JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: JONES -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 115
CORAM: BUSS P
MAZZA JA
TOTTLE J
HEARD: 12 APRIL 2024
DELIVERED : 26 SEPTEMBER 2024
FILE NO/S: CACR 10 of 2023
CACR 11 of 2023
BETWEEN: JOHN MAXWELL JONES
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: PETRUSA DCJ
File Number : IND 2561 of 2020
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted after trial of aggravated home burglary, aggravated armed assault with intent to rob, criminal damage and stealing a motor vehicle - Whether the trial judge erred in law in ruling in respect of the charged offence of aggravated armed assault with intent to rob that the jury could not consider the possibility that the appellant did not have an intention permanently to deprive the complainant of any property - Whether a miscarriage of justice occurred by reason of the State's failure to call a person as a witness at the trial
Criminal law - Appeal against sentence - Whether the trial judge erred in fact in finding that the appellant was intent on 'exacting some form of revenge' and that was the appellant's purpose in visiting the place where the offending occurred - Manifest excess - Totality
Legislation:
Criminal Code (WA), s 371, s 371A, s 378, s 393(c), s 401(2)(a), s 444(1)(b)
Result:
CACR 11 of 2023: conviction appeal
Leave to appeal refused
Appeal dismissed
CACR 10 of 2023: sentence appeal
Leave to appeal refused on grounds 1, 2 and 3
Leave to appeal granted on ground 4
Appeal allowed
Trial judge's sentencing decision set aside
Appellant resentenced
Category: B
Representation:
Counsel:
| Appellant | : | A G Elliott and J E Keogh |
| Respondent | : | B M Murray |
Solicitors:
| Appellant | : | Anthony Elliott |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Clinch v The State of Western Australia [2024] WASCA 92
Creusot v The State of Western Australia [2022] WASCA 117
Fernie v The State of Western Australia [2022] WASCA 20
Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166
Fitzgerald v The State of Western Australia [2024] WASCA 58
Goddard v The State of Western Australia [2023] WASCA 164
HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978
Jones v The State of Western Australia [2023] WASCA 30
Kabambi v The State of Western Australia [2019] WASCA 44
Nguyen v The Queen [2020] HCA 23; (2020) 269 CLR 299
Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107
Puntigam v The State of Western Australia [2023] WASCA 46
R v Apostilides [1984] HCA 38; (1984) 154 CLR 563
R v Dardovska [2003] VSCA 4; (2003) 6 VR 628
R v Hall (1849) 1 Den 381; 169 ER 291
Richardson v The Queen [1974] HCA 19; (1974) 131 CLR 116
The State of Western Australia v Billett [2022] WASCA 158
The State of Western Australia v Krakouer [2022] WASCA 118
The State of Western Australia v McDonagh [2022] WASCA 108
The State of Western Australia v Murray [2020] WASCA 190; (2020) 94 MVR 426
The State of Western Australia v Tawhitapou [2024] WASCA 25
Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158
Walsh v The State of Western Australia [2011] WASCA 119
Table of Contents
Conviction appeal: an overview of the State's case at trial
Conviction appeal: an overview of the appellant's defence at trial
Conviction appeal: the prosecutor's submissions to the jury about count 1
Conviction appeal: the trial judge's directions to the jury about count 1
Conviction appeal: the prosecutor's submissions to the jury about count 2
Conviction appeal: ground 1
Conviction appeal: ground 1: exhibit 60
Conviction appeal: ground 1: the appellant's defence, defence counsel's closing address and the trial judge's impugned ruling
Conviction appeal: ground 1: the trial judge's directions to the jury based upon the impugned ruling
Conviction appeal: ground 1: other relevant directions by the trial judge to the jury
Conviction appeal: ground 1: counsel for the appellant's submissions in the appeal
Conviction appeal: ground 1: counsel for the State's submissions in the appeal
Conviction appeal: ground 1: its merits
Conviction appeal: ground 2
Conviction appeal: ground 3
Conviction appeal: ground 3: counsel for the appellant's submissions in the appeal
Conviction appeal: ground 3: counsel for the State's submissions in the appeal
Conviction appeal: ground 3: its merits
Conviction appeal: the outcome of the appeal
Sentence appeal: other offending relevant to the sentence appeal
Sentence appeal: the trial judge's sentencing remarks
Sentence appeal: ground 1
Sentence appeal: ground 1: counsel for the appellant's submissions in the appeal
Sentence appeal: ground 1: counsel for the State's submissions in the appeal
Sentence appeal: ground 1: its merits
Sentence appeal: ground 2
Sentence appeal: ground 2: counsel for the appellant's submissions in the appeal
Sentence appeal: ground 2: counsel for the State's submissions in the appeal
Sentence appeal: ground 2: its merits
Sentence appeal: ground 3
Sentence appeal: ground 3: counsel for the appellant's submissions in the appeal
Sentence appeal: ground 3: counsel for the State's submissions in the appeal
Sentence appeal: ground 3: its merits
Sentence appeal: ground 4
Sentence appeal: ground 4: counsel for the appellant's submissions in the appeal
Sentence appeal: ground 4: counsel for the State's submissions in the appeal
Sentence appeal: ground 4: its merits
Sentence appeal: the outcome of the appeal and the resentencing of the appellant
JUDGMENT OF THE COURT:
The appellant has appealed against conviction and sentence.
The appellant and four co‑accused were jointly charged on an indictment containing four counts.
Count 1 alleged that on 5 April 2020, at Upper Swan, the appellant, Jake French, Robert Thorne, Clayton Mackey and Reanna Hunstock, while in the place of John Bellette without his consent, committed the offence of assault, contrary to s 401(2)(a) of the Criminal Code (WA) (the Code).
Count 1 pleaded circumstances of aggravation as follows:
(a)the accused were armed with an offensive instrument, namely a baseball bat;
(b)the accused were armed with an offensive instrument, namely a metal bar;
(c)the accused were in company with each other;
(d)the accused did bodily harm to John Bellette;
(e)immediately before the commission of the offence, the accused knew or ought to have known that there was another person in the place; and
(f)the place was ordinarily used for human habitation.
Count 2 alleged that on the same date and at the same place as in count 1, the appellant, Mr French, Mr Thorne, Mr Mackey and Ms Hunstock, with intent to steal car keys, used violence to John Bellette in order to obtain the car keys which they so intended to steal, contrary to s 393(c) of the Code.
Count 2 pleaded circumstances of aggravation as follows:
(a)the accused were armed with an offensive instrument, namely a baseball bat;
(b)the accused were armed with an offensive instrument, namely a metal bar;
(c)the accused were in company with each other; and
(d)the accused did bodily harm to John Bellette.
Count 3 alleged that, on the same date and at the same place as in count 1, the appellant, Mr French, Mr Thorne, Mr Mackey and Ms Hunstock wilfully and unlawfully damaged a Suzuki Jimny motor vehicle, contrary to s 444(1)(b) of the Code.
Count 4 alleged that, on the same date and at the same place as in count 1, the appellant, Mr French, Mr Thorne, Mr Mackey and Ms Hunstock stole a motor vehicle, namely a Holden Commodore utility, the property of John Bellette, contrary to s 371A read with s 378 of the Code.
On 2 August 2022, a joint trial of the appellant and his co‑accused began before Petrusa DCJ and a jury. When the appellant and his co‑accused were arraigned:
(a)the appellant pleaded not guilty to all of the counts, except that when arraigned on count 1 he pleaded guilty to 'occasioning bodily harm' (ts 100); and
(b)his co‑accused pleaded not guilty to all of the counts, except that Mr French and Mr Thorne pleaded guilty to count 4.
On 1 September 2022, at the completion of the joint trial, the appellant was convicted of all of the charged offences. All of the circumstances of aggravation pleaded in counts 1 and 2 were proved against him.
Mr French, Mr Thorne and Mr Mackey were also convicted as charged. Ms Hunstock was found not guilty on each of the counts.
The maximum penalty for:
(a)the offence of aggravated home burglary, contrary to s 401(2)(a) of the Code, is 20 years' imprisonment;
(b)the offence of armed assault with intent to rob committed in circumstances of aggravation, contrary to s 393(c) of the Code, is life imprisonment;
(c)the offence of wilful and unlawful damage, contrary to s 444(1)(b) of the Code, is 10 years' imprisonment; and
(d)the offence of stealing a motor vehicle, contrary to s 371A read with s 378 of the Code, is 7 years' imprisonment.
On 12 December 2022, the trial judge imposed on the appellant individual sentences of immediate imprisonment as follows:
(a)Count 1: 7 years 7 months;
(b)Count 2: 1 year 2 months (reduced from 3 years 3 months in the application of the totality principle);
(c)Count 3: 1 year; and
(d)Count 4: 2 years.
Her Honour ordered that the sentence for count 2 be served cumulatively upon the sentence for count 1 and that the sentences for counts 3 and 4 be served concurrently with each other and concurrently with the sentence for count 1. The total effective sentence was therefore 8 years 9 months' imprisonment. The total effective sentence was ordered to be served cumulatively upon an existing sentence of 5 years' immediate imprisonment that the appellant was serving. The overall total effective sentence was 13 years 9 months' imprisonment from 6 April 2020. A parole eligibility order was made.
In the conviction appeal the appellant relies upon three grounds. Ground 1 alleges, in effect, that the trial judge erred in law in ruling, in respect of count 2, that the jury could not consider the possibility that the appellant did not have an intention permanently to deprive the complainant, John Bellette, of his car keys, but merely intended to use the car keys as 'leverage to secure the return of stolen property' from a third party. Ground 2 alleges that, as a further result of the error alleged in ground 1, the appellant was not permitted 'to leave his entire case to the jury, and/or the jury was not permitted to consider his entire case resulting in a miscarriage of justice in respect of count 1'. Ground 3 alleges that there was a miscarriage of justice in respect of counts 1 and 2 by reason of the State's failure to call Jade Bellette as a witness at the trial.
In the sentence appeal the appellant relies upon four grounds. Ground 1 alleges that the trial judge erred in fact in finding that the appellant was intent on '[exacting] some form of revenge' and that was the appellant's purpose in visiting the place where the offending occurred. Ground 2 alleges that the sentence of 7 years 7 months' imprisonment for count 1 was manifestly excessive. Ground 3 alleges that the total effective sentence of 8 years 9 months' imprisonment infringed the first limb of the totality principle. Ground 4 alleges that her Honour erred in law by ordering that the total effective sentence of 8 years 9 months' imprisonment be served cumulatively upon the term of 5 years' immediate imprisonment that the appellant was serving for other offending.
We would dismiss the conviction appeal and allow the sentence appeal. Our reasons are as follows.
Conviction appeal: an overview of the State's case at trial
The State's case against the appellant at trial was that he was criminally responsible under s 7(a) of the Code in relation to count 1 and count 2; he was criminally responsible under s 8 of the Code in relation to count 3; and he was criminally responsible under s 7(b) of the Code in relation to count 4.
The offending occurred at residential premises on Orange Avenue, Upper Swan. The premises comprised a main dwelling and an attached unit. The attached unit was described as an 'extension'. Jacqueline Bellette owned the premises and lived in the main dwelling. Her daughter, Jade Bellette, lived occasionally in the main dwelling, but she was not present when the offending occurred.
Christopher Bellette, who is Jacqueline Bellette's former husband, resided in the extension with their adult son, John Bellette.
The appellant had been in a relationship with Jade Bellette. He was therefore known to John Bellette and his parents. The appellant had previously visited the main dwelling but had not been inside the extension.
At about 11.00 pm on 5 April 2020, the appellant, his co‑accused and an unknown man arrived at the Orange Avenue premises. At that time, Jacqueline Bellette was asleep in her bedroom in the main dwelling and Christopher Bellette and John Bellette were asleep in their bedrooms in the extension.
John Bellette was awoken by the sound of two motorcycles in the driveway of the Orange Avenue premises. He walked from his bedroom, turned on the light in the living room and opened the front door (which included a security door) of the extension. John Bellette saw the appellant, who was wearing an open‑face motorcycle helmet and was carrying a baseball bat. John Bellette said that the appellant was 'pacing towards me' (ts 220). According to John Bellette, the appellant said, 'Where the fuck's your sister. I want my shit back' (ts 221, 258). John Bellette said he understood the appellant was referring to Jade Bellette, but he did not know what the appellant was talking about (ts 221).
The appellant then kicked the security door and caused it to 'bow'. The security door fell onto the pavement. John Bellette retreated towards the back of the extension (ts 221, 261 ‑ 262, 279; exhibit 7.5).
Next, the appellant entered the extension together with his male co‑accused and the unknown man. The appellant and at least one of the other men assaulted John Bellette to the head and back. During the assault the appellant struck John Bellette with the baseball bat (ts 222). Those events constituted count 1.
Count 2 occurred when John Bellette was sitting on a couch in the extension. The appellant swung a baseball bat repeatedly at John Bellette's knees. The bat struck the couch before making contact with his legs. Consequently, John Bellette did not receive the full force of the blows. The appellant demanded John Bellette's keys (ts 223, 226, 265). In particular, the appellant said, 'Where the fuck are your keys'. The appellant was referring to the keys to John Bellette's Holden Commodore utility. The appellant took the keys to the utility from a lock on John Bellette's bedroom door. The appellant, his male co‑accused and the unknown man then left the extension (ts 226).
Christopher Bellette was awoken by loud voices. He came out of his bedroom and saw the appellant striking John Bellette on the knees with a baseball bat while John Bellette was seated on the couch and while he was on the floor near the back door (ts 373 ‑ 377). Christopher Bellette asked the appellant why he was bashing John Bellette. Christopher Bellette said, 'You should be bashing that other fucking bitch' (meaning Jade Bellette). The appellant did not reply (ts 377).
Jacqueline Bellette was awoken by the sound of two motorcycles, someone shouting and the sound of breaking glass (ts 436). When she entered the extension Jacqueline Bellette saw John Bellette sitting on the couch (ts 439). She asked the appellant to stop striking John Bellette. The appellant replied that he would kill John Bellette if he did not give him the keys to the Holden Commodore utility. Jacqueline Bellette then asked John Bellette to give the keys to the appellant. John Bellette replied that the keys were in his bedroom door (ts 442, 455). Jacqueline Bellette did not recall anyone asking John Bellette about Jade Bellette (ts 454). However, she recalled the appellant saying something about Jade Bellette's boyfriend having stolen something, but could not recall whether there was any reference to a truck (ts 454 ‑ 455).
John Bellette owned the Holden Commodore utility that was parked in the front yard of the Orange Avenue premises. John Bellette walked from the extension to the front yard. He saw the appellant talking to a man who was sitting in the driver's seat of the vehicle. He also saw another man get into the passenger seat of the vehicle. John Bellette asked if he could retrieve his property (including his wallet) from the vehicle. He was ignored and the vehicle was driven away (ts 228). Those events constituted count 4.
During the incident at the Orange Avenue premises, windows in the main dwelling were smashed (ts 238 ‑ 239, 382, 446). The rear window of Jacqueline Bellette's Suzuki Jimny motor vehicle was also smashed (ts 232 ‑ 233, 382, 447). The smashing of the window of the vehicle constituted count 3.
John Bellette gave evidence that he knew Brock Hulsman. Mr Hulsman was a friend of Jade Bellette. John Bellette had seen Mr Hulsman once or twice at the Orange Avenue premises (ts 244). John Bellette also gave evidence that he knew Jayden Robinson. He said that Mr Robinson was Jade Bellette's boyfriend. John Bellette had seen Mr Robinson at the Orange Avenue premises in the past (ts 245). However, neither Mr Hulsman nor Mr Robinson were at the premises on 5 April 2020. Neither of them had ever been inside the extension (ts 361 ‑ 362).
Detective Senior Constable Iain Stirk gave evidence that on 6 April 2020 at 12.35 pm he was contacted by police officers from the Scarborough Police Station. The police officers informed Detective Stirk that the appellant had attended the Scarborough Police Station in connection with unrelated matters. Detective Stirk asked the police officers to arrest the appellant on suspicion of the offences in question. Detective Stirk went to the Scarborough Police Station. He ascertained that the appellant had arrived at the Scarborough Police Station in a motor vehicle, the vehicle was parked at Scarborough Police Station and Mr Thorne was in the vehicle. Detective Stirk arrested Mr Thorne on suspicion of the offences in question. Detective Stirk then searched Mr Thorne's vehicle. He found a set of Holden car keys in the centre console of the vehicle near the handbrake. The keys did not operate Mr Thorne's vehicle. At that stage of the investigation, John Bellette's Holden Commodore utility had been located at 15 Charles East Street, Midland. Detective Stirk arranged for another detective to take the Holden keys to the location where John Bellette's vehicle had been located to ascertain whether the keys operated his vehicle (ts 919 ‑ 922).
Detective Senior Constable Neville Hedges gave evidence that on 6 April 2020 at 6.48 pm he attended Ms Hunstock's home at 7C Charles East Street. John Bellette's Holden Commodore utility was located in close proximity at 15 Charles East Street. It was parked on the street and locked. The Holden keys found by Detective Stirk in the centre console of Mr Thorne's vehicle operated John Bellette's vehicle (ts 509, 512 ‑ 513).
John Bellette said in evidence that when his vehicle was recovered it had not been damaged and nothing had been removed from his wallet which was in a compartment of the vehicle (ts 269 ‑ 270).
The State did not call Jade Bellette as a witness at the trial.
Conviction appeal: an overview of the appellant's defence at trial
The appellant's defence, as explained by his defence counsel in an opening statement at the trial, was as follows (ts 164 ‑ 165, 167 ‑ 168):
(a)The appellant did not dispute that on 5 April 2020 he went to the Orange Avenue premises.
(b)The appellant did not dispute that Jacqueline Bellette's motor vehicle was 'damaged' and that John Bellette's Holden Commodore utility was 'taken from the premises'.
(c)The appellant did not challenge that 'he took people with him to [the Orange Avenue premises] and that John Bellette was assaulted' (the appellant having admitted upon arraignment that he was guilty of 'occasioning bodily harm').
(d)The appellant did not 'go [to the Orange Avenue premises] to see John Bellette or to have anything to do with him'.
(e)Shortly before arriving at the Orange Avenue premises, the appellant became aware that Jade Bellette, Mr Robinson and Mr Hulsman were involved in a theft of property from a timber yard or were keeping property from that theft.
(f)On 5 April 2020, Jade Bellette contacted the appellant on his mobile telephone. They discussed the return of a truck that the appellant was 'interested in'.
(g)Mr Robinson sent a Google Images link to the appellant and that link 'had something to do with [the truck] that had been taken, and that [the appellant] was interested in it'.
(h)The appellant went to the Orange Avenue premises 'to get information about the whereabouts of the truck that had been stolen from the timber yard'. The appellant 'took friends with him because it was … a logistical exercise in getting his truck back'.
(i)The appellant did not know what he would have to do 'to get [the truck] in … a transportable state'. The appellant was not expecting 'to do that from [the Orange Avenue premises] but he was expecting to get information which was why he was going to see Jade Bellette'.
(j)The appellant's case was that 'when he was having an exchange with John Bellette' he was not asking for John Bellette's keys, but was asking for his own keys; that is '[the appellant's] keys, the truck keys'.
(k)The appellant was entitled to demand the truck keys from John Bellette if John Bellette had them or if the appellant was 'seeking to find out what was known about them'.
(l)That was why the appellant denied that he was guilty of 'an aggravated burglary or an aggravated armed robbery'.
(m)The appellant had a 'long standing relationship' with Jade Bellette. They had a child. The appellant went to the Orange Avenue premises from time to time to see Jade Bellette and their child. Sometimes he would see Jacqueline Bellette as well. The appellant 'had permission to attend [the premises], just like you would have permission to go to your in‑laws' house or your friend's house'.
(n)There was a 'clear disconnect between any violence that happened [in the extension] and the taking of [John Bellette's Holden Commodore] vehicle'. The appellant '[was not] even there at the time the vehicle was driven away'.
(o)The appellant went to the Orange Avenue premises to get information from Jade Bellette, and then he was 'going onwards to another place to get his truck'.
The trial judge made these observations in her summing up about the appellant's defence:
(a)The appellant's position was that he was not at the Orange Avenue premises for any unlawful purpose, although he did assault John Bellette by striking him on the legs with a baseball bat (ts 2399).
(b)The appellant's submission was that the evidence did not permit the jury to draw any inferences beyond reasonable doubt that he committed a burglary or that he had an intention permanently to deprive John Bellette of his car keys or that he was part of a common unlawful purpose (ts 2399).
(c)The appellant submitted that the jury had to have a reasonable doubt and should acquit him of the charged offences on the indictment, although he accepted there may be scope for the jury to find him guilty of striking John Bellette on the legs (ts 2400).
(d)The appellant submitted that the jury should conclude that he had an interest in recovering a truck; that the truck was a topic of discussion with Jade Bellette; and that he had some arrangement with Jade Bellette for the night in question (ts 2400).
(e)The appellant submitted that the jury should have a reasonable doubt about John Bellette's evidence that the person he saw 'pace towards him', when he opened the front door of the extension, was in fact the appellant (ts 2401).
(f)The appellant submitted in relation to count 1 that while he ultimately entered the extension he played no role in the assault upon John Bellette that involved blows to the head or the back (ts 2403).
(g)The appellant submitted in relation to the stealing offence that the jury must examine the evidence carefully; that the blows to John Bellette's legs were not made at the time that demands were made for the keys; and that the appellant had no reason to take John Bellette's motor vehicle (ts 2403).
The appellant did not give evidence at the trial or call any witnesses in his defence.
Conviction appeal: the prosecutor's submissions to the jury about count 1
As to the aggravated home burglary offence charged in count 1, the prosecutor submitted to the jury that (ts 1886 ‑ 1891):
(a)The appellant did not, in essence, dispute that he had assaulted John Bellette with a baseball bat inside the extension.
(b)There was no evidence that the appellant had permission to enter the extension and there was no evidence that the appellant honestly believed that he did have permission to enter the extension. John Bellette's evidence that he did not give the appellant permission was unchallenged. John Bellette and Christopher Bellette did not have any previous relationship with the appellant. The appellant had never previously been inside the extension. The appellant's conduct in kicking the security door and causing it to 'bow' was inconsistent with him having permission to enter the extension.
(c)John Bellette gave evidence that he knew the appellant and recognised him. There was no reasonable prospect that John Bellette mistakenly identified the appellant as the first of the men to enter.
(d)There was no evidence that the appellant had any reason to believe that Jade Bellette or any of her friends might be in the extension.
(e)The prosecutor referred to electronic messages the appellant had sent shortly before the incident. First, the appellant sent a message to Jade Bellette stating, '12 o'clock you junky piece of shit dog meat. Try me cunt. Best thing you can do is call the pigs' (exhibit 60, p 32, item 286). Secondly, the appellant sent a message to Brendan Borden stating, 'I'm goin' there right now to rip the cunts throat out' (exhibit 60, p 35, item 307). Thirdly, the appellant sent another message to Jade Bellette stating, 'Show tume [sic]' (exhibit 60, p 35, item 317).
(f)Those messages were consistent with the appellant going to the Orange Avenue premises to exact some kind of payback or to assault someone rather than to attend the premises in response to an invitation or to have an amicable meeting with Jade Bellette.
Conviction appeal: the trial judge's directions to the jury about count 1
The trial judge gave directions to the jury about count 1, relevantly, as follows (ts 2358 ‑ 2359):
(a)The extension was the relevant 'place'.
(b)The word 'consent' bears its ordinary meaning, namely 'to voluntarily agree or acquiesce or grant permission'.
(c)John Bellette's evidence was that he did not give any of the men permission to be in the extension.
(d)Christopher Bellette was asleep when the men entered the extension and he was therefore in no position to give permission.
(e)There was no evidence that Jacqueline Bellette or anyone else living at the Orange Avenue premises gave permission for the men to enter the extension.
(f)The relevant consent had to be consent to enter the extension, rather than permission to be on the Orange Avenue premises.
The appellant does not challenge any of those directions in the appeal.
Conviction appeal: the prosecutor's submissions to the jury about count 2
As to the armed assault with intent to rob offence charged in count 2, the prosecutor submitted to the jury that the jury should infer that, at the time he took John Bellette's keys, the appellant intended permanently to deprive John Bellette of the keys and that the appellant was not seeking to recover a stolen truck that he owned. The prosecutor made these submissions in support of that contention (ts 1962 ‑ 1964):
(a)When he was assaulting John Bellette, the appellant demanded the keys to John Bellette's motor vehicle. There was no evidence that the appellant sought anything other than the keys to John Bellette's vehicle.
(b)There was no evidence that the truck purportedly belonging to the appellant was at the Orange Avenue premises. It would have been apparent to the appellant, when he arrived at the premises, that the truck was not there.
(c)There was no evidence that the appellant searched the Orange Avenue premises for the truck before he demanded John Bellette's keys.
(d)There was no evidence that the appellant believed that John Bellette had anything to do with the stealing of the truck.
(e)There was no evidence that the appellant owned the truck. At best, the appellant may have pretended to Jade Bellette that he owned the truck. The appellant had never had a truck of the type in question registered in his name and he had never reported that a truck of that type had been stolen.
(f)The property which had been reported as stolen from Mr Borden's residence did not include a truck of the kind in question (see ts 1145 ‑ 1147).
(g)It was plain from the messages exchanged between the appellant's mobile telephone and the number of a mobile telephone associated with Mr Borden, that the truck in question did not belong to the appellant (exhibit 60, p 8, items 79 ‑ 83; ts 1963 ‑ 1964). When the appellant indicated in a text message that Jade Bellette knew about the stealing of the truck from Mr Borden's residence, a reply from the number associated with Mr Borden said 'Tell her it was your truck lol'. The appellant then sent another text message asking for details of the model of the truck. A reply from the number associated with Mr Borden gave details of the truck. Those details coincided with the details subsequently given to Jade Bellette in a text message in which the appellant pretended that the truck belonged to him.
The prosecutor also submitted in relation to count 2 that the only conclusion reasonably open, having regard to the evidence of John Bellette and Jacqueline Bellette (see ts 226, 442), was that the appellant swung the baseball bat at John Bellette's knees and legs while demanding that John Bellette give him the keys and that the appellant was striking John Bellette for the purpose of obtaining the keys. The prosecutor further submitted that, as soon as John Bellette revealed the location of the keys, the appellant ceased striking him (ts 1964 ‑ 1965).
Conviction appeal: ground 1
Ground 1 alleges, in effect, that the trial judge erred in law in ruling, in respect of count 2, that the jury could not consider the possibility that the appellant did not have an intention permanently to deprive John Bellette of his car keys, but merely intended to use them as 'leverage to secure the return of stolen property' from a third party.
The particulars of ground 1 assert that:
(a)The State's case was that the appellant intended permanently to deprive John Bellette of his keys.
(b)There was no direct evidence about the appellant's intention and consequently the jury had to be satisfied that an intention permanently to deprive John Bellette of his keys was the only reasonable possibility open on the evidence.
(c)That the appellant took John Bellette's keys with the intention of using them as leverage was a rational alternative hypothesis, the possibility of which was not inconsistent with a version of the facts that was open to the jury to find.
(d)Further or alternatively, there was evidence before the jury from which it could be inferred that the appellant's purpose in taking John Bellette's vehicle was to use the vehicle as leverage to obtain the return of a stolen truck.
(e)Defence counsel sought to address the jury as to that possibility.
(f)The trial judge ruled erroneously that defence counsel could not continue his address as to that possibility, and erroneously directed the jury that it was not permitted to consider such a possibility in its evaluation of the evidence.
(g)The appellant was therefore deprived of a fair chance of putting his case to the jury on count 2, and the jury was improperly constrained in its consideration of the evidence against the appellant on that count.
Conviction appeal: ground 1: exhibit 60
Exhibit 60 at the trial comprised a schedule which set out details of relevant mobile telephone communications between numerous individuals including communications between the appellant and Jade Bellette. The communications comprised telephone calls, text messages, Snapchat videos and images. Exhibit 60 included the content of the text messages. Exhibit 60 described the parties to the telephone calls and the date, time and duration of the calls, but did not include a record of or any information about the conversations.
Conviction appeal: ground 1: the appellant's defence, defence counsel's closing address and the trial judge's impugned ruling
We have set out at [36] above the appellant's defence as explained by his defence counsel in an opening statement at the trial.
During his closing address, defence counsel for the appellant made the following submissions before her Honour made the impugned ruling (ts 2170, 2172 ‑ 2175):
(a)The appellant went to the Orange Avenue premises with the intention of meeting Jade Bellette.
(b)Jade Bellette arrived at the Orange Avenue premises about 11 minutes after an ambulance was called to care for John Bellette. No member of the Bellette family had called Jade Bellette to inform her of the incident. Consequently, Jade Bellette must have decided independently to attend the premises.
(c)The appellant was not the man who initially broke through the front door of the extension.
(d)According to John Bellette, when the appellant entered the extension he said, 'Where the fuck's your sister. I want my shit back' (ts 221, 258). The reference to 'your sister' was to Jade Bellette.
(e)The text messages in exhibit 60 showed that, before the incident, the appellant was communicating with Jade Bellette about 'his truck'.
(f)The appellant took John Bellette's motor vehicle as leverage. According to defence counsel, 'He's gone to get his truck. His truck isn't there'. John Bellette had been beaten up, so the appellant decided to get John Bellette's keys, even if he needed to use some force, and to take his vehicle. This action would force Jade Bellette to listen to him.
(g)Immediately following the incident, Jade Bellette opened channels of communication with the appellant. Defence counsel referred to a series of telephone conversations between them and to a subsequent text message where Jade Bellette said, 'Okay. You win' and that she would 'come to yours straight away'.
(h)Defence counsel also referred to a further series of communications between Jade Bellette and the appellant which culminated in a text message from the appellant, 'You need to see me in the morning sometime'.
(i)The following morning the appellant sent text messages to Jade Bellette in effect apologising and also saying, 'Let me know wat I can do to help. This is all fukd up. I miss my daughter an I miss you'.
The court adjourned after defence counsel made those submissions. During the adjournment, the prosecutor submitted to the trial judge, in the absence of the jury, that 'the entire flavour of [counsel's] closing address is clearly just inviting the jury to speculate about matters not in evidence'. The prosecutor said there was 'no basis upon which honest claim of right or that [John Bellette's motor vehicle] was being used as leverage could be left [to the jury]' (ts 2177).
After debate between the trial judge, the prosecutor and defence counsel, her Honour made the impugned ruling as follows (ts 2192):
Mr Elliott …
I'm not satisfied that the evidence that has been identified to me, and I'm not going to articulate it because it's on the transcript …
is capable of supporting as reasonable inference what your client's intention was at the time of the assault on Mr Bellette, John Bellette, and a demand being made for keys, and I'm not going to permit you to continue on that line before the jury.
You can ‑ other inferences about expecting Jade to be at the property are not ‑ that's not the inferences I'm talking about, I'm talking simply about the inference as to what your client's intention, which is personal to him, was at the time of the taking of those ‑ or demands were being made for those car keys, and I will in due course, in my directions to the jury, give a direction to that effect.
And I have to say, as I currently sit here, subject to some further quiet reflection, I will do so in strong terms and, of course, I will give the State ‑ I will also consider in due course any applications by the State as to any rights of reply or whether, in fact, anything can be cured by way of a direction.
That's for later discussion, but in any event that is the position, so ‑ and that's my ruling, Mr Elliott.
After her Honour made that ruling, defence counsel resumed his closing address. He submitted, relevantly, that:
(a)The State had not proved that the appellant's intention was to permanently, as opposed to temporarily, deprive John Bellette of the keys (ts 2253).
(b)The text messages between the appellant, Jade Bellette and Mr Borden indicated that the appellant was seeking information about a truck which he may have owned or, perhaps, that the appellant was acting as Mr Borden's agent on the basis that Mr Borden may have had an interest in the truck (ts 2257 ‑ 2265).
(c)The appellant attended at the Orange Avenue premises to get information about his truck or to collect his truck (ts 2265). Defence counsel argued that this proposition was consistent with John Bellette's evidence that the appellant said, 'Where the fuck's your sister. I want my shit back' (ts 2267; see ts 221, 258).
(d)The decision to take John Bellette's motor vehicle could only have been formed during the short period when the appellant and the other men were in the extension and consequently no intent may have been formed as to what they would do with the vehicle. It may have been a spur of the moment decision to take the vehicle and any intent may not have crystallised (ts 2275 ‑ 2276).
Conviction appeal: ground 1: the trial judge's directions to the jury based upon the impugned ruling
The trial judge's directions to the jury based upon the impugned ruling were, relevantly, as follows (ts 2394 ‑ 2397):
In relation to count 2, the State's case again is that [the appellant] is the principal offender, and this is the assault with intent to rob, and that there were three things, the violence, an intention to steal the car keys and that the violence was used to obtain the car keys.
…
Turning now to the question of whether [the appellant] had an intention to steal at the time of the violence. Before I turn to the State's evidence about this, I want to give you a direction of law. [Defence counsel], in his closing address, suggested that [the appellant] had an intention to use the keys to take John Bellette's car and to use it as leverage against Jade [Bellette]. I tell you, as a matter of law, there is no evidence that [the appellant] had this intention, nor is there any evidence capable of supporting an inference that [the appellant] had this intention.
You must put all thoughts … that [the appellant] had an intention to use the … car keys as leverage out of your minds because there is absolutely no evidence to support this. Now, having said that, that doesn't mean that I'm suggesting that the State has proved this element, that's a matter for you to determine on the evidence and the inferences that are open on that evidence. So as I explained to you earlier, intention is a state of mind that can only be proved by inferential reasoning. You look at what a person said and what they did in the circumstances in which they said and did them to decide what they intended.
You will recall what I said to you about drawing inferences in criminal trials, it must be the only reasonable inference open on the facts you find established by the evidence. So the State must prove [the appellant] had an intention to steal, and in the circumstances of this case, the State must prove beyond a reasonable doubt that [the appellant] had an intention to permanently deprive John Bellette of his car keys. The State says that you could be satisfied of this, in the context of John Bellette's evidence that in effect, he had no relationship of any kind with either [the appellant] or Jade [Bellette].
…
I remind you, ladies and gentlemen, that it is the intention at the time the violence is being used that you are to consider. It does not matter if a person later changes their mind or decides to do something else with the property.
It is whether you are satisfied beyond a reasonable doubt that the only reasonable inference open on the evidence is that [the appellant] … intended to permanently deprive [John Bellette] of the car keys at the time he used the violence. Remember, it would be pure speculation that [the appellant] had an intention to use the car keys as leverage [as there is] no evidence to support that or that inference.
If you are satisfied that [the appellant] had an intention to permanently deprive John Bellette of the car keys, you would be satisfied beyond reasonable doubt that he had an intention to steal. Now, ladies and gentlemen, if you weren't satisfied that [the appellant] had an intention to permanently deprived [sic] John Bellette of the car keys, then you couldn't be satisfied of that charge.
Conviction appeal: ground 1: other relevant directions by the trial judge to the jury
The trial judge referred in her summing up to the evidence which the State relied on to prove that the appellant intended permanently to deprive John Bellette of his keys, as follows (ts 2396 ‑ 2397):
(a)John Bellette gave evidence that he had no relationship of any kind with Jade Bellette or the appellant. John Bellette had met the appellant on a small number of occasions. He had last seen him several months before the incident. The appellant had never been in the extension.
(b)There was no evidence that John Bellette was informed that his keys would be returned to him. In any event, violence was used to obtain the keys.
(c)There was no evidence that the appellant subsequently attempted to return the keys, notwithstanding his text message to Jade Bellette at 8.01 am on 6 April 2020 in which he said, 'Let me know wat I can do to help. This is all fukd up' (exhibit 60, p 49, item 441).
(d)There was no evidence that any property, let alone a truck, belonging to the appellant was at the Orange Avenue premises.
(e)There was no evidence that John Bellette knew anything about Jade Bellette's affairs; that he knew anything about the appellant's affairs; that he knew anything about Mr Borden's affairs; or that he knew anything about any arrangements between the appellant and Jade Bellette. There was no evidence that the appellant had any reasonable basis to believe that John Bellette knew anything about any of those matters, including the location of any truck or other property of relevance or that he could influence Jade Bellette about any of those things.
(f)There was no evidence that the appellant had any proprietary rights in a truck that was alleged to have been stolen.
(g)There was no evidence that Jade Bellette knew anything about the location of any property belonging to the appellant, as distinct from the appellant believing that she did.
Her Honour referred to the case advanced on behalf of the appellant in relation to whether he intended permanently to deprive John Bellette of his keys and whether the appellant was party to a common unlawful purpose, as follows (ts 2400 ‑ 2404):
(a)The appellant's case relied upon the information contained in exhibit 60; in particular, the number, length and timing of the telephone conversations alongside the text messages.
(b)Jade Bellette arrived at the Orange Avenue premises 11 minutes after Jacqueline Bellette made an emergency telephone call to police. Jacqueline Bellette made that telephone call at 10.56 pm. Jade Bellette also made an emergency telephone call to police at 11.10 pm.
(c)Detective Stirk gave evidence that Mr Borden had reported that property had been stolen; the stolen property or some of it was recovered on 5 April 2020; Mr Hulsman had been involved; and Jade Bellette had an association with Mr Hulsman who lived to the north of the Orange Avenue premises.
(d)The appellant had an interest in recovering a truck. This topic was discussed between the appellant and Jade Bellette and the appellant had made an arrangement with Jade Bellette for the night of 5 April 2020.
(e)Some of the words which the appellant had used in some of the text messages should not be interpreted literally.
(f)There was a possibility of error in John Bellette's evidence that he recognised the appellant as the first man who entered the extension and participated in the initial assault.
(g)The appellant had no reason to take John Bellette's motor vehicle. The decision to take the vehicle was opportunistic. There was no time for any intention to crystallise.
(h)The appellant stopped striking John Bellette when Jacqueline Bellette asked him to stop.
(i)Ultimately, John Bellette's vehicle was parked and locked. Nothing was taken from or out of the vehicle.
Conviction appeal: ground 1: counsel for the appellant's submissions in the appeal
Counsel for the appellant submitted that the evidence at the trial which supported the possibility that the appellant had merely taken John Bellette's vehicle to use as leverage included the following:
(a)It was clear from the evidence, and the trial judge found for the purpose of sentencing, that the appellant's purpose in attending at the Orange Avenue premises was to recover stolen property (ts 2675 ‑ 2676).
(b)It was clear from the evidence, and the trial judge found for the purpose of sentencing, that the appellant believed Jade Bellette knew about or could assist in securing the return of the stolen property because of her associates (ts 2675 ‑ 2676).
(c)The appellant had been communicating with Jade Bellette in relation to the stolen property on the day of the incident, and it was open to infer that Jade Bellette was seeking to negotiate in relation to the return of the stolen property, including because of the following messages sent on 5 April 2020:
(i)Jade Bellette asked the appellant, 'What kinda truck was it n where was stolen from?' (exhibit 60, p 14, item 142);
(ii)the appellant relevantly responded, 'Oh please don't play off like you don't know wat goes on in ya backyard' and '2000 Mitsubishi Canter. The tipper body been removed' (exhibit 60, p 14, items 143 and 144);
(iii)Jade Bellette and the appellant then had a telephone call of 237 seconds duration (exhibit 60, p 14, item 146);
(iv)Jade Bellette asked the appellant, 'What's your best price?' (exhibit 60, p 14, item 149); and
(v)the appellant responded, 'Wow, I gota buy my own shit back??How's bout doin me a solid an helping me. I don't care bout any of the other shit' (exhibit 60, p 15, item 151).
(d)It was clear from the evidence, and the trial judge found for the purpose of sentencing, that John Bellette was not the intended target of the appellant's actions (ts 2677).
(e)John Bellette's evidence was that, when the appellant confronted him on the night in question, he shouted words to the effect of, 'Where the fuck's your sister. I want my shit back' (ts 221).
(f)There was nothing in the evidence to indicate that the appellant or the other men had any use for John Bellette's vehicle (which was of relatively modest value), and they never made any effort to damage it or take property from it, not even a wallet with cash inside it.
(g)The appellant and Jade Bellette engaged in communications almost immediately after the incident on the night of 5 April 2020 and into the next morning, and it was open to infer that the appellant was in fact using the return of John Bellette's vehicle as a 'bargaining chip'. The communications recorded in exhibit 60 included the following:
(i)telephone calls between the appellant and Jade Bellette at the following times with the following durations: 10:52 pm for 121 seconds; 11:10 pm for 81 seconds; 11:12 pm for 22 seconds; and 11:14 pm for 146 seconds (exhibit 60, p 37, item 330 and p 38, items 339, 340 and 342);
(ii)at 11:28 pm Jade Bellette texted the appellant, 'Okay. You win' and 'I'll put Alaina in car and come to yours straight away' (exhibit 60, p 39, items 349 and 350);
(iii)telephone calls between the appellant and Jade Bellette at the following times with the following durations: 11:46 pm for 163 seconds; 11:50 ‑ 11:53 pm 3 calls for 37, 26 and 207 seconds; and 12:21 am for 109 seconds (exhibit 60, p 39, items 355, 358, 359 and 360 and p 43, item 382); and
(iv)further text messages, relevantly ending with a text message from the appellant to Jade Bellette at 12:36 am which said, 'You need to see me in the morning sometime' (exhibit 60, p 44, item 391).
It was submitted that, in any event, the possible inference contended for by the appellant, namely the appellant had merely taken the keys so that he could take John Bellette's vehicle to use as leverage, was 'consistent with the evidence [adduced] by [the State]'. Counsel argued that the State relied solely on the taking of the keys from John Bellette with violence as the basis for the inference the State advanced, in circumstances where John Bellette and the appellant did not have a real relationship and John Bellette had no connection to the stolen property. According to counsel, the evidence adduced by the State was 'perfectly neutral' as between the competing possibilities of either an intention permanently to deprive or an intention to take and use as leverage.
Counsel submitted that the effect of the impugned ruling and associated directions was that the jury was precluded from considering one possible hypothesis and resulted in the jury considering the evidence adduced by the State on an erroneously narrow basis.
It was argued that the impugned ruling and associated directions removed from the jury's consideration an important question that was within the jury's province to decide.
Accordingly, so it was submitted, the judgment of conviction on count 2 must be set aside.
Conviction appeal: ground 1: counsel for the State's submissions in the appeal
Counsel for the State submitted that the trial judge's directions to the jury following the impugned ruling conveyed to the jury that, although there was no evidence that the appellant took John Bellette's keys in order to take John Bellette's vehicle and use it as leverage against Jade Bellette to secure the return of stolen property, it did not follow that the State had proved that the appellant's intention was to permanently deprive John Bellette of his keys.
It was submitted that her Honour referred in detail to evidence relied upon by the State to prove that the appellant intended permanently to deprive John Bellette of his keys. It was also submitted that her Honour summarised in detail the appellant's case in relation to whether he intended permanently to deprive John Bellette of his keys and whether he was party to a common unlawful purpose.
Counsel noted the trial judge's direction that it was for the jury to decide what they made of the text messages, Snapchat videos and images that formed part of the evidence. In other words, her Honour directed the jury that it was the jury's opinion of what could be seen, what could be heard and what was meant that was important (ts 2454).
Her Honour directed the jury that there was no onus on the appellant to prove that he had an intention inconsistent with an intent permanently to deprive John Bellette of his keys (ts 2343).
Counsel submitted that the proposition that the appellant took John Bellette's keys in order to take John Bellette's vehicle and use it as leverage was based on mere conjecture. Consequently, there was no evidential foundation that would permit the jury to consider that proposition as a reasonable possibility consistent with innocence. In particular, it was submitted that the proposition that the appellant intended to use John Bellette's vehicle as leverage required speculation about the content of telephone conversations between the appellant and Jade Bellette. Further, it was submitted that a number of the text messages on which the appellant relied involved discussions between the appellant and Jade Bellette about their child rather than about stolen property.
Counsel therefore submitted that the trial judge's impugned ruling and the associated directions were correct.
Counsel for the State also contended that, in any event, even if the appellant took John Bellette's keys in order to take his vehicle and use it as leverage against Jade Bellette to secure the return of stolen property, the taking of the keys for that purpose involved an 'intent to permanently deprive' the owner (that is, John Bellette) of the keys, within s 371(2)(a) of the Code.
Counsel argued that the expression 'with intent to permanently deprive' in s 371(2)(a) acquired a technical meaning at common law before the Code was enacted and it is therefore legitimate to have regard to that meaning when interpreting s 371(2)(a).
It was submitted that the appellant intended to use an innocent party's (that is, John Bellette's) property as a means of pressuring another person (that is, Jade Bellette) to act in a particular way. Counsel referred to the 'ransom principle' at common law, pursuant to which a person who takes property from the owner, intending to return the property only if the owner pays for it, has an intention permanently to deprive the owner of the property. See R v Hall;[1] R v Dardovska.[2]
[1] R v Hall (1849) 1 Den 381; 169 ER 291.
[2] R v Dardovska [2003] VSCA 4; (2003) 6 VR 628 [24] (Charles JA; Phillips CJ & O'Bryan AJA agreeing).
Counsel argued that the appellant's alleged intention, in the circumstances of the present case, to use property as 'leverage' was no different in substance from an intention to hold property for ransom. It was submitted that the appellant, in effect, asserted a right to retain John Bellette's keys (and vehicle) unless other property was dealt with in a particular way by a third party. Accordingly, so it was argued, the appellant asserted dominion over John Bellette's keys (and vehicle) and acted inconsistently with John Bellette's rights as the owner of the keys (and vehicle). The appellant therefore had an 'intent to permanently deprive' John Bellette of his keys. No miscarriage of justice had occurred even if the trial judge's impugned ruling was wrong.
Conviction appeal: ground 1: its merits
If it is necessary for a trial judge to consider, at the close of the evidence in a criminal trial, whether a particular defence should be left to the jury, the relevant question, in a case where (as in the present case) the legal burden is on the State and the evidential burden is on the accused, will be: is there evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence or an element of the defence, as the particular case may require, has been negatived? Questions as to the weight to be given to the evidence and the credibility of the accused are matters for the jury. See Braysich v The Queen.[3]
[3] Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 [17], [36] (French CJ, Crennan & Kiefel JJ).
A trial judge must leave a defence to the jury if, at the close of the evidence, there is evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt as to whether the State has negatived the defence, even if the accused's counsel has not put that defence and even if counsel has expressly abandoned it. See Pemble v The Queen;[4] Van Den Hoek v The Queen;[5] Fingleton v The Queen;[6] Braysich [32].
[4] Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107, 117 ‑ 118 (Barwick CJ; Windeyer J agreeing), 132 ‑ 133 (Menzies J).
[5] Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158, 161 ‑ 162 (Gibbs CJ, Wilson, Brennan & Deane JJ).
[6] Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166 [83] (McHugh J).
In Pemble, Barwick CJ said (117 ‑ 118):
Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part.
…
Here, counsel for the defence did not merely not rely on the matters now sought to be raised; he abandoned them and expressly confined the defence to the matters he did raise. However, in my opinion, this course did not relieve the trial judge of the duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused.
In Pemble, Menzies J observed (133):
[C]ounsel for the defence cannot effectively disclaim a defence open to the accused upon the evidence. The judge must submit that defence to the jury. Even less can counsel concede a matter of law to the disadvantage of the accused. The law is always for the judge.
In Van Den Hoek, Gibbs CJ, Wilson, Brennan and Deane JJ said (161):
Neither the fact that the applicant did not expressly say in evidence that she had been deprived of the power of self-control, nor the fact that counsel in effect told the learned trial judge that provocation was not an issue, absolved the learned trial judge from the necessity of leaving that issue to the jury if there was some evidence fit for its consideration.
In Fingleton, McHugh J emphasised, by reference to Barwick CJ's statement of the relevant principles in Pemble (117 ‑ 118), that a trial judge is bound to put to the jury 'every lawfully available defence open to the accused on the evidence even if the accused's counsel has not put that defence and even if counsel has expressly abandoned it' [83]. See also Braysich [32].
The accused may discharge the evidential burden by giving or calling evidence, or by pointing to evidence called in the State's case. See Braysich [37]. Slender evidence may be sufficient, depending on the facts and circumstances of the particular case, to discharge the evidential burden.
If the accused discharges the evidential burden then the jury is responsible for making findings of fact in relation to the elements of the defence.
In the present case, we will assume (without deciding) that if the appellant took John Bellette's keys in order to take his vehicle and use it as leverage against Jade Bellette to secure the return of stolen property, the appellant would not have had an 'intent to permanently deprive' the owner (that is, John Bellette) of the keys, within s 371(2)(a) of the Code.
We are satisfied, for the following reasons, that the appellant did not discharge the evidential burden in relation to his not having an 'intent to permanently deprive' John Bellette of his keys because he merely took the keys in order to take John Bellette's vehicle and use it as leverage against Jade Bellette to secure the return of stolen property.
As we have mentioned, count 2 on the indictment alleged, relevantly, that the appellant and his co‑accused, 'with intent to steal car keys, used violence to [John Bellette] in order to obtain the car keys which they so intended to steal', contrary to s 393(c) of the Code.
Section 371(1) of the Code provides, relevantly, that '[a] person who fraudulently takes anything capable of being stolen … is said to steal that thing'.
By s 371(2)(a), relevantly, '[a] person who takes anything capable of being stolen … is deemed to do so fraudulently if he does so with … [a]n intent to permanently deprive the owner of the thing'.
In the present case, John Bellette's evidence was, relevantly, to the following effect:
(a)At the material time, John Bellette did not have any relationship with Jade Bellette or the appellant.
(b)At the material time, John Bellette had met the appellant on a small number of occasions but had not seen him for several months.
(c)Prior to the incident, the appellant had never been in the extension.
John Bellette's evidence to that effect was not contradicted.
There was no evidence that at the material time John Bellette was informed that his keys would be returned to him and there was no evidence that after the keys were taken the appellant attempted to return them.
There was no evidence that a truck or any other property in which the appellant had a proprietary or possessory interest was at the Orange Avenue premises.
There was no evidence that at the material time the appellant had any proprietary or possessory interest in a truck or other property that had allegedly been stolen or that at the material time the appellant was acting as the agent for someone who had a proprietary or possessory interest in a truck or other property that had allegedly been stolen.
There was no evidence that John Bellette knew anything about the affairs of Jade Bellette, the appellant or Mr Borden. There was no evidence that John Bellette knew anything about any arrangements between the appellant and Jade Bellette. There was no evidence that the appellant had any reasonable basis to believe that John Bellette knew anything about any of those matters. In particular, there was no evidence that the appellant had any reasonable basis to believe that John Bellette knew anything about the location of any truck or other property of interest to the appellant or that John Bellette had any capacity to influence the decision making of Jade Bellette in relation to any such truck or other property.
There was no evidence that Jade Bellette had any personal knowledge about the location of any truck or other property of interest to the appellant.
Counsel for the appellant's assertion that the trial judge found, for the purpose of sentencing, that the appellant believed Jade Bellette knew about or could assist in securing the return of stolen property because of her associates (ts 2675 ‑ 2676) is incorrect. Her Honour did not make that finding.
As to counsel for the appellant's submission that it was open to infer that, on the day of the incident, Jade Bellette was seeking to negotiate in relation to the return of stolen property (see [55(c)] above), the text messages relied upon by counsel (see [55(c)] above) were preceded by the following messages:
(a)the appellant said to Jade Bellette, 'Find where the rest of my wood truck is' (exhibit 60, p 12, item 127);
(b)Jade Bellette responded, '?' (exhibit 60, p 12, item 130);
(c)the appellant then said to Jade Bellette, 'Most of me mates shit got recovered from that bullshit this morning. My cage been removed but my truck ain't found' (exhibit 60, p 13, item 133); and
(d)Jade Bellette responded, 'What bullshit this morning??' (exhibit 60, p 14, item 140).
Those text messages, in combination with the text messages reproduced at [55(c)] above and the evidence as a whole, do not give rise to a reasonably possible inference that at any material time before the incident Jade Bellette was seeking to negotiate in relation to the return of stolen property.
There was no evidence that the appellant's purpose in attending at the Orange Avenue premises and taking John Bellette's keys was to recover stolen property.
There was no evidence that at the material time the appellant believed that Jade Bellette was in the extension.
The evidence as to the manner in which the appellant entered the extension and the nature and content of his words and actions while he was in the extension, having regard to the evidence as a whole, was inconsistent with and did not give rise to a reasonably possible inference that at the material time the appellant was seeking to recover stolen property or seeking information about the location of stolen property.
John Bellette's evidence that, when the appellant confronted him on the night in question, the appellant shouted words to the effect of, 'Where the fuck's your sister. I want my shit back' (ts 221), supported John Bellette's evidence that the appellant was the first person who entered the extension.
Counsel for the appellant's assertion that John Bellette was not the intended target of the appellant's actions, merely indicates that the appellant did not attend the Orange Avenue premises with the intention of assaulting John Bellette. However, the appellant went to the premises, while armed and in company, and employed force to enter the extension without consent. There was no evidence that the appellant believed that John Bellette had any involvement in or knowledge of any stolen property in which the appellant had an interest. John Bellette's evidence that he did not know what the appellant was talking about was unchallenged (ts 221).
Counsel for the appellant's assertion that neither the appellant nor any of the other men had any use for John Bellette's vehicle is without foundation. There was no evidence about what use the appellant intended to make of John Bellette's vehicle. It is true that the appellant and the other men did not damage John Bellette's vehicle or remove any of its contents. However, when John Bellette asked the appellant at the material time whether he could have his wallet back, his request was ignored. There was no evidence that during the incident or subsequently the appellant indicated that he would return John Bellette's keys or vehicle, either conditionally or otherwise. When the police located the vehicle at about 6.48 pm on 6 April 2020, the vehicle was parked in the vicinity of Ms Hunstock's home. The police found the keys to the vehicle in another vehicle used by the appellant and Mr Thorne.
It is true that there was evidence in exhibit 60 of communications between the appellant and Jade Bellette. However, there was no evidence about the content of their telephone conversations. The text messages from Jade Bellette to the appellant at 11.28 pm on 5 April 2020, namely, 'Okay. You win' and 'I'll put Alaina in car and come to yours straight away' (exhibit 60, p 39, items 349 and 350), indicate that Jade Bellette has agreed to visit the appellant. However, those text messages do not, either alone or in combination with any other evidence, give rise to a reasonably possible inference that at the material time the appellant was in fact using the return of John Bellette's vehicle as a bargaining chip in dealing with Jade Bellette.
Similarly, the further text messages, relevantly ending with a text message from the appellant to Jade Bellette at 12.36 am on 6 April 2020 which said 'You need to see me in the morning sometime' (exhibit 60, p 44, item 391) do not, either alone or in combination with any other evidence, give rise to a reasonably possible inference that at the material time the appellant was in fact using the return of Mr Bellette's vehicle as a bargaining chip in dealing with Jade Bellette.
Rather, the text messages we have mentioned at [98] ‑ [99] above, in combination with the following text messages:
(a)'Wen can I see you an Alaina', sent by the appellant to Jade Bellette at 7.34 am on 6 April 2020 (exhibit 60, p 49, item 431);
(b)'?', sent by the appellant to Jade Bellette at 7.44 am on 6 April 2020 (exhibit 60, p 49, item 435);
(c)'You don't care about Alaina nor do you care about her family or even the home she lives in', sent by Jade Bellette to the appellant at 8.01 am on 6 April 2020 (exhibit 60, p 49, item 440); and
(d)'I miss my daughter an I miss you', sent by the appellant to Jade Bellette at 8.01 am on 6 April 2020 (exhibit 60, p 50, item 442),
indicate that the appellant was seeking contact with his daughter.
At 8.10 am on 6 April 2020, Jade Bellette texted the appellant that 'My brother's ute hasn't been returned since it was stolen from this address' (exhibit 60, p 50, item 445). The appellant did not respond to that text message with any expression of any intention to return John Bellette's keys or vehicle, either conditionally or otherwise.
Counsel for the appellant's assertion that the appellant intended at the material time to use John Bellette's vehicle as leverage against Jade Bellette is a hypothesis that depends upon, amongst other things, speculation about the content of the telephone conversations between the appellant and Jade Bellette that are referred to in exhibit 60.
In our opinion, the appellant did not discharge the evidential burden in relation to his alleged defence that he did not have an intention permanently to deprive John Bellette of his keys because he merely took the keys in order to take John Bellette's vehicle and use it as leverage against Jade Bellette to secure the return of stolen property. Consequently, the trial judge's decision not to leave the alleged defence to the jury was correct.
It is unnecessary, in the circumstances, to deal with counsel for the State's contention that, in any event, even if the appellant took John Bellette's keys in order to take John Bellette's vehicle and use it as leverage against Jade Bellette to secure the return of stolen property, the taking of the keys for that purpose involved an 'intent to permanently deprive' the owner (that is, John Bellette) of the keys, within s 371(2)(a) of the Code.
Ground 1 fails. Leave to appeal should be refused.
Conviction appeal: ground 2
Ground 2 alleges that, as a further result of the error alleged in ground 1, the appellant was not permitted to leave his entire case to the jury, further or alternatively, the jury was not permitted to consider his entire case, and consequently a miscarriage of justice occurred in respect of count 1.
Ground 2 depends upon the appellant establishing that the trial judge's impugned ruling in respect of count 2 was erroneous as alleged in ground 1.
We have decided that ground 1 fails. It follows that ground 2 must also fail. Leave to appeal should be refused.
We merely note that the impugned ruling did not preclude defence counsel from submitting that there was a lawful reason for the appellant's attendance at the Orange Avenue premises, including the extension, and that the appellant did not intend permanently to deprive John Bellette of the keys to his vehicle.
Conviction appeal: ground 3
Ground 3 alleges that there was a miscarriage of justice at the trial in respect of counts 1 and 2 as a result of the State's failure to call Jade Bellette as a witness.
Conviction appeal: ground 3: counsel for the appellant's submissions in the appeal
Counsel for the appellant submitted that Jade Bellette was a material witness in relation to highly relevant events on the night in question and that the State should have called her.
It was submitted that the apparent basis upon which the State declined to call Jade Bellette was that she had refused to speak to the police and that the investigating police officer did not appreciate that Jade Bellette would be able to give relevant evidence.
Counsel noted that the State had power to compel Jade Bellette to give evidence at a deposition hearing, but chose not to explore what evidence she could give.
It was submitted that it is apparent from the text messages between the appellant and Jade Bellette in exhibit 60 that Jade Bellette was antagonistic towards the appellant. It should be inferred that this antagonism would persist and that the appellant could not expect any cooperation from her. In the circumstances, the appellant would be disadvantaged if he was unable to cross‑examine her.
Counsel submitted that there was no material to indicate that Jade Bellette would not have been a witness of truth if she had been called.
Conviction appeal: ground 3: counsel for the State's submissions in the appeal
Counsel for the State submitted that no miscarriage of justice arose as a result of the State not calling Jade Bellette as a witness.
Counsel emphasised that there is no evidence as to what Jade Bellette may or may not have said if she had been called as a witness. Jade Bellette was not present at the Orange Avenue premises on the night in question. Further, there was no evidence that Jade Bellette had any personal knowledge of the truck; for example, any personal knowledge of the appellant's asserted interest in the truck or whether anyone had stolen the truck.
It was submitted that the text messages, considered as a whole, do not establish that Jade Bellette was antagonistic towards the appellant. Further, the trial occurred about two years and four months after the text messages were sent and there was no evidence as to the nature or extent of the relationship between Jade Bellette and the appellant at the date of the trial.
Counsel submitted that any possibility that Jade Bellette could give admissible evidence relevant to the charged offences was highly speculative.
Conviction appeal: ground 3: its merits
A prosecutor has the responsibility of ensuring that the State case is presented with fairness to the accused. See Richardson v The Queen;[7] Nguyen v The Queen.[8] Fairness in the context of a fair trial includes the presentation of all available, cogent and admissible evidence. See Nguyen [36].
[7] Richardson v The Queen [1974] HCA 19; (1974) 131 CLR 116, 119 (Barwick CJ, McTiernan & Mason JJ).
[8] Nguyen v The Queen [2020] HCA 23; (2020) 269 CLR 299 [33] (Kiefel CJ, Bell, Gageler, Keane & Gordon JJ).
R v Apostilides[9] is authority for, relevantly, the following propositions in relation to a convicted person's complaint on appeal about the failure of the prosecutor to call a particular person as a witness:
(a)The prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the State (575).
(b)The prosecutor's decision not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial as a whole, the decision gives rise to a miscarriage of justice (575).
(c)It is necessary, in determining whether a miscarriage of justice has occurred, to focus directly on the consequences, viewed objectively, that the failure to call the witness has had on the course of the trial and its outcome (577).
(d)The critical question is not whether the prosecutor's decision constitutes misconduct, but whether in all the circumstances the verdict of guilty is unsafe or unsatisfactory (577 ‑ 578).
See also Walsh v The State of Western Australia.[10]
[9] R v Apostilides [1984] HCA 38; (1984) 154 CLR 563.
[10] Walsh v The State of Western Australia [2011] WASCA 119 [69] (McLure P; Buss JA & Hall J agreeing).
The issue to be determined in the context of ground 3 is whether the prosecutor's failure to call Jade Bellette as a witness has occasioned a miscarriage of justice.
Section 158 of the Criminal Procedure Act 2004 (WA) provides that sch 3 to the Act has effect.
Clause 5(1) of sch 3 to the Criminal Procedure Act provides that, at any time after a person is charged with an offence and before the trial of the charge, the prosecutor may apply to the 'relevant court' (as defined in cl 1) for an order that a person who is or may be able to give evidence that is or may be relevant to the charge (the witness) be examined and recorded under cl 6 before the trial of the charge. Clause 5(2) provides that the application must be served on the accused and must be dealt with in the presence of the accused unless the relevant court orders otherwise. Clause 5(4) provides that, on an application made under cl 5(1), the relevant court may make the order if it is satisfied that the witness is or may be able to give evidence that is or may be relevant to the charge and, despite a request to do so from the person in charge of investigating the alleged offence or the prosecutor, has refused to make a statement that complies with cl 4 and that contains the witness's evidence in relation to the charge. Clause 5(5) provides, relevantly, that if a court makes an order under cl 5(1), the court may also issue a witness summons, or an arrest warrant, in respect of the witness to ensure the witness appears before the court to be examined under cl 6.
Clause 6(1) of sch 3 to the Criminal Procedure Act provides that, when a witness appears or is brought before a court on a summons or arrest warrant issued under cl 5(5), the witness is to be examined on oath or affirmation, and his or her evidence is to be recorded, in accordance with cl 6. Clause 6(2)(a) provides that, at the examination, the prosecutor is entitled to examine and, if necessary, re‑examine the witness. Clause 6(2)(b) provides that, at the examination, the accused is entitled to be present and to cross‑examine the witness, unless an order has been made under cl 5(2).
Jade Bellette refused to speak to the police. Consequently, the State brief did not include a witness statement from her. The appellant's legal representatives did not request the State's legal representatives to make an application in respect of Jade Bellette under cl 5(1) of sch 3 to the Criminal Procedure Act. At the hearing of the appeal, counsel for the appellant informed the court that, before the trial, the appellant's legal representatives asked the State's legal representatives whether the State would be calling Jade Bellette as a witness. The State's legal representatives informed the appellant's legal representatives that the State would not be calling Jade Bellette. The appellant's legal representatives did not request the State's legal representatives to call Jade Bellette as a witness (as distinct from merely asking whether the State would be calling her) (appeal ts 54 ‑ 55).
There is no evidence before this court as to what Jade Bellette may or may not have said had she been called as a witness at the trial. It is plain that Jade Bellette was not present at the Orange Avenue premises when the appellant and the other men attended and committed the alleged offences. Accordingly, Jade Bellette could not give any evidence as to what was said and done at the Orange Avenue premises when the appellant and the other men attended and committed the alleged offences. Further, there is no evidence before this court that Jade Bellette had any personal knowledge about the location of any truck or other property of interest to the appellant. In addition, the text messages in exhibit 60, in combination with the evidence as a whole, do not give rise to a reasonably possible inference that on the day of the incident (or at any other material time) Jade Bellette was seeking to negotiate in relation to the return of stolen property. The appellant's assertion that he intended at the material time to use John Bellette's vehicle as leverage against Jade Bellette is a hypothesis that depends upon, amongst other things, speculation about the content of the telephone conversations between the appellant and Jade Bellette that are referred to in exhibit 60. It is not apparent that Jade Bellette was a person who was or may be able to give evidence that was or may be relevant to the charges in the indictment.
The appellant's trial occurred about two years and four months after the text messages in exhibit 60. There is no basis for inferring that any antagonism in any of those text messages persisted during the interval between the sending of the text messages, on the one hand, and the commencement of the appellant's trial, on the other. There is no evidence before this court as to the nature or extent of the relationship between the appellant and Jade Bellette as at the date of the trial.
We are satisfied that the prosecutor's failure to call Jade Bellette as a witness at the trial did not result in an unfair trial. Further, the prosecutor's failure to call Jade Bellette was not prejudicial in the sense that there was a 'real chance' that it affected the jury's verdicts or that it 'realistically [could] have affected the verdict[s] of guilt' or that it 'had the capacity for practical injustice' or that it was 'capable of affecting the result of the trial'. See Zhou v The Queen;[11] HCF v The Queen.[12] The appellant has therefore not established that there was a miscarriage of justice at the trial in respect of counts 1 and 2 as a result of the State's failure to call Jade Bellette as a witness.
[11] Zhou v The Queen [2021] NSWCCA 278 [22] (Beech‑Jones CJ at CL; Davies & Wilson JJ agreeing).
[12] HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978 [2] (Gageler CJ, Gleeson & Jagot JJ).
Ground 3 fails. Leave to appeal should be refused.
Conviction appeal: the outcome of the appeal
We would refuse leave to appeal on grounds 1, 2 and 3 of the conviction appeal.
The conviction appeal must be dismissed.
Sentence appeal: other offending relevant to the sentence appeal
On 7 March 2019, the appellant committed an offence of being armed in a manner likely to cause fear. The appellant became involved in an altercation with a member of the public at the Coles Express Roadhouse in Upper Swan. The victim sought shelter in the shop. The appellant then retrieved a baseball bat from his vehicle. He walked to the front of the shop, gesticulated at the victim and brandished the baseball bat in a threatening manner. The appellant attempted to enter the shop but his entry was prevented by staff. On 6 February 2020, the appellant was convicted of the offence in the Midland Magistrates Court and fined $1,500.
The sentencing outcome in Krakouer, compared to the sentencing outcome in the present case, does not indicate that, having regard to all relevant facts and circumstances and all relevant sentencing factors, the sentence imposed on the appellant for count 1 was manifestly excessive.
In Billett, two offenders, namely Billett and Klinger, committed numerous offences. The indictment contained seven counts arising from two aggravated home burglaries committed by Billett and Klinger on 2 March 2021 in which threats were made and damage committed, and one victim was seriously assaulted. Although Billett and Klinger were jointly indicted, not all the charges were identical as between them. However, Billett and Klinger jointly committed both of the aggravated home burglaries.
This court allowed the State's appeal against the sentences imposed by the primary judge and resentenced each of Billett and Klinger to 3 years' immediate imprisonment for one of the aggravated home burglaries and to 4 years 3 months' immediate imprisonment for the other aggravated home burglary. Billett and Klinger had pleaded guilty. Like the primary judge, this court allowed a 25% discount for the pleas of guilty.
The facts and circumstances of the offending, as set out in this court's reasons, were these [7] ‑ [21]:
On 2 March 2021, Billett met with another man, TL, to discuss the recent death of a friend. They started drinking together at about 11.00 am that day. At about 6.00 pm they went to a bar in Armadale. Sometime later they left the bar, collected Klinger and went to the Westfield Tavern.
During the evening, Billett was provided with an address for Kyle Scerri. Billett had been trying to locate Mr Scerri since late February 2021. At about that time, an incident had taken place involving Billett and Mr Scerri. The nature of the incident was not clearly identified, but it had caused Billett to harbour a grievance against Mr Scerri.
Billett told TL and Klinger what had happened between him and Mr Scerri. All three then decided to go together to confront Mr Scerri at his home address.
TL drove the respondents to the address and parked about 100 m away to avoid detection. All three got out of the vehicle. Billett had a machete, Klinger had a 15‑inch tyre wall tester, which resembled a small baseball bat, and TL had a tomahawk.
The house they went to was occupied by Anthony Sorrell, who was house‑sitting for the owner. Mr Scerri was living in a caravan parked at the front of the house. Mr Sorrell usually left the front door unlocked so that Mr Scerri could come and use the toilet when he needed to.
On arrival, the respondents entered the house through the unlocked front door and went to a bedroom occupied by Mr Sorrell. Billett was holding the machete and Klinger the tyre tester. TL remained outside, behind a tree in the front yard, acting as a lookout.
Billett approached Mr Sorrell, pointed the machete at him and asked, 'Where's Kyle?' Mr Sorrell said that Mr Scerri was in the caravan. Billett said, 'Don't move. You're a dead man.' As he said this, he was pointing the machete at Mr Sorrell. Mr Sorrell was in fear for his life. Both respondents then left the bedroom. Mr Sorrell ran down the hallway and out the back door. He jumped a fence and hid in the backyard of a neighbouring house for about 90 minutes.
Meanwhile, the respondents ran to the caravan at the front of the house. TL remained outside within sight of the caravan. It was now about 11.20 pm and Mr Scerri was about to go to bed. The respondents banged on his door and smashed windows of the caravan. The door to the caravan was forced open.
Mr Scerri crawled onto his bed and curled into a ball to protect himself as he assumed he was going to be assaulted. He felt a couple of blows and then something harder all over his body. He heard a voice, which he recognised as that of Billett, saying words to the effect of, 'Stay away from my house. Stay away from my kids.' Klinger then screamed words to the effect of, 'Do you want to die? Who do you think you are, fucking with Benji's kids?'
Mr Scerri attempted to get up to defend himself. At that time, he believed he saw three men in the caravan. He recognised Billett, who was then leaving. One of the men stood in front of Mr Scerri and Mr Scerri pushed him. At that point, he could see that one of the remaining men had a tomahawk in his hand. He managed to chase the men from the caravan.
The respondents and TL then ran to the car and drove back to Billett's house. Klinger was bleeding from an injury to his hand. The injury was caused by glass from one of the broken windows of the caravan.
Mr Scerri went to the house to find Mr Sorrell. Mr Sorrell was not there, and, shortly after, the police arrived. Mr Scerri was bleeding from a large cut to his right ankle and had numerous other cuts to his body. He was taken to Armadale Hospital by ambulance, where he was treated for various injuries. The most serious injury was a 5 cm laceration to his ankle with an underlying open fracture that required surgery.
On 3 March 2021, a search warrant was executed at Billett's home. In the lounge room, police located an axe and a machete. Billett admitted that both weapons belonged to him and that he had handled them recently. He said he had been playing around with the machete one or two days earlier and had cut his hand on it. His fingerprint was later located on the handle of the machete. He declined to answer any questions when later interviewed.
Klinger was arrested on 4 March 2021 at his home. He took part in two police interviews. In the first interview he stated that on the night in question he had been at the Westfield Tavern. He did not wish to give much other information but did disclose that he knew Billett and TL and had socialised with them on the occasion that he went to the Westfield Tavern. He also said that he had cut his hand on some glass and had bled on the night in question.
In his second interview, Klinger admitted going to the house in Armadale where the offences occurred. He said that Billett had asked him to go to be an extra body to scare Mr Scerri. He said that he understood that the plan was to let Mr Scerri know that he had crossed the line and that this was what would happen if he 'fucks with someone's kids'. He admitted entering the caravan occupied by Mr Scerri, smashing a window and screaming at Mr Scerri. (footnotes omitted)
This court noted that there were a significant number of aggravating features of the offending by Billett and Klinger as follows [57]:
a.this was not opportunistic offending, but, rather, planned conduct with the respondents agreeing to attend at the premises and arming themselves with weapons before arriving;
b.the offences were committed in company and at night;
c.the offences were at residential premises where it was likely, and indeed the respondents fully expected, residents to be present;
d.the purpose of the burglary offences was to enter and, at least, intimidate the occupant by threatening him with weapons;
e.the burglary on the house involved threats to Mr Sorrell, and threatening behaviour with weapons;
f.the burglary on the caravan involved forcible entry and the breaking of windows;
g.the burglary on the caravan involved threats to Mr Scerri and a serious assault upon him;
h.Mr Scerri was outnumbered and trapped, and thus vulnerable to the attack upon him; and
i.the offences were, in essence, a revenge or vigilante attack by Billett, in which he was actively assisted by Klinger and TL.
The mitigating factors in Billett were these [47]:
(a)both Billett and Klinger pleaded guilty at the earliest reasonable opportunity and received a discount of 25% for their pleas;
(b)Billett had a limited prior criminal record and supportive character references;
(c)Klinger also had a supportive character reference (although his criminal record precluded a finding of prior good character);
(d)Billett had made significant changes in his life and was considered at low risk of reoffending;
(e)Klinger acknowledged his problem with alcohol but remained at low to middle risk of reoffending;
(f)Billett and Klinger accepted responsibility for their offending; and
(g)Billett and Klinger were remorseful.
We are satisfied, after taking into account the similarities and the differences between the facts and circumstances of the offending and the personal circumstances and antecedents of the offenders, that the sentence imposed by the trial judge on the appellant in the present case is broadly consistent with the sentences imposed by this court on the offenders in Billett. In particular:
(a)the offenders in Billett received a 25% discount for their pleas of guilty, but in the present case the appellant did not plead guilty;
(b)the offenders in Billett had other mitigation that was greater than the mitigation available to the appellant in the present case;
(c)the offenders in Billett acted under the misguided belief that they were protecting children; and
(d)in the present case, there were a greater number of offenders than in Billett and in the present case the violence directed against the victim was more persistent than in Billett.
The sentencing outcome in Billett, compared to the sentencing outcome in the present case, does not indicate that, having regard to all relevant facts and circumstances and all relevant sentencing factors, the sentence imposed on the appellant for count 1 was manifestly excessive.
In Puntigam, two offenders, namely Puntigam and Bacich, were convicted after trial of three counts, being one count of aggravated robbery (count 1), one count of aggravated home burglary (count 2) and one count of administering a noxious substance with intent to injure or annoy (count 3). Puntigam received a total effective sentence of 5 years 6 months' imprisonment and Bacich received a total effective sentence of 6 years' imprisonment. Their appeals to this court against conviction and sentence were dismissed.
Neither Puntigam nor Bacich asserted that the individual sentences they received were manifestly excessive. Both of them claimed that the total effective sentences infringed the first limb of the totality principle. In addition, Bacich alleged that the primary judge had made express errors.
This court's sentencing decision in Puntigam is not a relevant comparator, for the purposes of the present appellant's appeal against sentence, in that the individual sentences imposed for the aggravated home burglary offence in Puntigam were not challenged.
We accept that, in the present case, the sentence of 7 years 7 months' imprisonment imposed on the appellant for count 1 is towards the upper end of the range of sentences open to the trial judge on a proper exercise of her discretion.
However, in our opinion, when the sentence of 7 years 7 months' imprisonment for count 1 is viewed from the perspective of:
(a)the maximum penalty;
(b)the facts and circumstances of the offence;
(c)the appellant having committed the offence while he was on bail for other violent offending;
(d)the vulnerability of John Bellette;
(e)the general pattern of sentences for offences of this kind;
(f)the importance of denunciation and personal and general deterrence; and
(g)the appellant's personal circumstances and antecedents, including the limited mitigation,
the length of the sentence was not unreasonable or plainly unjust.
Ground 2 fails. Leave to appeal should be refused.
Sentence appeal: ground 3
Ground 3 alleges that the total effective sentence of 8 years 9 months' imprisonment infringed the first limb of the totality principle.
Sentence appeal: ground 3: counsel for the appellant's submissions in the appeal
Counsel for the appellant submitted that there was 'significant overlap in the facts of, and the criminality of, [count 1 and count 2] that was not properly reflected in [the total effective sentence]'. It was submitted, in effect, that it was artificial to separate the acts of violence committed by the appellant into separate counts (that is, count 1 and count 2) in the context of a single continuing assault. According to counsel, the offending charged in count 2 was 'the true mischief of the offending'. Counsel sought to rely upon the decision in Fernie v The State of Western Australia[26] as a comparator. It was submitted that the individual sentences for count 1 and count 2 should have been ordered to be served concurrently. Counsel argued that the total effective sentence of 8 years 9 months' imprisonment was unreasonable or plainly unjust.
[26] Fernie v The State of Western Australia [2022] WASCA 20.
Sentence appeal: ground 3: counsel for the State's submissions in the appeal
Counsel for the State submitted that, although the offences in counts 1 and 2 were connected, each was factually different, and consequently the offending on count 2 increased the seriousness of the overall offending. The trial judge properly gave effect to the first limb of the totality principle by making a substantial reduction in the length of the sentence on count 2 from 3 years 3 months' immediate imprisonment to 1 year 2 months' immediate imprisonment. The decision in Fernie is not an apt comparator. It was submitted that the overall criminality involved in the appellant's offending was extremely high and that the appellant had not demonstrated that the total effective sentence was unreasonable or plainly unjust.
Sentence appeal: ground 3: its merits
The general sentencing principles applicable to a ground of appeal which alleges that a total effective sentence infringes the first limb of the totality principle are well established. See, for example, The State of Western Australia v Murray.[27]
[27] The State of Western Australia v Murray [2020] WASCA 190; (2020) 94 MVR 426 [68] ‑ [69], [71] (Buss P, Mazza & Beech JJA).
We have already recounted in detail the facts and circumstances of the appellant's offending on each of the counts in the indictment, the trial judge's sentencing remarks and the appellant's personal circumstances and antecedents.
Further, we have already decided that the sentence of 7 years 7 months' imprisonment for count 1 was not manifestly excessive.
The appellant's complaint in the context of ground 3 is, in essence, that the individual sentences for counts 1 and 2 should have been ordered to be served concurrently.
There is no substance in the appellant's complaint. It was not artificial to separate the acts of violence committed by the appellant against John Bellette into separate counts (that is, counts 1 and 2) in the context of a single continuing assault. We consider that the focus of the violence the subject of count 2, namely the appellant striking John Bellette's legs with the baseball bat, was the appellant's repeated demands for John Bellette's car keys. Although this violence followed immediately upon the assault the subject of count 1, the violence the subject of count 2 was directed at a specific part of John Bellette's body and had as its specific purpose the obtaining of his car keys.
The appellant's submissions on ground 3 fail to recognise the egregious nature of the offending constituted by each of counts 1 and 2. Further, the appellant's submissions on ground 3 fail to acknowledge that the damaging of Jacqueline Bellette's vehicle (count 3) and the stealing of John Bellette's vehicle (count 4) increased the overall seriousness of the appellant's offending.
Counsel for the appellant's reliance upon Fernie as a comparator is flawed because the head sentence in Fernie, namely 8 years 2 months' imprisonment, was imposed for the offence of unlawfully doing grievous bodily harm committed in the course of conduct that constituted an aggravated home burglary. That offence carried a mandatory minimum penalty of 7 years 6 months' imprisonment.
In the present case, although counts 1, 2, 3 and 4 were committed in close temporal proximity, it was necessary to order that part of the appropriate individual sentence for count 2 be served cumulatively upon the appropriate individual sentence for count 1 in order to ensure that the total effective sentence imposed on the appellant was commensurate with the seriousness of his overall offending.
In our opinion, the total effective sentence of 8 years 9 months' imprisonment did not infringe the first limb of the totality principle. A custodial term of that length was required in order properly to mark the very serious character of the appellant's offending as a whole, and to give effect to the sentencing considerations of denunciation of the appellant's criminal conduct as a whole and personal and general deterrence. The total effective sentence bears a proper relationship to the criminality involved in all of the offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors.
Error by the trial judge in the exercise of sentencing discretion cannot be inferred, based on the first limb of the totality principle, from the sentencing outcome. The total effective sentence of 8 years 9 months' imprisonment was not unreasonable or plainly unjust.
Ground 3 fails. Leave to appeal should be refused.
Sentence appeal: ground 4
Ground 4 alleges that the trial judge erred in law by ordering that the total effective sentence of 8 years 9 months' imprisonment be served cumulatively upon the term of 5 years' immediate imprisonment that the appellant was serving for the unlawfully doing grievous bodily harm offence.
Sentence appeal: ground 4: counsel for the appellant's submissions in the appeal
Counsel for the appellant acknowledged that, in an early part of her sentencing remarks, the trial judge noted, when summarising the appellant's personal circumstances and antecedents, that the appellant had been in custody for 2 years 6 months, had behaved well in custody, and had used his time in custody productively by completing various courses and undertaking counselling (ts 2684).
Counsel noted that, towards the end of her sentencing remarks, her Honour referred to the appellant's criminal record, to the fact that the appellant was older than his co‑offenders, and to the appellant having been on bail for a serious offence when the offences in question were committed. Her Honour also referred to the significance of community protection as a sentencing factor.
Counsel complained that, 'immediately before the [total effective sentence] was handed down', the trial judge did not refer to:
(a)'the efforts that [the appellant] had made while in custody or the effect that counselling and education may have had on his risk of reoffending'; or
(b)'to the impact that [the lengthy period in custody that the appellant had served since the imposition of the sentence of 5 years' immediate imprisonment] may have had on [the appellant] in terms of deterrence or motivation to rehabilitate'.
Counsel argued that the imposition of 'a significantly lengthy total effective sentence as cumulative on an already significant sentence without reference to an even slightly diminished need for deterrence [was] unjust and an implied error'.
Sentence appeal: ground 4: counsel for the State's submissions in the appeal
Counsel for the State submitted that any mitigation arising from the appellant having been in custody for 2 years 6 months, having behaved well while in custody and having used that time productively by completing various courses and undertaking counselling could only receive 'marginal weight' as a result of the importance of personal and general deterrence. Further, it was submitted that any benefit that the appellant had derived from completing various courses and undertaking counselling had not progressed to the point where the appellant took responsibility for his offending. Further, it was submitted that Dr Pascu was of the view that the appellant's risk of committing similar offences will depend upon his engagement with any available treatment for his attention deficit hyperactivity disorder and upon his developing improved anger management, coping and problem solving skills.
Counsel submitted that the overall total effective sentence of 13 years 9 months' imprisonment properly reflected the serious nature of all of the relevant offences, the need for personal and general deterrence, the importance of community protection and the absence of significant mitigation. The appellant had not established that the overall total effective sentence was unreasonable or plainly unjust.
Sentence appeal: ground 4: its merits
We have already recounted in detail:
(a)the facts and circumstances of the unlawfully doing grievous bodily harm offence committed by the appellant;
(b)the facts and circumstances of the appellant's offending on each of counts 1, 2, 3 and 4 in the indictment;
(c)this court's reasons for dismissing the appellant's appeal against sentence in relation to the offence of unlawfully doing grievous bodily harm;
(d)the trial judge's sentencing remarks in relation to counts 1, 2, 3 and 4; and
(e)the appellant's personal circumstances and antecedents, including the limited mitigation.
Further, we have already decided that the sentence of 7 years 7 months' imprisonment for count 1 was not manifestly excessive and that the sentence of 8 years 9 months' imprisonment for counts 1, 2, 3 and 4 did not infringe the first limb of the totality principle.
We are satisfied that her Honour did not make an error in failing to repeat, immediately before her Honour imposed sentence, her earlier remarks to the effect that the appellant had been in custody for 2 years 6 months, had behaved well in custody, and had used his time in custody productively by completing various courses and undertaking counselling. It is apparent, on a fair reading of her Honour's sentencing remarks as a whole, that her Honour did not ignore those facts in deciding upon the sentencing outcome. However, those facts could only be accorded minimal weight having regard to the very serious nature of the appellant's offending as a whole, Dr Pascu's opinion as to the appellant's risk of similar offending, the importance of denunciation and personal and general deterrence, the appellant's personal circumstances and antecedents, and the limited mitigation.
Nevertheless, we are persuaded that the overall total effective sentence of 13 years 9 months' imprisonment did exceed the overall total effective sentence that was required to satisfy all relevant sentencing factors, having regard to the overall seriousness of the offending and all relevant sentencing principles. It is significant in this connection that this court noted, in dismissing the appellant's appeal against the sentence of 5 years' immediate imprisonment for unlawfully doing grievous bodily harm, that the sentence could properly be characterised as high (although not manifestly excessive) [4]. It is also significant in this connection that we have concluded that the sentence of 7 years 7 months' imprisonment for count 1 was towards the upper end of the range of sentences open on a proper exercise of the sentencing discretion (although not manifestly excessive).
In our opinion, the overall total effective sentence of 13 years 9 months' imprisonment was unreasonable or plainly unjust.
Ground 4 has been made out.
Sentence appeal: the outcome of the appeal and the resentencing of the appellant
We would grant leave to appeal on ground 4 and refuse leave on grounds 1, 2 and 3 of the sentence appeal.
The sentence appeal must be allowed.
This court has the material necessary to resentence the appellant. At the hearing of the appeal, the court granted the appellant leave to file an application for leave to adduce additional evidence within seven days, together with an affidavit setting out any material relevant to the resentencing of the appellant, against the contingency that the sentence appeal would be allowed and the court would resentence the appellant (appeal ts 86). The appellant did not avail himself of that opportunity.
The trial judge's sentencing decision, including the sentences imposed by her Honour and the orders for accumulation and concurrency made by her Honour, should be set aside.
We have reduced each individual sentence that we would otherwise have imposed for each of counts 1, 2, 3 and 4 in the indictment to reflect the mitigating factors referred to by her Honour, including the appellant's good behaviour while in custody and the efforts he has made while in custody by completing various courses and undertaking counselling.
We would exercise the sentencing discretion afresh in relation to counts 1, 2, 3 and 4 by imposing individual sentences of immediate imprisonment as follows:
(a)count 1: 6 years 6 months (reduced from 7 years 6 months in the application of the totality principle);
(b)count 2: 3 years 3 months;
(c)count 3: 1 year; and
(d)count 4: 2 years.
As we have indicated, we have reduced the new individual sentence for count 1 in the application of the totality principle.
The new sentences for counts 1, 2, 3 and 4 should be served concurrently with each other. The new total effective sentence for counts 1, 2, 3 and 4 is therefore 6 years 6 months' imprisonment.
The new total effective of 6 years 6 months' imprisonment should be served cumulatively upon the existing sentence of 5 years' immediate imprisonment for the offence of unlawfully doing grievous bodily harm. The sentence of 5 years' immediate imprisonment began on 6 April 2020.
The new overall total effective sentence is therefore 11 years 6 months' imprisonment from 6 April 2020. The appellant is eligible for parole. The appellant will be eligible to be considered for release on parole when he has served 9 years 6 months in custody calculated from 6 April 2020.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
Associate to the Honourable President Buss
26 SEPTEMBER 2024
- AGLC
- Jones v The State of Western Australia [2024] WASCA 115
- Case
- [2024] WASCA 115
- Decision Date
CaseChat Overview and Summary
The primary legal issue in the appeal was whether the trial judge erred in directing the jury that they could not consider the possibility that Jones did not intend to permanently deprive the complainant of any property. The appeal further addressed whether a miscarriage of justice occurred because the State failed to call a potential witness who might have provided exculpatory evidence. Lastly, Jones argued that the trial judge erred in finding that his purpose in visiting the place where the offending occurred was to exact revenge, which influenced the sentence.
The Court held that the trial judge's direction to the jury was not erroneous, as it correctly reflected the legal requirements for the offence of aggravated armed assault with intent to rob. The Court found that the State's failure to call the potential witness did not amount to a miscarriage of justice, as the evidence presented was sufficient to support the jury's verdict. Regarding the sentence, the Court concluded that while the trial judge's findings about Jones' intent were not clearly wrong, the sentence was manifestly excessive and failed to consider the totality of the circumstances.
The Court allowed the appeal against the sentence, ordered a re-sentencing hearing, and quashed the original sentence. The Court did not interfere with the conviction or order a retrial.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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