R v Le Clair
[2016] ACTSC 79
•27 April 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Le Clair |
Citation: | [2016] ACTSC 79 |
Hearing Dates: | 9 February, 10 February 2016 |
DecisionDate: | 27 April 2016 |
Before: | Burns J |
Decision: | See [25] –[26] |
Catchwords: | CRIMINAL LAW – Particular Offences – offences against the person – unlawful confinement – co-offenders – disputed facts hearing – where one offender disputed the extent of his involvement in the offence. |
Parties: | The Queen (Crown) Michael Aaron Le Clair (Offender) |
Representation: | Counsel Mr M Fernandez (Crown) Mr A Doig (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 170 of 2014 |
BURNS J:
The offender, Michael Aaron Le Clair, has entered pleas of guilty to one charge of unlawfully confining Toby Leatham (the complainant) on or about 28 December 2013, and one charge of trafficking in a trafficable quantity of cannabis between 28 December 2013 and 24 January 2014. A co-offender, who I will refer to as KC, has also entered a plea of guilty to the charge of unlawful confinement, based upon an Agreed Statement of Facts. The offender has disputed the facts alleged by the Crown with respect to the charge of unlawful confinement, and a disputed facts hearing was conducted on 9 and 10 February 2016. The offender and KC are due to be sentenced on 29 April 2016. These are my findings with respect to the facts pertaining to the offence of unlawful confinement committed by the offender.
Evidence of the complainant
The complainant gave evidence that he entered into an arrangement with the offender and KC about three weeks prior to 28 December 2013 to purchase on behalf of the offenders a large quantity of cannabis from a drug dealer known to him only as “Big G”. In his evidence in chief, the complainant described the agreement as one to purchase “7 to 10 pounds” of cannabis, or 10 pounds of cannabis. The agreed purchase price was $26,000. Later, in cross-examination, he was taken to his police statement made on 31 December 2013, and agreed that the arrangement was for the purchase of 7 pounds of cannabis. To my mind, nothing turns upon this discrepancy in the oral evidence of the complainant.
The complainant said that on 28 December 2013 he was at his apartment in Franklin in the Australian Capital Territory at about 11:20 pm when the offenders arrived. They drove to the premises in a Ford Territory vehicle. The apartment was on the first floor of the building. The complainant shared the apartment with Ty Pruckner, who was home that evening. Also present were Samuel Rooney and Shariah Kent.
The offenders brought with them a shopping bag containing money. The complainant said that he saw the money in the bag, but he did not count it. He went into another room in the apartment, telephoned Big G and arranged to meet Big G around the corner from the apartment to purchase the cannabis.
The complainant testified that the offender gave him the bag of money and he went around the corner to meet Big G. The offender and KC remained outside the apartment building. In his evidence in chief, the complainant said that Big G was driving a Mitsubishi Lancer, but in cross-examination he agreed that he had previously described it as a Mitsubishi Magna. Again, nothing turns upon this discrepancy. The complainant approached the car, opened the door and sat down on the front passenger seat. He told Big G that he had the money, and Big G told him to put the bag containing the money on the floor of the car, and that the cannabis was in the boot. The complainant said that Big G “popped” the boot, and the complainant got out of the car to retrieve the cannabis. As soon as he was out of the car, Big G drove away with the money. The complainant said that he did not know whether there was, in fact, any cannabis in the car. The complainant then telephoned KC and told him what had happened. He said that KC seemed “pretty upset”. The complainant told KC that he was returning to the flat.
The complainant returned to the flat and found the two offenders waiting out the front. He said that both offenders were very angry and that KC swung a punch at him before both offenders started trying to fight him. The complainant called for help, before being taken hold of by the offenders. He said that the offender produced a knife, described as similar to a Stanley knife, and held the knife to his throat. He said that after he called for help Ty Pruckner and Samuel Rooney came out of the apartment. Mr Pruckner made it to the ground floor door of the complex before the offender, who was at that time holding the knife to the throat of the complainant, called out to him not to come outside. The complainant said that Mr Rooney was, he believed, still at the top of the stairs.
The complainant said that the offender walked him across to the Ford Territory, still holding the knife to his throat. KC walked beside them. The complainant said that he was placed in the back seat and told to “buckle up”. The offender sat next to him and KC drove the vehicle. The complainant testified that as they were driving the offender made numerous threats to him including threats to tattoo “dog” on his face, to break all his bones and to cut off his fingers. The complainant said that there was a dog in the boot of the vehicle, which he described as a “pitbull”, with its head resting on the back of the seat next to the complainant. He said that they drove around for approximately 30 to 45 minutes before they stopped in the suburb of Theodore. The co-offender then swapped places with the offender, and the offender got out of the vehicle and made a telephone call. A few minutes later another car pulled up behind the Ford Territory. The complainant testified that he managed to get out of the car and ran towards a group of people up the street. He said that he was screaming for help. He ran down a driveway and jumped over a number of fences before returning to the road. He said that the dog which had previously been in the Ford Territory was chasing him. He testified that the offender eventually caught up to him, and held him while someone else hit him to the chest with a baseball bat.
The complainant testified that he was then dragged back to the Ford Territory by the offender, and was again placed in the back seat. The offender again sat in the back seat next to the complainant, and the co-offender drove the vehicle. The vehicle was driven for approximately an hour or an hour and a half before stopping in a remote bushland area in New South Wales. The complainant said that he was then assaulted by the offenders, before they drove off leaving him at the scene. He walked for a number of hours before he found a house, from which the occupants of that house telephoned police and an ambulance.
In cross-examination the complainant denied dealing in cannabis, but said that he would sell small amounts to friends if they ran out of their own. He obtained his own cannabis from Big G, but had never been involved in such a significant transaction as was arranged on 28 December 2013. He said that the largest transaction that he had previously conducted with Big G was a purchase of approximately 7 grams of cannabis for $80. The complainant denied having taken a Stanley knife, or similar knife, with him to meet Big G. He also denied having produced the knife when he returned to the apartment complex and was confronted by the offenders. The complainant agreed that he told police that he patted the dog and scratched its chin when he got into the Ford Territory, and that the dog did not try to bite him when the dog chased him at Theodore, but appeared to think that it was a game. The complainant agreed that he had told police that he was “pretty sure” that it was the offender who hit him with a baseball bat, which was different to the evidence that he gave in chief. He said that he really did not know who hit him with the baseball bat. The complainant denied the proposition that the car stopped on a second occasion at the Theodore shops. He also denied the suggestion that Mr Rooney and Mr Pruckner made threats to the offender at the apartment complex in Franklin. He also denied suggestions that the offender had not threatened him in the car, and had not assaulted him in any way.
Evidence of Samuel Rooney
Samuel Rooney gave evidence that on the evening of 28 December 2013 he was at the complainant’s apartment in Franklin. Ty Pruckner, Shariah Kent and the complainant were also present. They were drinking beer and playing electronic games. During the evening, two males arrived. The first was tall and thin and of African appearance. I am satisfied that this is KC. The second male was Caucasian, “chubby” and with very short hair. I am satisfied that this was the offender. After a conversation between the offenders, the complainant and Mr Pruckner, the complainant left the apartment with the offenders. Sometime later, Mr Rooney heard the complainant calling for help. He left the apartment and went downstairs and saw the offender holding a knife to the complainant’s throat. Mr Rooney said that KC was screaming about how he would kill the complainant if they did not get their money back. At that time Mr Rooney was standing at the external door to the apartment complex, and Mr Pruckner was standing behind him. He said that the complainant told him to stay back, and he and Mr Pruckner then went back upstairs to the apartment.
In cross-examination, Mr Rooney denied being in possession of a knife, or a metal pole, or some other weapon when he went downstairs after hearing the complainant calling for help. He agreed that in a statement which he made to police on 10 January 2014 he had said that he went out onto the balcony of the apartment and saw the complainant with two men, but did not say anything about going downstairs. Mr Rooney said that he may have momentarily looked out from the balcony after hearing the complainant call for help, but he definitely then went downstairs.
Listening device evidence
The Crown also adduced evidence of conversations between the offender and a female friend of his recorded by a listening device on 12 January 2014. In the course of that conversation, the female referred to what she had heard about an incident involving the offender and a person named Toby. The offender then told her “Toby stole a lot of money from me”. Shortly after making this statement, the offender said:
Oh well he stole money from me and it didn’t end well for him. That’s the short version of it. Then my mate – because it wasn’t my problem. I gave the money to my mate and my mate organised it. Toby’s mates stole the money or some shit, which Toby was obviously involved with and I – and then Toby tried to pretend like it was all (indistinct) who took the money.
...
I said – that’s what I said to him, I said doesn’t matter you’re coming with me. And then he screamed and his friends noticed (indistinct) to his throat and I said “You take one step forward and I’ll (indistinct) this to all of youse.” And they all shit bricks. They were like “Whoa, relax relax.” I said, “He’s coming with us and that’s that”. And that – and I said to Toby, and I said to Toby
...
“You try and escape, I will hurt you. You do anything stupid I will fucking hurt you.” And he escaped out the car and I had – and I didn’t hurt him and my friends caught him and hurt him. That’s the reason (indistinct) because he fucking ran. I told him, “Don’t do anything stupid. If you think you’re going to steal money from me and get away with it you’re a fucking idiot.”
Later in the conversation, the offender told the female that he had only hit the complainant once, before saying “I didn’t beat on him once because if I hit him I would have broken every fucking bone in his body and I would have cut his fingers off.”
Evidence of eyewitnesses in Theodore
A number of statements made by people who observed some of the events at Theodore were tendered by consent. Jake Brown made a statement on 7 May 2014 in which he told police that he went to a house in Theodore on a date he could not recollect in December 2013 with a number of friends. They arrived at about 10 pm or 11 pm. The vehicle they were travelling in stopped on the side of the road; Mr Brown was in the passenger seat. He saw a car parked on the opposite side of the road, facing towards them. He could not remember what make or model this vehicle was, but it was a four-wheel-drive. About five minutes later he saw another car pull up behind the four-wheel-drive. A short time after the second vehicle arrived he saw a male run from the cars parked on the side of the road. He saw this male run past the car he was seated in and heard him yell “They’re gonna kill me, I need help”. He also said something about being kidnapped. Mr Brown saw two males near the two vehicles parked on the opposite side of the road. One of the males was Caucasian and the other male was dark skinned and carrying a baseball bat. The Caucasian male let a dog out of the four-wheel-drive and off a leash. He saw these two males run after the first male who had run from the scene. About five to seven minutes later he saw the three males and the dog walking back up the street. They appeared to be walking together normally. Both vehicles then left the street.
Antoni Milanja made a statement to police on 1 May 2014. He was in the same car as Jake Brown. He was seated in the middle of the back seat. He saw two cars pulled up on the other side of the road, diagonally across from where his vehicle was parked. He thought one of the vehicles was a light-coloured Holden Commodore and the other was a dark four-wheel-drive. The four-wheel-drive was parked in front of the Holden on the street. He saw three males inside the Holden and four males in the four-wheel-drive. He saw a male leave the Holden on the left rear passenger side. As that person left the vehicle, a black German shepherd jumped out of the left rear passenger side of the four-wheel-drive. The male ran past the vehicle containing Mr Milanja, yelling “They’re gonna kill me”. He appeared panicked. As he ran, the dog chased him. Another male got out of the four-wheel-drive from the driver’s side holding a baseball bat in his hand. He began running towards the first male, yelling “Get him boy”. He described that male as Maori in appearance, and of large build. Other males then exited both vehicles and started running in the direction of the first male. Mr Milanja then contacted police on his mobile phone. About five to ten minutes later, all of the males returned to the vehicles and drove off down the road.
Ryan Cassidy gave a statement to police on 21 May 2014. On an evening in December 2014 or January 2015 he had people at his house in Theodore. People were drinking, watching movies and playing games. At about 12:30 am to 1 am he was out the back of his house sitting on the arm rest of a chair and listening to music. He heard yelling that sounded like it was across the road. He got up and ran out of the gate and saw a male person run through the carport between his father’s cars and jump over the side gate, which is between his house and a vacant block of land next door. When he got out to the street he saw two cars parked across the road. He saw some people who had been at his house standing out the front and a car parked next to them, directly across the road from the other two cars. The two cars parked across the other side of the road were a Ford Territory and a Commodore or Falcon. He said that two dogs jumped out of a car and started chasing the guy who had jumped his fence. People got out of the Territory and the other vehicle carrying bats or weapons. When they got out of the car they were screaming aggressively at the dogs to go and get the first male. He saw one male, who he described as “a wog fella”, carrying a bat. This male and five or six others ran off after the male who had jumped over the fence. For a minute or two he did not see anyone, but then he saw them walking from the back of the house at the other side of the vacant land to the road. He could hear one of the males coughing. He was limping and being dragged by two people. The dogs were returned to the Ford Territory and the male who had jumped the fence was also placed in the back of the Territory. The other males then got into the cars, which then left.
Aimee Gronow was the driver of the vehicle in which Mr Brown and Mr Milanja were passengers. She provided police with a statement on 1 May 2014. At about 11 pm on 28 December 2013 she went to Theodore to pick up some friends. These friends were at a party. She pulled up on the street, and turned the ignition and lights off. Not long after they pulled up she saw a car pull up on the other side of the street. She was not sure of the make of the car but said it was a four-wheel-drive type of car. She saw a dark skinned male get out of the passenger side of the four-wheel-drive. He stood next to the car and was smoking. About 10 to 15 minutes later another car pulled up. This car was smaller; she described the car as being like a Falcon or Commodore. As soon as the second car pulled up, she saw a male jump from the rear driver’s side of the four-wheel-drive and run towards her car. She heard car doors slamming and then saw people running and a “biggish looking tan coloured dog”. She saw two males chasing the first male. One was carrying a baseball bat. The dark skinned male was running behind them. She saw the driver get out of the four-wheel-drive. She described him as a bigger male, and Caucasian. At some point he ran after the other males. About five minutes later she saw the dark skinned male and the driver of the four-wheel-drive come back the way they had run. They had the first male between them and were helping him. The first male and the dark skinned male got in the back of the four-wheel-drive, and the other male got into the driver’s seat. The four-wheel-drive then left, followed by the other vehicle.
Evidence of the offender
The offender gave evidence at the contested facts hearing. He said that he had been, as at December 2013, a friend of his co-offender, who he referred to by the nickname KC. At that time he had known KC for about eight years. He considered him to be a good friend. He said that on 28 December 2013 he did not know the complainant, Toby Leatham. He testified that on 28 December 2013 he and KC went to premises in Franklin. His co-offender had told him that he was paying off a debt, and borrowed $5,000 from the offender for that purpose. The offender said that he gave him this money as a loan. He said that the money was placed in a Woolworth’s bag, in which he believed there was other money as well. They drove to Franklin in a Ford Territory four-wheel-drive vehicle. The offender was driving.
The offender said that at the apartment complex in Franklin, he saw his co-offender give the bag containing the money to the complainant. When asked what he saw after the money was handed over, he said “The only thing I saw was that KC got a phone call when they were out of sight and they came running back around the corner”. He went on to clarify that “they” referred to the complainant and KC. He said that the complainant came around the corner first, followed by KC. He said that KC called out “Stop him. He’s taken off with the money”. The offender said that he stood in front of the complainant and stopped him. They each pushed each other. He said that the complainant then pulled out a knife and took a swing at him. The offender said that he took hold of the complainant’s arm holding a knife, overpowered him and put him in a headlock. He then got the knife off him. He said that the complainant then yelled out “help”, at which point KC joined them. The offender said that two or three males then appeared at the bottom of the stairs at the entrance to the apartment block. He said that one of them had a pole and the other one had a knife or something similar in his hand. The offender said that he panicked, and put the knife to the complainant’s throat and said “don’t move” to the other guys, before saying to KC “What the fuck is going on?” He said that he, KC and the complainant, then got into the Ford Territory. When asked what his intention was in getting into the Territory, he said “We were going to find this Big G guy and get this money back or something. They were talking about Big G has taken off with money, or something.”
The offender agreed that his dog was in the rear of the Ford Territory. He described the dog as a cross between a mastiff and a pit bull. The offender said that they stopped the vehicle in Theodore, near a house where a party was taking place. While they were stopped, another car parked behind them. Following this and also while they were stopped, the complainant ran from the car and the offender’s dog followed him. The offender denied chasing the complainant and said that he had not seen anyone else chase the complainant. He said that he did follow his dog before, presumably, catching it and placing it back in the Ford Territory. The offender said that after putting the dog back in the car, he came across the complainant on the ground near some townhouses. He said the complainant was lying on the ground, holding his head and his stomach, and it looked like he had been hit with a bat. He saw a number of people around the area, including KC, but he did not know the others. He said there was a girl yelling and screaming about jumping through fences. The offender said that he intervened and “tried not to let him get hit again”. The offender said that he told those people who were present “Look, he’s sorry; we are sorry. Can we just get him out of there and go?” The offender said that he and KC then picked up the complainant and helped him back to the car. The other car was still parked behind the Ford Territory, and the offender saw a number of the people who had been in the vicinity of the complainant when he was lying on the ground get into the car behind the Ford Territory.
The offender testified that they then drove to the Theodore shops, where he told KC “Look, I’m done. I don’t want to be involved anymore; this is crazy.” He said that he told KC and the complainant to get out of the car, and he then drove off. He said that “they”, presumably meaning KC and the complainant, spoke about “Jarred’s house” being just around the corner from there.
The offender denied hitting the complainant in the Ford Territory or threatening to harm him. He said that, to the extent that he had said otherwise in the recorded conversations on 12 January 2014, he was lying to the young woman that he was speaking to at that time, and was trying to impress her.
In cross-examination the offender agreed that his co-offender had not told him the name of the person to whom he owed the debt. The offender said that he had not asked, because he trusted his co-offender. He said that KC had only asked him for the $5,000 loan on the day that they went to the Franklin apartment. This request had only been made in the afternoon or evening. The offender said that he had the $5,000 at his house, and was able to give it to KC. He said that he went with KC to pay the money, because KC did not have a driver’s licence and asked the offender to drive him to Franklin. He said that even though he knew KC had lost his driver’s licence, and that this was the reason he drove KC to Franklin, he nevertheless allowed KC to drive the vehicle later that evening. The offender said that after they arrived at the apartment in Franklin, he and KC went up to the apartment and spoke to the complainant before they all returned to the Ford Territory and KC gave the money to the complainant. He said that the complainant then left the scene with the money, leaving the offender and KC at the Ford Territory. The offender said that he did not ask any questions of KC at that time, in particular about where the complainant was going with the money, because “Why do I care? I don’t care. Like, it’s not my problem. I’ve got nothing to do with it… He was paying off the debt, and the guy takes the money and walks off. He still paid the debt”. The offender then said that he had no idea whether the debt was owed to the complainant or to someone else. He agreed that he did not leave at that point, but stayed outside the apartment complex with KC. He explained this by saying that he was smoking a cigar. They walked from the spot where the Ford Territory was parked to the doors of the apartment complex. At some point KC hurriedly left him after receiving a phone call. When asked whether KC had said anything about the money being lost at this time, the offender said that he was not really listening to KC and that he was just relaxing and having a cigar.
The offender said that shortly after KC left him, the complainant came running around the corner followed by KC. KC called out “stop him”, which the offender did. The offender agreed that he did hold a knife to the throat of the complainant, but denied that it was he who had produced the knife. He denied the proposition that the complainant had been dragged to the Ford Territory, and denied making any threats to the complainant in the vehicle. He said the reason they went to Theodore was because KC and the complainant wanted to meet up with someone called Jarred. The offender said that he did not know that person at that time. The offender denied setting his dog on the complainant after the complainant ran from the Ford Territory, saying that the dog simply followed the complainant. He said that he did not know the people in the car which pulled up behind the Ford Territory in Theodore, and surmised that they may have been connected with the party that was going on. The offender said that he was not concerned about the loss of the money because he had lent it to KC, and it was KC’s responsibility to pay it back.
Consideration
I do not accept the version of events given by the offender. In my opinion, it is so inherently improbable that it may be dismissed out of hand. I reject his version of events for a number of reasons. First, because it is contrary to the evidence given by the complainant. I found the complainant to be a honest witness and I had no difficulty in accepting his evidence. Secondly, because his evidence is contrary to that of Mr Rooney about what happened at the door to the apartment complex when the offender was holding a knife to the throat of the complainant. The offender said that Mr Rooney and Mr Pruckner were in possession of weapons when they came to the door of the apartment complex. This was denied by Mr Rooney, and I have no hesitation in accepting his evidence. Thirdly, the offender’s version of events does not fit with the evidence of the events that occurred at Theodore given by the four eyewitnesses. The offender would have me believe that he and KC were not involved with the occupants of the car, described as either a Commodore or Falcon, which parked behind the Ford Territory in Theodore. The occupants of this car emerged and chased the complainant immediately after he began to run. This was before he had entered any of the premises in the street, refuting the possibility suggested by the offender that these people may have been connected with the party and chased and assaulted the complainant because he had run through a number of premises in that street. The offender said that he did not see anyone chase the complainant from the position where the cars were parked. This is simply not credible on the evidence of the four eyewitnesses. The evidence convinces me beyond any doubt that the occupants of the Commodore or Falcon vehicle were acting in concert with the offender and KC in pursuing and assaulting the complainant.
Fourthly, on the offender’s version of events, the actions of the complainant in running from the Ford Territory, calling for help and yelling “They’re gonna kill me” is inexplicable, and bordering on the bizarre. The offender would have me believe that there were no threats made to the complainant during the journey to Theodore, and that conversation had focused on finding Big G and recovering the money. If that were the case, the actions of the complainant at Theodore, as witnessed by independent witnesses, were inexplicable. On the other hand, if events had occurred as described by the complainant, the complainant’s actions at Theodore are perfectly explicable. Fifthly, the version of events given by the offender does not explain why the Ford Territory was stopped at Theodore. If the purpose of going to Theodore had been to go to Jarred’s house, it appears that both KC and the complainant knew where Jarred lived. Stopping at a dark street in Theodore, and not at Jarred’s house, was not advancing the offender’s avowed purpose of locating Big G. I am satisfied that the Ford Territory was stopped at that place so that other parties called by the offender or KC could meet with them to assist them. It is impossible, in the absence of truthful evidence by the offender, to say for what purpose these third parties were called upon by the offender or KC. It seems likely, however, that whatever may have been the plan was interrupted by the escape of the complainant and the commotion that was caused in chasing and recapturing him.
Sixthly, the evidence given by the complainant was significantly supported by the statements made by the offender in the course of the recorded conversations on 12 January 2014. In that regard, it is interesting to note that in the course of that conversation the offender said that if he had hit the complainant he would “have broken every fucking bone in his body and I would have cut his fingers off”. It is, in my opinion, no coincidence that the complainant testified that among the threats made it to him by the offender in the Ford Territory on the journey to Theodore were threats to break all his bones and cut off his fingers. The correspondence between this statement made by the offender on 12 January 2014 and the evidence of the complainant about threats made to him in the Ford Territory, adds to the credibility of the complainant. Finally, the evidence of the offender that he had no interest in what became of the money which he said KC gave to the complainant, including the $5,000 which he said he had loaned to KC, is simply not credible. If, as he alleged, the offender was unconcerned about the money because it was “KC’s problem”, why would he have driven KC and the complainant from Franklin to Theodore? It is particularly difficult to see any innocent answer to that question, in the light of the fact that, the offender says, that he had been confronted by armed men in front of the unit complex at Franklin, forcing him to threaten harm to the complainant in order to keep those men from attacking him. The offender testified that the first he heard that the events at Franklin had been a drug deal gone wrong was when he read the police statement of facts after he was charged with these offences. That is simply incredible.
Conclusion
I am satisfied beyond any doubt of the following matters:
(a)the offender and KC attended the complainant’s apartment in Franklin on the night of 28 December 2013 pursuant to an agreement with the complainant whereby he arranged for them to purchase 7 pounds of cannabis for a sum of $26,000 from a dealer known as Big G;
(b)the complainant arranged for Big G to meet him around the corner from his apartment. Big G took the money from the complainant, but left without delivering any cannabis;
(c)the offender and KC became angry with the complainant, believing that he was part of a plan to steal the money;
(d)the offender was armed with a knife when he went to the apartment at Franklin, and he produced that knife and held it to the throat of the complainant;
(e)the complainant called for help, at which time Mr Rooney and Mr Pruckner came downstairs from the apartment to see what was happening. I am satisfied that they were not armed;
(f)the offender forced the complainant at knifepoint to the Ford Territory, placing him in the rear seat. The offender sat next to the complainant, and KC drove the vehicle;
(g)the vehicle was then driven to Theodore. Either on the journey or after the vehicle arrived at Theodore one of the offenders arranged for support, which arrived in the Commodore or Falcon at Theodore;
(h)during the journey from Franklin to Theodore the offender made multiple threats to the complainant, including threats to break his bones and to cut off his fingers;
(i)at Theodore, the complainant escaped from the Ford Territory and was chased by the offenders and by occupants of the Commodore or Falcon. The offender’s dog also chased the complainant, but I am not satisfied that he set the dog on the complainant, or that it behaved aggressively;
(j)the complainant was recaptured, but I cannot say with any certainty whether that was by the offenders, or either of them, or by the occupants of the Commodore or Falcon. One of the people who recaptured the complainant struck him with a baseball bat;
(k)the complainant was taken back to the Ford Territory and placed in the rear seat. The offender sat in the back seat with the complainant and KC drove the vehicle; and
(l)the vehicle was then driven to a remote location in New South Wales where the complainant was assaulted and abandoned.
| I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: D Scuteri Date: 27 April 2016 |
The evidence is not such as to allow me to form any conclusion about the extent to which the offender was the owner of the money which was stolen by Big G. This, however, is unimportant. I am satisfied that the offender perceived himself as having some proprietary interest in at least part of that money.
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