The State of Western Australia v WILLIAMS
[2014] WASC 445
•27 NOVEMBER 2014
THE STATE OF WESTERN AUSTRALIA -v- WILLIAMS [2014] WASC 445
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 445 | |
| Case No: | INS:155/2014 | 18 NOVEMBER 2014 | |
| Coram: | MITCHELL J | 27/11/14 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Findings of fact made | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA GREGORY ROSS WILLIAMS |
Catchwords: | Criminal law Trial of issues Turns on own facts |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
GREGORY ROSS WILLIAMS
Respondent
Catchwords:
Criminal law - Trial of issues - Turns on own facts
Legislation:
Nil
Result:
Findings of fact made
Category: B
Representation:
Counsel:
Applicant : Ms C A Fletcher
Respondent : Mr I D Hope
Solicitors:
Applicant : Director of Public Prosecutions (WA)
Respondent : Ian Hope Barristers & Lawyers
Case(s) referred to in judgment(s):
Nil
1 MITCHELL J: The accused has pleaded guilty to a number of offences, including that on 25 September 2013 at Kensington, he stole from the complainant, with violence, car keys the property of the complainant, and that at that time he was armed with offensive weapons (namely a mallet and a screwdriver).
2 The State and the accused have been unable to agree upon the factual basis on which the accused is to be sentenced for that offence of armed robbery. I have therefore conducted a trial of the factual issues in the dispute between the State and the accused as to that count, before proceeding to hear submissions in relation to the appropriate sentence for that count, and receiving facts and submissions in relation to the other offences.
Agreed facts
3 The State has provided a statement of material facts in relation to the armed robbery count, dated 17 November 2014. Counsel for the accused has indicated that the accused accepts the facts alleged in that statement other than those which are underlined below. The facts alleged by the State are as follows:
1. At approximately 9.50 am on 25 September 2013 the [complainant] was at home [in] Kensington in his home study.
2. Two other people were present in the house as paid cleaners.
3. The doorbell rang and [the complainant] went to answer the door.
4. As [the complainant] began to answer the door the accused smashed the top glass panel on the door using a mallet. It sent shards of glass flying past [the complainant]'s face.
5. The accused also kicked the bottom glass panel of the door in.
6. In the process of smashing the glass panels the accused injured both his right leg and his right hand. The accused was bleeding from both of these injuries.
7. The accused came into [the complainant]'s house yelling 'you motherfucker, you motherfucker'.
8. The accused was also armed with a mallet in his right hand and a screwdriver in his left hand. He raised both of the mallet and the screwdriver to head height in a threatening manner.
9. The accused also picked up a heavy jarrah pedestal that was in the hallway by the door and went towards [the complainant] with it at chest height. It hit [the complainant] and he fell back, landing on his backside but also smashing his head on the wall behind him. He received a small cut and bump to the back of his head.
10. [The complainant] screamed for help from the cleaners who were in the kitchen. However the cleaners ran out of the house during the attack.
11. [The complainant] managed to get to his feet again. The accused then came at him again screaming 'you motherfucker'. The accused swung the mallet at [the complainant] but he had managed to back himself into the kitchen and close the door. The mallet smashed into the kitchen door panel at eye level.
12. The accused then began to walk out of [the complainant]'s house. In doing so he removed car keys to [the complainant]'s car which were hanging inside the study.
13. The accused then stole [the complainant]'s car keys and his car (a white Honda Accord reg no. 1DHD 390).
14. The accused began to drive away in [the complainant]'s car and hit other vehicles parked in the driveway and damaged the driver's side door as he did so. He also drove into a plant pot and smashed that.
15. [The complainant] found a black sports bag on the porch outside his front door that the accused left behind. In that bag there were numerous items including a NAB debit card and a right hand glove.
16. When [the complainant] went back into his house he saw blood on the floor and the damaged kitchen door. There was also blood on his clothing. Forensic testing has shown all of this to be the blood of the accused.
17. Police attended the scene of this incident shortly after 10am.
18. An ambulance was also called and attended to [the complainant] who had a bump on his head. He did not go to hospital.
19. Police were alerted to look for the accused in the Gosnells area as they had information he had a connection with a property at 70 Bert Street.
20. Police were then also alerted to an abandoned vehicle in a childcare centre carpark at 7 Evelyn Street, Gosnells.
21. At about 10.24 am police located the vehicle and confirmed it to be [the complainant]'s stolen vehicle. The police also found there to be blood on the steering wheel and other parts of the vehicle. A sheepskin car seat cover was missing from the driver's seat. A left hand glove (matching the right hand glove found in the bag left behind by the accused at the scene of the robbery) and a red and black screwdriver were found on the passenger seat. Forensic examination of this vehicle revealed the blood belongs to the accused.
22. At about 10.45am the accused was located at [a property] in Gosnells, placed under arrest and removed from that address by an ambulance. He was suffering from the injuries which he caused to himself when he kicked in the door at [the complainant]'s home.
23. Police also carried out a search of the [Gosnells property] and located a blood stained sheepskin car seat cover in a bin on the property. It appeared to be the car seat cover missing from the driver's seat in [the complainant]'s car. Forensic testing of the seat cover provided a positive match to the DNA of the accused. (original emphasis)
Evidence of the complainant
4 To establish the disputed facts the State relies upon the oral testimony of the complainant as well as a number of photographs of the scene of the offence (which were tendered without objection).
5 The complainant gave evidence that he is currently 58 years of age. He said that he was in his home office answering emails when the doorbell rang at about 10.00 am on 25 September 2013. He said that he got up to answer the front door, opened the door partially and saw a face he did not recognise near to the door. He then saw a flash of a mallet coming down and an explosion of an opaque glass panel of the door which was located at his eye level. The accused then entered into the doorway repeatedly screaming 'you motherfucker', raising his hands at, or just above, head level holding a mallet and screwdriver. The complainant screamed back 'hey, hey', and stepped backwards. The complainant described the mallet as a metal square-headed mallet. He described the screwdriver as being approximately 10 - 15 cm long beyond the handle.
6 The complainant gave evidence that the accused then grabbed a jarrah pedestal about 1 m tall and thrust the pedestal at him, holding the pedestal with both hands. The complainant did not see what happened to the mallet and screwdriver at this time. As the pedestal was thrust at the complainant, he fell backward onto his behind, hitting his head on the wall in the corridor. As soon as the pedestal was dropped, the complainant saw the accused standing over him with a mallet in his right hand and a screwdriver in his left hand. The complainant then stood up and backed off calling 'hey, hey'.
7 The accused then came towards the complainant again, with the mallet and screwdriver raised. The complainant backed into the kitchen, and was standing between 0.5 m and 1 m inside the kitchen door, when the accused began to bring the mallet down. The complainant responded by grabbing the kitchen door and closing it, in order to put the door between him and the mallet. The mallet connected with the kitchen door. The complainant then opened the door and saw the accused backing off. He said he opened the door almost immediately - about half a second - after the mallet struck. The complainant said that he opened the door as he thought that, because of the weight of the mallet, he had a moment to open the door and thought that he needed to know where the accused was for his own safety.
8 The complainant then saw the accused backing off down the hallway into the entrance way. The complainant followed him and picked up the larger part of the pedestal. The accused retreated towards the front door and left through that exit. The complainant followed the accused, pressing a panic button on the front door as he left the house. As he exited, the complainant realised his car had started and saw the accused standing by the complainant's car with the front door open.
9 The complainant called out and the accused jumped in the car, reversing with the driver's door still open. The driver's door impacted on a side fence, bending the door. The accused then struck a car owned by the cleaners, which was parked behind the complainant's vehicle.
10 The complainant ran to the carport. He noticed the accused look at him, put the accelerator down, and drive towards the complainant. As the complainant jumped out of the way, the vehicle smashed into a pot plant. The accused then reversed the vehicle again, driving between two other cars parked in the driveway. The accused drove off in the complainant's car and the police were called.
11 The photographic evidence tendered by the State shows the kitchen door which has evidently been damaged by a mallet, the broken panes of the front door, the pedestal, the damage to the fence caused by the car door and the broken plant pot.
Evidence of the accused
12 The accused gave evidence that, on the morning of the offence, he had driven to Kensington in a green Holden sedan after earlier being pursued by police. He parked in a driveway on the complainant's street in Kensington with the intention of hiding. He said in his evidence-in-chief that he went to the complainant's house because it was the closest house. (It was common ground between the State and the accused that the accused had parked the Holden car a number of houses away from the complainant's residence.)
13 The accused said that he took a bag with him to change clothes. He said he rang the complainant's doorbell and smashed the window of the front door. He said that he smashed an upper glass panel of the door with his right hand and cut a ligament or tendon of his hand. He said he was holding a mallet in his right hand at this time. He said he also broke the bottom panel of the door with his right foot causing damage to his calf, which he described as pretty bad. Both his right hand and calf were bleeding. He was in a lot of pain and said that he did not have much grasping strength in his right hand.
14 The accused said that, after he broke the panel, the door opened and he saw the complainant about a metre in front of him. He said he had a screwdriver and mallet in his hands at that time, but could not recall which instrument was in which hand. The accused said he swore at the complainant and could not lift the mallet, recalling that it was below his waist.
15 The accused said that the complainant walked into what the accused now knows was a kitchen and closed the door. The accused said he hit the door with the mallet held in his right hand when the door was already closed.
16 The accused denied swinging anything at the complainant and said that he did not pick up the pedestal at all. The accused said that, after he hit the kitchen door and started backing away, he spotted a set of keys on a shelf. He took the keys and went to the complainant's car, walking backwards. He got in the car and started the vehicle. At this point he saw the complainant at the front door.
17 The accused said that, as he put the complainant's car in reverse, the car door struck a fence, so he went forward and then reversed out. He said he did not recall bumping into a plant pot or the owner jumping out of the way of the car. The accused said that the owner was at the front door during the time the accused was moving the car and that the accused was watching him. The accused said he put the car into reverse and escaped.
Assessment of the complainant's evidence
18 The complainant struck me as a level-headed and reliable witness. He was willing to concede matters of which he was not sure, while being firm about events of which he was certain. He said on a number of occasions during his evidence that his focus during the incident was on the accused's eyes and hands. Given the events that were unfolding, it is readily understandable why the complainant's focus would be on the weapons being wielded against him and the eyes of the person holding those weapons.
19 The complainant was certain that the accused had come at him into the house with the mallet and screwdriver raised in a threatening manner, that the accused had thrust the pedestal at him and that the accused had swung the mallet at the complainant, which the complainant had blocked by closing the kitchen door. The objective photographic evidence was consistent with the complainant's account of events.
20 It was put to the complainant, and he accepted, that the written statement he provided to police did not include certain matters about which he had given evidence, or differed from his evidence in certain respects. However I regard the omissions or differences from the police statement as being minor in nature and am of the view that, despite those omissions and differences, the complainant was both an honest and a reliable witness.
Assessment of the accused's evidence
21 On the other hand, I did not regard the accused as an honest or reliable witness.
22 The accused's evidence that he went to the complainant's house because it was closest to where he abandoned the green Holden was demonstrably incorrect.
23 The accused said that he took a bag with him to change clothes, but the bag contained no clothing other than a pair of socks and did not contain any belongings of the accused other than a bank card.
24 The accused gave evidence in cross-examination that he abandoned the Holden because it ran out of petrol and he was intending to get petrol and return the Holden to his sister straightaway. That was inconsistent with both his earlier and later evidence that he was going to the complainant's house to hide following the police chase, which had occurred only some 10 minutes earlier.
25 The accused said that he only stole the car because he had hurt himself and was trying to get to hospital before he bled out. However, rather than driving to hospital he drove to a house in Gosnells at which his mother was present. The accused did not know the distance between Kensington and Gosnells, but I take judicial notice that the locations are about 15 km apart.
26 The accused gave evidence that he was affected by amphetamines, having taken 'heaps' of amphetamines a few minutes before the police pursuit and within an hour of his arrival at the complainant's house. He said the effect of the amphetamines was to induce paranoia and hallucinations, although he maintained that the reliability of his recollection of events was not affected. I find that the accused's perception of events must have been affected by the significant quantity of amphetamine which he had used and the hallucinations he was experiencing.
27 The accused claimed that he had no difficulty in recollecting the incident, yet was unable to explain why he acted in the manner he described in a number of respects. He was not sure why he held onto the mallet and screwdriver after gaining entry to the complainant's house. He was unable to explain why he struck the kitchen door with the mallet.
28 In the end, the accused did accept that he might have used the mallet, which he said may have been metal or wood, when he broke the upper glass panel of the complainant's front door. The accused said he had a mallet in his right hand and a screwdriver in his left hand at that time and said that he anticipated that he might be injured if he broke the glass with his hand. He was unable to explain why he would have used his hand rather than the mallet.
29 In considering the accused's evidence I take account of the fact that he is not a sophisticated person, he was not able to read the affirmation himself and he has a very limited vocabulary. Allowing for that fact, and also having regard to the other matters referred to above, I am unable to conclude that the accused has given a reliable account of the circumstances of the offence.
Findings of fact
30 Having considered the evidence of both the complainant and the accused, I am satisfied beyond reasonable doubt that the account given by the complainant generally reflects the events which in fact occurred.
31 In doing so I remind myself that facts which aggravate the circumstances of the offence must be proven by the State beyond reasonable doubt.
32 I also remind myself that the accused did not have to give evidence and it is not enough that I reject the evidence of the accused.
33 In considering this matter I bear in mind that, even though I find that the accused's answers were not convincing, if those answers leave me in a state of reasonable doubt as to the true position, then the accused is entitled to the benefit of that doubt. Even if I do not believe the accused's evidence, I cannot find an issue against the accused contrary to his evidence if that evidence, or any other evidence, has given rise to a reasonable doubt on that issue. The question will remain whether the State has, on the basis of the evidence that I do accept, proved the relevant fact beyond reasonable doubt.
Use of the mallet to break the glass door panel
34 I am satisfied beyond reasonable doubt that the accused smashed an upper glass panel of the entry door to the complainant's house. I am also satisfied that as the accused did so he held a mallet in his right hand. I cannot, however, be satisfied beyond reasonable doubt that it was the mallet, rather than the accused's hand, which actually broke the glass panel.
35 The complainant's evidence-in-chief was that 'I have this flash of the mallet coming down at the door panel' before there was an explosion of glass. In cross-examination he described this as 'a vision of something flashing and then the explosion of glass'. The complainant conceded, during cross-examination, that he could not be 100% sure about what was used to break the panel.
36 The accused's evidence is that he was, at that time, holding a mallet in his right hand, which he accepts might have been used to break the panel. The accused's evidence was that the reason he brought the screwdriver and mallet was to gain entry into the complainant's house. The accused also gave evidence that he appreciated the risk of injury which breaking the glass window with his hand would involve.
37 In my view, the evidence established that the accused swung his hand at the upper glass panel of the complainant's door while holding a mallet, but does not enable me to be satisfied to the criminal standard as to whether it was the mallet or the accused's hand, or both, which made contact with the glass panel. In either case, the complainant could have observed the flash of the mallet coming down just prior to the window breaking. It is probable that the accused used the mallet, which he actually had in his hand for the purpose of gaining entry to the house, to break a glass panel of the door. However, the serious injury which the accused sustained to the back of his hand is consistent with his hand, rather than the mallet, having struck the door.
38 Having regard to all the evidence, I conclude that the accused smashed an upper glass panel of the door using either his right hand or a mallet which he was holding in his right hand. I do not consider that the question of whether the mallet or the accused's hand made contact with the door to be of any significance for the exercise of my sentencing discretion.
Threats with the mallet and screwdriver
39 I am satisfied beyond reasonable doubt that, on entering the complainant's house, the accused raised both the mallet and the screwdriver to head height in a threatening manner. This was not a matter about which the complainant was likely to be confused or mistaken, given his focus on the weapons being wielded by the accused. I do not accept the accused's evidence that he could not raise the mallet because of his injured right hand. It is clear from the accused's own evidence that, a short time later, he did in fact raise the mallet with his right hand and bring it down with considerable force on the kitchen door, causing significant damage to the door.
Assault with the pedestal
40 I am also satisfied beyond reasonable doubt that, as the accused approached the complainant, the complainant fell back, landing on his backside, and bumped his head on the wall behind him. Again, this is not an event about which the complainant is likely to be mistaken. The complainant's version of this event is also supported by the injury to his head, which has no other explanation on either account.
41 Counsel for the accused relied on the fact that there were no marks on the wall where the complainant says he hit his head. I do not find this surprising as, in a collision between a human head and masonry, it is not surprising to see that it is the head rather than the wall which suffers visible injury. Photographic evidence of the bump sustained to the complainant's head was tendered by the State.
42 I am not satisfied beyond reasonable doubt that the event which caused the complainant to fall backwards was the accused picking up the jarrah pedestal that was in the hallway by the door and thrusting it towards the complainant at chest height. There are a number of features of the complainant's evidence which give rise to a doubt as to whether the complainant's evidence about the pedestal was accurate.
43 First, it was conceded by the State that no blood was located on the pedestal. This would be a surprising outcome if the accused had picked up the pedestal, given the amount of blood spatter evident at the crime scene. If the accused's hand was bleeding significantly, then it would be expected that some blood from the hand used to pick up the pedestal would be found on the pedestal.
44 Secondly, the pedestal was a rather cumbersome and bulky weapon. The accused was, on both the complainant's and his own account of events, already armed with a screwdriver and mallet when he entered the complainant's house. He had no cause to pick up the pedestal when he already had two weapons in his hands.
45 Thirdly, the complainant's evidence does not describe what the accused did with the hammer and screwdriver when he is said to have picked up the pedestal with two hands. The bulk of the pedestal is such that it would appear necessary for the accused to put the weapons he was carrying somewhere when he wielded the pedestal. However, the complainant did not see the accused drop or put down the screwdriver and mallet. The complainant observed the accused standing over him, holding the screwdriver and mallet, immediately after he fell. I have difficulty in visualising exactly how the sequence of events involving the screwdriver, mallet and pedestal would have occurred in the manner described by the complainant.
46 Fourthly, the incident involving the pedestal occurred immediately before the complainant fell and sustained a significant blow to his head. The complainant accepted that he was dazed, even if only momentarily.
47 Fifthly, the complainant gave evidence that he did not suffer any injury to his chest. Some sign of injury might have been expected if the complainant was hit in the chest with a jarrah pedestal with enough force to cause him to fall backwards.
48 Having regard to all the evidence, I cannot exclude the reasonable possibility that the complainant was mistaken when he recalled the accused picking up the pedestal. There is a reasonable possibility that the complainant fell backwards and hit his head as the accused charged at him through the doorway, and is mistaken about the use of the pedestal to produce that result.
49 Having considered all of the above matters I conclude that, while the complainant's account is an honest and reliable account of what occurred, the use of the pedestal described in his evidence is a matter about which the complainant could be mistaken. I will sentence the accused on the basis that, as the accused entered the complainant's house, the complainant fell back, landed on his backside and bumped his head on the wall behind him, causing a small cut and bump to the back of the complainant's head.
Swinging of the mallet at the complainant
50 I am satisfied beyond reasonable doubt that the accused swung the mallet at the complainant, and that the complainant blocked the mallet by closing the kitchen door.
51 Counsel for the accused said that if the accused had intended to strike the complainant with a mallet, then the best opportunity would have been while the complainant was on the floor after being pushed with the pedestal. However the fact that the accused did not take that opportunity is not inconsistent with him taking a similar opportunity, perhaps having subsequently formed the intention, at a later point in time.
52 In my view the damage to the door was consistent with the complainant's account, as there is a significant hole created by a mallet at around the complainant's eye level. The accused was unable to give any adequate explanation as to why he struck the door in the manner he described. He said that he was angry at himself and a number of other things, but that does not explain why he directed the anger at the door which he says the complainant was behind. The complainant's account, which I generally accept, is one of sustained aggression directed by the accused towards the complainant.
53 Counsel for the accused said that the complainant had not taken the opportunity to escape via an exit to the outside from the kitchen when the internal kitchen door was closed. However, the complainant explained why he instead opened the kitchen door which the accused had just struck. He felt that he had a moment to do so and thought that he needed to know where the accused was for his own safety.
Other matters
54 I do not find it necessary to make any finding about the disputed fact at par 10 of the statement of material facts, as that is not a matter which has any significance for the exercise of my sentencing discretion.
55 The State asked that I find that the accused drove the complainant's vehicle into a plant pot in the carport and smashed the pot. The State also asked me to find that the complainant was in proximity to the pot plant at this time. The State does not contend that the accused drove towards the complainant with the intention of hitting him. Based on the complainant's evidence I do make a finding in the terms suggested by the State.
Conclusion
56 For the above reasons, I find the circumstances of the offending in relation to the armed robbery count to be as described in the statement of material facts in relation to that count, subject to:
(a) the substitution of par 4 with the following finding:
As the complainant began to answer the door the accused smashed an upper glass panel on the door using either his right hand or a mallet which he was holding in his right hand. Shards of glass flew past the complainant's face.
(b) the substitution of par 9 with the following finding:
As the accused entered the complaint's house the complainant fell back, landing on his backside but also smashing his head on the wall behind him. He received a small cut and bump to the back of his head.
(c) the deletion of the first sentence of par 10; and
(d) the addition of the facts referred to in the previous paragraph of these reasons.
0
0
1