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Young & Ors v The Queen [2015] VSCA 265 (22 September 2015)

Last Updated: 22 September 2015

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0257

S APCR 2014 0258

S APCR 2014 0287

S APCR 2014 0259

S APCR 2014 0260

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CRIMINAL LAW – Conviction – Applications for leave to appeal against conviction – Joint trial – Four accused (Y, D, R and S) – Kidnapping – False imprisonment – Theft of motor vehicle – Joint criminal enterprise – Applications for separate trials refused – Evidence admissible against one accused not admissible against other accused – Exercise of discretion – Discretion exercised correctly – Jury correctly directed – No miscarriage of justice – Application for leave to appeal refused.

CRIMINAL LAW – Conviction – Application for leave to appeal against conviction – Evidence – Witnesses – Unreliable witness – Whether judge erred in failing to give a direction about the unreliability of the complainant – Good reasons for not giving jury warning that evidence may be unreliable – Evidence Act 2008, s 165 – No error in failing to warn jury that complainant’s evidence may be unreliable – Application for leave to appeal refused.

CRIMINAL LAW – Sentence – Applications for leave to appeal against sentence – Y sentenced to total effective sentence of 7 years and 9 months with non-parole period of 5 years and 6 months – D sentenced to total effective sentence of 7 years and 6 months with non-parole period of 5 years and 3 months – R sentenced to total effective sentence of 8 years and 6 months with non-parole period of 6 years and 3 months – S sentenced to a total effective sentence of 7 years with a non-parole period of 4 years and 3 months – Whether sentences manifestly excessive – Totality – Parity – Comparison of roles – Comparison of personal circumstances – Sentences on Y, D and S for theft of motor vehicle ordered by sentencing judge to be served cumulatively on other sentences – Cumulation excessive – Applications of Y, D and S granted and appeals allowed for purpose of reducing order for cumulation in respect of theft of motor vehicle charges – Sentences not otherwise manifestly excessive – Parity principles not infringed – No error as to totality – Appeals otherwise dismissed.

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OSBORN JA

BEACH JA

McLEISH JA:

Introduction

1 On 22 August 2014, following a 15 day trial in the County Court, the applicants (Rhys Young, Michael Doble, Travis Randall and Michael Strojek) were each convicted of one charge of kidnapping. Each applicant was also convicted or pleaded guilty to a number of related charges.

2 On 7 October 2014, following plea hearings, the applicants were sentenced as follows:

3 Young seeks leave to appeal against his sentence on the following grounds:

1. The learned trial judge paid no regard, or alternatively insufficient regard, to the sentencing principle of totality in the sentences imposed.

2. The sentence imposed on the charge of false imprisonment, and the orders made for cumulation, are each manifestly excessive.
3. The sentence imposed on the charge of theft (motor vehicle), and the orders made for cumulation, are each manifestly excessive.

4 Doble seeks leave to appeal against his conviction on the following ground:

1. The learned trial judge erred in not granting the applicant a separate trial on the basis sought, that:

(a) evidence would be led in the joint trial, that was inadmissible against the applicant, that would have the effect of bolstering the credit of the complainant; and

(b) evidence would be led in the joint trial, that was inadmissible against the applicant, that was highly prejudicial and of such extent, that there was a real danger that its prejudice could not be cured, even by careful direction.

5 Doble also seeks leave to appeal against his sentence on the following ground:

1. The learned sentencing judge erred in imposing sentences on Counts 1, 11 and 13 that were manifestly excessive, having regard to the principles of totality.

Particulars

The sentences imposed on Counts 1, 11 and 13 and the non-parole period are manifestly excessive in light of:

(a) the applicant’s role in the offending;

(b) the failure of the learned sentencing judge, on the face of the sentence, to take account of the applicant’s plea of guilty to Count 11;

(c) the circumstances of the offence comprising Count 11;

(d) the order for cumulation of half the sentence imposed on Count 11 where the offending was part of an ongoing criminal enterprise, and, where no presumption of cumulation applied; and

(e) the order for cumulation of the whole sentence imposed on Count 13 where the offending was effectively a facilitation of the offence contained in Count 1, and where no presumption of cumulation applied.^[1]

6 Randall seeks leave to appeal against his conviction on the following ground:

1. The learned trial judge erred when he refused to grant the applicant a separate trial on the basis that:

(a) evidence would be led in the joint trial, that was inadmissible against the applicant, that was highly prejudicial and of such an extent, that there would be a real danger that its prejudice could not be cured, even by careful direction; and

(b) evidence would be led in the joint trial that [was] inadmissible against the applicant that would have the effect of bolstering the credit of the complainant.

7 Randall also seeks leave to appeal against his sentence on the following ground:

1. The learned sentencing judge erred in imposing a sentence on Count 1 and a total effective sentence and non-parole period that was manifestly excessive, having regard to principles of parity and totality and the applicant’s role.^[2]

8 Strojek seeks leave to appeal against his conviction on the following grounds:

1. There has been a substantial miscarriage of justice by reason of the fact the learned trial judge erred in failing to order or direct the applicant be tried separately from his co-accused, and in doing so, prejudiced the fair trial of the applicant; and
3. The learned trial judge failed to give a direction pursuant to section 165 of the Uniform Evidence Act or at common law in relation to the unreliability of the evidence of complainant, Mr Harley Bond.^[3]

9 Strojek also seeks leave to appeal against his sentence on the following ground:

1. The sentences are excessive in respect of the following charges:

(i) Kidnap (Charge 1) — five years;

(ii) False Imprisonment (Charge 4) — three years; and

(iii) False Imprisonment (Charge 12) — 18 months.

2. The orders for cumulation in respect of the individual sentences result in a disproportionate sentence.

The Crown case at trial

10 Each of the applicants was charged with kidnapping, false imprisonment and theft of a motor vehicle. The victim of the alleged offending was Harley Bond, a small-time drug dealer who resided in Bendigo. The Crown case in relation to this offending was as follows.

11 On 15 August 2012, Bond drove to Melbourne and was introduced to Young by a mutual acquaintance. Young came to an agreement with Bond that Young would purchase two semi-automatic pistols from Bond for $13,000. Young provided Bond with the money on 17 August.

12 On 19 August 2012, Bond set out to source the guns. At this time, Strojek, a friend of Young, became involved with Bond’s plans to obtain the guns. Strojek sent a number of text messages to Bond attempting to ensure everything was proceeding as planned. Strojek would then report back to Young on developments. Bond sought to obtain the pistols from premises in Narre Warren but was robbed at gunpoint of both the cash and pistols. Young became concerned that Bond had stolen his money. Young then contacted Strojek, Randall and Doble.

13 Together, the applicants set out in a Ford Territory to an address Bond had provided in Hampton Park to try and locate him. The applicants all departed the Best Western Hotel in Frankston at 3:53am on 20 August 2012. They drove to Hampton Park and, coincidentally, met Bond’s vehicle at a roundabout at the intersection of Laura Drive and Ralph Crescent. The time was approximately 4:15–4:30am. Bond stopped his vehicle and Young stopped the Ford Territory.

14 Young walked about 25 metres to Bond’s vehicle, a Mitsubishi Lancer, and attempted to hit him through the window, before taking the keys to the vehicle from the ignition. Bond got out of the car, fell over and was confronted by the applicants. Randall, Strojek and Doble were pointing firearms at him. Randall was holding a sawn-off .22 rifle, Strojek, a 32 calibre revolver and Doble, a 12 gauge shotgun. Bond was told that he was ‘fucked’ because he had stolen Young’s money. Bond told the applicants that he had not stolen any money. He was told to get into the Ford Territory and he complied. These events constituted charge 1 (kidnapping), of which all four applicants were convicted by the jury.

15 Young directed that the Mitsubishi Lancer be taken from the roundabout. Doble then drove the vehicle from the roundabout to Frankston. Strojek later had possession of the vehicle and used it. These events constituted charge 13 (theft of a motor vehicle), of which Young, Doble and Strojek were convicted by the jury.

16 After some driving around in the Ford Territory with Young, Randall and Strojek, Bond was taken to room 105 at the Best Western Hotel. A co-accused, Sarah Pyers, had rented that room on 18 August 2012 and was present when Bond was brought into the room.

17 Bond was told to sit on the couch, told that he was ‘fucked’ and ‘in big trouble’. He was detained in that room for the next two hours. These events constituted charge 4 (false imprisonment), in respect of which Young pleaded guilty, whereas Strojek was convicted by the jury. Randall had left the room at about 9:47am, 48 minutes after Bond was taken to the Best Western Hotel.

18 Various plans to get the money back were discussed, including robbing a jewellery store and a drug dealer. At one point, the 32 calibre revolver was pointed at Bond and the trigger pulled. Bond alleged that Young and Strojek played Russian roulette with him.

19 Sometime that morning, another co-accused, Jesse Mocellin, arrived at room 105. He asked, ‘Is this the guy that stole the money?’ He then struck Bond to the leg near his knee with a machete, causing him to bleed. Mocellin demanded that Bond hold his hand out and swung his machete at his hand. Bond moved his hand to avoid Mocellin’s chopping attempts.

20 In the early afternoon, Bond was driven by Young, Doble and Mocellin, and another man, to Beaumaris and to Kew. During the course of that trip, Mocellin punched Bond three to four times to the head. At the conclusion of this trip, Bond was taken to a house in Petrie Street, Frankston. At those premises, Mocellin punched Bond to the mouth. He later required plastic surgery to repair his split lip.

21 After some time at the Petrie Street address, Bond was taken to the Frankston International Motor Inn, across the Nepean Highway from the Best Western Hotel. Doble had rented a room at that hotel earlier. At 3:57pm, Bond was taken into room 27 by Doble and held there for nearly six hours. These events constituted charge 11 (false imprisonment), to which Doble pleaded guilty.

22 During this time, Strojek was in SMS and phone contact with Doble. Doble wanted the Mitsubishi Lancer to drive, which was in the possession of Strojek, as he had damaged his own vehicle. The pair discussed the vehicle being returned to the Frankston International Motor Inn.

23 At 9:41pm on 20 August, Randall picked Bond up from the Frankston International Motor Inn. Bond was wrapped in a quilt and driven across the road by Randall to the Best Western Hotel. This event constituted the charge of false imprisonment (charge 12) of which Randall was convicted by the jury. Bond was detained by Strojek in the room in the Best Western until rescued by police about an hour later. This detention of Bond by Strojek constituted Strojek’s second charge of false imprisonment (charge 12). Unlike his first charge of false imprisonment (charge 4), Strojek pleaded guilty to this second charge (charge 12).

24 The police rescued Bond from the Best Western Hotel, arrested Doble at the Frankston International Motor Inn, and arrested Randall in the Mitsubishi Lancer.

25 A sawn-off .22 rifle and a shotgun were located in room 105 of the Best Western Hotel. A machete and ammunition were also found. A 32 calibre revolver and ammunition were located in the Ford Territory. A belt of shotgun shells was located in Doble’s room at the Frankston International Motor Inn. SMS messages, telephone records and DNA evidence were also gathered during the course of the investigation.

Separate trials (Doble, Randall and Strojek convictions)

26 Doble, Randall and Strojek each seek leave to appeal in the first instance on the ground that they should not have been tried together with Young.

27 Each points to evidence of statements made by Young which were not admissible against his co-accused but it is submitted were highly prejudicial to them.

28 In addition, Doble and Randall submit that they should not have been tried together with Strojek because evidence admissible only against him was highly prejudicial to them.

29 Where two or more accused persons are charged with offences arising out of an incident in which it is alleged they have jointly participated, it is generally highly desirable that they be tried together. In R v Demirok, Young CJ, Lush and Crockett JJ said:

The matters of public interest which must be considered in this case, and in all such cases, may be summarised as follows. In the first place, there is the question of the administrative matters of court time spent and public expense incurred if more than one trial is to be conducted. These matters will in many cases not be of very great weight, in others they may assume real significance. Secondly, it is against the interests of justice that there should be inconsistent verdicts, and those interests require that where the accounts of accused persons differ or conflict their differences should be resolved by the same jury at the same trial. Thirdly, and allied with the first two considerations, it has always been the policy of the law to reach finality as expeditiously as possible; and no system could function if it permitted the repeated retrial of the same issues except in situations where the concept of justice so required. Fourthly, the convenience of witnesses must be considered. The lot of a witness in a criminal trial is not a happy one, and unless for good reason witnesses should not be required to give evidence of the same events at a succession of trials.^[4]

30 Each of these considerations was relevant in the present case.

31 In Demirok, the Full Court went on to explain that there will nevertheless be cases where the application of the general principle favouring joint trials in cases such as this should not prevail:

Essentially, an accused man is entitled to a trial conducted in accordance with the relevant rules, the objects of which include ensuring that the evidence tendered against him is admissible evidence and that he is not exposed to prejudice by the introduction against him of material which is irrelevant or, in some situations, only marginally relevant. In very rare cases, of which we think this is one, although the trial has been correctly conducted, the result may nevertheless have been to expose the accused man to a conviction influenced by material which was both inadmissible and highly prejudicial. In such a situation, we think that it is not satisfactory to say that, the rules governing trials having been observed, there has been no miscarriage of justice. To do so is to elevate the rules above the end which they are designed to produce. The miscarriage lies in the fact that, despite the correct application of the various rules, the trial has not been of the kind which those rules are intended to produce.^[5]

32 These principles meant that in the particular facts of Demirok’s case he was entitled to a separate trial from his wife.

33 Similarly in R v Gibb and McKenzie,[6] the Full Court endorsed the general principles stated in Demirok and concluded that on the facts of that case separate trials were required. In the course of their reasons, the Full Court however observed:

Joint trials of course raise difficulties, some of which cannot be foreseen at the outset. It is for this reason that a Court of Criminal Appeal must retain the power relied upon in R v Demirok. But that power will not generally be exercised merely because evidence which has been properly admitted in the case of one accused is inadmissible in the case of another and prejudicial to that other.^[7]

34 In R v Jones and Waghorn,[8] the Full Court again affirmed the same principles. That case, like Gibb and McKenzie, involved the incidental receipt of very strong evidence of bad character which was highly prejudicial to a co-accused. Crockett J observed:

What emerges from this discussion is, I think, that, if there is not only substantial prejudice to an accused arising from a joint trial but that prejudice is of a kind not really amenable to nullification by judicial direction, then the claim for a separate trial is very much stronger. This conclusion is confirmed, I think, by the Full Court’s reasons for the conclusion it reached in Gibb and McKenzie.^[9] But it does not follow that an application for severance in such a circumstance will succeed as a matter of course.^[10]

It might be said that the essential problem faced by the applicant in the present case (and for that matter in Demirok’s case) could, in a sense, be overcome by an appropriate warning to the jury. It might be told, for instance, that when dealing with the case against Waghorn it should when considering Maloney’s evidence put out of its mind any opinion it had formed of her credibility when considering the case against Jones by calling in aid Jones’s police statement. It might then be told that it should consider afresh Maloney’s credibility without recourse to the evidence against Jones which was inadmissible against Waghorn. But such a direction is so unreal and contrived, not to say convoluted, that a judge might be excused from attempting to give it, or a jury from failing to understand it, still less for failing to act upon it. No direction in such a specific form appears to have been given in this case although it seems that in Demirok’s case some such direction may have been undertaken.^[11]

35 Smith J[12] noted that the evidence against the two accused was very different on critical aspects and that against one of them, by reason of his admissions, much stronger. As a result, the task of the jury in properly and fairly considering the case against the other would have been very difficult, if not impossible.

36 In R v Iaria, Nettle J, sitting as a trial judge, said:

Properly understood, the point which appears to me to come out of Waghorn is simply that where there is evidence which is admissible against one co-accused and inadmissible against the other, and the jury would find it difficult to exclude that evidence from consideration against the other accused, and it would be likely to strengthen the credibility of a critical witness against that other accused, and thereby turn what is a weak case against him into a strong one; it is likely to be seen that the co-accused has been so much deprived of a fair trial as to constitute a miscarriage of justice.^[13]

37 The above authorities demonstrate that the general rule in cases such as the present is that the accused should be tried jointly. It may be appropriate to depart from that rule if evidence admissible in respect of the trial of one accused but inadmissible against the other is unfairly prejudicial against the other in at least one of two senses. First, it may be that such evidence may create unacceptable collateral prejudice in the sense of establishing bad character or other prejudicial connotations that cannot be cured by judicial direction. On the other hand, it may be unfair in the sense that there is a real possibility that evidence which is powerful in the case in which it is admissible impermissibly bolsters what is otherwise a relatively weak case against another accused in which the same evidence is inadmissible and that this cannot be cured by judicial direction.

38 Ultimately, this Court must decide whether the judge’s directions were adequate to prevent the risk of unfair prejudice in the present case. In Bannon v The Queen, Deane J said:

The joint criminal trial of two persons charged either on the basis that both were jointly involved in criminal conduct or on the basis that one or other of them is alone guilty of the charged criminal offence has long been rightly seen as representing one of the most difficult facets of the administration of criminal justice. At the heart of the difficulties which are likely to be inherent in such a joint trial, there lies the likelihood that some evidence which is led against one or other of the accused will be prejudicial to the other accused but inadmissible in his or her trial. Ordinarily, the trial judge must endeavour to meet that circumstance with clear directions to the effect that the particular evidence is not evidence in the trial of the other accused and that the jury would be acting unlawfully, and doing a grave injustice to the other accused, if they took it into account against him or her. In such circumstances, the other accused is subjected to the risk of illegitimate prejudice and is likely to be placed in a forensic dilemma involving the need to choose between reliance on the efficacy of judicial directions and increasing the risk of emphasising the prejudicial material by seeking to counter it. Nonetheless, an intelligent juror can be expected to perceive the fairness of the approach that material, such as an ex-curial statement made in the absence of the other accused and not susceptible of being tested by cross-examination on behalf of that accused, should not be treated as evidence against him or her.^[14]

39 In the present case, Doble, Randall and Strojek place particular reliance upon the following matters:

1. A telephone call between Young and Dale Williams at 10:28am on 20 August 2012:

YOUNG: ‘Oh, dude, he stole thirteen grand from me yesterday morning seven o’clock and I caught him last I caught him this morning, actually no, two days ago he ran off with it, he’s been makin up lies and bullshit for two days and we fuckin went up and we found the cunt and now we’ve got him kidnapped.

b) SMS message between Young and an unrelated contact, Leeg:

‘Niiice we kidnapped this cunt that stole 13 grand of me’

100. Telephone call between Young and Dale Williams, at 10.01 pm on 20 August 2012, including the following:

YOUNG: ‘I’ve got some fuckin cockhead in my lounge-room ... he’s tied up and shit ...’

YOUNG: ... ‘trying to figure out what we can do with the cunt and make me some money’

40 In addition, Doble and Randall emphasised the following text message from Strojek to Sarah Pyers:

d) Text message from Strojeck to Sarah Pyers:^[15]

‘... Any cash I get is going to r^[16] and me he is my brotherhood now and he has done nothing but right by me so as he saw last night, no matter who he wants to stand against ‘bikes’ who ever I will gladly march up for him and do my best to get his money back.’^[17]

41 A separate trial was applied for on the basis of the above matters. The defendants generally contended that Bond had willingly gone with the group in the Territory to try and recover the lost money. It was submitted that the above evidence materially and unfairly prejudiced this defence to the kidnapping charges. At the end of the Crown case, the judge refused the application. The matter now falls to be considered in the light of the whole of the evidence as it emerged at trial.

42 It can be seen immediately that the statements complained of do not raise issues of collateral prejudice of the kind which arose in either Demirok,[18] Gibb and McKenzie[19] or Jones and Waghorn.[20] They do not in terms refer to Strojek, Randall or Doble who now submit that separate trials were necessary. Nor do they attribute bad character to the persons against whom they are inadmissible. Further, the type of language employed was pervasive in much of the evidence and was not of itself specifically prejudicial by reason of its callousness or bravado.

43 It follows that any unacceptable unfairness must, as the applicants submitted, be said to flow from the overwhelming effect of the inadmissible statements upon the defences of Doble, Randall or Strojek.

44 We do not accept that the statements complained of did overwhelm the defences of Doble, Randall or Strojek. First, the case against each of them with respect to kidnapping was a strong one. Secondly, the statements were not as destructive to the defences of Doble, Randall or Strojek as was submitted. They were on one view explicable in terms of the false imprisonments in which Young and Strojek were involved. Thirdly, the statements were capable of specific and ready identification and were the subject of very clear directions by the trial judge as to their use. We will say something further about each of these matters.

The strength of the case against the applicants seeking separate trials

45 The charges of kidnapping were founded upon Bond’s account of the manner in which he was forced at gunpoint out of his own car and into the Lancer. On appeal, counsel for the respondent tendered a table which usefully summarises the principal circumstantial matters corroborating the truthfulness of Bond’s evidence.[21]

46 In addition, there were some SMS messages which were admissible against all of the accused on a Tripodi basis.[23] At 7:48pm on 20 August 2012, Doble sent an SMS message to Strojek: ‘Im bout to let the cunt go i been here 4 and half hours’. Strojek replied:

Oh wait up man is that guy their [sic] alone with you? I had no idea bro dont let him go unless rhys says man

47 Strojek then sent a further message to Doble at 8:25pm on 20 August 2012:

Hey mate what did you want me to do swap you so you could leave or take him for a bit so you could chill

48 It was the Crown case that Strojek did in fact come and replace Doble and was looking after Bond when he was arrested.

49 That case was materially amplified by further evidence admissible against each of the applicants for separate trials.

Doble

50 In the case of Doble, the following matters may also be noted:

(1) Doble pleaded guilty to false imprisonment during the six hour detention at the Best Western Hotel. The jury were entitled to regard this as material corroboration of Bond’s account and as informing their consideration of the kidnapping and theft charges.[24]

(2) Doble was party to additional text messages with Strojek which were admissible against each of them only. In part, these concerned use of the Lancer between 5:21pm and 5:48pm on 20 August 2012.

(3) In addition, Doble sent a message to Young at 7:24pm on 20 August 2012: ‘U seriously got 15 mins and i letting him go whos drivin the fukn lancer told u i needed it’.

(4) Doble gave evidence and much of that evidence was substantially corroborative of Bond’s account of events. In particular, Doble admitted driving Bond’s Lancer from the roundabout at Young’s suggestion. Doble said that Bond ‘didn’t really agree, but said whatever kind of thing’. When asked whether he thought he had permission to take Bond’s car, Doble answered ‘he didn’t say I couldn’t take the car’.

(5) It was open to the jury to reject Doble’s evidence that Bond went willingly with Young as completely implausible.

(6) In cross-examination, Doble admitted the exchange of messages with Strojek which were admitted on a Tripodi basis.[25] He admitted that when he sent the text saying ‘Im bout to let the cunt go’ Bond was being held in the hotel room. He could not explain satisfactorily why he sent this message in these terms if, as he had previously maintained, he had had no contact with Strojek since leaving the roundabout, save concerning use of the Lancer.

(7) The shotgun shells found in Doble’s room at the Frankston International Motor Inn referred to in the schedule of evidence above corroborated Bond’s evidence that Doble had a shotgun at the time of the kidnapping.

51 When the above matters are put together, the case against Doble was very strong.

Randall

52 Insofar as Randall is concerned, it may be noted:

(a) that the first two matters listed in the schedule set out above directly corroborated Bond’s evidence that Randall was carrying a ‘handmade looking bolt action’ gun at the roundabout;

(b) Randall was arrested in the driver’s seat of the Lancer at the time when Strojek was still detaining Bond at the Best Western Hotel.

53 In effect, the case that Randall was present both at the beginning and end of the detention of Bond was very strong.

Strojek

54 The evidence admissible against Strojek in addition to that generally admissible against the accused included the following.

(1) Strojek pleaded guilty to false imprisonment, being the ultimate imprisonment in the room from which Bond was rescued. Once again this was materially corroborative of Bond’s evidence.

(2) Strojek sent Young a series of messages prior to the alleged offending including the following:

Phone Time: 19/08/2012 16:57

Message Hope you dont mind me getting involved mate was just making sure you where ok, but here is the lay down you are more then welcome at any time to go and g et your splash back and cancel it. There waiting on the bloke to wake up when he does he is going to contact them and deliver the toys to frank-sin. If your just asleep which im hoping you are ive told them to ring me and I will go and wake you up. They are expecting before 8pm

Phone Time: 19/08/2012 17:37

Message Forcing myself to stay awake so these cunts dont take your money

Phone Time 19/08/2012 17:42

Message I already sorted them I think just a waiting game bro otherwise we find the cunt take your splash back and tell him to give up the morno location up and we will go and knock on this rude un-professional time wasting cunts door

(3) Strojek exchanged SMS messages with Bond on the night of 19 August 2012, culminating in the following message from Bond:

18:00 hours I’m going back to als very shortly. I just got a message a few mins ago saying, midnight. So me and al will go back to hp to my mates at 1130 and await their arrival and that paper will not leave our hands until we have seen the stuff. My guys uncle has set a place and time now man for us so this is when it happens. No Fuck arounds.

(4) Strojek sent messages to Doble in the terms already referred to above.

(5) Strojek sent the message to Pyers referred to above.

(6) Strojek sent a message to ‘C girl’ at 7:56pm on 20 August 2012:

Now this is sus apparently they have left that bloke their for 5 hrs with this dodge bloke and he has called me saying he is going to let him go if no one comes and swaps him but the guy is not in good condition at all apparently poor fuck cant help but feel sorry for him

(7) Strojek was present with Bond when police found Bond at 10:40pm on 20 August 2012 in room 105 of the Best Western Hotel.

(8) As noted in the schedule of evidence set out above, a revolver was found in the front passenger footwell of the Ford Territory and Strojek’s fingerprints were located on the Territory.

55 When the above matters are taken together with the evidence admissible against each accused which generally corroborated the account of Bond, it is clear that the case against Strojek was a strong one.

The prejudicial nature of the evidence complained of

56 As will be apparent from the matters set out, the references to kidnapping in communications from Young and Strojek’s text to Pyers fell to be understood in the context of a complex circumstantial case. The case for Young was that the references to kidnapping should be understood as admissions of false imprisonment eg ‘now we’ve got him kidnapped’. In other words, the term ‘kidnapped’ was not used in its strict legal sense. Despite the submissions of the applicants, we do not accept that in themselves the messages were as overwhelming and devastating as is submitted. Their real force derived from their terms considered in the context of the circumstantial evidence as a whole. As we have sought to explain, the case against each of the applicants was strong and this was not a case where the inadmissible evidence was likely to overwhelm the admissible evidence.

The judge’s directions

57 The judge gave full and careful directions as to the evidence admissible against each applicant. His Honour directed the jury that as a general rule phone calls and text messages were admissible only against the persons who had made, sent or received them. The jury were instructed on a series of occasions that they could only use what was said by the accused in his record of interview in the case against him and not against any other accused. This direction was given before the records of interview were played (and with specific reference to Young’s interview) and was reinforced a number of times in the charge. His Honour described the direction as ‘critical’.

58 The jury were also given a clear direction that intercepted telephone calls involving Young were only admissible in his case and were not to be used against his co-accused. The judge also instructed the jury that each of the messages taken from Young’s phone was only evidence against the parties who sent and received it.

59 The jury were also specifically directed that the text messages sent by Strojek to persons other than each accused were not to be used in the case against any other accused.

60 The text messages between Doble and Strojek which were admitted on a Tripodi basis[26] were carefully identified as exceptions to the general rule.

61 The evidence as to text messages and phone calls was tabulated in a series of exhibits. These exhibits made clear who were the parties to the various communications. They facilitated an understanding by the jury of what evidence was admissible against which accused.

Conclusion on separate trials

62 In our view, this was not a case which required separate trials. There were powerful considerations favouring a joint trial. The offending involved concerted action over an extended period of time in which each accused took interrelated but different parts. The Crown case in the first instance depended upon the credibility of Bond as a witness. He could not sensibly be required to give his evidence separately and repeatedly against each accused in separate trials. The Crown case also involved a complex matrix of circumstantial evidence. Inconsistencies in the positions of the different accused should in the interests of justice have been resolved by the same jury. The fact that there was some evidence which was inadmissible against individual applicants does not demonstrate of itself that separate trials should have been held. The evidence now relied on as generating unfair prejudice was limited in compass when the full force of the Crown case is considered. The case against each of the applicants was strong. The evidence objected to did not involve collateral prejudice. Insofar as it was potentially prejudicial it is complained of because it contained direct or implied admissions. We are not persuaded that his Honour’s directions were inadequate to enable the jury to deal with the evidence properly and in accordance with law. This is not a case where the jury were required to perform impossible mental feats. Accordingly, the proposed grounds of appeal with respect to separate trials should not be the subject of leave.

Strojek’s remaining conviction ground: the lack of an unreliability direction in respect of Bond

63 There remains for consideration the final ground upon which Strojek seeks leave to appeal against conviction. That ground contends that the judge should have given a direction pursuant to s 165 of the Evidence Act 2008. At the time of the trial, that section relevantly provided:

(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence—

(a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies;

(b) identification evidence;

(c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like;

(d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding;

(e) evidence given in a criminal proceeding by a witness who is a prison informer;

(f) oral evidence of questioning by an investigating official of an accused that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the accused;

(g) in a proceeding against the estate of a deceased person — evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive.

(2) If there is a jury and a party so requests, the judge is to—

(a) warn the jury that the evidence may be unreliable; and

(b) inform the jury of matters that may cause it to be unreliable; and

(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.

... ^[27]

64 It was submitted at trial on behalf of Young, Randall, Strojek and Mocellin that a warning should be given pursuant to s 165 in relation to the evidence of Bond. It was conceded that the evidence was not of any of the kinds specified in s 165(1). However, it was submitted that other factors gave rise to the need for a warning. Reliance was placed on the prior convictions of Bond, his history of drug use and in particular the evidence that he had been affected by drug use at the time of the offences, which he had accepted in evidence was ‘just a blur of days getting fried’.

65 The judge refused to give a warning, on the basis that the evidence of Bond was not of a kind that may be unreliable as contemplated by s 165. The judge accepted that the issue of Bond’s credit was the central issue in the case, but observed that the jury was aware that he used drugs and was affected by them at the time of the events in question, that he had prior convictions for trafficking in drugs and that he was at the time of the trial in prison. Apart from the evidence already alluded to, Bond had been subject to lengthy cross-examination suggesting that he was dishonest and not telling the truth.

66 The judge gave two specific reasons why he declined to give a warning. First, evidence had been given by Doble that he had been in prison himself for some four months and that he had used drugs either on the occasion of or shortly before the incidents the subject of the charges. He had also stated that he had traded in drugs around the time the events before the court were occurring. As a result, if a warning were to be given in relation to Bond’s evidence, then by implication that warning would affect the evidence of Doble as well. The judge held that it was unfair in the circumstances for that to occur.

67 Secondly, the judge stated that the criticisms that could be made of Bond as a witness would be made clear before the jury in any event. He gave as examples of those criticisms the allegation that Bond was affected by drugs at the time of the incidents and that this had affected his perception and his reliability, as well as his credit. The judge said that some of the matters that had been referred to by counsel would be reinforced by him.

68 On the appeal, counsel for Strojek submitted that the use of drugs by Bond at or around the time of the offending, together with his criminal record and involvement in ‘part of the criminal milieu’ made his evidence of a kind that may be unreliable within the meaning of s 165.

69 The kinds of evidence set out in s 165(1) are not exhaustive of the categories in respect of which a warning as to potentially unreliable evidence may be given.[28] The question whether a warning should be given in cases not within the specific provisions therefore depends upon all the circumstances, but especially whether or not the jury would be able, relying on its own knowledge and experience, fully to evaluate or appreciate the subject matter said to call for the warning.[29] The point was made in the common law context in the following way by Brennan J in Bromley v The Queen:

The rules of practice requiring the giving of a warning owe their existence, as Lord Hailsham acknowledges in Spencer^[30] ‘partly to the inherent dangers involved, and partly to the fact that the danger is not necessarily obvious to a lay mind’: see also per Lord Ackner^[31] and per Lord Diplock in Hester.^[32] If the danger is equally obvious to the lay mind, a failure to warn of its existence is much less likely to result in a miscarriage of justice and thus much less likely to provide a ground for quashing a conviction than if the court has a special knowledge of the danger. If the danger is so obvious that the jury are fully alive to it without a warning, no warning need be given.^[33]

70 Counsel for Strojek on the appeal relied on R v Maple,[34] which it was contended demonstrated the need for a warning in respect of the evidence of a witness who was affected by drugs at the time of the events in question. However, Maple is not authority for any such general requirement. The complainant in that case was an alcoholic, had previously been a psychiatric patient and remained under psychological supervision, and had problems with her memory. The application for a warning was made upon the basis of these, as well as other factors. In holding that no warning was required to be given, Tadgell JA said, with reference to the cases where a warning was required:

In those kinds of cases, so far as I can see, it is important that the jury be instructed, when the circumstances are such that the parlous quality of the evidence might not be within the ability of the jury to assess for themselves, and the full significance of the shortcomings of it may be apparent to a judge but not necessarily obvious to the lay mind ... In this case before us now, the undoubted shortcomings of the complainant as a witness were more or less obvious, I should have thought, to a layman such as a juror having to undertake a consideration of her evidence. There was in substance nothing by way of a concealed trap about her evidence, nothing about her in the nature of, say, an accomplice or a police informer, or any other category which tended to make the evidence of the complainant dangerous to accept in the absence of a clear warning ...^[35]

71 The reasoning of Tadgell JA, with whom Ormiston JA and Chernov JA agreed, reflects that of the trial judge in the present case. The jury was very well aware of the deficiencies that had been alleged to affect Bond’s evidence. There was nothing about those alleged deficiencies which rendered his evidence of a kind that was potentially unreliable within the meaning of s 165. The jury was in a position properly to evaluate the alleged deficiencies in the evidence.

72 Nor is it the case that the courts can be assumed to have special experience or knowledge of the likely effects of the use of a given drug on a particular witness, beyond that of an ordinary member of a jury. To assist the jury, it may instead be permissible for expert evidence to be adduced as to the effect or likely effect of the use of a drug on a witness.[36] This was not done in the present case.

73 Further, for the reasons given by the trial judge, it would have been inappropriate to give a warning in this case in any event. It was plain that, had a warning been given as to the potential unreliability of Bond’s evidence by virtue of his drug use and criminal record, that warning would have applied with equal force to the evidence given by Doble. To give a warning in those circumstances would have been seriously prejudicial to Doble. As well, it could have deprived Strojek of the potential benefit of the jury accepting Doble’s evidence that there was no act of kidnapping at the roundabout.

74 There is no substance in this ground.

Sentence applications: background of the applicants

75 In sentencing the applicants, the trial judge set out the circumstances and background of each applicant.[37] It is not necessary to rehearse all of those matters here. It is sufficient to say that at the time of the offending, Young and Strojek were 24 years of age, with no prior convictions; Doble was 31 years of age, with a prior conviction for contravening a family violence interim intervention order, for which he was fined $200 without conviction; and Randall was 35 years of age with 85 prior convictions, from 15 court appearances over 17 years. While the judge described Randall as a ‘hardened criminal of mature age’,[38] we should say for completeness that all of Randall’s prior convictions were matters that had been dealt with summarily — although his prior convictions did include two convictions for intentionally or recklessly causing injury and convictions in respect of firearms and ammunition.

76 While Young had no prior convictions, he had been involved in other offending that resulted in convictions and sentences of imprisonment being imposed upon him between the time of the present offending and the time of trial. Specifically, Young received a sentence of 12 months’ imprisonment in 2013 and a sentence of one month’s imprisonment in 2014 in respect of this other offending. In saying that he would accept Young’s counsel’s submission about totality, the judge described Young’s other offending, and the totality issue that arose, in the following terms:

On 6 May 2013 at a consolidation and collection of charges at the Frankston Magistrates’ Court, you were convicted of burglary, unlawful assault, criminal damage, dealing with property suspected of being proceeds of crime, trafficking amphetamine, possessing cartridge ammunition without an authority, theft, possessing methylamphetamine and possessing cannabis and driving offences.

You were sentenced to an effective term of imprisonment of 15 months with a non-parole period of six months. Two hundred and seventy-five days of PSD was declared. On appeal to this court, the sentence was reduced to 12 months’ imprisonment with a non-parole period of six months. You served every day of the head sentence because of the inability to apply for parole pending appeal.

You were then released on bail for the offending I am to sentence you for at the conclusion of that head sentence. You were at large for about four months before breaching bail and being returned to custody. You apparently stole a motor vehicle, handled stolen goods, drove while disqualified and gave police false details when apprehended.

You appeared before Frankston Magistrates’ Court on 9 July this year and were sentenced to one month’s imprisonment and fined. Apart from that one-month sentence, you have been on remand for these matters, the matters I am to sentence you.

Your counsel urged that I take into account the period of time you have been in custody on the subsequence sentences when arriving at an appropriate sentence for this offending. He argued that principles of totality are relevant for a youthful offender such as you, and I accept that submission, and will take the fact that you have had to serve, effectively, an extra six months in custody because of your inability to get parole on the Frankston sentence on 6 May 2013 into account.^[39]

Young’s sentence application

77 Young makes three complaints about the sentence imposed upon him: first, a complaint about totality (ground 1); secondly, a complaint that the sentence imposed on the charge of false imprisonment and the orders made for cumulation were manifestly excessive (ground 2); and thirdly, a complaint that the sentence imposed on the charge of theft of the motor vehicle and the orders made for cumulation on that charge were also manifestly excessive (ground 3).

78 There is nothing in ground 1. Plainly, the judge paid careful attention to the issue of totality when he came to sentence Young. Young was the ringleader in respect of the very serious offending that was engaged in by the applicants. But for the totality issue in relation to Young, one might have expected the judge to impose higher sentences on Young in relation to his offending.

79 Similarly, there is nothing in Young’s ground 2. The sentence for false imprisonment cannot be viewed in isolation. As Priest JA[40] pointed out in Hanna v The Queen,[41] kidnapping, which often culminates in an ensuing period of false imprisonment, often attracts sentences of imprisonment in ‘double figures’. Indeed, ‘sentences of imprisonment exceeding seven years, to a shade under 10 years, are not uncommon generally for kidnapping and associated offending’.[42] Here, the sentence for the kidnapping and associated offending was well within the normal range. This adequately reflects Young’s guilty plea on the false imprisonment charge, as well as his role in orchestrating the offending.

80 While the judge might have structured Young’s sentence for kidnapping and false imprisonment differently, notwithstanding Young’s plea of guilty to the charge of false imprisonment, we see no error in the overall sentence imposed in respect of these offences.

81 On the plea, submissions were made to the judge that if Young, Doble or Strojek fell to be sentenced solely for the theft of Bond’s motor vehicle, then they would be ‘unlucky to get any gaol time’. The judge appeared to accept this submission, saying that the theft of the motor vehicle was all tied up with Bond’s kidnapping. Nevertheless, when it came to sentencing Young, Doble and Strojek for the theft of the motor vehicle, they each received a sentence of six months’ imprisonment, which sentence was then cumulated in full upon the other sentences imposed. While, in the circumstances of each case, we see no error in the judge imposing sentences of six months’ imprisonment for the theft of Bond’s motor vehicle, in our view, cumulating the whole of each of these sentences, in respect of applicants who had no prior convictions (Young and Strojek) and an applicant with only one prior conviction (Doble), was excessive.

82 We would reduce each order for cumulation in respect of the theft of Bond’s motor vehicle from six months to three months. While reducing the order for cumulation on the theft of motor vehicle charge for each of Young, Doble and Strojek will have an effect on the total effective sentences and non-parole periods, the reduction in these orders for cumulation does not re-open the sentencing discretion in respect of the other sentences and other orders for cumulation made by the judge.[43]

Doble’s sentence application

83 Doble complains about the sentence imposed upon him, saying that it is manifestly excessive having regard to the principles of totality. As has been said many times before, manifest excess is a difficult ground to make out. The test for manifest excess is whether the sentence was wholly outside the range of sentencing options available to the judge, not whether some other sentence could have been imposed.[44] In our view, there is no substance in Doble’s complaint of manifest excess in relation to the sentence he received for kidnapping. This was a very serious offending. It well deserved a sentence of the order imposed by the judge.

84 While the sentence for false imprisonment was relatively high having regard to Doble’s plea of guilty, it is to be remembered that the charge of false imprisonment for which Doble pleaded guilty spanned some six hours. In the circumstances, we are unable to say that the sentence imposed or the order for cumulation was wholly outside the range of sentencing options available to the judge.[45]

85 However, with respect to the sentence imposed for the theft of Bond’s motor vehicle, for the reasons we have already given in relation to Young’s sentence, we would reduce the order for cumulation made by the judge from six months to three months. Otherwise, we do not see any totality issue in respect of the sentence the judge imposed on Doble.

Randall’s sentence application

86 Randall makes complaint that the sentence imposed upon him for kidnapping, the total effective sentence, and the non-parole period, were all manifestly excessive, having regard to principles of parity and totality and his role in the offending.

87 It may be accepted that Randall’s role in the offending was somewhat less than that of his co-offenders, he being absent and away from the offending for a good deal of it. However, he was there and involved in the very serious part of the offending at its commencement, and was also a participant in falsely imprisoning Bond at a time when Bond had already been falsely imprisoned for many hours. That said, but for Randall’s prior bad criminal history, one would have expected him to receive lesser sentences than his co-offenders. The distinguishing feature in Randall’s case is, in reality, his age and prior bad criminal history. In sentencing Randall, the judge said:

Your prior criminal history is lengthy and relevant. You are a hardened criminal of mature age. You are significantly older, and have far more prior convictions, than your co-defendants. Your criminal history is consistent with your lifelong involvement with illegal drugs. Clearly your prospects of rehabilitation are somewhat grim. Any prospects for the future are clearly dependent on your ability to deal with your drug issues whilst you are in custody.^[46]

88 While different judges might have given greater or lesser weight to Randall’s prior criminal history, the view taken by the sentencing judge in this case was open. In our view, there is force in the Crown’s submission that had Randall not received sentences of the order he received, issues of parity would likely have arisen in relation to Randall’s co-offenders. In the circumstances, while Randall’s manifest excess ground is arguable, we are unable to conclude that the sentences imposed upon Randall were outside the permissible range.

Strojek’s sentence application

89 In seeking leave to appeal against his sentence, Strojek makes complaint that the sentences imposed in respect of kidnapping (charge 1) and the two false imprisonment charges (charges 4 and 12) were excessive. Additionally, Strojek complains that the order for cumulation in respect of the individual sentences imposed upon him resulted in a disproportionate sentence.

90 For the reasons already given in relation to Young, Doble and Randall, there is no substance in Strojek’s complaint about the sentence imposed upon him for kidnapping. Similarly, there is no substance in Strojek’s complaints about the sentences imposed for false imprisonment. In respect of the sentence imposed upon charge 4, it might be said that Strojek was dealt with leniently. He pleaded not guilty to that charge and only received an additional 12 months in respect of it, whereas Young, who pleaded guilty, received an additional 15 months cumulated on his sentence for that same charge.

91 As to the second false imprisonment charge (charge 12), Strojek’s sentence lines up with that imposed on Randall. For his plea of guilty, Strojek received an additional six months cumulated on his sentence. Neither this cumulation nor the actual sentence imposed on that charge could reasonably be argued to be excessive.

92 However, as in the case of Young and Doble, we think the judge erred in cumulating the whole of the sentence imposed for the theft of Bond’s motor vehicle. As with those sentences, we would reduce the order for cumulation from six months to three months.

Conclusion

93 Doble’s, Randall’s and Strojek’s applications for leave to appeal against conviction will be refused. Young’s application for leave to appeal against sentence will be granted, and his appeal allowed, for the purpose of reducing the order for cumulation in respect of charge 13 to three months. This makes a total effective sentence for Young of 7 years and 6 months. We would refix Young’s non-parole period at 5 years and 3 months.

94 Doble’s application for leave to appeal against sentence will be granted, and his appeal against sentence allowed for the same reason. The order for cumulation on charge 13 will be reduced to three months. This makes Doble’s total effective sentence 7 years and 3 months. We would refix Doble’s non-parole period at 5 years.

95 Strojek’s application for leave to appeal against sentence will similarly be granted, and his appeal allowed, again so as to reduce the order for cumulation on charge 13 to three months. This gives Strojek a total effective sentence of 6 years and 9 months’ imprisonment. We would refix his non-parole period at 4 years.

96 We would grant Randall leave to appeal against his sentence. However, for the reasons already given, Randall’s appeal against sentence must be dismissed.

^[1] In his application for leave to appeal against sentence, Doble relied upon a second ground of appeal. However, this second ground was abandoned at hearing.

^[2] In his application for leave to appeal against sentence, Randall relied upon a second ground of appeal. However, this second ground of appeal was abandoned at hearing.

^[3] Ground 2 of Strojek’s application for leave to appeal against conviction was abandoned at hearing.

^[4] [1976] VicRp 19; [1976] VR 244, 254 (‘Demirok’).

^[5] Ibid 255–6.

^[6] [1983] VicRp 78; [1983] 2 VR 155 (‘Gibbs and McKenzie’).

^[7] Ibid 163.

^[8] (1991) 55 A Crim R 159 (‘Jones and Waghorn’).

^[9] [1983] VicRp 78; [1983] 2 VR 155.

^[10] See Ditroia and Tucci [1981] VicRp 28; [1981] VR 247.

^[11] Jones and Waghorn (1991) 55 A Crim R 159, 164 (citations in original).

^[12] Ibid 180.

^[13] [2004] VSC 110, [22].

^[14] [1995] HCA 27; (1995) 185 CLR 1, 13.

^[15] Co-accused, pleaded guilty on the first day of trial.

^[16] A reference to Young.

^[17] Citation in original.

^[18] [1976] VicRp 19; [1976] VR 244.

^[19] [1983] VicRp 78; [1983] 2 VR 155.

^[20] (1991) 55 A Crim R 159.

^[21] Citation in original. Transcript and photograph references omitted.