R v Whamond - [2004] SADC 122

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v WHAMOND
Decision of His Honour Chief Judge Worthington
27 August 2004
CRIMINAL LAW - PARTICULAR OFFENCES
Dispute of facts - plea of guilty to 4 counts including carrying a sawn-off rifle - Crown alleges that it was carried for the purpose of committing an armed robbery - circumstantial evidence - allegation not proved beyond reasonable doubt - finding that rifle carried for purpose of threatening another person.
Criminal Law Consolidation Act 1935, ss32, 47A, 158, 170 , referred to.

R v WHAMOND
[2004] SADC 122
CHIEF JUDGE WORTHINGTON
CRIMINAL JURISDICTION

The defendant, Stuart James Whamond, has pleaded guilty to four counts in an Information that originally contained six charges. They are:
Count 1:Serious criminal trespass on the night of 7 March 2003 in the residence of JFR at Cowandilla with the intention of committing larceny.
Count 2:Larceny that night of various items of property worth just over $3,000 and about $60 cash, belonging to JFR who is a police officer. The property stolen included two rifles.
Count 5:Illegal interference with a motor vehicle on 3 April 2003 in Hindley Street, Adelaide.
Count 6:Also in Hindley Street on 3 April 2003, possessing a firearm for the purpose of committing an offence punishable by a term of imprisonment of 2 years or more, i.e. one of the two rifles stolen from JFR’s house.
Although the defendant has pleaded guilty to Count 6 there is a dispute about the offence for which possession of the rifle was intended. The Crown says that he was carrying the rifle for the purpose of committing an armed robbery, but the defendant denies this and says that he was carrying it only for the purpose of threatening another person.
As relevant, s32 of the Criminal Law Consolidation Act 1935 (“CLCA”) provides:
32.A person who has the custody or control of a firearm … for the purpose of –
(a) ………
(b)carrying ……. the firearm when committing an offence punishable by a term of imprisonment of 2 years or more,
is guilty of an indictable offence.
Penalty: Imprisonment for 10 years.
As at April 2003 armed robbery was governed by s158 CLCA with a maximum penalty of life imprisonment. The defendant’s position is that, because there had been threats on his life, he was carrying the gun for protection – i.e., so that he could brandish it if he was confronted. The offence of threatening another person with a firearm is governed by s47A CLCA and it carries a maximum penalty of $15,000 or imprisonment for 4 years. The parties have informed the court that for present purposes it is unnecessary to consider any purpose other than these two offences. Both of them satisfy the threshold in s32, i.e., a potential penalty of at least 2 years imprisonment.
Apart from the declarations and some photographs that were put before me by consent, oral evidence was given by two witnesses, Detective Sergeant John Marshall and the defendant. It is unnecessary to traverse the evidence because much of it is now uncontentious and can be summarized briefly.
On the night of 7 March 2003 the defendant broke into the house rented by JFR while it was unoccupied and stole a good deal of property including jewellery, war medals, police items, cash and the two rifles. It was not known that the defendant was the perpetrator until after he was apprehended in Hindley Street about a month later, at 5.30pm on 3 April 2003 attempting to break into a white Ford Falcon which its owner had left in Hindley Street while he went to lectures at the nearby University of South Australia. He had parked it outside a restaurant “Yannis on Hindley” on the northern side of Hindley Street near the corner of Gray Street at about 5.15pm. The owner of the restaurant saw him check the door handles before he went into the university. While the restauranteur was standing in his doorway about 10 minutes later, he noticed the defendant near the driver’s door of the Ford, so he kept him under observation. At one point the defendant said to him “I am not gonna steal your car mate”.
The restauranteur was suspicious enough to call the police. As he was doing this he saw, reflected in a window across the road, the defendant crouch down behind the car, put on a jumper, take an oil dip stick from his bag, then stand up and put the dip stick into the driver’s side door of the car. Shortly afterwards he saw the defendant speak to another man and then walk out of view west along Hindley Street. Less than a minute later the defendant returned and started pushing a coat hanger into the driver’s door. He was still doing this when the police arrived.
When police approached the defendant he claimed that he was helping someone who lived in nearby units to open the door of his car. Police saw a black sports bag near his feet. When it was searched its contents were found to include a black jacket, a pair of dark woollen gloves, a pair of black boots, a dark beanie and a sawn off .22 calibre rifle. In his pocket he had a small clear money bag with about 15 bullets in it. In the sports bag there were also a pair of blue and white striped tracksuit pants, a light blue T-shirt, two sets of keys, some coins in a plastic bag, foreign currency notes and two pieces of an oil dip stick. The gun was later identified as one of the two that had been stolen from JFR’s house; other property stolen from JFR was found at the unit in Brooklyn Park where the defendant lived with his girlfriend. The rifle had been shortened at both ends: part of the stock and the end of the barrel had been sawn off since it was last in JFR’s possession. The sawn-off part of the stock and a wood saw were found at the Brooklyn Park unit, and the defendant admits that he cut it off. He denies that he shortened the barrel, and after a thorough search of the unit police did not find the missing part of the barrel or, indeed, anything, such as a hacksaw, which could be used to shorten it.
The defendant was interviewed at length by police but it is unnecessary to go into all the details. He now admits that he got the rifle from JFR’s house, but at the time of the interview he was attempting to hide that. He told an elaborate story about how he found the rifle and the bullets in a dumpster in Sir Donald Bradman Drive as he and his girlfriend were walking from Brooklyn Park into the city, and that having found it, it was his intention to get rid of it by cutting it up or smashing it, so that no one could use it for any criminal purpose. That, he said, was why it was in his bag. He also invented an explanation for the clothing in the bag that involved working out in a gym and not cooling down too quickly.
The defendant gave to the police a detailed account, which he now admits was also false, of a man in Hindley Street trying to get into his car. He said that this man had asked him whether he knew anything about breaking into cars, so he had agreed to help, but that the man was not there when they arrived because he had gone to get some blue packing tape. He went into some detail about this man, what he was wearing, and described him as “a bit of a ladies man”. He now admits that he was attempting to steal the car and that, although there was another person there at one stage, the elaborate story about the “owner” was false.
I shall come to the defendant’s evidence shortly, but having regard to it as a whole, including what he told the police, it is my opinion that he is glib and is prepared to say whatever he thinks is necessary, true or false, to suit his purpose. The Crown carries the onus of proving beyond reasonable doubt the more serious allegation that he was carrying the rifle for the purpose of committing an armed robbery if that is to be taken into account under s32. The defendant does not carry any onus but I should say now that his evidence is not sufficiently reliable to be of much help at all.
Detective Sergeant Marshall is a very experienced police officer, particularly in relation to the modus operandi of armed robberies. He has been a police officer for 22 years and a detective sergeant for a little over 12 months. After completing the appropriate course he became a detective in 1989. Before that, as a uniformed officer, he had attended at the scenes of many crimes, including robberies. But he became more involved in crime investigation, including armed robberies, once he became a detective. That continued for about 9 years until in 1998 he joined a task force named Operation Counteract which was part of the Drug and Organised Crime Investigation Branch. This was concerned specifically with the investigation of robberies and related offences. He was attached to Operation Counteract for about 5 years, at first as an investigator but after 2 years he was selected to be a supervisor which involved him in leading a team of officers. I permitted Det Sgt Marshall to give evidence of his experience and some expert evidence for reasons I have already published and which need not be repeated.
He said that the most common weapons of choice for armed robberies are firearms and knives and that, as far as firearms are concerned, hand guns and sawn-off rifles are popular because they are easy to handle and comparatively easy to conceal. Usually, it is the barrel that is sawn off but sometimes it is the stock. He also said that the type of clothing preferred for armed robberies is that which helps to conceal the appearance of the perpetrator. He listed items such as balaclavas, full face masks, beanies worn with sunglasses, bulky jackets and baggy trousers, the last two of which have the effect of concealing body shape, thereby making it harder to identify an offender, particularly in premises with security cameras. He said also that gloves are often used in armed robberies; they eliminate fingerprints and reduce the risk of an offender leaving a DNA sample. It is not uncommon for someone committing an armed robbery to change clothing shortly after committing the offence, once again to lessen the chances of being recognised. Another feature of armed robberies is to use a vehicle which has been stolen only shortly before committing the offence so that by the time the owner discovers the loss and reports it to police, the crime has been completed and the vehicle abandoned.
Although it seems that the defendant was on a Buprenorphine program in April 2003, both he and his girlfriend were heroin users. There was also evidence that he was behind in his rent payments and that he had only 50 cents on him when apprehended.
The defendant said that the only reason he was carrying the rifle was because there had been telephone threats on his life since December 2002. He would not identify the people involved or disclose the reason for these threats. However, even though he had had the rifle for some four weeks, this was the first time he had carried it. He said that he feared that he may be confronted by one or more of these people while he was in the city and that if this happened he would use the rifle to protect himself. However, he said, even if he had to put ammunition in the rifle in the course of such a confrontation, he did not want to make the mistake of discharging it. To that end, he had bent the firing pin so that the rifle could not discharge. The weapon was examined by Snr Constable DeLaine who is attached to the Ballistics Section of the SA Police Forensic Services Branch. He confirmed that the cocking knob at the rear of the bolt had been bent down so that it was touching the timber stock in a way that would prevent discharge unless the timber stock was removed. There is no doubt that the knob was deformed after the rifle was stolen from JFR’s house.
The Crown contends that the combined effect of the reliable evidence, direct and circumstantial, is that the accused had the necessary clothing and firearm to commit an armed robbery and that, consistent with the modus operandi deposed to by Det Sgt Marshall, the attempted taking of the Ford Falcon was a step in that process. The Crown says that the need for money, including money for drugs, provided a clear motive for committing robbery and that this was the reason he had the rifle with him in the sports bag along with the sort of clothing that is used in armed robberies.
In cross-examination, Det Sgt Marshall said that there were not now as many armed robberies on banks because of their greater security and that there was an increase in softer targets such as all night shops and service stations. He conceded that the use of firearms in those types of robberies is not as common as it used to be with banks. He also acknowledged that a common method of changing clothes after a robbery is to peel off an outer set of clothing and discard it soon after the robbery, the other clothing being worn underneath. Unsurprisingly, he also acknowledged that firearms can be used in the commission of offences other than armed robberies and that, although a stolen vehicle is involved in about 80% of all armed robberies, many vehicles are stolen that are not used for armed robberies.
Since the Crown case in relation to purpose is based principally on circumstantial evidence, it can succeed only if armed robbery is not only an inference to be drawn from the evidence as a whole but, in fact, the only inference available. It is not enough to show consistency between the overall effect of that evidence and an intention to commit an armed robbery. That is the difficulty faced by the Crown.
The evidence of Det Sgt Marshall is of limited assistance because it focuses on the use of items found on the defendant, including the gun, only as materials for an armed robbery. Common sense indicates that items of disguise are useful for many offences, not least the various types of serious criminal trespass. Clothing such as the blue T-shirt might be used as a change of clothing after an armed robbery but there could be any number of innocent explanations for its possession. Possession of a sawn-off rifle could be the factor of aggravation in a serious criminal trespass: s170(2)(a) CLCA. These examples are not meant to be exhaustive.
Because of its narrow focus the evidence of Det Sgt Marshall can only be of limited help when it comes to the balancing process. The Crown case is posited on the premise that each of the factors to which he refers is consistent with the commission of an armed robbery, and therefore their combination points to that as the purpose. That conclusion has not been established. The prosecution has demonstrated beyond reasonable doubt that the items carried by the defendant (including the rifle) and the car could have been used for an armed robbery, but that does not go far enough. The most that can be said is that it has been shown that he was in a position to commit a number of crimes, one of which could have been an armed robbery. That falls short of proving that an armed robbery was his purpose.
The defendant said that the items in the bag other than the rifle were stolen that day, either from cars parked in the city or from shops. He said that he could sell or pawn them to get money, whether that be to live or to purchase drugs. Obviously, he could use the car for purposes other than committing an armed robbery. As unsatisfactory as the defendant’s evidence is, there is independent support for his claim to have disabled the gun and I have already referred to that. This is consistent with his evidence that it was to prevent him causing an injury, or worse, if brandishing the rifle was not enough of a deterrent to an assailant and he had to raise the stakes by loading it with bullets. But that is equivocal; it could also be consistent with taking the same precaution as part of an armed robbery.
It is put for the defendant that his explanations should be preferred. The difficulty with this is that, apart from the bent firing pin, they are based on his evidence alone. However, as I have said, the Crown has not excluded reasonable possibilities other than armed robbery, and it is unnecessary to consider this submission further.
For these reasons the Crown has not established beyond reasonable doubt that the defendant’s purpose in carrying the rifle was to commit an armed robbery. I am not in a position to find that he was carrying it because of threats on his life. His evidence about this was unconvincing, not least because of an anomaly he could not explain. The threats had been current for some months and he had had the rifle for about a month. If he was as fearful as he claims, it is odd that the first time he decided to carry it for protection was on that day. There had been no recent event that might account for his having a heightened sense of alarm on 3 April as distinct from other occasions when he had been out and about in previous weeks. In the absence of sufficient evidence to show a specific reason for carrying the rifle, the only finding open in the circumstances is that his purpose was to threaten a person or persons unknown for a reason that is also unknown.
I therefore find that the defendant’s purpose in carrying the rifle was to threaten another person with it, in contravention of s47A CLCA.