R v KAR & Ors

In this decision, the Court of Appeal concluded that ss 7(1)(c) and 8 of the Criminal Code may extend criminal liability to a person who has aided another in committing an offence for a circumstance of aggravation as well as for simpliciter offences. The decision also contains a discussion of the principles applicable to sentencing child offenders for riot.

Fraser and Philippides JJA and Henry J

11 September 2018

The applicants were convicted upon their pleas of guilty of riot with circumstances of aggravation of causing grievous bodily harm and property damage, contrary to s 61 of the Criminal Code. Each applicant was one of more than 12 defendants charged with riot over an incident in the Cleveland Youth Detention Centre in Townsville in November 2016. The riot lasted over eight hours. Among other acts of violence, the offenders climbed onto a roof and began damaging air conditioning units, thereby obtaining metal poles which were used in a melee against staff members. [15]. At one point, a staff member was struck by a rock thrown by one of the offenders, blinding him in one eye. [18]. The prosecution did not identify which offender threw the rock. [75]. Nonetheless, all the applicants pleaded guilty to the offence of riot with the accompanying circumstances of aggravation. [18].

The applicants applied for an extension of time in which to appeal their convictions, but only in respect of the circumstance of aggravation of causing grievous bodily harm. [6]. It was argued that they could not have been convicted of riot with the circumstance of aggravation as a secondary party because, as a matter of law, neither s 7 nor s 8 of the Code extended criminal liability for anything other than the offence of riot simpliciter [6].

While the basis of the ancillary liability was not apparent from the record, the respondent submitted that the liability for the circumstance of aggravation arose under either or both of s 7(1)(c) or s 8 of the Code. The respondent accepted that if the applicants could not lawfully have been convicted, the extension of time should be granted. [7].

Ancillary liability in the Code

The provisions of the Code referred to by the respondent are in the following terms:

“7  Principal offenders 

(1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say—

...

(c) every person who aids another person in committing the offence;

8 Offences committed in prosecution of common purpose

When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.” 

“Offence” is defined in s 2 to mean "[a]n act or omission which renders the person doing the act or making the omission liable to punishment”. “Circumstance of aggravation” is defined by s 1 as “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.

R v Graham

The applicants’ argument had its genesis in the obiter comments of McMurdo JA in R v Graham [2017] 1 Qd R 236. In that case, his Honour, with the agreement of the Court, raised doubt about whether the "offence" referred to in s 7(1)(c) of the Code should be read as including a circumstance of aggravation. This was so because “offence” and “circumstance of aggravation” were separately defined. Moreover, his Honour drew support from the High Court's discussion of the term "offence" in s 2 of the Code in R v Barlow (1997) 188 CLR 1, 9 as denoting:

“the element of conduct (an act or commission) which, if accompanied by prescribed circumstance, or if causing the prescribed result or if engaged in with the prescribed state of mind, renders a person engaging in the conduct liable to punishment.”

Nonetheless, McMurdo JA said that the issue was best left to a case where it was squarely raised.

Decision on appeal against conviction

Philippides JA, with whom Fraser JA and Henry J agreed, noted that the court in Barlow considered that the term “offence” in s 2 of the Code is not used to describe a "concatenation of elements which constitute a particular offence" or facts that create a liability to punishment by the principal offender. [58]. Rather, the word "offence" refers to conduct which, in the factual circumstances of the case, renders the person engaging in it liable to punishment. [59].

In her Honour's view, there was therefore nothing preventing either s 7(1)(c) or s 8 from extending liability to encompass the relevant act or omission, together with any circumstance of aggravation committed by a principal offender. [60]. A person could be convicted under s 7(1)(c) of assisting in relation to the whole of the conduct of the principal offender which rendered him liable to punishment, including the act which caused grievous bodily harm. [63]. Similarly, under s 8, the "unlawful purpose" could properly be the offence of riot simpliciter and the "offence" to which liability was extended could be the offence of riot with the circumstance of aggravation. [62].

As ss 7(1)(c) and 8 of the Code extended criminal liability for circumstances of aggravation to ancillary offenders, there was no merit to the proposed appeals. The applications were dismissed.

Application for leave to appeal sentences

The applicants were each sentenced, as children, to either two or two and a half years' detention, with release ordered after serving 50% of the sentence, with convictions recorded. Each applied to appeal his sentence, alleging, amongst other arguments specific to particular applicants, manifest excess.

Henry J, delivering reasons on sentence with which Fraser and Philippides JJA agreed, noted that the starting position in sentencing a child is that detention was to be imposed as a last resort and for the shortest appropriate period. [94]–[99]. Nonetheless, it was particularly serious that the riot was directed against staff of a detention centre. It required "starkly deterrent punishment". [120].

Henry J noted that the children ought to receive lesser sentences than adults would receive for otherwise comparable rioting. Nonetheless, the special importance of deterrence in sentencing for riot in any custodial institution would ordinarily require sentences of actual detention. [121]. Substantial sentences were warranted where, as in this case, staff members were attacked. [122]. Although the sentences were substantial, they were not so significant as to exceed the appropriate range, including by reference to the few comparable cases. [129]. The sentence applications were therefore refused.

M Maynard