R v Simpson[2023] QSCPR 13

SUPREME COURT OF QUEENSLAND

1. [1]
   The applicant, Mr Jarryd Kenneth Simpson, was charged with trafficking of dangerous drugs and possession of dangerous drugs. In relation to the trafficking charge, the applicant was charged with a circumstance of aggravation. Count 1 of the indictment provided:

that between the first day of August, 2016 and the ninth day of October, 2017 at Brisbane and elsewhere in the State of Queensland, JARRYD KENNETH SIMPSON carried on the business of unlawfully trafficking in dangerous drugs.

And JARRYD KENNETH SIMPSON was a participant in a criminal organisation;

And JARRYD KENNETH SIMPSON knew, or ought reasonably to have known, the offence was being committed in association with one or more person who were, at the time the offence was committed, or at any time during the course of the commission of the offence, participants in a criminal organisation.

2. [2]
   The indictment specifically refers to the circumstance of aggravation, as is required by s 564(2) of the Criminal Code Act 1899 (Qld) (Criminal Code).

3. [3]
   The applicant pleaded guilty to the charge of trafficking. The matter was then listed for a pre-trial hearing.

4. [4]
   The applicant originally sought a ruling on a question of law pursuant to s 590AA(2)(e) of the Criminal Code in relation to Count 1 on the indictment, namely whether the alleged circumstance of aggravation cannot be made out because s 1 of the Criminal Code requires that a circumstance of aggravation cannot be wholly comprised of matters which are subsumed within the simpliciter offence of trafficking.

5. [5]
   Following a directions hearing, the parties provided an order for the delivery by the Crown of particulars of the trafficking and particulars of the circumstance of the aggravation.

6. [6]
   The Crown subsequently provided particulars of the circumstances of the aggravation and a document titled “Statement of Facts”, following which the parties delivered submissions. At the hearing there was some controversy about the status of the Statement of Facts and whether it was “particulars of the trafficking”. On its face, the Statement of Facts provided more detail than just particulars. The Crown, however, accepted that it was to be treated as particulars and the application proceeded on that basis. No evidence was called.

7. [7]
   Although the facts were not agreed, the applicant accepted that the facts relied upon by the Crown were capable of proving the circumstance of aggravation but contented that the Crown was precluded from doing so as a matter of law because the particulars relied upon for the circumstance of aggravation were “subsumed” within the particulars relied upon to particularise the trafficking.

8. [8]
   The Court requested further clarification as to the questions sought to be answered, following which the applicant provided an application which asked the Court to provide:

“a ruling pursuant to s 590AA(2)(e) of the Criminal Code on a question of law, namely;

1. Is there an implied prohibition in s. 1 of the Criminal Code such that the same acts, omissions, or circumstances relied upon for the offence cannot be relied on as the circumstance of aggravation; and
2. If there is such an implied prohibition, is the Crown precluded as a matter of law, under s. 1 of the Criminal Code, from establishing a circumstance of aggravation under s. 161Q of the Penalties and Sentences Act 1992 when the particulars rely upon facts relied upon to particularise the offence of trafficking contrary to s. 5 of the Drugs Misuse Act 1986.”

9. [9]
   Section 590AA(2)(e) of the Criminal Code provides that:

2. Without limiting subsection (1) a direction or ruling may be given in relation to—

….

5. deciding questions of law including the admissibility of evidence and any step that must be taken if any evidence is not to be admitted; or

Legislation

10. [10]
    The offence of trafficking is provided in s 5 of the Drugs Misuse Act 1986 (Qld) (DMA) and s 161Q of the Penalties and Sentences Act 1992 (Qld) (PSA) provides for a circumstance of aggravation for an offence against the section.

11. [11]
    Section 5 of the DMA provides:

1. 5
   Trafficking in dangerous drugs

1. A person who carries on the business of unlawfully trafficking in a dangerous drug is guilty of a crime.

Maximum penalty—25 years imprisonment.

2. The Penalties and Sentences Act 1992, section 161Q states a circumstance of aggravation for an offence against this section.

3. An indictment charging an offence against this section with the circumstance of aggravation stated in the Penalties and Sentences Act 1992, section 161Q may not be presented without the consent of a Crown Law Officer.

12. [12]
    A circumstance of aggravation is defined in s 1 of the Criminal Code to mean “any circumstance by reason whereof an offender is liable to a greater punishment than that to which the offender would be liable if the offence were committed without the existence of that circumstance”.

13. [13]
    Section 161Q of the PSA provides:

1. 161Q
   Meaning of serious organised crime circumstance of aggravation

1. It is a circumstance of aggravation (a serious organised crime circumstance of aggravation) for a prescribed offence of which an offender is convicted that, at the time the offence was committed, or at any time during the course of the commission of the offence, the offender—
   1. was a participant in a criminal organisation; and
   2. knew, or ought reasonably to have known, the offence was being committed—
      1. at the direction of a criminal organisation or a participant in a criminal organisation; or
      2. in association with 1 or more persons who were, at the time the offence was committed, or at any time during the course of the commission of the offence, participants in a criminal organisation; or
      3. for the benefit of a criminal organisation.
2. For subsection (1)(b), an offence is committed for the benefit of a criminal organisation if the organisation obtains a benefit, directly or indirectly, from the commission of the offence.
3. To remove any doubt, it is declared that a criminal organisation mentioned in subsection (1)(b) need not be the criminal organisation in which the offender was a participant.

14. [14]
    The definition of “criminal organisation” is broad, with s 161O of the PSA providing:

1. 161O
   Meaning of criminal organisation

1. A criminal organisation is a group of 3 or more persons, whether arranged formally or informally—

1. who engage in, or have as their purpose (or 1 of their purposes) engaging in, serious criminal activity; and
2. who, by their association, represent an unacceptable risk to the safety, welfare or order of the community.

2. For subsection (1), it does not matter whether—
   1. the group of persons—
      1. has a name; or
      2. is capable of being recognised by the public as a group; or
      3. has an ongoing existence as a group beyond the serious criminal activity in which the group engages or has as a purpose; or
      4. has a legal personality; or
   2. the persons comprising the group—
      1. have different roles in relation to the serious criminal activity; or

Example—

Of the persons comprising a methylamphetamine syndicate, different persons are responsible for supplying the cold and flu tablets, extracting the pseudoephedrine from the tablets, supplying other necessary ingredients, and cooking the ingredients to produce methylamphetamine.

2. have different interests in, or obtain different benefits from, the serious criminal activity; or

Example—

Of the 3 persons comprising a group that engages in serious criminal activity, 1 person obtains the profit from the activity and pays the other 2 persons an amount for engaging in the activity.

3. change from time to time.

Example—

a networked online child exploitation forum

3. In this section—

engage, in serious criminal activity, includes each of the following—

1. organise, plan, facilitate, support, or otherwise conspire to engage in, serious criminal activity;
2. obtain a material benefit, directly or indirectly, from serious criminal activity.

15. [15]
    The definition of “participant” under s 161P of the PSA is also broad.

16. [16]
    In simplistic terms and without any disrespect to the applicant’s argument, the applicant contends that the same acts to prove the facts relevant to the circumstance of aggravation are also relied upon in relation to the business of trafficking and that the applicant is being exposed to a greater penalty for the same acts and effectively punished twice. Given the penalty that flows from the circumstance of aggravation, one can understand the basis of the applicant’s complaint. However, on proper analysis, while the same facts may be relied upon in relation to the offence of trafficking as to what constituted the business as the circumstance of aggravation, they are to prove different matters particularly by using those facts to draw inferences of matters such as the relevant knowledge which is an additional fact which must be proved in order to establish the circumstance of aggravation. That is similarly the case in relation to whether it may be inferred that three or more people are a criminal organisation as opposed to simply being participants in trafficking.

17. [17]
    If the circumstance of aggravation under s 161Q of the PSA is established, the Court must then sentence in accordance with s 161R of the PSA. Section 161R(2) of the PSA provides:

1. 161R
   Court must impose term of imprisonment

…

2. The court must impose on the offender a term of imprisonment consisting of the following components—
   1. a sentence of imprisonment for the prescribed offence imposed under the law apart from this part and without regard to the following (the base component)—
      1. the sentence that must be imposed on the offender under paragraph (b);
      2. the control order that must be made for the offender under section 161V;
   2. (other than if a sentence of life imprisonment is imposed as the base component or the offender is already serving a term of life imprisonment) a sentence of imprisonment (the mandatory component) for the lesser of the following periods—
      1. 7 years;
      2. the period of imprisonment provided for under the maximum penalty for the prescribed offence.

Particulars of circumstance of aggravation

18. [18]
    According to the particulars of the circumstance of aggravation, the applicant was the head of a criminal organisation comprising Mr Dean Scott and Mr Reece Ryan. The particulars set out the various matters that the Crown would rely upon to prove that the applicant was the head of the criminal organisation, including his employment of Mr Scott and Mr Ryan and the directions given by him to them and the payment of a salary.

19. [19]
    The particulars further allege that the serious criminal activity that the applicant was engaged in was trafficking of dangerous drugs and associated behaviour in the running of that business. The particulars in relation to s 161Q(1)(b) that the applicant knew that the offence was being committed^[1] as a participant in a criminal organisation identifies that the applicant, Mr Scott and Mr Ryan were involved in that serious criminal activity. The Crown in its particulars also relies upon matters to support that each was aware of the other’s role working for the applicant.

20. [20]
    The particulars of trafficking also refer to the role of Mr Ryan and Mr Scott as part of the syndicate which the applicant is said to have headed. The particulars, however, state that the syndicate consists of some 30–40 people and asserts that the applicant had access to multiple drug suppliers and a customer base. The Statement of Facts states that there are two periods of trafficking engaged in by the applicant. In relation to the second period in 2017, the particulars state the Crown relies on, amongst other things, a statement and syndicate records from Mr Ryan and a statement from Mr Scott.

21. [21]
    The particulars of the trafficking proceed to set out what the applicant employed Mr Ryan and Mr Scott to do and the role of each in the syndicate, although reference is also made to others who were customers, in particular Mr Kaleb Drake and a supplier, Mr Kyle Price, who also provided statements. The particulars of the trafficking describe the interaction between the applicant and Mr Ryan and Mr Scott.

22. [22]
    It is evident that the particulars of the circumstance of aggravation largely, if not completely, rely upon the same particulars relied upon in relation to the offence of trafficking.

Contentions

23. [23]
    The applicant accepts, by his plea of guilty, that the simpliciter offence of trafficking is established by the facts relied upon by the Crown. He also accepts that the facts relied upon by the Crown are capable of proving the circumstance of aggravation.

24. [24]
    He contends, however, that the matters that are said to constitute the alleged circumstance of aggravation are subsumed within those matters which are alleged to be the trafficking, and both cannot be relied upon in charging a defendant with an offence and a circumstance of aggravation to prove both the offence and the circumstance of aggravation under s 1 of the Criminal Code.

25. [25]
    In particular, the applicant contends that there is an implied prohibition in s 1 of the Criminal Code that the Crown cannot rely upon the same acts, omissions or circumstances relied upon for the offence for the circumstance of aggravation. Thus, it contends that for the Crown to charge a circumstance of aggravation as part of the offence of trafficking for the purpose of s 1, that which is alleged to constitute the s 161Q “serious organised crime circumstance of aggravation” must be comprised of acts, omissions or circumstances separate and additional to that which the Crown relies upon as constituting the simpliciter offence.

26. [26]
    The Crown contends that there is no requirement or no additional onus on the Crown to prove something more than the facts constituting the “offence” to aver a circumstance of aggravation. It was not precluded from using the same facts to prove different things, however, in the oral hearing the Crown submitted that even if that was the case, it did have to prove a number of circumstances in order to establish the circumstance of aggravation beyond reasonable doubt, namely that there was a criminal organisation, that the applicant was a participant, and that the applicant had the relevant knowledge under s 161(b)(iii) of the PSA, which extend beyond the acts to establish the offence of trafficking.

27. [27]
    The Crown characterised the applicant’s case as being that the evidence constituting the circumstance of aggravation must be “more” than what is relied upon to prove the “simpliciter” offence. As to that, it contends that the applicant’s argument is misconceived as there is no basis to confine the concept of “offence” to “simpliciter offence”. In particular, it contends that the applicant is attempting to confine the concept of “offence” to “simpliciter offence” contrary to the decisions in R v KAR (KAR),^[2] R v GBE (GBE),^[3] and R v Barlow (Barlow)^[4]. In that regard the Crown submitted the act of carrying on of the business is the relevant act to constitute the offence and the matters giving rise to the circumstance of aggravation such as knowledge are additional to the act which constitutes the offence.

28. [28]
    The Crown contends even without the particulars which rely on the statements of Mr Ryan and Mr Scott they could prove the offence of trafficking, although they are relevant to how the business was conducted.

29. [29]
    The applicant, however, contends its argument is not focussed on evidence but that to be a circumstance of aggravation there must be an additional fact, omission or circumstance. In particular, he focuses on the second part of the s 1 definition of “circumstance of aggravation”, namely “is liable to a greater punishment than that to which the offender would be liable if the offence were committed without the existence of that circumstance.” The applicant also relies on the statement in R v Ellis that:^[5]

“… A circumstance of aggravation is an additional fact (“circumstance”) proof of which subjects an offender to a greater punishment than that to which he or she would be liable if the offence were committed without that additional fact.”

30. [30]
    During the hearing, the applicant’s counsel narrowed his argument somewhat to assert that his submissions stated his case more highly than needed. He contended that in this case the particulars of trafficking subsume the particulars of the circumstances of aggravation and therefore the Crown has not charged the applicant in accordance with the requirements of s 1 of the Criminal Code, rather than that there could never be a circumstance of aggravation in relation to trafficking where it was the prescribed offence relied upon for s 161Q of the PSA.

31. [31]
    According to the applicant, where there is a continuing offence which involves multiple parties and the breadth of the elements of the offence of trafficking, care must be taken to identify what if anything beyond that which is alleged to constitute a business of trafficking may constitute the alleged circumstance of aggravation. While the applicant accepted that the circumstance of aggravation is not a separate offence and that the trafficking could be narrowed in the present case not to rely on the particulars of trafficking which are relied upon by the Crown in relation to the circumstance of aggravation, that is not what the Crown has done and it has erred in the way it has chosen to particularise the offence and the circumstance of aggravation such that it offends the implied prohibition in s 1 of the Criminal Code and does not rely on additional facts which subject the applicant to greater punishment than that to which he would otherwise be liable if he committed the offence of trafficking alone.

Consideration

32. [32]
    According to the Explanatory Notes to the Serious and Organised Crime Legislation Amendment Bill 2016 in relation to the circumstance of aggravation:^[6]

“This potential breach is justified on the basis that a person will only be subjected to this punishment if the State can prove beyond reasonable doubt that they were a participant in a criminal organisation, as defined under the Bill, at the time and that they have committed the prescribed offence at the direction of, in association with, or for the benefit of a criminal organisation or a participant in a criminal organisation. An additional safeguard is also provided by the requirement for the consent of the Director of Public Prosecutions to indict the circumstance of aggravation.

The penalty regime is high but is justified to punish and signal the community’s disapproval of serious and organised crime; and to be a disincentive to involvement in criminal organisations. The penalty regime also aims to disband criminal organisations by encouraging participants to break the ‘code of silence’ often associated with organised crime and to significantly cooperate with law enforcement agencies. The circumstance of aggravation, which targets only a confined cohort of serious offenders, reflects that participation in these groups presents an unacceptable risk to the safety, welfare or order of the community.”

33. [33]
    Both the Crown and the applicant submit that the s 1 definition would apply to the circumstance of aggravation in respect of trafficking identified in s 5 of the DMA and s 161Q of the PSA.

34. [34]
    Trafficking in dangerous drugs is a prescribed offence.^[7] Section 161Q specifically provides that the circumstance of aggravation for the offence of trafficking can arise “at the time the offence was committed, or at any time during the course of the commission of the offence” if the matters in s 161Q(1)(a) and (b) are established. In particular, s 161Q contemplates that the circumstances which establish the circumstance of aggravation relate to the offence itself given the terms of s 161Q(b), which provides “knew, or ought reasonably to have known, the offence was being committed” in one of the circumstances set out in s 161Q(b)(i)–(iii).
35. [35]
    At the time that the circumstance of aggravation under s 161Q was inserted, the Explanatory Note further stated:^[8]

“The Bill provides that it is a circumstance of aggravation if at the time the person commits the prescribed offence the person was a participant in a criminal organisation and the person knew, or ought reasonable [sic] to have known that: the offence was being committed at the direction of a criminal organisation; or in association with a participant in a criminal organisation; or for the benefit of the criminal organisation.”

36. [36]
    As the Crown submits there is nothing arising from the terms of the provisions in the PSA relevant to the circumstance of aggravation or the extrinsic evidence which supports any obligation upon the Crown to rely on further facts outside of the prescribed offence to prove the circumstance of aggravation.

37. [37]
    However, the contention of the applicant is that the limitation is found in the definition contained in s 1 of the Criminal Code.

38. [38]
    According to the applicant, the Court should find that there is a prohibition implied in the definition of “circumstance of aggravation” in s 1 of the Criminal Code that the Crown cannot rely on the same particulars of the offence simpliciter as particulars of the circumstance of aggravation. According to the applicant, if what is alleged to constitute the s 161Q circumstance of aggravation is subsumed within the offence of trafficking is particularised, those matters cannot be the relied upon by the Crown as a circumstance of aggravation as defined in s 1 of the Criminal Code. The circumstance of aggravation must be comprised of something separate and additional to that which constitutes the simpliciter offence. Otherwise, the alleged s 161Q circumstances could not amount to a “circumstance by reason whereof an offender is liable to greater punishment than that to which the offender would be liable if the offence were committed without the existence of which the offender would be liable if the offence were committed without the existence of the circumstance.”

39. [39]
    There is no direct authority the applicant can point to which supports his contention.

40. [40]
    Both the applicant and the Crown contend that the High Court decision of R v De Simoni (De Simoni)^[9] support their construction of s 1 of the Criminal Code.
41. [41]
    A definition of “circumstance of aggravation” in Western Australia’s Criminal Code (Criminal Code (WA)),^[10] which is in very similar terms to s 1 of the Criminal Code, was considered by the High Court in De Simoni. Similar to s 564(2) of the Criminal Code, s 582 of the Criminal Code (WA) provided that “if any circumstance of aggravation is intended to be relied upon it must be charged in the indictment.”
42. [42]
    The offence considered in that case was robbery (s 391 of the Criminal Code (WA)). There was a further provision which was found to set out circumstances of aggravation in relation to robbery (s 393 of the Criminal Code (WA)).^[11] The circumstance of aggravation was not referred to on the indictment, as required by s 582 of the Criminal Code (WA). The sentencing judge had regard to the fact that the defendant had wounded his victim and used personal violence in the course of his sentencing. Wounding the victim and the use of personal violence would have constituted a circumstance of aggravation under s 393 of the Criminal Code (WA). The charge on the indictment did not however include a circumstance of aggravation. The question considered by the High Court was whether a judge can be said to rely upon a circumstance of aggravation within the meaning of s 582^[12] when he takes that circumstance into consideration in imposing a sentence and by reason of it inflicts a penalty more severe than he otherwise would have imposed when it was not charged on the indictment. Gibbs CJ (with whom Mason and Murphy JJ agreed) held that s 582 of the Criminal Code (WA) had “the effect that a judge in imposing a sentence may not have regard to a circumstance of aggravation which should have been charged in an indictment if it was intended that reliance should be placed upon it.”^[13] His Honour further found however that the judge “may have regard to facts which might ordinarily be described as circumstances of aggravation but which do not fall within the definition of that expression in the Code because they do not render the offender liable to greater punishment.”^[14]

43. [43]
    Gibbs CJ considered that there was an implied prohibition in s 582 not only for a prosecutor but also a judge not to rely upon a circumstance of aggravation if not charged on the indictment, which was implied from the duty cast upon a prosecutor by s 582 to charge a circumstance of aggravation upon the indictment. Gibbs CJ considered that necessarily implied that a judge may not have regard to a circumstance of aggravation which should have been charged.^[15] The applicant contends that there is a similar implied prohibition under the definition in s 1 of the Criminal Code otherwise there would be no distinction between the simpliciter offence and the circumstance of aggravation. However, unlike s 582 of the Criminal Code (WA), s 1 of the Criminal Code provides the definition of “circumstance of aggravation” relevant to other provisions of the Criminal Code such as s 564 but it does not impose a duty. That point of contrast was drawn by Gibbs CJ in the course of his Honour’s reasoning which rejected an argument of the Crown which required that s 582 be construed as a circumstance of aggravation for some purpose and not others. Gibbs CJ stated that as a matter of language, the definition of “circumstance of aggravation” did not require that s 582 be read down in that way, stating “the definition shows what is a circumstance of aggravation: s 582 declares the consequence when a circumstance of aggravation has not been charged in the indictment.”^[16] Similarly, s 1 of the Criminal Code shows what a circumstance of aggravation is but does not provide any constraint or prohibition upon what can be relied upon in support of the circumstance of aggravation.

44. [44]
    The applicant also referred the Court to the statement of Gibbs CJ in De Simoni that:^[17]

“It is not only in cases in which the offence has been accompanied by circumstances of aggravation that a trial judge may be required, in sentencing, to take an artificially restricted view of the facts. This will be so also in cases where the jury’s verdict is inconsistent with the view of the facts that the judge himself has formed, for the judge cannot act on a view of the facts which conflicts with the jury’s verdict. However, where the Crown has charged the offender with, or has accepted a plea of guilty to, an offence less serious than the facts warrant, it cannot rely, or ask the judge to rely, on the facts that would have rendered the offender liable to a more serious penalty.”

45. [45]
    The applicant seeks to extrapolate that to being a statement or principle which reflects the essential requirement that the alleged circumstance of aggravation must be something additional to the simpliciter offence. It may be accepted that a trial judge will be required to artificially restrict the view of the facts in the circumstances set out above. However, the passage does not support the proposition that in this case there is a principle which requires the prohibition to be implied as contended by the applicant and it is belied by the subsequent discussion of Gibbs CJ. In particular, his Honour does not in his reasoning suggest that no question of additional punishment can arise if the matters particularised as constituting a circumstance of aggravation are merely a “recharacterization” of what makes out the simpliciter offence.

46. [46]
    Gibbs CJ noted the difficulty in the application of s 582 of the Criminal Code (WA) in that case insofar as it was an element of the offence under s 391 that the offender has used or threatened to use actual violence to any person or property and it was a circumstance of aggravation under s 393 that the offender wounds or uses any other personal violence to any person. Gibbs CJ considered that there was “no difference between using actual violence to any person, and using personal violence to any person.”^[18] His Honour stated that the relevant element of an offence may also constitute a circumstance of aggravation.^[19] It was not therefore an error for the sentencing judge to have regard to the use of actual violence to the victim since that was an element of the offence with which he was charged. Gibbs CJ concluded that the trial judge had not relied upon the circumstance of aggravation because he had relied upon the circumstance that the applicant used violence but that circumstance was charged in the indictment as an element of the offence.^[20]

47. [47]
    The applicant refers to the passage referred to in the paragraph above and notes several points. First, that the majority did not express a conclusion that whenever the matter that proves an element of the simpliciter offence also constitutes a circumstance, that circumstance of aggravation, if separately pleaded, is properly made out. While that is correct, and the High Court is cautious not to decide matters unnecessarily, the observations of both Gibbs CJ and Brennan J referred to above directly canvassed the overlap and did not cavil with that overlap between an element of an offence and a circumstance of aggravation being permissible. The second proposition is that if the matter that proves an element of the simpliciter offence could also constitute a circumstance of aggravation, the circumstance of aggravation need not be charged in order for the matter to be taken into account in sentencing. While the majority did accept that the sentencing judge could have regard to the actual violence since it was an element of the offence, but not to the wounding given it was only a circumstance of aggravation, it found that the Court of Appeal was wrong in concluding that the trial judge had relied upon wounding in imposing his sentence. Gibbs CJ stated that the sentencing judge had relied upon the circumstance that the applicant had used violence but that the circumstance was charged in the indictment as an element of the offence. While the trial judge had relied upon the existence of violence which did not need to be charged a circumstance of aggravation to be considered as an element of the offence, the trial judge did rely on the maximum penalty being life as provided for if the circumstance of aggravation was relied upon and established.

48. [48]
    While Brennan and Wilson JJ took a different view of the effect of s 582 of the Criminal Code (WA), neither took issue with the fact that the circumstance of aggravation included a matter which could prove an element of the offence of robbery. In the course of his reasoning, Brennan J (as his Honour then was) stated:^[21]

“The legislative history of s. 393 does not suggest that wounding or an act of personal violence cannot constitute both actual violence as an element in a robbery and a circumstance of aggravation which establishes the robbery as an aggravated robbery. It could not have been thought in 1837 that a robber should escape the death penalty if he wounded his victim in order to effect the larceny, though he would have been liable to suffer that penalty if he wounded his victim or another person for some other purpose. It follows that, if wounding or other personal violence within the meaning of that term in s. 393 is used against a victim "in order to obtain the thing stolen or to prevent or to overcome resistance to its being stolen" robbery is thereby committed. It is nonetheless robbery for being aggravated robbery.”

49. [49]
    The Crown contends that the statements of Gibbs CJ and Brennan J in relation to the overlap between the element of the simpliciter offence and the circumstance of aggravation support that there should be no preclusion on the Crown relying on the particulars relevant to the trafficking in relation to the circumstance of aggravation.

50. [50]
    Although the High Court did not decide the question before me in De Simoni, the observations of Gibbs CJ and Brennan J referred to above do not support the construction of the s 1 definition of “circumstance of aggravation” urged by the applicant. Nor has the suggestion that s 1 obliges the Crown to rely on separate and additional particulars to prove the circumstance of aggravation. That is contrary to the notion of the offence being confined to the “simpliciter offence” where there is a circumstance of aggravation as discussed in R v KAR^[22] and supported by subsequent authorities.

51. [51]
    In R v Mead (Mead),^[23] it was accepted the same evidence could be relied upon to prove the circumstance of aggravation as the violence used in the robbery. McMurdo P commented on De Simoni:

“Nothing said in De Simoni detracts from the clear terms of s 409 and s 411, the relevant aspects of which I have emphasised. Brennan J's observations in De Simoni relied on by the appellant were made in discussing the difference between violence or threat of actual violence which is an element of the offence of robbery simpliciter (s 409), and violence which is a circumstance of aggravation (s 411(2)) to the offence of robbery simpliciter. True it is that Brennan J noted that it was well settled that violence after the taking of property cannot turn the stealing of that property into a robbery. His Honour, however, went on to observe that, if personal violence was used against a victim "in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen", the offender committed robbery as well as aggravated robbery. The present case is in the category referred to by Gibbs CJ in De Simoni, where the element of actual violence required as an element of robbery simpliciter under s 409 was also the violence constituting the circumstance of aggravation of personal violence under s 411(2).” (footnotes omitted)

52. [52]
    Notably her Honour did not dissent from the circumstance of aggravation being established by proof of the element of the offence.

53. [53]
    While the definition identifies what is a “circumstance of aggravation” it does not support an implied prohibition upon the Crown relying upon the same particulars to prove the additional circumstance, albeit the same facts may be being used to prove different things as provided for in the provision which prescribes the circumstance of aggravation. The fact that the definition does not impose such a constraint is consistent with the scheme of the Criminal Code and other legislation such as the PSA and the DMA, which provide for the circumstances of aggravation and how the “circumstance of aggravation” is to be dealt with in terms of charging such as s 564(2) of the Criminal Code and as to conviction such as s 575 of the Criminal Code.

54. [54]
    In R v Ellis (Ellis),^[24] the definition of “circumstance of aggravation” was relied upon by the Court of Appeal to determine whether the allegation that the offence of trafficking was a “serious violent offence” should have been included on the indictment because it constituted a circumstance of aggravation. The Court of Appeal found it was not a “circumstance of aggravation” because there was no additional fact (“circumstance”) proof of which subjects an offender to a greater punishment than that which he or she would be liable if the offence were committed without the fact. The Court of Appeal found that Part 9A of the PSA “has the effect of, in some cases, automatically increasing the time which an offender will spend in prison before being eligible for release and, in other cases, permitting a judge to increase that time. But it does this, not by stating a fact proof of which would make the offender liable to a greater punishment but by defining the offences in respect of which that may occur.”^[25] Part 9A of the PSA is not stated to be a circumstance of aggravation thus requiring the Court of Appeal to analyse the provisions to see if they constitute a “circumstance of aggravation” within the meaning of the provision. In contrast, s 161Q is specifically stated to provide for a “circumstance of aggravation” and sets out the facts which must be proved to constitute a “serious organised crime circumstance of aggravation”. The Court of Appeal in Ellis demonstrates how the definition of “circumstance of aggravation” is used, namely to analyse Part 9A against the definition of the “circumstance of aggravation” to determine whether it satisfied the definition. It does not suggest that the same acts or circumstances which are relied upon as particulars of the offence simpliciter cannot be employed as particulars of the circumstance of aggravation which are to prove different additional facts, as is the case here. The decision of R v WAY; ex parte Attorney-General^[26] was a similar case where the statutory provision in question was not prescribed to be a circumstance of aggravation.

55. [55]
    The applicant seeks to use the definition of “circumstance of aggravation” as imposing prohibitions upon the Crown in how the “circumstance of aggravation” should be defined by reference to the facts in the particulars. The definition does not impose such limitations. Nor is there support for not construing the definition as a whole and reading the definition in a disjunctive way as proposed by the applicant, that without which the applicant would not be liable to that greater punishment, to contend it provides for an exclusion from a circumstance of aggravation.

56. [56]
    There is, on the language of the definition, no basis to read in an implied prohibition as contended for by the applicant. Whether there is the additional fact or circumstance which can satisfy the definition is determined by the terms of the provision in question. In the present case, s 161Q of the Criminal Code provides three additional facts or circumstances which must be proved beyond reasonable doubt over and above what must be proved to prove trafficking and which results in a defendant being subject to a greater punishment than he would otherwise be liable if the trafficking was committed without that circumstance or fact. The definition in s 1 does not exclude the facts by which those additional facts in s 161Q can be proved to facts that are not also being used to prove the offence simpliciter.

57. [57]
    Nor was that the approach adopted by Applegarth J in R v Hill (Hill),^[27] where the offence simpliciter was trafficking. In Hill, his Honour was not satisfied beyond reasonable doubt that the individuals were a group of three or more persons within the meaning of s 161O(1)(b) of the PSA. The facts relied upon by the Crown to prove the circumstance of aggravation were also facts relevant to the business of unlawfully trafficking. Although not authoritative as the present argument was not raised before his Honour, Applegarth J carefully analysed the Serious Organised Crime provisions and in particular the critical question in that case in terms of whether there was a serious criminal organisation. His Honour did not direct himself as a matter of law that the same facts that constituted the business of trafficking could not be relied upon to prove the circumstances of aggravation. It is not, however, evident that exactly the same particulars as were relied upon to define the trafficking were relied upon to define the circumstance of aggravation.

58. [58]
    The applicant sought to rely on s 16 of the Criminal Code which provides that a person cannot be punished twice for the same offence as further supporting his argument that for s 16 to apply without being in conflict with ss 1 and 16, the circumstance of aggravation must be comprised of something additional to that which is alleged to comprise the offence of trafficking. However, at the hearing the applicant’s counsel properly conceded that s 16 was relevant to sentencing, not whether the circumstance of aggravation can be made out, although there was some continuum in the underlying premise in s 16 which supports his contention in relation to the interpretation of “circumstance of aggravation” in s 1 of the Criminal Code. It, however, does not aid the construction of the “circumstance of aggravation” and in particular the implied prohibition in s 1 argued by the applicant. As requested by Counsel, I make no finding in relation to s 16 of the Criminal Code and will not consider the argument further.

59. [59]
    Section 1 defines what is a “circumstance of aggravation”. There is no implied prohibition contained in the definition as contended by the applicant which precludes the Crown relying on the same particulars for the offence as the particulars relied upon to prove the circumstance of aggravation. The answer to the first question is no.

60. [60]
    In any event, even if there is such an implied prohibition, the Crown has not transgressed it in the present case by the particulars of the circumstance of aggravation, accepting that they overlap and rely on some of the same facts as particularised in relation to the trafficking.

61. [61]
    The applicant speaks in language whereby he contends that the circumstance of aggravation is “subsumed” within the offence of trafficking as particularised. While it is evident that the particulars of the circumstance of aggravation rely on particulars that are relied upon in part by the Crown to prove the business of trafficking, it is not correct to say that the circumstance of aggravation is subsumed within the offence of trafficking as particularised. The circumstance of aggravation, however, requires the Crown to prove the elements constituting the circumstance of aggravation to the acts which render the defendant liable for trafficking.

62. [62]
    As the Crown contends, the same facts can be used to prove different things including by relying on inferences drawn from facts such as knowledge. The applicant’s real contention is that the same facts cannot be relied upon to prove the offence of trafficking and the circumstance of aggravation and in doing so seeks to reframe an issue already rejected by the Court of Appeal in Mead.

63. [63]
    The definition of “offence” is contained in s 2 of the Criminal Code. According to the High Court in Barlow:^[28]

“[Section] 2 of the Code makes it clear that “offence” is used in the Code to denote the element of conduct (an act or omission) which, if accompanied by prescribed circumstances, or if causing a prescribed result or if engaged in with a prescribed state of mind, renders a person engaging in the conduct liable to punishment.”

64. [64]
    As to particulars, in R v PBI:^[29]

“… The function of particulars is as part of the “pleadings” in a criminal prosecution that gives greater definition to the factual dispute and thus assists in identifying relevant evidence and thereby admissible evidence.” (footnote omitted)

65. [65]
    In R v C,^[30] referring to McKenzie J in R v S,^[31] the Court of Appeal stated:

“… there are two aspects to the need for particularity. One is to eliminate the risk of duplicity. The second is to give the accused sufficient indication of what is alleged against him or her on the occasion when he or she is said to have committed the offence.”

66. [66]
    A circumstance of aggravation is not a separate offence, nor is it an element of the offence.^[32] In KAR, Philippides JA stated:^[33]

“Nor is there any impediment to the above construction of “offence” arising from any textual considerations in the Code such as those discussed in Graham. An indictment must “set forth the offence with which the accused person is charged” (s 564(1) of the Code) and, where a circumstance of aggravation is intended to be relied upon by the prosecution, the circumstance is also required to be charged in the indictment (s 564(2) of the Code). As the respondent submitted, while the provisions might be seen as reinforcing the difference between “the offence” and “a circumstance of aggravation”, that is, where “a circumstance of aggravation appears as an allegation in an indictment, the circumstance is distinct from the offence with which the accused person is charged”, that view should be rejected. The better view is that s 564(2) is a statutory reminder that the offence must state the circumstance of aggravation, where it arises. That approach is in line with the recognition in De Simoni that a circumstance of aggravation which is alleged as an element of an offence does not require separate reiteration. The observation by Barwick J in Ross is also apposite; the requirement that the circumstance of aggravation be “charged” means no more than that:

‘… the defendant, at a time when he has an opportunity of denying or dealing with the alleged circumstances of aggravation, must have been made aware of the prosecutor’s intention to establish such circumstances of aggravation: and the defendant must be given notice of the particular circumstance or circumstances of aggravation alleged.’” (footnotes omitted)

67. [67]
    While the applicant’s Counsel has sought to provide an innovative argument in his client’s favour, the applicant’s argument flies in the face of KAR, GBE and the approach of the Court of Appeal in Mead and seeks to limit what constitutes an offence as opposed to a circumstance of aggravation, so as to require the Crown to rely on something separate from the facts constituting the offence of trafficking in particularising the circumstance of aggravation.

68. [68]
    Insofar as there is an overlap of the particulars relied upon to prove the circumstance of aggravation as the trafficking, the facts are being relied upon to prove different facts beyond reasonable doubt. The obvious question is the relevant knowledge under s 161Q(b). Knowledge is an additional fact required to be proved for the circumstance of aggravation that is not required to be proved for trafficking. It is a matter which is generally a matter of reasonable inferences from other objective facts. While the applicant referred to the particulars of the trafficking as constituting the “mens rea” of trafficking, because the Crown included in the Statement of Facts matters which are relied upon to infer knowledge for the purposes of s 161Q, the notion is misconceived. There is no “mens rea” required to be proved to establish trafficking.

69. [69]
    While the particulars of the applicant’s engagement of Mr Ryan and Mr Scott have been outlined in the particulars of the trafficking to demonstrate the nature of the business, the overlapping particulars in respect of the circumstance of aggravation are relied upon to prove separate facts including based on inferences required to be drawn from those facts as to the existence of a criminal organisation or the applicant’s knowledge that the offence was being committed at the direction of a participant in a criminal organisation or in association with one or more persons who were, at the time the offence was committed or at any time during the course of the commission of the offence, participants in the organisation. They are different facts which may be proved by reference to the interaction of the applicant with Mr Scott and Mr Ryan which are part of the additional circumstances the Crown must prove to establish the circumstance of aggravation that make the applicant liable to a greater penalty to that which he would be liable without those additional circumstances being established, albeit there is an overlap of the facts relied upon to prove the business of trafficking with the facts to prove the circumstances in s 161Q of the PSA.

70. [70]
    While the applicant has sought to frame his argument in terms of the need for particulars to separately define the circumstance of aggravation, the applicant in fact is seeking to reframe the matters already decided by authorities such as Barlow, KAR and Mead. As the Crown submits, liability is either absolute or strict based upon the evidence. There is no evidential burden for the proof of a circumstance of aggravation to be based on particulars or evidence distinct or different from the particulars and evidence relied upon to prosecute the prescribed offence.

71. [71]
    The answer to question 2 is also no.

Orders

1. There is no implied prohibition in s 1 of the Criminal Code such that the same acts, omissions, or circumstances relied upon as particulars for the offence cannot be relied on as the particulars of the circumstance of aggravation.^[34]
2. The Crown is not precluded as a matter of law under s 1 of the Criminal Code, from establishing a circumstance of aggravation under s 161Q of the Penalties and Sentences Act 1992 (Qld) when the particulars rely upon facts relied upon to particularise the offence of trafficking contrary to s 5 of the Drugs Misuse Act 1986 (Qld).