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Court of Criminal Appeal 22 May 2020

Ford v R

[2020] NSWCCA 99

Assault & violenceTheft & property
JUDGE ALONE STATUTORY INTERPRETATION

Citation: Ford v R [2020] NSWCCA 99
Court: NSW Court of Criminal Appeal
Date: 22 May 2020
Judges: Brereton JA (principal judgment); Bellew J and Lonergan J agreeing

Background

In the early hours of 16 January 2011, the appellant and a co-accused broke into a residential dwelling at Bargo, NSW, and assaulted the occupant in his bedroom. The victim was struck repeatedly on the head with a beer bottle and then a bedside lamp, both of which broke during the assault. He sustained lacerations penetrating the scalp and was taken to hospital by ambulance.

The appellant was convicted after a judge-alone trial in the District Court of specially aggravated break, enter and commit a serious indictable offence under s 112(3) of the Crimes Act 1900 (NSW). The trial judge found beyond reasonable doubt that the appellant was the principal assailant who entered the house first and struck the victim with both objects, thereby wounding him. The co-accused, who pleaded guilty to the same offence and gave evidence against the appellant, received a 50% sentence discount and served his sentence by way of intensive correction order.

The appellant was sentenced to six years' imprisonment with a non-parole period of three years and six months. He sought leave to appeal both the conviction and the sentence. He did not dispute that he participated in the break-in and assault, accepting guilt for the aggravated form of the offence under s 112(2), but contested the finding that he was personally responsible for inflicting the wounds that elevated the offence to the specially aggravated category under s 112(3).

  • Whether the trial judge's verdict that the appellant was the principal assailant was unreasonable or unsupportable having regard to the evidence (ground 1)
  • Whether the trial judge erred by failing to consider whether the wounding was part of a common purpose or shared intention between the appellant and the co-accused, sufficient to establish the circumstance of special aggravation under s 112(3) through the doctrine of joint criminal enterprise (ground 2)
  • Whether, at the time of the 2011 offence, an intention to wound was required to attract the circumstance of special aggravation where wounding was relied upon
  • Whether, if the conviction was upheld on the joint enterprise basis rather than as principal assailant, the sentence required adjustment

Decision

Ground 1: Unreasonable verdict as to principal assailant. The Court of Criminal Appeal found that the trial judge ought to have had a reasonable doubt as to whether the appellant was the principal assailant. The correct appellate question is whether, on the whole of the evidence, it was open to the fact-finder to be satisfied beyond reasonable doubt of guilt. Having examined the combination of factual and contextual circumstances, the Court was left with a reasonable doubt on this specific finding, and concluded that the trial judge's advantage in observing witnesses could not resolve that doubt.

Ground 2: Joint criminal enterprise and s 112(3). Despite upholding ground 1, the Court dismissed the conviction appeal. It held that the structure of s 112 is cascading: the first question is whether the simple offence under s 112(1) is made out, the second is whether circumstances of aggravation under s 112(2) are established, and only then does the third question arise under s 112(3) regarding special aggravation. Crucially, the common purpose required to establish the "in company" aggravation in s 112(2) does not need to extend to the circumstance of special aggravation in s 112(3). The doctrine of joint criminal enterprise therefore applies to s 112(3), and the appellant's conviction was properly sustained on that basis.

Mental element for wounding in 2011. The Court confirmed that at the time of the offence in January 2011, an intention to wound was not required to attract the circumstance of special aggravation where wounding was relied upon. The relevant legislative amendments that introduced an intent requirement had not yet been enacted. Applying this construction, and applying the joint enterprise doctrine, the appellant was rightly convicted under s 112(3) even though the Court found a reasonable doubt as to whether he personally delivered the blows.

Sentence. The parties had agreed that if the conviction survived but the principal-assailant finding did not, the sentence should be reduced to reflect the lesser objective seriousness of an offence established through joint criminal enterprise rather than as the primary perpetrator. The Court allowed the sentence appeal accordingly, reducing both the total term and the non-parole period.

Orders Made

  • Leave to appeal granted
  • Appeal against conviction dismissed
  • Appeal against sentence allowed
  • Sentence imposed on 13 December 2018 quashed; substituted with a non-parole period of two years and nine months commencing 30 November 2018 and expiring 29 August 2021, and a total term of four years expiring 29 November 2022

Key Takeaways

  • The cascading structure of s 112 of the Crimes Act 1900 (NSW) means the common purpose establishing the "in company" aggravation under s 112(2) does not need to extend to the circumstance of special aggravation under s 112(3); each tier is assessed sequentially.
  • Joint criminal enterprise applies to s 112(3) (and the closely analogous s 98) such that an accused need not be the principal assailant to be convicted of the specially aggravated offence, provided participation in the joint enterprise is established.
  • At the time of the January 2011 offence, no intention to wound was required to attract the circumstance of special aggravation where wounding was the basis for that aggravation; that mental element requirement was introduced by later legislative amendment.
  • Where an appellate court finds a reasonable doubt as to a specific factual finding underlying conviction, but an alternative legal basis supports the same verdict, the conviction may still stand on that alternative basis.
  • A finding that an offender's liability rests on joint criminal enterprise rather than on being the principal assailant is a relevant factor going to the objective seriousness of the offence at sentencing, and may warrant a reduction in the sentence imposed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 98, 105A, 112(1), 112(2), 112(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)
- Crimes Amendment Act 2007 (NSW)
- Crimes Amendment (Reckless Infliction of Harm) Act 2012 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Evidence Act 1995 (NSW), s 38

Cases
- Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32
- Ryan v The Queen (1967) 121 CLR 205; [1967] HCA 2
- Miller v The Queen (2016) 259 CLR 380; [2016] HCA 30
- McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- IL v The Queen (2017) 262 CLR 268; [2017] HCA 27
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Dickson v The Queen (2017) 94 NSWLR 476; [2017] NSWCCA 78
- Blackwell v The Queen (2011) 81 NSWLR 119; [2011] NSWCCA 93
- Johns v The Queen (1980) 143 CLR 108; [1980] HCA 3
- Bell v R [2017] NSWCCA 207
- Atai v R [2014] NSWCCA 210
- Markou v The Queen (2012) 221 A Crim R 48; [2012] NSWCCA 64