Mazin Putrus v The Queen
[2018] VSCA 218
•29 August 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0067
| MAZIN PUTRUS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WEINBERG JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 29 August 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 218 |
| JUDGMENT APPEALED FROM: | DPP v Putrus (Unreported, County Court of Victoria, Judge Cohen, 11 December 2017 (Conviction)) |
APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
DETERMINED ON THE PAPERS
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CRIMINAL LAW – Appeal – Application for leave to appeal against conviction – Armed robbery – Whether doctrine of ‘continuous appropriation’ capable of being invoked in particular circumstances – R v Hale (1978) 68 Cr App 415 considered – Application for leave granted.
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| APPEARANCES: | Counsel | Solicitors |
| No appearances |
WEINBERG JA:
On 11 December 2017, the applicant was convicted of one charge of armed robbery following a trial in the County Court. He had previously pleaded guilty to charges of attempted aggravated burglary, theft and committing an indictable offence (namely, aggravated burglary) whilst on bail.
The applicant was sentenced as follows:
Charges on Indictment
Offence
Maximum
Sentence
Cumulation
1 Attempted aggravated burglary
ss 321M and 77(1)(a) Crimes Act 1958
20 years 3 years and 8 months 6 months 2 Armed robbery
s 75A Crimes Act 1958
25 years 4 years and 6 months Base 3 Theft
s 74 Crimes Act 1958
10 years 6 months 2 months Related summary offence Commit indictable offence whilst on bail
S 30B Bail Act 1977
3 months 1 month Nil Total Effective Sentence:
5 years and 2 months’ imprisonment
Non-Parole Period:
3 years and 10 months’ imprisonment
(1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18:
Nil
6AAA Statement:
Charge one: 4 years and 6 months’ imprisonment
Charge three: 9 months’ imprisonment
Summary charge: 6 weeks’ imprisonment
A total effective sentence of 6 years and 4 months’ imprisonment with a non-parole period of 4 years and 3 months’ imprisonment.
Other relevant orders:
· License disqualified for 6 months from 26 February 2018.
The applicant relies on the following proposed ground of appeal against conviction:
Ground 1: The learned trial judge erred in defining the elements of armed robbery
Particulars:
(a)The learned trial judge erred by misdirecting the jury as to the appropriation of property (first element of armed robbery).
(b)The learned trial judge erred by misdirecting the jury as to the relevant force or fear induced (second and third element of armed robbery).
(c)The learned trial judge erred by failing to have adequate regard to the definition of theft contained in section 73(14)(a) of the Crimes Act 1958.
(d)The learned trial judge erred by allowing the prosecution to submit to the jury that force or fear induced after the theft may satisfy the second and third element of armed robbery.
The applicant was charged with armed robbery as part of a suite of charges associated with an attempted aggravated burglary. His co-offenders were Marvin Afran and Bradley Higgins. The target of the burglary was a property situated in Newport, near Williamstown.
On 13 April 2016, at about 3.45pm, the applicant arrived at that property in company with Afran. Higgins arrived at the same time, but in a separate vehicle. The three men then approached the front door of the property and attempted to enter. However, the door was locked. They then walked around the rear of the property searching for another point of entry, but were unsuccessful.
The owner of the property, PT (the first victim), was inside while the three offenders were attempting to enter. He watched them on CCTV. At that point, BW (the second victim), arrived at the property. He parked outside the front gate. The applicant and Higgins then approached his vehicle. The applicant opened the driver’s side door while Higgins opened the passenger side door. The applicant told BW to get out of the car. BW did so. The applicant then got into the car and drove it a short distance down the street before returning to the property.
Higgins had accompanied BW to the front door of the property. Both Higgins and Afran threatened BW, telling him to open the front door. The applicant returned to the property while these threats were being made. The door was not opened. The three offenders then left the scene with the applicant driving off in BW’s car.
The trial commenced in December 2017. The applicant was arraigned and pleaded guilty to the attempted aggravated burglary and theft of BW’s vehicle. He pleaded not guilty to the charge of armed robbery. That charge concerned the theft of BW’s car. He denied having used force in relation to the theft of that vehicle, or having sought to place BW in fear that force would be used, immediately before or at the time of the theft.
The only issue in the trial was whether the applicant, and/or his co-offenders, used force, or sought to put BW in fear that force was going to be used, immediately before or at the time of the theft of BW’s car. The theft itself was conceded.
During the course of the trial, the applicant’s counsel raised a concern with the judge. He noted that the prosecution proposed to invite the jury to find that the appropriation of the vehicle was ongoing, or in other words, a continuing act. If that were so it would follow that the threats that had been directed to BW by Afran and Higgins when he was told to open the front door of the house, would suffice to render the applicant’s subsequent act of driving the car away, one of armed robbery.
It was submitted that this was misconceived, and ‘wrong in law’. However, the trial judge ruled that the prosecution would be permitted to run the case in that way, and ultimately directed the jury accordingly.
In support of this application for leave, it is contended that although the applicant stole BW’s vehicle, and also took part in the making of threats against him at the point of entry into the house, the fear induced had not been brought about immediately before or during the theft. Nor had the fear induced been created in order to commit the theft of BW’s vehicle.
It was further submitted that the theft of the motor vehicle had been completed at the point where the applicant had first driven it off. At that point, he had already dishonestly appropriated the car with the deemed intention of permanently depriving the owner of it. In other words, it was contended that this had all taken place when the applicant first took possession of the vehicle and drove it a short distance down the street, where he parked it. In the particular circumstances of this case, the act of appropriation was not a continuing act.
It is important to note that BW did not suggest, in his evidence, that he was either forced out of the car, or threatened by the applicant while still seated in the car. The threats, which came from Afran and Higgins, and which were plainly serious, came later.
The applicant, in his Written Case, made the following submission:
This force or fear induced during the second event [the incident involving BW at the front door of the house] was done so after the appropriation of the Holden Commodore, and therefore, cannot satisfy the second element of armed robbery: R v Foster (1995) 78 A Crim R 517 (NSWCCA). The learned sentencing judge erred by not limiting the jury’s consideration of the relevant force or fear induced in the first event. The force or fear induced after the theft of the Holden Commodore was not relevant to the second or third elements of armed robbery.
The applicant also submitted that the appropriation of BW’s vehicle should be viewed in stark contrast to a situation where an appropriation is ongoing. Any force or fear induced in such a case during such an appropriation will be capable of satisfying the elements of armed robbery. He refers, in that regard, to R v Hale,[1] where the notion of a continuing appropriation was first developed. He submitted that the reasoning in Hale was distinguishable, and that the conviction for armed robbery arising out of the second act of driving, though purportedly based upon the doctrine of continuing appropriation, should be set aside.
[1](1978) 68 CR App 415 (‘Hale’).
In my opinion, the points raised by the applicant in support of this application are arguable, and should be considered by the Court of Appeal. There is a legitimate basis upon which the decision in Hale can be distinguished from the facts of the present case. On one view, it could be argued that the concept of a continuing appropriation, though itself valid, may not have been properly applicable to the facts in this case.
Accordingly, there will be a grant of leave to appeal against conviction on the proposed ground.
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