Inglis v Adamson

[2024] ACTSC 4

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Inglis v Adamson
Citation:	[2024] ACTSC 4
Hearing Date:	26 April 2023
Decision Date:	19 January 2024
Before:	Baker J
Decision:	The appeal is dismissed.
Catchwords:	CRIMINAL LAW – APPEAL – Appeal from ACT Magistrates Court – appeal against conviction –– whether finding of guilt open to Magistrate – whether sufficient evidence to find appellant guilty by way of joint commission – operation of s 45A of the Criminal Code 2002 (ACT) – when agreement commenced – appeal dismissed. CRIMINAL LAW – APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Appeal against sentence – where three co-offenders received the same sentence – principles of parity – individual roles in offending – whether different sentences warranted – appeal dismissed.
Legislation Cited:	Crimes Act 1900 (ACT), s 24 Crimes (Serious Organised Crime) Amendment Act 2010 (ACT) Criminal Code 2002 (ACT), s 45A Criminal Code Act 1995 (Cth), s 11.2A Magistrates Court Act 1930 (ACT), ss 207, 208, 214
Cases Cited:	Alexander v Bakes [2023] ACTCA 49 Alfred (a pseudonym) v Eiffert [2023] ACTSC 403 Allesch v Maunz [2000] HCA 40; 203 CLR 172 Apps v The Queen [2020] ACTCA 53 DPP v Clissold [2023] ACTSC 250 Franze v The Queen [2014] VSCA 352; 46 VR 856 Handlen v the Queen [2011] HCA 51; 245 CLR 282 Lee v Lee [2019] HCA 28; 266 CLR 129 Lukatela v Birch [2008] ACTSC 99; 164 ACTR 24 McAuliffe v The Queen [1995] HCA 37; 183 CLR 108 R v Holliday [2017] HCA 35; 260 CLR 650 R v PHA [2004] NSWCCA 445 R v Pui Man Liu and Sin Chun Wong (2003, unreported, NSWCCA) R v Shearer [2018] ACTSC 91; 332 FLR 383 Romolo v R [2018] NSWCCA 3 Tran v The Queen [2017] VSCA 346 Warren v Coombes [1979] HCA 9; 142 CLR 531
Texts Cited:	Revised Explanatory Statement to the Crimes (Serious Organised Crime) Amendment Bill 2010 (ACT) Stephen Odgers, Principles of Federal Criminal Law (Thompson Reuters, 2019)
Parties:	Bradley Thomas Inglis ( Appellant) James Christian Adamson (Respondent)
Representation:	Counsel T Sharman ( Appellant) E Bayliss ( Respondent)
Solicitors T Sharman ( Appellant) ACT Director of Public Prosecutions
File Number:	SCA 33 of 2022
Decision under appeal:	Court/Tribunal:	ACT Magistrates Court
Before:	Magistrate Lawton
Date of Decision:	3 August 2022
Case Title:	Adamson v Inglis
Court File Numbers:	CAN 4378 of 2021 CAN 9234 of 2021

BAKER J:      

Introduction

1․On 21 June 2022, the appellant, Bradley Inglis, was found guilty by Magistrate Lawton (the Magistrate) of a single count of assault occasioning actual bodily harm upon Mr Wenbo Du by joint commission, contrary to s 24 of the Crimes Act 1900 (ACT) and by virtue of s 45A of the Criminal Code 2002 (ACT) (CAN 9234/2021). The appellant also pleaded guilty to a further count of common assault on a different victim (Mr Ziqi Zhang), arising out of the same incident (CAN 4378/2021).

2․On 3 August 2022, the Magistrate convicted the appellant of both offences. With respect to the charge of assault occasioning actual bodily harm on Mr Du (CAN 9234/2021), the Magistrate sentenced the appellant to nine months’ imprisonment suspended upon entry into a Good Behaviour Order (GBO) for 12 months and ordered that the appellant pay a fine of $2,000. With respect to the charge of common assault on Mr Zhang (CAN 4378/2021), the Magistrate ordered that the appellant pay a fine of $1,500.

3․By an Amended Notice of Appeal, the appellant appeals against the conviction and sentence imposed upon him with respect to the charge of assault occasioning actual bodily harm on Mr Du (CAN 9234/2021) on the following grounds:

(a)The evidence on hearing could not sustain a finding of guilt, in that the evidence could not establish an agreement to commit the offence.

(b)In the alternative, if the evidence could establish an agreement to commit the offence, that the evidence could not establish that the offence or an offence committed in the course of that agreement occasioned the actual bodily harm.

(c)The Magistrate “erred in imposing the same sentence for each defendant, and in doing so, failed to have appropriate regard to principles of parity and individualised justice”.

4․The appellant does not appeal from his conviction or sentence with respect to the charge of common assault on Mr Zhang (CAN 4378/2021).

5․For the reasons outlined below, each of the appellant’s grounds of appeal should be dismissed. Accordingly, the appeal is dismissed.

Background

The prosecution case

6․The alleged offending occurred at about 10:00pm on 20 November 2020, outside the Harvest Café in Canberra City.

7․At that time, the appellant was standing outside the Harvest Café with a group of people including Mr Margaritis and Mr Eyoob. The complainant, Mr Du, was walking down the street with Mr Zhang and another friend. Mr Eyoob shouted at Mr Du and his companions, asking “are you guys billionaires?”. After a short verbal exchange, the appellant began punching and shoving Mr Du.

8․The appellant also shoved Mr Zhang, causing Mr Zhang to fall to the ground. This was the conduct giving rise to CAN 4378/2021 (which is not the subject of appeal).

9․Mr Eyoob and Mr Margaritis were standing next to the appellant whilst he assaulted Mr Du. When Mr Du struck out at the appellant, they joined in the assault on Mr Du. At this time, the appellant stepped back but continued to stand nearby. Mr Eyoob and Mr Margaritis continued to assault Mr Du, striking him to the ground.

10․As a consequence of the assault, Mr Du sustained significant cuts to his face, requiring sutures, along with other injuries to his arms, legs and feet.

Proceedings before the Magistrate

11․The appellant, Mr Eyoob, and Mr Margaritis were each charged with assault occasioning actual bodily harm by way of joint commission, and common assault in the alternative. The appellant and Mr Eyoob were also separately charged with common assault against Mr Zhang.

12․The proceedings against all three accused were listed for hearing on 17 May 2022. Mr Margaritis agreed to enter a plea of guilty to a charge of assault occasioning actual bodily harm against Mr Du, leaving Mr Eyoob and the appellant to be jointly tried.

13․At the call-over, the appellant and Mr Eyoob had each pleaded guilty to the charge of common assault against Mr Zhang, but not guilty to the charge of assault occasioning actual bodily harm by virtue of s 45A on Mr Du. At the outset of the proceedings before the Magistrate, the legal representatives for the appellant and Mr Eyoob each further indicated that that they were willing to plead guilty to an alternative charge of common assault on Mr Du, but that pleas of not guilty were maintained for the charge of assault occasioning actual bodily harm by joint commission.

14․Mr Sharman, who appeared for the appellant in the proceedings before the Magistrate (and who also appears for the appellant on the appeal) explained to the Magistrate that the appellant accepted that he pushed and punched Mr Du, but the appellant did not accept that he was liable under s 45A of the Criminal Code for the offence of assault occasioning actual bodily harm by way of joint commission.

15․The prosecution tendered CCTV footage of the alleged offending together with statements of three police officers, including the informant, and statements of Mr Du, Mr Zhang, and Mr Tu (the complainant group). The statement of the informant annexed a bundle of photographs showing injuries sustained by Mr Du. None of the witnesses in the complainant group were required for cross-examination.

CCTV Footage

16․CCTV footage was tendered depicting the assault from several angles.

17․The CCTV footage shows that at approximately 9:56pm on 20 November 2020, Mr Du, Mr Zhang and Mr Weiji Tu (“the complainant group”) are walking along Alinga Street in Canberra past the Harvest Café. (The footage is time stamped 20:56. However, it is clear from all of the evidence, including the statements, that the time stamp did not account for daylight savings.)

18․Another group, including the appellant, Mr Margaritis and Mr Eyoob, are standing in that area. Mr Eyoob approaches Mr Du and appears to startle him. The complainant group and Mr Eyoob appear to engage in a verbal exchange.

19․The appellant then approaches the complainant group and also appears to join in the verbal exchange. Both the appellant and Mr Eyoob are using animated hand gestures. Mr Du then gestures toward the appellant with his middle finger. The appellant advances towards Mr Du, prompting Mr Zhang to step between them. At this point, Mr Eyoob is standing immediately behind the appellant. Mr Margaritis then approaches the appellant, Mr Eyoob and Mr Du. The appellant shoves Mr Zhang to the ground and proceeds to punch and shove Mr Du.

20․Mr Margaritis starts to move more quickly towards the appellant as the appellant strikes the first blow. Mr Margaritis then stands behind the appellant, in a triangle formation with Mr Eyoob, as the appellant repeatedly strikes Mr Du. Mr Eyoob and Mr Margaritis continue walking behind the appellant while the appellant continues advancing upon, and striking, Mr Du. At points as the appellant advances upon Mr Du, both Mr Eyoob and Mr Margaratis are within the appellant’s direct line of sight. Neither Mr Eyoob nor Mr Margaritis engage in any physical assault on Mr Du or any other member of the complainant group at this point in time.

21․At 20:57:07 of the CCTV footage, Mr Du strikes back at the appellant. Mr Margaritis and Mr Eyoob then immediately reach forward towards Mr Du. Mr Margaritis grips Mr Du’s neck from behind, Mr Du grips the appellant’s shirt, and Mr Eyoob steps forward and strikes Mr Du twice. Mr Du lets go of the appellant’s shirt, and the appellant then walks behind Mr Margaritis and Mr Eyoob and stands nearby as they assault Mr Du.

22․Mr Margaritis then pushes Mr Du to the ground. One camera angle of the CCTV footage depicts the appellant shoving Mr Margaritis towards Mr Du. Mr Eyoob and Mr Margaritis kick Mr Du. Mr Zhang moves towards Mr Du and Mr Eyoob strikes him twice. Mr Zhang and Mr Du both stand up and the appellant and co-offenders cease the attack. The appellant, Mr Margaratis and Mr Eyoob and their friends then leave the area.

Bundle of photographs

23․The bundle of photographs attached to the police informant’s statement included images of the injuries sustained by Mr Du during the assault. These included injuries to his eyes, eyebrows, face, neck, feet and legs. The images show swelling to Mr Du’s face, steri-strips on his face, scratches, and bruising. They also show bandages on both of Mr Du’s knees and elbow.       

Bundle of statements

24․Mr Du’s statement relevantly said:

Shortly after [being stopped by the co-offender], I noticed another male now standing next to me… I didn’t say anything to this male and he didn’t say anything to me. This male then punched me in my right eye … Immediately after this, about three or four other males began to punch me. I was punched in my face a further three or four times.

25․Mr Zhang’s statement described the incident as follows:

As we were walking along Alinga Street, the three of us were stopped by a male who approached very suddenly and yelled something at me… 

I then saw these three or four males [who were standing next to the first male] punching [Mr Du] … I saw one or two males grabbing Wenbo [Mr Du] so he was unable to defend himself or fight back…

I attempted to stop these males from punching Wenbo [Mr Du] by grabbing one of them. Some of the males punching Wenbo [Mr Du] then began to attack me. I was grabbed from behind and one other male then began punching and kicking me. I was hit in the neck and face.

26․Mr Tu’s statement similarly described the incident in the following terms:

This male [who had yelled at the complainant group] argued with [Mr Du] face to face then out of nowhere he punched [Mr Du] in the face. Two other males then came out of nowhere and also punched [Mr Du] in the face…

I then saw [Mr Du] was now on the ground and he got kicked by one of the males.

The Magistrate’s conviction decision

27․In an oral judgment delivered on 21 June 2022, the Magistrate found the appellant and Mr Eyoob each guilty of assault occasioning actual bodily harm by virtue of s 45A of the Criminal Code.

28․The Magistrate commenced by noting that the appellant and Mr Eyoob had each entered a guilty plea to the alternative charge of common assault against Mr Du. The Magistrate accordingly identified the question for determination as being limited to the issue of whether there was an agreement between the appellant and one or more of the co-defendants to commit an assault, such that “both should be found liable under section 45A of the assault occasioning actual bodily harm”.

29․After briefly outlining the history and purpose of s 45A of the Criminal Code, the Magistrate correctly stated that where:

… a person, [and] at least one other person enter into an agreement to commit an offence and either, an offence is committed in accordance with that agreement, or an offence is committed in the course of that agreement, … the effect of [s 45A] is to extend criminal liability to each party of the agreement.

30․Turning to the evidence, the Magistrate was satisfied on the basis of the CCTV footage that “all three entered into an enterprise to commit an assault on the victim”; and that “an offence was committed in accordance with the agreement… to assault Mr Du” under s 45(1)(b)(i) of the Criminal Code. His Honour noted that the offence of assault occasioning actual bodily harm does not require proof of an intention to cause actual bodily harm. His Honour also noted that under s 45A(5), an agreement between co-offenders can consist of a non-verbal understanding and can be entered into before, or at the same time as, the conduct making up the physical elements of the offence.

31․His Honour particularly considered that at 20:57:05 of the CCTV footage (the point at which the appellant and both co-offenders can be seen reaching towards or assaulting Mr Du) “an agreement can be inferred from their non-verbal understanding by approaching and in fact, placing their hands on the victim …”.

32․The Magistrate rejected the submission that the appellant’s conduct was a discrete act, separate from those of the co-offenders, finding that the appellant’s actions at 20:57:05 “[show] that he is engaging in an assault of Mr Du together with the other two [Mr Margaritis and Mr Eyoob]”.

33․His Honour also rejected any suggestion that the appellant withdrew from the agreement under sub-s 45A(6) prior to the infliction of actual bodily harm, by ending his involvement and taking all reasonable steps to prevent the conduct from being engaged in. His Honour noted that “a few seconds after” 20:57:05, the appellant’s physical engagement with the complainant reduced. However,, his Honour considered this marginal disengagement was indicative of the appellant “[standing] by willing to assist if it was a further requirement”.

34․The Magistrate was satisfied that as a result of the assault by the three co-defendants, Mr Du sustained actual bodily harm. Accordingly, his Honour was satisfied beyond reasonable doubt of the guilt of the appellant and Mr Eyoob of the offence of assault occasioning actual bodily harm on Mr Du. Having so found, his Honour accordingly dismissed the alternative charges of common assault (CC2021/9233 and CC2021/9235).

35․On the application of the prosecutor, his Honour also dismissed the charge of common assault by the appellant on Mr Zhang (CC2021/4378). However, at the sentence hearing, the prosecutor advised the Court that this further charge was in fact not a backup charge and that it had been dismissed in error. The charge (to which the appellant had previously entered a plea of guilty) was re-instated without objection by the appellant at that time.

The sentences imposed on Mr Eyoob and Mr Margaritis

36․The proceedings on sentence for Mr Eyoob and Mr Margaritis were heard before the Magistrate on 18 July 2022. In ex tempore reasons delivered on that day, the Magistrate sentenced Mr Margaritis and Mr Eyoob as follows:

Mr Margaritis:     For the offence of assault occasioning actual bodily harm upon Mr Du – a sentence of nine months’ imprisonment, to be suspended immediately upon the offender entering into a 12 month GBO, and a $2,000 fine.

Mr Eyoob:           For the offence of assault occasioning actual bodily harm upon Mr Du – a sentence of nine months’ imprisonment, to be suspended immediately upon the offender entering into a 12 month GBO, and a $2,000 fine.

For the offence of assault of Mr Zhang – a $1,000 fine.

The appellant’s sentence

37․The proceedings on sentence for the appellant were heard by the Magistrate on 3 August 2022. On that occasion, further evidence on sentence was admitted, including the appellant’s criminal history, a Court Duty report, a character reference, a news article relating to the appellant’s international sporting achievements, and oral evidence from the appellant’s father explaining the circumstances that had led to the appellant being charged with a subsequent offence of common assault which occurred on 6 February 2022.

38․After hearing submissions from both parties, the Magistrate delivered ex tempore reasons for sentence.

39․In those reasons, his Honour commenced by recording the sentences that he had previously imposed on Mr Margaritis and Mr Eyoob. His Honour recorded that he had again viewed the CCTV footage in preparation for the sentence hearing, and made the following findings as to the respective roles of the offenders:

Significantly, [the appellant] was the first to use violence against the victims, and Mr Margaritis was the person who pulled Mr Du to the ground as part of the attack …

40․The Magistrate acknowledged that the appellant was more involved in the initial stages of the confrontation, but concluded that this “does not in my view lessen his liability”. In this respect, the Magistrate emphasised that the appellant was “the first to use violence, which then led to a chain of violence by his co-offenders”. The Magistrate assessed all of the offenders as being “equally liable for their actions”.

41․The Magistrate considered that the nature of the offending was “very serious” and required a period of imprisonment to be imposed. The Magistrate referred to case law emphasising the “need for strong deterrence in the sentence [imposed], both specifically to [the appellant] and to the community” for offences involving alcohol induced violence.

42․The Magistrate took into account the appellant’s positive subjective circumstances, including “a strong upbringing” with a supportive family, full-time employment, active sportsmanship, stable accommodation, pro-social activities, no history of illicit substance abuse, that he has apparently overcome a brief period of problematic alcohol consumption, and several references speaking to “otherwise good behaviour”.

43․His Honour accepted that the subsequent common assault charge which had occurred in February 2022 was “significantly different” to the present charges, and his Honour therefore did not “necessarily take [it] into account”. His Honour did, however, note a previous conviction for drink-driving which went to the “common factor of consumption of alcohol”. The Magistrate accepted that the appellant had strong prospects of rehabilitation.

44․The Magistrate found that the appellant had expressed contrition and remorse both in his remarks to the author of the Court Duty Report and in his plea of guilty to the related charge against Mr Zhang.

45․His Honour concluded that “considering the factors of each offender’s involvement and noting the slight differences in their criminal history, nonetheless it seems to me that the sentences I impose must reflect the active involvement of all three in the violence”.

46․With respect to the charge of assault occasioning actual bodily harm on Mr Du by joint commission, the appellant was fined $2,000 and sentenced to a term of nine months’ imprisonment, to be suspended upon the appellant entering into a 12-month GBO with core conditions only. With respect to the common assault charge against Mr Zhang, the appellant received a $1,500 fine.

The conviction appeal

Nature of the appeal

47․The appellant’s conviction appeal was brought pursuant to ss 207 and 208(1) of the Magistrates Court Act 1930 (ACT), which confers jurisdiction on this Court to hear and determine an appeal from a person who has been convicted of a summary offence in the Magistrates Court.

48․An appeal under ss 207 and 208 of the Magistrates Court is by way of rehearing: Alexander v Bakes [2023] ACTCA 49. On this rehearing, “the Supreme Court must have regard to the evidence given in the proceeding out of which the appeal arose, and has power to draw inferences of fact”: s 214 of the Magistrates Court Act. This task requires that the Court undertake a “real review” of the evidence: Alexander v Bakes at [13], citing Warren v Coombes [1979] HCA 9; 142 CLR 531 at 551 and Lee v Lee [2019] HCA 28; 266 CLR 129 at [55]-[56].

49․The onus is on the appellant to identify and demonstrate error in the Magistrate’s findings: Alexander v Bakes at [22], citing Allesch v Maunz [2000] HCA 40; 203 CLR 172 at 180 [23] and Lukatela v Birch [2008] ACTSC 99; 164 ACTR 24 at [19].

50․As the proceedings in the Magistrates Court proceeded by way of the tender of unchallenged evidence, the principles concerning the deference to be afforded to credibility findings of a Magistrate are not relevant to the determination of the present appeal; cf Alexander v Bakes at [13] and [20].

Section 45A of the Criminal Code

51․Section 45A of the Criminal Code provides for the extension of criminal responsibility in cases of joint commission of an offence as follows:

(1)A person is taken to have committed an offence if—

(a)the person and at least 1 other person enter into an agreement to commit an offence; and

(b)either—

(i)an offence is committed in accordance with the agreement; or

(ii)an offence is committed in the course of carrying out the agreement.

(2)For subsection (1) (b) (i), an offence is committed in accordance with an agreement if—

(a)the conduct of 1 or more parties in accordance with the agreement makes up the physical elements consisting of conduct of an offence (the joint offence) of the same type as the offence agreed to; and

(b)to the extent that a physical element of the joint offence consists of a result of conduct—the result arises from the conduct engaged in; and

(c)to the extent that a physical element of the joint offence consists of a circumstance—the conduct engaged in, or a result of the conduct engaged in, happens in the circumstance.

(3)For subsection (1) (b) (ii), an offence is committed in the course of carrying out an agreement if a person is reckless about the commission of an offence (the joint offence) that another person in fact commits in the course of carrying out the agreement: s 45A(3).

(4)A person commits an offence because of this section only if the person and at least 1 other party to the agreement intend that an offence will be committed under the agreement.

(5)An agreement—

(a)may consist of a non-verbal understanding; and

(b)may be entered into before, or at the same time as, the conduct making up any of the physical elements of the joint offence was engaged in.

(6)A person must not be found guilty of an offence because of this section if, before the conduct making up any of the physical elements of the joint offence concerned was engaged in, the person—

(a)   ended the person’s involvement; and

(b)took all reasonable steps to prevent the conduct from being engaged in.

(7)A person may be found guilty of an offence because of this section even if—

(a) another party to the agreement is not prosecuted or found guilty; or

(b) the person was not present when any of the conduct making up the physical elements of the joint offence was engaged in.

(8)Any special liability provisions that apply to the joint offence apply also for the purposes of deciding whether a person commits the offence because of the operation of this section.

(9)To remove any doubt, if a person is taken to have committed an offence because of this section, the offence is punishable as if, apart from the operation of this section, the person had committed the offence.

52․Section 45A was inserted into the Criminal Code in 2010 by the Crimes (Serious Organised Crime) Amendment Act 2010 (ACT) (2010 Amending Act).

53․The Revised Explanatory Statement to the 2010 Amending Act (2010 Explanatory Statement) explains that s 45A was introduced after several decisions under the Criminal Code Act 1995 (Cth) (the Commonwealth Criminal Code) had held that the Commonwealth Criminal Code did not “capture circumstances where there is an agreement to commit an offence, and the offence is committed under that agreement”: see, eg, R v Pui Man Liu and Sin Chun Wong (2003, unreported, NSWCCA); R v PHA [2004] NSWCCA 445 at [24]; see also Handlen v the Queen [2011] HCA 51; 245 CLR 282 at 286 [1]. At the time of codification, it was well established at common law that an offence was committed in these circumstances pursuant to joint criminal enterprise principles: McAuliffe v The Queen [1995] HCA 37; 183 CLR 108.

54․Section 45A, prompted by the relevantly identical Commonwealth provisions introduced earlier that year (s 11.2A of the Commonwealth Criminal Code), was intended to address this lacuna by inserting a slightly modified version of the common law principle of joint criminal enterprise into the Code. 

55․Like its common law counterpart, an agreement under s 45A of the Criminal Code need not be expressed in words but may consist of a “non-verbal understanding”: s 45A(5)(a) of the Criminal Code. The 2010 Explanatory Statement confirms that the term is "intended to be broad in its meaning and capture any agreement, arrangement or understanding that can be implied or inferred taking into account all of the circumstances": see 2010 Explanatory Statement at 8.

56․It is not necessary for the Court to make a finding as to the precise instant when the agreement was reached. Rather, it is only necessary for the prosecution to establish that the agreement was entered into before, or at the same time as, the conduct making up any of the physical elements of the joint offence was engaged in: see s 45A(5)(b) of the Criminal Code. The existence of the agreement, and the time the agreement was reached, “may be inferred from all the circumstances, including the commission of the offence itself or the acts of those participating in its commission”: Romolo v R [2018] NSWCCA 3 at [52].

Determination

57․In this appeal and in the proceedings before the Magistrate, the appellant submitted that the evidence failed to establish beyond a reasonable doubt that he entered into an agreement with Mr Margaritis and/or Mr Eyoob to assault Mr Du at any time.

58․In his second ground of appeal in this Court, the appellant further submitted in the alternative that if the Court were satisfied beyond reasonable doubt that he had entered into an agreement to assault Mr Du:

(i)the Court could only be satisfied that any agreement arose after Mr Margaritis and Mr Eyoob joined in the assault; and

(ii)the Court could not be satisfied that the injuries were inflicted after this time (that is, after Mr Margaratis and Mr Eyoob joined in the assault), as Mr Du may have sustained his injuries during the assault that occurred before the agreement was reached (that is, as a result of the appellant shoving and punching Mr Du, before Mr Margaritis and Mr Eyoob joined in the physical assault of Mr Du).

59․The appellant submitted that, because the charge was particularised by the prosecution as being pursuant to an agreement within the meaning of s 45A of the Criminal Code, it followed that the appellant must be found not guilty of that charge.

60․If the appellant’s alternative contention were accepted, the appellant would be found not guilty, even though Mr Du’s injuries were sustained either as a result of the assault which was performed by the appellant, or as a result of an assault pursuant to an agreement to which he was a party. Mr Sharman acknowledged that this result would be “unsavoury”, but contended that it simply reflected the fact that the prosecution ought to have separately charged the appellant with a charge of assault individually, and with a further charge of assault pursuant to an agreement under s 45A.

61․I have doubts about the correctness of the premise that underlies the appellant’s alternative contention, namely, that where the prosecution relies on s 45A of the Criminal Code to establish liability, an accused may only be found guilty if he committed the offence alleged pursuant to an agreement, and will not be guilty if he committed the offence as a principal and not pursuant to an agreement.

62․Section 45A is a deeming provision: R v Holliday [2017] HCA 35; 260 CLR 650 at 672 [77]. It provides that a person “is taken to have committed an offence” if the person enters into an agreement to commit an offence and either an offence is committed in accordance with the agreement, or an offence is committed in carrying out the agreement. Like s 11.2A of the Commonwealth Criminal Code, s 45A of the Criminal Code does not create a new offence, but rather extends criminal responsibility to all of those who enter into an agreement to commit an offence: Franze v The Queen [2014] VSCA 352; 46 VR 856 at [97].

63․Given the mode by which s 45A imposes liability, there would seem to be no barrier to the prosecution advancing a case in which it is alleged that an accused either personally assaulted the victim (whether or not they were acting in an agreement with others), or that the victim was assaulted by a person who was acting pursuant to an agreement with the accused that is within the scope of s 45A of the Criminal Code. (The position may be different where the prosecution disavows any reliance on liability apart from the application of s 45A of the Criminal Code: see R v Shearer [2018] ACTSC 91; 332 FLR 383 at [66]. Questions of procedural fairness may arise if the prosecution is permitted to change the nature of its case at a late stage in the proceeding.)

64․On the other hand, it may be noted that s 45A contains no equivalent to s 45(8), which provides (in the context of common purpose offences) that:

If the trier of fact is satisfied beyond reasonable doubt that a defendant committed an offence because of this section or otherwise than because of this section but cannot decide which, the trier of fact may nevertheless find the defendant guilty of the offence.

65․The absence of an equivalent to s 45(8) in s 45A may provide some limited support for the appellant’s alternative contention. In his text Principles of Federal Criminal Law, Stephen Odgers SC suggests that the absence of a comparable provision in the Commonwealth Criminal Code “may well be an oversight” and suggests that “it would be desirable to amend this provision” to include the same subsection (at 216 [11.2A.500]). I echo these observations.

66․However, in the present case, it is not necessary for me to determine whether, where the prosecution relies on s 45A of the Criminal Code to establish liability, the accused may only be found guilty if the offence is committed as a result of an agreement (and not where the accused is found to have, or may have, committed the offence alleged as a principal acting alone). I am satisfied that the evidence demonstrates beyond reasonable doubt that the appellant was in a joint agreement to assault Mr Du at all times while Mr Du was being assaulted. I am also satisfied beyond reasonable doubt that the appellant was acting in accordance with that agreement when he (that is the appellant) commenced his physical assault of Mr Du and that the appellant remained a party to the agreement whilst Mr Du was being physically assaulted by Mr Margaritis and Mr Eyoob. Accordingly, s 45A operates to render the appellant liable for the offence of assault occasioning actual bodily harm, regardless of when the injuries amounting to actual bodily harm were sustained, or who they were inflicted by.

67․Specifically, in the period immediately before the appellant’s assault, it is clear that the three offenders were acting as a group. Mr Eyoob was the first to confront the complainant group and to start yelling at them. The appellant then immediately moved to where Mr Eyoob was standing. The CCTV footage shows that both the appellant and Mr Eyoob were using animated hand gestures at this time. Prior to the appellant engaging in any physical violence, Mr Margaratis walked towards the group to join the appellant and Mr Eyoob.

68․As soon as the appellant commenced his physical assault of Mr Du, Mr Margaritis moved even more quickly towards the appellant. For the duration of the appellant’s assault upon Mr Du, Mr Eyoob and Mr Margaritis were standing in close proximity to the appellant. As the appellant and Mr Du moved during the altercation, Mr Eyoob and Mr Margaratis also moved so as to stay in close proximity to him. The appellant was clearly aware of their presence. At various points during the assault, Mr Margaritis and Mr Eyoob were in the appellant’s line of sight as the appellant assaulted Mr Du.

69․Although they did not immediately join the appellant in his physical assault of Mr Du, the actions of Mr Margaritis and Mr Eyoob in moving closer to the appellant at the time, and their positioning with respect to the appellant (in a triangle formation), demonstrate that they were ready to step in to assist him in the assault (as they ultimately did). Immediately after Mr Eyoob and Mr Margaritis became involved in the physical assault, the appellant and Mr Eyoob lightly touched Mr Margaritis’ back as he assaulted Mr Du, in what appears to be an indication of support.

70․I am satisfied beyond reasonable doubt that these actions demonstrate that at all stages during the physical altercation (that is, both when the appellant was physically assaulting Mr Du and where Mr Eyoob and Mr Margaritis were physically assaulting Mr Du), there was a non-verbal understanding between the appellant, Mr Eyoob and Mr Margaritis to jointly assault Mr Du.

71․I do not understand this finding to differ from the Magistrate’s finding as to when the agreement was reached. The Magistrate found that it was “clear” that the appellant and Mr Eyoob, along with two others, “intended to assault Mr Du”. He continued:

Lest there be any doubt, it seems it becomes startingly clear on the CCTV footage at time stamp 20:57 and five seconds… At that time and second, Mr Eyoob, Mr Inglis and [Mr Margaritis] … can be seen reaching towards or assaulting Mr Du. I am thus satisfied that at that time, by [sic] an agreement can be inferred from their non-verbal understanding by approaching and in fact, placing their hands on the victim.

72․Whilst the transcript is somewhat unclear, I do not understand his Honour to have concluded that the agreement between the appellant, Mr Eyoob and Mr Margaritis was not reached until 20:57 and 5 seconds. Rather, I understand his Honour to have held that the existing agreement was starkly evidenced by the actions of the men at that time. 

73․It is of no consequence if I am mistaken in this understanding of the Magistrate’s reasons. As this is a rehearing, upon any finding of factual error, I would be required to determine the facts for myself, exercising the power conferred by s 214 of the Magistrates Court Act to draw inferences of fact from the evidence: Alfred (a pseudonym) v Eiffert [2023] ACTSC 403 at [35] and [39].

74․For the reasons set out at [67] – [70] above, I am satisfied beyond reasonable doubt that, at least from the time when the appellant first commenced his assault upon Mr Du, there was a non-verbal understanding between the appellant, Mr Eyoob, and Mr Margaritis to assault Mr Du.

75․Accordingly, it matters not whether the blow or blows that occasioned the actual bodily harm were inflicted by the appellant, Mr Eyoob, or Mr Margaritis. From the time that the appellant first struck Mr Du, all three men were acting pursuant to a joint agreement to assault Mr Du. When the appellant stepped back, he did not withdraw from this agreement. He remained in a position willing and ready to assist Mr Eyoob and Mr Margaritis in their continued assault of Mr Du. As Mr Sharman properly accepted, the appellant did not end his involvement in the assault, nor did he take any steps to prevent the assault being engaged in by Mr Eyoob and Mr Margaritis. Accordingly, the Magistrate correctly concluded that s 45A(6) of the Criminal Code did not apply to absolve the appellant of liability for the acts of his friends.

76․In summary, the evidence demonstrated beyond reasonable doubt that the appellant, Mr Margaritis and Mr Eyoob entered into an agreement to commit an offence (namely, to assault Mr Du) (s 45A(1)(a)), and intended that an offence would be committed under the agreement (s 45A(4)). The evidence also establishes that the offence of assault occasioning actual bodily harm was committed in accordance with the agreement (s 45A(1)(b)(i)), in that the conduct of at least one of the parties made up each of the physical elements of that offence, and the actual bodily harm sustained by Mr Du arose from the conduct engaged in by one or more of the parties to the agreement: s 45(2)(a)–(b). It follows that the Magistrate correctly held that the appellant was guilty of the offence of assault occasioning actual bodily harm by virtue of s 45A of the Criminal Code.

77․Accordingly, the appeal against conviction must be dismissed.

Sentence appeal

78․This Court has jurisdiction to determine the appellant’s appeal against sentence under ss 207 and 208 of the Magistrates Court Act. As with an appeal against conviction, such an appeal is an appeal by way of rehearing. The appellant must demonstrate error in the sentence imposed.

79․The appellant contends that the sentence imposed by the Magistrate lacks parity with the sentences imposed on his co-offenders. Such an error, if established, would vitiate the sentence and require this Court to resentence the appellant.

80․The principle of parity is well established. For present purposes, it is sufficient to refer to the decision of the Court of Appeal in Apps v The Queen [2020] ACTCA 53 at [29] – [31], in which the following observations were made:

29․The parity principle derives from the norm of 'equal justice' which is an aspect of the rule of law: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 (Green) per French CJ, Crennan and Kiefel JJ at [28]. Their Honours continued:

[Equal justice] requires, so far as the law permits, that like cases be treated alike.  Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law.  …

Consistency in the punishment of offences against the criminal law is 'a reflection of the notion of equal justice' and 'is a fundamental element in any rational and fair system of criminal justice'. It finds expression in the 'parity principle' which requires that like offenders should be treated in a like manner. As with the norm of 'equal justice', which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.

(Footnotes omitted)

30․The parity principle applies to persons charged in connection with the same criminal conduct or enterprise, regardless of whether they are charged with the same offence, although the existence of different charges may cause practical difficulties in applying the principle: Green at [30]; Lowe v The Queen (1984) 154 CLR 606 (Lowe); Postiglione v The Queen (1997) 189 CLR 295.

31․Where an appellant alleges an unjustified disparity between their sentence and that imposed on a co-offender, the question is whether the disparity is such as to give rise to an objectively justifiable sense of grievance, i.e.  whether it gives the appearance that justice has not been done:  Lowe at 610; Green at [31].

81․Issues of parity were at the forefront of the Magistrate’s consideration of the sentence to be imposed on the offender.  In his ex tempore reasons for sentence, the Magistrate commenced by recording the sentences that he had imposed on the appellant’s co-offenders, and then carefully assessed the respective roles of each offender along with their subjective circumstances.

82․Having performed this comparative analysis, his Honour concluded that it was appropriate for the appellant to be sentenced to the same sentence for the offence of assault occasioning actual bodily harm of Mr Du as that which he had imposed on the appellant’s co-offenders, namely, a sentence of imprisonment of nine months, to be suspended on the entering of a 12 month GBO, with a $2,000 fine.

83․It was well open to the Magistrate to so hold. The Magistrate correctly recognised that although all three offenders were liable for the offending, it was necessary to assess their respective roles: see similarly DPP v Clissold [2023] ACTSC 250 at [60] and [81]. I entirely agree with the Magistrate’s conclusion that the roles of the co-offenders did not differ in seriousness. As the Magistrate observed, whilst the appellant stood back for the second part of the assault, the appellant was “the first to use violence, which then led to a chain of violence by his co-offenders”. Given his role as the instigator of the violence upon Mr Du the appellant’s involvement in the offending was not less than that of his co-offenders.

84․Nor was there any difference between the subjective cases of the appellant and the co-offenders which would require that a lesser sentence be imposed on the appellant. In particular:

(a)All three offenders were in their twenties (Mr Eyoob was 27 years old; Mr Margaritis was 23 years old; and the appellant was 22 years old);

(b)Letters of support were tendered in support of all three offenders; and

(c)All three offenders had pro-social supports (for example, each of the offenders were in full-time employment; the appellant had family support and was heavily involved in community sport; and Mr Margaritis had a supportive partner).

85․In his submissions in support of this ground of appeal, Mr Sharman placed particular weight on the differences in the offender’s respective criminal histories. The appellant had a prior conviction for drink driving and common assault (as outlined above, the Magistrate did not consider that the offence of common assault was significant in view of the circumstances in which that assault occurred). Mr Eyoob had a prior conviction for assault occasioning actual bodily harm and two convictions for common assault (all arising out of an incident in 2018), and Mr Margaritis’ criminal history included two drink-driving offences (from December 2016 and January 2018) and an offence of driving whilst disqualified (from December 2016).

86․The appellant’s contention that these differences in the offenders’ respective criminal histories required that a lesser sentence be imposed on the appellant in comparison to his co-offenders (or, at least, a lesser sentence than that imposed on Mr Eyoob) fundamentally mistakes the way in which a sentence is determined. Sentencing is not a mathematical process, whereby a nominated term is incrementally increased for each additional offence in an offender’s criminal history: Tran v R [2017] VSCA 346 at [24] – [25] and [56].

87․Rather, the task of determining an appropriate sentence requires attention to be given to the purposes of sentencing, as contained in s 7 of the Crimes (Sentencing) Act 2004 (ACT), including the need for punishment and accountability, denunciation, deterrence, protection of the community, promotion of rehabilitation and the recognition of the harm done to the victim and the community. Where the weight to be given to the different purposes of sentencing differs between co-offenders, different sentences will be required: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [29].

88․In the present case, there was no suggestion that either the appellant’s or any of the co-offenders’ criminal histories were such as to require that any weight be given to the need for protection of the community. The Magistrate found that, although the appellant had engaged in a common assault subsequent to the present offending, the circumstances of that offending were such that it could still be said that the appellant had “some prospects or stronger prospects of rehabilitation”. I do not understand his Honour to have been undertaking a comparison with the co-offenders in making this finding. By reason of each of their respective ages and prosocial factors, it was well open to the Magistrate to determine that the weight to be given to rehabilitation should not differ significantly between each offender, particularly in circumstances where none of the offenders were being sentenced to a term of full-time imprisonment.

89․Further, as the roles of the offenders in the offending did not differ in objective seriousness, the weight to be given to punishment, denunciation, recognition of the harm to the victim, and deterrence was relevantly identical in the case of each offender.

90․In these circumstances, it was well open to the Magistrate to impose the same sentence on each offender. It follows that the appellant has no justifiable sense of grievance arising from the sentences imposed on either of his co-offenders.  

Orders

91․The appeal is dismissed for the reasons outlined above.

I certify that the preceding ninety-one [91] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

Associate:

Date: 19 January 2024