R v Fabian - [2009] SADC 67

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v FABIAN
Criminal Trial by Judge Alone
[2009] SADC 67
Reasons for the Verdict of His Honour Judge Boylan
16 June 2009
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - AGGRAVATION
Accused admitted stealing from a service station but argued that his offence was not robbery because the victim handed the money over not out of fear but because it was his employer's policy that he should do so. Finding that victim was, in fact, put in fear.
Prosecutor not obliged to prove that the victim was actually put in fear to prove an offence of robbery.
Whether offence was aggravated.
Held: this robbery was an offence against the person, but not an aggravated offence because the victim's vulnerability did not arise from the nature of his occupation.
Criminal Law Consolidation Act 1935 s137, s5AA(1) , referred to.
Reane (1794) 2; Leach 616, discussed.

R v FABIAN
[2009] SADC 67

Matthew David Fabian is charged with one count of aggravated robbery. Particulars of the alleged offence are:
“Matthew David Fabian on the 27^th day of February 2008 at Hillcrest, threatened to use force against Michael Hutchison in order to commit the theft of about $80 and the threat was made immediately before and during the theft.
It is further alleged that Matthew David Fabian committed the offence, knowing that Michael Hutchison was, at the time of the offence, in a position of particular vulnerability because of the nature of his occupation.”
Mr Fabian pleaded not guilty to that charge. At his election, I heard the trial without a jury. After I had heard the evidence and counsels’ addresses, I adjourned to consider my verdict. I now give reasons for the verdict which I am about to deliver.
Elements of Robbery
To prove that the accused robbed Mr Hutchison, the prosecution must prove:
(i) that the accused committed theft;
(ii)that, in order to commit the theft, he threatened to use force against Mr Hutchison; and
(iii)that the threat was made immediately before the theft.(1)
(1) See Criminal Law Consolidation Act, 1935; s.137
The accused argued that there is a fourth element, namely, that the prosecution must prove that Mr Hutchison was actually put in fear. I shall return to that.
I have directed myself that the prosecution must prove each of the elements of the offence beyond reasonable doubt and that, until it has done so the accused is presumed innocent. He does not have to say, do or prove anything.
I have drawn no inferences adverse to him on account of his having declined to be interviewed by the police and on account of his having chosen not to give evidence.
Because some matters are not disputed, I do not have to concern myself with proof of the first element, namely,
a theft. But I must set out Mr Hutchison’s evidence in some detail to explain my findings about the second and third elements and the suggested fourth element.
Undisputed matters
On the 27^th of February 2008, Michael Hutchison, then 19 years, was on duty as the console operator at the Mobil Quix Service Station at Hillcrest. He was stationed behind a counter across the front of which was a barrier of taut parallel strands of thick wire.
Shortly after 6.15 p.m., the accused entered the Service Station. He walked up and down the aisles for some ten minutes until all other customers had left. He then approached the counter and said to Mr Hutchison “How about you open the till?” Mr Hutchison opened the till, took out all the notes in it, some $70 to $80, and gave them to the accused, who then left.
Part of the incident was recorded on the Service Station’s security camera. The film was in evidence.
On the basis of those undisputed facts, there was plainly a theft. I find the first element proved.
Mr Hutchison’s evidence
Mr Hutchison was on duty alone. The accused came in, wearing a black hooded top and a baseball cap. The hood was pulled up over the cap. While the accused was walking around in the shop, Mr Hutchison asked if he could help him. The accused replied that he was looking for something to buy. As soon as the other customers had gone and only he and Mr Hutchison remained, the accused walked up to the counter behind which Mr Hutchison was standing and said, “How about you open the till?”. His tone was normal. Mr Hutchison was surprised. The accused spoke again: “How about you open the fucking till?”. His tone was now a little “aggravated” but he did not raise his voice much. As he spoke, he put his left hand into the pocket of his trousers. He was “sort of calm but was fiddling with his hands”. Mr Hutchison, assuming that there might be a weapon in the accused’s pocket, “did not want to test”. Mr Hutchison thought he was being robbed because the accused had demanded money and, by putting his hand in his pocket, had made a gesture which implied that he had a weapon. It is company policy for employees of Mobil to comply with a robber’s request and not put themselves at risk. Accordingly, Mr Hutchison handed over the money. The accused took it and ran out. Mr Hutchison sounded the alarm and police officers arrived shortly afterwards. Mr Hutchison gave to those officers a statement about what had just happened.
Mr Hutchison’s credibility and reliability
In cross-examination, the accused’s counsel put to Mr Hutchison that he had given in evidence an account very different from that which he gave to the police officers. Mr Hutchison agreed that he had told those officers that, at no point during the theft, had the accused made any threat; that he never really felt that the accused was carrying a weapon; that he did not feel scared or threatened; and that he handed over the money on account of his employer company’s policy. Mr Hutchison also agreed that he did not, in his statement to the police officers, make any reference to the accused’s second demand “How about you open the fucking till?”.
Mr Hutchison explained the differences. He did not mention to the police officers the accused’s second demand, which included the word “fucking”, because he did not wish to swear in front of police officers or to swear in what he described as “a legal document”. Having given that explanation in evidence he agreed that when he read over and signed a typed copy of that statement, he made no effort to have the accused’s second demand included. Mr Hutchison said that he was “unsettled, maybe shocked” soon after the incident when he first spoke to police, but that after a certain amount of time, things came back to him. When, some months later, he spoke to a solicitor at the office of the Director of Public Prosecutions he felt confident to give a full account of events, especially after the solicitor had told him to relate everything that had happened. I accept Mr Hutchison’s explanations. I am not at all surprised that he could not give a calm and reliable account immediately after the event. It is to be expected that, after the initial shock and excitement was over, and he had had the opportunity to reflect on what had happened that he would have a clearer memory.
It may seem unusual that a 19 year old man would be embarrassed about using the word “fucking” in the presence of a policeman. But, having seen and heard Mr Hutchison in the witness box, I have no difficulty accepting that explanation.
As I have said, Mr Hutchison was 19 at the time. He was a casual employee. He was, and is, a student of music. He impressed me as thoughtful, intelligent and polite. He was plainly honest. I have reminded myself that prior inconsistent statements should make me cautious of accepting Mr Hutchison’s evidence. I have carefully considered the various statements and Mr Hutchison’s explanations for them. They have not shaken my confidence in the reliability of his evidence in any way. I accept Mr Hutchison’s evidence.
Accordingly, I am satisfied beyond reasonable doubt that the accused said first “How about opening the till” and, secondly, “How about opening the fucking till?”. I am also satisfied beyond reasonable doubt that, in the circumstances in which those words were said, they were meant as a threat and were perceived by Mr Hutchison as a threat. The accused, to Mr Hutchison’s knowledge, had waited inside the service station until other customers had left. He then went to the counter behind which Mr Hutchison was and asked that the till be opened. It is difficult to see how such a request could be viewed other than as a threat.I am, therefore, satisfied beyond reasonable doubt that the accused stole money from Mr Hutchison; that, in order to do so, he threatened to use force; and that he made that threat immediately before the theft of the money. In my view, that is all that the prosecution must prove to make out the offence of robbery. But the accused’s counsel argues that, in addition, the prosecution must prove that the accused was actually put in fear. He argues that Mr Hutchison was not put in fear, that he handed over the money only because it was company policy to do so.
There is authority that, at common law, there was no robbery if the victim did not part with his property from any apprehension of violence but for some other reason. Reane (1794) 2 Leach 616. It seems to me that has no bearing on the offence of robbery in South Australia. Its elements are exhaustively set out in Sections 134 and 137. But I need not decide the issue here. While Mr Hutchison told the police that he did not feel threatened and that he handed over the money on account of company policy, he gave evidence that he assumed “that there might be something in the accused’s pocket and I did not want to test” and that the accused’s gesture of putting his hand in his pocket implied that he had a weapon. In re-examination, Mr Hutchison said “There was no way for me to know if he had a weapon because I had not seen it. It was fear that if I had tested him by refusing, he might have gotten aggravated and – it was unknown”. The clear effect of Mr Hutchison’s evidence is that the demand that he open the till, coupled with the gesture, engendered fear in him. I am satisfied beyond reasonable doubt that he was actually put in fear. At the same time, he was mindful of his employer’s policy that he was to hand over the money and not to put himself at possible further risk.
I find the accused guilty of robbery.
The prosecution contends that the offence is aggravated. It relies upon Section 5AA of the Criminal Law Consolidation Act, 1935. The relevant parts of that section read:
“5AA(1)    Subject to this section, an aggravated offence is an offence committed in the following circumstances:
…
(k)     In the case of an offence against the person –
(i)the victim was, to the knowledge of the offender, in a position of particular vulnerability at the time of the offence because of the nature of his or her occupation or employment.
…”
Therefore, to prove that the accused’s offence was aggravated, the prosecution must prove, first, that the robbery was an offence against the person and, secondly, that Mr Hutchison was in a position of particular vulnerability because of his occupation.
Is this robbery an offence against the person? It is true that robbery is usually dealt with in the text books under the rubric of offences against property. Indeed, it is dealt with under that rubric in the Criminal Law Consolidation Act 1935: “Part 5 – Offences of Dishonesty”. But I do not think that its being dealt with in that way precludes robbery from being an offence against the person. After all, most robberies include an assault, which is clearly an offence against the person. Assault is now defined in Section 20 of the Criminal Law Consolidation Act. On my findings in this case, the accused’s conduct constitutes an assault under both sub-paragraphs (c) and (e) of Section 20(1). Accordingly, this offence of robbery included an assault and was an offence against the person.
The prosecution argues that Mr Hutchison was on duty alone and was, therefore, particularly vulnerable. I do not accept that his being alone is sufficient to make out this element of aggravation. The court must have regard to the nature of the relevant occupation, not to the circumstances of a particular victim. Mr Hutchison was certainly vulnerable but that vulnerability did not arise from the nature of his occupation. Console operators at service stations are often, but not always, on duty alone and that is the case with so many occupations in the retail industry. It seems to me that subsection (k)(i) is designed to apply to occupations which, by their very nature, may require workers to put themselves in potentially dangerous situations. Taxi drivers are a good example. They often have to put themselves at risk by driving to lonely or to potentially dangerous places. Their vulnerability arises out of the nature of their occupation. In my view, Mr Hutchison’s vulnerability did not arise out of the nature of his occupation.
I am not satisfied beyond reasonable doubt that this offence was an aggravated one.