Rauhina v The Queen
[2002] WASCA 91
•2 APRIL 2002
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA |
| TITLE OF COURT : | COURT OF CRIMINAL APPEAL | |
| CITATION | : | RAUHINA -v- THE QUEEN [2002] WASCA 91 |
| CORAM | : MALCOLM CJ |
WHEELER J
McKECHNIE J
| HEARD | : 2 APRIL 2002 | ||
| DELIVERED | : 2 APRIL 2002 | ||
| PUBLISHED | : 23 APRIL 2002 | ||
| FILE NO/S |
| ||
| BETWEEN | : PETER DOUGLAS RAUHINA |
Applicant/Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Appeal against conviction - Turns on own facts
Criminal law and procedure - Appeal against sentence - Attempt to pervert the course of justice - Turns on own facts
Legislation:
Nil
[2002] WASCA 91
Result:
Appeal against conviction dismissed
Application for leave to appeal against sentence dismissed
Category: B
Representation:
Counsel:
| Applicant/Appellant | : | Mr G G Wells |
| Respondent | : | Mr R E Cock QC |
Solicitors:
| Applicant/Appellant | : | Pryles & Defteros |
| Respondent | : | State Director of Public Prosecutions |
Case(s) referred to in judgment(s):
Connell v The Queen, unreported; CCA SCt of WA; Library No 940731;
22 December 1994
Jeffrey v The Queen, unreported; CCA SCt of WA; Library No 925357;
3 June 1992
Wright v The Queen, unreported; CCA SCt of WA; Library No 925531;
20 August 1992
Case(s) also cited:
Nil
[2002] WASCA 91
MALCOLM CJ
WHEELER J
MALCOLM CJ: On 2 April 2002 at the conclusion of the argument the Court ordered that this appeal against conviction and application for leave to appeal against sentence should both be dismissed. It was then indicated that reasons would be published later. The reasons to be published by Wheeler J sufficiently state my own reasons for joining in the making of those orders.
WHEELER J: These matters are an appeal against conviction in relation to one count on an indictment, and an application for leave to appeal against sentence in relation to four counts. At the hearing of the appeal and the application, the Court was unanimously of the view that both appeal and application should be dismissed. These are my reasons for joining in those orders.
Background
In the original indictment, the appellant/applicant ("the appellant") was charged with four counts. They were:-
1. assault occasioning bodily harm;
2. entering the place of Lonny Matthews with intent to commit an offence therein, with the aggravating circumstance alleged of doing bodily harm to Lonny Matthews;
3. stealing Lonny Matthew's vehicle with threats of actual violence;
4. attempting to defeat the course of justice in relation to the appellant's prosecution for the above offences.
4 The appellant entered a plea of guilty to the first count and a new
indictment was drawn for the consideration of the jury which contained the original counts 2, 3 and 4, renumbered as counts 1, 2 and 3. The appellant was convicted of all counts, but acquitted in relation to the circumstance of aggravation relating to the renumbered count 1.
5 It is convenient to set out the broad outline of the facts out of which
these offences arose. On 17 February the appellant's car had been damaged, apparently while it was parked in a car park. The extent of the damage is unclear, but there is no suggestion that it rendered his car unfit to drive. He formed the view that Mr Matthews had done the damage. It may be, as the appellant alleges, that his de facto wife had spoken to
[2002] WASCA 91
WHEELER J
Mr Matthews about the damage and had been, in effect, "brushed off" by Mr Matthews with insulting language. In any event, the appellant went at about 9.30 pm on 18 February to Mr Matthews' home. The appellant took with him his nephew aged 17. The appellant is a man of 30 years of age, large and powerfully built, and it appears that the appellant's nephew was of similar build. Mr Matthews was a relatively small man, 48 years old. When he arrived at Mr Matthews' house, the appellant kicked at the door and demanded that Matthews come out. He then assaulted him, punching him to the head. The medical evidence was that Mr Matthews attended at hospital on 19 February complaining of pain to the right side of the skull and head and to the right upper lip. Examination showed bruising and swelling around the right eye region and associated swelling and severe bruising inside the right upper lip. There was no obvious bruising to the right side of the head, but it can take a number of days before the full impact of an injury is seen in terms of bruising.
6 Mr Matthews at first denied damaging the car, but after being
punched a number of times agreed that he had done so. The appellant then demanded that Mr Matthews give him his car whilst the appellant's was being repaired. He agreed to do that and went into the house to get the keys, with the appellant following him in. It is clear from the verdict that the jury accepted that he only agreed to this course as a result of the threats and beating of the appellant. His Honour found that the appellant kicked a mirror in the bedroom, and continued to assault Mr Matthews. His Honour took the view that the verdict of the jury was consistent with such further assault, but appeared to result from the jury's lack of satisfaction that further injury was caused by that assault, injury having already been caused by the assault outside the front door. Once he had obtained the keys, the appellant left, threatening Mr Matthews that if he contacted the police, the appellant would kill him.
7 There were then three telephone conversations between the appellant
and Mr Matthews. It appears that on the first occasion there was a lengthy conversation and, although Mr Matthews' evidence is not easy to follow on this point, it is open to the view that no threats were made by the appellant during this conversation. However, a couple of weeks after the assault the appellant further telephoned Mr Matthews and threatened him with violence if he did not withdraw the charges.
8 The appellant had previous convictions for breach of a violence
restraining order and for assault. It was accepted that he was a hardworking family man. However, his Honour formed the view that he had shown no remorse.
[2002] WASCA 91
WHEELER J
9 In relation to the first count of the original indictment, his Honour
observed that he normally would have imposed a sentence of 12 months' imprisonment, but that that was reduced to 9 months by reason of the late plea of guilty. Sentences of 3 years' imprisonment were imposed for each of the second and third counts on the original indictment and those sentences were to be served concurrently with each other and with the first sentence. The attempt to defeat the course of justice count attracted a sentence of 3 years' imprisonment to be served cumulatively on the others. His Honour observed that he considered that it was a "particularly bad example of such an offence".
10 The total effective sentence was therefore one of 6 years, backdated
to the date on which the appellant was first taken into custody, and the
appellant was made eligible for parole.
The appeal against conviction
11 At the hearing of the appeal, the original grounds of appeal were
withdrawn and the sole ground, which was substituted by leave of the
court, was as follows:"The verdict on count 1 [of the indictment which went to the jury] is unsafe as it was contradictory for the jury to find that Rauhina entered Matthews' home with intent to do him bodily harm, when it was also found that no bodily harm occurred in the house."
12 The difficulty with this submission is that the offence with which the
Crown alleged the appellant went into Mr Matthews' house was that of stealing his vehicle (or, perhaps more accurately, stealing his car keys in order to take his vehicle). That fact emerges clearly from the prosecutor's opening in which he describes count 1 in the following terms:-
"That is the, in effect, going into Lonny Matthews' house, which is the house where he lived, without his permission – went in there with an offence to commit – sorry, with intention to commit an offence, that is, to take his car keys, and while he was in there he did bodily harm to him. That's when he punched him and kicked him in the back of the head."
13 I should add that, even if it were the Crown case that the offence
which the appellant intended to commit in Mr Matthews' house was that of assault, then it appears to me that the view taken of the verdict by his
[2002] WASCA 91
WHEELER J
Honour the learned trial Judge was entirely open. That is, a jury might well find that the appellant had intended to assault Mr Matthews, but not be satisfied as to the precise degree of injury, if any, resulting from that assault, as opposed to the assault which had already occurred outside the house.
It is my view therefore that this ground cannot succeed.
Application for leave to appeal against sentence
15 Although the grounds of the application were not formally
abandoned, they were not pressed in oral argument. The gist of the oral argument presented on behalf of the applicant had two limbs. First, it was submitted that the sentence for the count of attempting to defeat the course of justice was manifestly excessive; and secondly, it was alleged that the entirety of the sentence demonstrated that insufficient regard had been had to the totality principle.
16 So far as the first of those arguments is concerned, it has often been
noted in this Court that offences of this type strike at the heart of the criminal justice system and that there is a need for general deterrence in such cases. There is no tariff for such offences. However, the giving of a false name to the police, entering into a false recognisance and the like in the context of traffic offences, have not unusually attracted sentences of imprisonment of the order of 12 to 18 months (eg Jeffrey v The Queen, unreported; CCA SCt of WA; Library No 925357; 3 June 1992 and Wright v The Queen, unreported; CCA SCt of WA; Library No 925531; 20 August 1992). More serious offences of this type have met with longer sentences; in Connell v The Queen, (unreported; CCA SCt of WA; Library No 940731; 22 December 1994 at 356 and following) the Court upheld a sentence of 5 years' imprisonment for a sophisticated, prolonged and persistent attempt, albeit one which was undertaken to protect that appellant from investigation and prosecution rather than to shield the guilty from conviction, and in which there was no suggestion of violence or a threat of violence.
17 In the present case, the threat was made approximately two weeks
after the other offences; this is in contrast with the common situation in relation to traffic offences, where a false name may be given in panic on the spur of the moment by a person who is detected driving unlawfully. It was a threat made to shield the guilty person, the appellant himself, and it was a threat of violence made to a person who had already been the subject of a violent assault by the appellant. The threat was made to a
[2002] WASCA 91
WHEELER J
McKECHNIE J
person who was the central witness in the case against the applicant. In my view, those factors justified the learned trial Judge in reaching the view that this was one of the more serious examples of such an offence. The sentence of 3 years' imprisonment is not a disproportionate one, having regard to those circumstances.
18 So far as the totality principle is concerned, I should first note that it
appears to me that in relation to the second and third of the counts on the original indictment, there may be room for the view that the learned trial Judge took a somewhat lenient view of the nature of the offences. In particular, his Honour observed that "As entering premises without consent go, I accept that it is less serious than some others might be ... ". That may be so if his Honour was referring simply to the fact that the applicant followed Mr Matthews in through an open door, rather than forcing entry to the premises. However, having regard to the whole of the circumstances, it was an invasion of the complainant's home for the purpose of committing a further offence against him, in circumstances where he had already been seriously assaulted on his own doorstep. The entire exercise appears to have been one of premeditated revenge for property damage, which should be visited with condign punishment.
19 Taken as a whole, it appears to me that the first three offences on the
original indictment may well have justified a total sentence in excess of 3 years' imprisonment. The sentence in relation to the fourth count on the indictment was, as I have noted, in proportion to the seriousness of that offence. It was a sentence which was appropriately made cumulative upon the earlier sentences, having regard to the different nature of the offence and its separation in time from the earlier offences. Approaching the sentence of 6 years effective imprisonment in its entirety, it would be my view that the sentence could properly be described as a severe one, but is by no means to be regarded as crushing or as disproportionate to the totality of the offending revealed by those offences.
McKECHNIE J: The reasons of Wheeler J, with which I agree, express the reasons why I joined in the orders to dismiss the appeal against conviction and the application for leave to appeal against sentence.
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