W (a child) v Vinning - [2009] WASC 295

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: W (a child) -v- VINNING [2009] WASC 295

CORAM: EM HEENAN J

HEARD: 21 AUGUST 2009

DELIVERED : 21 AUGUST 2009

PUBLISHED : 31 AUGUST 2009

FILE NO/S: SJA 1023 of 2009

BETWEEN: W (a child)
Appellant
AND
RODERICK THORN VINNING
Respondent

Catchwords:

Appeal against conviction and sentence - Assault with intent to rob - Sufficiency of evidence to support finding of intent to steal - Issues of credibility - Sentence of three month YCBO

Legislation:

Nil

Result:

Appeal against conviction dismissed
Appeal against sentence dismissed

Category: B

Representation:

Counsel:

Appellant: Ms S H Prince
Respondent: Mr D Carson

Solicitors:

Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Nil

EM HEENAN J: This appeal is against a conviction of the appellant for an offence of aggravated assault with intent to rob. The details of the offence are set out in the prosecution notice which charged that on 22 August 2008 at Perth with intent to steal the appellant used violence against 'A' in order to obtain cash to the value of $50 which she so intended to steal and that the appellant was in company with another person, 'D', and that 'W' did bodily harm to 'A'.
The circumstances are that at about 11.30 pm on 22 August two groups of girls came into contact with one another in Forrest Place in Perth. The victim, 'A', was accompanied by a friend, 'B', and perhaps some others.
The appellant, 'W', was also with a group of friends which in total may have been four or perhaps more. There is no doubt that the appellant assaulted 'A' by punching her to the face something in the region of six times and causing her bodily injury. Nor is there any doubt that it was done in company and that one or more of the companions of the appellant also struck the victim.
The appellant offered to plead guilty to a charge of assault in company doing bodily harm but that plea was not accepted and the matter went to trial essentially on the issue of whether or not the assault in company and the doing of bodily harm was accompanied by an intention to steal.
Evidence from the appellant was that the assault which had occurred was in response to her being called an offensive name with a racist slur by the victim and that for that reason she punched 'A' to the head or face once and then moved away, but on her hearing the victim make another racial slur this caused her to go back and hit her a number of other times, possibly making the total six blows.
In her video record of interview the appellant said to the police officer that she would have stopped striking the victim if the victim had given her 'the money', representing $50 of an alleged debt of $125. She confirmed that that was the case in the course of her cross‑examination in the trial. It was her case that 'A' was indebted to her as a result of a roundabout transaction with her sister in an amount of $125 which she had not paid, but she expressly denied in the course of the trial hitting 'A' because of the debt or because of any demand for the payment of debt and said that the first blow and indeed the others were entirely the result of racial insults.
However, that is inconsistent with other passages in the video record of interview in which 'W' said at least twice that she had spoken to 'A' in the course of the assault in between blows the words, 'You still owe me money', and on answer to the question, 'If she had given you the money you would have stopped hitting her?' that she would.
'W' also said in her video record of interview that the victim did not say anything to her before the assault; only that she just said, ' "Please don't hurt me"; that's all she said, she didn't say anything about money'. That seems to be inconsistent with the explanation that the assault was a sudden one caused by the provocation of racial insults.
The question of whether racial insults were made or not was an issue in the trial. The victim, 'A', denied this and maintained her denial after cross‑examination saying that she had never insulted the appellant in racial terms or otherwise.
Her companion 'B' also said that there had been no racial insult or any other insult offered in her hearing. 'B' was not cross‑examined about that. The learned Magistrate concluded that no such racist comment was made by 'A' towards 'W'. At page 40 of the transcript in his reasons for decision the learned Magistrate said:
The reason I am satisfied on the facts that that is what has happened, that there was an asking of money, not a telling or reminding of the debt, an asking for money, is that I equally don't accept the evidence that there was any racist comment ever made by [A] towards [W]. [A] struck me certainly as a nervous witness and a person with less guile, if you like, than [W]. [W] struck me as an intelligent, insightful young woman as a witness who was awake to the best way to chart a course through her evidence. I say that for a number of reasons and I don't believe her because very early in the video she said in answer to what seemed to her to be an innocuous question from Constable Vinning that if [A] had given her money she would have walked away.
Then at the foot of page 140:
I do positively believe [A] that she did not make such a racist comment or either of the two alleged racist comments to [W] and I say that with [A] bearing in mind my comment earlier on that I can take what part of a witness says, all of it or none of it in the fact-finding process.
That somewhat contorted observation by his Honour was a reference to an earlier passage in his reasons where he concluded that part of the evidence given by 'A', the complainant, in which she denied any prior knowledge of 'W' was wrong and untrue, and that, therefore, she was, at least to that extent, an unreliable witness.
His Honour demonstrably and expressly acknowledged that care in the evaluation of that evidence was needed but that nonetheless he accepted the denial that no racial insult or insults had ever been offered. That is an important part of the case because not only does it go in a serious way to an assessment of credit of the witnesses giving conflicting versions but the rejection of the explanation of a racial insult means that the assault was otherwise completely unprovoked.
It is in that situation that the other evidence for the prosecution comes to be assessed. 'A' and 'B' each said initially in effect that they had been in Forrest Place at that time that night and that 'W' had come up to them and had started asking 'A' about payment of the money that was said to be owed to her. According to them 'A' replied by saying that she didn't owe any money, she didn't have any money with her and that she wasn't going to make any payment, whereupon she was immediately punched in the face.
Nursing the wound, sitting on the ground, 'A' then was punched several other times by the accused and her companions. When I said sitting on the ground I think there was a period when she may have been sitting on the ground but after that she got up when she was struck on the second series of assaults.
In her evidence-in-chief and in cross‑examination it appeared that 'A' was uncertain whether or not reference to repayment of a loan was actually said before the first assault, at least in her evidence-in-chief. In the cross‑examination of 'B' she gave answers which were capable of being understood as meaning that there was no discussion about money or payment of a loan or $50 or anything to that effect until after the assaults were over and she and the victim were on their way to the railway station looking for help and to report what had occurred.
However, the learned Magistrate accepted that there had been a demand for money made prior to the first assault and in effect repeated during the course of the second group of blows. That is consistent with the substance of the evidence-in-chief from the prosecution witnesses although that was somewhat blurry. It is even more consistent with the accused's record of interview.
There was plainly evidence which the learned Magistrate could accept and which he did accept in coming to the conclusion that the assault had been undertaken and persisted in with a view to obtain money from the victim 'A' and he rejected the denials.
Those were important decisions for his Honour to make on matters of credit but they were essential for a determination of the case and they were open to his Honour. No error has been demonstrated which would justify any appeal court interfering to set aside or vary those findings or their consequences.
The next group of issues which arise in the numerous grounds of appeal which have been compendiously developed in the written submissions and equally compendiously addressed by the written submissions in response is that this, at the most, was an assault amounting to an attempt at extortion rather than any immediate desire to steal money.
The substance of the submissions is to the effect that the assault was not accompanied by any attempts to snatch a bag or a wallet or to actually forcibly discover whether or not the victim was carrying money and that it was in the nature of a warning or a menace about the consequences of failing to discharge a debt. So it was submitted that there was therefore no intention to steal and that the offence was, at the most, a serious assault.
There may be circumstances where such an analysis is the correct determination of events which might be regarded as comparable but in this case the frank acknowledgments by the accused in her record of interview and again at the trial that she would not have assaulted the victim or would have ceased assaulting her had the debt been paid over, is the clearest acknowledgment that the purpose of the assault was forcibly to require the payment of money.
It was further submitted on behalf of the appellant that the learned Magistrate neglected to make any specific finding on the crucial issue of whether or not there was any debt and that this was a significant and fatal flaw in his analysis of the question of whether or not there had been an intent to steal. I do not, with respect, consider that that submission should be accepted. It is true that his Honour has not proceeded to make a definite finding of whether or not there was a debt but the situation was that 'A' always denied owing the appellant any money. 'B' did not know whether there was money owed or not, although she was prepared to infer that there might have been, and the evidence of the accused was simply not believed.
In those circumstances it appears to me that his Honour has proceeded in the clearest way on the assumption that there was no debt. Even if the contrary had been found, assault with attempt actually to obtain money would nevertheless be a stealing as opposed to an assault which was intended to induce payment on a voluntary basis then or later. I am satisfied that the learned Magistrate had these issues plainly in mind because they were addressed specifically in the course of submissions by counsel immediately before his Honour gave his reasons for decision.
Accordingly, I do not consider that there is any basis which discloses an error of law when it came to his Honour's conclusion that there had been satisfactory proof to the requisite degree of an intention to steal. For those reasons I consider the appeal against conviction should be dismissed.
In relation to the appeal against sentence the circumstances are that the appellant, then aged 14 or 15 years, and being dealt with in the Children's Court in circumstances where she had previously been diverted to the juvenile justice team without complete success, had been in custody because of inability to secure suitable bail or alternative accommodation for a period of 71 days. It was submitted on her behalf that that is equivalent to service of a sentence of imprisonment of 142 days. There may be some justification for that merely as a matter of arithmetic, but it was not treated as being a sentence of imprisonment at that time and there were other reasons why the appellant remained in custody. However, I am prepared to deal with the appeal against sentence on the footing that, in effect, the appellant had endured the equivalent punishment that would have occurred had she been immediately sentenced to a term of 142 days' imprisonment.
In fact what happened was that she was given a three-month YCBO, a youth community based order, which, as counsel for the respondent has correctly pointed out, is the most lenient penalty which could be imposed in the Children's Court, short of a dismissal of the charge, and for the minimum period.
It is quite evident that the appellant was living in very unsatisfactory circumstances. She had been living on the streets and drinking heavily. The parental accommodation was less than satisfactory and her young age made it very clear that she was in need of guidance, supervision, encouragement and monitoring.
In my view the imposition of a three-month YCBO in those circumstances could only be regarded as a lenient and protective penalty and certainly not one demonstrating any kind of error in the exercise of the sentencing discretion. For that reason I also dismiss the appeal against sentence.