SUPREME COURT OF QUEENSLAND

CITATION:	R v Dixon [2022] QCA 167	
PARTIES:	R
v
DIXON, Anthony Malcolm
(appellant/applicant)	
FILE NO/S:	CA No 335 of 2021
DC No 80 of 2021	
DIVISION:	Court of Appeal	
PROCEEDING:	Appeal against Conviction & Sentence	
ORIGINATING COURT:	District Court at Rockhampton – Date of Conviction: 17 November 2021; Date of Sentence: 18 November 2021 (Clarke DCJ)	
DELIVERED ON:	2 September 2022	
DELIVERED AT:	Brisbane	
HEARING DATE:	22 August 2022	
JUDGES:	Mullins P and McMurdo and Bond JJA	
ORDERS:	1.	Appeal against conviction dismissed.
2.	Application for leave to appeal against sentence refused.	
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of one count of burglary, by breaking, in the night, with violence, while armed, in company and two counts of assault occasioning bodily harm, while armed, in company – where the prosecution case at trial was that the appellant counselled and/or procured the co-defendants to commit each of the offences – where a prior dispute existed between one of the complainants and the appellant – whether the jury should not have been persuaded by the evidence of the complainants due to inconsistences in their evidence – where there was no physical evidence placing the appellant at the residence – whether the verdicts were unreasonable
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant was convicted of one count of burglary, by breaking, in the night, with violence, while armed, in company and two counts of assault occasioning bodily harm, while armed, in company – where the prosecution case at trial was that the appellant counselled and/or procured the co-defendants to commit each of the offences – where the trial judge reminded the prosecutor to ask one of the complainants whether he consented to the home invasion or being assaulted – where the appellant submits this judicial interference occasioned a miscarriage of justice – whether the trial judge’s interference in the questioning of the complainant denied the appellant the chance to make a no case submission and caused a miscarriage of justice
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was convicted of one count of burglary, by breaking, in the night, with violence, while armed, in company and two counts of assault occasioning bodily harm, while armed, in company – where the prosecution case at trial was that the appellant counselled and/or procured the co-defendants to commit each of the offences – where the appellant was sentenced for the most serious offence to four years’ imprisonment, to be suspended after serving two years in custody for an operational period of five years – where the trial judge took into consideration that the appellant denied criminal responsibility, the complainants were seriously injured, the appellant’s lack of history and his age of 62 years at the date of offending – whether the sentence was manifestly excessive
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, followed
R v Kraaz [2006] QCA 520, considered
R v Leu; R v Togia (2008) 186 A Crim R 240; [2008] QCA 201, cited	
COUNSEL:	The appellant/applicant appeared on his own behalf
C W Wallis for the respondent	
SOLICITORS:	The appellant/applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent	
[1]	THE COURT:  Mr Dixon was convicted after trial in the District Court before a jury of one count of burglary, by breaking, in the night, with violence, while armed, in company (count 1) and two counts of assault occasioning bodily harm, while armed, in company (counts 2 and 3).  On count 1, Mr Dixon was sentenced to imprisonment for a period of four years to be suspended after serving a period of two years’ imprisonment with an operational period of five years.  He was sentenced to imprisonment for two years for each of counts 2 and 3.  All sentences are concurrent.  A pre-sentence custody declaration was made in respect of 223 days spent in pre‑sentence custody between 6 August 2020 and 16 March 2021.
[2]	Mr Willington and his son Mr Campbell resided in the townhouse that was burgled which burglary was the subject of count 1.  On the evening of 5 August 2020, three men (the co-defendants) broke into the townhouse and assaulted the complainants.  Mr Willington was the complainant for count 2 and Mr Campbell was the complainant for count 3.  The prosecution case at the trial was that Mr Dixon counselled and/or procured the co‑defendants to commit each of the offences and was not that Mr Dixon broke into the residence and physically participated in the assaults.
[3]	There are two grounds relied on to appeal against the conviction: first, the verdict was unsafe and unsatisfactory and, second, that the learned trial judge’s interference in the questioning of the complainant Mr Campbell denied Mr Dixon the chance to make a no case submission at the close of the prosecution case.  Mr Dixon applies for leave to appeal against the sentence on the ground that it is manifestly excessive.  Although Mr Dixon was represented by lawyers at the trial, he appears for himself on the appeal and sentence leave application.
Summary of the evidence at the trial
[4]	Mr Willington’s evidence in chief included the following.  Mr Dixon and Mr Willington had known each other for a period of years and at some stages Mr Willington had let Mr Dixon stay at his townhouse.  In the late afternoon of 5 August 2020 Mr Willington went to a Sports Club and met up there with his son Mr Campbell.  In the months leading up to August 2020, Mr Willington had sold Mr Dixon a car.  Mr Willington had been told by other people that Mr Dixon was saying that he had been sold a “lemon”.  Mr Willington confronted Mr Dixon over that at the club, telling him that if he had something to say, to say it to his face.  Mr Willington was asked to leave the club.  Mr Willington heard Mr Dixon on the phone “talking to someone about getting somebody to do a job on [him]”.  A photograph of Mr Willington and Mr Dixon at the club on that evening was tendered as exhibit 1.  The photograph showed both parties at high tables with Mr Dixon standing at one table that was next to the table at which Mr Willington and Mr Campbell were seated.
[5]	Mr Willington returned home, watched television and went to bed a bit after 9.00 pm.  He slept downstairs and his son was upstairs.  He then heard a bang on the back glass sliding door.  As he headed towards the door, he realised that it was Mr Dixon and saw him running past the kitchen window and out the front gate.  He returned to go back to sleep, but about 10 minutes later there was a bang on the front door.  Mr Willington got up and looked out.  He opened the wooden door, as the security screen door was locked.  There were three men in balaclavas and one of them said that Mr Willington had “ripped” his father off, selling him a dud car and Mr Willington responded “Lance, take your balaclava off” as he recognised the voice of the man who spoke as Mr Dixon’s son, Lance Dixon, whom he had also known for a period of time.  The three men “ripped” the screen door open.  They had a baton, sticks and a knife and they attacked Mr Willington until he blacked out.  (The injuries sustained by Mr Willington were the subject of admissions.)
[6]	Mr Willington did not consent to any person assaulting him on that occasion or entering his house.
[7]	Mr Willington’s evidence in cross-examination included the following.  Mr Willington had raised his voice in his exchange with Mr Dixon at the club.  He did hear Mr Dixon on the phone saying that someone needed to come and sort out Mr Willington.
[8]	In re‑examination, Mr Willington accepted that when he first spoke to police on 6 August 2020, he did not tell them that he had heard Mr Dixon at the club say on the phone that he would get someone to sort out Mr Willington.
[9]	Mr Campbell’s evidence in chief included the following.  In the months leading up to August 2020, his father had sold Mr Dixon a car.  On 3 August 2020 Mr Campbell was out with a friend at the club when he saw Mr Dixon who said to him that Mr Willington had sold him a dud car.  Mr Campbell shrugged it off.  Mr Campbell was at the club on 5 August 2020 with his father and Mr Dixon was sitting at the table behind them.  In response to comments that Mr Dixon was making to people at his table, Mr Willington and Mr Campbell responded.  Mr Campbell told Mr Dixon “to pull his head in”.  After a while, Mr Dixon was on the phone and said “They’re dogs.  They’re here.” and “They’re leaving soon”.  That was when Mr Willington reacted, although Mr Campbell was not sure what he said, but Mr Willington left the venue.  At one stage when all three of Mr Dixon, Mr Willington and Mr Campbell had their voices raised, a bar staff member told them to calm down.  Mr Campbell left the club five or 10 minutes after his father.
[10]	After Mr Campbell had gone to bed upstairs in the townhouse, he heard a loud bang out the back.  He got up and went downstairs and saw something run past the kitchen.  He opened the back door, looked around the yard and then locked the door and went back upstairs.  Soon after that, someone knocked on the front door and Mr Campbell heard yelling.  By the time he got to the stairs, there were three people at the front door and two of them had ripped the screen door off, came inside and started assaulting his father.  Mr Campbell recognised the first man as Lance Dixon, as he had seen him once or twice before and he was shouting “You sold my dad a shit car”.  He heard his father say to him “Show your face”.  Three men came into the townhouse.  He saw the men strike his father and Mr Campbell was also struck.  At some point his father was on the ground and being kicked and Mr Campbell stood in front of his father and put his arms up to protect his own head.  One of them yelled to Mr Campbell to the effect “Where’s your money?”.  Mr Campbell then saw a light out the front of the window and the three men ran away.  Mr Campbell slammed the door closed and locked it and then rang triple 0.  He then heard a tap on the window next to the front door and saw Mr Dixon who was pointing at them and saying “I got you. I’ll get you again”.
[11]	At the conclusion of Mr Campbell’s evidence in chief, the trial judge said to the prosecutor “Consent?” and the prosecutor then confirmed with Mr Campbell that he did not consent to anyone coming into his house that evening and did not consent to the assault.  (The injuries sustained by Mr Campbell were the subject of admissions.)
[12]	Mr Campbell’s evidence in cross-examination included the following.  Mr Campbell raised his voice in the exchange with Mr Dixon at the club on 5 August 2020.  Mr Dixon was on the phone when Mr Campbell and his father were saying words to him.  Mr Willington was seated next to Mr Campbell.  When cross-examined on his evidence that he could not say what his father had said to Mr Dixon, Mr Campbell responded:
“I didn’t really pay attention. I was actually on my phone just, you know, trying to avoid the whole thing.”
[13]	Mr Dixon’s trial counsel emphasised the point by putting to Mr Campbell that he could hear what Mr Dixon was saying on his phone a table away, but could not hear his father who was seated right next to him, to which Mr Campbell responded that it was “a quick and short thing that he said” in a moment where Mr Campbell was not really paying too much attention to it.  Mr Campbell confirmed that he did hear Mr Dixon say “They’re both here, and they will be leaving soon”.  Mr Campbell went home initially, but then went three doors down to Mr Dixon’s daughter’s home.  He yelled at her through the door.
[14]	The grandson of the people who resided in the adjoining townhouse gave evidence.  He was living with his grandparents and around 10.30 pm on 5 August 2020, he heard a lot of yelling and went out to the back patio.  He heard a lot more yelling and swearing from the adjoining townhouse, including someone telling people to get out of his house.  He saw one person standing in the doorway and could hear glass smashing from inside the house and a lot more swearing from Mr Willington.  He turned and called to his grandfather and, by the time his grandfather came out to the patio, there were three people leaving that townhouse.  The grandson opened the roller door where he lived and went over and knocked on the front door of Mr Willington’s residence.  He heard Mr Campbell calling triple 0.  He went back to the patio, grabbed a torch and ran straight out to the street and stayed in the middle of the street until the police arrived.  He would have noticed if there was someone looking through the front window to unit 2, the adjoining unit.  He only saw the three men that ran out from the house.  The police arrived about 30 seconds or a minute after the call was made.
[15]	The grandfather gave evidence.  He was watching television on the evening of 5 August 2020, when he heard Mr Willington scream.  He got up and went to his back door and saw three young men running out of Mr Willington’s place.  The grandfather ran and opened the front door and took note of the direction in which they ran which was towards the creek or the shopping centre.  He returned to watching television. When he first went to the back of his unit, his grandson was in his room.  The grandfather had gone out first and the grandson came out behind him.  The grandfather’s back door looks straight into Mr Willington’s front door.  No one else left the townhouse complex itself.  The police arrived probably five minutes later.
[16]	The woman at whose address Mr Dixon had been living since April 2020 gave evidence.  When she arrived home from work at about 5.30 pm on 5 August 2020, Mr Dixon was not at home.  He arrived home between 7.30 pm and 8.00 pm.  She went to bed about 9.00 pm and Mr Dixon was still in the house in his bedroom.  When she woke up the next morning at 6.00 am, Mr Dixon was in the kitchen.  (This witness’ evidence did not exclude the possibility that Mr Dixon did leave his accommodation after 9.00 pm and returned without the witness’ being aware of that absence.)
[17]	Both the prosecution and Mr Dixon made admissions about the calls made and received by Mr Dixon on 5 August 2020, according to his phone records.  There were multiple calls between Mr Dixon and his son Lance from between 5.16 pm and 8.59 pm.  Another admission was made in respect of CCTV footage and taxi booking records that showed that Mr Lance Dixon and two other men got into a taxi at 9.55 pm on 5 August 2020 and were dropped off at the club at 9.59 pm.  It was admitted that CCTV footage from the shopping centre in the vicinity of Mr Willington’s townhouse showed Mr Lance Dixon and the other two men walking around the centre at 10.34 pm on 5 August 2020.  It was also admitted that a named female person was telephoned by Mr Lance Dixon requesting that she pick him up from the shopping centre and when she arrived Mr Lance Dixon was in the company of the other two men.
[18]	A police officer gave evidence that no fingerprints of Mr Dixon were found at the townhouse.
[19]	The prosecution tendered as exhibit 29 three extracts from the CCTV footage at the club on the evening of 5 August 2020 which were played for the jury.  The first extract was for about 11 minutes from 5.33 pm.  The second lasted for about six minutes from 5.59 pm and the third for about 22 minutes from 6.06 pm.
[20]	Mr Dixon neither called nor gave evidence.
Ground 1 – Were the verdicts unreasonable?
[21]	For the jury to have returned guilty verdicts, they were satisfied of the credibility and reliability of the evidence given by each of the complainants and therefore satisfied beyond reasonable doubt that the offences committed by the co-defendants were counselled or procured by Mr Dixon.  The role of this Court on the appeal in dealing with the ground that the verdicts of the jury were unreasonable, or could not be supported having regard to the evidence, is explained by the High Court in Pell v The Queen (2020) 268 CLR 123 at [39]:
“The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.” (footnote omitted)
[22]	The home invasion and the assaults on Mr Willington and Mr Campbell had to be considered by the jury in the context of the aggravation or dispute that existed between Mr Willington (and Mr Campbell) on the one hand and Mr Dixon on the other that was exhibited (and recorded) at the club earlier the same evening.  Even though there was no physical evidence of Mr Dixon’s presence at the townhouse, it was a matter for the jury whether they accepted the evidence of both Mr Willington and Mr Campbell that a person had banged on the back door before the home invasion then took place.  The involvement of Mr Dixon was a strong inference from the ongoing dispute he had with Mr Willington, the confrontation that occurred at the club, the constant telephone calls between Mr Dixon and his son on the same evening commencing while Mr Dixon was at the club and ending shortly before his son arrived at the club at 9.59 pm, the statements that Mr Dixon made on the phone at the club that were overheard by Mr Willington and Mr Campbell, and that Mr Dixon’s son was identified as one of the co-defendants.
[23]	The apparent inconsistencies in the evidence between the grandfather and the grandson as to seeing only three men run away from Mr Willington’s townhouse and the evidence of Mr Campbell about seeing Mr Dixon at the front window whilst he was on the triple 0 call are reconcilable.  On Mr Campbell’s evidence, he had a very quick sighting of Mr Dixon appearing at the front window after the assaults before Mr Dixon disappeared.  That could have occurred before the grandson arrived at the front door or when the grandson went back to his residence for his torch.  Even though both the grandfather and his grandson saw only three men run away from the townhouse, it is apparent that neither of them had Mr Willington’s townhouse in his view at all relevant times, as they moved respectively around their own townhouse and the grandson moved between the townhouses.
[24]	The appellant made submissions that the jury should not have been persuaded by the evidence of the complainants because of inconsistencies between their evidence and that Mr Campbell’s credit was affected by the fact that he could not recall hearing what his father said to Mr Dixon at the club, when he said he overheard Mr Dixon’s phone call.  Mr Campbell provided an explanation for that in his evidence.  The jury also had the advantage of viewing the CCTV footage from the club.  It was not an inconsistency that Mr Willington identified Mr Dixon as knocking on the back door of the townhouse before the incident and Mr Campbell gave evidence of hearing the knock and by the time he got downstairs all he saw was something run past the kitchen.
[25]	It was open to the jury to accept the evidence of Mr Willington’s seeing Mr Dixon at the back door of the townhouse before the incident and the evidence of Mr Campbell’s seeing him at the front window to gloat after the incident.  It was a strong circumstantial case that enabled the jury to be satisfied beyond reasonable doubt of Mr Dixon’s procuring the involvement of the co-defendants in the offending.  Allowing for the advantage that the jury had in observing the witnesses give their evidence, there is not a significant possibility that an innocent person has been convicted.
[26]	Mr Dixon cannot succeed on ground 1.
Ground 2 – Did judicial interference cause a miscarriage of justice?
[27]	The fact that the trial judge reminded the prosecutor to ask Mr Campbell whether or not he consented to the co-defendants’ invasion of his home or being assaulted by them was not interference of a kind that could result in a miscarriage of justice.  The trial judge was no doubt mindful that the prosecution had to show that the acts of the co-defendants were unlawful which could be done by showing that the complainants did not consent to their acts that constituted the offences.  That had been done in the course of Mr Willington’s evidence.
[28]	Even without the reminder by the trial judge, it could be inferred from Mr Campbell’s evidence that he did not consent to the acts of the co-defendants.  The trial judge by the reminder was addressing an oversight of the prosecutor that may have otherwise resulted in an application to recall Mr Campbell to obtain that formal evidence which was unlikely in the circumstances of the evidence given at the trial to have been opposed successfully by Mr Dixon.  There is absolutely no basis for Mr Dixon’s assertion that the reminder of the trial judge to the prosecutor about adducing evidence of no consent from Mr Campbell denied Mr Dixon the chance to make a strong no case submission in respect of count 3 at the conclusion of the prosecution case.  Mr Dixon therefore does not succeed on ground 2.
Was the sentence manifestly excessive?
[29]	Mr Dixon was 62 years old at the date of the offending.  He had a relatively minor and dated criminal history.  Mr Dixon was significantly injured in 2013 whilst working as a horse trainer and was unable to continue working.  He was receiving a disability support pension.  The trial judge had before the trial sentenced the co-defendants who pleaded guilty.  Mr Lance Dixon (who was 24 years old at the date of offending) and one of the co-defendants (who was 27 years old at the date of offending) were each sentenced to an effective head sentence of four years’ imprisonment.  Mr Lance Dixon’s sentences were suspended after he had served 14 months in custody for an operational period of four and one-half years.  His co-defendant who was also sentenced to four years’ imprisonment was given an eligibility for parole date after serving 376 days in custody.  Although the other co-defendant was the youngest co-defendant (at 18 years old at the date of offending) he had a substantial criminal history and the offences were committed whilst he was on parole, so the effective sentence of imprisonment for three years and six months imposed on him had been reduced to take account of it being cumulative on the existing sentence.  The co-defendants had also pleaded guilty to attempted armed robbery of Mr Campbell that occurred in the same incident.
[30]	The sentencing remarks of the trial judge included the following.  Mr Dixon had denied his criminal responsibility in respect of serious offending, so that issues of deterrence, denunciation and community protection take on prominence.  It was shameful for Mr Dixon to have involved his own son in the offending.  The complainants were seriously injured.  The offences also had a significant psychological impact on the complainants.  The inference should be drawn that Mr Dixon attended before the offending to confirm that Mr Willington was at home.  He tapped on the window after the offending to gloat that he had got them.  The co‑defendants’ sentences were reduced having regard to their pleas of guilty and their relative youth.  It was appropriate in the circumstances of Mr Dixon’s lack of history and his age to suspend the sentence partially.
[31]	Before the trial judge, the prosecutor relied on R v Kraaz [2006] QCA 520 to support a submission that the effective sentence for Mr Dixon should be imprisonment for four years.  Mr Dixon’s trial counsel accepted that Kraaz was relevant, as the offender had been sentenced after trial for the offence of entering a dwelling house to commit an indictable offence in the dwelling in company with another on the basis that the offence was actually committed by the co-offenders at her instigation.  She had been charged with the aggravating circumstance of the offence being committed “whilst armed” but was acquitted of that circumstance of aggravation.  The offender was 19 years old at the time of the offence and the daughter of the complainant.  She had financial problems because of her involvement with drugs and informed others that there would be gemstones and cash at a safe in the house.  She drove the co-offenders to a place near the complainant’s property and gave them instructions as to where to find the safe.  The offender did not go into the residence herself.  The co‑offenders armed themselves with a shotgun and a crowbar and threatened the occupants with shooting them if they did not co-operate.  The offender was sentenced to imprisonment for four years with a recommendation for post-prison community based release after serving 18 months.  She was unsuccessful in her application for leave to appeal against the sentence on the basis of parity issues with her co-offenders, but was successful in having a reduction made for a period of pre-sentence custody which she had served in connection with an unrelated charge that was not proceeded with.  The sentence was therefore re-opened to reduce the head sentence to imprisonment for three years and 10 months.
[32]	Although Mr Dixon sought to distinguish aspects of Kraaz on the facts, it remains relevant as a comparable sentence.  It is consistent with other comparable sentences for the offence of burglary by breaking in the night with violence while armed and in company, including R v Leu; R v Togia (2008) 186 A Crim R 240.
[33]	Particularly as the sentence was imposed after trial, the effective head sentence of four years’ imprisonment for Mr Dixon to be suspended after serving actual custody for two years was neither unreasonable nor unjust.  Mr Dixon does not succeed in showing that the sentence was manifestly excessive.
Orders
[34]	The following orders should be made:
1.	Appeal against conviction dismissed.
2.	Application for leave to appeal against sentence refused.