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Key decisions

  • Pehar v R [2020] NSWCCA 118
  • Ford v R [2020] NSWCCA 99

Pehar v R [2020] NSWCCA 118

Aggravating factors on sentence – ‘in company’ – aggravation not established by mere presence

The Court of Criminal Appeal (‘CCA’) has confirmed that an offence is not aggravated merely because another person is present ‘in company’ with the offender. For the statutory aggravating factor to be engaged, there must be a principled explanation as to why the presence of another person renders the offence more serious.

A jury found the applicant guilty of nine variations on the theme of larceny and one count of destroy / damage property. All the offences centred around a single industrial complex and spanned a period of nine days. The applicant stole CCTV cameras from outside various commercial units in the complex (each camera appears to be valued at between $350-800, which might explain the motivation) and took a van, and then in one night destroyed a CCTV camera, stole another van, and in company with one other person used that stolen van to break into an industrial unit which sold CCTV cameras and hard drives with a view to stealing their wares. The latter offence was part of an offence of aggravated break, enter and steal (in company); the appeal related to every offence except that break and enter offence. 

Ironically given the items stolen, most of the evidence relevant to the appeal was itself captured on CCTV. Seven of the 10 incidents involved footage showing the presence variously of either one or two other offenders. Relevantly for present purposes, the sentencing judge found that all the offences had been carried out in company. The applicant was sentenced to imprisonment for six years, with a non-parole period of three years. He appealed upon the sole ground that the sentencing judge had failed to determine the extent to which, if at all, the counts (other than the aggravated break and enter) had been aggravated by the fact they were committed in company.

The Crown conceded that there had been an error and the CCA (Fullerton J, with whom Meagher JA and Wilson J agreed) accepted that concession. The agreed facts did not disclose the extent to which, if at all, the applicant’s culpability for the relevant counts was aggravated by being in company (at [27]). It was incumbent on the sentencing judge to clearly identify the relevant factors bearing upon the indicative and aggregate sentences (at [30]). Here, the CCA confirmed previous authorities to the effect that

[T]he mere fact that offences occur in company, whilst capable of being an aggravating factor, might or might not be in fact aggravating. The sentencing judge must still determine whether, in all the circumstances, the offence is made more culpable than otherwise, as where two robbers overawe a victim.

(at [44], quoting Gore v R; Hunter v R (2010) 208 A Crim R 353). The Court also confirmed other authority to the effect that the mere fact that two persons are in the company of each other at the time of the offending is not, of itself, a sufficient basis upon which to conclude that an offence is aggravated within the meaning of s 21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (at [47], quoting R v Pham [2018] NSWSC 822). In this case, at no point did the sentencing judge consider the relevance of the fact that the offences had been in company with others. Had the sentencing judge been taken to the relevant authorities, and applied a principled approach to whether the ‘in company’ aggravating feature was engaged, it would not have been open to him to find that all the offences were relevantly aggravated by the presence of one or two other men (at [48]).

As an example of how the principle should be applied, the CCA, having found error, moved to resentence the applicant. The CCA did not accept that there was sufficient factual foundation to find that the driving away of the vehicle, or the destruction of property was in any material sense assisted or encouraged by the presence of one or more other offenders. The taking of the motor vehicle appears to have been opportunistic, and the damage to property was either opportunistic or incidental to other offending (at [50]). In relation to other offences, it cannot be overlooked that the offences were committed in an industrial complex when no tenants or owners were present. Although the absence of people was a factor in the planning (which is otherwise relevant in the sentencing exercise), it also operates to ameliorate one of the central factors of the ‘in company’ factor of statutory aggravation in that no member of the public was overborne by the presence of multiple offenders or subject to any threat of violence (at [51] and [53]). The applicant’s appeal was upheld, and he was resentenced to four years and six months with a non-parole period of two years and three months.

Ford v R [2020] NSWCCA 99

Specially aggravated break and enter – whether joint criminal enterprise is required to establish special aggravation

When working through the different types of aggravated and ‘specially’ aggravated break and enter offences, the CCA has determined that the various factors are untethered from one another. The correct approach is to cascade through the subsections of s 112  of the Crimes Act 1900 (NSW), at each stage asking whether that subsection is fulfilled before moving to the next one.

The applicant and another man broke in and assaulted a man in his bedroom. The victim received what were eventually accepted to be ‘wounds’, as a result of being repeatedly hit in the head with a beer bottle and a bedside lamp. There was a judge alone trial, after which the applicant was convicted of specially aggravated break, enter and commit serious indictable offence (Crimes Act 1900 (NSW), s 112(3)).

The applicant accepted that he broke, entered, and committed an assault occasioning actual bodily harm (that is, accepted he was guilty of the simpliciter offence), but disputed that he was guilty of the ‘specially’ aggravated form of the offence – which would require, amongst other things, proof of wounding or grievous bodily harm to have been inflicted, or a ‘dangerous weapon’ to have been used. In this case there were two options: either the appellant was the person who inflicted the wound (which was what the trial judge found), or on the Crown’s alternative case he was part of a joint criminal enterprise in the sense of being part of a common purpose or shared intention of the two offenders.

At the risk of ruining the suspense, unlike the trial judge, the CCA (Brereton JA, with whom Bellew and Lonergan JJ agreed) was not satisfied that the appellant was the primary assailant (at [78]-[80]). But it also found that it wasn’t necessary to get into the weeds about extended joint criminal enterprise: the offenders might not have agreed to wound the victim, but they intended to inflict actual bodily harm on him and a bottle was taken to be used as a weapon for that purpose, so they must have contemplated wounding as a possible incident of that agreement (at [98]-[99]). As a result, the conviction appeal was dismissed, but the applicant got some time shaved off his sentence because he had been found guilty on a less serious basis.

But in the course of that determination an interesting question arose: does the offence in s 112(3) require the ‘special’ aggravation (in this case, wounding) to be connected to the aggravating factor of ‘in company’? Does there have to be a joint criminal enterprise to wound, for example? Here, the applicant argued that there was not a common purpose to wound, and so it wasn’t open to find that the applicant was ‘in company’ for the purposes of the specially aggravated offence.

The CCA found that the applicant’s argument does not have regard to the structure of s 112, and how the circumstances of aggravation fit within it (at [46]). The structure of s 112 is cascading. The first question is: is the accused guilty of the simple offence? If so (and here the applicant accepted that he was), the second question is whether there are any circumstances of aggravation for the purposes of subs (2) – such as whether the simple offence was committed in company. If – and only if – the second question is answered in the affirmative, does the third question arise: are there circumstances of special aggravation? The only question at this third stage is whether there was a circumstance of special aggravation, and there is no requirement that any common purpose is established (at [49]-[51]).

The decision also included an expedition into the depths of authorities around extended joint criminal enterprise (at [82]-[97]). The detail is too complicated to replicate here and as mentioned wasn’t necessary to decide the case. It suffices to say that the Court identified what it thinks might be a rift between two High Court authorities on how the doctrine of extended joint criminal enterprise applies to offences like this one, and decided that it prefers Sio v The Queen (2016) 259 CLR 47 over Ryan v The Queen (1967) 121 CLR 205.

Thomas Spohr
is a solicitor, Legal Aid NSW and a member of the Law Society of NSW Criminal Law and Ethics Committees.