Wade v The Queen
[2001] WASCA 252
•24 AUGUST 2001
WADE -v- THE QUEEN [2001] WASCA 252
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 252 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:63/2001 | 18 JULY 2001 | |
| Coram: | MALCOLM CJ ANDERSON J McKECHNIE J | 24/08/01 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | MARIO RENE WADE THE QUEEN |
Catchwords: | Criminal law Sentence Aggravating factors Circumstances of aggravation Uncharged acts Role of jury in fact finding for sentence Role of Judge |
Legislation: | Criminal Code (WA), s 400(1), s 401(a)(i), (iv) Sentencing Act 1995 (WA), s 6(2), s 7 |
Case References: | R v De Simoni (1981) 147 CLR 383 R v Newman & Turnbull [1997] 1 VR 146 R v Olbrich (1999) 199 CLR 270 Ward (1999) 109 A Crim R 159 Butler (1989) 44 A Crim R 215 Dinsdale (2000) 115 A Crim R 558 Gavin v The Queen (1992) 6 WAR 195 R v GP (1997) 18 WAR 196 R v Liddington (1997) 18 WAR 394 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : WADE -v- THE QUEEN [2001] WASCA 252 CORAM : MALCOLM CJ
- ANDERSON J
McKECHNIE J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sentence - Aggravating factors - Circumstances of aggravation - Uncharged acts - Role of jury in fact finding for sentence - Role of Judge
Legislation:
Criminal Code(WA), s 400(1), s 401(a)(i), (iv)
Sentencing Act 1995(WA), s 6(2), s 7
Result:
Appeal dismissed
(Page 2)
Category: A
Representation:
Counsel:
Applicant : Mr D McKenna
Respondent : Mr D Dempster
Solicitors:
Applicant : Director of Legal Aid
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
R v De Simoni (1981) 147 CLR 383
R v Newman & Turnbull [1997] 1 VR 146
R v Olbrich (1999) 199 CLR 270
Ward (1999) 109 A Crim R 159
Case(s) also cited:
Butler (1989) 44 A Crim R 215
Dinsdale (2000) 115 A Crim R 558
Gavin v The Queen (1992) 6 WAR 195
R v GP (1997) 18 WAR 196
R v Liddington (1997) 18 WAR 394
(Page 3)
1 MALCOLM CJ: I agree with the reasons to be published by McKechnie J. I have nothing further to add.
2 ANDERSON J: I have had the advantage of reading in draft the reasons for judgment of McKechnie J with which I agree and to which there is nothing I wish to add. I would dismiss the appeal.
McKECHNIE J:
Introduction
3 This is an application for an extension of time for leave to appeal against sentence and an application for leave to appeal. In order to decide the application for extension of time the court allowed argument on the substantive issues raised in the application for leave to appeal.
Application for time within which to appeal
4 I would grant the extension. The trial occurred in Kalgoorlie on 1 and 2 February 2001. Transcript was unavailable.
5 A request for transcript was made some 12 days later. The transcript was not received until 6 March.
6 The application was not made until 17 April 2001. The circumstances of the delay between 6 March and 17 April 2001 are left entirely unexplained by the applicant's solicitor in her affidavit seeking an extension of time. This is unacceptable. However, she deposes that the delay was not due to fault on the part of the applicant. He was in prison at all relevant times.
7 The delay, although unexplained, is not so great as to cause particular prejudice to the Crown. In the circumstances I would grant leave to extend time.
The application for leave to appeal against sentence
8 The applicant was charged on indictment which read:
"(1) On 14 January 2000 at Kalgoorlie, MARIO RENE WADE being in the place of BRENDON JOHN GRAY
(Page 4)
- without his consent, being a place ordinarily used for human habitation, committed the offence of assault.
AND THAT MARIO RENE WADE was armed with an offensive weapon, namely a Taser stun gun.
AND THAT MARIO RENE WADE was in company with another.
- (2) AND FURTHER THAT on the same date at the same place MARIO RENE WADE unlawfully wounded BRENDAN JOHN GRAY."
9 He pleaded not guilty to count 1 and guilty to count 2.
10 The trial on count 1 proceeded on 1 and 2 February.
11 He was convicted after trial and sentenced to a term of 5 years imprisonment with a parole eligibility order. He was sentenced to a term of 1 year's imprisonment on the count of unlawful wounding to be served concurrently with the sentence in respect of aggravated burglary.
The grounds of appeal
12 The grounds of appeal amended by leave at the hearing are as follows:
"The sentence of 5 years imprisonment imposed upon the applicant for the aggravated burglary was manifestly excessive in that:
(a) The learned sentencing Judge sentenced the applicant on the basis that he had committed the burglary with an intent to torture the complainant and had in fact assaulted the complainant and cause him bodily harm, when the issue was contested and the jury had not returned a verdict upon it, adverse to the applicant;
(b) The learned sentencing Judge failed to give sufficient weight to the antecedents of the applicant."
13 Although this is an appeal against sentence, the grounds of appeal require some consideration as to the evidence led at the trial.
(Page 5)
The Crown case
14 The Crown case in summary was that a Mr Brendon Gray, the complainant, owned a house in Addis Street, Kalgoorlie. He had a girlfriend, Ms Willis, who was the ex-girlfriend of the applicant, although they had parted company some time before 14 January 2000.
15 The Crown case was that the applicant armed himself with a Taser stun gun, a device capable of inflicting an electric shock, and, in company with another person, went to Mr Gray's house. A young girl opened the door and told the applicant and the other man that the complainant was asleep. They then barged past her into the house. The applicant went into the bedroom where the complainant was in bed and he shut the door. The complainant was then asleep. The applicant got on the bed and kicked the complainant, before inflicting on him an electric shock with the Taser.
16 He then hit the complainant over the head with the Taser causing a laceration which was the subject of the count of unlawful wounding. There was a disturbance and the applicant left the house.
17 In essence, the applicant said that he was let into the house by the young girl who identified the room in which the complainant was asleep. He went to the room. There was a scuffle which broke out between the two men. The applicant hit the complainant with his fist, took the Taser from his pocket and hit the complainant on the top of the head with it. He denied giving the complainant an electric shock and gave evidence that the Taser did not work. The reason why he had the Taser was to scare the complainant. As he said:
"Just I was going to scare him - by him seeing it just to give him a scare.
How did you expect that to scare him?---Just by looking at the thing."
The changing nature of the Crown case
18 The pleaded issue in the indictment made it necessary for the Crown to prove that the applicant had committed the offence of assault. In order to sustain the relevant circumstance of aggravation it was necessary for the Crown to prove that the applicant was armed with an offensive weapon, namely the Taser.
(Page 6)
19 In opening the case in relation to the assault, the Crown prosecutor specified the applicant's act of kicking the complainant as the relevant assault:
"Inside the bedroom the Crown says the accused man stood on the bed of Mr Gray who was then asleep when the accused first got on the bed, and kicked him. You will notice that the charge against him alleges that he went into the house and assaulted Mr Gray. If you find a kicking, that would be an assault on Mr Gray. If you find he was there without consent, that would mean the charge had been proved."
20 The Crown prosecutor in opening then narrated that the applicant also used the Taser under the left arm of Mr Gray and gave him an electric shock.
21 At the close of the Crown case the trial Judge, in the absence of the jury, raised with the Crown prosecutor what it was the Crown was particularising as to the assault.
22 The Crown prosecutor resiled from the clear statement in opening that the Crown was relying on the kick. He said:
"… The Crown says, look, he went there. There was a series of incidents closely connected with what was essentially assault
… They included kicking him, kneeling on him and zapping him."
23 After further discussion the Crown prosecutor told the Judge:
"Well, in that case we would say it's the assault with the Taser stun gun, but can I say that that assault - that might be an assault even if there wasn't an electric shock attached to it."
24 Following the interchange the trial Judge advised counsel for the applicant:
"… I thought I should raise the matter at this stage partly in fairness to the jury but partly in fairness to your client so that you understood what the crown was. The alleged assault part of the first paragraph then is the application of force with the stun gun in the chest or rib area of the complainant and that's what the crown is relying upon as the assault.
(Page 7)
- Now, the question of whether it was working or not is not an essential element to that, although it would make it more serious if it was and that would be a matter I would need to consider if the jury finds a verdict of guilty but the essential thing the crown is saying is that that's the assault, not the kicking of or the kneeling on or those sorts of matters, although no doubt they're part of the res gestae anyway. …"
- Thereafter the applicant gave evidence.
25 In his closing address to the jury, the Crown prosecutor said:
"The crown says you only have to look at exhibit 5 and you will see where the accused has been scratched, and we say - particularly and perhaps more importantly, Mr Gray says that he was - that mark there, the scratch on the left-hand side, was caused by the stun gun which is exhibit 1. The accused in his evidence doesn't really deny that in many respects. He says, 'Well, you know, the stun gun may have come into contact with Mr Gray during the struggle.
We would say if that was the case then that would be sufficient to found the charge of assault, …"
26 The trial Judge in instructing the jury as to this aspect of the case said:
"… The crown is relying upon the use of the stun gun on the complainant's side.
An assault is an application of force without consent. There is no issue of consent here. Consent can often happen. Footballers trading bumps or boxers trading blows consent to being assaulted but that is not the sort of thing here at all. There is no issue of that. The issue really is did it happen at all. Did the stun gun come into contact with the complainant's side? I have already spoken to you about some of that in relation to the evidence, the conflicting evidence between the two men, as to when the stun gun was produced, as to how it was used, what use it was put to. There is the photograph that you can consider. So these are matters that you must decide.
You do not have to decide whether or not the stun gun worked. That is not an element of the offence. An assault is an application of force so that the mere striking or applying the
(Page 8)
- stun gun to the side of the complainant would be an assault if it happened. It does not matter. It is not relevant whether or not there was an electrical charge which was activated as part of that.
An assault must be unlawful. An assault is unlawful unless it is authorised, justified or excused by law. Matters such as self-defence or provocation or accident can excuse an assault but they do not arise in this case. This is a straight conflict. The complainant says the accused deliberately assaulted his side with a stun gun and zapped him. You will recollect his evidence was that when he was woken up, the complainant got on top of him, straddled him and threatened him with the stun gun and during the course of that it was placed against his side and it was activated and it gave him an electric shock."
27 The trial Judge dealt with the relevant circumstance of aggravation as follows:
"The first is that Mario Rene Wade was armed with an offensive weapon, namely, a Taser stun gun. Many things can be an offensive weapon. Anything that can be used in an offensive way is, so the stun gun, whether working or not, is an offensive weapon. In fact the accused admitted he took it with him to frighten the complainant. So in the circumstances I do not think you would have much difficulty with finding that the accused man, on his own evidence, was armed with an offensive weapon."
28 Although the Crown had opened the trial on the basis of one particularised assault, by the end of the trial the ground had shifted and the Crown was relying upon the application of force by use of the Taser, but not the electric shock. No objection to that course was taken by counsel for the applicant. The Judge's directions to the jury expressly withdrew from their consideration determination of the question whether the applicant had given the complainant an electric shock.
The fact finding at sentence
29 Following the applicant's conviction the trial Judge adjourned sentencing for a period to obtain a pre-sentence report.
30 He specified his duty in fact finding correctly as follows:
(Page 9)
- "The circumstances in this case were that there was a trial with respect to count 1 on the indictment, that is, the charge of aggravated burglary. My duty is to sentence you on the facts that I find beyond reasonable doubt provided those facts are consistent with the jury's decision. So the comments I make now are the facts that I find proved beyond reasonable doubt, bearing in mind that I can't find something that is not consistent with the jury's decision to convict you."
31 The trial Judge then proceeded to outline the facts which he found as follows:
"… The facts with respect to count 1 were that the complainant was your ex-girlfriend's boyfriend. You were apparently jealous of the relationship and at about 9 o'clock on 14 January in the year 2000 you and another went to the complainant's house in Kalgoorlie. You had worked a night shift and before going to the complainant's house you went to your home and picked up a Taser stun gun. The stun gun is illegal in Australia. It is a hand-held battery device with metal prongs. If touched against the skin and activated, it delivers a painful electric shock.
You went to the complainant's home with your friend and you knocked on the door. The door was opened by an 8-year-old girl, the daughter of a lodger at the home. You and your friend entered the house. You had no consent to do so and, of course, an 8-year-old child would have been unable to give such consent in any event. You went into the complainant's bedroom. He was asleep. You woke him up. You straddled him with him lying on the bed and attempted to force the stun gun into contact with the complainant's skin. There was a struggle. You pressed the stun gun against his side under his left arm and activated the gun causing considerable pain. This was obviously an assault."
32 He made further findings as follows:
"… I find you deliberately armed yourself with the stun gun, an offensive weapon capable of causing significant pain. You went to the complainant's home clearly with the object of using the gun to teach the complainant a lesson and to dissuade him
(Page 10)
- from continuing the relationship with your former girlfriend. That can only be described as an intent to torture him."
33 The learned trial Judge referred to Ward (1999) 109 A Crim R 159 and noted some factual differences between Ward and the present case, but concluded that although the attack was not a savage beating, the weapon with which the applicant armed himself was capable of causing a great deal more pain than most beatings would have done.
34 Although submissions were made to the Judge that a community based order or a suspended sentence of imprisonment might be appropriate, the Judge concluded that the offence was so serious as to warrant an immediate sentence of imprisonment. Before this Court the applicant, through counsel, conceded that the offence did warrant a term of imprisonment unsuspended.
35 The Judge concluded that the circumstances of the offence required a sentence of 5 years imprisonment.
36 The issue raised by ground 1 of the appeal is whether the trial Judge could have regard to the electric shock which he found to have occurred when that issue was expressly withdrawn from the jury's consideration.
Circumstances of aggravation: aggravating factors and uncharged offences
37 The seriousness of an offence must be determined by taking into account, among other things, the circumstances of the commission of the offence and any aggravating factors: Sentencing Act 1995 s 6(2). Aggravating factors are defined in s 7:
"(1) Aggravating factors are factors which, in the court's opinion, increase the culpability of the offender.
(2) An offence is not aggravated by the fact that -
(a) the offender pleaded not guilty to it;
(b) the offender has a criminal record; or
(c) a previous sentence has not achieved the purpose for which it was imposed.
(3) If the statutory penalty for an offence is greater if the offence is committed in certain circumstances than if it is
(Page 11)
- committed without the existence of those circumstances, then -
- (a) an offender is not liable to the greater statutory penalty unless he or she has been charged and convicted of committing the offence in those circumstances; and
(b) whether or not the offender was so charged, the existence of those circumstances may be taken into account as aggravating factors."
38 Section 7 makes a distinction between factors and circumstances. The reference to circumstances is a reference to the provisions of the Criminal Code.
39 Aggravating factors under the Sentencing Act are to be distinguished from circumstances of aggravation under the Criminal Code.
40 The Criminal Code defines circumstances of aggravation:
"The term 'circumstance of aggravation' means and includes any circumstance by reason whereof an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance."
41 The offence with which the applicant was charged was that of burglary under s 401 of the Criminal Code. Section 401 provides that a person guilty of the crime is liable:
"(a) if the offence is committed in circumstances of aggravation, to imprisonment for 20 years;"
42 Section 400(1) defines the circumstances of aggravation for the purposes of Chapter XXXIX - Offences in or in respect of buildings etc as follows:
"(1) In this chapter -
'circumstances of aggravation' means circumstances in which -
(a) immediately before or during or immediately after the commission of the offence the offender -
(Page 12)
- (i) is or pretends to be armed with a dangerous or offensive weapon or instrument;
(ii) is or pretends to be in possession of an explosive substance;
(iii) is in company with another person or other persons;
(iv) does bodily harm to any person;
(v) threatens to kill or injure any person; or
(vi) detains any person (within the meaning of section 332(1));
or
- (b) immediately before the commission of the offence the offender knew or ought to have known that there was another person (other than a co-offender) in the place;"
43 The indictment in this case charged the circumstances of aggravation under s 400(1)(a)(i) but did not charge the circumstance of aggravation under s 400(1)(a)(iv). The fact was that the applicant entered the house because he thought the complainant was inside. It was the whole purpose of his attending the house in the first place.
44 It would be artificial in the extreme for the trial Judge to ignore that fact notwithstanding it did not form part of the pleaded issue in the indictment. The Sentencing Act allows the Judge to take the fact that the applicant knew the complainant was in the house into account as an aggravating factor. If there were no other circumstance of aggravation pleaded, although the Judge could take the fact into account, he could not increase the sentence beyond a maximum of 18 years. I have used this example to explain the difference between aggravating factors and circumstances of aggravation. A circumstance of aggravation is always an aggravating factor. An aggravating factor is not always a circumstance of aggravation.
45 The difference is highlighted within the Sentencing Act 1995 s 7(3). Under the Sentencing Act the responsibility for determining aggravating factors is that of the court, in reality the sentencing judicial authority.
(Page 13)
- Under the Criminal Code the responsibility for determining whether circumstances of aggravation are proved, in the absence of a plea to that effect, is that of the jury. The word "liable" in the definition of circumstances of aggravation means liable on conviction of indictment.
46 Counsel for the applicant argued that the jury's verdict could be interpreted in two ways, one of which was that the Taser worked and the other of which was that the Taser did not work.
47 It was further argued that as the indictment did not plead bodily harm as an aggravating circumstance in the commission of the offence of burglary which was committed by the applicant, the jury were unable to return a verdict as to whether the applicant caused the complainant to suffer an electrical shock from the Taser. So, it is concluded, it was open for the trial Judge to take account of the circumstance of the commission of the offence but not open to find that the Taser worked and that the applicant caused the complainant to suffer an electrical shock which caused significant pain and was tantamount to torture.
48 The trial Judge correctly left the elements of the offence of burglary to the jury. In particular, he correctly left the question of the assault as an application of force. On the Crown case and at law, it was irrelevant whether the Taser actually discharged electricity into the body of the complainant providing there was an application of some force.
49 Therefore, the jury never had to resolve the question of the discharge or otherwise of electricity.
50 There are two crucial findings by the trial Judge. The first finding is that the Taser was activated causing considerable pain, and the second is that the applicant went to the complainant's home with the object of using the Taser to teach him a lesson, something described by the Judge as "an intent to torture".
51 As to the first aspect, in my opinion the true question which arises is whether the finding of the discharge of electricity can be characterised as an uncharged criminal act or whether it can be characterised as an aggravating factor in respect of the charged criminal conduct, namely burglary.
52 It is axiomatic that it is wrong to sentence an offender for crimes with which that offender is not charged: R v De Simoni (1981) 147 CLR 383; R v Olbrich (1999) 199 CLR 270 at 279.
(Page 14)
53 For the purposes of sentencing, it is not always easy to determine where the permissible consideration of circumstances surrounding the commission of an offence ends and the punishment for an offence not charged begins. It is a matter of degree: R v Newman & Turnbull [1997] 1 VR 146 at 152.
54 Although it may be a matter of degree, there is nevertheless a clear distinction. As it was put by Gibbs CJ in De Simoni at 389:
"… the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted … The combined effect of the two principles, so far as is relevant for present purposes, is that a Judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence."
Resolution of the present case
55 The Judge found that the applicant had given the complainant an electric shock. This action constitutes an assault, or an assault occasioning bodily harm. This assault for the reasons already given is not encompassed by the verdict of the jury.
56 The question then is whether it is a different assault and thus an uncharged act, for which the applicant may not be sentenced or an uncharged circumstance of aggravation, namely bodily harm. If the latter, then the Sentencing Act s 7(3)(b) effects a change to the common law and allows the Judge to take into account aggravating factors, even though they are also uncharged circumstances of aggravation so long as the Judge does not increase sentence beyond the statutory maximum.
57 I conclude that the infliction of harm by use of electricity is properly characterised as a circumstance of aggravation of the burglary. The crime of burglary was complete upon the entry into the place of habitation without consent and the assault particularised by the Crown. The use of electricity was not a separate and distinct offence but within the meaning of s 400(1) of the Criminal Code was a circumstance of aggravation, namely the doing of bodily harm under s 400(1)(iv).
(Page 15)
58 By reason of s 7(3) of the Sentencing Act the Judge was able to take account of the use of electricity in his sentencing remarks.
The finding of an intent to torture
59 The applicant was convicted of the circumstance of aggravation that he was armed with an offensive weapon.
60 The circumstances of the offence clearly encompass why he was so armed and his purpose in going to the house. If, as here, his purpose was to inflict physical violence on the occupant then that is a form of burglary at the upper end of the scale of seriousness: Ward (supra). The purpose of a person who commits a burglary is part of the aggravating or, in some cases, mitigating factors and is not a circumstance of aggravation to be pleaded. Purpose or motive is commonly taken into account in sentencing and correctly so.
61 I would dismiss ground 1 of the appeal.
Ground 2
62 Following trial, as I have remarked, the learned trial Judge obtained a pre-sentence report. The weight to be attributed to antecedents is uniquely one for a sentencing Judge. A ground of appeal asserting that a sentencing Judge failed to give sufficient weight to the antecedents will rarely succeed on its own. What must be shown is that the sentence was so manifestly excessive that error in failing to give sufficient weight to the antecedents must be assumed.
63 This was a serious burglary, committed with two circumstances of aggravation. The sentence was in the upper range of sentences for equivalent crimes. Nevertheless, I cannot conclude that the sentence is so far beyond the exercise of proper sentencing discretion as to manifest error. In consequence I would dismiss the appeal.
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