R v Donges & Sutton - [2007] SADC 88

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DONGES & SUTTON
[2007] SADC 88
Ruling of His Honour Judge David Smith
24 August 2007
CRIMINAL LAW
Sentence - conflict between statements of witnesses in sentencing papers and submissions - discussion of effect of abandonment of statement by prosecution - held - in the circumstances the abandonment of the statements of two of the prosecution witnesses in a plea bargain is not binding on the sentencing Judge and sworn evidence may be required if sentencing is to proceed on a basis which is inconsistent even with the "abandoned" statements.
Malvaso v The Queen (1989) 168 CLR 227; R v Nemer (2003) 87 SASR 168; R v Perre (1986) 41 SASR 105; R v Lobban (2001) 80 SASR 550; R v Olbrich (1999) 199 CLR 270; R v Maitland [1963] SASR 332; R v Vecsey [1962] SASR 127; McAuliffe v R (1995) 183 CLR 108; R v Johns [1978] 1 NSWLR 282; Chow v DPP (NSW) (1992) 28 NSWLR 593, considered.

R v DONGES & SUTTON
[2007] SADC 88
Introduction

The above named defendants, Ian Frances Donges and David John Sutton were charged on an Information dated the 21^st September 2006 with having committed the following offences whilst in the company of one Paul Douglas Gifford:
·     Aggravated Serious Criminal Trespass in a place of Residence (one count);
·     Aggravated robbery (three counts); and
·     Theft (one count).
I set out hereunder the statement and particulars of the five offences.
First Count
Statement of Offence
Aggravated Serious Criminal Trespass in a place of Residence. (Section 170(2) of the Criminal Law Consolidation Act1935).
Particulars of Offence
Ian Frances Donges and David John Sutton on the 12^th day of May 2006 at Mount Gambier, while in the company of another, Paul Douglas Gifford and whilst armed with an offensive weapon, namely a knife, entered or remained in a place of residence being a motel room of Bradley Paul Yeomans, Tyler McAdam Jackman and Adam Lindsay Curkpatrick as trespassers, with the intention of committing an offence therein, namely an offence against the person, and when Bradley Paul Yeomans, Tyler McAdam Jackman and Adam Lindsay Curkpatrick were lawfully present in the said place and they knew of their presence or were reckless as to whether anyone was in the said place.
Second Count
Statement of Offence
Aggravated Robbery. (Section 137(2) of the of the Criminal Law Consolidation Act 1935).
Particulars of Offence
Ian Frances Donges and David John Sutton on the 12^th day of May 2006 at Mount Gambier, while in the company with another, namely Paul Douglas Gifford and whilst armed with an offensive weapon, namely a knife, used force against Bradley Paul Yeomans in order to commit the theft of a mobile telephone, and the force was used immediately before the theft.
Third Count
Statement of Offence
Aggravated Robbery. (Ibid).
Particulars of Offence
Ian Frances Donges and David John Sutton on the 12^th day of May 2006 at Mount Gambier, while in the company with another, namely Paul Douglas Gifford and whilst armed with an offensive weapon, namely a knife, used force against Tyler McAdam Jackman in order to commit the theft of a mobile telephone and the force was used immediately before the theft.
Fourth Count
Statement of Offence
Aggravated Robbery. (Ibid).
Particulars of Offence
Ian Frances Donges and David John Sutton on the 12^th day of May 2006 at Mount Gambier, while in the company with another, namely Paul Douglas Gifford and whilst armed with an offensive weapon, namely a knife, used force against Adam Lindsay Curkpatrick in order to commit the theft of a mobile telephone, laptop computer, wallet and money, and the force was used immediately before the theft.
Fifth Count
Statement of Offence
Theft. (Section 134 of the Criminal Law Consolidation Act1935).
Particulars of Offence
Ian Frances Donges and David John Sutton in company with Paul Douglas Gifford on the 12^th day of May 2006 at Mount Gambier, dishonestly dealt with property, namely two mobile telephones, laptop computer, wallet and money without the consent of Bradley Paul Yeomans, Tyler McAdam Jackman and Adam Lindsay Curkpatrick, the owners of that property, intending to permanently deprive them of their property or make a serious encroachment on their proprietary rights.
Two points need to be made at the outset about the charged offences. First, the theft offence is plainly an alternative to the three Aggravated Robbery offences. Secondly, the “... offence against the person ...” which was charged as being the offence which the trespassers intended to commit in the place of residence is plainly the now repealed offence of Common Law Assault (see s39 of the Criminal Law Consolidation Act; see also heading Part 3 of the said Act).
The offences rose out of the invasion of a motel room occupied by three young men in the International Motel on Millicent Road, Mount Gambier, in the early hours of Friday morning the 12^th May 2006. In the course of this incident, the three occupants of the room were awoken, abused, threatened with a knife and two mobile telephones, a laptop computer and a wallet and money were taken from them. One of the occupants was pulled out of bed by the hair. The intrusion was an act of retribution for what was regarded as insulting behaviour by the victims and one of their associates, which had occurred earlier in a nightclub named Shadows in central Mount Gambier.
A plea bargain was negotiated on the 27^th March 2007, which was the eve of the trial in the Mount Gambier sittings of this Court. The defendants were duly re-arraigned and the following pleas were entered:
· Mr Donges pleaded guilty to the offences of Aggravated Serious Criminal Trespass and Theft; and
· Mr Sutton pleaded guilty to Aggravated Serious Criminal Trespass.
The Prosecution accepted those pleas in satisfaction of the Information. So the Aggravated Robbery charges were abandoned and in respect of Mr Sutton the charge of Theft was also abandoned. I heard sentencing submissions on the 29^th March 2007 and adjourned the sentencing to a date to be fixed in Adelaide.
The named co-offender, Paul Douglas Gifford, at committal in the Mount Gambier Magistrates Court on the 29^th August 2006, had pleaded guilty to all the offences and on the 27^th October 2006, was sentenced. I have before me not only the statements of witnesses in relation to the criminal trespass matters but also the sentencing submissions made on behalf of Mr Gifford and the sentencing remarks of His Honour Judge Millsteed of the 27^th October 2006.
After due consideration I concluded that the pleas of Messrs Donges and Sutton were inconsistent with the primary facts emerging from the statements of witnesses in the papers before me and incidentally were also inconsistent with the basis upon which Mr Gifford was sentenced. I drew my views to the attention of counsel on the 4^th May and the 29^th June 2007, and I heard argument as to what version or interpretation of the facts should form the basis for sentencing. At the close of submissions I indicated that I would give notice of the basis upon which I was prepared to impose sentence and if that basis was to be contrary to the version contended for by defence counsel, then permit the defendants an opportunity to adduce sworn evidence.
I now set out my ruling or decision on the matter.
Some applicable legal principles
The courts sentencing discretion is to be exercised in the public interest (see Malvaso v The Queen[1]; R v Nemer[2]). That being the case the Court is not bound by any plea bargaining agreement (see Malvaso at 233 and Nemer at 173).
[1] (1989) 168 CLR 227 at 233
[2] (2003) 87 SASR 168 at 173
The sentencing judge will ordinarily sentence on the basis of the facts as found in the statements of witnesses in the matter and it may be that, if there are material differences between what the statements disclose and the version in the plea, sworn evidence will be necessary to resolve them. In R v Perre[3] King CJ at 105 and 106 said:
The sentencing judge is required ordinarily to sentence upon the basis of the sworn depositions or statements. If the defendant wishes to dispute any of the primary facts deposed to therein, he must do so by sworn evidence either at the preliminary hearing or before the sentencing judge. Where a defendant, while not disputing the primary facts deposed to, wishes the sentencing judge to sentence upon the basis of a certain interpretation of those facts or upon a version of the defendant’s role in the matter which may be in conflict with inferences from the primary facts which are open to the judge, he must make a decision as to the course which he wishes to follow. The defendant may give evidence or call evidence in support of his interpretation or version, or he may put it before the judge by way of submissions by his counsel asking the judge to act upon that interpretation or version. The prosecution may or may not make submissions accepting or opposing the interpretation or version put forward. The decision as to the basis upon which sentence is to be imposed is not, however, a matter for the prosecution but for the judge. I reject completely the suggestion which surfaced faintly on this appeal and has been made to the Court of Criminal Appeal in other cases, that the judge is bound to act upon the interpretation or version put forward by the defence unless it is disputed by the prosecution. It is for the judge to decide what inferences he will draw from the primary facts and to decide the basis upon which he will impose sentence. Even in cases in which the prosecution joins with the defence in asking for sentence to be imposed upon an agreed basis which differs from the depositions or from inferences which the judge may be disposed to draw from the depositions, it is for the judge to decide whether he is prepared to act upon that agreed basis.
[3] (1986) 41 SASR 105
Where the prosecution and defence join in a submission which puts forward a factual basis contradicted in the statements of witness or the prosecution remains silent in the face of such a defence submission, then it may be necessary for the sentencing judge to put the defence on notice of the need to call evidence (see R v Lobban[4]; see also R v Olbrich[5]).
[4] (2001) 80 SASR 550 per Martin J at [18-21]
[5] (1999) 199 CLR 270
Finally I turn to the topic of the Prosecution abandoning or discarding a witness’s statement, specifically or by implication, when striking a “plea bargain”. In this case prosecuting counsel Dr Salu, on the 29^th June 2007 said that in concluding the plea bargain, the Prosecution had effectively abandoned reliance on the statements of Paul Gifford and Tara Baker.
In Nemer (supra) Prior J at [63] said:
There is still an onus on the offender to give sworn evidence before the sentencing judge can sentence on a factual basis contradicted by verified statements and sworn evidence not expressly abandoned by the prosecutor.
Later His Honour said at [65]:
The onus was upon the offender to give sworn evidence because the verified statements were not qualified or abandoned.
(The italics are mine)
His Honour cited in support of the above propositions the cases of Lobban (supra) at [17], Perre (supra), R v Maitland[6] and R v Vecsey[7], none of which raised directly the topic of abandonment. However, as to this, Vanstone J, also in Nemer, at [106] said:
The Director was far from agreeing to the basis suggested by Ms Powell, although, as I have recounted, he did not challenge it. At no stage did the Director suggest that the depositions should be discarded …
(The italics are mine.)
[6] [1963] SASR 332
[7] [1962] SASR 127
Though what constitutes abandonment is not spelled out by their Honours, probably because it was not necessary to do so for the decision in Nemer, the implication in the above extracts is that any statements abandoned or discarded may cease to be material for consideration of the sentencing judge. I will return to this topic later in the context of what happened in this case.
Background circumstances
I draw the following summary from what I have deduced to be uncontroversial in the statements of witness.
The three victims Bradley Yeomans, Tyler Jackman and Adam Curkpatrick were three of a group of four Glenelg footballers visiting Mount Gambier for country week. Grady Obst was the fourth. The south-east region of this State is an area from which the Glenelg Football Club recruits football players. These young men were conducting football clinics at schools in the area and training with local football clubs. They were staying in the International Motel on Millicent Road, a short distance from the centre of the City of Mount Gambier.
Late on Thursday evening the 11^th May 2006, Messrs Yeomans, Jackman, Curkpatrick and Obst attended Shadows Nightclub which is in the central area of the City of Mount Gambier. There they danced, drank, conversed with and generally socialised with some of the local young women, including Tara Baker who was the girlfriend of Paul Douglas Gifford, to whom I have already referred.
The behaviour of the visitors was regarded as being overfamiliar and an affront to the local young men present, one of whom was Paul Gifford. There were two verbal confrontations in the nightclub. One of them was between Mr Gifford and Mr Obst. They moved “outside”. There was no physical violence. The other involved Mr Jackman. There is no need to canvass more of the detail of what occurred at the nightclub or on the street outside except to say that there were vague insinuations which included inappropriate touching of the young women by the visitors when on the dance floor. I hasten to say there was no evidence that anything like that occurred save that Tara Baker said that she was kissed on two occasions. Notably in the two confrontations which I have mentioned Mr Jackman and Mr Obst all but apologised and explained that neither of the young women with whom they were dancing had disclosed that they had boyfriends who were present in the premises.
Messrs Yeomans, Curkpatrick, Obst and Jackman left the premises in the early hours of Friday morning the 12^th and eventually returned to their motel. Messrs Yeomans, Curkpatrick and Jackman went to bed in room number 35 while Mr Obst retired alone in room 36.
I now come to an area of controversy. Suffice it to say, for the purpose of this summary, a decision was taken to visit some retribution on the visitors. A party including Mr Gifford, the defendants and Ms Baker drove out to the International Motel. Mr Donges, the driver, waited outside with the vehicle. Messrs Gifford and Sutton and another carried out a criminal trespass of motel room number 35. As I have indicated the three occupants were awoken, abused and threatened, one was dragged out of bed. In the course of the trespass Mr Gifford brandished a knife and then the intruders left with the property I have mentioned.
The incident was reported to the police immediately. The police located and interviewed Mr Gifford and the two defendants. All three were jointly charged with a battery of offences relating to what had occurred.
I turn to the proceedings and their disposition so far.
Early charges – Sentencing of co-defendant Gifford October 2006
The defendants and Mr Gifford were charged jointly in the Mount Gambier Magistrates Court with:
·     Aggravated Serious Criminal Trespass in a place of Residence;
·     Three counts of aggravated robbery; and
·     Theft.
As indicated, at Committal in the Mount Gambier Magistrates Court on the 29^th August 2006, Mr Gifford pleaded guilty to all the above charges.
The defendants Sutton and Donges maintained pleas of not guilty up until the eve of the trial.
In this Court sitting in Mount Gambier on the 17^th October 2006, His Honour Judge Millsteed heard sentencing submissions in relation to Mr Gifford. In the course of those submissions, in answer to an inquiry raised by His Honour, counsel for Mr Gifford indicated that his client would be prepared to give evidence against the two co-accused. His Honour asked whether the Prosecution would be prepared to call Mr Gifford as a witness. In response Prosecution counsel said:
Detective Scott would need to be satisfied as to the truth of what it was that was being put, whether it flows with the statement that was given, but it would certainly be a matter that the prosecution will look at very closely.
(See p 30 of transcript of 17^th October 2006)
Sentencing submissions were adjourned to the 25^th October to enable a statement to be taken from Mr Gifford by Detective Sergeant Scott. That was done on the afternoon of the 18^th October 2006. That statement, dated the 18^th October 2006, is amongst the statements of witnesses before me. On the 25^th October 2006 when the sentencing submissions resumed the following exchange took place between His Honour and Counsel:
HIS HONOUR:     Mr Cusack, I have received a statement from Mr Gifford dated 18 October 2006, in which he sets out an account of the events on the night in question. As I understand it, he is prepared to give evidence against the co-offenders.
MR CUSACK:    That’s correct.
HIS HONOUR:     Mr Lesses, does the prosecution propose to call Mr Gifford at the trial of the co-offenders?
MR LESSES:I don’t have firm instructions on that but we certainly do at this stage.
HIS HONOUR:     Does the prosecution accept the truthfulness of the account contained in the statement?
MR LESSES:I can only answer that tentatively with a yes.
HIS HONOUR:     What do you mean ‘tentatively’?
MR LESSES:I haven’t had an opportunity to compare the contents of the statement with the rest of the evidence, let alone liaise with Mr Gifford, but what I can indicate is that having spoken briefly with the investigating officer, the statement is regarded generally as truthful and helpful and at this stage there is an intention to rely on Mr Gifford as a potential Crown witness.
HIS HONOUR:     So you have spoken to Detective Scott?
MR LESSES:Yes.
HIS HONOUR:     He has indicated to you that he regards this as being an essentially truthful account?
MR LESSES:That is correct.
HIS HONOUR:     Does the prosecution accept that I should sentence Mr Gifford on the basis that he has been cooperative with the authorities and that at this point in time the prosecution will call him as a witness?
MR LESSES:Absolutely.
HIS HONOUR.    Very well.
MR LESSES:In that regard, he is entitled to an extra kind of discount in relation to his assistance, given it is an unusual step – not an unusual step but it’s an extraordinary step for someone in his position to take that course.
(See pp 32, 33 transcript 25^th October 2006)
Sentencing submissions then concluded, and in accordance with the practice of this Court when an offender is to give evidence against his or her co-offenders, His Honour proceeded with sentencing. The sentencing remarks of the 27^th October 2006 indicate the basis upon which His Honour sentenced Mr Gifford. Mr Gifford was imprisoned for two years and nine months with a non-parole period of 20 months which was suspended upon Mr Gifford entering into a good behaviour bond. The Prosecution did not proceed with the charge of theft.
His Honour said that Mr Gifford’s willingness to give evidence was “a powerful mitigating factor”. His Honour set out the circumstances of the offending in the following terms:
The circumstances of your offences are as follows.
In the early hours of the morning on Friday, 12 May, you and your girlfriend Tara Baker attended a nightclub in Mt Gambier after having spent a large part of the night drinking alcohol. You had also consumed LSD and ecstasy. You were significantly intoxicated. Your friend Jeremy Mason was at the nightclub, he was in the company of Mr Ian Donges whom you had known for about one month. He was also in the company of David Sutton whom you had not met before.
While you were at the nightclub, you continued drinking and watched your girlfriend Tara dancing on the dance floor. Four young men who were members of the Glenelg Football Club were also on the dance floor. You saw them dancing close to your girlfriend and gained the impression that one of them was trying to kiss her. You also thought that one may have been trying to put his hand up her skirt. The men involved have denied any misconduct towards your girlfriend.
In any event, you were upset by your interpretation of their conduct and approached one of the men, Mr Grady Obst. You accused him of trying to get on with your girlfriend. He told that you he didn’t know that Tara was your girlfriend and apologised. You were aggressive towards him and asked him to go outside. He agreed to speak to you outside but made it plain that he did not want to get involved in a fight. You went outside and told him not to mess with Mt Gambier girls.
You then went back inside the nightclub. You were angry and spoke to Mr Donges and Mr Sutton about what had happened. The three of you subsequently left the nightclub and went to Mr Donges’ house, where you smoked cannabis. You discussed what had happened at the nightclub. Mr Donges suggested that you go and tell the four males that they couldn’t come down to Mt Gambier and do what they did to Tara. He handed you a knife, which you took in case “they were armed”.
The three of you went back to the nightclub, where you met up with Tara and a few other men, who included a man named Tanga. The four footballers were no longer at the nightclub. However, your girlfriend knew that they were staying in room 35 at the Quality Inn International Motel. You and the others then drove to the motel in Mr Sutton’s motor vehicle.
Once you arrived at the motel you put the knife in the belt of your pants. You, Mr Sutton, Tanga and Tara went to room 35. Mr Donges remained in the vehicle with a couple of other men. Tara knocked on the door of the motel room. There was no response. You opened the door and unfastened the latch on the inside of the door. You entered the room and saw the four men in the room. You told Sutton and Tanga that they were the men that you were looking for, or words to that effect. They then entered the room with you. Sutton was wearing a bandana over his face. You saw that one of the men was lying on the bed with one of the mobile phones in his hands. You took the mobile phone and grabbed a wallet that was on the bedside table. He attempted to get out of the bed so you pulled the knife and said ‘Don’t fucking do it’. You told him that he could not come to town and do what they done to your girlfriend.
You then approached another male who was in another bed. You grabbed his hair and pulled him off the bed. You told him that it was not a joke and repeated what you said to the other men. On your way out of the room you took another mobile phone from a bench. One of your co-offenders stole a laptop computer from the room.
After a time, you and your friends left the motel room and went back to Mr Donges’ place. You gave one of the mobile phones to Tara and kept one of the phones for yourself. You also kept the wallet and a small amount of cash that was inside of it. You then smoked some more cannabis and consumed more alcohol.
Police arrested you later that day and seized the mobile phone that was in your possession.
…

That summary of circumstances accorded in substance, though not in every detail, with the statement of witness of Mr Gifford dated the 18^th October 2006 and with other statements of witness. I am mindful of the fact that in his record of interview, following his arrest, Mr Gifford did not allege that Mr Donges gave him the knife but actually blamed “the Flanny’s boys”.
Approach of trial – Plea bargain – Submissions on sentence – Mount Gambier 29^th March 2007
So the trial of the defendants was in prospect for the March 2007 sessions of this Court sitting in Mount Gambier. Mr Gifford remained a witness who was to be called by the Prosecution. He provided an addendum statement dated the 22^nd March.
Then on the eve of the trial the Court was notified that the matter had been resolved and there would be pleas by the defendants.
So, as indicated, on the 29^th March 2007 I heard sentencing submissions.
Prosecuting counsel Dr Salu sought immediate custodial penalties for both defendants, contending that the suspended sentence bond given to Mr Gifford was no indicator of the appropriate penalty because Mr Gifford had pleaded guilty at the earliest opportunity and was prepared to give evidence for the Prosecution. My attention was drawn to the comments of previous prosecuting counsel, Mr Lesses that “the actions of Mr Gifford in providing such assistance as being an extraordinary step for someone in his position to take that course” (see p 5 of transcript 29^th March 2007). This submission was doubly mystifying firstly because Dr Salu then submitted that the prosecution agreed that I should sentence Mr Donges and Mr Sutton on the basis that they did not know that Mr Gifford had a knife let alone that he would brandish it in the room – a fact contradicted by Mr Gifford’s statement of the 18^th October 2006, and secondly because later in submissions made on the 29^th June 2007, in Adelaide, he effectively abandoned the statement of Mr Gifford.
I return to the sentencing submissions in Mount Gambier on the 29^th March 2007.
The defendant Ian Donges pleaded guilty to counts one and five on the following summarised basis:
·     That he drove Mr Gifford and Mr Sutton and others to the motel intending that they might enter the room and merely threaten the occupants;
·     That he, Mr Donges, had no knowledge of and nor did he contemplate that any physical violence might erupt;
·     That he had no knowledge of them having any weapons and in particular he did not provide Mr Gifford with a knife;
·     That he had no realisation that anything was to be taken and that in relation to the laptop computer which was discovered by police in his house on the 26^th May he contended that he was merely holding it for Mr Gifford and did not actually do anything with it and so knew nothing of the damage to it or the loss of information from it.
(See pp 9-16 of transcript of 29^th March 2007)
The defendant David Sutton pleaded guilty to count one on the following summarised basis:
·     That he knew Mr Donges and upon the closing of the nightclub he got into a four wheel drive vehicle driven by Mr Donges in the car park and found himself heading off to the motel with, amongst other people, Mr Gifford;
·     That he learned of the problems in the nightclub with Mr Gifford’s girlfriend in the course of the drive and in particular that the intent was to “have some serious words to … these out of towners, rush in there as a group, threaten them, and back out again and that was it”;
·     That he was not aware of any plan to use a weapon or take any property or even perpetrate any physical violence;
·     That he did not brandish any weapon; and
·     That he did not take any property, in particular the laptop computer.
(See pp 30 to 35 of transcript of 29^th March 2007)
Both defence counsel sought suspended sentences and in particular contended that their clients should receive no greater penalty than that given to Mr Gifford.
Submissions as to basis of sentencing – Adelaide 4^th May 2007 and 29^th June 2007
I heard submissions about the difficulties on sentencing on 4^th May 2007 and 29^th June 2007.
As indicated, on the 29^th June, prosecuting counsel indicated that the prosecution, effectively, had abandoned not only the statement of witness of Mr Gifford but also that of Ms Tara Baker. Though Counsel used the word “abandon” his submissions as a whole on both the 29^th March 2007, in Mount Gambier, and on the 29^th June 2007 here in Adelaide were to the effect that the reliability and credibility of that said by Mr Gifford and Ms Baker were impaired by their admission of having taken alcohol and drugs – a problem I suggest not confined to them. That is not an abandonment within the meaning of that word as used by Justices Prior and Vanstone in Nemer (supra). The abandonment there referred to must mean a total rejection of the evidentiary value of the statement because for instance, the witness is not regarded as “a witness of truth.”
If I am wrong and what has occurred here constitutes abandonment, then in the circumstances of this case I still regard myself as being at liberty to sentence on the basis of the statements including those indicated as abandoned unless sworn evidence establishes an alternative basis for sentencing. The so called abandonment here is but an incident or by product of the plea bargain which does not bind the sentencing judge.
The submissions of all counsel of the 29^th June 2007 and the 4^th May 2007 did nothing to persuade me that, short of sworn evidence establishing it, the version or interpretation of facts proffered in the negotiated plea should be the basis of the sentence.
So with all that in mind I give notice of my final position.
Decision
Mr Gifford’s plea proceeded without adverse comment. He was accepted and continued to be a prosecution witness up to the eve of the trial. Then at the eleventh hour a plea bargain was struck which was entirely inconsistent with his statement of witness and also with that of Tara Baker and with other bits and pieces of prospective evidence in other witness statements.
The version of events, the subject of the submissions on sentence, is inconsistent with the statements of witness of not only Mr Gifford and Ms Baker but also other material in the papers before me. Further, putting aside the issue of whether Mr Sutton and Mr Donges knew that Mr Gifford had a knife, the contention that actual violence was not intended or at least contemplated as a possibility defies credulity. Mr Donges as the driver and Mr Sutton were part of the joint enterprise the intention of which was to confront and assault the victims. Actual violence as opposed to threatening behaviour if not intended must have been contemplated as a possibility (see McAuliffe v R[8]; see also R v Johns[9]).
[8] (1995) 183 CLR 108
[9] [1978] 1 NSWLR 282 at 287-290
The statements of witnesses before me demonstrate that the intention to exact some retribution was discussed between Mr Gifford and the defendants amongst others at the nightclub. Then there was a gathering of the defendants and Mr Gifford at Mr Donges’ house where a plan was agreed. In pursuance of it the defendants together with Mr Gifford and others including Tara Baker eventually drove out to the motel with the object of gaining entry to the room and assaulting the occupants of the room. At some stage Mr Donges gave Mr Gifford the knife to use if necessary. Mr Sutton knew of this and moreover was himself carrying something on his waist which is unexplained. The trespass and assault then occurred in the manner recounted by the victims. I was told in submissions in Mount Gambier that Mr Sutton “did not brandish” a weapon. That submission sidestepped the question raised rhetorically at the time by the Prosecutor “He had something hanging from his belt, we don’t know what it was, it wasn’t used, no-one was threatened with it ...” (6).
The statements do not indicate that the plan included taking the property and money, but the papers indicate that some of what was taken, namely the mobile phones and the laptop computer were divided up amongst the participants.
The charges of aggravated robbery were not proceeded with in respect of these defendants. It is not the place of the judge to oversee, supervise or question the decision of the prosecuting authority as to what charge or charges the prosecution is to prosecute (see Chow v DPP (NSW)[10]). So it follows, and is trite to say, that the defendants are not to be sentenced for that offending. But the circumstances canvassed above remain relevant to the offences to which these two defendants have pleaded guilty. In particular, the use of a knife is an aggravating feature of the criminal trespass offence.
[10] (1992) 28 NSWLR 593
Accordingly, in conclusion, I do not regard the Prosecution’s so called “abandonment” of the statements of Mr Gifford and Ms Baker as binding me. That they had consumed alcohol and drugs on the night is a matter to which I, as the sentencing judge, would have regard, in determining the basis upon which to sentence. That will remain the case whether or not sworn evidence is adduced on sentence. So I indicate that I will sentence on the basis of the statements of witness in the papers before me unless there be sworn evidence convincing me that such is not the appropriate course.
I will hear counsel as to the future conduct of this matter and in particular as to the taking of sworn evidence.