Nguyen v The Queen - [2001] WASCA 176

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: NGUYEN -v- THE QUEEN [2001] WASCA 176

CORAM: MALCOLM CJ
MURRAY J
OWEN J

HEARD: 20 APRIL 2001

DELIVERED : 13 JUNE 2001

FILE NO/S: CCA 74 of 1999
CCA 104 of 1999

BETWEEN: NHUAN VAN NGUYEN
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Manslaughter and assault occasioning bodily harm - Ten persons charged, a number plead guilty and a number go to trial - Criminal complicity - Common purpose to commit serious assault upon victims - Whether common purpose needed to encompass use of weapons - Direction required as to probable consequence of prosecution of common purpose

Criminal law and procedure - Sentencing - Parity of sentence with co-offenders - Application of totality principle - Whether total term of 12 years imprisonment with eligibility for parole for aggravated burglary, manslaughter and assault occasioning bodily harm manifestly excessive

Legislation:

Criminal Code (WA), s 8

Result:

Leave to appeal against conviction and sentence refused

Representation:

Counsel:

Applicant: Mr B S Hanbury
Respondent: Mr J Mactaggart

Solicitors:

Applicant: Beau Hanbury
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Brennan v The King (1936) 55 CLR 253
Jarvis v The Queen (1993) 20 WAR 201
Mason v The Queen (1995) 15 WAR 165
McAuliffe v The Queen (1995) 183 CLR 108
Osland v The Queen (1998) 197 CLR 316
Postiglione v The Queen (1997) 189 CLR 295
R v Barlow (1997) 188 CLR 1
Saunders v The Queen [1980] WAR 183
Stuart v The Queen (1974) 134 CLR 426
Warren v The Queen [1987] WAR 314
Wicks v The Queen [1989] 3 WAR 372

Case(s) also cited:

Borg v R [1972] WAR 194
G v R (1997) 96 A Crim R 162
Jeffries v R (1916) 18 WALR 143
Johns v R (1980) 28 ALR 155
Markby v The Queen (1978) 140 CLR 108
McKenzie v R (1996) 190 CLR 348
Nicolakis v R (1988) 32 A Crim R 451
R v Anderson & Morris [1966] 2 QB 110
R v Drury (1971) 56 Cr App R 104
R v Walton (1997) 95 A Crim R 98

MALCOLM CJ: In my opinion this application for leave to appeal against conviction and the applicant's further application for leave to appeal against sentence should each be refused. I have reached these conclusions for the reasons to be published by Murray J with which I agree.
MURRAY J:

Introduction

On 2 February 1998, 11 male persons went to a duplex in Casserley Avenue, Girrawheen. Their purpose it appears was to violently attack those whom they might find there. They had a particular target in mind, a person named Howson. He was attacked in the house and received a number of stab wounds from which he died as he fled the house, attempting to make his escape. He suffered a further attack in the yard outside. Another occupant of the house, a person called Morey, was also wounded a number of times, while the third occupant of the house, one Kerr, was not harmed at all. He was the brother of a woman called Leeanne Phillips and Howson was her estranged de facto husband and the father of her two young children. The 11 male persons and Phillips were charged with various offences, including in some cases with the murder of Howson and with the harm done in the attack upon Morey. Two persons, a male person of Vietnamese extraction known as Quy, and another of the same extraction known as Kiet, pleaded guilty to assault very shortly after they were charged.
An indictment was presented against the other nine male persons and Phillips in August 1998. Prior to the trial, the Crown accepted a plea of guilty to aggravated burglary made by a person of Vietnamese extraction known as Vinny and, from another person, pleas were accepted to manslaughter, aggravated burglary and assault occasioning bodily harm. This person appears to have been of Indian extraction and for ease of reference I shall refer to him by his nickname, AT. During the trial one Goodwin pleaded guilty to manslaughter, aggravated burglary and assault occasioning bodily harm, was sentenced, as the others who pleaded guilty had been, and was called as a Crown witness, as were the others persons to whom I have referred above.
Seven persons, including the applicant and Phillips, were therefore tried by Miller J and a jury and verdicts were returned against them. The indictment charged them with a count of aggravated burglary concerned with their presence in the house at Casserley Avenue, a place ordinarily

used for human habitation. Specific circumstances of aggravation were charged, being that the accused persons were armed with dangerous weapons, in company with each other, and knew or ought to have known, upon their entry into the house, that there was another person therein. The accused persons were also charged with the murder of Howson and with unlawfully doing grievous bodily harm to Morey with the intent to do that harm. In the alternative to the lastmentioned charge, they were charged with unlawfully assaulting Morey so as to do him bodily harm. So far as Morey is concerned, it was upon the lastmentioned charge of the alternative offence of assault occasioning bodily harm that verdicts were returned. How that came about is of no moment for present purposes.

The following verdicts were returned. Phillips was acquitted of all the offences with which she had been charged. It seems that, although on one view of the evidence she may have been involved in earlier discussions as to what the other accused persons proposed, she did not go to the house in Casserley Avenue. Three persons were convicted of murder, aggravated burglary and assault occasioning bodily harm. They were a man named McKenney who had been a friend of the deceased Howson but who, upon his separation from Phillips, took her into his house and commenced a relationship with her, a man of Vietnamese extraction named Le and a man named Rodriguez. Two persons, both of Vietnamese extraction, named respectively Lam and Trang, were convicted of aggravated burglary but were found not guilty of one of the specified circumstances of aggravation, that they were armed with dangerous weapons. These two accused persons were also convicted of the assault occasioning bodily harm upon Morey but they were acquitted of the murder of Howson.
The applicant, the remaining accused person tried by the jury, was convicted of aggravated burglary without the circumstance of aggravation that he was armed with a dangerous weapon, convicted of the manslaughter of Howson and of the assault occasioning bodily harm upon Morey. Therefore, of those who were convicted by the jury, the applicant was the only one who was convicted of manslaughter rather than murder although, as has been seen, pleas of guilty to manslaughter were accepted by the Crown from AT and Goodwin. The jury for their part appear to have distinguished carefully between the criminal complicity, if any, of the accused persons who were committed to their charge.

The application for leave to appeal against conviction

The applicant seeks leave to appeal against the convictions sustained upon the following grounds:
"1.No reasonable jury could have reached a verdict of guilty of manslaughter on Count 2 but not guilty as to Leeanne Michaela Phillips, Phi No Lam and Phuoc Dat Trang and the verdict of guilty is inconsistent with the verdict of not guilty respecting those other accused and is therefore unreasonable.
2.The learned trial Judge erred in law in his directions to the jury as to the proper operation in law and application to the circumstances of this case of Section 8 of the Criminal Code 1913.
PARTICULARS
The learned trial Judge declined to direct the jury specifically that in this case, 'the common intention to prosecute an unlawful purpose' was to assault the deceased using knives and a baseball bat on the grounds that,
(a)'It is not the means … but the law is not that it’s the means by which you do it' (Pp3668T).
(b)'As to the probable consequence depends on what was used and who knew what was being used' (Pp3668T).
(c)'The common purpose allegedly was to unlawfully assault the man. The means by which that was done is a separate issue, and it goes to the issue of what was a probable consequence, and therefore goes individually in relation to each accused's case' (Pp3669T)."

The evidence at trial

At the hearing of the application for leave the evidence was summarised by counsel for the applicant in terms which corresponded to the summary provided by the respondent. The evidence at trial would therefore appear to have been as follows. During the evening of 2 February 1998 Howson went to the house occupied by McKenney and Phillips and her children in Nanovich Way, Girrawheen. The purpose of his visit was to obtain some medication for a young child who had been brought with visitors to his house in Casserley Avenue. While he was there, there was an argument between him and Phillips. After he left there was discussion about Howson and Phillips told McKenney she was afraid that Howson would never leave her alone.
It seems that McKenney then decided that he would go to Howson's house and physically punish him for what he saw as Howson's unwelcome attention to Phillips. He enlisted the aid of friends, anticipating that there may be a number of persons at the Casserley Avenue house and he may need assistance to accomplish his purpose without harm to himself. The applicant was not one of those originally approached but he took those persons who were approached to Nanovich Way. Those persons were Goodwin, AT, Le and Rodriguez. AT took with him a set of nunchakus and one of the others took a meat cleaver.
It seems to be perfectly clear that at the house at Nanovich Way, those present decided that they would go to the house occupied by Howson and there attack him and whoever else might be there. The applicant telephoned a nearby pool hall frequented by other persons of Vietnamese extraction. He spoke to Lam. He told him that a girl had been bashed and they were going to a fight.
Two cars left Nanovich Way. One was McKenney's vehicle which he drove with Le and Rodriguez as passengers. The second was the applicant's vehicle driven by Goodwin with the applicant and AT as passengers. They drove to the pool hall. The applicant went inside. He enlisted the aid of a group there, returned to his car and, with the others following, they proceeded to Casserley Avenue. The persons enlisted from the pool hall were Kiet, Vinny, Quy, Trang and Lam, all of whom travelled together to the house at Casserley Avenue.
Upon arrival the vehicles were parked and the men alighted. They walked to the house, some gathering sticks and chair legs to use as weapons. A number approached the front door. Others stayed out the front. When those at the door signalled their presence it was opened by Howson. A group stormed into the house and inflicted a number of stab wounds upon Howson. Morey came from a bedroom and was in turn attacked. Knife wounds were received by both Howson and Morey. It would seem on the evidence that those involved in the attack upon these persons inside the house included AT who had nunchakus, Le who had a knife and Rodriguez who also had a knife. McKenney had a baseball bat but it is not clear to me that he entered the house. He denied doing so. There was evidence that at some stage AT struck the deceased with the nunchakus, probably outside the house.
Having been wounded, Howson fled the house and was further attacked by those outside who themselves were armed with items such as a wheel brace, chair legs and sticks. There was evidence that the applicant entered the unit but there appears to have been no evidence that he attacked the deceased or Morey.
As I have said, Howson, having been attacked both inside and outside the house, died as he attempted to make his escape. After the incident was over, those present left. The applicant travelled with Goodwin and AT. Goodwin gave him a meat cleaver which he had and asked the applicant to dispose of it. He agreed to do so and hid the weapon at the pool hall from where it was later recovered.
A number of items of electronic equipment had been stolen from the house at Casserley Avenue. The various implements carried by participants in the attack were recovered. There was in fact quite strong evidence to suggest that the death of Howson was caused by knife wounds inflicted by a knife which, upon the evidence, was carried by Rodriguez. But the other knife wounds inflicted certainly contributed to the death of the deceased. The meat cleaver apparently had not been used to inflict any wound upon Howson or Morey.
The applicant's case appears to have been that he was not in fact involved in any way. He was simply there because Goodwin had driven his car there and his only purpose was to regain his car keys and his car from Goodwin. Clearly that evidence was rejected by the jury.

Inconsistency of verdicts

Ground 1 of the application for leave to appeal against conviction raises the question of inconsistency of the verdicts, comparing the verdict of guilty of manslaughter in the case of the applicant with the acquittal of Phillips, Lam and Trang, but in my opinion the ground cannot be made out. In Osland v The Queen (1998) 197 CLR 316, McHugh J, a member of the majority of the High Court in that case, at [116] categorised cases of inconsistency of verdict in the following way:
"When an appellate court sets aside a jury's verdict of guilty on the ground that it is inconsistent with a verdict of acquittal, it usually does so for one of two reasons. First, the verdict of acquittal may necessarily demonstrate that the jury did not accept evidence which they had to accept before they could bring in the verdict of guilty: cf Jones v The Queen (1997) 191 CLR 439. Second, in acquitting the accused on one count, it may follow that the jury must have accepted evidence that required them to acquit on the count on which they convicted the accused. Sometimes, however, the verdicts may indicate that, if the jury did accept the evidence, it has misapplied or misunderstood the directions of law that it was given: MacKenzie v The Queen (1996) 190 CLR 348 at 368."
I am tempted to suggest that in the above passage two types of operative inconsistency are described, one being where the verdicts are seen to be necessarily inconsistent as a matter of fact, having regard to what must have been the findings of fact made by the jury, and the second being where the verdicts are necessarily inconsistent as a matter of law, having regard to the directions correctly given to the jury by the trial Judge.
Neither category fits this case. Certainly no misapplication or misunderstanding of the law is revealed by the verdicts in question. The verdict of guilty of manslaughter returned against the applicant was clearly as a principal offender whose criminal complicity was established under the Criminal Code (WA) s 8(1) by the proposition that he was one of those who formed a common intention to invade Howson's house and to commit upon him, and others who might be in the house and therefore associated with him, a serious assault, perhaps even one likely to do him harm.
Putting aside the matter raised specifically with respect to the application of s 8 in ground 2 of the application, the jury must have concluded that the applicant involved himself in the prosecution of that common unlawful purpose in the course of which Howson was killed. If the killing was a probable consequence of the prosecution of that purpose, then whatever be the basis of the verdicts returned against those who were held by the jury to have been guilty of Howson's murder, the applicant would be fixed with criminal responsibility for their acts which caused the death of Howson and he would be deemed at least to have committed the offence of manslaughter.
He would be deemed to be guilty of murder only if the jury were satisfied beyond reasonable doubt that it was a probable consequence of the prosecution of the common unlawful purpose, which the jury must have found against him, that Howson might not only be killed, but be killed in the course of an attack inflicted by others implicated in the prosecution of the common purpose, with the intention to do Howson some grievous bodily harm, or by means of acts likely to endanger human life in the course of the prosecution of the unlawful purpose. It is in this last area of what he might reasonably suppose would be the intention of any of those who killed Howson, it would seem to be clear, that, so far as the applicant is concerned, perhaps generously on the evidence, the jury have not been satisfied beyond reasonable doubt.
In my opinion, to set the matter out in that way in discussing the applicant's criminal complicity in the context of this case, is to set it out against a substratum of the law which would be appropriate in a common law jurisdiction, as the High Court has recently demonstrated in Osland, and which is appropriate to the terms of the Code. In R v Barlow (1997) 188 CLR 1 Brennan CJ, Dawson and Toohey JJ, in relation to s 8 of the Queensland Criminal Code, said at 10:
"In the light of these provisions, 'offence' in s 8 must be understood to refer to an act done or omission made. So interpreting the section, it deems a person falling within its terms to have done the act or to have made the omission which the principal offender has done or made. It fastens on the conduct of the principal offender, but it does not deem the secondary party to be liable to the same extent as the principal offender. It sheets home to the secondary offender such conduct (act or omission) of the principal offender as (1) renders the principal offender liable to punishment but (2) only to the extent that that conduct (the doing of the act or the making of the omission) was a probable consequence of prosecuting a common unlawful purpose. The secondary party is deemed to have done an act or made an omission but only to the extent that the act was done or the omission was made in such circumstances or with such a result or with such a state of mind (which may include a specific intent) as was a probable consequence of prosecuting the common unlawful purpose. Those circumstances, that result and that state of mind are factors which, either together or separately but in combination with a proscribed act or omission, define an offence of a particular 'nature'. Thus the unlawful striking of a blow by a principal offender will constitute an offence the nature of which depends on whether the blow causes bodily harm or grievous bodily harm or death and on the specific intent with which the blow is inflicted."
The same view of the operation of s 8 is implicit in the earlier decision of this Court in Mason v The Queen (1995) 15 WAR 165.
It is not suggested for the applicant that the evidence against him was insufficient to support his conviction of manslaughter. Indeed, the ground which it was proposed to argue to that effect was abandoned, and in my opinion rightly so. There was evidence to suggest that the applicant was privy to discussion at Nanovich Way at which it was resolved that a group would go to Casserley Avenue, locate Howson and attack him and, if necessary, others at that house. It was from there that the applicant telephoned the pool hall and spoke to others to enlist their participation. The applicant was the one who went into the pool hall and enrolled friends from that place. They were at least told that there was to be a fight with people at a house who had been involved in bashing a girl.
It is perhaps open to question whether the applicant was established to have known about the knives and meat cleaver, but it seems to be clear that there was evidence to establish that, at least at Casserley Avenue, the applicant would have been aware that others armed themselves with sticks of various kinds, chair legs and weapons of that sort. There was clear evidence that the applicant entered the house and that he assisted after the event to dispose of the meat cleaver. There was in my opinion ample evidence upon which the jury might conclude that they were satisfied beyond reasonable doubt that the applicant was one of those who formed a common intention to prosecute the unlawful purpose to which I have referred above, that he participated in the prosecution of that purpose and that it was a probable consequence of invading the house at Casserley Avenue and carrying out the assault that violence to a degree sufficient to result in the death of Howson might occur.

So far as Phillips is concerned, the evidence was quite different. She was effectively prosecuted as a person who counselled or procured the offence committed upon Howson pursuant to the Code, s 7(d), although in her case s 8 was also relied upon. But in her case the evidence was, in my opinion, decidedly weak. She did not go to the house at Casserley Avenue and the evidence was limited to the suggestion that she indirectly counselled or procured the offence committed upon Howson by tearfully encouraging those present at the discussion at Nanovich Way to take revenge upon Howson for injury which had been inflicted upon her. I see nothing factually or legally inconsistent in her acquittal.
As I have mentioned, Lam and Trang were convicted of aggravated burglary, not including the circumstance of aggravation that each was armed with a dangerous weapon, and assault occasioning bodily harm upon Morey. They were acquitted of the homicide committed upon Howson. They were among the group recruited at the pool hall.
Although they went to Casserley Avenue, the evidence suggested no more than that they went there because they thought there would be a fight with occupants of a house because of some injury done to a girl. There appears to have been confused evidence about the extent to which they participated upon their arrival at the house in the events that occurred. There was no evidence to suggest that they entered the house. So it was put that, as part of the group, with some active participation, they aided by encouraging others to commit the burglary charged and to commit assaults upon the occupants of the house, including Morey, as well, of course, as Howson.
But their criminal complicity for Howson's death depended entirely upon the application of s 8 of the Code and as to that it seems clear that, upon the evidence available, the jury was simply not satisfied beyond reasonable doubt that the prosecution of the common purpose in which they were implicated might have, as a probable consequence of its implementation, an attack upon Howson of such severity that it might cause his death, let alone with an intention to do him grievous bodily harm. Again, in my opinion, the acquittal of these two accused persons of the homicide of Howson reveals no relevant inconsistency necessitating a quashing of the conviction of the applicant.

The directions about s 8

Because of the complexity of Miller J's task in directing the jury, particularly with respect to the criminal complicity of the various accused persons before the court, his Honour provided an outline of the matters to be dealt with in his charge including, under the heading of "Common Enterprise", the relevant portion of the Code, s 8(1), which is in the following terms:
"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."
His Honour then took the jury through the provisions of the section and related it to the case before them. He did not, of course, tell the jury what the relevant common intention might be found to be, although his Honour did tell the jury that to be a relevant common intention, it must be an intention that two or more persons formed to prosecute an unlawful purpose. His Honour reminded the jury that the Crown's contention was that the unlawful purpose was to seriously assault Howson and any other occupant of the house at Casserley Avenue. His Honour said, "If the intention was to assault or beat up Howson or anyone else or to do anything that involved a deliberate hitting of him, that is an unlawful purpose." In my respectful opinion that was the appropriate point at which to start the directions about s 8. The jury had to enquire whether they were satisfied beyond reasonable doubt that two or more persons did indeed form a common intention and what it was before going on to consider whether it was causally related to the final outcome of the acts committed by which Howson's death was caused.
His Honour pointed out to the jury that it may indeed be impossible to establish who actually killed Howson, but he told the jury that, if they considered that it was established that the killing, by whomever it was done, was accompanied by an intention to do grievous bodily harm, then the person who so killed Howson would be guilty of murder. His Honour continued with directions about the circumstances in which other accused persons might be found guilty of murder. In my respectful opinion the directions were carefully and completely given and indeed, for the applicant, there is no complaint about their adequacy.
His Honour commenced the next phase of his directions by telling the jury that much would depend upon the nature of the purpose which was the subject of the common intention and he continued:
"So putting it at its lowest scale, if the purpose was merely to throw punches and participate in an ordinary fist fight, turn up at 28C Casserley Avenue for an ordinary fist fight, then you might say the type of blow which caused death was not a probable consequence of the prosecution of that purpose and the participants would not be guilty of murder. So if the purpose was an ordinary fight and one of the accused went beyond the scope of the common purpose, went right off, off his brain, so to speak, by suddenly producing a weapon which was unexpected and unforeseen, the others would not be guilty of murder.
The Crown case here is that the purpose went beyond mere assault. It was a purpose whereby the victim would be beaten up with the use of dangerous weapons with which various accused had armed themselves to the knowledge of not necessarily everyone, [the Crown prosecutor] concedes, but certainly to the knowledge of some. The Crown points to the evidence of knives being taken from McKenney's house and sticks then being taken from nearby the scene.
So people were going armed with pickets, bits of chair leg and the like and the Crown says that there, at least in relation to arming themselves with pickets and chair legs, the purpose clearly was that the accused was to be beaten up by the use of dangerous weapons, not just the knives but pieces of wood."
Then the trial Judge went on to say that such a conclusion might expose others in the pursuit of the common purpose to the conclusion that they were implicated in an offence of murder, but if the jury did not consider that to be the case, then it would be necessary to consider whether any of the accused persons were guilty of manslaughter. His Honour said:
"If the common intention was to assault occupants of Howson's house, the offence would be one of manslaughter if these facts were established: (1) there was the common intention of carrying out the purpose of assaulting the victim; (2) the deceased died as a result of carrying out that purpose; (3) the killing was of such a nature that its commission was a probable consequence of the prosecution of the purpose; and (4) the accused person must have the common intention with others of carrying out the unlawful purpose and he must be participating in the purpose inasmuch as he must be doing an act to further that purpose."
His Honour then went on to apply those principles to the counts in the indictment charging the offence of aggravated burglary and assault occasioning bodily harm. Again, in respect of none of those directions is there any complaint of any error in the way the jury was directed.
About an hour and 20 minutes after the jury retired, a written question was received by the trial Judge in relation to the application of s 8. It said:
"Please clarify -
Do people going to a fight with chair legs and sticks have a common intent with people going to assault with knives and baseball bats."
Miller J answered the question by saying that the jury must first identify whether two or more formed a common intention to prosecute an unlawful purpose, the alleged unlawful purpose being to assault Howson and anyone else at the house at Casserley Avenue. His Honour then focused attention upon the question whether, in relation to persons involved in the prosecution of that purpose, an offence was committed of such a nature that its commission was a probable consequence of the prosecution of the purpose. His Honour said in effect that persons arming themselves with knives, and perhaps a baseball bat, might be found, although it was a question for the jury about which they would have to be satisfied beyond reasonable doubt, to be implicated in such a way that the serious injury or death of a person was a probable consequence of the prosecution of the common intention to assault. A different answer, his Honour suggested, might be returned to that question if people were simply armed with sticks and such people did not know others had knives or a baseball bat. His Honour translated those observations specifically into the context of a killing which the jury thought amounted to murder and then, if they thought the killing amounted to manslaughter, his Honour said:
"But if an unlawful killing without that intent occurred, without an intent to do grievous bodily harm, such people could, if you were satisfied beyond reasonable doubt an unlawful killing occurred in those circumstances, be convicted of manslaughter. If an unlawful killing could not have been foreseen by anybody, because people thought it was just a little stick fight, then they couldn't be convicted of either murder or manslaughter, and that's why I took you back to this point that I did direct you on in relation to the manslaughter issue."
His Honour then repeated his direction in which he had mentioned the four points that would need to be established, to which I have already referred, adding, after the third point that the killing must be of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose, the observation, "So that's where you get the distinction between knives and sticks, perhaps, and baseball bat". His Honour concluded his redirection on that point, clearly tying the question into the consideration whether the acts committed to unlawfully cause the death of Howson were a probable consequence of the prosecution of the commonly held unlawful purpose. As his Honour put it:
"That depends on what people had with them, how they saw it, and objectively you look at it and say: What was the probable consequence? What was likely to happen, the way this was going?"
After ascertaining that no counsel raised any objection to the terms in which the jury had been directed, the trial Judge asked the foreman if the jury thought that their question had been adequately answered. He responded, "The way we see it, you could say that there were two common intentions formed." But his Honour directed the jury away from this line of thought and I think that to do so resulted in a process of considering the requirements of s 8 which was favourable to all accused persons including the applicant. I shall return to this point.
His Honour said that firstly the jury must be satisfied as to who formed the common intention alleged, to prosecute the unlawful purpose of assaulting Howson and anyone else at Casserley Avenue, and he put to the jury that their question really concerned whether the offence committed of the unlawful killing of Howson was a probable consequence of the prosecution of that common unlawful purpose. His Honour repeated his observations upon the evidence in the case, making it clear that the point was not entirely to be dealt with by considering how individual accused persons were armed, but, importantly, what persons in their position would be taken to know might happen.
Counsel then raised and debated at length with the trial Judge the point that is made now in ground 2. The quotations in subpars (a), (b) and (c) of the particulars to the ground adequately reflect the view taken by the trial Judge which he had put to the jury. His Honour declined to give any further direction upon the topic. By then, due to the lateness of the hour, as I understand it arrangements were made for the jury to go to their overnight accommodation and they were to recommence their deliberations on the following morning. When the court resumed, while the jury continued their deliberations, other matters were debated by counsel and particular redirections were sought and, in due course, given by his Honour.
The jury then retired to continue their deliberations and at just after 2.30 pm they returned with a further written question as follows:
"In law, has a person formed a common intent if that person overhears but does not participate in conversation between others as they form common intent."
For myself I would think that that question particularly related to the case in respect of Ms Phillips and his Honour answered that there need not be express agreement but the existence and scope of a common criminal purpose might be deduced from all the proven circumstances. If persons formed a common intention to prosecute an unlawful purpose, then one who did not actually participate in the conversation as the intention was formed, but overheard it and formed an intention to be part of it, would have formed a common intention with the others.
After further submissions were made by counsel, that direction was effectively repeated, the trial Judge making it clear to the jury that simply by overhearing others forming a common intention to prosecute an unlawful purpose, but not participating in the discussion, not forming the intention and not doing anything to involve himself or herself in the prosecution of the unlawful purpose, a person could not be said to be implicated in the formation of the common intention. There had to be something to signify the formation of the common intention. Nothing was said when those directions were given which bears upon the point now raised by ground 2, the direction being given in terms generally consistent with the decision of the High Court in McAuliffe v The Queen (1995) 183 CLR 108.

The law as to s 8

Turning specifically then to the applicant's argument encapsulated in ground 2, I note that a not dissimilar argument was put and rejected by the High Court in McAuliffe, although that case was one which discussed the doctrine of common purpose in the context of the common law. So far as the code jurisdictions are concerned, the decision of the High Court in Barlow to which I have referred, in my opinion exposes the error in the submission made for the applicant, but a good starting point remains the case of Brennan v The King (1936) 55 CLR 253.
Brennan was implicated with two others in a burglary to be committed upon a jewellers shop, it being known that there was a caretaker of the building in which the shop was located. It was the others who were to break and enter the shop while Brennan was to keep watch outside. In the event, the caretaker came upon those in the shop and was subjected to a violent attack which caused his death in the course of the commission of a robbery. The provisions of both s 7 and s 8 were discussed by the Court. After referring to the terms of s 8, Dixon and Evatt JJ said at 265 that Brennan would be guilty of manslaughter under s 8 "only if the plan was of such a nature that the use of enough violence to cause death appeared a probable consequence of carrying it out."
The case of Stuart v The Queen (1974) 134 CLR 426 concerned the Criminal Code of Queensland. The question was whether Stuart was properly convicted of murder in a case where 15 persons were killed in a fire at a nightclub which had been lit by one Finch, an accomplice of Stuart's, in the execution of a plan between the two to extort protection money from nightclub owners. There was evidence to establish that, although Stuart did not light the fire and was not present at the premises when it was lit, he knew it would be lit and that customers were likely to be in the club.
In the course of his judgment Gibbs J at 440 noted that it might be said that the deaths were caused in the prosecution of one unlawful purpose, arson, which itself formed part of a wider purpose, extortion. Relying on the decision in Brennan, his Honour went on at 442 to note that the question whether the killings in circumstances sufficient to constitute murder were a probable consequence of the prosecution of the alleged common purpose was not a question to be determined by a subjective test of what was in the contemplation of the accused, but by the objective test posed by considering whether the nature of the offence in question was such that its commission was a probable consequence of the prosecution of the common unlawful purpose, rather than whether the accused was aware that its commission was a probable consequence. But, his Honour added, the question was not one to be decided "by reference to abstract concepts":
"It is not whether, viewed a priori, murder is a probable consequence of extortion. Under s 8 it is necessary for the jury to consider fully and in detail what was the unlawful purpose and what its prosecution was intended to entail and what was the nature of the actual crime committed, and then to decide whether that crime was of such a nature that its commission was a probable consequence of the prosecution of that purpose." (443)
Menzies and Mason JJ agreed with Gibbs J.
In separate reasons, Jacobs J again focused attention upon what was the actual purpose and in that case, upon the evidence, his Honour said at 449:
"There is therefore no difficulty in incorporating into the unlawful purpose referred to in s 8 the particular act by which the unlawful purpose was intended to be prosecuted. The applicant and Finch had much more than a common intention to prosecute a purpose of extortion; they had the intention to prosecute that purpose by frightening the owners of nightclubs by setting fire to the building in which the nightclub 'Whisky Au‑Go‑Go' was situated. All of those features form part of the unlawful common purpose and there are then the further questions whether on the death of a person caused by means of setting fire to the building in prosecution of that purpose that setting fire was an act of such a nature as to be likely to endanger human life so that the actor Finch was guilty of murder and whether that offence of murder was of such a nature that its commission was a probable consequence of the prosecution of the common purpose as I have described it above."
Once the jury was in a position to make a decision about the precise nature of the common intention to prosecute an unlawful purpose formed between the accused persons, the question whether the crime committed was a probable consequence of the prosecution of that purpose was an objective one. At 454 his Honour said:
"The probable consequence is the consequence which would be apparent to an ordinary reasonable man in the position of the applicant, that is to say, in his state of knowledge. The test is thus an objective one in the sense that it is not a question whether the applicant recognised the probable consequence, but it is an objective test applied to the state of the applicant's knowledge of the facts."
The same view of the law has been taken regularly in this Court. It is implicit in the decision of the court in Mason, in Warren v The Queen [1987] WAR 314 and particularly, and expressly, in Saunders v The Queen [1980] WAR 183 per Burt CJ at 184 and Brinsden J at 189. In that case, Saunders and another jointly planned and carried out the robbery of a post office. During the course of their planning the other offender equipped himself with a knife. In the course of the robbery he stabbed the postmaster and caused his death. That offender was convicted of murder and Saunders was convicted of manslaughter upon the basis that, as Brinsden J put it at 189, on the hypothesis that the other offender was guilty of murder, the question would be whether, "the probable consequence of the common purpose to rob involving the possible use of a knife, at least as a threat, might well be the unlawful killing of the postmaster in circumstances amounting to manslaughter."

In my respectful opinion, Miller J made no error in the terms of which ground 2 complains. In a case where the criminal complicity of an accused person is governed by the application of s 8(1), the starting point for the jury is to find what was the common intention, if any, formed in the manner adumbrated by McAuliffe, as between two or more of the accused persons or two persons, one at least of whom is the accused. Where there are a number of accused persons, as in this case, it may be that the jury will find that there are a number of different common intentions formed between various of them. The jury suggested they might take that view in this case, but his Honour's direction precluded it. It put the matter squarely before the jury upon the basis that they might find only one common intention of the more limited kind relied upon by the Crown, ie, an intention to assault, perhaps seriously assault, Howson and others if such there were who were found at Casserley Avenue.
That was a direction favourable to the accused persons because it limited the nature of the common intention and it did not permit (although it would not I think have been relevant to the case against the applicant) the conclusion that the jury might be satisfied beyond reasonable doubt that, in relation to a number of the accused persons, the common intention to prosecute an unlawful purpose might have included its prosecution with weapons, or even particular types of weapon. Obviously the more closely defined the common intention was in terms of the way in which the crime ultimately committed, the killing of Howson with a particular intention to do grievous bodily harm, was committed, the more likely it would be that the jury could conclude that the commission of that killing in circumstances which would constitute murder would be a probable consequence of the prosecution of the unlawful purpose.
Taking the approach that his Honour did in this case, however, it was right to leave the consideration of the weaponry used to the jury's consideration of what was a probable consequence of the prosecution of the purpose to assault Howson and the others, in which the applicant undoubtedly joined. There was no question that, as required by s 8, he joined in the prosecution of the purpose and there is no question that the prosecution of the unlawful purpose advanced in the course of the trial was causally related to the acts constituting the homicide.
Whether an unlawful homicide was a probable consequence of the prosecution of that purpose was correctly left to the jury as a question to be judged objectively having regard to the circumstances so far as they affected the applicant and his knowledge of what was involved in the prosecution of the unlawful purpose. It seems to me to be clear that the jury understood the process and upon the evidence found, as it was open to them to find, that a probable consequence of the prosecution of the common unlawful purpose to assault Howson was that he might be dealt with so severely as to unlawfully cause his death, but not with the intention to cause him grievous bodily harm.
I would not uphold either ground and would dismiss the application for leave to appeal against conviction.

The appeal against sentence

The applicant was the oldest of the offenders before the court. As at the date of the offence he was 28 years of age. By the time he came to be sentenced he was 29. He was a married man who was described in a pre‑sentence report which was before the court as being without appropriate community support in Australia. He had become involved in drug use and gambling and "led a criminal lifestyle". Indeed he had a substantial criminal history dating back to February 1986 but there were no offences of anything like the seriousness of those of which he was convicted on this occasion.
In passing sentence on 25 May 1999 Miller J related the facts relevant to the applicant in terms which appear to me to be consistent with the jury's verdict. His Honour found that the applicant was aware of the distribution of weapons at Nanovich Way. His Honour accepted that the verdict of the jury indicated that they were not satisfied beyond reasonable doubt that the applicant was himself armed. But it was clear that he recruited those at the pool hall to participate in what was clearly intended to be a serious assault upon Howson and others at Casserley Avenue. His Honour accepted that the applicant did not himself assault either Howson or Morey, although he entered the unit. His Honour observed that the jury rejected the applicant's testimony in his own defence, as clearly they did, and the finding was made that the applicant was an active participant in the plan "and part of what the Crown termed the inner ring of offenders". In other words, his Honour accepted that the applicant was "centrally involved and actively involved in the recruitment of others to participate in the attack."
There was nothing in the applicant's personal circumstances which might have a mitigatory effect of any substance. On the other hand, as his Honour found, the offence of aggravated burglary, involving an attack upon persons in their own home by a number of invaders, and the offence of manslaughter were in my opinion rightly regarded by his Honour as being at the higher end of the range of seriousness in relation to those crimes. Of course, there was in addition the assault occasioning bodily harm.
Miller J said that he took account of the protestations of remorse made by counsel upon the applicant's behalf, but his Honour considered that what he described as "just punishment" was extremely important. As his Honour said:
"One man is dead and one has been seriously injured. Further, there has been an extremely serious case of what is termed home invasion. Those who perpetrated the crimes must be properly punished and by way of a deterrent sentence to deter them and others from the commission of such offences. The offence of aggravated burglary is a prevalent offence in this community. That fact must be recognised in the sentencing process."
I can do no more than express my agreement with those observations.
His Honour regarded the applicant's culpability as being on a par with that of Goodwin. I shall return to the sentence imposed upon that offender. But so far as the applicant is concerned, that view, having regard to Goodwin's plea of guilty and co‑operation, translated in the case of the applicant into sentences of 5 years imprisonment for the aggravated burglary, 7 years imprisonment cumulative for the manslaughter and 2 years imprisonment concurrent for the assault occasioning bodily harm. In the final result the term of imprisonment imposed was one of 12 years dating from the commencement of the applicant's custody, 12 February 1998. A parole eligibility order was made.

The grounds of the application

The application proceeded upon seven grounds of appeal. I need not set them out here. Four of them complain of particular factual findings made by the trial Judge. But in my opinion his Honour's conclusions were fairly open to him and were in no sense inconsistent with the verdicts of the jury. It is complained that his Honour erred in finding that the applicant was part of the inner group of offenders. His Honour referred to what the Crown termed "the inner ring of offenders". But the applicant's involvement was accurately described and in particular no error was made in the description of his involvement in the early planning and in the recruitment of others from the pool hall. This is a ground without substance, as is the complaint that his Honour erred in finding that the applicant was aware of the distribution of various items and weapons prior to the commission of the offences.
His Honour's finding in that regard was in my opinion well open, as was his finding that the applicant was aware of the assault which had been committed. The evidence was that, having been assaulted and wounded in the house, Howson was assaulted when he ran out of the house, fell to the ground near where the applicant was, got up, fell again and attempted to make his escape. It was no doubt perfectly obvious to the applicant what was happening and what had happened. Nor is there any error in his Honour's conclusion that the applicant was a principal offender in the commission of aggravated burglary. His Honour's finding, consistently with the evidence, was that the applicant did enter the house and in that way he was undoubtedly a principal offender and upon that basis was convicted by the jury of aggravated burglary.
The argument principally advanced in support of this application, upon which counsel for the Crown was not called upon, was that the aggregate term of 12 years imprisonment was manifestly excessive having regard to the totality principle, the applicant's antecedents, his remorse and his lesser role, demonstrated by the fact that he himself was not armed and did not assault the victims, facts accepted by the trial Judge. Further, it is argued that the trial Judge imposed upon the applicant a disproportionately severe sentence having regard to the sentences imposed upon co‑offenders and, in particular, upon the co‑offender Goodwin who, it will be recalled, pleaded guilty during the trial and then gave evidence for the Crown. It is suggested that the applicant was in effect penalised for maintaining his innocence and defending the charges preferred.
The last proposition is a suggestion which may be rejected out of hand. Nothing said by the trial Judge gives any support for this proposition. Of course, his Honour was aware that the applicant did not have available to him the expression of timely remorse reflected in a plea of guilty, whether early or late. In a case such as this where there were a large number of offenders and difficulties in establishing with precision the role played by individual accused persons, the entry of pleas of guilty and the provision of co‑operation to the prosecution by giving evidence at the trial is clearly a powerful mitigating factor. An expression of contrition at the time when sentence is to be imposed on the other hand, seems to me to carry little mitigatory weight and is liable to be seen as an expression of self‑interest.
So far as the argument that the aggregate term of 12 years was itself manifestly excessive is concerned, I think it may not be sustained. Miller J was, with respect, undoubtedly right to regard a home invasion of this kind by a large group of persons as being a most serious form of aggravated burglary, particularly when it was for the purpose of violently attacking the occupants. The applicant fully participated in the burglary although he was not armed and did not himself attack the occupants. His implication in the burglary itself merited substantial punishment. The term of 5 years, when the maximum sentence prescribed is one of 20 years imprisonment, cannot be regarded as in any way excessive.
There is of course no tariff for manslaughter and it is not relevant to consider what might be set as a minimum term for an offender convicted of murder: Wicks v The Queen [1989] 3 WAR 372. So much of the assessment of the seriousness of the offence depends upon the particular circumstances. I respectfully agree with Miller J that this was a particularly serious example of the commission of this offence for which, again, a maximum penalty of 20 years imprisonment might be imposed. The applicant was without doubt centrally involved in the course of events which brought about the loss of life. His culpability was somewhat reduced by the fact that he did not himself strike any blows to the deceased, let alone any fatal blow. But nonetheless his central involvement in the implementation of the plan to seriously assault Howson in my opinion establishes his culpability at a substantial level.
Again I am unable to conclude that a term of 7 years imprisonment was manifestly excessive and certainly it could not be argued that a term of 2 years imprisonment for the assault occasioning bodily harm, in which the applicant was implicated in much the same way as in the killing of Howson, was in any way excessive. As opposed to the evaluation of the nature and seriousness of the offences committed, the applicant may only place in the balance his antecedents, and to my mind the trial Judge correctly appreciated that, having regard to the applicant's history and his criminal record, his personal antecedents carried little mitigatory power.
It is not argued that the term imposed for the offence of manslaughter should not have been imposed cumulatively upon the other sentences. Nor I think would any such argument have been sustainable. The killing of Howson represented a separate, quite dreadful outcome of the implementation of the plan which saw this large group of persons invade his home for the purpose of violently attacking him.
Nor am I persuaded that the applicant is assisted by the totality principle, that last look at the sentencing outcome for the court to be assured that the sentences imposed in their aggregate do not produce a punishment by way of a term of imprisonment which is so unduly excessive that it must be reduced, despite the fact that no error can be seen in the sentences which are the component parts of the total term or the way in which they are structured: Jarvis v The Queen (1993) 20 WAR 201. The application of that principle to this case to my mind does not produce the conclusion that the aggregate term must be reduced.
Finally then, there is the question of the disparity which it is argued exists between the term imposed upon the applicant and the way in which co‑offenders were dealt with by the Court. A marked disparity will lead this Court to reduce the term imposed so as to remove a justifiable sense of grievance which might be engendered by disparate sentences imposed upon offenders of a like culpability whose various personal circumstances do not justify any such disparate treatment: Postiglione v The Queen (1997) 189 CLR 295.
The offenders who pleaded guilty to common assault at an early stage can be removed from the equation. That might also be said of Vinny, who pleaded guilty to aggravated burglary shortly before the trial commenced at the beginning of February 1999.
The position of AT merits more serious consideration. It will be recalled that he also pleaded guilty, shortly before the trial commenced, to aggravated burglary, manslaughter and assault occasioning bodily harm. He was, however, on record at a videotaped interview with investigating police outlining his involvement and that of others as he saw it. We were informed that on 12 January 1999, before the trial commenced, he provided a detailed statement to the Crown. He was called and was thought to have given substantially truthful evidence for the prosecution. His behaviour clearly merited a substantial credit for sentencing purposes, although in his involvement in the commission of the offences he might have been thought to be on a par with the applicant.
AT was sentenced to 2 and a half years imprisonment for the aggravated burglary, 3 and a half years imprisonment cumulative for the manslaughter and 1 year imprisonment concurrent for the assault occasioning bodily harm, a 6 year term. Miller J said at the time that, had it not been for his pleas and the co‑operation provided by giving evidence for the prosecution, he would have received precisely the same sentences as those imposed upon the applicant, structured in the same way to result in the 12 year term imposed upon the applicant.
The trial Judge thought that, in his involvement in the commission of the offences, Goodwin was in a not too dissimilar situation from the applicant. Goodwin, it will be recalled, had pleaded guilty one month after the trial commenced to the same three offences as AT and of which the applicant was convicted by the jury. They were late pleas but were accompanied by the provision of a detailed statement outlining his and other offenders' involvement in the incident. Again, his pleas were timely and were accompanied by an offer of co‑operation in giving evidence for the Crown which he made good.
Goodwin was sentenced to 3 years and 7 months imprisonment for the aggravated burglary, 4 years and 2 months imprisonment cumulative for manslaughter and 1 year and 2 months imprisonment concurrent for the assault occasioning bodily harm. That therefore produced an aggregate term of 7 years and 9 months imprisonment. Miller J said that, but for his pleas and his co‑operation, he would have been sentenced to 6 years imprisonment for the aggravated burglary, 7 years imprisonment for the manslaughter and 2 years imprisonment for the assault occasioning bodily harm. Structuring the sentences in the way that his Honour did would have produced in Goodwin's case an aggregate term of 13 years imprisonment, the difference reflecting his somewhat more substantial implication in the burglary.
Greater terms were imposed upon those convicted of murder rather than manslaughter. Le, who was a juvenile when the offence was committed, received 15 years imprisonment, and Rodriguez and McKenney were both sentenced to the mandatory sentence of life imprisonment with non‑parole periods of 12 years and 9 years respectively being fixed.
In my opinion, it is not open to this Court to reduce the term imposed upon the applicant on account of disparity. Indeed, in my respectful opinion, a comparison of the terms imposed reveals no disparity but a careful attention by the trial Judge to the respective roles and situations

for sentencing purposes of the different offenders. In particular, those who pleaded guilty accompanied their pleas by offers of co‑operation which they respectively made good. They received substantial credits but the mitigation to be found in their behaviour was substantial and it was simply mitigation which was not available to the applicant. I would refuse the applicant leave to appeal against the sentences imposed.

OWEN J: I have had the benefit of reading the reasons of the Hon Justice Murray. I am in agreement with those reasons and have nothing further to add.