R v Garling - [2011] SADC 79

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v GARLING
[2011] SADC 79
Reasons of His Honour Judge Chivell
27 May 2011
CRIMINAL LAW - PARTICULAR OFFENCES
Accused pleaded guilty to one count of robbery - disputed facts - whether offence committed after threat to kill him if he did not - onus on defendant to prove mitigating factor on balance of probabilities - onus not discharged.
Taiapa v R [2009] HCA 53; R v Brown (1986) 43 SASR 33; R v Lobban (2001) 80 SASR 550; R v Olbrich (1999) 199 CLR 270; R v Storey [1998] 1 VR 359, applied.

R v GARLING
[2011] SADC 79

Adam Lucas Garling pleaded guilty to robbery in the Port Adelaide Magisgtrates Court on 9 March 2011. He was committed to this court for sentence.
There is a dispute between the prosecution and the defence as to the facts upon which sentence should be imposed. Mr Garling asserts that he committed the offence under the influence of threats to kill him which were uttered by two unknown aboriginal people. It is suggested that this factor mitigates the seriousness of his offending.
Mr Garling’s counsel, Ms Davis, expressly disavowed reliance on the defence of duress. The defence was most recently considered in the High Court in Taiapa v R.[1]In that case, the Court referred to R v Brown,[2]where King CJ held that, in the circumstances of the case, the failure of the accused to seek the protection of the police for himself and his son was fatal to the defence of duress.[3]
[1] [2009] HCA 53
[2] (1986) 43 SASR 33
[3] Taiapa at [32]
In Brown, King CJ said:
There is an objective test in the law as to duress in that the threats must not only have overborne the will of the accused thereby causing him to do what he did, but must be such that a person of ordinary firmness of mind and will might have yielded to the threat in the way in which the accused did …… The availability of the defence is subject to a condition that the accused has not failed to avail himself of an opportunity which was reasonably open to him to render the threat ineffective.[4] (references omitted)
[4] at p 38-9
The reasoning of the High Court was that this failure to take the opportunity referred to by King CJ went to the reasonableness of the belief of the accused that there was no means open to him to render the threat ineffective.[5]
[5] Taiapa at [40] – this was in the context of the wording of the relevant Western Australian Statute, but the reasoning is equally apt to the circumstances of this case
For those reasons, I accept that Mr Garling’s plea of guilty to the crime of robbery is consistent with the submission his counsel now makes, namely that the threats were made, but that Mr Garling failed to take several opportunities he had, in the circumstances of the case, to render the threats ineffective.
The prosecution disputed that any such threats were made. Ms Davis accepted that Mr Garling’s reliance on the threats was mitigatory, and so the onus of proving them is on him to satisfy me, on the balance of probabilities, that they were made.[6]
[6] R v Lobban (2001) 80 SASR 550 at [26-33] per Martin J, citing R v Olbrich (1999) 199 CLR 270, R v Storey [1998] 1 VR 359 at p 369
In brief summary, Mr Garling told me in sworn evidence that at around 8 pm on 28 September 2010 he was riding an electric “scooter” on Hanson Road at Wingfield, when he pulled into a petrol station. He crossed the road looking for a public telephone. He was approached by two Aboriginal people, one male, the other female. The female produced a knife and demanded cigarettes. He did not have any, nor did he have any money. They told him to “rob the garage, you fucking faggot or we’ll fucking kill you”. He went back across the road, into the petrol station and told the operator it was a “hold-up”. He operator did not hand over money so he went around the counter, grabbed some money out of the till and went outside. The attendant followed him and tripped him over just as the police arrived, having been summoned by an alarm.
As to why he did not ask for help, or ask the operator to contact the police, Mr Garling said he had post-traumatic stress disorder, and did not respond well to stress. He said he “just freaked out”.[7] He said he did not report the presence of the two aboriginal people to the police when they arrived because
They were too busy calling me a faggot and making judgment in that regard.[8]
[7] T 9
[8] ibid
There are a number of aspects of Mr Garling’s narrative which strike me as inherently unlikely:
·it is inconsistent with the statements of the police officers who arrested him, which he did not dispute, that he attempted to escape from the station attendant and violently resisted arrest;
·his statement to the police in the record of interview[9] that the attendant invited him to “come and grab (the money from the till)” and that he then “casually” walked outside is in stark contrast to the description of events by the operator, in particular that Mr Garling had his hands in his pockets as if he might be holding a weapon;
·his failure to acknowledge that the attendant told him :
You’re better off disappearing. Just get a taxi and go away.[10]
·the attendant’s observation in his statement that Mr Garling was “very spaced out on drugs”, that he was “very quiet” and that he appeared “scared of me”;
·his reason for going over the road, namely that he looked inside the petrol station and did not see a telephone, seems contrived and artificial;
·his reason for not telling the police at the scene about the two aboriginal people is, in my view, preposterous;
·he told the police that he walked to the area, rather than riding the scooter. He dismissed this inconsistency in cross-examination, saying that he uses “walking” generically, whether he rode a “scooter, bike or whatever”.[11]
[9] p 6-7
[10] Statement, p 3
[11] T 11
Mr Garling displayed a rather unusual attitude when giving evidence. He was somewhat melodramatic. I have no confidence that what he was telling me was the truth. Ms Davis tendered the report of Dr Craig Raeside, forensic psychiatrist, dated 23 November 2010.[12] Dr Raeside does not refer to any thought disorder suffered by Mr Garling. I am unable to find whether the story of the two aboriginal people is a delusion or a fabrication. But I am not satisfied, to the extent of the balance of probabilities, that it is true.
[12] Ex P1
I therefore find that Mr Garling has failed to satisfy the onus of proving this mitigatory factor in relation to sentence. I will ignore it for the purpose of sentencing.