R v KAR

Case [2018] QCA 211

SUPREME COURT OF QUEENSLAND

CITATION:

R v KAR & Ors [2018] QCA 211

PARTIES:

R
v
KAR
BDD
KAS
LAM
MCV
NU
SDC
(applicants)

FILE NO/S:

CA No 106 of 2018
CA No 203 of 2017
CA No 59 of 2018
CA No 173 of 2017
CA No 99 of 2018
CA No 176 of 2017
CA No 109 of 2018
CA No 204 of 2017
CA No 82 of 2018
CA No 115 of 2018
CA No 83 of 2018
CA No 111 of 2018
CA No 201 of 2017
DC No 20 of 2017

DIVISION:

Court of Appeal

PROCEEDINGS:

Applications for Extension (Conviction)
Sentence Application
Applications for Extension (Conviction & Sentence)
Applications for Extension (Sentence)

ORIGINATING COURT:

Childrens Court at Townsville:

Date of Conviction: 16 June 2017; Date of Sentence: 10 August 2017 (KAR); Date of Conviction: 5 May 2017; Date of Sentence: 10 July 2017 (BDD); Date of Conviction: 5 May 2017; Date of Sentence: 10 July 2017 (KAS); Date of Conviction: 23 June 2017: Date of Sentence: 11 August 2017 (LAM); Date of Conviction: 20 June 2017; Date of Sentence: 10 August 2017 (MCV); Date of Conviction: 20 June 2017; Date of Sentence: 10 August 2017 (NU); Date of Conviction: 23 June 2017; Date of Sentence: 11 August 2017 (SDC) (Lynham DCJ)

DELIVERED ON:

11 September 2018

DELIVERED AT:

Brisbane

HEARING DATE:

29 May 2018

JUDGES:

Fraser and Philippides JJA and Henry J

ORDERS:

In relation to the applications concerning the convictions in each file:

1.   Grant leave to extend time in which to appeal against conviction.

2.   Dismiss the appeals against conviction.

In relation to the applications for leave to appeal against sentence should in each application be:

1.   Application for leave to appeal sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – PARTICULAR CASES – where each of the seven applicants was convicted on his plea to one count of riot pursuant to s 61 of the Criminal Code (Qld) with two circumstances of aggravation, causing grievous bodily harm and property damage – where the applicants were part of a group of more than 12 assembled persons involved in a riot at a Youth Detention Centre – where during the course of the riot the group damaged air-conditioning units, used metal poles as weapons and retrieved other objects which were used to attack staff members – where various staff members suffered injuries – where one staff member was struck in the head with a rock which resulted in the loss of sight in an eye, which constituted the grievous bodily harm – where each applicant seeks an extension of time to lodge an appeal against conviction for the circumstance of aggravation of causing grievous bodily harm – whether refusing the extension of time to lodge an appeal against conviction would result in a miscarriage of justice – whether the pleas to the circumstance of aggravation of causing grievous bodily harm could be accepted as…

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Details
AGLC
R v KAR [2018] QCA 211
Case
[2018] QCA 211
Decision Date

CaseChat Overview and Summary

This appeal concerns the convictions and sentences of seven applicants who were part of a group involved in a riot at the Cleveland Youth Detention Centre in Townsville. Each applicant pleaded guilty to one count of riot with two circumstances of aggravation: causing grievous bodily harm and property damage. The applicants now seek extensions of time to appeal against their convictions and sentences. The court considered the legal issues surrounding the applicability of certain sections of the Criminal Code (Qld) to the circumstances of aggravation and the fairness of the sentences imposed.

The primary legal issue was whether the applicants could be lawfully convicted of the circumstance of aggravation of causing grievous bodily harm as secondary parties under sections 7 or 8 of the Criminal Code (Qld). The court examined whether a person could be convicted of an aggravated circumstance of an offence if they did not personally commit the act constituting that circumstance. The court also considered whether the term “offence” in the relevant sections of the Code included circumstances of aggravation. The court concluded that the Code’s provisions could apply to circumstances of aggravation, and therefore, the applicants’ pleas could be accepted as a matter of law.

The court further addressed the applicants’ argument that the sentences imposed were manifestly excessive and failed to consider parity among the offenders. The court found that the sentencing judge had appropriately considered the circumstances and that the sentences were not excessive. Therefore, the applications for leave to appeal against sentence were refused.

The court granted the applications for extensions of time to appeal against conviction but dismissed the appeals against conviction. The applications for leave to appeal against sentence were also refused. The court’s decision ensures that the applicants have the opportunity to appeal their convictions, but it confirms that the convictions and sentences were appropriately determined.

Orders

Orders of the court

In relation to the applications concerning the convictions in each file:

1. Grant leave to extend time in which to appeal against conviction.

2. Dismiss the appeals against conviction.

In relation to the applications for leave to appeal against sentence should in each application be:

1. Application for leave to appeal sentence refused.

Background

Background to the litigation

The indictment charged each applicant as a co-offender in the following terms:“that between the ninth day of November, 2016 and the twelfth day of November, 2016 at Townsville in the State of Queensland, FTJ, BNB, PWF, GJS, PT, GLT, PAO, AMJ, BDD, KAS, KAR, LAM, MCV, NK, NU, PAQ, STA and SDC was one of 12 or more persons who were present together and used, and threatened to use, unlawful violence to persons present at the Cleveland Detention Centre, and the property of the Cleveland Detention Centre, for a common purpose and the conduct of them taken together would cause a person in the vicinity to reasonably fear for the person’s personal safety.And caused grievous bodily harm to GRANT RAYMOND OAKLANDS.And property was damaged.”The schedule of facts For present purposes, it is convenient to adopt a brief summary of the schedule of facts, which was set out in similar terms in each of the applicant’s outline of submissions. Each applicant was one of more than 12 defendants charged with riot over an incident that occurred at the Cleveland Youth Detention Centre (the CYDC) in Townsville at about 4.00 pm on 10 November 2016 and ended at about 6.30 am on 11 November 2016. On 10 November, the CYDC rugby league team were scheduled to play against a visiting team. All the rioters were members of the CYDC team. As a result of misbehaviour by two of the CYDC team members, the game was cancelled. The riot began when the rest of the team were informed of this. The rioters began a coordinated protest which lasted until some began surrendering to police from midnight, with the last surrendering at 6.17 am. The group went to the kitchen/laundry building where a large delivery van was parked. They climbed onto the van and the roof of the building where they remained for approximately two hours, singing and chanting. After about half an hour, those on the roof began damaging air conditioning units. In damaging this equipment, they gained access to metal poles which would later be used as weapons. They also retrieved other objects which they used as projectiles. At about 6.30 pm, one of the offenders called out that he wanted to speak to a particular staff member and said that he was coming down. A ladder was obtained. Fifteen of the offenders descended. As the group descended, they began attacking staff with their makeshift weapons. They struck the shields staff were using. At times, they managed to cause injury to staff. The Crown Prosecutor did not identify in the schedule, nor in his submissions, which offenders descended and which remained on the roof or the van. Four offenders were named for particular reasons during this period. The large group then returned to the kitchen and collected the remainder of the offenders from the roof. They continued to attack staff in the same way. Once they had a full complement, they moved back to the oval and visiting area. As they did so, staff attempted to contain them by creating a shield wall. The offenders were charging the wall and hitting the shields with their weapons as well as throwing rocks and other items. The staff retreated towards the visits centre.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As is apparent, the applicants’ submissions were largely underpinned by obiter comments by McMurdo JA in Graham made in a context where full argument had not occurred. I would grant the applications for extension of time, in the absence of detriment to the respondent and given that the issues raised involve matters of importance with significant consequences for the administration of justice and criminal practice and procedure.Conclusion as to the proposed appeals For the reasons explained, Barlow does not, in my respectful opinion, support the view provisionally put forward by McMurdo JA. Nor, for the reasons given, does Barlow raise doubt as to the correctness of the approach of Hanger and Hart JJ in Phillips and Lawrence as to the application of s 7(1)(b)-(d) and s 8 to a circumstance of aggravation. There is no substance accordingly to the contention that s 7(1)(c) and s 8 were not available, as a matter of law, in respect of the circumstance of aggravation of causing grievous bodily harm to which the applicants pleaded guilty. It follows that the arguments that the pleas to the offence of riot with the circumstance of causing grievous bodily harm could not be entered as a matter of law must be rejected. The appeals against conviction are therefore dismissed.Orders I would make the following orders as to each of the applications concerning the convictions:1.Grant leave to extend time in which to appeal against conviction.2.Dismiss the appeals against conviction.Applications to appeal against sentence In relation to the sentence applications, I agree for the reasons given by Henry J that each of the applications should be refused. HENRY J: In respect of the applications for extensions of time in which to appeal against the convictions, this court heard complete argument on the merits of the appeals sought to be advanced. The question of potential substance identified by McMurdo JA in R v Graham[84] as preferably left for determination “in a case where it is fully contested”,[85] was thereby fully contested before us. In light of that background, I agree the applications for extension of time within which to appeal should be granted. As to the disposition of the appeal, I agree with the detailed reasons of Philippides JA on the merits. For those reasons, I agree that the appeals should be dismissed.[84]R v Graham [2017] 1 Qd R 236.[85]Ibid, 248 [58].The Sentence Applications In respect of the applications for leave to appeal sentence the applicants each seek leave to appeal sentences imposed upon them as children for the offence of riot with circumstances of aggravation (occasionally referred to for convenience hereunder as “riot”). It was an offence in which they and many others were co-offenders.Schedule of Applications The applicants’ sentences and appeal grounds are as follows: The applicants were all sentenced under the Youth Justice Act 1992 (Qld) (“the Act”). The particularly pertinent consequences of that Act’s sentencing regime for the sentences presently under consideration were as follows.

Ratio Decidendi

Legal Principle Established

Hart J dealt with the argument as follows:[52]“Mr Nolan’s point here was that the word ‘offence’ each time it occurs in s.8, when it is applied to the robbery charges in this case, means the offence of robbery simpliciter without the circumstances of aggravation, in company with personal violence. The offence of robbery is defined in s.409 as stealing with violence. Section 411 fixes the penalty for robbery as imprisonment with hard labour for fourteen years, then adds further penalties for certain circumstances of aggravation one of which is being in company and another of which is using personal violence. If the offender is found guilty of either of these circumstances of aggravation he is liable to imprisonment with hard labour for life. He says therefore the offence referred to in s.8 is robbery and this does not include the circumstances of aggravation. I do not agree with this argument. Section 2 is as follows — ‘An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence.’ Robbery in company makes a person liable to punishment, robbery in company with personal violence makes him liable to another punishment. I think therefore that each of these is an offence.”[52][1967] Qd R 237 at 284-285.Subsequent judicial consideration of the factor of “a circumstance of aggravation” The judgments of Hanger and Hart JJ in Phillips and Lawrence were each considered by the High Court in Ross v The Queen.[53] The issue before the Court in Ross was whether the Queensland Court of Criminal Appeal had jurisdiction to hear an appeal from a magistrate of the Children’s Court in respect of a summary conviction of aggravated assault under s 344 of the Code. The contention made by the respondent was that s 344 was intended to create a new offence, different from assault, of which the circumstances of aggravation formed an element and in support of that contention reliance was placed on Phillips and Lawrence.[53](1979) 141 CLR 432. Gibbs J (Barwick CJ, Stephen, Mason and Aickin JJ agreeing) appears to have endorsed the availability of s 8 for an offence where a circumstance of aggravation is also charged, although concluding that the offence accompanied by a circumstance of aggravation does not thereby become a separate offence. Gibbs J made the following observations concerning Phillips and Lawrence:[54]“…the appellants had been convicted of a number of offences, including robbery in company with personal violence. The Crown case was that the offences were committed in the prosecution of a common purpose and that s. 8 of the Criminal Code was applicable…It was held, for reasons not relevant to the present case, that there had been a misdirection as to the effect of s. 8. However, two members of the Court of Criminal Appeal dealt with a further argument, viz. that when the prosecution relies on s. 8 an accused person cannot be convicted of robbery with personal violence unless he himself has used personal violence. This argument rested on the contention that robbery with personal violence is not a different offence from robbery, but is the same offence with circumstances of aggravation, so that ‘offence’ in s. 8, when applied to the facts of the case in question, meant simply robbery, and an offender, who did not himself use personal violence, was deemed by s. 8 to be guilty of robbery only…The conclusion which their Honours reached as to the effect of s. 8 may well have been right even if they were wrong in thinking that robbery with personal violence is a different offence from robbery. When persons form a common intention to rob with personal violence, and the other conditions of s. 8 are satisfied, the natural effect of the words of the section would appear to be that the participants in the common purpose are deemed to have committed the offence – robbery – with the circumstances of aggravation which it was part of common purpose to bring about: in other words, they are deemed to have committed robbery with personal violence. Neither the words of s. 2 of the Criminal Code, nor those of the definition of ‘circumstance of aggravation’ in s. 1, appear to me to support the view that an offence committed with circumstances of aggravation is necessarily a different offence from the offence without those circumstances, although s. 575 contemplates that an element of an offence committed with circumstances of aggravation may itself constitute a different offence.”[54](1979) 141 CLR 432 at 438-439.