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The Queen v Kurungaiyi [2005] NTCCA 12

PARTIES: THE QUEEN

v

KURUNGAIYI, Eugenio

TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION: CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO: CA 13 of 2005 (20210644)

DELIVERED: 20 September 2005

HEARING DATES: 26 August 2005

JUDGMENT OF: MARTIN CJ, MILDREN & THOMAS JJ

CATCHWORDS:

CRIMINAL LAW AND PROCEDURE – unlawful entry with circumstances of aggravation – s 213(3) and s 213(4) of Criminal Code 1983 (NT) require intent to commit a crime – whether the crime of aggravated assault against s 188(1) and s 188(2) of the Code can be relied on for the purposes of s 213(3) and s 213(4)

STATUTE – Interpretation – construction of s 213(4), s 188(1) and s 188(2) – ambiguity in Criminal Code

Criminal Code 1983 (NT) s 188(1), s 188(2), s 213, s 213(1), s 213(4), s 414(1)(e)(i)

Pearce and Geddes, Statutory Interpretation in Australia, 5th ed.

Applied
R v Adams (1939) 53 CLR 563

Referred to
Beckwith v R (1976) 12 ALR 333; O’Brien v Fraser (1990) 66 NTR 9; R v De Simoni (1981) 147 CLR 383

Followed
R v Mardday & Ors (1998) 7 NTLR 192

REPRESENTATION:

Counsel:
Appellant: W.J. Karczewski QC
Respondent: I. Read

Solicitors:
Appellant: Office of the Director of Public Prosecutions
Respondent: Northern Territory Legal Aid Commission

Judgment category classification: B
Judgment ID Number: Mil 05355
Number of pages: 12

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Queen v Kurungaiyi [2005] NTCCA 12
No. CA 13 of 2005 (20210644)

BETWEEN:

THE QUEEN
Appellant

AND:

EUGENIO KURUNGAIYI
Respondent

CORAM: MARTIN CJ, MILDREN & THOMAS JJ

REASONS FOR JUDGMENT

(Delivered 20 September 2005)

Martin CJ:

[1] I agree that the appeal should be dismissed for the reasons given by Mildren J.

Mildren J:

[2] This is an appeal by the Crown pursuant to s 414(1)(e)(i) of the Criminal Code.

[3] The respondent was charged with one count of unlawful entry with circumstances of aggravation and with one count of assault with circumstances of aggravation. As originally framed, the indictment dated 31 August 2004 (Indictment No 1) read as follows:

“Count 1

Between 9 May 2002 and 10 May 2002 at Port Keats in the Northern Territory of Australia unlawfully entered a building, namely [at the victim’s address at] Port Keats Community, with intent to commit an offence therein.
AND THAT the unlawful entry involved the following circumstances of aggravation, namely,

(i) that the offence intended to be committed therein was a crime, namely, aggravated assault,

(ii) that the building was a dwelling house, and

(iii) that the building was actually occupied at the time of entry.

Section 213(1) and (3) of the Criminal Code

Count 2

Between 9 May 2002 and 10 May 2002 at Port Keats in the Northern Territory of Australia unlawfully assaulted [the victim].
AND THAT the unlawful assault involved the following circumstances of aggravation, namely,

(i) that [the victim] suffered bodily harm, and

(ii) that [the victim] was unable to defend himself due to the situation.

Section 188(1) & (2)(a) & (d) of the Criminal Code.”

[4] On 6 September 2004, the respondent was arraigned before Bailey J and a jury on these charges, to which he pleaded not guilty. Shortly thereafter the respondent’s counsel drew to the trial judge’s attention problems with the indictment, namely, that it was not possible to allege the circumstance of aggravation that the building was actually occupied if the crime intended to be committed carried a maximum penalty in excess of three years: see s 213(1) and s 213(4) of the Code. For reasons unconnected with this problem, the trial was adjourned until later that day.

[5] Upon resumption, the prosecutor drew to the trial judge’s attention that she wished to amend the indictment to delete the word “aggravated” in the first circumstance of aggravation to count 1 and to delete the third circumstance of aggravation. The prosecutor explained that assault is a simple offence, not a crime and in those circumstances, the circumstance of aggravation that the building was actually occupied did not apply. No objection was taken to those amendments. The learned trial judge suggested that circumstance of aggravation (ii) to count 2 should also be amended to insert the word “effectively” after the word “himself”. The indictment was amended accordingly (Indictment No 2). Shortly after that, certain matters were brought to the Court’s attention that resulted in the jury being discharged. The trial was adjourned until 8 September 2004.

[6] On 8 September 2004, the matter was unable to proceed due to the unavailability of a witness required by the defence, as well as for other reasons. Counsel for the Crown indicated that a fresh indictment had been prepared. The trial judge obviously thought that the indictment would be in the form in which it has been amended (see Tr p16, 8/9/2004). But, in fact, that was not the case. The indictment dated 8 September 2004 (Indictment No 3) was in precisely the same form as it had been prior to the amendment, except that the word “effectively” had been inserted into particular (ii) of count 2.

[7] On 9 May 2005, the trial of the matter was due to proceed before Southwood J and a jury. Before the jury was empanelled, the prosecutor advised the Court that a fresh indictment had been filed (Indictment No 4). This indictment omitted the reference to the building being actually occupied (circumstance of aggravation (iii)) and instead replaced it with a new circumstance of aggravation (iii) that the offence occurred at nighttime.

[8] On the same day, the prosecutor sought to file yet a further indictment (Indictment No 5). This read as follows:

Count 1

Between 9 May 2002 and 10 May 2002 at Port Keats in the Northern Territory of Australia, unlawfully entered a building, namely [at the victim’s address at] Port Keats Community, with intent to commit an offence therein.
AND THAT the unlawful entry involved the following circumstances of aggravation, namely,

(i) that the office intended to be committed therein was a crime, namely, assault, accompanied by the following circumstances of aggravation

(a) that [the victim] would suffer bodily harm;

(b) that [the victim] would be unable to effectively defend himself due to the situation.

(ii) that the building was a dwelling house,

(iii) that the offence occurred at night-time.

Section 213(1), (2), (4) & (5) read with section 188(1) & 2(a) & (d) of the Criminal Code.

Count 2

Between 9 May 2002 and 10 May 2002 at Port Keats in the Northern Territory of Australia, unlawfully assaulted [the victim].
AND THAT the unlawful assault involved the following circumstances of aggravation, namely,

(i) that [the victim] suffered bodily harm,

(ii) that [the victim] was unable to effectively defend himself due to the situation.

Section 188(1) & (2)(a) & (d) of the Criminal Code.

[9] In order to understand properly the significance of what the prosecution sought to achieve, it is necessary to set out s 213 of the Code which provided, at the relevant time, as follows:

213. Unlawful entry of buildings

(1) Any person who unlawfully enters a building with intent to commit any offence therein is guilty of an offence.

(2) If he does so with intent to commit a simple offence therein he is guilty of a simple offence and is liable to imprisonment for one year; if the building is a dwelling-house he is liable to imprisonment for 2 years.

(3) If he does so with intent to commit therein a crime for which the maximum punishment is not greater than 3 years imprisonment, he is guilty of a crime and is liable to imprisonment for 3 years; if the building is a dwelling-house he is liable to imprisonment for 5 years and, if it is actually occupied at the time of his entry, he is liable to imprisonment for 7 years.

(4) If he does so with intent to commit any other crime therein he is guilty of a crime and is liable to imprisonment for 7 years; if the building is dwelling-house he is liable to imprisonment for 10 years.

(5) If he commits an offence hereinbefore defined at night-time he is liable to twice the punishment prescribed for that offence.

(6) If he commits an offence defined by this section when armed with a firearm or any other dangerous or offensive weapon, he is liable to imprisonment for 20 years; if the building is a dwelling-house he is liable to imprisonment for life.

[10] As mentioned before, assault is a simple offence. If it is accompanied by any of the circumstances of aggravation referred to in s 188(2) of the Code, it is a crime. The maximum penalty the accused faced in relation to count 1 when he was arraigned on Indictment No 1 was either 7 or 10 years. When the indictment was first amended (Indictment No 2), the maximum penalty the accused faced became reduced to 2 years. Indictment No 3 increased the maximum penalty to 10 years. When the indictment was replaced by Indictment Nos 4 and 5 the maximum penalty increased to 20 years.

[11] Southwood J, after hearing submissions, indicated that he was not satisfied that the Crown could rely upon assault accompanied by circumstances of aggravation as alleged in Indictment No 5 and he quashed that count. It is from that decision that the Crown now appeals.

Reasons of Southwood J

[12] His Honour held that the intent required to be pleaded in order to comply with s 213 of the Code is an intent to commit an offence for which criminal responsibility is imposed by the Criminal Code or some other law of the Northern Territory. The circumstances of aggravation created by s 188(2) of the Code are not elements of an offence of aggravated assault. They are circumstances of aggravation of the offence of common assault which increase the maximum penalty but are not part of the offence itself. In this respect, his Honour followed the decision of this court in R v Mardday & Ors (1998) 7 NTLR 192 at 197 when this Court held that “bodily harm” is not an event constituting an offence. His Honour also found that the charge in count 1 was duplicitous because the count pleaded two offences one of which is not specified.

Submissions of the appellant

[13] Mr Karczewski QC submitted that neither the decision of Asche CJ in O’Brien v Fraser (1990) 66 NTR 9 nor the decision of this Court in R v Mardday & Ors (supra) which adopted the analysis, reasoning and conclusions in O’Brien v Fraser, compelled the conclusion that a crime constituted by s 188(1) and s 188(2) could not be pleaded and relied upon in terms of s 213(1) and s 213(4). It was submitted that the crime of assault accompanied by a circumstance of aggravation was an offence. It was further submitted that, although the Crown does not have to prove any mental element in order to establish a circumstance of aggravation for the purposes of securing a conviction against s 188(1) and s 188(2), s 213(4) required the Crown to prove that the offender intended the circumstances relied upon if the circumstance was a crime. As this flowed from s 213 and not from s 188, it was not contrary to the decision in Mardday.

[14] Although the Crown could have relied upon s 186 (the crime of unlawfully (i.e. intentionally) causing bodily harm – maximum penalty 5 years) instead of s 188(1) and s 188(2)(a) as the relevant crime for the purposes of s 213(4), not all combinations of assault with aggravating circumstances have another similar option in the code upon which the Crown might be able to rely. For example, assault accompanied by the circumstance that the assault was indecent is not a separate offence. Therefore, if Southwood J were correct, a person who entered a building with intent to indecently assault a woman sleeping inside would be subject to the same maximum penalty as a person who entered a building with intent to assault the occupant. It was submitted that, unless the prosecution could plead that the offender intended to indecently assault the person inside, it could not seek to have the Court impose a greater penalty because of this factual circumstance of aggravation: R v De Simoni (1981) 147 CLR 383.

Submissions of the respondent

[15] Mr Read submitted that s 188(2) does not establish different offences of assault but without the need to prove intent, qualifies the assault, creating an offence of assault with circumstances of aggravation. This aggravates the penalty where particular circumstances prevail. The label of “crime” simply entitles the Crown to proceed by way of indictment: R v Mardday & Ors (supra) at 319-320.

[16] Because there is no separate offence or crime requiring an additional mental element where the facts needed to prove the circumstance of aggravation are relied upon, s 213(4) cannot apply to s 188(1) and s 188(2) because it requires proof of an intent to commit a crime at the time of entry, whereas the crime under s 188(1) and s 188(2) cannot occur until after the time of entry.

Conclusions

[17] I consider that Southwood J was correct. In R v Mardday & Ors (supra) this Court held that the circumstances of aggravation referred to in s 188(2) are not elements of an offence and that the provisions make it plain that an assault, committed with a circumstance of aggravation, is not a separate offence. Consequently, s 31 does not apply to any of the circumstances of aggravation, i.e. the Crown is not required to prove any mental element in respect thereof. Moreover, as Asche CJ pointed out in O’Brien v Fraser (supra) at 12-14, the legislative history and drafting of s 188 enables the Crown to prove more than one circumstance of aggravation without offending the rule against duplicity.

[18] Therefore, s 188(1) creates the offence. If circumstances of aggravation are proved, there is no separate offence, although the offence, formerly a simple offence, is now a crime. However, that does not mean that it is a crime of the type to which s 213 refers. Section 213 is in similar form to s 188 in that the offence is created by s 213(1). Sections 213(2), (3), (4), (5) and (6) do not create separate offences but proof of those matters are circumstances of aggravation which increase the maximum penalty which the Court may impose. There is, however, one important difference in that s 213(2), s 213(3) and s 213(4) all require proof of intent to commit a specific offence, albeit a simple offence, or a crime. The only intent that is needed to be proved where the offence is assault is an intent to apply force of the relevant kind without the victim’s consent. Thus the intent, if proved, is an intent to commit a simple offence, not an intent to commit a crime and this is so whether or not the offence is accompanied by circumstances of aggravation. On this analysis, the Crown cannot rely upon s 188(1) and s 188(2) as constituting a crime for the purposes of s 213(3) or s 213(4) of the Code.

[19] However, the Crown can still charge the offender with the separate offence against s 188(1) and s 188(2) of the Code, where an intent to cause bodily harm (or indecently assault a sleeping female) was carried out, as it has done in this case. This disposes of any problem that the Crown may have had in putting to the Court all of the circumstances of the case. Alternatively, if a would be assailant intended at the time of entry to, let us say, indecently assault a sleeping female occupant, but did not carry out his intent once he entered the building, there is no difficulty, arising from R v De Simoni (supra) in the Crown proving that fact as an aggravating matter. As Gibbs CJ said, at 392, a sentencer may have regard to facts which might ordinarily be described as circumstances of aggravation but which do not fall within the definition of that expression in the Code because they do not render the offender liable to a greater punishment (i.e. a greater maximum penalty). Therefore, in such a case, although the Crown could only charge an offender with an offence against s 213(1) with a circumstance of aggravation referred to in s 213(2), with a resultant maximum penalty of 2 years, the Court could still impose a sentence, within the 2 year maximum, which took into account the offender’s intent.

[20] However, whilst I have reached a conclusion adverse to the appellant, I acknowledge the force of the appellant’s submissions. The question of construction is not easily resolved. It is a well established rule relating to the interpretation of penal statutes that, if after applying the usual rules of construction, no sure conclusion can be reached, the interpretation which favours the liberty of the subject is to be preferred: see R v Adams (1939) 53 CLR 563 at 567-8 (per Rich, Dixon, Evatt and McTiernan JJ) and the oft quoted remarks of Gibbs J in Beckwith v R (1976) 12 ALR 333 at 330: see also the discussion in Pearce and Geddes, Statutory Interpretation in Australia, 5th ed., paras [9.8]-[9.15]. Although, in my opinion, a firm conclusion can be reached, to the extent that there remains doubt, that doubt in this case should be resolved in favour of the respondent.

Duplicity

[21] The conclusion I have reached makes it unnecessary to consider the argument pressed upon us that the charge as framed was duplicitous.

[22] I would dismiss the appeal.

Thomas J:

[23] I have read the draft judgment prepared by Mildren J. I agree that for the reasons states by Mildren J the appeal should be dismissed.
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