R v Johnson & Ward; ex parte Attorney-General
[2007] QCA 76
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- Unreported Judgment
- Appeal Determined (QCA)
- R v Johnson & Ward; ex parte Attorney-General[2007] QCA 76
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R v Johnson & Ward; ex parte Attorney-General[2007] QCA 76
R v Johnson & Ward; ex parte Attorney-General[2007] QCA 76
SUPREME COURT OF QUEENSLAND
CITATION: | R v Johnson; ex parte A-G (Qld); R v Johnson; ex parte A-G (Qld); R v Ward; ex parte A-G (Qld); R v Ward [2007] QCA 76 |
PARTIES: | R R R |
FILE NO/S: | CA No 263 of 2006 CA No 264 of 2006 CA No 180 of 2006 CA No 265 of 2006 SC No 169 of 2005 |
DIVISION: | Court of Appeal |
PROCEEDING: | Appeal against Conviction Sentence Appeal by A-G (Qld) |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 16 March 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 31 January 2007 |
JUDGES: | de Jersey CJ, Holmes JA and Mullins J Separate reasons for judgment of each member of the Court, Holmes JA and Mullins J concurring as to the orders made, de Jersey CJ dissenting in part |
ORDER: | 1. Appeal against conviction dismissed 2. Attorney-General’s appeal against sentence of Ward dismissed 3. Attorney-General’s appeal against sentence of Clinton Johnson dismissed 4. Attorney-General’s appeal against sentence of Clayton Johnson allowed 5. Sentence imposed on Clayton Johnson in respect of the offence of manslaughter is set aside, and in lieu, Clayton Johnson is sentenced to seven years imprisonment |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – where appellant convicted of manslaughter – where there was a fight of a group against a group – where death resulted from injuries sustained through a fall following delivery of a punch to the deceased’s head by a co-accused – where case against appellant left to the jury on the basis of s 7(1)(c) and s 8 of the Criminal Code – whether Judge’s directions regarding presence, aiding and encouragement were adequate CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where appellant convicted of manslaughter – where there was a fight of a group against a group – where appellant involved in physical altercation with another person concurrently with a co-accused’s assault upon the deceased – whether verdict could be supported on the basis of s 7(1)(c) CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where Clayton Johnson sentenced to six years imprisonment, Clinton Johnson sentenced to four years imprisonment, and Ward sentenced to four and a half years imprisonment for manslaughter, each with concurrent lesser terms imposed for aggravated assault – where Judge made allowance for co-operation – where respondents young and of previous good character – whether sentences imposed were manifestly inadequate Criminal Code Act 1899 (Qld), s 7(1)(c), s 8 R v AS; ex p A-G (Qld) [2004] QCA 259; CA No 183 of 2004, 30 July 2004, distinguished R v Beck [1990] 1 Qd R 30, followed R v George; ex p A-G (Qld) [2004] QCA 450; CA No 316 of 2004, 26 November 2004, distinguished R v Katia; ex p A-G (Qld) [2006] QCA 300; CA 111 of 2006, 3 August 2006, followed R v Simeon [2000] QCA 470; CA 167 of 2000, 21 November 2000, distinguished R v Stafford [1996] QCA 79, CA No 503 of 1995, 13 March 1996, distinguished R v Tientjes; ex p A‑G (Qld) [1999] QCA 480; CA 229 of 1999, 16 November 1999, distinguished |
COUNSEL: | R G Martin SC for the appellant C Reid for the respondent, Clayton Johnson P J Davis SC for the respondent, Clinton Johnson A J Kimmins for the appellant/respondent, Ward |
SOLICITORS: | Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent, Clayton Johnson Legal Aid Queensland for the respondent, Clinton Johnson Bell Miller for the appellant/respondent, Ward |
- de JERSEY CJ: The appellant, Joseph Tyler Ward, was convicted by a jury of the manslaughter of James Grant Bachelard at Brisbane on or about 9 April 2004. Ward was also convicted, on his plea of guilty, of the unlawful assault, occasioning bodily harm, while armed, of Phillip James Cox, an offence committed on the same occasion. Clayton Johnson and Clinton Johnson (brothers) had pleaded not guilty to that offence, and were convicted by the jury. Another accused, Michael George Falcon, was acquitted on both charges.
- The jury returned its verdicts on 21 June 2006, at the end of a two week trial. The learned primary Judge sentenced the appellant and the Johnson brothers on 21 August 2006. He sentenced Clayton Johnson to six years imprisonment for manslaughter, and three months concurrently for aggravated assault. He sentenced the appellant Ward to four and a half years imprisonment for manslaughter, and six months concurrently for the aggravated assault, and Clinton Johnson to four years imprisonment for manslaughter and three months concurrently for the aggravated assault.
- The Johnson brothers had no prior criminal history, and Ward’s was insignificant. At the time of the offences, Clayton Johnson was 17 years of age, and 19 years when tried and sentenced; Clinton Johnson was 16 at the time of the offences, and 18 when tried and sentenced; and Ward was 17 when he offended, and 20 at the time of trial and sentence.
- The appellant Ward appeals against his conviction, and the Honourable the Attorney-General appeals against the sentences imposed on Ward and the Johnson brothers.
- The deceased died because of injuries sustained through a fall following the delivery, by Clayton Johnson, of a punch to his head. The cases against Clinton Johnson and Ward were left to the jury on the basis of s 7(1)(c) of the Criminal Code (aiding) and s 8 (offence committed in the prosecution of a common purpose).
- Ward appeals against his conviction for manslaughter on the grounds that “calculated or deliberate presence” (cf. R v Beck [1990] 1 Qd R 30, 37) could not amount to aiding under s 7(1)(c), and the jury should not have been invited to consider aiding under that provision; because there was no basis for the application of s 8, there being insufficient evidence of the requisite common intention to prosecute an unlawful purpose, and because the death of the deceased could not have been a probable consequence of such prosecution; and because the verdict was unsafe and unsatisfactory.
- It is convenient now to summarize the thrust of the relevant evidence.
- The deceased was one of a group of four persons (including Cox, Hoskinson and the deceased’s fiancée Grasby) walking from a bar at Westfield Chermside shortly after midnight to Grasby’s nearby residence. They had been drinking at the bar, and the blood alcohol content of the deceased was approximately 0.2.
- The route took them through a park. The appellant and the Johnson brothers, with others, had been involved in disputation and a fight in that park. The fight was directed at one Dion Murphy. At about the time the deceased’s group was walking through the park, Clayton Johnson said to one Faafoi, in the presence of the appellant but perhaps not Clinton Johnson, words to the effect: “Don’t worry about Dion. There’s some fellows up there, let’s go get them”. Alternatively he may have said “let’s go fight them”, or “let’s go”. In his interview with the police, the appellant conceded he himself said: “let’s go”, and that he “went up there to have a fight”.
- Clayton Johnson and the appellant went off then in the direction of the deceased’s group. Of that group, the deceased and his fiancée were walking ahead of the others, with Cox and Hoskinson bringing up the rear. Cox became aware of persons running after his group. As he approached the deceased’s group, the appellant (on Cox’s evidence) had armed himself with a wooden stake. Cox was punched to the head, and struck on the arm with the stake, by the appellant.
- Contemporaneously and close by, at a distance variously estimated at between four and 20 metres, Clayton Johnson delivered the punch which felled the deceased, leading to his death. There was evidence (from Hoskinson and Falcon) that just before that, Clinton Johnson attacked the deceased from behind.
- After the incident, the appellant and the Johnson brothers fled as a group. There was evidence of a statement then to another person by Clayton Johnson that he had hit the deceased, and although when initially approached by the police he did not implicate himself, he did so subsequently, as did the appellant and Clinton Johnson in varying degrees.
Appeal by Ward : Section 7 Criminal Code
Adequacy of direction
- The learned Judge gave the following direction in relation to the application of s 7:
“A defendant may assist or aid another by giving actual physical assistance in the commission of an offence but it is not necessary for the prosecution to show actual physical assistance. Wilful encouragement can be enough, certainly if the defendant intended that the perpetrator should have an expectation of aid from the defendant in the commission of the offence. When the prosecution alleges aiding by encouragement, such as from the presence of the person charged at the commission of the offence, the prosecution must prove both the person charged as an aider did actually encourage the perpetrator in the commission of the offence such as by presence at the scene and also that the person charged intended to encourage the commission of that offence by his or her presence. Voluntary and deliberate presence during the commission of a crime without opposition or real dissent may be evidence of wilful encouragement or aiding.”
- It is accepted that in instructing the jury in those terms, the Judge followed the direction proposed in the benchbook. It was necessarily cast comprehensively and generally – though concentrating on presence – to cover a variety of factual scenarios open on the evidence, as variously applicable to the four accused persons. The jury was discriminating in their approach, as may be seen from the acquittal of Falcon who, on the evidence, did no more than push the deceased in a non-threatening way.
- The Judge provided the following summary of how the prosecution sought to rely on s 7 against Ward:
“Joseph Ward, [the prosecutor] submitted, was one of the recipients of the invitation to ‘let’s go get them’. He, it is said by the prosecution, encouraged others, including Clayton, by travelling with Clayton and Clinton, on his account, to Hodgkinson Street in front of the deceased to confront the deceased’s group.
He submitted that Joseph Ward yelled out to the deceased’s group while travelling up Hodgkinson Street, that he became involved with Mr Cox in a physical altercation, it seems almost immediately upon the two groups meeting. Mr Byrne submitted to you that Joseph Ward was in fact the one leading the charge and that it was his failure to desist from the actions that he had started and to do anything to undo any encouragement that he had provided with the knowledge of the intention to ‘let’s go get them’ that made him an aider under s 7.
The prosecution concedes that he did not touch the deceased man but argues that he had knowledge that there would be a fight because he went with Clayton at that time in what was intended to be a fight of more than one against more than one. He submitted that the words ‘let’s go get them’ in effect, extended to ‘let’s go get whoever is up the road’.”
- His Honour dealt with the defence position in relation to s 7 in these terms, by way of summary of counsel’s submissions:
“In his submission there was no way it could be said that Joseph Ward was aiding, even encouraging what is going on after he starts fighting with Mr Cox, with Mr James Bachelard up the road. There was no act of assistance in the incident involving James Bachelard. He was not close enough to assist in any way and there was no active act of encouragement. He submitted that his client was at all times on the footpath when he was fighting with Mr Cox. The other people were at all times in the middle of the road.
The incident with Phillip Cox occurred first in time and there was no encouragement, aiding or ability to render any assistance in respect of the attack on Mr Bachelard because he, Mr Ward, was involved in his own fracas. Again, these are matters for you to assess based on your own common sense and experience of the world.”
- In R v Beck, Macrossan CJ provided the following analysis (p 37):
“Intentional encouragement may come from expressions, gestures, ‘or actions intended to signify approval’. Voluntary and deliberate presence during the commission of a crime without opposition or real dissent may be evidence of wilful encouragement or aiding. It seems that all will depend on the scrutiny of the behaviour of the alleged aider and the principal offender and on the existence which might appear of a bond or connection between the two actors and their actions. The fortuitous and passive presence of a mere spectator can be an irrelevance so far as an active offender is concerned. But, on the other hand, a calculated presence or a presence from which opportunity is taken can project positive encouragement and support to a principal offender. The distinction between a neutral and a guilty presence of a person at the scene of a crime will be for the jury to assess. Proof of guilt of the crime of aiding will not ordinarily be established by mere presence if no telltale acts are performed by the alleged aider but the intention behind and the effect of the presence of the additional person at the scene may be established by other evidence from which it is possible to say that a case of intentional encouragement or support of the principal offender is made out.”
There is no reason to depart from that statement of the law, which derives support from previous authority (e.g. R v Coney (1882) 8 QBD 534, 557-8).
- Mr Kimmins, who appeared for the appellant, submitted that the direction given by the Judge was misleading, in particular because it did not include this final sentence from that extract from Beck:
“Proof of guilt of the crime of aiding will not ordinarily be established by mere presence if no telltale acts are performed by the alleged aider but the intention behind and the effect of the presence of the additional person at the scene may be established by other evidence from which it is possible to say that a case of intentional encouragement or support of the principal offender is made out.”
- There is no authority suggesting a direction on this aspect will be inadequate unless it includes that particular passage from Beck. The direction set out in the benchbook, adopted here by the learned Judge, was in substance correct, it was clear, and it was sufficient for the instruction of the jury.
- Upon the hearing of the appeal, there was discussion about the basis on which the prosecution pursued a case of aiding, in particular, whether confined to what Beck calls “calculated presence”, or extending to active assistance or encouragement. The record shows that the Crown case was one of active encouragement.
- His Honour’s summary of the Crown contention, set out above, is consistent with that. It indicates the Crown did not limit itself to a case of “calculated presence”.
That being so, the instruction given by the Judge on aiding was appropriate and sufficient.
Whether aiding reasonably open
- The appellant also effectively contended it was not reasonably open for the prosecution to rely here on s 7.
- The essential elements of the factual case against the appellant, with reference to s 7, were that he went with the Johnson brothers, having heard the words from Clayton Johnson, “let’s go get them”, or words to that effect, words said with reference to the deceased’s group; the appellant himself offered encouragement, saying “let’s go”; the appellant was the first to engage in violence, with the person Cox, who he knew was in company with the deceased; and the assault by the appellant on Cox was contemporaneous with that inflicted upon the deceased, and carried out relatively close by.
- I accept the submission from Mr Martin SC, for the respondent, that the jury could reasonably regard this as “an attack by a group upon a group”, and that there was not “an impermeable separation between the assault on Cox by Ward and the assault on the deceased by the Johnson brothers”. It is a case where the evidence reasonably supported an understanding, formed between Clayton Johnson and Ward, that they would assault the deceased’s group; they traversed a not insubstantial distance on foot for that purpose; the first on the scene, Ward, attacked Cox who was trailling the deceased’s party, and then Clayton Johnson moved past and engaged the deceased. The assaults were carried out concurrently, whereupon the assailants fled the scene together. Ward’s expectation that the assaults would be violent is demonstrated by his having armed himself with the stake. All of those conclusions were reasonably open.
- The Judge’s comprehensive instruction to the jury properly armed the jury with the capacity to apply the relevant law depending on how they found the facts.
- Mr Kimmins, who appeared for the appellant, submitted there was insufficient evidence of the appellant’s purpose in what he did. It sufficed for the prosecution to establish the appellant’s purpose was to aid Clayton Johnson in his assault upon the deceased (cf. R v Barlow (1997) 188 CLR 1, 9; R v Johnston [2002] QCA 74 para 20). There was ample basis for an inference the appellant was so impelled: his presence when Clayton Johnson made his statements about the deceased’s group; the appellant’s own statement “let’s go”; his moving apace with the others towards the deceased’s group; arming himself with the stick; decamping together, etc.
- The challenge to the conviction of the appellant in relation to the application of s 7 of the Criminal Code cannot be sustained.
Section 8
- The appellant does not challenge the appropriateness of the directions given by the Judge in relation to s 8. They were plainly sufficient. The challenge to the convictions on this basis involves a contention there was insufficient evidence to warrant proof beyond reasonable doubt of the requisite common unlawful purpose, and as to whether manslaughter was a probable consequence of its prosecution.
- The existence of the necessary “common intention to prosecute an unlawful purpose”, common to the appellant and the Johnsons, found ample foundation in the aggregation of the following circumstances: the uttering of the words, “let’s go get them”, or such like, by Clayton Johnson in the presence of the appellant and others, said with reference to the deceased’s group; the appellant’s own statement, “let’s go”; the departure of the appellant and the Johnsons forthwith, at pace, in the direction of the deceased’s group, a not insubstantial distance away, a distance apparently on the evidence traversed with deliberation; the appellant arming himself with the stake, in the course of that pursuit; and the immediate eruption of violence when they met the deceased’s group, and with no provocation from the latter.
- As to whether the death of the deceased was a probable consequence of the prosecution of that unlawful purpose, something which “could well happen” (Darkan v The Queen [2006] HCA 34, para 79), the death resulted from a punch causing the deceased to fall and crack his skull: that could well have been regarded by the jury as warranting that description, acknowledging the scope of the plan, the emergent character of its formation, and the alacrity attending its implementation – reflecting the determination of those party to it. It was plainly open to the jury to infer a death could well result from a fist fight, and in addition there was the involvement of the stake.
- The challenge to the convictions of the appellant, so far as it is based on s 8 of the Criminal Code, likewise cannot be sustained.
Unsafe and unsatisfactory
- A review of the evidence confirms that a jury properly instructed could reasonably have convicted the appellant on these counts. The factual conclusions the jury should be taken to have drawn, discussed above, were sufficiently supported by the evidence, and thus reasonably open, and the legal framework left to the jury, under ss 7 and 8, was appropriate.
- The appeal against conviction should therefore be dismissed.
Attorney-General’s appeals against sentence
- A suggested error in the sentencing Judge’s approach should first be considered.
Allowance for co-operation
- The Judge accepted a submission that he should moderate the sentences he would otherwise impose because of some co-operation on the part of the respondents, during the police interviews, in volunteering information which assisted proof of the Crown case. He said:
“I think that it is something that is relevant and I shall take it into account to some extent … I do propose to take into account the fact that you volunteered information to the police. I shall do it not by making any earlier recommendations for release, but by taking into account that co-operation by imposing sentences lower than I would otherwise have imposed.”
- The appellant challenged that approach, but it was appropriate, for, by s 9(2)(i) of the Penalties and Sentences Act 1992 (Qld), the sentencing Judge was obliged to have regard to “how much assistance the offender gave to law enforcement agencies in the investigation of the offence or other offences”.
- The appellant effectively contended that the Judge treated the respondents as if they had pleaded guilty, and thereby afforded undue generosity, and sought to draw that from the following passage:
“The trial, of course, lasted more than two weeks and it was submitted on behalf of you all that the relevant question for the jury as to whether the death of [the deceased] was, in effect, reasonably foreseeable, was one that was particularly a matter for the jury and not one to which you should have pleaded guilty, and I can understand the thrust of that submission because it is a matter for a jury to look at these sorts of facts and take it into account, bearing in mind the evidence on the case, whether it thought the result was reasonably foreseeable or a likely consequence of this attack.”
As submitted then by Mr Martin, “the presence of a triable issue does not mean that they are to be treated as though had pleaded guilty”.
- I do not however consider that position should be drawn from that statement by his Honour, which amounted simply to an observation that the Judge could understand why the respondents would have wished to secure a jury determination. There is no basis for thinking he went further, and effectively treated the respondents as if they had pleaded guilty.
Adequacy of sentences
- The learned Judge observed that it was an unprovoked attack by a group on innocent bystanders. He recognised the importance of deterrence and denunciation. He acknowledged the significance of the circumstance that Clinton Johnson was a child at the time of the offences, and the applicability of s 144(2) of the Juvenile Justice Act 1992 (Qld), which obliged the Judge to have regard to the circumstance that the respondent was then a child, and the sentence which might have been imposed upon him if he had been sentenced as a child. The Judge also accepted that the respondents had demonstrated remorse, while noting the serious impact of the death upon the deceased’s family. He had the benefit of pre-sentence reports, which confirmed what he styled their “unremarkable” backgrounds and their work histories.
- The Judge was substantially influenced by the decision of the Court of Appeal in AS [2004] QCA 259, which concerned the manslaughter of a taxi driver by an offender then sixteen years of age. AS was sentenced as a child, and had pleaded guilty. Pursuant to s 176(3)(a) of the Juvenile Justice Act, the maximum applicable penalty was ten years detention, and under s 150(2)(e) the sentencing Judge had been obliged to impose the shortest appropriate period of detention. The court observed that detention of the order of five to six years should have been imposed, with one half to be served. On appeal, detention of five years was ordered.
- This sentencing Judge apparently worked from that position to determine six years imprisonment for Clayton Johnson as the most serious offender, four years imprisonment for Clinton Johnson and four and a half years imprisonment for Ward. While AS had some relevant prior criminal history, it is highly significant for present purposes that AS pleaded guilty and was sentenced as a child, attracting the additional legislative constraints just mentioned.
- A much more helpful guide to the range appropriate to this case is provided by Katia [2006] QCA 300, in which judgment was given by the Court of Appeal the day after the sentencing of these respondents. (The appeal judgment, obviously, was not available to this sentencing Judge.) As submitted by Mr Martin,
“in that case a comparably young man [he was eighteen years of age] with no previous convictions who committed a one punch manslaughter in a public place and who pleaded guilty was sentenced to eight years imprisonment with a parole recommendation after three years. The victim in that case was more helpless than the present, and there was a motive of theft. However in that case there was no collective attack, no use of a weapon such as a stick by any participant, no attack on multiple victims and no attempt to cast responsibility upon the victim. Katia, too, could have put the Crown to proof on the issue of ‘reasonable foreseeability’: unlike the present respondents he chose not to.”
- While there was in Katia a level of callousness not present here, the plea of guilty, and the collective nature of this attack on a number of targets, including the use of the stake, render the presently appropriate penalty (in the case of Clayton Johnson) at least of that order.
- This was essentially a case of gratuitous violence, causing loss of life, in which the respondents engaged reprehensibly purely as a diversion. It warrants serious punishment with a view also to strong deterrence.
- Katia points up the manifest inadequacy of the six year term imposed on Clayton Johnson following the trial, which should on the Attorney’s appeal be increased to eight years imprisonment. Applying s 144(2) and (3) of the Juvenile Justice Act, and acknowledging his lesser role, Clinton Johnson’s four year term should remain undisturbed. Achieving appropriate parity with the treatment of Clayton Johnson, while again allowing for the lesser role, the sentence imposed on Ward should be increased from four and a half years to six years.
- I would order as follows:
- That the appellant Ward’s appeal against conviction be dismissed;
- That the appeals against sentence by the Attorney-General in respect of the respondents Joseph Tyler Ward and Clayton James Johnson be allowed, the sentences imposed on those respondents for the offence of manslaughter set aside, and that the respondents be imprisoned on that count for the following terms:
(a)the respondent Ward six years;
(b)the respondent Clayton Johnson eight years;
with the terms imposed concurrently in respect of the offences of aggravated assault, and the declarations as to time already served, to remain undisturbed;
- That the appeal against sentence by the Attorney-General in respect of the respondent Clinton Jeffrey Johnson be dismissed.
- [47]HOLMES JA: I have had the advantage of reading the reasons for judgment of the Chief Justice and gratefully adopt his account of the evidence in the case.
Ward’s appeal against conviction
The directions on the s 7 aiding case
- The aiding case against the appellant Ward was put by the prosecution and left to the jury as one of encouragement under s 7(1)(c). The appellant complains that the learned trial Judge’s direction as to how presence might constitute encouragement was inadequate because it failed to include this sentence from R v Beck[1]:
“Proof of guilt of the crime of aiding will not ordinarily be established by mere presence if no telltale acts are performed by the alleged aider but the intention behind and the effect of the presence of the additional person at the scene may be established by other evidence from which it is possible to say that a case of intentional encouragement or support of the principal offender is made out”.
That passage emphasises three things: (1) that proof of mere presence at the scene of the offence will not suffice; (2) that the prosecution must establish that the intention behind the presence is to encourage; and (3) that the prosecution must establish that the effect of the presence is to encourage. If one examines the direction which the learned trial Judge did give (it is set out in full at para 13 of the judgment of the Chief Justice), one sees that the penultimate sentence of the extract quoted is this:
“Where the prosecution alleges aiding by encouragement, such as from the presence of the person charged at the commission of the offence, the prosecution must prove both that the person charged as an aider did actually encourage the perpetrator in the commission of the offence such as by presence at the scene and also that the person charged intended to encourage the commission of that offence by his or her presence”[2].
That instruction seems to me to articulate all that is contained in the sentence from Beck relied on by the appellant. The direction was adequate to explain the need for the prosecution to go beyond proof of mere presence to proof that the intention and effect of Ward’s conduct was to encourage the commission of the offence.
Whether the verdict could be supported on as 7(1)(c) basis
- The appellant also contended that the verdict of guilty, insofar as it may have been based on the s 7(1)(c) case, was unreasonable and that the learned trial Judge erred in leaving that case as a basis on which the jury could convict the appellant.
- The case which the Crown sought to establish, and on which the trial Judge gave directions, was not that Ward’s engagement of Mr Cox in a struggle provided any practical assistance to Clayton Johnson in his assault of Mr Bachelard[3]; rather it was that his acquiescence in, and involvement in, the general confrontation provided encouragement, which went somewhat beyond presence. That was made plain in this direction on the topic of liability under s 7:
“As I have said, the defendants other than Clayton Johnson are alleged to have committed the crime of manslaughter in two different ways. What has been called the felling blow is said to have come from Clayton Johnson himself. The first basis of the liability of the other defendants is what you have heard described as a section 7 basis of liability. It is that they aided each other to attack Mr Bachelard.
The prosecution says that, in particular, the defendants other than Clayton Johnson aided by encouraging Clayton Johnson to deliver a blow to Mr Bachelard by their previous actions by agreeing either explicitly or implicitly to confront the group of people that included Mr Bachelard and to inflict violence on them; by their confrontation of that group; in Clinton Johnson’s case, by hitting the deceased himself before Clayton Johnson hit him; in Michael Falcon’s case, by his pushing the deceased before Clayton Johnson hit him; and by the continued presence of all the other defendants, including Joseph Ward fighting Phillip Cox close by during the assault by Clayton Johnson.”
(Elsewhere the learned Judge referred to the prosecutor’s description of Ward as “leading the charge” but it seems clear, in context, that that was a reference, not to his leading the way in the movement towards Mr Bachelard’s group, but to his immediate engagement with Mr Cox on reaching them. No witness purported to identify any individual as leading the advance across the park as Ward and the Johnsons approached the group.)
- For the jury to convict Ward of manslaughter on the basis that he had aided Clayton Johnson in the way the prosecution contended for, it was necessary that it be satisfied beyond reasonable doubt that he had encouraged him in the act which rendered Johnson liable to punishment for manslaughter[4]: that is to say, the blow which caused the death of Mr Bachelard. The jury, as the direction set out above makes clear, had its attention directed to a course of conduct by Ward, which included agreement to confront the group to which Mr Bachelard belonged; the confrontation of that group; and a continued presence when the assault by Johnson took place, extending in Ward’s case to the fighting of Mr Cox.
- Ward made admissions in his record of interview on which the jury was entitled to act, notwithstanding that there was some resiling from them. He said that he responded to the suggestion that he and the Johnsons accost the group moving through the park by saying “let’s go”; and that he thought then that there was going to be a fight. On other evidence, the jury could find that Ward ran with the Johnsons towards the group and that he picked up a stake, probably pulling it out of the footpath, before confronting Mr Cox. The jury could reasonably conclude that all those acts – the positive response to the suggestion that the group be accosted, with the expectation of a fight; the accompanying of the Johnsons in approaching the group; and the immediate engaging in the fight – amounted to encouragement to Clayton Johnson to assault one of the members of the group; which he did, causing Mr Bachelard’s death. A verdict of manslaughter against Ward based on that aiding was reasonably open.
Whether the verdict could be supported on as 8 basis
- I agree with the Chief Justice that a verdict of guilty based on s 8 liability was also open. The jury was entitled to be satisfied that Ward by both his words and his conduct agreed to take part in a group assault on the passers-by, and that that kind of attack in company could well result in a death.
- I would dismiss the appeal against conviction.
Attorney-General’s appeals against sentence
The appeal againstClinton Johnson’s sentence
- I respectfully concur with what the Chief Justice has said as to the propriety of the way in which the learned Judge approached the question of allowance for co-operation. I agree also that, having regard to the combined effect of ss 144(3)(a) and 176(3A) of the Juvenile Justice Act 1992 (Qld) , which set a maximum term of imprisonment, in the case of Clinton Johnson, of 10 years, the sentence actually imposed on him, of four years imprisonment, was not manifestly inadequate. I have however, reached different views as to the appropriate sentences for Clayton Johnson and Joseph Ward.
Comparable sentences
- Counsel for the Attorney-General contended in written submissions that the appropriate sentence for Clayton Johnson was between eight and nine years imprisonment, while that for Ward lay between seven and nine years imprisonment (although in oral submissions it was conceded that Ward’s sentence should be “a year or two less” than that imposed on Johnson). In making those submissions, he relied on four decisions of this Court in comparable matters. The first was R v Katia; ex p A-G (Qld)[5]. In Katia, the 18 year old respondent was convicted, on his own plea of guilty, of manslaughter, robbery with personal violence and stealing. The offences occurred in the early hours of the morning on a city street. The respondent, who was in the company of a friend, had been drinking. They came upon the victim lying, heavily intoxicated, on a bus seat; the friend took his shoes and telephone. Katia pleaded guilty to that offence on the basis that his presence aided the stealing. They left the man, who had offered no resistance, but the respondent returned, punched him and stole his watch while he was unconscious. The blow caused a fatal subarachnoid haemorrhage.
- Katia was well educated and had otherwise been of good character although he had problems with alcohol addiction. He had made, it was accepted, real efforts to rehabilitate and had not consumed alcohol since the offence. He was remorseful and apologised for his actions. The learned sentencing Judge imposed a sentence of eight years imprisonment with a recommendation for parole eligibility after three years. An appeal by the Attorney‑General against that sentence was refused, this Court concluding that the sentence was within an appropriate range in the circumstances.
- In R v Stafford[6], the applicant was tried for murder and was convicted of manslaughter. He unsuccessfully sought leave to appeal against his sentence of nine years imprisonment. The killing occurred at a party in the house where the applicant lived. He had started a minor altercation with the victim who, on one account at least, had hit him on the shoulders. The applicant took a knife and stabbed him in the chest. In the view of the Court of Appeal there was no excuse or mitigating factor other than the applicant’s youth - he was 18 years of age - and lack of any significant criminal record. Pincus JA, with whom the other members of the Court agreed, expressed the view that the sentence was “towards the high end of the range”.
- In R v George; ex p A-G (Qld)[7] the respondent had joined in an attack on a heavily intoxicated man. The victim had done nothing more than bump into a companion of the respondent, and had apologised. He was punched to the ground and kicked. He managed to get up, bleeding from his head, and leaned against a motor vehicle. The respondent engaged in other fighting, which went on until the police arrived and separated all the parties. In their presence, the respondent walked over to the victim where he remained leaning against the vehicle, and punched him in the face. He fell, hitting his head, and sustained a subdural haematoma which caused his death. The respondent pleaded guilty to manslaughter. He was 21 years old and had a good work record, but had two previous convictions for assault and another for grievous bodily harm. On the Attorney-General's appeal, a sentence of eight years imprisonment, with a recommendation for consideration for parole after three years and nine months, was set aside and one of nine years, without any recommendation, was substituted. The Court in that case identified a number of aggravating features: the victim was already injured by violence in which the respondent had been involved and was in no position to defend himself when he was struck; that blow was delivered after police had intervened to quell the fighting; the respondent had a relevant criminal history; and intoxication had played a role in the respondent’s actions.
- R v AS; ex p A-G (Qld)[8] had some similarity to the present case, but it involved a juvenile, a fifteen year old. He pleaded guilty to the manslaughter of a taxi driver, to stealing his property and to two other summary offences. The respondent had taken a taxi with others, knowing that they did not have enough for the fare. The driver demanded payment and they had words; the respondent punched him, causing him to fall backwards to the ground. The respondent stole his coin dispenser, phone and the ignition keys for the taxi and fled. The driver was not discovered in his injured state for some hours; the sentencing Judge noted that the respondent’s callous disregard had denied him any chance of early medical attention. He died later from the head injuries sustained. When approached by police, the respondent vigorously resisted arrest.
- The respondent in AS had some prior criminal history, but no previous convictions for offences of violence. He had a troubled background: he had started using drugs in Grade 8, had been a truant, and had been expelled from school two years later. This Court, in setting aside the sentence imposed at first instance (three and a half years detention with release after 50 per cent was served), placed considerable weight on the importance of protecting taxi drivers, given their vulnerability to irrational violence, especially at night time. That factor, together with the gratuitous nature of the killing, the respondent’s callous conduct, the stealing and his efforts at evading apprehension, warranted the imposition of a more substantial term. The maximum penalty was 10 years detention; a penalty at half way in that range was justified.
- Counsel for Clayton Johnson referred to two further cases. In R v Tientjes; ex parte A‑G (Qld)[9], the respondent, a 36 year old man, was convicted of manslaughter after a trial. The findings on sentence were that he and the deceased, who were friends, had been drinking together; that the deceased man had hit him once; and that he had responded with a number of punches, continuing his attack while the injured man lay on the ground. The assault was found to be an intense and prolonged reaction. At first instance the respondent was sentenced to four and half years' imprisonment; on the Attorney-General’s appeal, that sentence was increased to seven years imprisonment. The applicant had a good work history and one previous conviction for assault occasioning bodily harm several years previously.
- In R v Simeon[10] the applicant head butted, punched and kicked a man who he thought, wrongly, had struck his son. He continued his attack while the victim was on the ground and did not cease until he was pulled off. The attack was described as “brutal and violent” and “directed at a man who … was defenceless”. The applicant had previously been of good character and was described as overcome by remorse. He pleaded guilty and was sentenced to seven years and six months imprisonment. Although that head sentence was described by the Court of Appeal as “by no means a light one”, it was allowed to stand; but a recommendation was added for consideration for parole after two years and nine months.
Comparison with the present case
- An aggravating feature of this case not present in those outlined above, with the possible exception of George, is that here there was an attack by a group, albeit a small one. It was the product of a spur-of-the moment decision to engage in a fight with people who happened to be nearby. In his sentencing submissions, the prosecutor suggested, in my view plausibly, that Clayton Johnson proposed accosting the passers-by as a distraction from the tension building among the teenagers with whom he, his brother and Ward were passing time in the park. It was an attack entirely without provocation, unlike those in Stafford, Tientjes and Simeon.
- The use of a weapon in a manslaughter is often a powerful aggravating factor, and counsel for the Attorney-General pointed to the fact that a weapon, the stake wielded by Ward, was involved here. But it is important to note that, although its use was a feature of Ward’s presence as a secondary offender, and was part of the background in which the assault on Mr Bachelard occurred, it played no actual part in the fatal assault. Its relevance is thus very limited. By comparison, the use of the knife in a direct blow to the chest in Stafford takes that case into an entirely different category of seriousness.
- There are, it should be said, features adding to the gravity of the comparable cases which are not found here. This was not an attack on a single victim with no help at hand; and although Mr Bachelard was taken by surprise, he was not incapacitated, unlike Katia’s victim. The assault here was neither a particularly violent nor a protracted one; it may be contrasted with the vicious and sustained assaults which featured in George, Tientjes and Simeon. The blow struck by Clayton Johnson did not itself cause major damage. It left a 2 cm laceration on the upper lip with some bruising underneath; there were no facial fractures. The pathologist said it would have required no more than mild to moderate force. The cause of death was the head injury sustained when Mr Bachelard fell back, hitting the roadway.
- The case did not include the aggravating feature of robbery present in AS and Katia; a particularly unsavoury aspect of Katia was the respondent’s repetition of his predatory behaviour towards the victim. Nor was the victim left unattended with no help nearby, as in AS. And while deterrence of violence against members of the public in public places is undoubtedly a powerful consideration, this case did not involve a specific need for deterrence in order to protect a vulnerable class of the kind identified in AS.
- So far as mitigating factors are concerned, both Clayton Johnson and Ward were, like Katia, young and of previous good character. Each was 17 at the time of the offence. Clayton Johnson had no prior convictions; Ward had convictions for trespass and breach of a bail condition, but in neither case had a conviction been recorded or any penalty imposed. By the time of trial Ward had completed two years of a three year apprenticeship as an electrician. Johnson had been in regular employment since leaving school and was working as a storeman at the time of trial. Both had excellent references. Previous employers, neighbours and friends of Johnson described him as honest, reliable, courteous and hardworking. Similarly, family friends, his employer, a pastor, the Deputy Principal of his former High School and his supervisors during his apprenticeship described Ward as reliable, decent and hardworking. Both had co-operated with police to the extent of participating in interviews and making admissions which made the Crown case somewhat easier to prove, although those interviews by no means constituted full and frank admissions.
Conclusion
- The cases, particularly Katia, give some guidance as to the range in which an appropriate head sentence for manslaughter of this type lies. They support the Attorney-General’s submission that, notwithstanding Clayton Johnson’s youth and previous good character, a higher sentence was required. But balancing the various factors, for and against, set out above, I do not think a sentence of eight years imprisonment is warranted. I would increase his sentence to one of seven years imprisonment.
- I do not think that the same applies to Ward. The cases referred to as comparable are of limited assistance in considering the appropriate sentence for a secondary offender. In general terms, considerations of parity with the sentence of the principal offender, Clayton Johnson, might suggest a sentence of about two years less than his; but one could not on that basis justify adding six months to Ward’s sentence. It is of importance that the Crown did not put its case of aiding against Ward any higher than encouragement. It is difficult to see how a sentence much greater than four and a half years could be warranted in a case of aiding which went no further than encouragement, of a relatively non-specific and limited nature, in an assault; particularly when the fatal assault itself consisted of a single, not particularly powerful blow. When one takes into account, in addition, Ward’s youth and previous good record, the case for increasing his sentence is even less compelling.
- I would dismiss the Attorney-General’s appeal against Ward’s sentence.
- MULLINS J: For the reasons given by the Chief Justice and Holmes JA, I agree that Ward’s appeal against conviction must be dismissed and that the Attorney-General’s appeal against the sentence in respect of Clinton Johnson must be dismissed.
- I agree with the analysis of the comparable sentences undertaken by Holmes JA and therefore agree with the orders proposed by Holmes JA that the Attorney-General’s appeal against Ward’s sentence be dismissed, but the Attorney-General’s appeal against sentence in respect of Clayton Johnson be allowed, the sentence imposed on Clayton Johnson in respect of the offence of manslaughter be set aside and, in lieu, Clayton Johnson be sentenced to seven years’ imprisonment.
Footnotes
[1] [1990] 1 Qd R 30.
[2] At p 37.
[3] It was very properly conceded by counsel for the Attorney-General in a letter forwarded to the Court after the hearing of the appeal that the case was put on this limited basis.
[4] R v Barlow (1997) 188 CLR 1 at p 9; R v Sherrington & Kuchler [2001] QCA 105 at para [8].
[5] [2006] QCA 300.
[6] [1996] QCA 79.
[7] [2004] QCA 450.
[8] [2004] QCA 259.
[9] [1999] QCA 480.
[10] [2000] QCA 470.