DeBono v Barker - [2019] WASC 303

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   DEBONO -v- BARKER [2019] WASC 303
CORAM:   ALLANSON J
HEARD:   19 AUGUST 2019
DELIVERED          :   19 AUGUST 2019
PUBLISHED           :   22 AUGUST 2019
FILE NO/S:   SJA 1017 of 2019
BETWEEN:   JAMIE CHARLES DEBONO
Appellant

AND

CHAS BARKER
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE S WILSON
File Number             :   PE 49300 of 2017

Catchwords:

Criminal law - Appeal against sentence imposed after trial of issues - Where applicant disputing material facts on which sentence based - Where decision based on credibility of witness - Turns on own facts

Legislation:

Criminal Code 1913 (WA), s 338B

Result:

Leave to appeal on all grounds refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	T B L Scutt

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Nyoni v Patterson [2012] WASCA 171

ALLANSON J:

(This judgment was delivered extemporaneously on 19 August 2019. It has been edited to include references and correct the date of the charges.)

The appellant Mr DeBono was charged on 22 August 2017 with making a threat to unlawfully injure a person.[1] On 12 October 2018, he pleaded guilty. On 6 February 2019, Mr DeBono was sentenced to imprisonment for 6 months and one day. Two other sentences, for possession of cannabis and trespass, were ordered to be served concurrently.
[1] Criminal Code 1913 (WA) s 338B. The offence is a crime punishable by imprisonment for 3 years.
The sentencing magistrate was told that Mr DeBono had been in custody, for all but five weeks, since 1 January 2017. On the information before the sentencing magistrate, Mr DeBono had also been sentenced to imprisonment in the District Court on 22 March 2018, backdated to 14 January 2017.[2] The sentencing magistrate backdated the sentence he imposed to 1 January 2017 so that it was largely, if not wholly, concurrent with the sentence imposed by the District Court. His Honour recognised that the sentence he was imposing had already been wholly served.
[2] ts 34 ‑ 37.
On 12 February 2019, Mr DeBono filed an appeal notice appealing against both conviction and sentence on the charge of threat to harm. Ground 1 of the grounds of appeal, however, states:
I am not denying the charge. I am denying the trial of issues which I was found guilty of comments that I did not say to the victim.
Ground 1 is consistent with how the charge was dealt with. Mr DeBono pleaded guilty, and admitted threatening the victim. The statement of material facts alleged a threat to rape. Mr DeBono denied that he said what was alleged but admitted making a different threat. There was a trial of the issues on 6 February 2019.
On the trial of the issues, the prosecution called the victim. She said that at about 5.15 pm on 1 January 2017 she was at home with her two year old daughter when Mr DeBono knocked on the door. The victim did not know Mr DeBono. She opened her front door but kept her screen door locked. Mr DeBono asked to use her phone and she refused, telling him to use someone else's phone. The victim's evidence continued:
What did he say?---'No, just let me in.' He's happy to wait which then frightened me because I thought no-one's coming so I'm here by myself.
Okay. And what did he say?---He said that he was going to rape me and my family and my daughter was standing next to me at the time. Obviously she doesn't know what that meant but it was quite scary.
And how did he say that?---Like, he was ‑ said, 'Can you let me in. I'm going to rape you and your family', and was just quite stern about it and at that stage I, you know, I believe I shut the door at that time and he, kind of, just stood there and started banging on the door.[3]
[3] Primary court, ts 5.
The victim said she closed her door and locked everything. She hid her daughter. She heard banging at the door and believed the man at her door was trying to get in. She called the police, and also called her father.
In cross-examination, counsel for Mr DeBono suggested to the witness that Mr DeBono had said he needed to use the phone because he was lost, and that what he said was 'I will punch your fucking head in if you don't let me use your phone'.[4]
[4] Primary court, ts 12.
The victim said she did not recall those words but clearly remembered the threat to rape.
Mr DeBono gave evidence. He said that on the day he had 'a bit to drink and all that' but could remember 'most ‑ about 90 per cent of what happened'.[5] He said he had drunk about half a bottle of vodka, and smoked two or three pipes or cones of cannabis.[6] He insisted that he had threatened to punch the victim and that he had not said, and would not say, what the victim alleged.
[5] Primary court, ts 15 ‑ 16.
[6] Primary court, ts 19 ‑ 20.
The magistrate gave oral reasons for his decision.
The magistrate stated in his reasons that the prosecution bore the onus of proof to the criminal standard. His Honour accepted the evidence of the victim, finding that she was clear in her recollection and that there was nothing in her evidence to suggest that her recollection had failed in any way.[7] The magistrate did not accept that Mr DeBono's recollection was accurate, and rejected his version of the events.[8] His Honour referred to the fact that Mr DeBono was angry and frustrated, and to his evidence about the alcohol and drugs he had consumed.
[7] Primary court, ts 31.
[8] Primary court, ts 32 ‑ 33.
The magistrate found that he was satisfied that the allegation had been proved.
In his sentencing remarks, the magistrate described the matter as very serious, referring particularly to the fact that Mr DeBono's conduct had terrified the victim. He found the offence was sufficiently serious to warrant a term of imprisonment.
Mr DeBono put forward eight grounds of appeal. He contended that, on his version of events, he would have received only a fine. Otherwise, he denied the evidence on which the magistrate acted.
Mr DeBono is unrepresented (although he was represented at trial). In my opinion, the court should exercise similar caution in considering the proposed grounds of appeal as it does when considering a pleading by a litigant in person. Adapting what was said by Pullin JA in Nyoni v Patterson,[9] the court will approach the application for leave with special care, to ensure that within the possibly ill-expressed and unstructured notice of appeal, there is no viable ground disclosed.
[9] Nyoni v Patterson [2012] WASCA 171 [35] (Pullin JA, Buss & Murphy JJA agreeing).
The court, on an appeal by rehearing, is required to conduct a real review of the trial and the magistrate's reasons. Where the reasoning of the trial court is based on a credibility determination, as it was in this case, an appellant must show some basis on which the findings at trial are wrong, such as where the trial judge has misused their advantage as trial judge. Mr DeBono must demonstrate that, in some way, the magistrate was wrong to believe the victim. To succeed, he must identify some error on the part of the magistrate. I am not satisfied that he has.
Grounds 1 and 6 of the appeal did not allege any error on the part of the magistrate.
To the extent that he sought to identify any error in the magistrate's reasons, Mr DeBono contended that the magistrate did not take into account his evidence that he had children of his own,[10] that he had no prior convictions of such a nature,[11] and did not take into account that the victim may have had ulterior motives (such as compensation) for giving false testimony.[12] He said that the magistrate accepted evidence that was hearsay, 'biased' and without any corroboration, and did not sentence on the true facts.[13]
[10] Ground 2.
[11] Ground 4.
[12] Ground 8.
[13] Grounds 5, 7 and 8.
It is true that the magistrate did not refer to the matters which Mr DeBono now relies on. His Honour's reasons did, however, sufficiently state why he made the finding that he did.
The critical finding at trial was that the evidence of the victim was credible and should be accepted as proving beyond reasonable doubt the words used. Her evidence as to what was said was not hearsay. It did not require corroboration as a matter of law, and there was no reason to treat it with particular caution. The suggestion of an ulterior motive for her evidence was not put to her at trial and is without foundation. I am not satisfied that the failure of the magistrate to refer to these matters demonstrates error.
In ground 3, Mr DeBono asserted that the magistrate did not take into account that a video taken by the victim on her phone did not show threats being made to her. His Honour took the video into account as simply confirming that Mr DeBono was standing outside the house.[14]
[14] ts 30.
The evidence before the magistrate was that this recording was made after the victim's father arrived 15 or 20 minutes after Mr DeBono first knocked on the door ‑ that is, well after the threats had been made.[15] It could not be evidence of what was said. The fact that no threats were recorded is of no consequence when it was not in dispute that some threat had been made, but earlier.
[15] ts 6, 8.
None of the proposed grounds of appeal has merit. The application for leave on each ground will be refused and the appeal dismissed.
The sentence imposed has been wholly served, and there is no reason to disturb it.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
Associate to the Honourable Justice Allanson
22 AUGUST 2019