solicitor
Summary of a seminar dated 20 May 2015
Admissibility and use of evidence of outlaw motorcycle gangs
R v Cluse  SASCFC 97
Supreme Court of South Australia (Court of Criminal Appeal) – Kourakis CJ, Vanstone and Kelly JJ – evidence by police officers in relation to the nature, structure and conduct of outlaw motorcycle gangs.
The appellant was convicted of serious criminal trespass and two counts of endangering life. He was said to be part of a joint enterprise involving an attack against family members of a person known as Mark Sandery, a prominent member of a motorcycle gang known as the Finks. One of the attackers fired pistol shots into the house where two young boys were in bed and one boy sustained hits to his left thigh and foot. It was alleged that this attack was an incident of ongoing violence between the Hells Angels and the Finks.
Evidence was given by a police officer with extensive knowledge of outlaw motorcycle gangs. He gave evidence of the appellant's association with the Hells Angels, the association between Mark Sandery and the Finks, the operation of various clubs, and the nature and extent of ongoing conflict between Hells Angels and the Finks.
The appellant contended, amongst other things, that the evidence of the police officer should not have been admitted.
The Court however, held that a large extent of this evidence was not so much expert evidence but evidence of facts learned by an experienced officer in the course of his experience and was therefore admissible for such a purpose. Evidence of the culture of the two clubs and their operations was not opinion evidence but was knowledge gleaned from long observation and study and therefore properly admitted.
However, evidence which the police witness gave about specific instances of violence between the two gangs should not have been admitted because he was neither a direct observer nor was he involved in the investigation of those incidents.
The Court was satisfied that there was no miscarriage of justice. Despite the error in admitting certain parts of the police witness' evidence as to specific instances of violence between outlaw motorcycle gangs, the Court did not accept that there was a substantial miscarriage of justice.
Clarifying Barbaro — quantified range of sentences
Matthews v The Queen; Vu v The Queen; Hashmi v The Queen  VSCA 291
This case involved three appeals which were heard together before the Court of Appeal in Victoria. The appeals arose as a result of the majority decision in Barbaro v The Queen (2014) 305 ALR 323 ("Barbaro").
In Barbaro, a majority of the High Court held that the Crown should not be asked to make, and should not make a submission about the bounds of the available range of sentences.
In this case, the appellants were primarily concerned with whether the sentencing discretion is vitiated where the prosecution provided the sentencing Judge with such a range. In each case, it was contended that the Judge took into account an irrelevant sentencing consideration.
The Court of Appeal held that a quantified range submission would not vitiate sentencing discretion unless it could be demonstrated that the sentencing Judge was influenced by the submission in arriving at his or her sentence.
In coming to this view, the Court provided the following reasons:
- The Court did not understand Barbaro to have held that the mere fact of receiving a sentencing range resulted taking into account an irrelevant consideration.
- The majority in Barbaro gave a warning against a particular tendency but did not go so far as to find that receiving a quantified range would be an error of law.
The Court of Appeal noted that just because a judge receives a sentencing range does not mean that he or she has taken into account an irrelevant consideration.
It remains the duty of a sentencing judge to synthesise the relevant sentencing considerations in order to arrive at the appropriate sentence and hence, it would be quite wrong for a judge to impose a sentence merely because it was within the range suggested by the Crown.
The Court considered that unless the Judge expressly states that the prosecution's views of the appropriate range of sentences has been taken into account or it is necessarily implicit in the Judge's remarks that he or she has been so swayed, it would be difficult to suppose that it would have been so. Interestingly, the Court also said that exchanges between the Judge and counsel during the plea in mitigation as to possible sentencing options would not usually provide a sound basis for an inference that a range submission has influenced the Judge.
Lastly, when and if defence counsel does make a submission as to range, the Court found that it would be necessary and therefore permissible for the Crown to respond and in particular, to be able to tell the Judge whether in the Crown's submission it would be open to impose a sentence within that range; or if not, to then draw to the Judge's attention comparable and other cases, current sentencing practices and other relevant considerations which in the Crown's submission support that conclusion.
Adducing fresh evidence on appeal to District Court
Landsman v The Queen  NSWCCA 328
New South Wales Court of Criminal Appeal – Beasley P, Hidden and Fullerton JJ – whether adducing fresh evidence from intensive correction order suitability assessment is in the "interests of judgment"
The question before the Court was whether it would be in the interests of justice to grant the respondent leave to adduce fresh evidence in the District Court appeal proceedings of an admission made by the applicant to a corrective services officer.
By way of background, the applicant was convicted in the Local Court of the offence of assault occasioning actual bodily harm. He did not give nor call any evidence at the hearing. When he was found guilty, the Magistrate ordered that he be assessed by Corrective Services as to his suitability to serve a sentence by way of an Intensive Correction Order ("ICO"). An ICO is a sentence of imprisonment, but served in the community subject to conditions and restrictions.
During his interview with the Corrective Services officer, the applicant was asked to explain about the offence. It was not a requirement of the assessment for the Corrective Services officer to ask this question. Nevertheless, the applicant was told that he had to answer truthfully. The applicant therefore admitted to committing the offence.
The applicant was assessed as suitable for an ICO and sentenced to serve a term of imprisonment by way of an ICO.
The applicant then appealed his conviction to the District Court. It should be noted that subject to any legislative provision to the contrary, a person is entitled to refuse to answer questions asked by a person in authority. That is, the applicant was entitled to the right to silence.
Although the applicant was not compelled to answer the questions asked by the officer, there was significant pressure to do so because it meant the option of serving a more lenient sentence would become available to him. The question was asked by the officer without any warning that the information could be used in evidence against the applicant on the question of his guilt.
The Court of Appeal held that it would not be in the interest of justice to allow the use of the applicant's admission in the District Court appeal (read decision on NSW Caselaw)
Mental illness as mitigating factor in white collar crimes
R v Donald  NSWCCA 238
New South Wales Court of Criminal Appeal – Hidden, Latham and Adamson JJ – whether sentencing judge erred in allowing factors of delay and mental illness to displace principle of general deterrence in imposing a non-custodial sentence
This matter relates to taking into account as a mitigating factor the mental illness of an offender during sentencing for white collar crimes.
The respondent was employed by a stockbroking company when he entered into substantial shareholding transactions in fraudulent circumstances over a two and half year period. He used $400,000 of the proceeds of the crime to renovate his home and he had spent hundreds of thousands of dollars from the proceeds of the crime for his own benefit.
The respondent was found guilty of the charges against him. The sentencing Judge took into account his diagnosis of bipolar disorder in sentencing him to a suspended sentence of two and a half years.
The Crown appealed the sentence to the Court of Criminal Appeal on the basis that the suspended sentence failed to adequately reflect the gravity of the offence.. The Crown also alleged that the sentencing Judge erroneously allowed factors of delay and mental illness to displace general deterrence in favour of a non-custodial penalty. The Crown did not dispute that the respondent suffered from bipolar disorder at the relevant times and that the illness played a role in his offending. Two reports were tendered: one on behalf of the respondent and one on behalf of the Crown. The difference of opinion between the two reports was the degree to which the mental illness contributed to the offending.
In allowing the appeal, the Court noted as follows:
- The respondent's offending was not impulsive given the rational, systematic and covert nature of his transactions.
- His depressive and manic episodes were not continuous or pervasive.
- He failed to disclose his offending conduct to his treating doctors.
- He was able to understand the wrongfulness of his actions and to make reasonable judgments.
Importantly, the Court noted that there is a significant role for general deterrence to play, particularly where serious breaches of trust and dishonest trading in the market are concerned.
The Court found that the sentence imposed by the sentencing Judge was manifestly inadequate (read decision on NSW Caselaw)
Rejecting character references that go to remorse
Tweedie v R  NSWCCA 71
New South Wales Court of Criminal Appeal – rejecting character references that go to contrition or remorse in absence of evidence given on oath or subject to cross examination
The applicant was convicted and sentenced to a number of larceny and dishonesty offences involving the use of stolen credit cards to purchase goods for about $30,000. He was sentenced to a total period of four years imprisonment with a non-parole period of three years. The applicant gave evidence during his sentence proceedings to the effect that he was ashamed of himself, and that he was sorry for his behaviour. When asked who he thought the victims were, he said "we're all victims of the matters".
The applicant continued in his evidence that he had obtained employment but found working night shifts unsuitable and resigned. He obtained a forklift driver's licence and began looking for work without success. He then turned to drugs and commenced reoffending.
The applicant's solicitor then tendered a letter from the applicant's partner. At this point, the sentencing Judge responded that "the Crown should always object to letters being tendered to the court unless they're simply references from employers or matters of that nature." The Crown did not object to the tender of the letter. In the letter, the applicant's partner explained that when she spoke to him, he had expressed remorse and was sorry for letting down his family and all who supported him.
The sentencing Judge was unable to find acceptable evidence of genuine contrition or remorse expressed by the applicant. While there was a reference in the partner's letter to the applicant's contrition, in the absence of the partner giving evidence or being subject to cross examination, the sentencing Judge was not prepared to accept that the letter provided any acceptable evidence of contrition or remorse.
The applicant appealed the decision to the Court of Criminal Appeal. One of the grounds relied on appeal was that there was procedural unfairness in the sentencing Judge not accepting the proffered evidence of remorse. The applicant bears the onus of persuading the Judge to take remorse into account as a mitigating factor.
The sentencing Judge in the present case gave no indication that he was prepared to accept that the applicant was remorseful. There was nothing stopping the applicant's solicitor from making a submission seeking to persuade the Judge to make a finding that the applicant was remorseful. The applicant's solicitor also seemed to appreciate the Judge's scepticism about the partner's letter because of doubt about whether she could have been completely oblivious to the applicant's offending conduct.
The Court of Criminal Appeal held there was no merit to this ground. The Court noted that there was an air of unreality about this ground. It presupposes that during the course of a sentence hearing a judge is required to consider all material before the Court and indicate to the parties before delivering or reserving judgment any potential disagreement or non-acceptance of individual matters despite the fact that the prosecutor might not have contested them (read decision on Caselaw).