Obierzynski v R

1. [1]

   MACFARLAN JA: Having conducted an independent assessment of the nature and quality of the evidence at the trial and on sentence, I am of the opinion that the orders proposed by Harrison and Hamill JJ should be made, for the reasons that their Honours give.

2. [2]

   HARRISON & HAMILL JJ: The applicant was tried before King DCJ and a jury in the District Court of New South Wales with his co-accused Mikolaj Nowak commencing on 14 March 2017. They were charged with having taken and driven a motor vehicle on 10 September 2015 without the consent of the owner who was in it at the time in circumstances of aggravation, namely whilst in the company of others. That is an offence contrary to s 154C(2) of the Crimes Act 1900. It carries a maximum penalty of 14 years imprisonment with a standard non-parole period of 5 years.

3. [3]

   The applicant was convicted. He was sentenced on 22 June 2017 to 7 years imprisonment with a non-parole period of 5 years, backdated to commence on 19 September 2016. His Honour backdated the sentence to that date on the erroneous understanding that the applicant had been in continuous custody following the expiration of his revoked parole on 18 September 2016. In the result, the applicant’s sentence is in fact only 6 years and 6 months with a non-parole period of 4 years and 6 months.

4. [4]

   The significant issue at trial was whether the prosecution had proved that the applicant was one of the offenders who took the Mr Harb’s car.

5. [5]

   The applicant appeals to this Court on three grounds as follows:

   1. (1)

      His Honour’s circumstantial evidence direction failed to direct the jury with respect to the hypothesis that the [applicant] was not responsible for the theft and apply it fairly to the evidence.

   2. (2)

      The verdict of the jury should be set aside on the ground that it is unreasonable, or cannot stand having regard to the evidence, and a verdict of not guilty entered.

   3. (3)

      His Honour imposed a sentence that was unreasonable or plainly unjust (for reasons that may not be able to discern [sic]) and the sentences are manifestly excessive.

Factual background

1. [6]

   The evidence at trial is conveniently summarised in the Crown’s submissions. It is to the following effect.

2. [7]

   The offence occurred shortly before 1.47pm on 10 September 2015 on Burlington Road, Homebush. The Crown case was that the applicant, armed with a knife, and whilst in company with Mikolaj Nowak and Stefan Gusa, carjacked a Mercedes Benz belonging to Timothy Harb.

3. [8]

   It was not in dispute that the aggravated carjacking occurred. The sole issue at trial was whether the applicant was one of the perpetrators.

4. [9]

   At about noon that day, Mr Harb parked his vehicle on Burlington Road and met friends for lunch. Upon returning to his vehicle Mr Harb got into the driver’s seat and started the engine when he was confronted by the offenders. One of them, armed with a knife, opened the driver’s door and said to Mr Harb, “get out of the car, cunt”. It was the Crown case that this offender, armed with the knife, was the applicant. The applicant got into the driver’s seat, while the other two offenders entered the vehicle via the front and rear passenger doors. The three offenders then drove off.

5. [10]

   Mr Indari, a friend of Mr Harb, had been standing across the road at the relevant time and observed the incident. He saw all three males get in the car after Mr Harb got out and drive away, turning right into Rochester Street. Mr Indari almost immediately contacted triple-0. Mr Indari advised the operator of the following details.

6. [11]

   There were three males. All were aged around 25 years and wearing black hoodies with black or dark jeans. The male who approached Mr Harb pulled out a knife and told him to get out of the car. He believed this male was of Middle Eastern appearance, was about 6 feet tall and was wearing a baseball hat. Asked by the operator what colour the baseball cap was, he asked Mr Harb “was his cap red?” and Mr Indari then said to the operator “I think it was red”. As observed by his Honour and included in his summing up to the jury, he then said to the operator: “I just got a cap”. The other two males were Caucasian.

7. [12]

   Mr Harb described the male with the knife as a Middle Eastern male of Lebanese background, about 20 to 25 years old, with black facial growth, about 90 kilograms and with no accent. Mr Indari described him as a Middle Eastern male between 22 to 25 years of age with black hair and weighing about 80 to 90 kilograms.

8. [13]

   Mr Harb said the male with the knife was wearing dark clothes, namely a cotton cardigan worn open, with a dark coloured T-shirt underneath, blue G-Star jeans and a baseball cap. The officer in charge, Detective Senior Constable Fisher, gave evidence that when he was taking a statement from Mr Harb there was particular mention of the G-Star brand. Detective Fisher said that Mr Harb was uncertain whether the male with the knife had a G-Star jumper or G-Star jeans, but Mr Harb ultimately settled on the jeans.

9. [14]

   Mr Indari said that the male with the knife was wearing a black baseball cap, black jumper, blue jeans and closed footwear. In cross-examination, in reference to what he said in the triple-0 call, he agreed that the cap of one of the assailants may have been red.

10. [15]

    In relation to the other two assailants, Mr Harb could not describe the second male and did not see a third male. Mr Indari described the second male as Caucasian and 20 to 25 years old (consistent with Mr Nowak), and the third male as 18 to 25 years old with black hair (consistent with Mr Gusa). Notably, Mr Indari ascribed younger age brackets to the second and third males, which is consistent with the fact that the applicant is the eldest of the three men.

11. [16]

    Investigating police obtained two sets of CCTV footage from a business premises and a restaurant in close proximity allegedly depicting the same three males taken 1 hour and 45 minutes respectively before the carjacking. It was the Crown case that these three males were the applicant, Mr Nowak and Mr Gusa. It was conceded at trial by counsel for Mr Nowak that he was depicted in the CCTV footage. It was also conceded by counsel for the applicant that Mr Gusa was depicted in it. No concession was made by counsel for the applicant that he was depicted in any of the CCTV footage.

12. [17]

    Shortly before midnight the following evening, police stopped the three men together as they were climbing over a high fence around a vacant lot in Powell Street, Homebush. Police located a key to a Mercedes Benz at the base of the fence, as well as a flick knife in the gutter. The key was subsequently confirmed to be the key to Mr Harb’s stolen car, and the flick knife was found to have the applicant’s DNA on the handle and his thumbprint on the blade. Counsel for the applicant accepted that the knife belonged to the applicant.

13. [18]

    When stopped, the applicant was wearing a black Nike cap with a white tick on the front which was identical to the cap worn by a male alleged to be him in the CCTV footage. Mr Nowak was wearing a black Lacoste cap with a crocodile logo above the right ear which was identical to the cap worn by the male conceded by counsel for the applicant to be Mr Nowak in the CCTV. Mr Gusa was wearing shoes with some red-coloured sections which matched those worn by the male who was conceded by counsel for the applicant to be Mr Gusa in the CCTV.

14. [19]

    On 17 September 2015, one week after the carjacking, the applicant participated in an ERISP. He denied any involvement in the carjacking, claiming an alibi which he refused to disclose. A crown shaped tattoo on the outside of the applicant’s right hand is visible in the video of the interview. A tattoo with a very similar appearance can be seen on the male alleged to be him in some of the CCTV footage. The applicant confirmed that he lived on Park Street, Homebush, and that he owned a Mercedes Benz but a different model to that of Mr Harb. The applicant agreed that he was stopped by police the evening following the carjacking and that the Nike cap he was wearing was his.

15. [20]

    A search warrant was subsequently executed at Mr Nowak’s residence and an Adidas hoodie matching the one worn by him in the CCTV was seized.

16. [21]

    On 19 September 2015, the stolen Mercedes was recovered by police in Chiswick. Mr Harb’s number plates had been removed and replaced with stolen number plates. The Mercedes was forensically examined. An expert witness gave evidence that there was a “mixed” DNA profile on the steering wheel, which came from three contributors. The applicant could not be excluded as the major contributor and, statistically, it was “100 billion times more likely to obtain this mixed profile if it originates from the applicant and two unknown individuals rather than if it originates from three unknown unrelated individuals in the Australian population.” The expert agreed with the proposition that “his DNA matched that of the major contributor” to the DNA on the steering wheel of the stolen car.

17. [22]

    Some months later, at the request of the applicant’s then solicitor, Mr Harb participated in a photo board procedure, which included a photo of the applicant. Mr Harb did not select anybody.

18. [23]

    The applicant and Mr Nowak did not give or call any evidence at trial. The applicant did not run an alibi or a positive case. Rather, it was the applicant’s argument that the Crown had not proven beyond reasonable doubt that he was one of the offenders.

19. [24]

    The prosecution relied upon a circumstantial case to establish that the applicant was one of the perpetrators and, in particular, that he was the man who threatened Mr Harb with a knife and got into the driver’s seat of the car. That case was comprised of the following pieces of evidence:

    1. (1)

       CCTV footage depicting three males (one of whom was, on the Crown case, the applicant, another his co-offender Mr Nowak and a third male Mr Gusa) at about an hour prior to the offence at the AutoPro Shop on Parramatta Road, Homebush, about 800 metres from the scene of the carjacking.

    2. (2)

       The footage depicted the male, who on the Crown case was the applicant, wearing blue denim jeans, closed in shoes and a dark hoodie which had the brand “RAW” and “G-Star” in white writing on the front and light coloured lining visible around the neck, and a Nike baseball cap with a “swoosh/tick” symbol on the front. The footage depicted the male who on the Crown case was the co-offender Mr Nowak wearing a dark hoodie with white lettering “Adidas” and the Adidas symbol above the name, a dark baseball cap, dark long pants and joggers. The third male was wearing a dark long-sleeved top and dark long pants with a coloured cap with a triangular symbol at the front and joggers which had some red colour on them.

    3. (3)

       CCTV footage taken about 45 minutes prior to the offence depicting three males (who on the Crown case were the same three males) in the underground carpark and passing by the frontage of the “Kammadhenu Restaurant” located on the corner of Burlington Road and Rochester Street, a short distance from where the offence occurred.

    4. (4)

       This footage depicted the three males with one (who on the Crown case was the applicant) wearing blue denim jeans and a dark hoodie which had the brand “RAW” in white writing on the front, the hood having visibly light coloured lining, and a dark coloured baseball cap. The footage depicted the male who on the Crown case was the co-offender Mr Nowak wearing a dark hoodie with white lettering “Adidas” and the Adidas symbol above the name, a dark baseball cap and dark long pants with a dark coloured cap and joggers with some red colour on them.

    5. (5)

       All CCTV footage depicts the same three males.

    6. (6)

       When all three were stopped by police the following evening the applicant was wearing a Nike brand baseball cap with the white “tick”, the same as the baseball cap worn in the CCTV footage from the AutoPro Shop by the male who the Crown suggested was the applicant. A Mercedes Benz car key in a sealed snap lock sandwich bag was found in the vicinity and identified as the key stolen in the offence as well as a folding knife in the nearby gutter with the applicant’s right thumbprint on the blade.

    7. (7)

       The stolen Mercedes Benz was recovered by police and the steering wheel was swabbed from which DNA was extracted with a mixed profile from which the applicant could not be excluded as the major contributor

    8. (8)

       The applicant’s ERISP interview depicted a distinctive tattoo of a large crown on the applicant’s right hand, which is consistent with a marking on the right hand of the male who the Crown allege is the applicant in the CCTV footage from the AutoPro shop.

Ground 1

1. [25]

   The case against the applicant was entirely circumstantial. It relied upon a combination of the following matters:

   1. (1)

      The discovery of biological material on the steering wheel of the stolen Mercedes Benz that was a mixed profile containing DNA that included the applicant’s profile.

   2. (2)

      The applicant being in the company of Mr Nowak and Mr Gusa on the previous day at a place not far from where the offence was committed.

   3. (3)

      The applicant at that time wearing a Nike brand hat matching that worn by “the blue jeans suspect” in the CCTV footage.

   4. (4)

      The knife found in the gutter near to where the applicant was arrested with his fingerprint on the blade and DNA from a mixed profile.

   5. (5)

      The key to the stolen vehicle being located near to where the applicant was arrested.

   6. (6)

      The applicant’s appearance in the ERISP bearing a “reasonable resemblance” to the person in the CCTV footage.

   7. (7)

      Mr Nowak’s concession that the man who the applicant pulled up with the following day was Mr Nowak and that he was in the same store at the same time with the same group with the person who the Crown contended was the applicant.

   8. (8)

      Mr Indari’s description of the three men involved as wearing dark clothing “like black jeans or dark jeans with hoodies, black hoodies”.

   9. (9)

      The similarity between the recovered knife and the description given by Mr Harb and the witness.

2. [26]

   The applicant emphasised what was said by the High Court in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 as follows:

3. [27]

   The applicant reiterated the uncontroversial proposition that where the Crown case rests substantially on circumstantial evidence, a jury cannot return a guilty verdict unless the Crown has excluded all reasonable hypotheses consistent with innocence: Baden-Clay at [46]; Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42 at 104.

4. [28]

   His Honour’s directions on this topic were given in these terms:

5. [29]

   The applicant argued that his Honour’s directions in these terms did not point to the collection of facts that may have amounted to an alternative hypothesis consistent with his innocence. Moreover, the applicant argued that the italicised portion of the summing up extracted above inferred that the onus shifted to him in that the conclusion referred to had to be established by him.

6. [30]

   With respect to the first proposition, it is correct to say that his Honour did not specifically outline the matters for which the applicant wished to contend at the same time as he gave the circumstantial case direction. It is in that sense also true to say that his Honour did not describe or outline to the jury what the applicant had submitted was the particular set of facts said to be consistent with his innocence. He did, however, later outline the arguments of defence counsel with respect to the asserted deficiencies in each of the several pieces of circumstantial evidence and DNA evidence upon which the Crown relied, including the following:

7. [31]

   The applicant does not complain that his Honour failed properly or adequately to outline or summarise the applicant’s response to the prosecution’s circumstantial case. Having regard to the detail into which his Honour descended in this respect, that is not surprising. In our opinion, his Honour adequately summarised the applicant’s response to that case.

8. [32]

   Having regard to that unexceptionable summary, however, it becomes clear that the applicant did not contend for or propound some specified or particular alternative factual hypothesis which, if accepted as a reasonably available alternative to the Crown case, would have exculpated him. The burden of the applicant’s case was not that there was any reasonably available alternative interpretation of the Crown’s set of facts that would cause the jury to have a doubt. The applicant’s position was simply that the Crown’s circumstantial case did not establish his guilt beyond reasonable doubt. Specifically, the applicant maintained that he was not involved in the events giving rise to the charges and that any proper assessment of the Crown case could not support a finding of guilt to the criminal standard. Apart from the DNA on the steering wheel, the applicant did not, for example, suggest some particular alternative explanation for the evidence that the Crown contended were circumstances which, taken together, established the applicant’s guilt.

9. [33]

   As already noted, the evidence established that the applicant’s DNA was found on the steering wheel of Mr Harb’s car. His Honour referred to that evidence in these terms:

10. [34]

    Clearly, in that passage from his Honour’s summing up, he dealt with an available but innocent explanation for how the applicant’s DNA became deposited upon the steering wheel. Secondary transfer of the applicant’s DNA was capable of supporting an alternative hypothesis consistent with innocence.

11. [35]

    His Honour specifically identified all of the deficiencies in the Crown’s circumstantial case to which the applicant drew attention. No complaint is made asserting the contrary, and no direction was sought from trial counsel to remedy or rectify any such deficiency. The applicant’s alternative hypothesis was that he was not responsible for the theft of Mr Harb’s car and that the Crown could not prove otherwise. The applicant’s final submissions to the jury supported this:

12. [36]

    His Honour quite properly picked up this submission in his summing up as follows:

13. [37]

    We are unable to accept the submission that his Honour failed either properly to put the applicant’s response to the Crown case in general or to adumbrate what was in truth an available and reasonable alternative hypothesis consistent with his innocence in particular. In this respect, we note that the applicant specifically complains that his Honour failed to refer to any of the features of the applicant’s case that pointed to the fact that he was not the offender. Tellingly, the applicant does not identify what these features are or may be. That seems to me to be because there are no features that suggest that the applicant was not the offender, so much, on the applicant’s case, as an absence of features, taken together, that are capable of establishing the Crown’s circumstantial case that he was the offender. That was the way the applicant defended the proceedings and that is the way that his Honour explained it to the jury.

14. [38]

    So far as concerns the second proposition, we do not read his Honour’s direction as reversing the onus of proof. The direction complained of is taken directly from the standard direction on circumstantial evidence in the Criminal Trials Bench Book. That does not, of course, give it any particular status and certainly does not immunise it from attack if it can otherwise be shown to be deficient. However, in our opinion, any proper reading of the impugned words does not lead to an impression that the applicant bears the onus, or any onus, of proving the alternative exculpatory hypothesis. The “other reasonable conclusion” is clearly enough one to be drawn, if it is available, from the whole of the evidence in the case. In the present case, that evidence was limited to the evidence led by the Crown. As the direction makes plain, the emphasis is upon “any other reasonable conclusion arising from those facts”. The wisdom that informs this area of discourse is that the jury cannot reach a conclusion beyond reasonable doubt based on certain facts if an available alternative interpretation of the same facts raises such a doubt. There is nothing in his Honour’s direction that in any way infers or suggests, let alone directs the jury, that the alternative conclusion must be established or proved by the applicant.

Additional submissions

1. [39]

   Although not the subject of separate grounds of appeal, the applicant appears to raise three additional complaints about the conduct of the trial. Having regard to the fact that the applicant’s counsel somewhat unusually sought to argue grounds 1 and 2 together, the following matters raised by the applicant do not fit comfortably within either of those grounds considered separately. In any event, the applicant did not seek leave to add further grounds of appeal and the Crown did not oppose the applicant raising these areas of complaint in this way.

2. [40]

   Concerning the first of these matters, as already noted, the significant issue in the proceedings was whether the Crown could identify the applicant as the offender holding the knife and confronting Mr Harb at his car. The applicant contends that, by reason of the way his Honour dealt with the distinction between direct and circumstantial evidence, in a case in which identification was critical, his Honour inappropriately and erroneously “minimised the lack of identification” of the applicant as the important issue in the applicant’s response to the Crown case.

3. [41]

   Once again, this complaint arose from his Honour’s use of the standard direction in the Criminal Trials Bench Book as follows:

4. [42]

   The applicant’s concern appears to be that his Honour’s immediate juxtaposition of his cautious reference to the value of direct evidence of identification, in a case in which “identification” by circumstantial evidence is the significant issue, somehow inversely but inappropriately elevated the Crown’s circumstantial case by comparison to a level of acceptability that it otherwise did not have and should not have been given. In the applicant’s terms:

5. [43]

   A number of things should be said about this. To start with, the applicant did not mount any positive case. He properly, but only, contended that the Crown had failed to prove that he was involved in the events that gave rise to the charge. He did not, for example, call evidence from a witness whose evidence may have been potentially degraded by his Honour’s cautious reference to the reliability of identification evidence.

6. [44]

   Next, the Crown’s own case included evidence from witnesses who saw and observed the offence being committed. These were Mr Harb and Mr Indari. The very fact that these witnesses were not ultimately able to identify the applicant as the relevant offender is just as likely to have conveyed to the jury that the Crown’s reliance upon a circumstantial case was not its first preference. This was favourable to the applicant rather than the reverse.

7. [45]

   Finally, as the direction says in terms, a circumstantial case is not necessarily weaker than a case based upon direct evidence. That proposition is uncontroversial. It should not, however, be misunderstood or misinterpreted to say, or by inference to suggest, that where identification is the issue, a circumstantial case is necessarily or possibly stronger than a direct evidence case. The example contained in the standard direction coincidentally deals with identification but not in our view in a way that is likely to have caused any confusion.

8. [46]

   The applicant next complains that certain parts of the applicant’s ERISP were highly prejudicial and should have been excluded. No submissions are made in support of that contention. The offending parts are not identified. No application was made at the trial concerning the ERISP. This complaint requires no further consideration in this Court.

9. [47]

   The applicant’s last complaint concerns the effect of his Honour’s direction and what the applicant describes as “identification opinion of the applicant [given] by police”. The portion of his Honour’s summing up about which the applicant complains is as follows:

10. [48]

    The applicant submitted that these comments, although framed as a warning about the dangers associated with police opinions, should not have been "admitted" in the trial. We take that complaint to be a reference to the extracts from the ERISP, rather than a complaint about anything said by his Honour concerning them. The applicant submitted that not only were the quoted sections of the ERISP inadmissible, but they also unfairly implied that the applicant had admitted his presence at the AutoPro shop with two others close to the scene of the offence. It invited the jury to consider whether, given that "admission", they could more readily accept the Crown's circumstantial case.

11. [49]

    The applicant submitted that his responses to police questions were not in truth admissions and that the recitation of them by his Honour was highly prejudicial to the applicant and diverted the jury's attention from his defence submission that he was not part of the taking of Mr Harb's vehicle.

12. [50]

    The applicant accepted that this portion of the evidence and the summing up was not raised by trial counsel and that Rule 4 applies. However, the applicant also contends that the errors described have led to a miscarriage of justice and that the applicant may accordingly have lost the chance of an acquittal that was fairly open to him: South v R [2007] NSWCCA 117 at [34]; R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20 at [20] - [21].

13. [51]

    The Crown responded by noting that the ERISP had been the subject of certain deletions by agreement between the parties, and that there had been no application to exclude anything in addition. The Crown contended that the applicant could not in those circumstances complain that other questions and answers in addition should have been excluded.

14. [52]

    The applicant has contended that the impugned questions and answers cited above as part of his Honour’s summing up should have been excluded upon the basis that the evidence was inadmissible as evidence of the police purporting to identify the person depicted in the CCTV footage, who the police asserted was the applicant when they questioned him, relying upon the decision of the High Court in Mundarra Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50. The Crown contended that in fact the police in the present case were doing no more than showing the material to the applicant in order to get his response following his arrest as to whether it was him or not.

15. [53]

    One portion of his Honour’s summing up on this topic at least is unfortunately ambiguous. That is as follows:

16. [54]

    The words “to how he looked when he was interviewed” are, in the context of that sentence, capable of also being misunderstood as references to the relevant individual shown in the CCTV footage. Similarly, the question asked by the police of the applicant whether he would like to see the pictures “of you” on one view suggest that the police are stating as a fact that the applicant is the person shown in the CCTV footage that the applicant agrees he “would want to see”.

17. [55]

    However, as the Crown quite fairly emphasises, these matters are referred to by his Honour in the same context as his Honour’s unambiguous direction to the jury that they should look at the CCTV footage for themselves in order to see what they see “of that person”, meaning the unidentified person depicted in the footage. The later reference to the applicant shown in the ERISP is clearly enough a separate and discrete reference to him. The fact that no application was made for a redirection concerning this portion of the summing up tends to support the fact that the words said by his Honour at the time did not appear to convey the difficulty of meaning that the applicant now seeks to identify as a matter of significance.

18. [56]

    In our opinion the ERISP material does not unfairly create an impression either that the police have “identified” the applicant or that the applicant has in answering police questions conceded that the CCTV material depicts him. His subjunctive reference to the material saying, “Yeah, I would want to see them” is not in our view a response of acceptance or agreement but rather a response conveying what might be described as sceptical resignation. Taken as a whole and in context, his Honour’s direction and the ERISP material quoted by him have not together resulted in a miscarriage of justice.

Ground 2

1. [57]

   As already indicated, the applicant did not separately make submissions concerning the alleged unreasonableness of the verdict or the related contention that it cannot be supported having regard to the evidence.

2. [58]

   The approach that is required for determining whether or not a verdict is or may be unreasonable is well settled.

3. [59]

   When considering whether a verdict was unreasonable, the Court is to make its own independent assessment as to the sufficiency and quality of the evidence. The question for this Court is “whether the [appeal] 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”: Baden-Clay at [66]; see also M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 and SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. The burden of persuasion that appellate interference is required rests with the person who impugns the verdict: Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 at 370.

4. [60]

   In performing this “independent assessment” of the evidence, this Court “must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses”: M v The Queen at [7]. As the High Court said in Baden-Clay:

5. [61]

   See similarly Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113]; MFA at 624 and Atai v R [2014] NSWCCA 210 at [134].

6. [62]

   The Crown submitted that it was well open to the jury to conclude beyond reasonable doubt that the applicant was one of the three males involved in the offence based on a combination of the following pieces of circumstantial evidence:

   1. (1)

      Mr Indari’s representation in the triple-0 call that there were three males, all aged around 25 years, all wearing black hoodies and black or dark jeans.

   2. (2)

      Mr Harb’s identification of the man with the knife having a “G-Star” brand even though he thought it was the brand of his jeans not his hoodie.

   3. (3)

      The evidence of both Mr Indari and Mr Harb that the man who approached Mr Harb and produced a knife was wearing a baseball hat.

   4. (4)

      The two sets of CCTV footage (exhibits 1 and 2) depicting three males in the clothes and apparel earlier described.

   5. (5)

      The applicant, his co-offender and a third male being together at the time of their arrest the following evening.

   6. (6)

      At the time of arrest, the applicant was wearing a black Nike “tick” baseball cap, the same as that seen in the CCTV footage.

   7. (7)

      A knife was found at the scene of the arrest which had a fingerprint matching the applicant’s right thumb on the blade and the DNA result.

   8. (8)

      Whilst Mr Indari said in evidence that he did not see a knife, the Crown case was that the photo of the knife recovered during arrest had a silver metal holding at the bottom of the hilt which could well have been what Mr Indari saw.

   9. (9)

      The stolen key to the Mercedes Benz was found at the scene of the arrest.

   10. (10)

       A swab taken from the steering wheel of the Mercedes Benz when it was recovered 9 days after the offence had the applicant’s DNA.

   11. (11)

       A marking evident on the top of the dorsum of the right hand of the male with the “RAW” “G-Star” hoodie in the footage was consistent with the applicant’s distinctive tattoo of a large crown visible in the applicant’s ERISP.

   12. (12)

       Mr Harb’s description of the male who opened his door holding the knife is not necessarily inconsistent with the applicant’s appearance in the ERISP.

7. [63]

   The Crown contended in these circumstances that the evidence taken as a whole amounted to a very strong prosecution case and that the verdict could not be said to be unreasonable.

8. [64]

   The burden of the applicant’s complaint that the verdict is unreasonable fails in our view to come to terms with the strength of the several circumstances relied upon by the Crown taken together, but instead places undue emphasis upon the arguably limited probative value of each of the circumstances taken alone. It is well understood that in a circumstantial case, no individual fact is capable of establishing the guilt of the accused beyond reasonable doubt. It is only when all of the circumstances are considered together that it is possible for the Crown to construct a case of sufficient strength to prove the guilt of the accused to that standard.

9. [65]

   In the present circumstances, that case is quite powerful. The similarity between the clothing worn by the three men shown in the CCTV footage and the clothing that the applicant and his companions are later found to be wearing is itself a compelling circumstance. The applicant’s thumb print on a knife found near the scene of the incident and his DNA on the steering wheel of the car are two additionally strong pieces of evidence. The location of the key to the stolen car contained in a plastic bag is also a matter of significance when the applicant was later apprehended near the fence in Pollard Street the following day.

10. [66]

    His Honour’s summary of the Crown case, to which no objection was taken, appears fairly to outline the circumstantial case that the jury was asked to accept. That summary was relevantly in these terms:

11. [67]

    Having considered the whole of the evidence tendered against the applicant, we are of the view that the prosecution presented a very strong circumstantial case. The evidence established the applicant’s guilt beyond reasonable doubt. The verdict of the jury was not unreasonable or unable to be supported having regard to the evidence. Ground 2 must be rejected and the appeal against conviction should be dismissed.

Ground 3

1. [68]

   The applicant’s third ground of appeal was directed to the sentence. It asserts (with slight grammatical modifications) that “his Honour imposed a sentence that was unreasonable or plainly unjust (for reasons that may not be able to be discerned) and the sentence is manifestly excessive”.

2. [69]

   The applicant was sentenced to 7 years with a non-parole period of 5 years. That sentence was ordered to commence on the 19 September 2016. His Honour settled upon the commencement date because that was the date upon which a previous sentence of imprisonment expired.

3. [70]

   His Honour was under the misunderstanding that the applicant had been in custody from that date until the time of his trial in March 2017. However, the applicant was in fact released on 19 September 2016 and was not in custody from that date until 19 March 2017 when his bail was revoked in respect of the present offence. In practical terms, this means that the effect of the sentence and non-parole period was 6 months less than that intended by the sentencing Judge. The effect of the sentence was for the applicant to serve some 4 years and 6 months in custody with a balance of parole of 2 years. That is to say the total effective sentence, taking into account his Honour’s misunderstanding as to the pre-trial custodial situation, was one of 6 years and 6 months with a non-parole period of 4 years and 6 months. The ground of appeal asserting manifest excess should be considered in the light of that practical consideration.

4. [71]

   Even taking that matter into account the sentence imposed upon the applicant was a severe one. Although his criminal record was very bad, and the facts of the present offence extremely serious, he was a person who had a substantial subjective case including the fact that he had suffered a serious brain injury when he was much younger.

5. [72]

   The present offence featured a number of aggravating features. Perhaps the most significant of these was the fact that the offence was committed while the applicant was on parole for a number of similar offences. The applicant was sentenced on 16 May 2008 in the Sydney District Court in relation to six separate offences of robbery. Each of those counts of robbery were aggravated either by being in company or by virtue of the fact that the applicant was armed with a dangerous or prohibited weapon. The applicant was sentenced to various sentences of imprisonment. Those six sentences were themselves ordered to be served partially concurrently with an earlier, unrelated, offence of aggravated break and enter.

6. [73]

   While the applicant was not to be sentenced twice for the earlier offences, the fact that the applicant was on parole for multiple offences of a similar kind was a significant aggravating feature. We have recounted the facts of the present offence in dealing with the conviction appeal. It was a very serious crime. The offence was categorised by the sentencing Judge as falling within the mid-range of objective seriousness for offences of its kind. There is no submission that this assessment was wrong. In those circumstances the standard non-parole period of 5 years provided a significant guidepost to the sentencing process in the way explained by the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39. It was by no means a "straitjacket" fettering the proper exercise of the sentencing discretion but it was a matter to be taken into account along with the maximum penalty of 14 years and all other matters relevant to a determination of the appropriate sentence arising under the sentencing statute and the common law.

7. [74]

   There is no submission that the sentencing Judge failed to take into account any relevant matter, or that he mistook the facts in any way, or that he allowed extraneous considerations to guide him. There is no assertion that there was any patent error of law or fact in the approach taken by the sentencing Judge. Rather, the applicant seeks to establish that the sentence itself is manifestly outside of a permissible sentencing range so that it can be described as "wrong", "plainly unjust" or "manifestly excessive". In considering the submissions under this ground, it is important to pay due deference to the wide ranging discretion that the criminal law entrusts to sentencing judges. It is not to the point that judges of this Court may have settled upon a lesser sentence had they been exercising the sentencing discretion at first instance. There is no single correct sentence. As to these propositions, none of which is controversial, see generally Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15], Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [22] and Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.

8. [75]

   A number of reports were tendered and relied upon in the sentencing proceedings. These emphasised the fact that the applicant suffered a serious motor vehicle collision when he was about 17 years of age and, as a result, was prone to impulsive behaviour, disinhibition and had a more limited cognitive capacity for problem solving and deductive reasoning.

9. [76]

   That was a significant matter to be taken into account in the sentencing process. However, it is clear that the sentencing Judge considered the applicant’s condition closely in exercising the sentencing discretion. A substantial amount of the sentencing judgment was taken up with recounting that part of the subjective case and explaining its impact on what was, unquestionably, a tricky sentencing exercise. None of the findings of fact has been challenged on the hearing of the sentencing appeal. Nor has any suggestion been made that his Honour acted on a wrong principle in considering the impact of the applicant’s brain injury on the proper exercise of the sentencing discretion.

10. [77]

    While the sentence was a heavy one taking into account the applicant's relatively young age and cognitive difficulties, we are unable to conclude that it is plainly wrong or unjust. The singular ground of appeal on sentence cannot be sustained.

11. [78]

    Because of the length of the sentence we would grant leave to appeal. However, the appeal must be dismissed.

Conclusion

1. [79]

   In the circumstances we propose the following orders:

   1. (1)

      To the extent necessary, grant leave to appeal.

   2. (2)

      Dismiss the appeal.