R v Westbrook - [2019] ACTSC 135

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Westbrook
Citation:	[2019] ACTSC 135
Hearing Dates:	30 January and 23 May 2019
DecisionDate:	23 May 2019
Before:	Mossop J
Decision:	See [28]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – aiding or abetting an aggravated robbery – actual use of force against victim – sentencing of four co-offenders – intimidatory effect of co‑offenders in a group – less culpable offending conduct – offender on conditional liberty at the time of the offending – guarded prospects for rehabilitation – sentence fully suspended – imposition of good behaviour order
Legislation Cited:	Criminal Code 2002 (ACT), s 310(a)
Cases Cited:	Azzopardi v R [2011] VSCA 372; 35 VR 43 R v O’Connor [2019] ACTSC 132
Parties:	The Queen (Crown) Blake Westbrook (Offender)
Representation:	Counsel P Dixon (Crown) G Mansfield (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service NSW/ACT (Offender)
File Number:	SCC 176 of 2018

MOSSOP J:

Introduction

Blake Westbrook has pleaded guilty to aiding or abetting an aggravated robbery (XO2018/31447), contrary to s 310(a) of the Criminal Code 2002 (ACT). The maximum penalty for that offence is the same as that for aggravated robbery, namely, 25 years imprisonment or 2500 penalty units or both.

Facts

The facts relating to the aggravated robbery are described in my reasons in R v O’Connor [2019] ACTSC 132 as follows.

Count 2
6.On 20 November 2017, KE was at a residence in Belconnen with three of his friends including the second victim of the offending conduct, who I will refer to as CC.
7.At about 5:45pm, CC asked to borrow KE’s bike to drop off one of the other friends at the bus interchange. He wanted the bike in case he saw Mr O’Connor, UB or Mr Bobbine so that he would be able to get away more quickly. KE lent him his bike. At around 6.00pm, CC and the other friend arrived at Belconnen bus interchange and sat out in one of the bus shelters. CC had the BMX bike with him. Soon after, he was approached by Mr O’Connor and UB. Mr O’Connor told CC that KE owed them money and that he and UB were going to take the bike as “collateral”. CC told them that it was not his bike to give away. Mr O’Connor did most of the talking during this interaction.
8.The friend who CC had accompanied to the bus stop, boarded a bus and left during this conversation. He communicated with the other friend, who I will refer to as KU, who had been with CC and KE at the house. He told KU that he had seen a group walking towards CC. KU then told his mother who drove to the mall to look for CC. KU and KE set out on foot with the same intention.
9.In the meantime, Mr Bobbine, Mr Westbrook and two unknown females approached CC, Mr O’Connor and UB.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Westbrook

Details

AGLC: R v Westbrook [2019] ACTSC 135
Case: [2019] ACTSC 135
Decision Date: 23 May 2019

CaseChat Overview and Summary

The appellant, Westbrook, appealed against his sentence for aiding and abetting an aggravated robbery where actual force was used against the victim. The primary judge sentenced Westbrook to a term of imprisonment, which was to be fully suspended for a period of two years, and also imposed a good behaviour order on him. The appeal centred on the sentence imposed by the primary judge and the adequacy of the reasons given for it.

The court had to determine whether the sentence imposed was manifestly inadequate or excessive, and if the primary judge failed to have regard to all relevant sentencing principles and purposes. Specifically, the appeal questioned the weight given to the intimidatory effect of Westbrook's co-offenders being in a group, his less culpable conduct in comparison to his co-offenders, his status as an offender on conditional liberty at the time of the offence, and his prospects for rehabilitation.

The Court held that the sentence was not manifestly inadequate or excessive, and the primary judge had appropriately exercised their discretion. The court found that the primary judge had given adequate consideration to all relevant sentencing principles and purposes. The intimidatory effect of the group, Westbrook's lesser culpability, his status as an offender on conditional liberty, and his guarded prospects for rehabilitation were all appropriately weighed in determining the sentence. The primary judge's reasons were detailed and sufficient to demonstrate an informed exercise of sentencing discretion. The appeal was dismissed, and the orders of the primary judge were upheld.

Orders

Orders of the court

See [28]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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