JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BODDINGTON -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 179 CORAM : BUSS JA HEARD : 2 JULY 2013 DELIVERED : 14 AUGUST 2013 FILE NO/S : CACR 64 of 2013 BETWEEN : TYRONE GEORGE BODDINGTON Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM: Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA Coram : STEVENSON DCJ
File No : IND 1075 of 2012
Catchwords:
Criminal law - Application for leave to appeal against sentence - Aggravated burglary - Whether trial judge made errors in fact finding - Whether sentence manifestly excessive
Legislation:
Nil
Result:
Leave to appeal is refused
Appeal is dismissed Category: B
Representation:
Counsel:
Appellant : Ms F E Sellers
Respondent : No appearance
Solicitors:
Appellant : Ruby & Associates
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):Chan (1989) 38 A Crim R 337Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1Fullgrabe v The State of Western Australia [2013] WASCA 130Law v The State of Western Australia [2009] WASCA 193Morcom v The State of Western Australia [2013] WASCA 31Trompler v The State of Western Australia [2008] WASCA 265Vagh v The State of Western Australia [2007] WASCA 171 BUSS JA: I agree with Hall J. 2 HALL J: This is an application for leave to appeal against a sentence of 29 months' imprisonment imposed for an offence of aggravated burglary contrary to s 401(2) of the Criminal Code (WA). The circumstances of aggravation were that the appellant was in company and that at the time of the offence the appellant knew or ought reasonably to have known that there was another person in the place where the offence occurred.
3 The appellant was charged with two other men, his brother, Benjamin Boddington, and Darren Dodd. The appellant and his brother pleaded guilty to the charge but denied a further alleged circumstance of aggravation, namely that one of them was armed with a knife. Mr Dodd pleaded not guilty. A trial was conducted to resolve these issues. After trial the jury found that the circumstance of aggravation involving the knife was not proven as against the Boddington brothers and Mr Dodd was acquitted.
4 The trial judge made factual findings in sentencing the appellant. The appellant's first proposed ground of appeal is that his Honour made some findings that were inconsistent with the evidence and with the verdicts of the jury. In particular, it is said that his Honour erred in finding that the appellant formed a common intent to steal the victim's wallet prior to attending at the place where the offence occurred. Further, it is said that his Honour erred by taking into account the actions of Mr Dodd in circumstances where he was acquitted.
5 The second proposed ground of appeal is that the sentence imposed on the appellant was manifestly excessive. In this regard, the appellant says that the sentence failed to reflect his lesser role in the offending, failed to properly consider the time he spent in custody on remand and the courses he did during that time, failed to properly consider the appellant's personal circumstances and failed to properly consider a sentence that would further the appellant's rehabilitation.
6 In order to understand the verdicts of the jury and how they might relate to possible factual findings it is necessary to summarise the prosecution evidence and some of the evidence at the trial.
Prosecution case
7 The prosecution case was that on 29 December 2011 the complainant, Justin Jacobson, and his partner, Rebecca Keane, were staying at the Winter Sun Hotel in Geraldton. Mr Jacobson and Ms Keane had been in a de facto relationship for some years but had recently separated. They had booked a room at the hotel with a view to trying to resolve their differences.
8 On 28 December 2011 the appellant, his brother and Mr Dodd had visited the complainant and Ms Keane at the hotel. They stayed a short while before the complainant asked them to leave because they were being too noisy. I will refer to this as the first visit. The complainant knew the appellant and his brother having met them about eight to ten months earlier. He had known Mr Dodd for a couple of years. Whilst they were in the room the complainant placed his wallet underneath the mattress of the double bed for safekeeping. He was not aware of whether anyone saw him do this.
9 Sometime later, in the early hours of the following morning, the complainant heard knocking at the front door of the unit followed by further knocking at the back door. He said that he also heard the appellant and the other two men calling out. There was then a loud bang at the front door. It was the prosecution case that Benjamin Boddington kicked the door open. The three men then entered the room and demanded money. It was alleged that Benjamin Boddington had a knife which he used to threaten the complainant, but this allegation was not found to be proven.
10 The prosecution case was that the appellant and Mr Dodd lifted the mattress in the room, thereby exposing the wallet. The complainant grabbed his wallet which was then taken from him. According to the complainant Benjamin Boddington took the wallet, however Ms Keane said that it was the appellant who took it. Mr Dodd was said to have punched the complainant at this time.
Relevant evidence at the trial
11 The complainant and Ms Keane gave evidence at the trial that was consistent with the prosecution case.
12 In cross-examination, Ms Keane accepted that prior to the attendance of the appellant and the co-accused at the hotel on the first occasion, she had sent two text messages to Mr Dodd. She said that these messages occurred in the context of an argument with the complainant. In the messages Ms Keane said that the complainant would not let her leave and asked Mr Dodd to come and help her. She said that she left the hotel at the time of the first visit and went back to her house and had a shower. When she got out of the shower she saw that the appellant and the co-accused were sitting at her kitchen table drinking alcohol. She decided to return to the hotel and make another effort at reconciling with the complainant. She did this and said that there was no further arguing. She had undressed and got into bed by the time of the offence.
13 Mr Dodd's girlfriend, Jodie Della-Marianna, said that she had been present at the first visit to the hotel room and confirmed that Ms Keane had returned to her house following that visit. She said that after Ms Keane had returned to the hotel she saw the appellant and the co-accused talking about Ms Keane. They left a short time later and none of them were armed with a knife. She also saw them return and said that none of them had a knife at that time. She said that Mr Dodd told her that he had punched the complainant because the complainant had falsely accused him of having previously taken his wallet.
14 Neither the appellant nor Benjamin Boddington gave evidence at the trial, however Darren Dodd did. Mr Dodd said that he and his girlfriend had been staying at Ms Keane's house for some days. She went missing and he did not know where she was until he received a text from her. He understood from the text that the complainant was assaulting Ms Keane and not letting her leave the hotel room. He said that he decided to go to the hotel to assist. He went with the appellant, Benjamin Boddington, the appellant's girlfriend and his own girlfriend. When they arrived he heard yelling and screaming from the hotel room. He said that Ms Keane then left and they followed soon after. He said that they returned to Ms Keane's house and that after she had had a shower she decided that she would return to the hotel. He said that he, the appellant and Benjamin Boddington had a few beers and decided that they would go back to the hotel to see if Ms Keane was alright. He had received no further texts but said he was concerned because she had not called, though he later said he knew she had no credit on her phone.
15 Mr Dodd said that on arrival he, the appellant and Benjamin Boddington knocked on the door and called out the names of the complainant and Ms Keane. There was no response and he turned around and walked away. He said that he then heard a thud, turned back and saw that the door was open. He then heard the complainant call out his name. When he went into the room he said the complainant accused him and his partner of taking his wallet. He said he went over and 'slapped Justin in the head'. He said that he then turned around and left. He denied that there was a knife and denied any involvement in the stealing of the complainant's wallet.
Trial judge's factual findings
16 In mitigation it was submitted on behalf of the appellant that he did not form an intention to steal from the complainant prior to entering the hotel room on the second occasion. However, he could not advance a reason for why he had returned to the hotel because he had a very limited recollection of what had happened. It was accepted that he did assist and aid in the offence and that this included lifting the mattress.
17 A submission was made on behalf of the co-offender, Benjamin Boddington, that he too had not intended to steal from the complainant prior to entering the room on the second occasion. The suggestion was that the purpose of returning to the hotel had been to check on the welfare of Ms Keane and this had only changed on entering the room.
18 The trial judge did not accept that submission. His reasons for that were as follows. First, Ms Keane had returned to the hotel of her own volition. She had done so in company with Ms Della-Marianna and the appellant's girlfriend. His Honour accepted Ms Keane's evidence that on her return she stayed with the complainant because everything was, in her words, 'sweet'. Secondly, his Honour said that the fact that the door was kicked in and demands were made for money showed that the purpose of obtaining access to the room was to steal the complainant's wallet. His Honour inferred that when the co-offenders returned to Ms Keane's home after the first visit there was a conversation to the effect that the complainant had money in his hotel room and this was the motivation for returning in the early hours of the following morning.
19 As regards a suggestion that on Mr Dodd's evidence it was his idea to return to the hotel, his Honour said that he did not find Mr Dodd to be a credible witness. He noted the apparent inconsistency of Mr Dodd's expressed concerns for Ms Keane's welfare on the night with the fact that he and his girlfriend had been living at her house for the previous four or five days and according to him had no idea where she was and had made no enquiry or raised any concerns in that regard.
20 His Honour found that the appellant, Benjamin Boddington and Mr Dodd had returned to the hotel for the purpose of stealing the complainant's wallet which they believed contained a large sum of money. Benjamin Boddington kicked open the door and the three men went into the hotel room together shouting, 'Where is the money, where is the money'. In the course of trying to find the wallet, the appellant and Benjamin Boddington flipped over the mattress of the double bed.
21 By reason of their earlier visit the offenders knew that Mr Jacobson had an ornamental sword which he had bought as a present and which remained wrapped in the room. His Honour found that there was a possibility that the appellant and the others were concerned that the complainant might use the ornamental sword in self-defence. Accordingly, the three men rushed into the room in order to cause the maximum disturbance and to find the wallet as quickly as possible.
22 His Honour found that the entry into the room was such that it would have caused significant trauma and distress to the complainant and Ms Keane. He found that Benjamin Boddington struck a clock radio which was next to the head of the bed and damaged it. He said that it was either punched or stabbed with fingers and the front plastic cover of the clock was damaged.
23 His Honour said that he rejected the contention that the offenders had only formed the intention to steal the wallet after the door was kicked in. He said that, in his view, the offenders knew when they entered the room that there was a sum of money to be stolen. He said that the offence was planned and premeditated from the point that they left Ms Keane's house and walked to the hotel.
Sentencing remarks
24 In sentencing the appellant the trial judge noted that he was aged 35 years and had been in custody for 1 year 2 months and 6 days at the time of sentencing.
25 His Honour accepted that the plea of guilty was a mitigating circumstance and deserving of a discount on the sentence that would otherwise be imposed. That discount was not affected by the trial as the contested issue had been resolved in the appellant's favour. He assessed that discount at 20%. No issue is taken with that assessment.
26 His Honour had the benefit of a pre-sentence report and a psychological report. He noted that the appellant had an unsettled childhood but a positive schooling experience. The appellant is the father of four children, the youngest of whom was 6 months old. He intended to pursue his relationship with his current partner on his release.
27 His Honour accepted that the appellant's role in the offending was less than that of his brother. He accepted that the appellant was 'led along in the circumstances as they presented themselves'. He also accepted that the appellant had little memory of precisely what happened. However, it was clear that the appellant had assisted in the commission of the offence. His Honour said that he was unable on the evidence to determine whether it was the appellant or Benjamin Boddington who took the wallet.
28 His Honour noted that the appellant had undertaken courses whilst in custody with the intention of reforming himself. He said that he had taken that into account in imposing sentence. He also noted that the pre-sentence report was positive in the sense that the appellant showed insight into his offending and a desire to change his lifestyle.
29 The appellant has two previous similar offences and for that reason was liable to a mandatory sentence of at least 12 months' imprisonment: s 401(4) Criminal Code. His Honour noted, however, that there were significant gaps in the prior offending which indicated that the appellant was capable of living in the community without committing offences when he chose to do so.
30 Having regard to the different roles of the offenders, his Honour imposed a term of 3 years' imprisonment on Benjamin Boddington and 29 months' imprisonment on the appellant. Those sentences were backdated to take into account time spent in custody. They were each ordered to be eligible for parole.
Proposed ground 1 - Factual errors
31 The legal principles regarding fact-finding by a judge for the purposes of sentencing are set out in Law v The State of Western Australia [2009] WASCA 193. Relevantly, a plea of guilty necessarily involves an admission to each of the elements of the offence, including all of the essential facts necessary to constitute the offence. If the prosecution seek to have an aggravating factor taken into account then, if disputed, it must be proven beyond reasonable doubt. If the offender seeks to have a mitigating factor taken into account then, if disputed, it must be proven on the balance of probabilities.
32 When an offender has been found guilty following a trial by jury the judge must determine facts for the purpose of sentencing. The facts must be consistent with the verdict of the jury, but this does not involve speculation as to what the jury may or may not have found: Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1.
33 In this case the appellant pleaded guilty. The only role of the jury in respect of the appellant was in regard to the circumstance of aggravation involving the knife. The acquittal of Mr Dodd says nothing about the culpability of the appellant. Furthermore, by his plea of guilty the appellant accepted, amongst other things, that he committed the offence whilst in company with his brother and Mr Dodd. That admission was not affected by the verdict of the jury.
34 The appellant's contention is that the trial judge erred by finding that there was a common intention formed between all three men. This is said to be inconsistent with the fact that the jury found Mr Dodd not guilty of the offence. It is also said to be inconsistent with the evidence of the appellant and that of Mr Dodd at the trial. For the reasons I have given the contention that the finding is inconsistent with acquittal of Mr Dodd is without merit. As regards the point at which the appellant formed the intention to steal, it was the appellant who raised this issue as a mitigating factor. That contention was disputed by the prosecution. His Honour had to determine whether the appellant's contention was proven on the available evidence.
35 The appellant did not give evidence at the trial. There was evidence of a police interview in which the appellant stated that there was no discussion and no agreement between the men prior to attending the hotel. This was inconsistent with his claim that he had very little recollection of the events. It was also inconsistent with an admission by the appellant that he believed at the time that the complainant had approximately $2,500 in cash. In mitigation, counsel who appeared for the appellant accepted that in light of the appellant's poor memory any claim that he made to the police that he had been motivated by a concern for Ms Keane's welfare could not be maintained.
36 As regards the evidence of Mr Dodd, his Honour did not accept him as a witness of the truth. In particular, he did not accept Mr Dodd's evidence that there had been no discussion in regards to what would occur at the hotel on their return. The jury's verdict did not necessarily imply acceptance of Mr Dodd's evidence. It was open to the jury to reject his evidence but have a reasonable doubt as to whether his involvement in the offence had been proven beyond reasonable doubt on the prosecution evidence.
37 His Honour gave reasons for his conclusion that the appellant had been a party to a common intention to steal from the complainant before returning to the hotel room. In particular, his Honour referred to the way in which the appellant and the others had entered the room and made loud and insistent demands for money. They had also turned over the mattress where the wallet was hidden. This conduct clearly supported an inference that the offenders believed that the complainant had a significant amount of money which he had hidden in the room and that their intention in breaking into the room was to catch the complainant by surprise and steal the money. These findings were plainly open on the evidence and not inconsistent with the verdict of the jury in regard to Mr Dodd.