The Queen v Pearce[1998] QCA 325

COURT OF APPEAL

McPHERSON JA

THOMAS JA

CULLINANE J

CA No 206 of 1998

THE QUEEN

v.

BRISBANE

DATE 22/09/98

JUDGMENT

McPHERSON JA:  The Court having discussed this matter, I will proceed now to give my reasons for judgment.

On 14 November 1996 Alan Humphrey (who is the complainant in count 2 of the indictment) Kellie Burnell and Priscilla Charlton (who is the complainant in count 5), together with Kellie Burnell's three children, were living in a house at Buddina.  At about 8 p.m. or a little later, the appellant, Stephen Clark, known as "Steph", together with Malcolm Cone and Carole Atkinson entered the house. 

According to the evidence of Humphrey, a fourth member of the group, who is the applicant Stephen Pearce, also came into the house then or a little later.  Those persons did so without the permission of the occupiers.  The Crown case was that the appellant and Atkinson were armed with pieces of wood which Humphrey said resembled cricket stumps in appearance or size. Pearce, he said, was equipped with a golf club, which it may be he obtained at the scene of the crime, and Cone with an aluminium baseball bat or something having that appearance. According to the evidence that was given by Humphrey and other Crown witnesses, the jury would have been entitled to accept that the group came for money and, it may be, drugs, the money being, it seems, a sum that the appellant claimed was owing to him by Kellie Burnell.

The inescapable inference from all the evidence was that they were prepared to use serious violence in order to obtain that money.  In short, it was open to the jury on the evidence at the trial to infer that they formed a criminal conspiracy to break into the house at night and rob the inhabitants or one or more of them.

After entering the house, the appellant Clark began to assault Humphrey who, it may be noted, had some prior acquaintance with these intruders.  While this was happening, the accused were demanding that Humphrey give them money or that he show them where it was.  The appellant hit Humphrey on the head with a piece of wood which he was carrying.  It cut his forehead, which began to bleed.  When he raised his arm for protection, Humphrey was struck on the arm, whereupon he lunged at the appellant and  wrestled him to the floor.  According to Humphrey's evidence, it was the appellant, together with Cone and Atkinson, who hit him on the arm.

While wrestling with the appellant, Humphrey could feel Cone and Atkinson beating him with their weapons and hitting him in the ribs and elsewhere. 

Pearce, meanwhile, was standing at the front door with his golf club keeping guard.  When Humphrey got up, he reached for a hockey stick, which was hidden above the curtain rail.  Pearce, according to Humphrey, saw him doing this and said: "Don't do that or I'll hit you."  In the result, Humphrey never got the hockey stick. 

For the complainant Humphrey, the result of these assaults on him was that he suffered numerous bruises and abrasions on various parts of his body, in addition to the cut on his forehead already mentioned.  What was worse, he had to be operated on to remove his spleen, which had been ruptured by the force of the blow or blows in the course of the beating he sustained.  This is what gave rise to the charge of grievous bodily harm in count 2 of the indictment. 

The appellant, Clark, challenges his conviction on count 2 on the grounds that the injuries and the offence charged in that count took place in his absence when he was himself further into the house, and that he consequently had no responsibility for it.  That was consistent with the account Clark himself gave in evidence at the trial, but it was completely contradicted by Humphrey's testimony to which I have referred. In finding the appellant Clark guilty, the jury must necessarily have accepted Humphrey's version, as they were plainly entitled to do. 

As regards s. 8 of the Code, the appellant also submits that the trial Judge failed to direct the jury in an essential respect, which is that, to attract liability under that section, the offence or the act constituting it must have been done "in furtherance of" the common intention alleged to attract the application of s. 8.  In support of this submission, reliance was placed on a statement to that effect by Hanger J. in R. v. Phillips and Laurence [1967] Qd.R. 237, 260, referring there to what was said by Starke J. in Brennan v. The King (1936) 55 C.L.R. 253, 260.

To say that s. 8 requires that the offence for which responsibility is ascribed by that section must be done "in furtherance of" the common plan or intention appears to me, with respect, possibly to place a gloss on the section that is not warranted by the terms or the language used in it.  The function or effect of s. 8 is to impose on the parties to a joint criminal plan or purpose criminal responsibility for a criminal act or offence committed by one or more of them, even though it may go beyond the scope of the original joint plan or purpose.

For responsibility to attach under s. 8 for such an act, certain requirements must be satisfied.  Among them are that the criminal act in question must be of such a nature that its commission is a probable consequence of carrying out the original joint purpose; and it must also take place in prosecuting or carrying out that purpose.  No doubt that means that it must not be the result of some other privately formed and distinct purpose of the individual who does or commits it.  If "in furtherance of" was intended by Hanger J. to require that the criminal act in question must have been part of the original plan or purpose, then it would have the result of largely frustrating the object of the section. 

I do not consider that his Honour could have been intending to bring about that result in what he said in R. v. Phillips & Laurence. 

It is, however, not necessary on this occasion to pursue an analysis of this matter in greater detail.  It is enough to say that s. 8 does not use the expression "in furtherance of" the common intention or purpose, and in Brennan v. The King, Starke J. did not say that it did.  What his Honour said there and what is said in s. 8 is that the offence in question must be committed "in the prosecution of" the common intention.  Sufficient effect is given to the word "in" in that context by reading it as it stands without attempting on this occasion to enlarge upon its meaning or significance in the circumstances of this case. 

As to the requirement that the offence in question be committed in the prosecution of the common intention, the learned trial Judge in his summing-up more than once directed the jury that for criminal responsibility to attach under s. 8 it was necessary that the offence in question should have been committed in the prosecution of the unlawful purpose by the participants in the violence which took place on that evening. This ground of appeal relied on by the appellant is therefore not well-founded.  The same, in my opinion, applies to the other ground referred to at paras. 3.2 to 3.19 of the appellant's written outline.  It depends for its acceptance on adopting a very limited, and, in my view, artificial, approach to both the facts in this matter and to the terms of s. 8, which I would not be prepared to accept.

The present case is in fact one in which all the accused were, on the evidence of Humphrey, active participants in the assault alleged in count 2 that gave rise to the grievous bodily harm inflicted on Humphrey as the complainant.  According to his evidence, each of the accused Clark, Cone and Atkinson landed blows on him after they had come into the house.  Pearce was not said to have done so, but he was, as I have said, guarding the door; and he later participated in the process that was going on by threatening Humphrey with violence when he tried to get the hockey stick to protect himself. 

Each of those present saw what the others were doing to Humphrey and, by one means or another, each assisted all of the others in doing it.  In those circumstances each of them became criminally responsible as a principal offender under either or both of sections 7(1)(b) or 7(1)(c) for the acts and offences of each of the others.  Whoever it was that inflicted the blow or blows causing grievous bodily harm on Humphrey, the law is that each of the others, including the appellant Clark, was equally guilty of the offence charged in count 2. 

The offence charged in count 5 consisting of assault occasioning bodily harm to Miss Charlton took place when she was in the shower.  After the initial assault on Humphrey the appellant and Cone went down the passage looking for Kellie Burnell.  Having heard what was going on, Priscilla Charlton put her head out of the bathroom, whereupon Cone hit her on the head with the baseball bat.  It was an injury that raised a large lump on the back of the head, so constituting the bodily harm charged in count 5.

It is somewhat less easy to sheet home to the appellant personal responsibility for this blow by Cone.  He evidently knew Kellie Burnell who, as his debtor, appears to have been the primary focus of his attention, and he presumably therefore knew that the woman in the bathroom was not the one they were looking for.  Nevertheless his earlier attack on Humphrey demonstrates that the violence that the accused planned to inflict on the occupants of the house was not directed with any degree of precision only against Ms Burnell.  The four accused, including Clark, were evidently prepared to assault anyone who presented himself or herself, or got in the path of their attempts to find Ms Burnell and to obtain the money that they claimed was owing by her.  Even if assaulting Miss Charlton was not part of the original plan, it was just the kind of action that was to be expected once the common intention was put into effect. 

In that sense the jury were, in my view, entitled to conclude that the assault perpetrated by Cone in the presence of the appellant on Miss Charlton was a probable consequence of carrying out the original intention formed by the four of them to enter the house and carry out an armed robbery on the occupants, and that it was done in the prosecution of their common purpose.  Instilling terror in those whom they encountered inside the house was a useful if not a necessary step in the process of overcoming their resistance.  Hitting Miss Charlton on the head ensured that she presented no threat to the success of the venture.  I therefore conclude that the jury were entitled under s. 8 of the Code to find the appellant guilty of the offence charged in count 5. 

Clark's appeal against conviction must therefore be dismissed.  He also seeks leave to appeal against sentence.  The effective sentence was imprisonment for five years, which was imposed in respect of the offence in count 2 of grievous bodily harm committed against Humphrey.  The bodily harm offence on Ms Charlton in count 5 attracted three years; entering a dwelling house with intent, which was count 1, was visited with four years imprisonment; count 3 was another assault on Humphrey, which drew three years; while the penalty for the attempted armed robbery on Ms Burnell was five years.  All sentences were to be served concurrently.

No one could fairly argue that an effective head sentence of five years for this combination of offences carried out at night in the course of such a violent home invasion was excessive.  Clark's complaint is that the learned judge failed, sufficiently or at all, to distinguish between him and his co-offenders, each of whom were sentenced to an effective term of five years imprisonment.  What is said is that this offends the principle stated in Postiglione v. The Queen (1991) 71 A.L.J.R. 875 to the effect that, in sentencing co-offenders, relevant differences between them should be allowed for.  Distinctions, for example, in the form of different degrees of culpability, and in the extent of prior criminal records of the various co-offenders, ought to be reflected in the process of sentencing the individual co‑accused.

Instead of observing this requirement the Judge has, it is submitted, treated all four accused equally, and so wrongly failed to make a distinction between Clark and the others on grounds that were plainly relevant.  In that regard, the matters advanced on appeal in support of Clark's application were, first, his lesser degree of culpability as it was claimed to be; and, secondly, the complete absence of any prior criminal convictions on his part.

From what has been said already, there is no substance in the first of these matters unless one accepts the appellant's own account in evidence at the trial of the limited part he played in the events of that evening.  Plainly enough the jury did not accept his version of events.  They found him guilty of all counts, essentially, as I would see it, in relation to counts 2 and 3 on the evidence given by Humphrey.  On his testimony there is really no room for argument that the applicant was an active participant in the more serious of the offences charged.  It was, in any event, the appellant's claim to be paid the money he thought was owed to him that formed the primary motive for initiating the commission of these offences, and it is difficult to believe that he was not the instigator of the plan that led to them.  His culpability is at least as extensive as that of the others, and may, indeed, be even greater.

The second matter relied on is perhaps less easy to dispose of.  The applicant is 30 years old, married, with a young daughter.  He has no criminal history and has a previous good record.  His co-offenders all have prior convictions of some kind, and one or more of them has an extensive criminal history.  The appellant Clark has a good record of employment, and apparently also some real work skills.  He fell into this rather unsavoury company because, it is said, he went through a period of drug addiction.  These are all factors that might, on one view, have conduced to a recommendation for early parole in his case, but there are also countervailing factors of greater cogency.

One is that no such recommendation was in fact sought at the hearing, and the other that the appellant was, on what I have said of the evidence against him, plainly an active participant at all stages of this night of criminal wrongdoing.  To give him now the benefit of an early recommendation would tend to promote a justifiable sense of grievance among his co-offenders at what they would then view as the unequal treatment accorded to them as compared to the appellant Clark.

The learned judge plainly had this in mind when he arrived at the sentences that he imposed in this case after considering, as he did, the particular backgrounds and histories of each of the offenders.  In all the circumstances, I do not think it possible to disturb his sentencing discretion in the matter, and I would therefore refuse Clark's application for leave to appeal against sentence.

I turn now to the applicant Pearce, who appeared before us in person.  He is 37, or perhaps now 38, years of age, a qualified spray painter who has worked for the last 10 or 12 years in that or some other capacity with a local authority in Queensland.  He is married and has one child aged 14.  He, too, unfortunately was a heroin addict at the time and has been on the methadone program since 1996.  He has some prior criminal history but mostly in respect of relatively minor offences involving drugs. 

The basis on which we were asked to differentiate in his case is his lesser physical participation in the offences.  That is a relevant consideration.  However, it is to be noticed that he kept guard at the door, as his counsel in fact conceded on sentencing; and, according to Humphrey, the applicant Pearce prevented him, by threats of physical violence, from obtaining the hockey stick to defend himself to which I have already referred.

Before us Mr Pearce said that Humphrey was a liar, but it may be noted that Mr Humphrey himself in his victim statement returned the same compliment to all of the co-offenders in this case.  The matter, therefore, was one for the jury to determine, as to which it was certainly open to them to accept the evidence of Humphrey, as they evidently did, in preference to that of the offenders who gave evidence at the trial.

On this footing the applicant Pearce was criminally responsible for the offences by virtue of the operation of both ss. 7 and 8.  It may not be as evident to some as it is to those acquainted with the Code provisions that if you assist in the commission of an offence you become fully responsible for all its consequences.

One may have some slight sympathy for this applicant; but there was really no need for him to join this band of robbers or to assist them in carrying out the assaults that they did.  It was a mistake which I have no doubt he now regrets, but I do not think it provides a basis for distinguishing in the matter of sentence between him and the other offenders in this case.

In the result, I have reached the view that this application for leave to appeal against sentence must also fail.  I would dismiss it along with the others.

Those are my reasons.

THOMAS JA:  I agree.

CULLINANE J:  I agree also.

McPHERSON JA:  The order of the Court is that the appeal by Clark against his conviction is dismissed.  The applications by Clark and Pearce for leave to appeal against their sentences are refused.