R v Lau; R v Lutze
[2019] ACTSC 353
•12 December 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Lau; R v Lutze |
Citation: | [2019] ACTSC 353 |
Hearing Dates: | 10-11 October 2019 |
DecisionDate: | 12 December 2019 |
Before: | Burns J |
Decision: | See [50]-[52] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – trial by judge alone – verdict – joint commission aggravated burglary – joint commission aggravated robbery – alternative charge of joint commission theft – co‑offenders – whether accused entered into an agreement to commit offences – whether there was use of or threatened use of force |
Legislation Cited: | Criminal Code 2002 (ACT) ss 45A, 308, 309, 310, 312 Supreme Court Act 1933 (ACT) s 68B |
Parties: | The Queen (Crown) William Lau (Accused) The Queen (Crown) Simon Lutze (Accused) |
Representation: | Counsel M Lucero (Crown) R Davies (Accused) J Sabharwal (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) Sharman Robertson (Accused) | |
File Numbers: | SCC 91 of 2019; SCC 92 of 2019; |
BURNS J
The accused, William Lau and Simon Lutze, have been charged with one count of joint commission aggravated burglary, contrary to ss 312 and 45A of the Criminal Code 2002 (ACT) (‘the Criminal Code’), and one count of joint commission aggravated robbery, contrary to ss 310 and 45A of the Criminal Code. In the alternative to the charge of joint commission aggravated robbery, the accused are charged with one count of joint commission theft, contrary to ss 308 and 45A of the Criminal Code. To these charges, the accused have pleaded not guilty.
The accused have both elected to be tried by a judge alone, pursuant to s 68B of the Supreme Court Act 1933 (ACT). The trial came before me on 10 October 2019.
In summary, the Crown alleged that at about 1:30 pm on 15 December 2018, the accused entered the residence of Robert Howden in Dunlop, ACT (the Dunlop residence) and took an amplifier. Mr Howden and his then girlfriend, Hannah Keys, were in the house at the time. When Mr Howden confronted the accused, Mr Lutze held a screwdriver to his stomach. The accused left the residence with the amplifier. Police located the accused, with the amplifier, in Dunlop a short time later.
Evidence of Robert Howden
Robert Howden, who lived at the Dunlop residence, gave evidence that on 15 December 2018 he was in bed with his then girlfriend, Hannah Keys. At about 1:30 pm, Mr Howden heard the electric garage roller door open and went to investigate. Mr Howden said the garage doors, which included the roller door, the internal garage door (leading into the house) and the external garage door (leading outside), were “wide open”. Mr Howden saw two men standing in the front room of the house, and he asked them if they had taken anything. The first man replied, “no, nothing”.
Mr Howden described the first man as Caucasian with short hair and stubble on his face. I am satisfied that this was the accused Simon Lutze. He described the second man as taller with olive skin and short hair, which was balding on the top. I am satisfied that this was the accused William Lau. He recalled that both men were wearing orange fluorescent shirts. Mr Howden noticed that the second man was holding a black backpack, which had an amplifier inside. Mr Howden recognised the brand “Xplod”, located on the top of the amplifier, and he believed this was his own amplifier that he stored in the garage. Mr Howden asked for his amplifier back, but the two men refused. Mr Howden then attempted to take the backpack by grabbing the top rubber handle. There was a scuffle over the backpack, which led them towards the front door and then outside, near the car parked in the driveway (the Dodge). Mr Howden noticed that the first man was holding a yellow and black handled screwdriver in his left hand.
Mr Howden signalled to a woman, who was driving down the street, to call the Police. He did this by mouthing the words and waving. The woman stopped her car in front of the Dunlop residence and asked if she should call the Police. The first man held the screwdriver to Mr Howden’s left side area and said to him, “do you really want to do this?” Mr Howden shook his head at the woman. The first man waved and told the woman not to worry about it. The woman drove into the driveway of an adjacent house. The second man began counting “three, two, one” and tried to take the backpack from Mr Howden’s grip. Mr Howden dropped the backpack and let the men have it. The men then left the area with the backpack.
Mr Howden went inside to tell Ms Keys about what happened. Mr Howden and Ms Keys decided to get inside the car, the Dodge, to follow the men in order to take a photo of them. They turned around after less than a minute as he decided to call the Police. Police arrived at the residence shortly after.
In cross examination, Mr Howden specified that his father, who was out of town at the time, owned the house. While Mr Howden did not recall the smell of alcohol on the men, he did recall them giggling when they first saw him. He did not think it was possible that the amplifier was in the Nissan Pulsar, as he was certain he had removed all his valuables from the car because he no longer used it. The car was parked on the street. Mr Howden agreed that the garage roller door could only be opened from a button located inside the garage. He said the internal garage door was unlocked but was unsure whether the external garage door was locked. Mr Howden said the front door of the house was locked.
I accept the evidence given by Mr Howden. An important aspect of his evidence was supported by the evidence of Ms Faye Twadeell (below). His demeanour when seen by Ms Hannah Keys (below) immediately after the incident was consistent with his evidence. His evidence that he heard the garage door open and told Ms Keys that he heard it open just before he confronted the accused was supported by Ms Keys.
Evidence of Hannah Keys
Hannah Keys gave evidence that she was having a nap with Mr Howden, her former boyfriend, at the Dunlop residence on 15 December 2018. At about 1:30 pm, Mr Howden told her that he heard the garage door opening and thought someone was in the house. He put on a dressing gown and walked out of the bedroom. Ms Keys remained in the bedroom and heard Mr Howden talk to someone but did not hear anything else. He returned to the bedroom 10 minutes later and was “very white and shaking” with his dressing gown “half open”. He told her that two men, wearing fluorescent shirts, “were breaking in and taking things”. He also told her that he approached them and was threatened with a screwdriver. They got into the car to find the men and take a photo of them, but they turned around after two minutes. Ms Keys told Mr Howden to call the Police.
Ms Keys gave evidence that the Nissan Pulsar, parked outside the house, was “open” and “completely wrecked”. She also noticed the wires were exposed underneath the steering-wheel and items were “scrambled” along the car.
In cross-examination, Ms Keys explained that Mr Howden told her that the men took his amplifier, which he purchased for the Nissan Pulsar. The car had not been used for some time. Ms Keys agreed that she asked Mr Howden if the car was locked, and he could not remember if he had left it unlocked.
In re-examination, Ms Keys said that while she believed the amplifier was in the Nissan Pulsar, it could have been in the garage.
I found Ms Keys to be an honest witness. Where her evidence deviated from that of Mr Howden over the place where the amplifier was located on 15 December 2018, I prefer the evidence of Mr Howden because of his greater familiarity with the amplifier and the fact that he was the person who had handled it prior to that date.
Evidence of Faye Twadeell
Faye Twadeell gave evidence that on 15 December 2018 she was working as a disability carer in a residential home across the road from the Dunlop residence. At about 1:30 pm, she was driving to work when she saw three people standing in the driveway outside the Dunlop residence. She thought there was “some sort of altercation” going on. Ms Twadeell saw one man holding another man and believed the third person was a woman. The man holding the other man yelled out “call the Police”. She parked her car and walked over to the Dunlop residence to ask if the man would like her to call the Police. The man, who was holding the other man, said “no, it’s okay.” Ms Twadeell then walked across the road to her workplace and looked through the window from inside her workplace but did not see anything else. She presumed someone else had called the Police. The witness did not recognise the three people and could not remember what they were wearing. She agreed that she did not recall the events clearly.
In cross examination, the witness agreed she clearly heard the man calling out to her.
Evidence of First Constable Nicholas Bannan
First Constable Nicholas Bannan attended Dunlop, in response to a callout, with Acting Sergeant Adrian Janssen on 15 December 2018. They were looking for two males wearing hi-vis tops, one being Caucasian and one being a male with olive skin. They located two males of this description in Dunlop, but the men were not wearing shirts. The witness approached the men, who were speaking to another man near a fence. He spoke with the Caucasian male who was holding a black backpack. This man identified himself as Simon Lutze and said he was in Dunlop to visit a friend. The witness described Mr Lutze as “very calm and relaxed”. Acting Sergeant Janssen spoke with the other man, who the witness came to know was William Lau.
Acting Sergeant Janssen told the accused that Police were investigating a robbery that had occurred in Dunlop, and the men matched the description of the people they were looking for. Acting Sergeant Janssen asked Mr Lutze if they could search the backpack, and whether they would find an amplifier inside. Mr Lutze replied, words to the effect of, “Oh yeah. Yep, you will.” The witness saw the amplifier inside the backpack. He handcuffed and cautioned Mr Lutze. Acting Sergeant Janssen handcuffed and cautioned Mr Lau.
The witness later attended the Dunlop residence where he spoke with Mr Howden and Ms Keys. The witness also doorknocked some houses in the area, and took photos of the Nissan Pulsar. At Belconnen Police Station, the witness took photos of the backpack’s contents, which included the amplifier, two orange hi-vis shirts, some tools and a yellow handled screwdriver that had been sharpened into a spike.
In cross-examination, the witness said he did not take any photos inside the house, and at the time was not aware that the accused had allegedly been inside the house. It was put to him that the amplifier was taken from the silver car parked outside the house, but he was not aware of that.
Evidence of Acting Sergeant Adrien Janssen
On 15 December 2018, at about 1:45 pm, Acting Sergeant Adrien Janssen and First Constable Bannan were patrolling Dunlop in response to a callout. They were looking for two males, with a backpack, wearing fluorescent shirts. The first male was described as Caucasian, approximately six foot one, and wearing black pants. The second male was described as a little bit younger and of olive complexion. Within 10 minutes of receiving the callout, they saw two men, matching these descriptions in Dunlop. He said the men were wearing black shorts and no shirts. The witness identified the men as William Lau and Simon Lutze.
The witness conducted a stop, search and detain of both men and their belongings. In the backpack, he located a black Sony Xplod car amplifier and two fluorescent t-shirts. He then cautioned the men and placed them under arrest. The witness described the men as “polite and co-operative” but said they appeared to be under the influence of something. He described their eyes as bloodshot and their speech as “very slow”. When the transport vehicle arrived, they were transported to the ACT Watch House. The witness then attended the Dunlop residence, and arranged for forensics to attend that location.
In cross-examination, the witness agreed that the men were “glassy eyed”, but he could not smell anything on their breath.
Evidence of First Constable Thomas McDonald
First Constable Thomas McDonald gave evidence that on 15 December 2018, at about 1:45 pm, he was called to assist other Police patrollers in Dunlop. He then attended the Dunlop residence, where he spoke with Mr Howden and Ms Keys. He said that Mr Howden told him that he confronted two males in his house, that they tried to take his belongings and they threatened him with a screwdriver. The witness said Ms Keys told him that she was in the house and she heard a commotion but did not see anything. At Belconnen Police Station, he obtained a statement from Mr Howden. Mr Howden identified the amplifier, found in the backpack, as his amplifier and it was returned to him.
First Constable McDonald attended the ACT Watch House to offer both accused an interview. However, neither of the accused were interviewed. Mr Lutze declined to be interviewed and Mr Lau was “groggy” and “in no state for an interview to proceed”. In cross-examination, he agreed that Mr Lau’s speech was “slurred and difficult to understand”. The witness could not recall smelling any alcohol on his breath. He also agreed that no forensic examination was carried out on the house.
Evidence of William Lau
William Lau, the accused, gave evidence that on 15 December 2018 he was visiting a friend in Dunlop with Simon Lutze. Mr Lau was going to help this friend fix a car and was talking to him when he was arrested. Mr Lau’s memory of the day was not clear due to alcohol consumption.
Mr Lau gave evidence that he and Mr Lutze were drunk when they sat inside an open car, parked outside the Dunlop residence. He took the amplifier, which was in the car, and put it inside the black backpack that belonged to Mr Lutze. He did not have any knowledge of the tools that were found inside the backpack. He gave evidence that they accidentally entered the house through the front door, due to their intoxication, and proceeded two or three metres inside. He said he did not take anything from the house, and he had no intention of doing so. Mr Lau indicated that five to 10 seconds later, the resident of the house approached him and asked what he was doing in the house. He did not speak to Mr Howden, but both Mr Lau and Mr Lutze laughed and walked outside. His evidence was that the resident punched him in the back of the head and did not ask for the amplifier back or attempt to take the backpack. Mr Lau did not see Mr Lutze threaten the resident with a screwdriver nor did he see anyone else in the street. He said they walked away from the Dunlop residence to their friend’s house.
In cross-examination, Mr Lau said he was “very affected” by alcohol and he had taken the drug ice the night before the incident, which he agreed would affect his memory. Mr Lau could not remember where he found the amplifier in the car, but recalled the car was messy. Mr Lau did not know whether Mr Lutze saw him put the amplifier in the backpack and was unsure if they discussed it. He did not think it was possible that he took the amplifier from the garage. The witness said he intended to permanently deprive Mr Howden of the amplifier, and “didn’t really care” that it was dishonest to take it.
Mr Lau entered the residence first through the front door and denied entering the house through the garage. He was unsure whether the garage roller door was open at the time. Mr Lau agreed he did not look to see if Mr Lutze had a screwdriver in his hand. Mr Lau estimated that it was about a 10 to 20 minute walk from the Dunlop residence to his friend’s house, and Mr Lutze carried the backpack. Mr Lau explained that it was a hot day, so they took off their hi-vis orange shirts.
The accused Simon Lutze did not give any evidence, or call any evidence.
Principles to be applied
The Crown holds the onus of proving each of the accused guilty of the offence with which they have been charged to the standard of beyond reasonable doubt. The accused have no obligation to prove anything in this trial; in particular, they are not obliged to prove themselves innocent of the charges. They are presumed to be innocent until such time as the evidence establishes their guilt to the requisite standard.
The accused William Lau gave evidence despite not being obliged to do so. His evidence is to be assessed in the same way as the evidence of any other witness in the trial. His evidence is not to be discounted simply because he is the accused. By giving evidence he has not taken upon himself any onus. The Crown always retains the onus of proving him guilty.
The accused Simon Lutze did not give evidence. He was not obliged to do so. The accused’s decision not to give evidence cannot be used against him in any way in determining his guilt or innocence. It cannot amount to an admission of guilt. I am not to draw any inference or reach any conclusion based on the fact that the accused decided not to give (or call) any evidence. I cannot use that fact to fill any gap which may exist in the Crown case. It cannot be used in any way as strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt.
To the extent that I am asked to draw inferences from the direct evidence, I am only to draw an inference against an accused if that inference is the only reasonable or rational inference available on the evidence.
The case against each accused is to be considered separately. Each charge against each accused must also be considered separately. The evidence given by William Lau is available to be used for and against him, and also for and against the co-accused Simon Lutze. The charges against the accused are in the following form:
Count 1: That on 15 December 2018 at Canberra in the Australian Capital Territory Simon Lutze and William Lau entered or remained in a building, namely [redacted for legal reasons] as trespassers with intent to commit theft of any property in the building and at the time were in company with each other.
Count 2: That on 15 December 2018 at Canberra Simon Lutze and William Lau committed robbery in company with each other and at the time had an offensive weapon with them.
Count 3: In the alternative to Count 2, that on 15 December 2018 at Canberra Simon Lutze and William Lau dishonestly appropriated property namely an XPlode Amplifier belonging to Robert Howden, with the intention of permanently depriving him of the property.
Each charge is expressed to have been committed by virtue of s 45A of the Criminal Code which provides:
45AJoint commission
(1) A person is taken to have committed an offence if—
(a) the person and at least 1 other person enter into an agreement to commit an offence; and
(b) either—
(i) an offence is committed in accordance with the agreement; or
(ii) an offence is committed in the course of carrying out the agreement.
(2) For subsection (1) (b) (i), an offence is committed in accordance with an agreement if—
(a) the conduct of 1 or more parties in accordance with the agreement makes up the physical elements consisting of conduct of an offence (the joint offence) of the same type as the offence agreed to; and
(b) to the extent that a physical element of the joint offence consists of a result of conduct—the result arises from the conduct engaged in; and
(c) to the extent that a physical element of the joint offence consists of a circumstance—the conduct engaged in, or a result of the conduct engaged in, happens in the circumstance.
(3) For subsection (1) (b) (ii), an offence is committed in the course of carrying out an agreement if a person is reckless about the commission of an offence (the joint offence) that another person in fact commits in the course of carrying out the agreement.
(4) A person commits an offence because of this section only if the person and at least 1 other party to the agreement intend that an offence will be committed under the agreement.
(5) An agreement—
(a) may consist of a non-verbal understanding; and
(b) may be entered into before, or at the same time as, the conduct making up any of the physical elements of the joint offence was engaged in.
(6) A person must not be found guilty of an offence because of this section if, before the conduct making up any of the physical elements of the joint offence concerned was engaged in, the person—
(a) ended the person's involvement; and
(b) took all reasonable steps to prevent the conduct from being engaged in.
(7) A person may be found guilty of an offence because of this section even if—
(a) another party to the agreement is not prosecuted or found guilty; or
(b) the person was not present when any of the conduct making up the physical elements of the joint offence was engaged in.
(8) Any special liability provisions that apply to the joint offence apply also for the purposes of deciding whether a person commits the offence because of the operation of this section.
(9) To remove any doubt, if a person is taken to have committed an offence because of this section, the offence is punishable as if, apart from the operation of this section, the person had committed the offence.
The elements of the offence of aggravated burglary (Count 1) contrary to s 312 of the Criminal Code are:
(a) that on 15 December 2018 the accused entered or remained in a building; and
(b) that he did as a trespasser; and
(c) that he did so with the intention of committing theft of any property in the building; and
(d) At the time he was in company with his co-offender.
For the purpose of element (c) above, theft means dishonest appropriation of property belonging to someone else with the intention of permanently depriving the other person of the property: s 308 Criminal Code. In the particular circumstances of this case it is unnecessary to go into greater detail concerning the elements of the crime of theft.
The elements of the offence of aggravated robbery (Count 2) contrary to s 310 of the Criminal Code are:
(a) that on 15 December 2018, the accused committed robbery in company with 1 or more people; or
(b) that on 15 December 2018, the accused committed robbery and, at the time of the robbery, had an offensive weapon with him.
I note that for the purposes of Count 2, an offensive weapon is anything that a person has with the intention of using, or threatening to use, to cause injury to or to incapacitate someone else.
The offence of robbery, contrary to s 309 of the Criminal Code, is committed where:
(a) the person commits theft; and
(b) when committing the theft, or immediately before or immediately after committing the theft, the person:
(i) uses force on someone else; or
(ii) threatens to use force then and there on someone else;
with the intent to commit theft or to escape from the scene.
It is unnecessary in the context of the present case to refer to the elements of the offence of theft in greater detail than set out at [38] above.
Consideration
There can be no doubt that the two males who confronted Mr Howden in his father’s house on 15 December 2018 were the accused. I am satisfied beyond reasonable doubt that the male described by Mr Howden as Caucasian was the accused Simon Lutze. The other male, described as having olive skin, was the accused William Lau.
There were significant aspects of the evidence of the accused William Lau that I do not accept. I do not accept that the amplifier, which was later found in the backpack in the possession of the accused Simon Lutze had been located in the Nissan Pulsar prior to it being taken by the accused on 15 December 2018. I am satisfied beyond reasonable doubt that it was located in the garage of the Howden residence. On the version of events given by the accused William Lau, neither he nor Simon Lutze entered the garage of the residence. This is not credible because the amplifier was taken from the garage, and very shortly before Mr Howden located the accused in the residence, he heard the garage door opening. It is simply not credible that some third party entered the residence before the accused, entered the garage, took the amplifier, opened the garage door and left, leaving the amplifier in the Nissan Pulsar for some unknown reason, before the accused arrived on the scene. In any event, the timeline of such a scenario does not fit with the evidence of Mr Howden, who went to investigate as soon as he heard the garage door open. The evidence given by the accused that he and Simon Lutze sat in the Nissan Pulsar for no particular reason is also not credible. The suggestion that he and Simon Lutze accidentally entered the residence is simply incredible. I also reject the evidence of William Lau that Mr Howden found them in the entry foyer, that they immediately left the premises and that Mr Howden punched him to the back of the head as he left.
The accused William Lau gave evidence that he took the amplifier, and placed it in the backpack belonging to Simon Lutze. Although I do not accept his evidence that the amplifier was taken from the Nissan Pulsar, I do accept his admission that he was the person who took the amplifier and placed it in the backpack.
I am satisfied beyond a reasonable doubt that both accused were affected by some form of intoxicating substance on 15 December 2018.
I am satisfied beyond reasonable doubt that:
(a) On 15 December 2018 both accused entered the residence. It is not possible to say whether they entered by the front door or by the rear garage door. I am satisfied that they deliberately entered the premises of the owner or occupier. I am satisfied that they entered as trespassers;
(b) Once inside the premises the accused William Lau took the amplifier belonging to Mr Howden from the garage and placed it in the backpack belonging to Simon Lutze. One of the accused then opened the garage door, which could only be opened from the inside;
(c) The accused were shortly after seen by Mr Howden in the front room of the house, and not the entry foyer as stated by William Lau. At that time the accused William Lau was holding the backpack containing the amplifier belonging to Mr Howden;
(d) Mr Howden took hold of the backpack to try to retrieve his property, after having unsuccessfully requested the accused to return it. The struggle over the backpack moved to the front door, at which time Mr Howden noticed that Simon Lutze was holding a screwdriver;
(e) The struggle for the backpack moved out the front door of the residence, where Mr Howden attempted to have a passer-by call Police. Mr Howden said he “mouthed” the words “call the Police”, but Ms Twadeell said that she clearly heard a male say “call the Police”. I prefer the evidence of Ms Twadeell because at that point she was not subject to the same stress and fear to which Mr Howden was subject;
(f) As Ms Twadeell walked over to where the struggle over the backpack was taking place, Simon Lutze approached Mr Howden, held the screwdriver to Mr Howden’s side, and said to him, “Do you really want to do this?” This was clearly meant as a threat to Mr Howden, and in particular a threat that he would be stabbed with the screwdriver;
(g) In an effort to avoid escalating the situation, Mr Howden told Ms Twadeell that he did not want the Police called. Mr Howden then released his grip on the backpack, at which time the accused left the area;
(h) Shortly thereafter, Police located the accused in possession of the backpack containing the amplifier. The accused Simon Lutze was holding the backpack, and in response to a question from Acting Sergeant Janssen he gave a response indicating his knowledge of the presence of the amplifier in the backpack. In addition, the backpack was found to contain a yellow handled screwdriver that had been sharpened into a spike. The description of this screwdriver varies slightly from that given by Mr Howden. He described it as a yellow and black handled screwdriver, whereas the screwdriver located by the Police simply had a yellow handle. I have no doubt that any error on the part of Mr Howden in that regard was due to the brief opportunity he had to observe the screwdriver, the fact that the handle was being held by the accused and was to that extent obscured from Mr Howden’s view, and the stress that he was under at that time. Indeed, the fact that he stated that the accused brandished a screwdriver supports his credibility because on the version of events given by the accused William Lau, Mr Howden could not have known that the accused had a screwdriver in his possession.
In order to succeed on the principal charges, Counts 1 and 2, the Crown must prove that the offences were committed by virtue of s 45A of the Criminal Code. In essence, they must establish that the accused entered into an agreement to commit an offence and either an offence was committed in accordance with the agreement or an offence was committed in the course of carrying out the agreement. The following evidence satisfies me beyond reasonable doubt that the accused were acting in accordance with a joint agreement to enter the Howden residence for the purpose of stealing any property that they could find at the time they entered the residence on 15 December 2018:
(a) they both attended the property together;
(b) they entered the property together;
(c) they were both present when Mr Howden requested that they return his property, and Mr Lutze responded “no”;
(d) they were both present when the struggle over the backpack containing the property took place;
(e) neither accused asked Mr Howden what he was talking about when he asked for his property to be returned, or asked why he was struggling over the backpack;
(f) the accused William Lau was initially in possession of the backpack, but when Police located the accused, Simon Lutze was in possession of it and indicated his knowledge of the presence of the amplifier in the backpack.
In addition, when Simon Lutze brandished the screwdriver in the Howden residence, and later outside it, the accused William Lau did not demur or ask what Simon Lutze was doing. Outside the house, Simon Lutze while holding the screwdriver close to the body of Mr Howden, said “Do you really want to do this?” Not only did William Lau not question what Simon Lutze meant by that statement, he began counting down from three. This was clearly threatening behaviour intended to support that of Simon Lutze. In all of the circumstances, it is impossible to believe that the accused William Lau was unaware of the fact that Simon Lutze was in possession of the screwdriver and threatening Mr Howden with it.
I am satisfied beyond reasonable doubt that the two accused intentionally entered the Howden residence as trespassers on 15 December 2018. They did so with the joint agreement or understanding that they would steal any property that they desired within the premises. That property was not their property and they knew it. Their conduct after being accosted by Mr Howden satisfies me that they intended to permanently deprive the true owner of the property. I am satisfied beyond reasonable doubt that the accused are guilty of Count 1.
I am also satisfied beyond reasonable doubt that at the time the accused were committing the theft as part of their agreement, William Lau used force on Mr Howden by attempting to pull from his grasp the backpack containing his amplifier. I am satisfied that Simon Lutze threatened to use force on Mr Howden by brandishing the screwdriver both inside and outside the house. It is not necessary to determine whether this conduct occurred in the course of committing the theft, or immediately after, because it must fall into one of these categories. The accused Simon Lutze also threatened to use force on Mr Howden outside the residence when he said, “Do you really want to do this?” while brandishing the screwdriver in a threatening manner. The threat was clearly one to cause injury to Mr Howden by stabbing him with the screwdriver. The accused William Lau then supported that threat by beginning to count down from three, knowing that Simon Lutze was threatening Mr Howden with the screwdriver. I am satisfied beyond any doubt that the two accused were acting as part of an agreement to use force to steal the amplifier, and to threaten to use force on Mr Howden by threatening him with the screwdriver in order to affect the theft. I am therefore satisfied that there was an agreement between the accused to commit the robbery both in company and while armed with an offensive weapon. The screwdriver was in the possession of the accused with the intention of using it to threaten harm to Mr Howden, making it an offensive weapon. I therefore find that the accused are guilty of Count 2.
By reason of finding the accused guilty of Counts 1 (Lutze: CC2019/3427; Lau: CC2019/3423) and 2 (Lutze: CC2019/3876; Lau: CC2019/3880), I do not need to consider or return a verdict on the alternative charge, Count 3 (Lutze: CC2018/14779; Lau: CC2018/14783).
| I certify that the preceding fifty-two [52] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: |
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