R v Soun

[2021] SADC 32

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v SOUN

Criminal Trial by Judge Alone

[2021] SADC 32

Reasons for the Verdict of his Honour Judge Durrant 

26 March 2021

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - AGGRAVATION

Accused charged with the offence of Aggravated Robbery of a handbag - whether the accused had used force against another to commit the theft - meaning of 'force' - consideration of whether force used can be indirect against another through an object supporting that person.

VERDICT: Guilty.

Criminal Law Consolidation Act 1935 ss 1, 3, 4, 5AA, 137(1); Juries Act 1927 s 7(1); District Court Criminal Rules 2014 r 49(1); The Theft Act 1968 (UK) s 8(1); Evidence Act 1929 s 34P (1), 34R (2), referred to.
BCM v The Queen [2013] HCA 48; Douglass v The Queen [2012] HCA 34 [14]; R v Keyte (2000) 78 SASR 68; AK v Western Australia (2008) 232 CLR 438; Aiken v The Queen [2014] NSWCCA 213; Markou v The Queen [2012] NSW CCA 64; R v R, R & R, LJ [2008] SASC 35; R v T, WA (2014) 118 SASR 382; R v S, GJ [2012] SADC 150; R v Haines [2016] SASC 96; Mullen v Director of Public Prosecutions (SA) (2020) 136 SASR 274; R v Dawson [1976] 64 Cr App R 170; R v Clouden [1987] Crim LR 56; R v Nieterink (1999) 76 SASR 56, considered.

R v SOUN
[2021] SADC 32

Introduction

1. The accused, Yika Soun, pleaded not guilty to aggravated robbery. Her alternate plea, of guilty to aggravated theft, was not accepted by the prosecution.[1] She therefore elected that I hear her trial without a jury. ^[2] The sole issue at trial was whether the accused had used force against another, in order to commit the theft.

   The Information

   Statement of Offence

   On the 19th day of March 2019 at Kilkenny in the said State, used or threatened to use force against Barbara Taylor in order to commit the theft of a handbag and its contents, and the force was used, or the threat was made, at the time of, or immediately before, or after, the theft.

   Section 137(1) of the Criminal Law Consolidation Act 1935.

   This is an aggravated offence.

   It is further alleged that the circumstance of aggravation is that Yika Soun committed the offence knowing that Barbara Taylor was over the age of 60 years at the time of the offence.

   [1]     Criminal Law Consolidation Act1935, ss 1, 3, 4.

   [2]     Juries Act1927, s 7(1); Election for Defendant for Trial by Judge Alone dated 14 August 2020.

   Elements of the Offence

2. The prosecution had to prove, beyond reasonable doubt, each of the elements of aggravated robbery as follows:

   ·first, that the accused committed a theft;[3]

   ·second, that the accused used force or threatened to use force against another, in order to commit the theft or to escape from…