Complaint No 20265/98 of 1998 in the Court of Petty Sessions at Perth between PHILIP JOHN MATTHEWS and DWAYNE ALFRED JOHN HARVEY

Criminal law - Without lawful excuse upon the curtilage of premises - Onus of proof - Turns on own facts - Sentence - Need to consider Sentencing Act 1995 s 6(4)

Police Act 1892 (WA)

Sentencing Act 1995 (WA)

Sentence of imprisonment quashed and Community Service Order ordered

Carden v The Queen (1992) 8 WAR 296

Devries v Australian National Railways Commission (1993) 177 CLR 472

Jackson v Dyball (1993) 74 A Crim R 10

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 73 ALJR 306

Talbot v Lane (1994) 14 WAR 120

1 MILLER J : The appellant was charged in the Court of Petty Sessions Armadale that on 28 April 1998 at Armadale he was without lawful excuse upon the curtilage of premises of Maxine Jane Morris situated at 35 Mills Road, West Gosnells contrary to the provisions of s 66(13) of the Police Act 1892.

2 The case against the appellant consisted of the evidence of two police officers. On 28 February 1998 they were on patrol in Gosnells and attended at 35 Mills Road at approximately 9 pm. According to Constable Shelhot, 35 Mills Road, Gosnells consisted of a property to which there was a long 25-metre driveway. He and his colleague conducted a foot patrol of the premises and ascertained that somebody had forced entry to the premises, ransacked it and loaded a large quantity of household electrical items into a vehicle parked in the garage. An unsuccessful attempt had apparently been made to start this vehicle.

3 Constable Shelhot secured the garage door, closed the side gate and then departed the area for 5 to 10 minutes. He returned to the premises and on arrival observed a Ford sedan reversed and parked with its rear near the garage. He saw a male person standing near the driver's door and he later ascertained this to be the appellant. He testified that Constable Lambert had asked this person his name and upon being given it had asked whether it was his house, in response to which the appellant allegedly said, "No. I'm picking someone up." When asked who he was picking up he said he was picking up a friend and going to have some drinks. The constables were obviously unimpressed with this explanation and began to search the appellant, saying to him, "What are you doing with the stuff?" To this the appellant allegedly answered, "I didn't do it. I just got a phone call to pick up the stuff."

4 According to Constable Shelhot the side gate had been opened again and the garage door opened, with numerous electrical items removed from the vehicle parked in the garage and placed on the ground. There were items near the appellant's vehicle. What Constable Lambert said was consistent with the evidence of Constable Shelhot, save that he claimed that Constable Shelhot had said, "What are you doing here?" and the appellant had said, "I've just received a phone call to pick up some gear, some friend's gear."

5 The appellant gave evidence in his defence, contending that he had gone to 35 Mills Road to pick up a girl named Skye Fahey, with whom he was going to a cocktail party. He said he was confused as to whether or not she was at 25 or 35 Mills Road and had gone to 35 Mills Road to see if Skye was there. When he knocked on the door, nobody answered and he went to get back in his car when he saw a young bloke walk out of the shed. As he went to approach him, the police van came down the road and this fellow ran away.

6 The appellant testified he had his daughter with him in the vehicle and denied that he parked with the rear of the vehicle facing to the garage. He was cross-examined at considerable length by the police prosecutor and denied that he had ever said to either of the police officers words to the effect that he had received a phone call to pick up "the stuff" or a phone call to pick up "some gear." He called one witness, who testified that he lived in the same street and that the appellant had, on the night in question, asked him for directions to an odd number in the street.

7 The learned Magistrate convicted the appellant of the offence with which he was charged. He made it clear he did not believe the evidence of the appellant but that was not, of course, the question. The question was whether the prosecution had proven beyond reasonable doubt that the appellant was without lawful excuse upon the curtilage of the premises. Nowhere did the learned Magistrate actually state that the evidence had established to his satisfaction beyond reasonable doubt that the appellant was guilty of the offence with which he was charged, but it is implicit in the reasons of the learned Magistrate that he accepted without qualification the testimony of the two police officers and did not accept the explanation given by the appellant as to why he was at the premises, with the result that he found the case proven against the appellant.

8 It is true that the two police officers were in conflict in relation to the statement the appellant was said to have made about either picking the stuff up or picking up a friend's gear and it is also true that the learned Magistrate failed to appreciate the point that in the second of those alleged explanations, the appellant had referred to a "friend's gear" rather than "some gear." However, the appellant denied that he had said any such thing and contended that at all relevant times he had said to the police officers he was there to pick up a friend.

9 The learned Magistrate was impressed with a number of objective facts. They included the following:

(c) the police had arrived at the house as a result of information given;

(f) in that vehicle and/or in the garage were a number of electrical items from the house;

(h) they moved away and observed a vehicle come to the premises and then reverse out.

(i) When they circled the area and came back they found the appellant with his vehicle reversed up to the garage.

10 The learned Magistrate pointed out that it was a remarkable coincidence if the appellant had innocently turned up at a burgled house during the hours of darkness as somebody ran away whom the police did not see. By implication the learned Magistrate was saying that he could not accept the testimony of the appellant in relation to this contention. Bearing in mind that it is always for the prosecution to prove the case beyond reasonable doubt and not for the appellant to prove his innocence, the fact remains that the learned Magistrate clearly accepted that the combination of the testimony of the two police officers and the independent facts established the guilt of the appellant, whose evidence he did not in any event accept.

11 It is true, as contended for by the respondent, that an appeal court reviewing the decision of a Magistrate must, where the verdict is said to be unsafe or unsatisfactory ask itself whether it thinks that upon the whole of the evidence it was open to the trial Court to be satisfied beyond reasonable doubt that the accused was guilty. In answering that question an appeal Court must not disregard or discount either the consideration that the trial Court is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the trial Court has had the benefit of having seen and heard the witnesses: M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493.

12 In my opinion there was ample evidence upon which the learned Magistrate could have convicted the appellant of the offence with which he was charged. There were the objective facts to which I have referred and there were the admissions of the appellant found by the learned Magistrate to have been made that he was either picking "the stuff" up or picking up "a friend's gear" after receiving a phone call. Once it is accepted that either of these explanations was given by the appellant, the explanations were clearly inconsistent with the proposition that he was there to pick up a friend. A confession that he was there to pick up anything, whether it be "stuff" or "a friend's gear", was entirely inconsistent with the account he gave of his presence at the premises and was consistent with guilt. Combined with the circumstantial evidence of his presence at a burgled house where a botched attempt had been made to start a vehicle in the hours of darkness and with his vehicle reversed up to a garage with a chainsaw and other items outside the garage near the vehicle, it was in my view open to the learned Magistrate to have been satisfied beyond reasonable doubt of his guilt.

13 That does not, however, determine the matter in its entirety. There is an appeal against the sentence which was imposed. That was a sentence of six months' imprisonment. The punishment prescribed for an offence of being unlawfully upon the curtilage is a fine not exceeding $1000 or imprisonment for a term not exceeding twelve calendar months. The learned Magistrate in imposing the sentence of six months' imprisonment said:

"While the defendant was found at the scene of the burglary and his explanation was one that I have found unacceptable, I have looked at his record. There are too many cases of burglary and offences associated therewith. The defendant is not charged with burglary. He is charged with being upon the curtilage and I have considered the matter carefully and I consider that six months' imprisonment is the appropriate penalty."

14 I take the learned Magistrate to be saying that there are too many cases of burglary in the community generally, not that the appellant had too many convictions for burglary. Indeed, he had no convictions for burglary. He had a number of convictions in the Children's Court but only relevantly stealing, and there were convictions in Petty Sessions on 31 August 1994 for three counts of receiving; (with an effective sentence of twelve months' imprisonment) and a conviction for unlawful possession. The appellant was convicted on 27 September 1994 of nine counts of receiving and sentenced to eighteen months imprisonment. He was released from prison on 11 March 1996 and had during a period of nearly two years been convicted of no relevant offences, those of which he was convicted relating only to driving matters.

15 Counsel for the appellant rightly points out that the learned Magistrate made no reference to the provisions of s 6(4) of the Sentencing Act 1995, which stresses that the Court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it. The evidence establishes that the appellant, who was born 27 June 1975, was 22 years of age at the date of the offence. He was the father of two children and his last relevant conviction had been some four years beforehand, although having been released from prison on 11 March 1996 it could only really be said that he had gone two years without any prior convictions for offences of dishonesty.

16 The learned Magistrate was in my view in error in concluding that a sentence of six months' imprisonment was the appropriate penalty. There was no reference to the sentencing principles contained within s 6 of the Sentencing Act and had there been it seems difficult to see how it could be said that this young man had to be sentenced to imprisonment because of the seriousness of the offence or the protection of the community. Somebody had committed a serious offence of burglary but the conviction of the appellant was for being on the curtilage without lawful excuse. For that a sentence other than imprisonment was in my view appropriate when one has regard to the factors to which I have referred. A community based order under Pt 9 of the Sentencing Act 1995 would in my view have been appropriate and in my view a community service requirement would have been an appropriate primary requirement of such an order.

17 In my view the appellant has made out good grounds for appeal against sentence and I consider that the sentence of imprisonment should be set aside and in lieu thereof there should be a community based order for a term of six months with a community service requirement that the appellant do unpaid community work of 60 hours.

18 The other standard obligations which will be imposed upon the appellant are:

(1) he is to report to a community corrections centre within 72 hours after being released or as otherwise ordered by a CCO;

(2) he is to notify a CCO of any change of address or place of employment within two clear working days after that change;

(3) he must not leave Western Australia except with and in accordance with the permission of the CCO; and

(4) he must comply with s 76 of the Sentence Administration Act 1995.