Reported Decision : 151 A Crim R 597 New South Wales Court of Criminal Appeal CITATION: Regina v Anthony O'Donoghue [2005] NSWCCA 62 HEARING DATE(S): 25 February 2005 JUDGMENT DATE: 25 February 2005 JUDGMENT OF: Spigelman CJ at 27,29; Wood CJ at CL at 28; Barr J at 1 DECISION: Appeal dismissed. CATCHWORDS: Criminal law - aggravated breaking and entering and committing a serious indictable offence - whether use of corporal violence capable of aggravating when the serious indictable offence is assault occasioning actual bodily harm. LEGISLATION CITED: Crimes Act 1900 s112 Pearce v The Queen (1998) 194 CLR 610 The Queen v De Simoni (1980-1981) 147 CLR 383 CASES CITED: R v Sorlie (1925) 25 SR (NSW) 532 Fitzgerald v Kennard (1995) 38 NSWLR 184 PARTIES: Regina, Anthony O'Donoghue FILE NUMBER(S): CCA 3010/2004 A Francis COUNSEL: P Barrett Legal Aid Commission SOLICITORS: S Kavanagh LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/21/0204 LOWER COURT JUDICIAL OFFICER: Payne DCJ - 8 - IN THE COURT OF CRIMINAL APPEAL 2004/3010 SPIGELMAN CJ WOOD CJ AT CL BARR J 25 FEBRUARY 2005 REGINA v ANTHONY O'DONOGHUE Judgment 1 BARR J: The appellant, Anthony O'Donoghue, appeals against a conviction entered in the District Court. He stood trial before a jury on two charges, namely - 1. On 22 March 2003 at Telopea in the State of New South Wales, he did break and enter a dwelling house at 3/6 Sturt Street and commit a serious indictable offence therein, namely, did assault Robbie Tenkate, occasioning to him actual bodily harm in circumstances of aggravation, namely, that corporal violence was used on Robbie Tenkate. (2) On 22 March 2003 at Telopea in the State of New South Wales, did assault Denise Grey occasioning to her actual bodily harm. 2 The jury found him guilty of both offences and sentence was passed. THE FACTS 3 Mrs Denise Grey lived with her adult son in a ground floor unit. She knew the appellant, having met him two years previously. On Sunday 22 March 2003 she and her son were at home. Also staying with her was a friend of Mrs Grey, Mr Tenkate. During the evening the appellant went to the unit and banged loudly on the front door, demanding to be let in. As Mrs Grey moved towards the front door it flew open and the appellant entered accompanied by a large dog. He was angry. Apparently he had been evicted from his premises and asked Mrs Grey questions which implied that he was blaming her. He picked up a scooter and threw it at her. It missed her but hit the wall and the handlebars broke off. Mr Tenkate was asleep in an adjoining room at the time. The commotion woke him and he came into the room where the appellant and Mrs Grey were. When the appellant saw him he picked up the handlebars and ran at him. Mr Tenkate tried to fend off the appellant and get away from him, but the appellant pursued him through the house and hit him with the handlebars, bruising his forehead and his left wrist and cutting his left hand. 4 It is unnecessary to deal with the details of the attack on Mrs Grey. 5 The charge of first count was laid under s112 of The Crimes Act which relevantly provides as follows - 112 Breaking etc into any house etc and committing serious indictable offence (1) Whosoever: breaks and enters any dwelling-house, or any building within the curtilage of any dwelling-house and occupied therewith but not being part thereof, or any school-house, shop, warehouse, or counting-house, office, store, garage, pavilion, factory, or workshop, or any building belonging to His Majesty or to any Government department, or to any municipal or other public authority, and commits any serious indictable offence therein, or being in any dwelling-house, or any such building as aforesaid, or any school-house, shop, warehouse, or counting-house, office, store, garage, pavilion, factory or workshop, or any building belonging to His Majesty or to any Government department, or to any municipal or other public authority, commits any serious indictable offence therein and breaks out of the same, shall be liable to imprisonment for fourteen years. (2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years. 6 By s105A, "circumstances of aggravation" means circumstances involving any one or more of a number of matters, including that the alleged offender uses corporal violence on any person. 7 The Crown undertook to prove that the appellant had broken and entered Mrs Grey's dwelling-house, that he had committed therein the serious indictable offence of assaulting Mr Tenkate occasioning him actual bodily harm and that he had done so in circumstances of aggravation. Those circumstances, the Crown said, were constituted by his using corporal violence on Mr Tenkate. 8 In summing up, her Honour said this to the jury: Now ladies and gentlemen of the jury, I will be going to the evidence the Crown relies upon in relation to count one but to bring in a finding of guilt, you would have to be satisfied beyond reasonable doubt in this case that Mr O'Donoghue used a T-bar and injured Mr Tenkate. That is to say, that by the use of the T-bar, striking or hitting by way of the T-bar which would, if you accepted it, be corporal violence and that, as a result of that use, he sustained injury or bruising to his forehead. There was also the contusion to the left wrist and also Mr Tenkate said (and I will go to the medical evidence specifically in due course) that there was an injury sustained to his left hand when it seems he has put his hand up in a defensive action and was struck with the T-bar. That is what you would have to be satisfied of beyond reasonable doubt in respect of the assault of Robbie Tenkate occasioning to him actual bodily harm in circumstances of aggravation. Any of the other behaviour would not suffice. Anything, even if you accepted beyond reasonable doubt that the dog bit Mr Tenkate, either in the legs or of course as Mr Donoghue says on the hand, that is not sufficient. That is not the behaviour relied on by the Crown. THE APPEAL 9 There are two grounds of appeal which, because they raise the same question, may be dealt with together. They are - (1) The evidence relied upon in the Crown case was not capable of supporting a conviction in respect of an offence contrary to s112(2) Crimes Act 1900. (2) The Crown was not entitled to rely upon the same Act as constituting a serious indictable offence and a circumstance of aggravation. 10 It is submitted on behalf of the appellant that the evidence did not support the conviction on the first count because the Crown relied on the same Act, namely, the striking with the handlebars, in order to prove the two elements of the charge, the commission of a serious indictable offence and the use of corporal violence. It is submitted that because the serious indictable offence involved no more than the occasioning of actual bodily harm, the result was that the appellant had been punished twice for the one act. 11 The attention of the Court was drawn to a passage in the judgment of McHugh, Hayne and Callinan JJ in Pearce v The Queen (1998) 72 ALJR 1416 at 614 - The expression "double jeopardy" is not always used with a single meaning. Sometimes it is used to refer to the pleas in bar of autrefois acquit and autrefois convict; sometimes it is used to encompass what is said to be a wider principle that no one should be "punished again for the same matter". Further, "double jeopardy" is an expression that is employed in relation to several different stages of the criminal justice process: prosecution, conviction and punishment. If there is a single rationale for the rule or rules that are described as the rule against double jeopardy, it is that described by Black J in Green v United States: "The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offence, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. 12 It is worth mentioning that their Honours were not concerned with any problem of the kind that is said to arise in this case, but with the sentencing of an accused person for a number of different offences which had common elements. Such a state of affairs would have arisen in the present case if, instead of the second count, the appellant had been convicted of breaking and entering Mrs Grey's dwelling house and committing therein a serious indictable offence, namely assaulting Mrs Grey and occasioning her actual bodily harm. In that case, it would have been necessary for the sentencing Judge to acknowledge that the one act of breaking and entering the dwelling house had given rise to two offences and to make appropriate allowance in the sentences to be imposed, whether by reducing either of them or by ordering a period of concurrency. Otherwise, the appellant would have been punished twice for the act of breaking and entering the dwelling-house. 13 However, it is important to note that what the justices in Pearce v The Queen did not say was that a single act cannot be a component of more than one offence or that a single act may constitute more than one component of a single offence. 14 It seems to me that more guidance may be obtained from The Queen v De Simoni (1980-1981) 147 CLR 383. The respondent was convicted under the provisions of the Western Australian Criminal code. S391 of that code provided that - Any person who steals anything and at or immediately before or immediately after the time of stealing it uses or threatens to use actual violence to any person or property in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen is said to be guilty of robbery. 15 Section 393 provided: Any person who commits the crime of robbery is liable to imprisonment with hard labour for fourteen years. If the offender is armed with any dangerous or offensive weapon or instrument or is in company with one or more person or persons or if or at immediately before or immediately after the time of the robbery he wounds or uses any other personal violence to any person he is liable to imprisonment with hard labour for life with or without whipping. 16 Section 1(1) of the code provided that unless the context otherwise indicated - The term "circumstance of aggravation" means and includes any circumstance by reason whereof an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance. 17 S582 provided - If any circumstance of aggravation is intended to be relied upon it must be charged in the indictment. 18 The indictment upon which the respondent had been convicted had charged him with using actual violence towards his victim but not that he wounded his victim. The sentencing judge was satisfied that the respondent had wounded his victim and sentenced him to a longer term that he otherwise would because of the wounding. The sentence was held bad and set aside by the full Court of the Supreme Court of Western Australia because the respondent had been sentenced for a wounding with which he had not been charged. 19 In the High Court of Australia it was held by Gibbs CJ, with whom Mason and Murphy JJ agreed, that there was no difference between using actual violence under s391 and using personal violence under s393. So when the element of actual violence required by s391 was satisfied by the use of violence, that element of the simple offence would also be a circumstance of aggravation for the purposes of s393: see his Honour's judgment at pages 393-394. 20 There is, in my opinion, no significant difference between the facts of De Simoni and those of the present case. In each case, a single act was held sufficient at once to constitute an element of the simple offence and the circumstance which aggravated it exposing the offender to the risk of a higher sentence. 21 A further example will illustrate the rightness of the conviction appealed from. The offence created by s61L Crimes Act is commonly called indecent assault, but that name disguises the true nature of the offence, which is constituted by two elements, namely an assault and a contemporaneous act of indecency. It is well established that the one act of the accused may constitute both the assault and the act of indecency; R v Sorlie (1925) 25SR (NSW) 532, expressly approved in Fitzgerald v Kennard (1995) 38 NSWLR 184 in the judgments of Kirby A-CJ at 186-187, Sheller JA at 191-192 and Cole JA at 202. 22 In my opinion, the appellant's act of attacking Mr Tenkate with the scooter handlebars and injuring him was sufficient to constitute both a serious indictable offence, namely an assault occasioning actual bodily harm and the circumstance of aggravation, namely the use by the appellant of corporal violence on a person. 23 There is another argument, which I think is really a manifestation of the first, that because it has a component which, however described, amounts to corporal violence, the simple offence created by subs (1) cannot be aggravated by the addition of the element of corporal violence created by subs (2). The appellant was punished once for corporal violence under subs (1) and again for corporal violence under subs (2). 24 I think that the submission mistakes the nature of the relevant element in subs (1), which is not assaulting or doing bodily harm or corporal violence. All subs (1) requires is proof of an act which constitutes a serious indictable offence. The reference in the charge to the occasioning of actual bodily harm stated a particular of the element of the offence, not the element itself. 25 The analogy of an assault with an act of indecency is again instructive. All that that offence requires is an assault which has a particular quality, namely that of being an indecent act. All that the aggravated offence of which the appellant was convicted requires is corporal violence which has a particular quality, namely that of constituting a serious indictable offence. 26 In my opinion, the argument should be rejected. I would dismiss the appeal. 27 SPIGELMAN CJ: I agree. 28 WOOD CJ AT CL: I also agree. 29 SPIGELMAN CJ: The order of the Court is that the appeal is dismissed. ************ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.