Caporn v The State of Western Australia [No 2]
[2008] WASCA 26
•12 FEBRUARY 2008
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CAPORN -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2008] WASCA 26
CORAM: PULLIN JA
MILLER JA
BEECH AJA
HEARD: 13 DECEMBER 2007
DELIVERED : 12 FEBRUARY 2008
FILE NO/S: CACR 162 of 2006
BETWEEN: PAUL RAYMOND CAPORN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S :CACR 166 of 2006
BETWEEN :THE STATE OF WESTERN AUSTRALIA
Appellant
AND
PAUL RAYMOND CAPORN
Respondent
ON APPEAL FROM:
For File No : CACR 162 of 2006
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :SIMMONDS J
File No :INS 44 of 2006
Catchwords:
Criminal law and procedure - Indictment charging robbery with circumstances of aggravation and stealing a motor vehicle with a circumstance of aggravation - Direction of trial judge to give verdicts of guilty or not guilty on each count to include the circumstances of aggravation - Whether necessary that verdicts of guilty or not guilty be first taken on substantive charges and then verdicts on each circumstance of aggravation - Whether any error of law - Whether any substantial miscarriage of justice
Criminal law - Sentencing - Aggravated armed robbery - Plea of not guilty - Sentence of 30 months' imprisonment - Sentence cumulative upon 12 months' imprisonment for stealing a motor vehicle and driving recklessly - Whether manifestly inadequate
Legislation:
Criminal Appeals Act 2004 (WA), s 30(4)
Criminal Code (WA), s 22, s 642
Criminal Procedure Act 2004 (WA), pt 4 div 6, s 113
Road Traffic Act 1974 (WA), s 60
Sentencing Act 1995 (WA), s 7
Result:
CACR 162 of 2006:
Appeal dismissed
CACR 166 of 2006:
Appeal allowed
Sentences quashed
Resentenced to effective term of 5 years' imprisonment
Category: A
Representation:
CACR 162 of 2006
Counsel:
Appellant: Mr S B Watters
Respondent: Mr D Dempster
Solicitors:
Appellant: Ian Hope
Respondent: Director of Public Prosecutions (WA)
CACR 166 of 2006
Counsel:
Appellant: Mr D Dempster
Respondent: Mr S B Watters
Solicitors:
Appellant: Director of Public Prosecutions (WA)
Respondent: Ian Hope
Case(s) referred to in judgment(s):
Caporn v The State of Western Australia [2007] WASCA 148
Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Gately v The Queen [2007] HCA 55
Jarvis v The Queen (1993) 20 WAR 201
Kingswell v The Queen (1985) 159 CLR 264
Lee v The Queen (1994) 76 A Crim R 271
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Majok v The State of Western Australia [2006] WASCA 140
R v De Simoni (1981) 147 CLR 383
R v Grein (1988) 53 A Crim R 76; [1989] WAR 178
R v Hietanen (1989) 51 SASR 510
R v Meaton (1986) 160 CLR 359
The State of Western Australia v Majok [2005] WASC 13; (2005) 152 A Crim R 25
Wade v The Queen [2001] WASCA 252
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wicks v The Queen (1989) 3 WAR 372
PULLIN JA: In relation to the appeal against conviction, I agree with Beech AJA for the reasons he gives that the appeal should be dismissed. I make the following additional observations.
The indictment presented against the appellant contained two counts which read:
(1)On 29 September 2005 at Maylands Paul Raymond Caporn stole from John Dragajner, with violence, a Holden Commodore sedan registration number 8AF371, a Motorola mobile phone and a wallet containing cash, the property of John Dragajner.
And that Paul Raymond Caporn was armed with an offensive weapon, namely a screwdriver
And that Paul Raymond Caporn was in company with another
And that Paul Raymond Caporn did bodily harm to John Dragajner.
(2)On 2 November 2005 at Mount Lawley Paul Raymond Caporn stole a motor vehicle, namely a Holden Commodore sedan registration number 8AF371, the property of John Dragajner
And that Paul Raymond Caporn wilfully drove that motor vehicle in a manner that constituted an offence under Section 60 of the Road Traffic Act 1974, namely reckless driving.
Count 1 was a charge pursuant to s 392 of the Criminal Code (WA) which reads:
Robbery
A person who steals a thing and, immediately before or at the time of or immediately after doing so, uses or threatens to use violence to any person or property in order -
(a)to obtain the thing stolen; or
(b)to prevent or overcome resistance to its being stolen,
is guilty of a crime and is liable -
(c)if immediately before or at or immediately after the commission of the offence the offender is armed with any dangerous or offensive weapon or instrument or pretends to be so armed, to imprisonment for life;
(d)if the offence is committed in circumstances of aggravation, to imprisonment for 20 years; or
(e)in any other case, to imprisonment for 14 years.
Alternative offence: s. 68, 297, 313, 317, 317A, 378 or 393.
Section 391 reads:
In sections 392 and 393 -
'circumstances of aggravation' means circumstances in which -
(a)immediately before or at or immediately after the commission of the offence -
(i)the offender is in company with another person or persons;
(ii)the offender does bodily harm to any person; or
(iii)the offender threatens to kill any person;
or
(b)the person to whom violence is used or threatened is of or over the age of 60 years.
Section 1(1) of the Criminal Code defines the term 'circumstance of aggravation' as follows:
The term 'circumstance of aggravation' means and includes any circumstance by reason whereof an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance;
Count 2 was a charge pursuant to s 371A(1) of the Criminal Code which reads:
(1)A person who unlawfully -
(a)uses a motor vehicle; or
(b)takes a motor vehicle for the purposes of using it; or
(c)drives or otherwise assumes control of a motor vehicle,
without the consent of the owner or the person in charge of that motor vehicle, is said to steal that motor vehicle.
The penalty for stealing is imprisonment for 7 years (see s 378). However, s 378(2) further provides that:
(2)If the thing stolen is a motor vehicle and the offender -
(a)wilfully drives the motor vehicle in a manner that constitutes an offence under section 60 of the Road Traffic Act 1974 (i.e. the offence known as reckless driving) …
the offender is liable to imprisonment for 8 years.
Thus, in each count the substantive charge was contained in the first paragraph. Each of the subsequent paragraphs in each count beginning with the word 'And' alleges a circumstance of aggravation. Once pleas of not guilty were entered, the jury was called upon to determine whether the appellant committed the substantive offences and, if so, whether the circumstances of aggravation had been proven. See Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248 [45] and [47].
The summary of the evidence in the case and the part of the direction given by the trial judge which is the subject of complaint in the ground of appeal are set out in Miller JA's reasons.
By his initial direction, the trial judge in effect told the jury that he would require a verdict on the indictment as charged (including the circumstances of aggravation). If the verdict was not guilty, then in a series of questions the circumstances of aggravation would be stripped away and the jury each time asked whether they then found the appellant guilty or not guilty of the substantive charge with a reduced number and varied set of circumstances of aggravation. Such a direction left it open to the jury to return verdicts of not guilty until the point was reached where all that was left was the substantive charge. The jury would then have been asked whether the appellant was guilty or not guilty of the substantive charge.
This method of taking the verdict was questioned by counsel after the jury had retired. The parties to this appeal accepted that this was not the usual way the verdicts would be taken in relation to such charges. The parties agreed that the conventional way of verdict taking would be for a verdict to be first taken on the substantive charge and then verdicts taken in relation to each of the circumstances of aggravation. This was pointed out to the trial judge.
As a result, the jury was brought back into court and his Honour then redirected the jury. The terms of the redirection suggested that the verdicts might be called for in the conventional way, but as Miller JA reveals in his reasons, this did not happen. The clerk of arraigns asked whether the appellant was guilty or not guilty of the charges contained in the indictment, ie the substantive charges with all circumstances of
aggravation. In each instance the jury returned a verdict of guilty. As a result, no further verdicts were sought.
Nothing has been advanced to show why the trial judge's direction, or the approach adopted, was an error of law. The task of the jury was to decide whether the appellant was guilty or not guilty as charged. The jury gave a verdict of guilty as charged. That was in accordance with law. The procedure adopted by the trial judge produced a verdict in relation to the substantive charge and in relation to all of the circumstances of aggravation. If the jury had concluded that the substantive charge on count 1 was proven but that not all of the circumstances of aggravation were proven, then the verdict in relation to the charge as it appeared on the indictment would have been not guilty. The fact that the procedure was unconventional did not make the procedure erroneous in law. There was no miscarriage of justice.
However, I agree with Beech AJA that the conventional method of taking the verdicts is the preferable course to follow.
State appeal against sentence
In relation to the State's sentence appeal, I agree with Miller JA that ground 1 particular (ii) must succeed for reasons given by his Honour. I agree with the sentences proposed by Miller JA.
Conclusion
The appellant's appeal against conviction must be dismissed. The State's appeal against sentence must be upheld. The existing sentences must be set aside and in lieu a sentence of 5 years' imprisonment on count 1 and a sentence of 1 year of imprisonment on count 2 should be imposed. These sentences should be taken to have commenced on 20 October 2006. I agree that the sentence on count 2 should be concurrent with the sentence in relation to count 1. The appellant (the respondent to the sentence appeal) will be eligible for parole and as a result, the minimum period the appellant will serve in custody will be 3 years from 20 October 2006.
MILLER JA:
Appeal: CACR 162 of 2006
The appellant pleaded not guilty to an indictment which contained two counts. The first was an allegation of robbery with three circumstances of aggravation; namely, that the appellant was armed with
an offensive weapon, was in company with another, and did bodily harm to the victim. The second count alleged the stealing of a motor vehicle with the circumstance of aggravation that the vehicle was driven in a manner which constituted reckless driving.
The appellant was tried before Simmonds J and a jury in the Supreme Court at Perth. He was convicted on 20 October 2006 on both counts on the indictment. The convictions were for the offences of robbery with the three circumstances of aggravation and stealing a motor vehicle with the circumstance of aggravation. The verdicts given by the jury were composite verdicts in the sense that on the first count the verdict was guilty of robbery in the three circumstances of aggravation and the verdict on the second count was stealing a motor vehicle in the circumstance of aggravation. No attempt was made by the clerk of arraigns to take the verdicts on the substantive offences first and then the circumstances of aggravation.
Ground of appeal
Leave to appeal was granted on 13 July 2007. It was on one ground only, that ground being as follows:
Ground 3
The trial judge erred when he directed the jury as to the manner in which their verdicts would be taken:
Particulars
a.His Honour directed the jury verdicts would initially be taken that encompassed the substantive charge together with all of the circumstances of aggravation;
b.His Honour should have told the jury he would initially take their plea to the substantive offence, followed then by verdicts on each of the circumstances of aggravation.
The facts of the case
A summary of the facts was given in Caporn v The State of Western Australia [2007] WASCA 148 when leave to appeal on ground 3 was granted. For convenience, that summary is set out below:
The count of aggravated armed robbery alleged the stealing with violence of a Holden Commodore sedan, a Motorola mobile telephone and a wallet containing cash. These were alleged to be the property of John Dragajner ('Dragajner'). At the time of the commission of this offence, it was alleged that the appellant was armed with an offensive weapon, namely a screwdriver, and was in company with another. There was a further circumstance of aggravation alleged, namely, that he did bodily harm to Dragajner.
The count of stealing a motor vehicle and driving it recklessly alleged that the offence had occurred on 2 November 2005 at Mount Lawley. The same Holden Commodore as was the subject of the first count was alleged to have been stolen from Dragajner. A circumstance of aggravation was alleged, namely, that it had been wilfully driven in a manner that constituted the offence of reckless driving within the meaning of s 60 of the Road Traffic Act1974 (WA).
The facts asserted by the prosecution were that Dragajner, on 29 September 2005, gave a friend, Cheryl O'Hara, a lift to the home of a friend of Ms O'Hara. The friend was Jackie Molentis, who lived at the corner of Ninth Avenue and Carrington Street, Maylands.
It appears that Dragajner had dropped Ms O'Hara off because he did not see eye‑to‑eye with Ms Molentis. An arrangement was made that Ms O'Hara would telephone him later to arrange to be collected.
At about 11 am, on 29 September 2005, Dragajner returned to collect Ms O'Hara. When he did so, he saw Ms Molentis' green Falcon sedan. The rear passenger door of the vehicle opened and Ms O'Hara stepped out. She got into Dragajner's Holden Commodore and Dragajner drove away along Eighth Avenue. The vehicle stopped at Eighth Avenue, near the Peninsula Hotel, where Ms O'Hara had some business to attend to.
As Dragajner let Ms O'Hara out of his vehicle, he observed Ms Molentis' green Falcon behind him. A man stepped out of the front passenger seat of Ms Molentis' vehicle and came towards Dragajner's vehicle. Dragajner had not seen this man before.
The man approached Dragajner's vehicle and hopped in. He placed himself in the front passenger seat. It was alleged that he then threatened Dragajner by picking up a black-and-yellow-handled screwdriver which was on the console of the Commodore. He allegedly said that Dragajner had to 'make over the car' to Ms Molentis. He showed Dragajner a piece of paper, handed him a pen and told him to sign the car over to Ms Molentis 'for the ring that you stole'. He threatened him that if he did not do this, he would stab him. He was alleged to have added 'I have been done for murder so don't think I won't do it'.
Dragajner wrote a note on the piece of paper he had been given. He was then told by the man to get out of the vehicle. He refused, but looked to his right and saw an Aboriginal man whom he had never seen before. There was then a struggle. The Aboriginal man got into the vehicle in the driver's seat and pushed Dragajner over to the centre. Dragajner was then between the two men. Punches were exchanged and it was alleged that the man who had been in the passenger seat attempted to stab Dragajner. He was injured and later at Royal Perth Hospital was found to have multiple, but superficial, bruises and abrasions.
Dragajner's vehicle was started, but Dragajner tried to put his foot on the brake to stop it being driven away. The Aboriginal man pressed his foot on the accelerator and the vehicle was driven down Eighth Avenue into Railway Parade and thence into Ninth Avenue to Carrington Street. Dragajner was ultimately thrown out of the vehicle at Kennedy Street and the vehicle made its way back in the opposite direction from which it had come.
Dragajner's Commodore was recovered. His wallet was missing. The wallet had contained cash. The mobile phone which was in the Commodore was also missing.
Witnesses were called to testify that the Commodore was driven erratically from Eighth Avenue onto Railway Parade. It almost collided with a Stop sign as it negotiated Eighth Avenue into Railway Parade.
On 2 November 2005, a police officer, Constable Stephen Morgan was travelling along Lord Street on his motor cycle. He observed a green Holden Commodore with Northern Territory registration plates and an expired registration sticker. He pulled the car over. The driver of it was the appellant. He was accompanied by a passenger, who was his daughter. The appellant gave a false name. He was asked how he came to have Northern Territory registration plates and an expired Western Australian licence. The appellant replied that he had travelled from the Northern Territory and had a broken windscreen replaced in Kalgoorlie.
Constable Morgan requested that the bonnet of the vehicle be raised so that he could check the identification number. He went back to his motor cycle to make inquiries and whilst there heard the vehicle start up. He looked and saw the vehicle reverse at speed towards him. He jumped out of the way. The vehicle collided with his motor cycle. He drew his revolver, but he did not fire any rounds.
The vehicle then accelerated away down Harold Street at an estimated speed of 60 to 70 kilometres per hour before it turned left into West Parade. The appellant was arrested later the same day and interviewed. He contended that Dragajner had willingly signed over the vehicle, but had then got out of his vehicle, produced a screwdriver and begun to attack the appellant. [4] ‑ [17]
The directions of the trial judge
The trial judge took the jury through the indictment and pointed out that the circumstances of aggravation were not ingredients of either the offence of robbery or of stealing. His Honour said:
You will have noticed that the indictment we read together alleged that the accused was alleged to have stolen with violence, and he was alleged at that time to have been armed with an offensive weapon, namely a screwdriver, to be in company with another and to have done bodily harm to another.
The matters of armed with an offensive weapon, namely a screwdriver, in company with another, did bodily harm to another, which form part of the offences charged are not actually themselves ingredients of the offence of robbery. A person can commit robbery without being armed or pretending to be armed with an offensive weapon. A person may commit robbery without being in the company of another person. A person can commit robbery without doing bodily harm.
The circumstances of being armed with an offensive weapon, of being in company, of doing bodily harm, each of those is what is called in the law a circumstance of aggravation. Essentially they go to the question of the punishment to which a person is exposed who is found beyond a reasonable doubt to have committed a robbery in one of those ways, or a combination of them. (ts 239)
Each circumstance of aggravation alleged in count 1 on the indictment was separately dealt with and the jury was informed of the circumstances in which a screwdriver might or might not constitute an offensive weapon, how the appellant might or might not be in company with another person, and how bodily harm might or might not have been inflicted and what bodily harm meant.
The offence of stealing a motor vehicle was explained and the circumstance of aggravation alleged in count 2 was separately dealt with in this way:
If there is unlawful use or unlawful driving - taking doesn't seem to arise in this matter. If there is unlawful using or unlawful driving, there is another feature of the offence as charged. It is possible to steal a motor vehicle by unlawfully using it or driving it without this additional element being present. This additional element is in fact a circumstance of aggravation of stealing in this particular way.
The further circumstance, the circumstance of aggravation, is something that increases the penalty for stealing by unlawfully using or unlawfully driving. (ts 247)
The jury was then informed of what might or might not be reckless driving within the meaning of s 60 of the Road Traffic Act 1974 (WA).
When the trial judge came to inform the jury of the way in which the verdicts would be taken he said:
Let's start with the first offence, the robbery with the various circumstances of aggravation. You will be asked for your verdict on the charge on 29 September 2005, stealing the motor vehicle, a wallet and its cash content, Motorola mobile phone, with violence, while armed with a screwdriver and in company doing bodily harm; in other words, the offence as it appears in the indictment. You will be asked whether guilty or not guilty. The possible verdicts, must be unanimous remember, are either guilty as charged or not guilty.
If your verdict is not guilty, then you will be asked for a series, at least one more, further verdict. You will be asked for further verdicts with respect to the absence of one or more of the circumstances of aggravation, starting with robbery plus the possible combination of any two circumstances of aggravation, but not all three. It can't be all three because not guilty has been returned before we reach this point. (ts 252)
The trial judge then gave a somewhat convoluted explanation as to how, if the verdict was not guilty, the jury would be asked for a further verdict with respect to the offence of robbery, and then each of the circumstances of aggravation considered individually. He said:
If not guilty, then you will be asked for a further verdict with respect to robbery plus each of the circumstances of aggravation considered individually. Remember we have been working with combinations up to that point. (ts 252)
In relation to count 2, the trial judge gave a similar direction in the following terms:
The second offence - you will be asked for your verdicts with respect to the second offence, stealing the motor vehicle, driving in a manner constituting an offence under section 60 of the Road Traffic Act, as follows: on the charge on 2 November 2005, stealing the motor vehicle, wilfully driving it in a manner constituting an offence under section 60 of the Road Traffic Act, namely reckless driving, guilty as charged or not guilty. If not guilty, then you will be asked for a further verdict. The further verdict will drop the circumstance of aggravation: on the charge on 2 November 2005, stealing the motor vehicle in the way charged, guilty as charged or not guilty. You will be asked for these verdicts in turn as appropriate. (ts 253)
Request for redirection
After the jury had retired the prosecutor raised the issue of the way in which the verdicts should be taken. He said:
[I]t just occurs to me I have not heard a verdict, respectfully, being taken quite that way before because ordinarily the verdict is the verdict of the offence and then it's each individual aggravation a verdict is asked for, because your Honour, with respect, didn't tell the jury and this is why - I understand your Honour thought it would be perplexing but it may be even more perplexing if your Honour doesn't tell them, of course, they can't find an aggravation and they only proceed to consider aggravations if it's guilty on the principal ‑ ‑ ‑ (ts 260)
The trial judge responded to this submission by saying:
I appreciate that and here of course I am arguing massively against what I agree is the most straightforward form of putting it. There is, however, a striking passage in Brown, with authority cited, that the way in which I proceeded is the way in which one should proceed. It's not necessarily the only way one could proceed but the advice given in the Brown text is to that effect.
It seems to me that it's worth remind [sic] the jury, as I did on the way through, that the circumstances of aggravation are only relevant if the underlying form of the offence is committed; there is no separate offence in respect of each of them. Frankly, that's part of the attraction of the Brown way of approaching it, is that it reminds them that there's got to be all of the things present until you get back finally to the simple form of the offence.
However, there is no harm in telling them that as a way of reminding them that they only consider the circumstances of aggravation in conjunction with the underlying offence and they can eliminate each of the circumstances of aggravation and still return a verdict of guilty, but not the other way round. (ts 260 ‑ 261)
A redirection was then given to the jury in the following terms:
The final point that I need to make in respect of those complicated verdicts: you will note of course that the underlying, if I could call it that, or the principal matters with respect to which the charges have been laid are contained in the first paragraph of each of the two numbered indictments. The first paragraph that begins, 'On 29 September 2005' for charge 1 and the first paragraph that begins, 'On 2 November 2005' for charge 2.
It's only if you find the accused guilty of those that the circumstances of aggravation arise. Although it's a complicated way of getting at that that's the underlying reality of it. I will put it another way. The circumstances of aggravation do not sit on their own. They only apply in respect of that first paragraph in each case. They fall away if the verdict in respect of that first paragraph is not guilty. If the verdict is guilty they then arise. (ts 266)
The verdicts
The verdicts of the jury were recorded in the following manner:
THE CLERK OF ARRAIGNS: Members of the jury, are you agreed upon your verdicts?
THE FOREMAN: Yes.
THE CLERK OF ARRAIGNS: In respect of the first count, that is, robbery (indistinct) bodily harm, how say you? Is the accused guilty or not guilty?
THE FOREMAN: Guilty.
THE CLERK OF ARRAIGNS: Is that the verdict of 10 or more of you?
THE FOREMAN: It is.
THE CLERK OF ARRAIGNS: In respect of the second count - that is, stealing a motor vehicle aggravated by reckless driving, how say you? Is the accused guilty or not guilty?
THE FOREMAN: Guilty.
THE CLERK OF ARRAIGNS: Is that the verdict of 10 or more of you?
THE FOREMAN: It is. (ts 281)
The verdicts were taken in a very abbreviated form. It would seem that the verdict on count 1 was given as a verdict on robbery whilst armed, in company and in circumstances in which bodily harm was caused. The word 'indistinct' suggests that the recorder did not pick up a number of the words. The verdict on count 2 was simply a verdict on 'stealing a motor vehicle aggravated by reckless driving'.
The normal way in which the clerk of arraigns puts the question of a verdict to the foreman of the jury is to read the charge set out in the indictment and then to enquire whether the jury finds the accused guilty or not guilty.
However, as the jury had the indictment in this case, there does not seem to have been any miscarriage of justice caused by the abbreviated way in which the verdicts were taken. In any event, there was no complaint by counsel for the accused at trial, and there is no ground of appeal raised about it.
Authority on the taking of verdicts with circumstances of aggravation
The reference made by the trial judge to a passage in 'Brown' appears to be a reference to Criminal Law Western Australia edited by Ian Weldon MA Vol 1, 2433 [s 391.1]. There, the author states in relation to an indictment for robbery with circumstances of aggravation:
Faced with this indictment, a jury would usually be asked whether they found the accused guilty as charged. An affirmative answer would result in a conviction of robbery in circumstances of aggravation - or aggravated robbery - and render the offender liable to a sentence of 20 years under s 392(d). A negative answer would prompt a second question, whether the jury had found the accused guilty of robbery. Sensibly, those permutations would be carefully explained to a jury before they retire to consider their verdict. (2433)
If this is the passage to which the trial judge was referring, it does not appear to be supported by authority.
In The State of Western Australia v Majok [2005] WASC 13; (2005) 152 A Crim R 25, Murray J made some obiter comments about the need for a jury charged with the responsibility of determining both a substantive offence of robbery and circumstances of aggravation alleged to have occurred during the course of the robbery, to bring in a special verdict. His Honour based his views upon the provisions of s 642 of the Criminal Code (WA) which then provided for a special verdict. It was in the following terms:
Special verdict
In any case in which it appears to the court that the question whether an accused person ought or ought not to be convicted of an offence may depend upon some specific fact, or that the proper punishment to be awarded upon conviction may depend upon some specific fact, the court may require the jury to find that fact specially.
Section 642 of the Criminal Code was repealed by Act No 84 of 2004 (s 24) which took effect from the 2 May 2005. This was subsequent to Murray J's decision in The State of Western Australia v Majok delivered on 15 February 2005. Murray J's view was that the second part of s 642 of the Criminal Code would permit a jury to be asked specially to find a circumstance of aggravation pleaded. His Honour concluded that the law at that time was to the following effect:
In a case where a circumstance of aggravation is pleaded so as to inflate the maximum penalty available upon conviction and where a plea of not guilty is made, the jury's task and statutory capacity to try the case is at an end when it returns a verdict of guilty of the offence charged. Unless they are asked for a special verdict in relation to the existence of a circumstance of aggravation under s 642, as is the practice on a trial by jury, the jury would have no power to find any such circumstance. [31]
The Criminal Procedure Act 2004 (WA) was assented to on 8 December 2004 and came into effect on 2 May 2005. Its long title is 'An Act to provide procedures for dealing with alleged offenders and for related matters' and it contains in pt 4 div 6 the procedural requirements for trial by jury in prosecutions in superior courts. Section 114 of the Criminal Procedure Act contains a number of provisions which relate to the verdict of the jury, but none touches upon the present case. Section 113 provides for a special verdict of a jury in certain cases. Section 113(1) requires that a jury should be directed that if it finds an accused person not guilty of a charge on account of unsoundness of mind it must return a special verdict to that effect. Section 113(2) is in the following terms:
(2)If the judge is of the opinion that the proper sentence or order to be imposed -
(a)on an accused if convicted; or
(b)on an accused if found not guilty on account of unsoundness of mind,
may depend upon a specific fact, the judge may require the jury to give its verdict on that fact specifically.
This provision is as close as the Criminal Procedure Act gets to replicating the former provisions of the Criminal Code in relation to special verdicts. There is no direct requirement that, where circumstances of aggravation are pleaded in an indictment, the jury is required first to determine the substantive offence and then by special verdict the circumstances of aggravation.
In R v Meaton (1986) 160 CLR 359, 363 (Gibbs CJ, Wilson and Dawson JJ), their Honours held that, as a matter of practice, when circumstances of aggravation contained within s 235(2) of the Customs Act 1901 (being knowingly concerned in the importation of prohibited imports) are relied upon they should be charged in the indictment. Their Honours added:
The preferable course for the prosecution is to lay one charge which includes the circumstances of aggravation; the jury can then be directed that it would be open to them (in appropriate circumstances) to find the accused guilty of the charge without those circumstances of aggravation: see Archbold's Criminal Evidence & Practice, 42nd ed. (1985), pars 4‑459 ‑ 4‑461. (364)
At common law, the jury has a right in all criminal cases to find a special verdict, but the judge has no power to compel them to find a special verdict (Archbold's Criminal Pleading Evidence & Practice (2007) 4‑465).
Section 113(2) of the Criminal Procedure Act therefore alters the common law by giving to the trial judge the power to compel a special verdict in certain circumstances. The section would appear to be related to s 7 of the Sentencing Act 1995 (WA). Section 7(1) provides that aggravating factors are factors which in the court's opinion increase the culpability of the offender. Section 7(3) is in the following terms:
(3)If the statutory penalty for an offence is greater if the offence is committed in certain circumstances than if it is committed without the existence of those circumstances, then ‑
(a)an offender is not liable to the greater statutory penalty unless he or she has been charged and convicted of committing the offence in those circumstances; and
(b)whether or not the offender was so charged, the existence of those circumstances may be taken into account as aggravating factors.
Section 113(2) of the Criminal Procedure Act provides the mechanism for ensuring that before an offender is liable to a greater statutory penalty by reason of circumstances of aggravation he or she has been charged and convicted of committing the offence in those circumstances.
All of this suggests that, in a case of robbery in circumstances of aggravation or stealing a motor vehicle in circumstances of aggravation, the jury should be asked to return a verdict on the substantive charge and then for a special verdict on the circumstances of aggravation and each of them in relation to each offence. This was not done in the present case. The course taken by the trial judge accorded with the text to which he referred, but in my opinion the passage in Criminal Law Western Australia, 2433 [s 391.1] is wrong and should not be followed.
In my opinion, the verdicts delivered by the jury in this case were irregular and the directions given by the trial judge in relation to the delivery of those verdicts disclose error.
In my opinion, ground 3 is made out because the initial directions in relation to the taking of the verdicts, although largely corrected by redirection, were adhered to when the verdicts were taken. No attempt was made to take the verdicts by reference first to the substantive offence and, second, to the circumstances of aggravation.
Although the trial judge went some way to correcting the situation in his redirection, pointing out that 'only if you find the accused guilty of [the principal matters do] the circumstances of aggravation arise', when the verdicts were taken they were not separated between the substantive offence and the circumstances or (in the case of count 2) the circumstance of aggravation.
Counsel for the appellant argued at the hearing that, because the trial judge left the verdicts open in the manner he did, the appellant was denied the benefit of a proper consideration by the jury of the defence of honest claim of right (Criminal Code s 22) on the substantive offence. It was argued that the jury would have been confused about whether this defence applied to the substantive offence as distinct from the circumstances of aggravation alleged.
However, the direction given on s 22 was given in the context of the offence of robbery. There could have been no doubt that it related to the substantive offence. Portion of the direction was as follows:
Those then are the ingredients of robbery, stealing, in this case with violence. The first question then is whether the accused stole the property referred to in the indictment, if the accused so then did they immediately before or immediately after the time of the stealing use actual violence in order to obtain the thing stolen or to prevent or overcome resistance to them being stolen.
Now I go back to the question I said I would deal with later, and this is the matter to which your attention has been drawn in this case arising out of a number of items, but perhaps most particularly, and certainly earliest on, the matter of the note, the note you will recall which was signed by and handwritten by the owner of the vehicle, Mr Dragajner.
This is the matter of whether or not the vehicle and its contents were stolen. If a person, and here I am directing you as to a matter of law, has an honest belief that they have the right to deal with the property as they are dealing with it - in this case, did Mr Caporn have an honest belief that he had received the authorisation of the person who had dealt with the former owner of the vehicle so as to take it over from that owner, whether or not the formal transfer had gone through the vehicle title office that he had the right to deal with the vehicle?
Substantial Miscarriage of justice
Although the trial judge's directions in relation to the taking of the verdicts were in error, and ground 3 of the grounds of appeal should be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred: Criminal Appeals Act 2004 (WA), s 30(4). In Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 the court indicated how an appeal court is to approach the question whether a substantial miscarriage of justice has or has not occurred. The court said:
That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. [41]
The court then added:
It is neither right nor useful to attempt to lay down absolute rules or singular tests that are to be applied by an appellate court where it examines the record for itself, beyond the three fundamental propositions mentioned earlier. (The appellate court must itself decide whether a substantial miscarriage of justice has actually occurred; the task is an objective task not materially different from other appellate tasks; the standard of proof is the criminal standard.) [42]
In Weiss v The Queen, the court made reference to the question whether a miscarriage of justice might amount to such a serious breach of the presuppositions of the trial as to deny the application of the common form criminal appeal provisions with its proviso (see also Gately v The Queen [2007] HCA 55 [109] (Heydon J)).
In the present case, it is difficult to see how the taking of the verdicts in the manner I have set out could have constituted a serious breach of presuppositions of the trial. Nor can it readily be seen that there was a significant denial of procedural fairness (see Gately v The Queen per Heydon J at [109]). In my opinion, the distinction between the substantive offences and the circumstances of aggravation on each count was made clear during the trial judge's directions. The error in the manner of taking the verdicts was not enough to constitute either a breach of the presuppositions of the trial process or of procedural fairness.
The evidence
The complainant John Dragajner gave evidence that on 29 September 2005 he drove his friend Cheryl O'Hara to Carrington Street, Maylands and dropped her off between Eighth Avenue and Ninth Avenue. It was her intention to visit a friend named Jacqueline Molentis. Because the complainant did not get on with Ms Molentis he dropped Ms O'Hara down the road from Ms Molentis' house. Arrangements were made that Ms O'Hara would ring him when she needed a lift back to town. She did ring and he returned to collect her at some time between 11 and 11.30 am. The complainant returned to the corner of Ninth Avenue and Carrington Street, but Ms O'Hara was not there. He rang her and she said that she was in Ms Molentis' car around the corner in Eighth Avenue. The complainant went to that location and saw Ms Molentis' Ford Falcon vehicle. Ms O'Hara got out of the vehicle and got into his vehicle. He then drove down Eighth Avenue towards the railway line and stopped to enable Ms O'Hara to get out. The complainant understood that she intended to go into a shop.
The complainant noticed that Ms Molentis' vehicle was stopped behind him. A man got out of the passenger side of the vehicle and suddenly he appeared at the passenger's side of the complainant's vehicle. He opened the door and got into the vehicle. He handed the complainant a piece of paper and a pen and instructed him to sign over his car to 'Jackie' (Ms Molentis). The complainant then observed that the man grabbed a screwdriver from the console of the vehicle. He called the complainant 'a thieving scumbag' and demanded that he sign the car over to Ms Molentis. He nudged the complainant in the side with the screwdriver and threatened to stab him if he did not comply. The complainant signed the piece of paper and handed it back to the man who was in the vehicle. He was then told to get out and he was nudged again with the screwdriver. He tried to take the screwdriver from the man but he was hit on his left hand side with the screwdriver and at the same time somebody else got into the vehicle on the driver's side. This was a male Aboriginal. Meanwhile the complainant was hit a number of times in the side with the screwdriver.
The Aboriginal man pushed the complainant to the centre of the vehicle across the console between the driver and the passenger. The Aboriginal man was then in the driver's seat. The car was started. The complainant tried to put his foot on the brake but the vehicle was driven away. It proceeded up Railway Parade into Ninth Avenue to Carrington Street and on towards Kennedy, Oxford and Crawford Streets. The complainant was thrown out of the vehicle around the Oxford/Kennedy Street area and he made his way to a house where he washed blood from his face and then went to the railway station where he got onto the train and took himself to Royal Perth Hospital. His injuries consisted of superficial abrasions to various parts of the body. The complainant gave evidence that his mobile telephone and his wallet containing cards and cash disappeared. They had been in his vehicle. The vehicle was later located but neither the telephone nor wallet were.
The complainant was extensively cross‑examined by defence counsel. It was put to him that he was affected by drugs on the day but he denied it. The essence of the cross‑examination was to put to the complainant that he had in fact made an agreement with Ms Molentis to transfer his vehicle to her to honour a debt; that he was affected by substances on the day; that he began to honour the debt and transfer the car by signing the paper; that no threat was made to him; that the communication between him and the man who was in the front passenger seat was friendly and agreeable; and that as soon as the complainant began to get out of his vehicle his manner changed and he began to strike at the man in the vehicle. All of these propositions were denied by the complainant.
Cheryl Ann O'Hara gave evidence that she had been with the complainant on the day in question. She had initially been dropped off in Carrington Street and then later collected as the complainant said. She had travelled with the complainant down Eighth Avenue towards the train station. Before she had got into the complainant's vehicle she had been in Ms Molentis' car with 'two other guys', one of whom had the surname Caporn. She knew him as Paul and she had seen him twice beforehand. She did not know the name of the other man, but he was an Aboriginal. Ms O'Hara testified that she was driven by the complainant to the location of a shop in Eighth Avenue where she asked him to stop so that she could get some cigarettes. She walked towards the Peninsula Hotel and then heard a bit of a commotion. She looked back and she saw 'one of the guys' in the passenger seat of the complainant's vehicle and one at the driver's side. These were the two guys whom she had seen in Ms Molentis' car. The Aboriginal guy was on the driver's side and the man who gave his name as Caporn was in the passenger's seat. She observed a scuffle which she described as 'like, fighting'. She said that she did not know whether Paul was punching the complainant but thought that he 'sort of [was] holding him'. She said that it looked as if they were trying to push the complainant out of the vehicle or get him out of the car. She saw a screwdriver but she was not sure in whose hand it was. She saw the vehicle then 'kangaroo‑hop' away from its stationary position and proceed towards Railway Parade where it turned left.
Ms O'Hara was cross‑examined on the basis that she was a drug user. She agreed that she had gone to a methadone clinic shortly after the incident. It was put to her that there was a legitimate transaction in which Paul Caporn was to take the complainant's vehicle as a consequence of an agreement between the complainant and Ms Molentis. Ms O'Hara denied this. It was put to her that she had distorted everything that had happened for the benefit of the complainant but she denied it. She admitted to the fact that the complainant was her boyfriend and that they had been together for about two and a half years. She knew that the complainant had a debt to Ms Molentis, but she insisted that she knew nothing about any agreement whereby the complainant was to hand over his vehicle to Ms Molentis.
There was evidence from Peter Richard Ibbs that on 29 September 2005 he was at his store near the intersection of Eighth Avenue and Railway Parade, Maylands when he saw a blue Commodore with its wheels smoking. He saw two persons in the front of the car and it appeared to him that they were engaged in a scuffle. Mr Ibbs saw only two heads in the vehicle and it appeared to him that there was some sort of punch up occurring between the driver and the passenger in the front seat.
Leonard Paul Olson gave evidence that on 29 September 2005 he was in the workshop of an auto‑electric business at the corner of Railway Parade and Eighth Avenue. He heard somebody crying for help and walked to the door and looked to the area where the noise was coming from. He saw a car stopped in the middle of the road in Eighth Avenue. It was a pale blue VN Commodore. He could see three people in it. As far as he was aware they were males. He saw the driver striking someone in the middle of the car. There was a third person in the passenger seat. The person in the driver's seat appeared to be of ethnic appearance or olive skin. The vehicle was stationary when he first saw it but it then took off with the wheels spinning and it turned left into Railway Parade. Mr Olson observed a lady standing in the vicinity and saw another car pull up at the position where the Commodore had been. The lady got into it.
In cross‑examination Mr Olson admitted that when he had spoken to police he had mentioned the fact that one of the male persons was in the driver's seat, but had given no information as to exactly where the other two males were in the car. However in re‑examination he repeated that his recollection was that the three men were in the front of the car as he had described them.
Andrew Giorgiante was an apprentice auto‑electrician in the same business as Mr Olson. He heard some yelling at about 11 am on 29 September 2005. He heard the word 'help' yelled by a male person and went outside. He saw three people in a VN Commodore in what he described as a 'sort of drag movement going on inside'. It looked as if all three people were male and he could see one person in the passenger's seat, one in the centre console and one in the driver's seat. The driver looked as if he had darkish, olive skin with black hair. When Mr Giorgiante first walked out the vehicle was stationary but after a few seconds it started to move and it drove down Eighth Avenue and left into Railway Parade. He described the driving of it as 'just pretty sort of reckless driving'. He said that at one stage it mounted a kerb and just about hit the stop sign and then swerved all the way down Railway Parade. A few seconds later he saw a green EA Falcon stop where the Commodore had been. He saw two people in the front of the vehicle and then saw a lady hop into the back seat.
Mr Giorgiante was cross‑examined on the basis that he gave a lot more detail in his evidence than he had to police when he first spoke to them but he remained sure that he had seen three people in the front of the vehicle and that they appeared to be male. He denied the proposition that there were two people in the front seat and one leaning over from the rear.
Dr Malanie Jayne Wassylko gave evidence that on 29 September 2005 she was an intern at Royal Perth Hospital emergency department. With another doctor she examined a man by the name of John M Maran (a name by which the complainant was also known). He had superficial abrasions to his chest and to his neck and gave a history of some punching on the left hand side of his body. She found superficial abrasions on the left chest and on the right side of the neck underneath the chin.
In relation to the second count on the indictment there was evidence from Constable Stephen Charles Morgan. He gave evidence that at about 12.30 pm on 2 November 2005 he was on duty in the Mount Lawley area. He was on a marked police motorcycle and was conducting patrols in the area. He observed a blue Holden Commodore travelling west on Lord Street. It had Northern Territory number plates and a Western Australian registration sticker. He put on the flashing lights on his motorcycle and caused the vehicle to stop in Harold Street. The officer went to the vehicle and explained why he had stopped it. The person in the driver's seat gave an explanation that they had just travelled down from the Northern Territory and on the way got a broken windscreen. He said that they got a second hand replacement in Kalgoorlie. He gave his name as John Richard Graham. He was asked for his driver's licence but said he had left it at the place he was renting.
Constable Morgan asked the driver to unhitch the bonnet. The officer went to the front of the vehicle and lifted the bonnet where he noted the car's identification number. He went back to the driver of the vehicle and asked him if it was his car. The driver responded that it was. Constable Morgan said that he was going to do some checks and he went to his motorcycle where he got on to the radio. He noticed that as he was speaking a female passenger in the vehicle got out. She looked at the officer and then leaned back in the vehicle and spoke with the driver. She got back into the vehicle. Constable Morgan then observed that the engine started on the blue Commodore. The driver was looking into the rear‑view mirror, the reverse lights came on and the car accelerated back quickly towards where the officer was standing. He jumped backwards to get out of the way and hit a traffic pole on the verge twisting his knee. He thought that the vehicle was going to continue coming at him so he drew his firearm. At that point the car stopped and the reverse lights went off. The police motorcycle had been hit but it did not fall over. The vehicle then drove away under hard acceleration. The bonnet was still up. It proceeded down Harold Street to West Parade. The officer estimated its speed at somewhere between 60 ‑ 70 kilometres per hour.
Constable Morgan was cross‑examined. It was suggested that he had parked his motorcycle close to the position of the Holden Commodore but the officer denied it. It was put to him that there was a limited amount of space and that was why he had parked his motorcycle directly behind the Commodore. The officer said there was a limited amount of space but where they stopped was outside some premises where there was a driveway and there was a reasonable distance between parked vehicles. The cross‑examination suggested that the vehicle had reversed at close range into the motorcycle but the motorcycle had not fallen over and the vehicle had then proceeded forward but no more. The constable refused to accept this.
The defence case
The appellant gave no evidence. Reliance was placed upon two video records of interview in which he engaged on 2 November 2005. In the first he was told by investigating detectives that they were looking into the theft of a motor vehicle and also an assault on a police officer. This interview was conducted shortly after the incident involving Constable Morgan. The appellant was in police custody by reason of the events that had occurred. When asked why he was in custody the appellant said:
A: I'm in custody of the police because we had an accident today, a policeman pulled me over, I told a false name and then when I knew the ‑ ‑ when I could see that he was going to find me out I said to Vanessa ‑ ‑ I said we'll park the car off the road and tell them the truth. And then she grabbed the thing to put it in park and put it in reverse and the next minute, bang, we hit the police ‑ ‑ hit the police bike. So we panicked and took off.
Q.Who was driving at the time?
A.I was driving and she had her hand on the gears.
Q.Who else was in the vehicle?
A.No on else was in the vehicle but Vanessa and me.
Q.Yourself and -
A.Vanessa Caporn.
The appellant was asked how he came to be in possession of the vehicle he was driving and he said:
A. I ‑ ‑ um, because I went with Jacqui to get her some of that ‑ ‑ um, I owed Jacqui Milentis, um ‑ ‑ I think it was $700 plus a couple of rings and, um, the guy signed it over to us ‑ ‑ to Jacqui ‑ ‑ to Jacqui, and Jacqui didn't want ‑ ‑ Jacqui ‑ ‑ she had a car and she give it to me.
Q. And who is the owner of the vehicle? Who is the true owner of the vehicle?
A. Jacqui Milentis. He's ‑ ‑ the guy signed it over to Jacqui for what he owed.
Q. Who was the guy that signed it over?
A. Um, John ‑ ‑ I don't know. John Moran? or something.
Q. And he did that of his own free will.
A. Yes. He signed it over then he jumped back into the car and tried to stab me with a blooming screwdriver.
Q. Who tried to stab who with a screwdriver?
A. He was ‑ ‑ he tried stabbing me about 10 times with a screwdriver. Or more than 10 times; about 50 times. Stabbed me; I've got bruises all ‑ ‑ all over my arm.
In the second video record of interview the appellant elaborated on the circumstances in which he came to be in possession of the blue Commodore. He said:
A. Um, the guy John, he owed ‑ ‑ he owed money to Jacqui ‑ ‑ I forget her last name now. Jacqui Milentis. And, um, we ‑ ‑ me, Jacqui and him went and seen ‑ ‑ went and seen him and, um, he straight away signed over the car to Jacqui and that. Then he ‑ ‑ when he jumped out of the car he jumped back in with a ‑ ‑ with a screwdriver and started stabbing me. The screwdriver evidently is what he ‑ ‑ I didn't know at the time, was what he was using for a key.
Q. Okay.
A, We had an argument and went flying around a couple of streets because he jumped ‑ ‑ when he jumped back in he started ‑ ‑ he just took off in the car. Like, took off with me in the car, and I couldn't do nothing about it, and we just had, like, a ‑ ‑ a fight with each other for several streets. I was trying to direct the car so it wouldn't hit a post and things like that, and he's going stupid in it. I finally got him out of the car and then I drove off.
Q. And who were you with at the time?
A. That's all I want to say about that.
The appellant admitted that he had inflicted injury to the complainant. He said that he had grabbed the screwdriver from him after the complainant had stabbed him. He was asked what he did with the screwdriver and he said:
Q. What ‑ ‑ what did you do with the screwdriver?
A. Give him some of his medicine back.
Q. By that you mean ‑ ‑
A. Just whacking him back on ‑ ‑ on the arm to make him ‑ ‑ trying to stop trying to kill us with the ‑ ‑ because he was planting his foot on the accelerator and ‑ ‑ and trying to run us into lamp poles and everything.
The investigating officer put it to the appellant that this was a story he had constructed in his mind but the appellant denied it.
There were further questions about the circumstances of the incident with Constable Morgan on 2 November 2005. The appellant contended that it was his daughter who had put the vehicle into reverse gear by error and in panic he (the appellant) had reversed into the police officer's motorcycle. The appellant was asked whether the bonnet of the vehicle was up when he drove away and he agreed that it was up. He was asked whether he could see what was happening in front of him and he said he could not. He said that he stopped the vehicle around the corner and put the bonnet down and then took off.
Conclusion on the evidence
Having undertaken an independent assessment of the evidence, and making allowance for the natural limitations that exist in reviewing the evidence on the record, it appears clear to me that the evidence established beyond reasonable doubt the guilt of the appellant on both counts on the indictment - not only the substantive offences but the circumstances of aggravation which were pleaded. In these circumstances, I consider that the provisions of s 30(4) of the Criminal Appeals Act should be applied. The court should dismiss the appeal because no substantial miscarriage of justice has occurred. Any irregularity occasioned by the way in which the learned trial judge directed the jury about the verdicts could not reasonably be supposed to have influenced the result: Libke v The Queen [45].
The oral evidence in the case all supported the version of events given by the complainant in relation to the first count. The evidence of Constable Morgan stood alone in relation to the second count but it was basically uncontradicted. The appellant was not charged with having assaulted Constable Morgan but was charged with the offence of stealing a motor vehicle and driving it in a manner which constituted reckless driving.
There was no contradictory evidence offered to the oral evidence apart from that contained within the appellant's two records of interview. In those records of interview he first denied the circumstances of the offence alleged by the complainant, but those denials did not constitute sworn evidence and they were contradicted in a material respect by the testimony of a number of independent witnesses. The circumstances of aggravation pleaded in the first count were clearly established if the evidence of the complainant and the supporting witnesses was accepted. There was no reason why it should not be accepted as it was not contradicted other than by the account given by the appellant in his two records of interview. What the appellant there said was not in my view sufficient to create any reasonable doubt about the circumstances of the commission of the offence or the circumstances of aggravation which were pleaded in relation to count 1.
The account given by the appellant of the incident on 2 November 2005 did not go to the question of theft of the motor vehicle but rather to the circumstances in which it had been reversed onto the police officer's motorcycle. The appellant admitted in his record of interview that he had driven away from the scene with the bonnet of the vehicle up a position where he could not see. Although the appellant contended that his daughter had put the vehicle into reverse and that it had accidentally reversed on to the police officer's motorcycle before it drove away, he did not deny that he was the driver of the vehicle as it left the scene. It was being driven in a residential area with the bonnet up and in circumstances in which the appellant could not see ahead of him. All of this points to a conclusion beyond reasonable doubt that the vehicle was driven recklessly and therefore that the circumstance of aggravation pleaded in respect of the second count was made out.
Conclusion
The weight of the evidence established beyond reasonable doubt the guilt of the accused and, despite what I consider to have been an error of law on the part of the trial judge in the manner in which he directed the verdicts to be taken, there was no substantial miscarriage of justice: s 30(4) Criminal Appeals Act 2004. The appeal should therefore be dismissed.
Appeal: CACR 166 of 2006
This is a prosecution appeal against the adequacy of the sentence imposed by the learned sentencing judge for the offence of aggravated armed robbery contained within count 1 on the indictment.
The facts of the case have been fully set out in CACR 162 of 2006 and need not be repeated.
Sentencing comments of trial judge
The respondent was convicted on 20 October 2006 and sentenced on 1 December 2006. The trial judge first dealt with the offence of aggravated armed robbery contained within count 1 on the indictment, pointing out that it was an offence which carried a maximum sentence of life imprisonment. His Honour said that he did not consider the offence to be at the higher end of the scale of offending but at the same time it was not 'at the lightest end'. After reviewing the circumstances of the commission of the offence the trial judge said:
The tendency on the decisions of courts in this jurisdiction facing the same task that I'm facing has been, before recent amendments in the sentencing legislation, to impose terms of imprisonment within a range of between six and nine years, although sentences less and sentences above that range were imposed. Since the changes to the legislation, which involve a reduction in terms otherwise imposed of immediate imprisonment by one‑third, the range has become between four and six years, and again there have been sentences imposed above and below those points in the range - the two ends of the range.
The decisions of courts of the state also tell me that it would be an exceptional case in which the sentencing did not attract a penalty of imprisonment. (ts 302)
After reviewing sentencing options other than imprisonment and rejecting those options the trial judge turned to the facts of the case. He concluded that there was no evidence of premeditation in relation to the offence but there was a theft with violence which involved a screwdriver and an offence in company with another. Further, there was stabbing to the victim's chest with the screwdriver which resulted in bodily harm. It was not grievous body harm but bodily harm which led to medical treatment. His Honour then concluded:
Overall I have concluded on these facts that there was a serious form of a serious offence, not at the most serious end of the scale but equally not at the lightest end of the scale represented by armed robbery which, to repeat, is a serious offence in our Criminal Code. (ts 305 ‑ 306)
The trial judge reviewed the personal circumstances of the respondent. These were provided in an oral pre‑sentence report. They included the fact that the respondent had a record of prior convictions. This was noted to be a significant criminal record, but there was no prior conviction for aggravated armed robbery and the offences for which the respondent had previously been convicted were less serious than the conviction for aggravated armed robbery.
The trial judge noted that the respondent was 57 years of age and had a history of drug use. There were certain aspects of the respondent's life which were to his credit, including his history of employment and his family relationships. He was on parole for offences for which he had been imprisoned on 1 December 2005, having been released on 25 August 2006. Although he had a good record whilst on parole and had plans for his future, he had not addressed the possibilities which existed for therapeutic attention to his condition.
The trial judge noted that there was no evidence of remorse but apparently excused this by reason of the 'personal conditions' under which the respondent was labouring at the time of the commission of the offence. These personal conditions related to resurgence of his drug use.
Having weighed all factors the trial judge concluded that the appropriate sentence for the offence of aggravated armed robbery prior to application of the transitional provisions would have been 4 years 6 months' imprisonment. After application of those provisions the sentence became one of 3 years' imprisonment.
For the offence of stealing a motor vehicle and driving it recklessly the trial judge imposed a sentence of 24 months prior to application of the transitional provisions. Application of those provisions reduced the sentence to one of 16 months' imprisonment. Consideration was given to the question of suspension of both terms but the trial judge resolved that both sentences should be served immediately.
Consideration was then given to the totality principle. His Honour said:
It is important, as counsel would have indicated in their submissions and as I will indicate now, that I consider the totality of the sentences that I have imposed. The totality needs to bear in mind how these sentences relate to one another and I have already indicated that I do not consider the offence of stealing and driving recklessly to be part of or included in the transaction with respect to the offence of aggravated armed robbery and therefore I would make the sentence of 16 months cumulative on the sentence of 36 months, which would produce a total sentence of 52 months, four years and four months.
It is to that sentence that I have then directed my attention in terms of the totality principle. That principle has two aspects, one is to consider whether the total sentence is an appropriate one in relation to the criminality involved, and it is particularly at that point that I need to consider the submissions of your counsel with respect to the sentence you have already received and served in respect of an aspect of the circumstances of offending in this case. (ts 312)
The reference made to the sentence already served by the respondent was a reference to a conviction for assaulting a public officer. That conviction arose out of the incident that occurred on 2 November 2005 when Constable Morgan was forced to jump out of the way of the respondent's motor vehicle as it reversed towards him. For that offence he was sentenced on 1 December 2005 to 12 months' imprisonment. That sentence was at first ordered to be served cumulatively upon sentences of 6 months and 1 month respectively for criminal damage and possessing a prohibited drug, which sentences were to have been served concurrently. On 16 December 2005 there was an application in the Perth Magistrates Court for correction of sentence and the penalties were amended so that the total effect of sentence appears to have been one of 16 months' imprisonment effective from 3 November 2005. The respondent's submissions indicate that there were also sentences of 6 months' imprisonment for driving without a motor driver's licence. It is confusing, but it seems that the respondent was sentenced in all to a term of 18 months' imprisonment.
The respondent's sentence of 12 months' imprisonment for the offence of assaulting a public officer was a relevant factor to take into account when imposing sentence on the second count on the indictment and in relation to application of the totality principle.
After reviewing the principles applicable to the totality principle, the trial judge said:
Bearing all of that in mind, I consider that the sentence in this case that I have indicated, the total of 52 months, is too high and it needs to be adjusted. I believe that an appropriate total sentence in this case should be three years and six months. For that purpose I would reduce the sentence for aggravated armed robbery, which as I said was 36 months, to 30 months and I would reduce the sentence for stealing and driving recklessly, which as I indicated was 16 months, to 12 months. This produced a total of 42 months, which is three years and six months. That is the term of imprisonment, immediate imprisonment, which you will be required to serve in respect of these offences and upon which, as I have indicated, you will be eligible for parole. (ts 313)
Grounds of appeal
The appellant was granted leave to appeal on the following grounds:
1.The learned sentencing Judge erred in imposing an inadequate term for the aggravated armed robbery offence, having regard to its seriousness.
PARTICULARS
(i)The doubly aggravated armed robbery ought to have been placed at the upper end of the scale for such offences, given the circumstances which included persistent and considerable violence in company.
(ii)Having indicated that the aggravated armed robbery offence was midway within the usual range, prior to amendments, of 6‑9 years, the learned sentencing Judge gave no reason, nor was there justification, for discounting the sentence to 4½ years.
(iii)The learned sentencing Judge erred in disregarding the absence of remorse.
(iv)The learned sentencing Judge erred in giving too great weight to matters personal to the Respondent.
(v)The learned sentencing Judge erred in treating drug abuse as a mitigating factor.
2.The learned sentencing Judge erred in giving undue weight to the totality principle, to the extent that the aggravated armed robbery term was reduced.
PARTICULARS
Discounting both sentences, as opposed to only one, reduced the effective term to a level which did not adequately reflect the overall criminality.
Principles applicable
The appeal against sentence is a prosecution appeal, the principles in relation to which have been stated many times. In Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] the court said:
The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass and R v Clarke. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.
See also Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [3] ‑ [4] (Gleeson CJ and Hayne J).
Ground 1
The first ground of appeal contends that the trial judge erred in imposing an inadequate term for the offence of aggravated armed robbery having regard to its seriousness.
The first particular contends that the offence should have been placed at the upper end of the scale of seriousness for such offences because of the persistent and considerable violence in company which was involved in the commission of the offence. The second particular complains that although the trial judge indicated that the offence was mid‑way within the usual range of 6 ‑ 9 years' imprisonment prior to the application of the transitional provisions, the sentence before application of those provisions was discounted for no stated reason to 4 years 6 months' imprisonment.
In my view there is substance in these two contentions. The offence committed by the respondent was serious because it involved a robbery in three circumstances of aggravation. There was an offensive weapon (a screwdriver); the respondent was in company with another person; and bodily harm was caused to the complainant. In effect, his vehicle was 'high jacked' by the application of force to him by the respondent and an associate. He was hit several times on the side of the body with a screwdriver and injury (although not serious) was inflicted. He was ejected from his vehicle after it was stolen from him and he had to make his way to hospital where he received treatment.
In these circumstances it seems to me that the offence was towards the upper end of the scale. Certainly it was not as serious as some cases of aggravated armed robbery, but it had all the hallmarks of an offence which should have been placed in the upper end of the scale.
The trial judge's categorisation of the offence was that it was 'a serious form of a serious offence, not at the most serious end of the scale but equally not at the lightest end of the scale'. This does suggest (as contended for by the appellant) that the trial judge considered the case in the middle of the range of seriousness. If so I consider that he was in error. It was a very serious offence and towards the upper end of seriousness.
The range of sentences for the offence of armed robbery was 6 ‑ 9 years' imprisonment prior to the application of the transitional provisions. This was made clear in Miles v The Queen (1997) 17 WAR 518, 521 when Malcolm CJ said:
[S]entences [for conventional armed robbery] have tended to firm up as a result of the increasing prevalence of the offence by giving greater weight to the requirement of deterrence and less weight to the antecedents and other matters personal to the offender in the manner described by Burt CJ in R v Peterson [1984] WAR 329 at 332. The offence of armed robbery has become significantly more prevalent since 1989 and sentences have been firmed up in that period. At present, the range of sentences commonly imposed for a single offence, depending upon the circumstances, would be from six to nine years.
The applicable range for sentencing was appreciated by the trial judge but for some unexplained reason the 'starting point' taken by the trial judge was 4 years 6 months' imprisonment which was below the bottom of the 6 to 9‑year range. The appellant contends that there was no justification for discounting the sentence to 4 years 6 months' imprisonment, and I must say that I agree. There is nothing in the personal circumstances of the respondent which justified such a discounting. There was no evidence of remorse and the respondent had a very substantial record of convictions which dated back to 1963. Many were for motor vehicle related offences but there were also convictions for drug offences; criminal damage; receiving; and unlawful assault. Children's Court convictions included a number of offences of stealing and breaking, entering and stealing.
The pre‑sentence report delivered verbally by Ms Chadwick to the trial judge included the comment that the respondent had quite a lengthy history of offending behaviour and the offences before the court marked an escalation in the nature of his offending. The respondent had been subject to various orders of community supervision (a total of seven orders) but two of those orders had been breached as a consequence of 'omission and recidivism'. Ms Chadwick provided to the court detail of the respondent's employment history and his family relationship, documented his ongoing amphetamine and heroin problem and described him as a person who at mid‑life had experienced an emotionally deprived childhood where his needs were not met and in consequence of which he appears to have been exposed to 'delinquent peers and poor modelling'. None of this was of particular moment. No suggestion of remorse was present.
It appears that the trial judge put to one side the fact that there was no remorse. In doing so I consider that he was in error. Although absence of remorse could not aggravate the circumstances, there was clearly no mitigation for remorse and it should have been so stated by the trial judge. The trial judge also appears to have given excessive weight to matters personal to the respondent, including his drug abuse problem.
In all these circumstances I consider that the sentence of 3 years' imprisonment, reduced to 30 months' imprisonment was manifestly inadequate in the circumstances of the case. An appropriate sentence prior to the application of the transitional provisions was 7 years 6 months' imprisonment. After application of those provisions that is a sentence of 5 years' imprisonment.
Ground 2
The second ground of appeal contends that the trial judge erred in giving undue weight to the totality principle to the extent that the aggravated armed robbery term was reduced. It is contended that by discounting the sentence for aggravated armed robbery and the sentence for stealing the motor vehicle in circumstances of aggravation the effective term was reduced to a level which did not adequately reflect the overall criminality of the offences.
With this contention I agree. To reduce the sentence for aggravated armed robbery to one of 30 months, and to reduce the sentence for stealing the motor vehicle in circumstances of aggravation to 12 months, was to impose an effective sentence which was far too low. It was manifestly inadequate. The totality principle did require that the aggregate sentence should fairly and justly reflect the total criminality of the offender's conduct: Jarvis v The Queen (1993) 20 WAR 201, 207 (Ipp J). In taking a 'last look' at the total imprisonment imposed the trial judge had to apply the principle that the sentence should be proportionate to the degree of criminality involved. That is a basic principle of the law of sentencing: Wicks v The Queen (1989) 3 WAR 372, 379 ‑ 380; Jarvis v The Queen (206).
A reduction of the sentence for stealing a motor vehicle in circumstances of aggravation was justified, but not the reduction for the sentence for aggravated armed robbery. That was already an inadequate sentence, and to further reduce it by 6 months made it manifestly inadequate.
Conclusion
In my opinion, both grounds of appeal are made out. The sentence for aggravated armed robbery was manifestly inadequate, and the reduction of the sentences for both aggravated armed robbery and stealing
a motor vehicle in circumstances of aggravation to account for the totality principle constituted error.
In my opinion, the appropriate sentence for the first count on the indictment was one of 5 years' imprisonment. The sentence of 12 months' imprisonment for stealing a motor vehicle in circumstances of aggravation is not challenged. It was, in all the circumstances, appropriate. It was a separate and distinct offence from that of assaulting a public officer.
However, as the respondent had already served the non‑parole portion of his sentence for assaulting the public officer, and had been in custody for nine months shortly before he was sentenced by the trial judge, account should be taken of this in considering the sentence appropriate for the overall criminality of the respondent's conduct. The trial judge made the sentences on the two counts cumulative and ordered that they take effect from 20 October 2006. They were thus to be served concurrently with the unexpired term of the respondent's parole. This was an advantage to the respondent, as arguably the sentences could have been ordered to be served cumulatively on the term being served by the respondent, whose parole had been suspended on 2 November 2006. That suspension was unrelated to the offences the subject of the indictment.
In resentencing the respondent, it must be appreciated that there is an element of double jeopardy occasioned by the fact that this is a prosecution appeal (R v Grein (1988) 53 A Crim R 76; [1989] WAR 178, 180). This being so, I would make the sentences of 5 years and 1 year concurrent rather than cumulative, resulting in an effective sentence of 5 years' imprisonment.
I would therefore allow the appeal against sentence, quash the sentences of imprisonment imposed by the trial judge, and in lieu thereof impose sentences of 5 years' imprisonment on count 1 and 1 year's imprisonment on count 2 to be served concurrently with effect from 20 October 2006. The respondent is to remain eligible for parole, with the result that the minimum period he must serve in custody before eligibility for parole is 3 years, beginning 20 October 2006.
BEECH AJA:
Appeal against conviction: CACR 162 of 2006
I have had the advantage of reading in draft the reasons to be delivered by Miller JA. I agree that the appeal should be dismissed. My reasons are as follows.
The facts of the case, the charges against the appellant and the trial judge's directions to the jury are set out or summarised in the reasons of Miller JA and are repeated only to the extent necessary for an understanding of these reasons.
This appeal raises the question of how a jury's verdict should be taken on a charge which includes a circumstance of aggravation.
Both the charges against the appellant were of offences involving circumstances of aggravation pleaded in the indictment.
On both counts, the jury was asked for its verdict in respect of the charge with all circumstances of aggravation. On the first count the jury was asked for its verdict on the charge of robbery while being armed with an offensive weapon, being in company with another and doing bodily harm to the victim. (I infer that that is what was asked by the clerk of arraigns in the indistinct part of what is recorded, as set out in the reasons of Miller JA.) On the second count the jury was asked for its verdict on the charge of stealing a motor vehicle aggravated by reckless driving.
In his directions to the jury, set out in the reasons of Miller JA, the learned trial judge explained the manner in which he was going to take the jury's verdict for each charge. He explained that the jury would first be asked for its verdict in relation to the offence with all relevant circumstances of aggravation. If the verdict was guilty, that would be the end of the matter. If the verdict was not guilty, then the jury would be asked a series of questions in respect of its verdict of the offence combined, initially with each combination of two circumstances of aggravation, then in combination with each single circumstance of aggravation and, finally, in respect of the substantive offence alone.
The question raised by this appeal is whether the trial judge erred in law in directing the jury that he would take its verdicts in that manner, and then in taking the verdicts in the manner foreshadowed. The ground of appeal contends that his Honour should have told the jury that he would take its verdicts initially upon the substantive offence, followed (in the event of a verdict of guilty on the substantive offence), by the verdicts on each circumstance of aggravation, and that to do otherwise was an error.
No complaint is made as to the directions respecting how the jury ought approach their deliberations. The ground fixes upon the taking of the verdicts and the direction on that topic.
It was accepted by both counsel at trial, and both counsel on appeal, that the manner of taking the verdicts adopted by the trial judge in this case was unconventional. It was common ground that the practice adopted in this State generally, if not almost invariably, is to ask the jury for its verdict on the substantive offence and, in the event of a verdict of guilty, then to ask the jury for its verdict on, or whether it is satisfied beyond reasonable doubt in respect of, each circumstance of aggravation.
However, notwithstanding that it involved a departure from the normal practice, I am not satisfied that the course adopted by the trial judge involved any error of law. There does not seem to me to be any rule of criminal law or procedure which requires the adoption of the conventional manner of taking the verdict of a jury in respect of an offence with one (or more) circumstances of aggravation charged in the indictment.
A circumstance of aggravation is, by definition, not an element of the offence. It is a circumstance by reason of which the offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance: Criminal Code (WA) s 1. In other words, it alters the available maximum penalty. A circumstance of aggravation is to be distinguished from facts or circumstances relevant to the sentencing discretion as increasing the culpability of the offender or, as they are termed in the Sentencing Act 1995 (WA), 'aggravating factors'; Kingswell v The Queen (1985) 159 CLR 264, 280; Wade v The Queen [2001] WASCA 252 [37] ‑ [40]; Lee v The Queen (1994) 76 A Crim R 271, 285 ‑ 286.
Whether a circumstance of aggravation must be charged in the indictment is affected by the applicable statutory regime; see the discussion in Kingswell v The Queen (277 ‑ 278).
Before its amendment in 1982, s 582 of the Criminal Code required that if any circumstance of aggravation was intended to be relied upon, it must be charged in the indictment. Those words were deleted from s 582 following the decision of the High Court in R v De Simoni (1981) 147 CLR 383.
The position in Western Australia is now affected by s 7(3) of the Sentencing Act 1995, referred to later in these reasons.
Absent express statutory provision, the position at common law was discussed by the majority in Kingswell v The Queen (278 ‑ 281). Gibb CJ, Wilson and Dawson JJ concluded that, as a rule of practice, a circumstance of aggravation should be charged in the indictment and determined by the jury. Their Honours added that, if necessary, an alternative charge, omitting the circumstances of aggravation, could be laid in addition. Further, their Honours concluded that the rule of practice had not been abrogated by the specific provision there under consideration (s 235 of the Customs Act 1901 (Cth)).
Leave to reopen Kingswell v The Queen was refused in Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248. See the summary of the presently relevant aspects of Kingswell v The Queen and of R v Meaton (1986) 160 CLR 359, (to which I will turn) by Gleeson CJ, Gummow and Hayne J in Cheng v The Queen [45] ‑ [47].
As Miller JA has pointed out, in R v Meaton (364), Gibbs CJ, Wilson and Dawson JJ held (affirming their holding in Kingswell v The Queen) that when circumstances of aggravation are relied upon they should, as a matter of practice, be charged in the indictment. Their Honours stated that:
The preferable course for the prosecution is to lay one charge which includes the circumstances of aggravation; the jury can then be directed that it would be open to them (in appropriate circumstances) to find the accused guilty of the charge without those circumstances of aggravation: see Archbold's Criminal Evidence and Practice, 42nd ed (1985), pars 4‑459 ‑ 4-461.
The paragraphs of Archbold referred to by their Honours related to the ability of juries to bring in a verdict for a lesser offence than that charged in the indictment. At par 4‑461 of Archbold it is said that where persons are indicted for an aggravated offence they may be found guilty of the aggravated offence or of the lesser offence without the circumstance of aggravation.
In R v Meaton (364), Gibbs CJ, Wilson and Dawson JJ stated that where the matter is not governed by express statutory provision, the practice set out in Kingswell v The Queen (279 ‑ 281), referred to above, should be followed.
Thus the reasons of the majority in Kingswell v The Queen and R v Meaton identify two (not necessarily the only two) permissible means of complying with the rule of practice that a circumstance of aggravation be charged in the indictment. Alternative charges may, as suggested in Kingswell v The Queen, be framed, with one including the circumstances of aggravation and the other omitting it. Secondly, as suggested in R v Meaton, there might be a single charge, the jury being directed that it would be open to it, in appropriate circumstances, to find the accused guilty of the charge without the circumstance of aggravation. That is how the position was summarised by Gleeson CJ (with whom Powell JA and Smart J agreed) in Lee v The Queen (288 ‑ 289).
These passages would seem to contemplate that the jury might first be asked for their verdict in respect of the offence including the circumstance of aggravation and, then, in the event of a verdict of not guilty, for their verdict in respect of the offence without the circumstance of aggravation.
The practice adopted by the trial judge in this case therefore seems to me to be consistent with the statements in Kingswell v The Queen and R v Meaton.
Miller JA has reached the conclusion that a pleaded circumstance of aggravation is put to the jury by way of a special verdict under s 113(2) of the Criminal Procedure Act 2004 (WA). (The terms of the section are set out in Miller JA's reasons). From that, his Honour has concluded that the jury should be asked for its verdict on the substantive charge and then for a special verdict on any circumstances of aggravation.
I respectfully differ from Miller JA as to the first of those propositions. To my mind, a circumstance of aggravation pleaded in an indictment does not give rise to an occasion for the exercise, by the trial judge, of power under s 113(2) of the Criminal Procedure Act 2004. That subsection is engaged when the judge forms the opinion that the proper sentence may depend upon a specific fact. Such a conclusion does not seem to me to be apposite to a pleaded circumstance of aggravation which, by definition, alters the maximum penalty.
I read the subsection as applying when a specific fact not pleaded in the indictment may, in the judge's opinion, influence the proper sentence. When that is so, the judge is given a power (not a duty) to require the jury to give a special verdict in relation to the identified specific fact.
By contrast, when a circumstance of aggravation is pleaded in an indictment, in my opinion the trial judge is required, not merely empowered, to obtain the verdict of the jury in relation to the pleaded circumstance of aggravation. That is so, it seems to me, by force of the presence of the circumstance of aggravation in the indictment.
Section 7(3) of the Sentencing Act 1995 provides as follows:
(3)If the statutory penalty for an offence is greater if the offence is committed in certain circumstances than if it is committed without the existence of those circumstances, then -
(a)an offender is not liable to the greater statutory penalty unless he or she has been charged and convicted of committing the offence in those circumstances; and
(b)whether or not the offender was so charged, the existence of those circumstances may be taken into account as aggravating factors.
In my opinion an offender is only 'convicted' of committing the offence in the circumstances of aggravation, within the meaning of s 7(3)(a), if (in a jury trial), the jury convicts the offender of committing the offence in the circumstances of aggravation.
That was the conclusion reached by McKechnie J (with whom Malcolm CJ and Anderson J agreed) in Wade v The Queen [45].
In my opinion, when a circumstance of aggravation is pleaded in the indictment the trial judge must obtain the verdict of the jury in relation to that circumstance of aggravation, otherwise, the offender would not, by force of s 7(3)(a) of the Sentencing Act 1995, be liable to the greater statutory penalty.
In The State of Western Australia v Majok [2005] WASC 13; (2005) 152 A Crim R 25, Murray J held that when an accused pleaded guilty to the offence of robbery, denying a pleaded circumstance of aggravation, the alleged disputed circumstance of aggravation was to be tried by him, rather than by a jury. (Compare the practice in South Australia, as to which see R v Hietanen (1989) 51 SASR 510, 514.) The appeal against the sentence imposed by his Honour did not raise any issue as to whether the disputed circumstance of aggravation was to be tried by the judge or by the jury; see Majok v The State of Western Australia [2006] WASCA 140.
In The State of Western Australia v Majok, Murray J expressed the obiter opinion that, in the event of a plea of not guilty, a pleaded circumstance of aggravation gives rise to a power, on the part of a trial judge, to seek a special verdict under s 642 of the Criminal Code (substantially the predecessor to s 113(2) of the Criminal Procedure Act 2004), and that only if and when the trial judge exercised that power did the jury have any role to play in determining whether the pleaded circumstance of aggravation had been established. I have, with respect, come to a different conclusion, as is set out earlier in these reasons. I note that the decision in Wade v The Queen was not cited to his Honour.
In my view neither the applicable statutory provisions nor any rule of criminal law or procedure precludes the taking of a jury's verdict, first, on the charge including the pleaded circumstance(s) of aggravation. For these reasons, I am not satisfied that the course adopted by the trial judge, albeit unconventional, involved any error of law. Accordingly, I would dismiss the appeal.
Notwithstanding my opinion that, as a matter of law, it is open to a trial judge to direct the jury in either of the alternative fashions already identified, the conventional approach seems to me to be distinctly preferable. To my mind, it has advantages of both logic and simplicity.
The conventional approach seems to me to be more logical because it accords more closely with the approach which, on any view, must be taken by the jury in its deliberations. Where an accused is charged with committing an offence in one or more circumstances of aggravation, the first question for the jury will be whether the substantive offence was committed. If a jury is not satisfied of that, the circumstances of aggravation do not arise for consideration. (As will appear, the trial judge directed the jury in those terms in this case). The conventional approach thus asks questions of the jury in an order which mirrors the order in which the jury is likely to consider its verdict.
Secondly, the conventional approach makes the task of the jury in expressing its verdict a simpler one. That is illustrated by count 1 in the present case, in which three circumstances of aggravation were pleaded. In such a case, as many as eight questions may have been required of the jury. Indeed, in circumstances where the jury were not satisfied of the guilt of the accused in respect of the substantive offence, eight questions would have been required of the jury before that became apparent.
By contrast, the conventional approach involves asking the jury, at most, only as many questions as there are offences and circumstances of aggravation.
For those reasons, I consider that the conventional approach is distinctly preferable. However, as already explained, I do not consider that the departure from it involved any error of law.
In that light the question of the application of the proviso - the power in s 30(4) of the Criminal Appeals Act 2004 (WA) - does not arise.
Appeal against sentence: CACR 166 of 2006
I agree with Miller JA, for the reasons which he gives, that particular (ii) of ground 1 of the State's appeal against sentence succeeds. The learned sentencing judge correctly identified that the usual range, prior to application of the transitional provisions, for offences of aggravated armed robbery was in the range of 6 to 9 years. Having indicated that this offence was, in substance, midway through the range, the sentencing judge did not identify any reason for taking, as his starting point, prior to the application of the transitional provisions, 4 years' and 6 months' imprisonment. Nor, as the reasons of Miller JA demonstrate, was there any justification for doing so.
Accordingly, I conclude that the sentencing judge's discretion miscarried, so that it is appropriate for this court to re‑exercise the sentencing discretion.
I agree with the sentences proposed by Miller JA, for the reasons which he gives.
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