Ford v R [2020] NSWCCA 99

Ford v R [2020] NSWCCA 99 · Read the judgment on AustLII

Catchwords: Specially aggravated break and enter – whether joint criminal enterprise is required to establish special aggravation

When working through the different types of aggravated and ‘specially’ aggravated break and enter offences, the CCA has determined that the various factors are untethered from one another. The correct approach is to cascade through s112 according to its subsections, at each stage only asking whether that subsection is fulfilled before moving to the next one.

The applicant and another man broke in and assaulted a man in his bedroom. The victim received what were eventually accepted to be ‘wounds’, as a result of being repeatedly hit in the head with a beer bottle and a bedside lamp. There was a judge alone trial, after which the applicant was convicted of specially aggravated break, enter and commit serious indictment offence (Crimes Act 1900 (NSW) s112(3)). The applicant accepted that he broke, entered, and committed an assault occasioning actual bodily harm (that is, accepted he was guilty of the simpliciter offence), but disputed that he was guilty of the ‘specially’ aggravated form of the offence – which would require, amongst other things, proof of wounding or grievous bodily harm to have been inflicted, or a ‘dangerous weapon’ to have been used. In this case there were two options: either the appellant was the person who inflicted the wound (which was what the trial judge found), or on the Crown’s alternative case he was part of a joint criminal enterprise in the sense of being part of a common purpose or shared intention of the two offenders.

At the risk of ruining the suspense, unlike the trial judge, the CCA (Brereton JA, with whom Bellew and Lonergan JJ agreed) was not satisfied that the appellant was the primary assailant (at [78]-[80]). But it also found that it wasn’t necessary to get into the weeds about extended joint criminal enterprise: the offenders might not have agreed to wound the victim, but they intended to inflict actual bodily harm on him and a bottle was taken to be used as a weapon for that purpose, so they must have contemplated wounding as a possible incident of that agreement (at [98]-[99]). As a result, the conviction appeal was dismissed, but the applicant got some time shaved off his sentence because he had been found guilty on a less serious basis.

But in the course of that determination an interesting question arose: Does the offence in s112(3) require the ‘special’ aggravation (in this case, wounding) to be connected to the aggravating factor of ‘in company’? Does there have to be a joint criminal enterprise to wound, for example? Here, the applicant argued that there was not a common purpose to wound, and so it wasn’t open to find that the applicant was ‘in company’ for the purposes of the specially aggravated offence.

The CCA found that the applicant’s argument does not have regard to the structure of s112, and how the circumstances of aggravation fit within it (at [46]). The structure of s112 is cascading. The first question is: is the accused guilty of the simple offence? If so (and here the applicant accepted that he was), the second question is whether there are any circumstances of aggravation for the purposes of subs (2) – such as whether the simple offence was committed in company. If – and only if – the second question is answered in the affirmative, does the third question arise: are there circumstances of special aggravation? The only question at this third stage is whether there was a circumstance of special aggravation, and there is no requirement that any common purpose is established (at [49]-[51]).

The decision also included an expedition into the depths of authorities around extended joint criminal enterprise (at [82]-[97]). The detail is too complicated to replicate here and as mentioned wasn’t necessary to decide the case. It suffices to say that the Court identified what it thinks might be a rift between two High Court authorities on how the doctrine of extended joint criminal enterprise applies to offences like this one, and decided that it prefers Sio v The Queen (2016) 259 CLR 47 over Ryan v The Queen (1967) 121 CLR 205.