BOEKELMAN -v- CHAMBERLAIN [2013] WASC 401 (5 November 2013)

Catchwords:
Criminal law - Appeal against sentence - Whether manifestly excessive - Whether error in accumulating one sentence of assault - Conflicting assertions concerning facts - Whether appellant sentenced on the basis of disputed facts

1 On 8 March 2013, Mr Boekelman was sentenced, upon his plea of guilty, for a number of offences. The offences were three counts of burglary on two separate occasions, two counts of assault, and a count of pretending to be armed with any dangerous or offensive weapon or instrument in circumstances that are likely to cause fear to any person. Experienced counsel for Mr Boekelman properly conceded that Mr Boekelman's offences left no option other than immediate imprisonment.^[1] Mr Boekelman was sentenced to a total effective sentence of 2 years 5 months' imprisonment, backdated to reflect time in custody, with eligibility for parole.

2 Mr Boekelman appeals against his sentence. He has made a number of points, in various forms. Put in terms of legal issues, Mr Boekelman's primary complaints are

(2) that the sentence for 5 months for an assault committed at the time of his burglary of a home was excessive and should not have been accumulated with the head sentence; and

(3) that the learned Magistrate erred by sentencing him on the basis of disputed facts.

3 No ground has any reasonable prospect of success. There was no miscarriage of justice. The application for leave to appeal is dismissed.

5 When the learned Magistrate took Mr Boekelman's plea in relation to the charge of pretending be armed with a dangerous or offensive weapon in circumstances likely to cause fear, his Honour asked Mr Boekelman if he had any concerns about his plea. Mr Boekelman replied, 'I don't really remember much, but, yes, guilty'.^[2]

6 The facts upon which the prosecution submitted that Mr Boekelman should be sentenced are summarised below.

7 At 5:20 pm on 18 December 2011, Mr Boekelman smashed a window and entered Ms R's house. While he was committing the burglary an alarm went off in the house. Mr Boekelman's counsel said that Mr Boekelman heard the alarm go off, left the house, waited, and then chose to reenter.^[3]

8 Ms R was alerted to the burglary by her security company. She returned home with Mr S. When she arrived, the discovered Mr Boekelman in her bedroom. She went in first and Mr S followed. Ms R saw Mr Boekelman holding her son's bag which contained items of value from different areas in the house. Storage drawers were askew.

9 When Ms R entered there was a lamp on the table which was knocked or thrown towards Ms R. That was the subject of the assault on Ms R.

10 Mr S then apprehended Mr Boekelman. They struggled. Mr Boekelman bit Mr S's hand. Injuries to Mr S's finger also occurred during the struggle. Mr Boekelman was detained in another room but he escaped through a window. Mr S confronted Mr Boekelman again and Mr Boekelman grabbed a brick from a nearby pile and swiped it towards Mr S's head. The prosecutor said that he did not submit that there were separate acts of assault: 'they can be rolled into one'.^[4] He said that his indications from Ms R and Mr S were that the struggle went on for a period of some 20 minutes.^[5] These were the alleged facts constituting the assault against Mr S.

11 During the assault on Mr S at one stage when Mr Boekelman was on the ground Mr Boekelman said 'Let me go, let me go. I've got a gun, I've got a gun.' Mr Boekelman then moved his hands towards his pockets to indicate that he had a gun.^[6] That was the subject of the charge of pretending to be armed with any dangerous or offensive weapon or instrument in circumstances that are likely to cause fear to any person.

12 The alleged facts in relation to the assault on Mr S could have supported a charge of assault occasioning bodily harm. The initial charge of assault had been upgraded to assault occasioning bodily harm, only to be downgraded again to common assault, at the request of the prosecution, at the time of sentencing.^[7] However, although the prosecution downgraded the charge to common assault, the prosecutor explained that the prosecution still maintained that Mr S received injuries in the course of apprehending Mr Boekelman:^[8]

13 The fracture to Mr S's finger was not mentioned subsequently in the prosecutor's summary of facts. It was not mentioned by Mr Boekelman's counsel. And the learned Magistrate did not discuss it.

14 The other burglaries occurred late the next evening. They involved (i) smashing glass windows to Studio 101 hairdressers and taking $60 from the cash register, and (ii) smashing a hole through to the neighbouring jewellery shop, Ace of Diamonds Jewellery store. The State claimed compensation of $300 for the damage to Ms R's window, $1,000 to the Studio 101 window, $750 damage to the wall between Studio 101 and Ace of Diamonds Jewellery, and $250 for a stolen Nokia mobile phone and two watches.

15 Mr Boekelman was 39 years old at the time of sentencing. The learned Magistrate was told little of Mr Boekelman's background other than that Mr Boekelman had led 'a sad and wasted life'.^[9] Mr Boekelman has a criminal record in Western Australia and New South Wales, including terms of imprisonment for burglary. His counsel acknowledged that he had committed crimes in other jurisdictions as well.^[10] Counsel before the learned Magistrate described Mr Boekelman's record as involving a lot of burglaries.^[11]

16 During the plea in mitigation Mr Boekelman apologised to Ms R and Mr S.^[12] His counsel explained that Mr Boekelman was genuine in his acknowledgement of the impact of his actions on Ms R and Mr S. Mr Boekelman's counsel also explained that Mr Boekelman had a drug problem although it was unclear how the problem had started. Mr Boekelman was taking active steps to rehabilitation, including a methadone programme.

17 In oral sentencing submissions, counsel for Mr Boekelman explained that Mr Boekelman accepted that there was a melee^[13] but that Mr Boekelman disputed the allegation that he swiped a brick towards Mr S's head. Counsel also explained that Mr Boekelman did not recall Mr S's hand coming into contact with Mr Boekelman's mouth:^[14]

18 Mr Boekelman's lack of recollection in relation to the bite of Mr S is consistent with his statement, at the time his plea was taken, that he didn't remember much.

19 There was some confusion relating to remarks made by the learned Magistrate during sentencing, to which I refer below. But the sentences formally imposed by the learned Magistrate were as follows:

Offence	Sentence
Burglary and Commit Offence in Dwelling (Ms R) (PE 6231/12)	12 months' imprisonment (head sentence)
Unlawful assault (Ms R) (PE 6233/12)	3 months' imprisonment, concurrent
Unlawful assault (Mr S) (PE 6232/12)	5 months' imprisonment, cumulative
Pretending to be armed with an offensive weapon likely to cause fear (PE 56171/12)	4 months' imprisonment, concurrent
Burglary and Commit offence in place (Studio 101) (PE 6229/12)	12 months' imprisonment, concurrent
Burglary and Commit offence in place (Ace of Diamonds Jewellery) (PE 6230/12)	12 months' imprisonment, cumulative

20 Immediately after his sentencing, Mr Boekelman pleaded guilty to another charge of being in unlawful possession of $278 of currency on 2 January 2012 at Burswood. The learned Magistrate sentenced him to 3 months' imprisonment also to be served concurrently.^[15]

21 The total effective sentence was therefore 2 years and 5 months' imprisonment. Mr Boekelman was made eligible for parole and his sentences were backdated to 2 January 2012. Parole has been refused. This means that Mr Boekelman is due for release in June 2014.

22 Mr Boekelman initially raised a number of grounds of appeal which included factual misconceptions or legally irrelevant matters. He also provided a letter to the Court which raised a number of other matters.

23 At a directions hearing prior to this appeal, Mr Boekelman accepted that the gist of some of his submissions and grounds of appeal appeared to raise a second allegation which was that his sentence of 2 years and 5 months' imprisonment was manifestly excessive.

24 Mr Boekelman also raised issues which effectively alleged that his sentence of 5 months for the assault against Mr S was erroneously accumulated, or was manifestly excessive.^[16]

25 Mr Boekelman subsequently filed an affidavit and submissions which raised a third allegation. This was that he was sentenced on the basis of facts which he did not accept in relation to the charge of common assault.^[17]

26 I deal with each of these three points below as though they were proposed grounds of appeal.

27 It is very well established that a ground of appeal which alleges manifest excess is an allegation of an error which is implied from the length of the sentence imposed.

28 An appellate court is not permitted to substitute its own decision for the decision of the sentencing judge merely because the appellate court would have exercised the discretion in a different way.^[18] Instead, the complaint of manifest excess requires the court to consider the maximum sentence prescribed by law, the standard of sentence customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness for offences of that kind, and the offender's personal characteristics.^[19]

29 The three most serious counts were the counts of burglary. The maximum sentence for an offence of burglary, without circumstances of aggravation, is 14 years' imprisonment.^[20] The summary conviction penalty is imprisonment for 2 years and a fine of $24,000. As to the burglary of Ms R's house, the maximum sentence for an offence of burglary on a place ordinarily used for human habitation, not in circumstances of aggravation, is 18 years' imprisonment.^[21] The summary conviction penalty is imprisonment for 3 years and a fine of $36,000. The summary conviction penalties are jurisdictional limits. The starting point for calculating the term of imprisonment in a summary jurisdiction can be a sentence in excess of the jurisdictional limit, by reference to the maximum sentence.^[22]

30 As Mazza JA (Buss JA agreeing) observed last week in Brady v The State of Western Australia,^[23] the sentencing range for offences involving home burglary have firmed up in recognition of the prevalence of these offences. The primary sentencing considerations in relation to burglaries on homes are general and personal deterrence.^[24] The offence ordinarily attracts a term of immediate imprisonment.^[25]

31 It has been iterated, and reiterated in the Court of Appeal in this State that in cases involving multiple counts of burglary^[26]

32 In relation to aggravated burglary it has also been said that 'the circumstances of such offences are very variable, and very often totality considerations influence sentences imposed in such cases, so that there is, and can be, no tariff'.^[27] Her Honour observed that the variety of sentences had been spread from 8 months to at least 4 years.^[28]

33 Although there is no clear range for offences of this type, an instructive comparison is the recent sentence, relied upon by the State, in Kelly v The State of Western Australia.^[29] In that case, Mr Kelly was convicted, upon his plea of guilty, of one count of aggravated burglary contrary to s 401(2)(a) of the Criminal Code. Mr Kelly had smashed the rear glass door to the complainant's house at 11:45 am and stolen a laptop, jewellery and other property. The complainant returned home and was confronted by Mr Kelly with a replica firearm although he did not directly threaten her with it. He was shot by police when they arrived.

34 Like Mr Boekelman, Mr Kelly had an extensive criminal record and problems with substance abuse. There were aspects of Mr Kelly's case which might have justified a longer sentence. Mr Kelly was charged with aggravated burglary whilst Mr Boekelman was charged only with burglary. And Mr Kelly was carrying a replica firearm. But some of the circumstances of Mr Boekelman's offences are more serious than those of Mr Kelly. Unlike Mr Boekelman, Mr Kelly was sentenced for only this single burglary. Mr Boekelman's offences included the additional two burglaries the next day as well as the assaults and the offence of pretending to be armed which involved Mr Boekelman's threat to Mr S.

35 Mr Kelly was sentenced to 3 years and 6 months' imprisonment. An application for leave to appeal was dismissed on the basis that it had no reasonable prospects of success.^[30]

36 In all of the circumstances of Mr Boekelman's offending, including his personal circumstances and attempt at rehabilitation, as well as his plea of guilty for the burglaries (for which the learned Magistrate allowed the entire discount of 25%),^[31] a sentence of 2 years and 5 months' imprisonment was not manifestly excessive. The first burglary, with the use of force over a 20 minute period when the complainants returned home, was rightly described by the learned Magistrate as 'obviously a very traumatic burglary'.^[32] Mr Boekelman chose to reenter the premises after triggering the alarm and initially leaving. He committed another two burglaries the next night. In addition to the significant damage to the window of Ms R's house he damaged the window and wall at Studio 101.

(2) Allegation of manifest excess or erroneous cumulation in the sentence for assault

38 In written submissions Mr Boekelman argued that his sentence of imprisonment for assault was manifestly excessive.

39 It is artificial to consider the sentence of assault independently of the other sentences in circumstances in which the assault arose out of events related to the first burglary and the total sentence was not manifestly excessive. But, in any event, I explain below why the learned Magistrate did not commit any implied error of manifest excess in relation to the length of the sentence for assault, nor any error in accumulating the sentence for assault in relation to Mr S.

40 The maximum sentence for common assault in the absence of any circumstances of aggravation is 18 months imprisonment and a fine of $18,000.^[33] The summary conviction penalty is imprisonment for 2 years and a fine of $24,000. There is no established range for the offence of common assault; the circumstances in which assault occurs are many and varied.

41 In the context of assaults which occur in the course of a burglary it is not uncommon for a sentence of imprisonment to be imposed. In one recent case the Court of Appeal upheld a term of imprisonment including 14 months' concurrent imprisonment for assault with intent to prevent detention in the course of a burglary.^[34] That assault involved a failed attempt to punch an employee of the business, and pushing that employee to the ground.

42 In his written submissions, Mr Boekelman referred to two cases in which findings of manifest excess were made in relation to sentences of 8 months' imprisonment for an offence of aggravated assault,^[35] and 10 months' imprisonment for an offence of assault occasioning bodily harm.^[36] Two points must be made about those cases.

43 First, neither of those cases involved an assault in the course of a burglary. As I have explained, it is extremely difficult to draw comparisons in relation to sentencing for multiple offences. It will usually be untenable to attempt to draw comparisons between the circumstances of a separate sentence for a single offence, with a case involving that offence as part of a larger enterprise involving other and different offences and circumstances as well as totality considerations.

44 Secondly, the facts of the cases cited by Mr Boekelman are materially different from the circumstances of this case.

45 In the case involving aggravated assault, the assault was described by the appellate judge as involving different circumstances of 'a single punch that caused some pain, but no lasting illeffect, within a relationship characterised by sporadic violence and reconciliation'.^[37]

46 In the case involving assault occasioning bodily harm, the offence occurred in circumstances in which the appellant had violently struggled against a crowd controller but had not intended to strike the complainant. The appellant's movements were 'unfocused', the injuries were minor, and the incident took place in a matter of seconds.^[38] In resentencing the appellant, the appellate judge also noted matters personal to the appellant including the counselling received by the appellant, and the care that the appellant takes of her younger siblings including during her mother's treatment for cancer.^[39]

47 Taking into account all the circumstances including Mr Boekelman's personal circumstances and his plea of guilty, the manner in which the assault on Mr S occurred, including the 20 minute duration of the confrontation, its context in the course of a burglary, a term of 5 months' imprisonment was not manifestly excessive. This ground has no reasonable prospect of success.

48 In written submissions, Mr Boekelman argued that the accumulation of 5 months' imprisonment for the assault on Mr S

49 Although the learned magistrate made some comments during the plea in mitigation which might have suggested that his Honour was considering concurrent sentences for assault, his Honour must have intended to accumulate the sentence for assault on Mr S with the head sentence. This point should be explained before turning to whether the decision to accumulate involved any error.

50 During the course of submissions by counsel for the accused, the learned Magistrate made some observations which were expressed to be subject to any correction by counsel.^[41] His Honour explained that he intended to make 'the assaults concurrent'.^[42] Later, and very shortly before formally passing sentence, his Honour made the following remarks:^[43]

51 I have italicised the reference by the learned Magistrate to his intention to make both assaults concurrent.

52 Despite these references to concurrency of the sentences for assault, a reading of the whole of the transcript makes it apparent that his Honour intended to make sentence for the assault on Mr S cumulative on the head sentence.

53 First, shortly after mentioning that the assaults would be concurrent, the learned Magistrate formally passed sentence. His Honour explained that he had already indicated the total effective sentence (2 years and 5 months' imprisonment) but he said that he would formally announce the details:^[44]

54 Secondly, almost immediately before making the reference to the assaults being concurrent, the learned Magistrate said that it was

55 Thirdly, after formally sentencing Mr Boekelman, the learned Magistrate wrote on prosecution notice 6232/12 that the 5 months' imprisonment was cumulative, with a total term of imprisonment of 2 years and 5 months' imprisonment.

56 It may be that the passing references by the learned Magistrate to the assaults being 'concurrent' was a reference to them being concurrent on each other rather than both being concurrent on the head sentence. But, in any event, the learned Magistrate made a conscious choice to accumulate the sentence for assault on Mr S.

57 In Dickens v The Queen,^[46] McLure J referred to the three stages of the usual sentencing process for multiple offences:

The issue of concurrency or accumulation of sentences arises at stage (2) and (3).

58 At stage (2), a working 'one transaction' principle, which is not immutable, is that where a number of offences 'that arise out of the one transaction were a continuing episode of criminal conduct' then the sentences might be made concurrent.^[47] Hence, a succession of crimes, each being the commission of the same or closely related offences, committed within a short space of time, are often regarded as appropriate for concurrent sentences.^[48] But even simultaneously committed offences might not fall within the one transaction principle if each has the potential to inflict harm on the community.^[49]

59 In this case, the assault on Mr S involved different elements from the burglary offence; it had a different effect on a different victim; it occurred over a sustained period. As the learned Magistrate said, the assault was 'another offence involving trauma to people that needs to be marked out'.^[50] There was no duty on the learned Magistrate to make concurrent the sentence for assault on Mr S. It was open to the learned Magistrate to accumulate the sentence for assault on Mr S at stage (2).

60 Not only was there no duty on the learned Magistrate to make the sentence of assault concurrent at stage (2) but it appears that his Honour also considered the issue of concurrency of the sentence for assault as part of his considerations of totality at stage (3). As McLure J explained in Dickens, if, at stage (3), the total sentence does not reflect the appropriate level of criminality then the appropriate result should be achieved by making the sentences wholly or partly cumulative.^[51]

61 The learned Magistrate followed this process. His Honour said that 'when you look at the totality, as I am obliged to do, you come up with a sentence that would be two years and five months'.^[52]

62 This ground has no reasonable prospects of success. Leave to appeal is refused.

63 In Mr Boekelman's affidavit, he swears that he did not break Mr S's finger, hit anyone, bite anyone, or swing a brick. He says that he simply tried to pull away. He also says that he did not threaten anyone with a gun. He says that he told his lawyer of these matters but says that he was told by his lawyer that he could plead guilty yet still raise these matters as disputed facts.^[53]

64 At a directions hearing prior to this application, I informed Mr Boekelman that if he wished to rely on a ground concerning competency of his representation then that ground must be made clear.^[54] As counsel for the respondent observed this morning, without demur from Mr Boekelman, not such ground was relied on. There is, in any event, no basis for such a ground as I explain below.

65 Mr Boekelman also now denies the charge of pretending to be armed with any dangerous or offensive weapon or instrument in circumstances that are likely to cause fear to any person. Mr Boekelman also says that he thought that the charge relating to this had been dropped.^[55]

66 As to the charge of pretending to be armed, Mr Boekelman pleaded guilty to this charge. He could not reasonably have thought that this charge was dropped. He was asked by the learned Magistrate specifically in relation to this charge if he had any concerns about his plea. Mr Boekelman replied, 'I don't really remember much, but, yes, guilty'.^[56]

67 Mr Boekelman also heard the prosecution summary of the facts in relation to this count of pretending to be armed with any dangerous or offensive weapon or instrument in circumstances that are likely to cause fear to any person. He also heard counsel explain that during Mr Boekelman's video recorded interview Mr Boekelman admitted that the allegation about having a gun is 'something he probably would have done' although his recollection of it was vague.^[57] Neither he nor his counsel expressed any disagreement with these facts, although his counsel did disagree with the facts involving the alleged incident with the brick.

68 There is no basis shown upon which Mr Boekelman's plea in relation to this offence can now be withdrawn.

69 I turn back to the other matters which Mr Boekelman denies. I have explained above that the prosecution outline of the facts relied upon allegations that

70 As to each of (i), (ii), and (iii), there are two reasons why none of these matters caused a miscarriage of justice. The first is because the learned Magistrate placed no weight on these matters. The second is because Mr Boekelman's counsel made the sensible forensic decision not to apply for a trial of any issues. In relation to (i) and (ii) Mr Boekelman's counsel did not deny these facts.

71 As to the weight placed on these matters in the learned Magistrate's sentencing, at the opening of the hearing the prosecutor explained that the assault occasioning bodily harm count had been reduced to common assault:^[58]

72 The fracture to Mr S's finger was not subsequently mentioned in the prosecutor's summary of the facts or the defence plea. Unsurprisingly it was not mentioned by the learned Magistrate.

73 Once the allegation of assault occasioning bodily harm had been reduced to common assault the fact of Mr S's injuries was not a required element of any offence. Mr Boekelman's counsel had said that it was relevant that Mr Boekelman applied force to the victims as he tried to leave the house. His counsel also acknowledged that a brick may have come from the top of the wall as Mr Boekelman was trying to escape. But he emphasised that the charge was not assault occasioning bodily harm.^[59] His focus was on the issue of force being used in a general sense rather than any particular detail of the force applied.

74 The learned Magistrate made no reference to any detail of the force applied in his sentencing remarks and, apparently, placed no weight on the allegations concerning the brick, the biting or Mr S's finger. Although it might have been open to the learned Magistrate to rely on some of those facts, the remarks of the learned Magistrate are entirely consistent with the general approach suggested by Mr Boekelman's counsel that Mr Boekelman applied force to the victims in escaping without descending into the nature of that force.

75 The sentence of 5 months in relation to the assault on Mr S was longer than the 3 month sentence for throwing a lamp at Ms R. But the facts outlined by the prosecution indicated that the struggle with Mr S was prolonged. As the prosecutor had explained, the struggle had continued for 20 minutes with Mr S who had a heart condition.^[60] It was appropriate for the learned Magistrate to sentence Mr Boekelman to 5 months' imprisonment, cumulatively, for the assault on Mr S to recognise that 'trauma to people, that needs to be marked out'.^[61]

76 The other reason why the three matters now disputed by Mr Boekelman do not give rise to a miscarriage of justice is because his experienced counsel did not apply for a trial of the issues. There were obvious reasons for this decision.

77 In some circumstances it will be necessary for a party alleging disputed facts to apply for a trial of the facts disputed and to call evidence about those issues.^[62] In this case, even if the learned Magistrate had relied on any of the facts which are now disputed, this would not have constituted a miscarriage of justice in circumstances as follows:

(ii) Mr Boekelman's counsel submitted that Mr Boekelman did not recall Mr S's hand coming into contact with Mr Boekelman's mouth and he did not say that he disputed the prosecution allegation of these matters;

(iii) at the time of the taking of Mr Boekelman's pleas, Mr Boekelman said that he didn't really remember much; and

(iv) as Buss JA explained in Law v The State of Western Australia,^[63] tactical reasons for counsel's decision not to seek a trial of an issue (such as the issue concerning the brick in this case) include the following:

it was inevitable that the appellant would be sentenced to a term of immediate imprisonment; the appellant was entitled to a significant discount on his sentence for his fasttrack plea of guilty; if there had been a trial of issues, it would have been essential for the appellant to have given sworn evidence in support of his version of events ... if the appellant had given sworn evidence and been disbelieved by the sentencing judge, the discount on his sentence for his fasttrack plea of guilty would have been reduced.

78 In this case, it was open to the learned Magistrate to take the view which was favourable to Mr Boekelman, as he did following the suggestion of Mr Boekelman's counsel, that the relevant matter was the use of force by Mr Boekelman towards the victims (over a sustained period) rather than to focus on the nature of the force used.

79 This ground also has no reasonable prospects of success. I would refuse leave to appeal on this ground.

80 There are several other issues raised by Mr Boekelman which can be disposed of briefly. In his appeal notice Mr Boekelman said the following:

81 The premise for this proposed ground of appeal is misconceived. There is no basis for the propositions that if two charges had been amended then either

(i) the second two burglaries on 19 December 2011 would have been made concurrent on the first one from the previous day, or

(ii) that the assault on Mr S would have been made concurrent with the head sentence.

82 In any event, the factual bases for this proposed ground of appeal are incorrect:

(i) at Mr Boekelman's sentencing, the prosecution did not say that he was not a '3rd striker'. The prosecutor was in the process of saying the opposite when the learned Magistrate explained that this point was 'academic' (by which he meant 'moot') because Mr Boekelman would be receiving a sentence of at least 12 months' imprisonment in any event. Mr Boekelman's counsel agreed with this evident proposition.^[64]

(ii) As I have explained above at [5] the charge of pretending to be armed with any dangerous or offensive weapon or instrument in circumstances that are likely to cause fear to any person was not dropped. Mr Boekelman pleaded guilty to it.

83 Mr Boekelman's application for leave to appeal was brought out of time. In circumstances in which he is not legally represented, and has struggled with access to materials, counsel for the State properly did not suggest that leave should be denied on the ground that it was brought out of time.

84 Nevertheless, Mr Boekelman's proposed grounds of appeal have no reasonable prospects of success. Leave to appeal on all grounds should be refused.

^[1] ts 7 - 8 (8 March 2013).
^[2] ts 3 (8 March 2013).
^[3] ts 6 (8 March 2013).
^[4] ts 4 (8 March 2013).
^[5] ts 4 (8 March 2013).
^[6] ts 5 (8 March 2013).
^[7] ts 4 (8 March 2013).
^[8] ts 2 (8 March 2013).
^[9] ts 6 (8 March 2013).
^[10] ts 5 - 6 (8 March 2013).
^[11] ts 6 (8 March 2013).
^[12] ts 6 (8 March 2013).
^[13] ts 7 (8 March 2013).
^[14] ts 7 (8 March 2013).
^[15] ts 14 (8 March 2013).
^[16] ts 5 - 6 (27 August 2013).
^[17] Affidavit of Mr Boekelman sworn 26 September 2013 [16] - [17].
^[18] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671[15] (the Court).
^[19] Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); McDougall v The State of Western Australia [2009] WASCA 232 [12] - [13] (McLure P); Harrison v Hunter [2012] WASC 166 [23] (Martin CJ).
^[20] Criminal Code 1913 (WA) s 401(2)(c).
^[21] Criminal Code 1913 (WA) s 401(2)(b).
^[22] Wilshire v Mafi [2010] WASCA 111 [30] - [31] (the Court).
^[23] Brady v The State of Western Australia [2013] WASCA 253 [24]. See also Papertalk v The State of Western Australia [2011] WASCA 229 [28] (Mazza JA).
^[24] Skinner v The State of Western Australia [2012] WASCA 99 [83] (Buss JA).
^[25] Downey v The State of Western Australia [2012] WASCA 55 [22] (Mazza JA).
^[26] Howarth v The State of Western Australia [2007] WASCA 78 [30] (Steytler P, Wheeler & Pullin JJA); Spry v The State of Western Australia [2013] WASCA 68 [36] (Mazza JA).
^[27] Main v The State of Western Australia [2010] WASCA 28 [36] (Wheeler JA).
^[28] Main v The State of Western Australia [2010] WASCA 28 [36] (Wheeler JA).
^[29] Kelly v The State of Western Australia [2011] WASCA 273.
^[30] Kelly v The State of Western Australia [2011] WASCA 273.
^[31] ts 10 (8 March 2013).
^[32] ts 9 (8 March 2013).
^[33] Criminal Code 1913 (WA) s 313(1)(b).
^[34] Brady v The State of Western Australia [2013] WASCA 253 [17].
^[35] Wungundin v Barndon [2013] WASC 28.
^[36] Closter v Humphreys [2012] WASC 145.
^[37] Wungundin v Barndon [2013] WASC 28 [8] (McKechnie J).
^[38] Closter v Humphreys [2012] WASC 145 [38] (Hall J).
^[39] Closter v Humphreys [2012] WASC 145 [45] - [46] (Hall J).
^[40] Submissions of Mr Boekelman, October 2013 [2].
^[41] ts 8 (8 March 2013).
^[42] ts 8 (8 March 2013).
^[43] ts 10 (8 March 2013).
^[44] ts 12 (8 March 2013).
^[45] ts 8 (8 March 2013).
^[46] Dickens v The Queen [2004] WASCA 179 [11] - [12] (McLure J); quoted with approval in Borbil v The State of Western Australia [2007] WASCA 24 [84] (Steytler P; McLure & Wheeler JJA agreeing).
^[47] Birch v The State of Western Australia [2011] WASCA 101 [42] (Mazza J; McLure P agreeing).
^[48] Pepper v Western Australia [2005] WASCA 177; (2005) 30 WAR 447, 471 [108] (Roberts-Smith JA); Borbil v The State of Western Australia [2007] WASCA 24 [87] (Steytler P; McLure & Wheeler JJA agreeing).
^[49] Birch v The State of Western Australia [2011] WASCA 101 [43] (Mazza J; McLure P agreeing).
^[50] ts 10 (8 March 2013).
^[51] Dickens v The Queen [2004] WASCA 179 [11] - [12] (McLure J); quoted with approval in Borbil v The State of Western Australia [2007] WASCA 24 [84] (Steytler P; McLure & Wheeler JJA agreeing).
^[52] ts 10 (8 March 2013).
^[53] Affidavit of Mr Boekelman sworn 27 September 2013 [10] - [17].
^[54] ts 6 (27 August 2013).
^[55] Affidavit of Mr Boekelman sworn 27 September 2013 [10].
^[56] ts 3 (8 March 2013).
^[57] ts 5 (8 March 2013).
^[58] ts 2 (8 March 2013).
^[59] ts 7 (8 March 2013).
^[60] ts 4 (8 March 2013).
^[61] ts 10 (8 March 2013).
^[62] Law v The State of Western Australia [2009] WASCA 193 [39] – [40] (Buss JA; McLure and Pullin JJA agreeing); Hutchins v The State of Western Australia [2006] WASCA 258 [25] (McLure JA, Steytler P & Wheeler JA agreeing).
^[63] Law v The State of Western Australia [2009] WASCA 193 [39].
^[64] ts 8 (8 March 2013).

Supreme Court of Western Australia

BOEKELMAN -v- CHAMBERLAIN [2013] WASC 401 (5 November 2013)