McIlwraith v R

1. [1]

   BASTEN JA: On the afternoon of Wednesday, 18 June 2014, the applicant entered three properties in Baltic Street, Fairlight. He was arrested and charged with a number of offences alleging breaking and entering and stealing property.

2. [2]

   On 4 August 2015 the Director of Public Prosecutions presented an indictment in the District Court containing eight counts. The applicant entered a plea of guilty to one (count 5) and pleas of not guilty in respect of the other counts. He elected to be tried by a judge alone. The trial proceeded before Baly DCJ, sitting without a jury. At some stage during the trial there was a “directed verdict” in favour of the applicant on count 4. By judgment delivered on 11 August 2015 the trial judge determined the remaining counts, acquitting the applicant on counts 1, 2, 3 and 8 and convicting him on count 7.

3. [3]

   On 20 November 2015 the applicant was sentenced with respect to counts 5 and 7. In relation to count 7, the judge took into account two offences on a Form 1, namely resisting a police officer in the execution of his duty and assaulting a police officer in the execution of his duty. (The offences appear to have occurred at the time the applicant was arrested on 18 June 2014.)

4. [4]

   With respect to count 5, the applicant was sentenced to 22 months imprisonment to date from 18 June 2014 and to expire on 17 April 2016. The sentence included a non-parole period of 14 months, which expired on 17 August 2015. With respect to count 7, the applicant was sentenced to a term of 4 years imprisonment, also to date from 18 June 2014 and expiring on 17 June 2018 with a non-parole period of 3 years expiring on 17 June 2017. The first sentence was wholly concurrent with, and consumed within, the longer second sentence.

5. [5]

   On 27 September 2016, that is, after the expiration of the total sentence for the first offence and three-quarters of the way through his non-parole period for the second offence, the applicant filed a notice of appeal with respect to his conviction on count 7 and his sentence for that offence.

6. [6]

   The notice of appeal identified one ground with respect to the conviction, namely that the trial judge erred in finding that the offence of intimidation under s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (“Personal Violence Act”) is not an offence of “specific intent” (ground 1). That being an allegation with respect to an error of law, the applicant is entitled to appeal as of right: Criminal Appeal Act 1912 (NSW), s 5(1)(a).

7. [7]

   The finding that count 7 did not involve an offence of specific intent meant that the trial judge did not consider the applicant’s drug-affected state in determining his guilt. However, the judge also dealt with the offence on the basis that it was one of specific intent and that, accordingly, she was required to consider his mental state in the light of his intoxication. In the course of argument on the appeal, the Court noted that the finding on the alternative basis may have rendered any error with respect to ground 1 immaterial. At that point, counsel for the applicant sought to challenge the factual findings which supported that conclusion. No notice had been given of any such challenge prior to the hearing. Leave to amend the notice of appeal was granted and the argument proceeded without opposition from the respondent.

8. [8]

   The new ground added by way of an amended notice of appeal filed (with leave) after the hearing was as follows:

9. [9]

   The appeal with respect to the sentence is also based on one ground, namely an alleged error in failing to find “special circumstances” for the purposes of s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (ground 2). The effect of such a finding would have been to permit the sentencing judge to vary the relationship between the non-parole period and the balance of term, permitting a proportion exceeding one-third of the non-parole period to be the balance of the sentence, during which the applicant would be eligible for release on parole.

(a) legal principles

1. [10]

   Count 7 contained a charge in the following terms, namely that the applicant,

2. [11]

   The offence was identified as one under s 112(2) of the Crimes Act 1900 (NSW). Section 112 relevantly provided as follows:

3. [12]

   The serious indictable offence referred to in count 7 was an offence under s 13(1) of the Personal Violence Act, which relevantly provides:

4. [13]

   Part 11A of the Crimes Act codifies the law with respect to the relevance of intoxication in determining the mental element of criminal responsibility. Section 428A provides a number of definitions relevant to matters dealt with in Pt 11A. Importantly, the Part distinguishes between offences of specific intent and other offences. Section 428B contains the following definition:

5. [14]

   The table to s 428B contains two parts: part (a) identifies and lists offences of specific intent, while part (b) lists offences “to the extent that an element of the offence requires a person to intend to cause the specific result necessary for the offence”. The distinction appears to be to distinguish between offences which always involve a specific intent, and those which may involve a specific intent, but may in some circumstances be satisfied otherwise.

6. [15]

   Provisions within that Part draw a distinction between self-induced intoxication (that is, not an involuntary state of intoxication) and other forms of intoxication. The following provisions are relevant for present purposes:

7. [16]

   Two points should be made in respect of the operation of s 428C. First, the trial judge did not find (nor was it suggested that she should have found) that the exception in s 428C(2) applied in the present case; accordingly, the judge was entitled to take into account evidence that the applicant was intoxicated in determining whether he had the intention to cause the specific result necessary for an offence of specific intent. Secondly, s 428C merely renders evidence of intoxication relevant and admissible for the identified purpose; it does not require any particular finding. In other words, classification of an offence as one of specific intent and acceptance that the accused was intoxicated at the time of committing the relevant conduct does not require the formation of a reasonable doubt, nor acquittal on any other basis.

(b) factual circumstances

1. [17]

   Counts 1 and 2 related to stealing from a property. The conduct the subject of both counts was alleged to have occurred on the same day and, given the sequence of events, before the conduct the subject of counts 5 and 7.

2. [18]

   The evidence accepted by the sentencing judge was that Mr Zervas (who lived at 8 Baltic Street) came home shortly after 2.30pm on the day in question. He intended to collect some sporting equipment for his children and was walking down the side of the house when he noted that a panel had been dislodged from his shed and that the shed was in a mess. The applicant appeared from an alcove under the house wearing what was described as a “blue ski suit” belonging to Mr Zervas’ father-in-law and usually stored at his premises. The applicant was also wearing a beanie and a dark shirt. He had a tomahawk in his hand which he lifted and approached Mr Zervas. Mr Zervas ran down the side passage and into the house next door (10 Baltic Street); the applicant followed him. Mr Zervas entered the laundry, shutting the external door behind him. From the laundry he entered the main part of the house where he encountered the occupant, Ms Hodgson-Croker, whom he asked to call the police. A few seconds later he heard glass smash and someone enter the laundry. He held onto the door handle of the interior door between the laundry and the house, which he felt being pressed down as if someone were trying to open the door.

3. [19]

   The encounter at Mr Zervas’ home was the conduct the subject of count 5, namely that the applicant possessed an offensive weapon, a tomahawk, and intimidated Mr Zervas with intent to cause him to fear physical harm. To that conduct the applicant had entered a plea of guilty. The conduct the subject of count 7 was breaking and entering the next door premises through the laundry and intimidating Mr Zervas there, with the intention of causing him to fear physical harm.

4. [20]

   The applicant was then seen to leave the premises and return to Mr Zervas’ house which he entered by breaking in through French doors. Shortly thereafter the police arrived and he was discovered lying partly under a bed and a doona in the main bedroom.

(c) reasoning of trial judge

1. [21]

   To explain the reasoning of the trial judge, it is necessary to refer to the other counts on the indictment. Each of counts 1, 2, 3 and 8 involved theft. The judge accepted that offences involving stealing required an intention to permanently deprive the owner of his or her property and were therefore offences of “specific intent”. There was evidence, both of the applicant’s conduct on the afternoon in question and his own statement that he was, at the time of the alleged offending, under the influence of a drug, namely methylamphetamine or “ice”. He was therefore intoxicated within the meaning of “intoxication” in s 428A of the Crimes Act.

2. [22]

   Section 428B, as well as defining an “offence of specific intent”, [1] contains a table listing “Examples of offences of specific intent.” While s 112 of the Crimes Act was not contained in the list of offences in the table, that was of limited significance, because the table expressly identified itself as containing only “examples”. Furthermore, s 112 was by no means an obvious example to include, because it refers to breaking and entering premises and committing a serious indictable offence therein. It is the particular serious indictable offence which must be an offence of specific intent. Section 13 of the Personal Violence Act might have been included, but is not because the two sub-headings in the table both refer to offences under the Crimes Act. Neither, it should be added, was its predecessor, s 562AB of the Crimes Act, so listed. [2]

3. [23]

   The trial judge was satisfied that the accused was affected by a substance which was probably methylamphetamine. However, it was largely the “odd and even bizarre aspects” of his conduct which led her to entertain a reasonable doubt as to whether he had an intention to permanently deprive persons of their property. [3]

4. [24]

   Turning to count 7, the judge (a) put to one side the accused’s state of intoxication, (b) took into account the admission made by the accused in relation to his state of mind for the purposes of count 5, and continued: [4]

5. [25]

   The trial judge then considered other elements of the offence, concluding first that the accused was armed with a tomahawk when he broke into the neighbour’s dwelling house. In considering that issue, the judge rejected the evidence of the accused that he had put the tomahawk down before entering the laundry and had picked it up again after leaving the laundry. (There was no doubt that he had taken the tomahawk with him when he later entered Mr Zervas’ house, it being found near him in the main bedroom when he was arrested.) The judge then made findings with respect to other elements, namely that he broke into the laundry and entered the dwelling house. [5] The next finding was that Mr Zervas was intimidated by the actions of the accused. The judge relied on Mr Zervas’ evidence, the evidence of the neighbour, Ms Hodgson-Croker, that he had “an ashen grey face”, and the evidence of another woman in Ms Hodgson-Croker’s house who heard him call out “that he was being chased by a man with an axe”, and who then “saw him holding onto the door handle.” [6]

6. [26]

   The critical passage in the reasoning as to the state of mind of the accused was as follows: [7]

7. [27]

   Subject to one matter, the reasoning is self-explanatory. The reference to the accused’s contradictory evidence in relation to the occupants of the house is explained in a passage rejecting the evidence of the accused that he did not carry the axe (or tomahawk) into the laundry: [8]

8. [28]

   After concluding that count 7 did not involve an offence of specific intent, thus not permitting her to take account of the fact that the accused was intoxicated, the judge concluded that if she were wrong in that regard her finding would nevertheless be the same, namely that she was satisfied beyond reasonable doubt that the applicant did intend to cause Mr Zervas to fear physical harm.

(d) appeal ground 1

1. [29]

   Although the trial judge was not taken to any case law with respect to the identification of offences carrying an element of “specific intent”, the statutory definition in s 428B is clear in its terms. Without regard to authority, there was good reason for the judge to accept that the elements sufficient for proof of specific intention for the purpose of s 13(3) of the Personal Violence Act did not engage the definition of an offence of specific intent.

2. [30]

   There is no doubt that s 13(1), read in isolation, would constitute an offence of specific intent, being an intention to cause the other person to fear physical or mental harm. However, subs (1) cannot be read in isolation from subs (3). Thus it is sufficient to satisfy the specific intent identified in subs (1) if the accused “knows” that his or her conduct is “likely” to cause fear in the other person. The judge accepted that knowledge of a likely result is a lesser requirement than an intent to cause a specific result. [9] Therefore, the trial judge’s primary reasoning did not take into account the state of intoxication on the part of the applicant.

3. [31]

   Ordinary linguistic usage recognises a distinction between intention and knowledge. The same is true when the language is used in the context of the criminal law. Knowledge that a particular consequence is likely is distinct from an intention to cause that consequence. The language of subs (3) reflects the general law notion of reckless indifference, which is understood to be different from intention. The Director submitted that subs (3) did not engage the definition in s 428B.

4. [32]

   There is, however, an alternative reading. The offence created by s 13(1) is clearly an offence of specific intent; s 13(3) expands the scope of that offence in a manner analogous to that by which the mental element in murder can be satisfied by reckless indifference to human life. Even where the prosecution relies upon s 13(3), what has to be proved is a specific state of mind of the accused; that exercise is the same as that required to prove intent. Intoxication will be relevant to proof of knowledge in the same way as it is with respect to proof of intent. Accordingly, a purposive construction would support the conclusion that s 13(1) remains an offence of specific intent, despite the fact that intent can be proved by proof of particular knowledge.

5. [33]

   There is support for this approach in the history of Part 11A of the Crimes Act, discussed by Wood CJ at CL in R v Grant [10] and, more recently, by Macfarlan JA in Harkins v R. [11] The intention behind Part 11A was to adopt the approach accepted by the House of Lords in Regina v Majewski, [12] an approach which had been rejected by the High Court in The Queen v O’Connor. [13] Thus, in explaining the role of intoxication, Lord Simon in Majewski stated: [14]

6. [34]

   In Regina v Stones, [15] this Court, in considering intoxication in its application to murder involving reckless indifference to human life, said that, “as it [reckless indifference] involves a state of mind, it [intoxication] becomes relevant in the same way as in the specific intent cases.” The Court then noted the practical consequences of drawing a distinction between cases of specific intent and those involving reckless indifference, in directing a jury.

7. [35]

   In Grant, Wood CJ at CL undertook a comprehensive analysis of the operation of Pt 11A in its application to murder. To the extent that murder involves an intention to kill or to inflict grievous bodily harm, it is clearly an offence of specific intent. However, he held that the same cannot be said of homicide resulting from reckless indifference as to the consequences for human life; in that case “it is strictly not a crime of specific intent”. [16] After citing a number of authorities, including Brennan J in He Kaw Teh v The Queen, [17] Wood CJ at CL continued: [18]

8. [36]

   Nevertheless, Wood CJ at CL concluded that Part 11A should not be given a differential operation in relation to murder depending on the mental element involved, relying on, (i) the purposive rule of interpretation embodied in s 33 of the Interpretation Act 1987 (NSW); [19] (ii) the presumption that criminal legislation be given an interpretation beneficial to the liberty of the individual in the case of ambiguity; [20] (iii) the historical context, including the intention to give effect to the reasoning in Majewski; [21] (iv) the potential complexity of directions to a jury where a case of murder is left upon the separate bases of specific intent and reckless indifference [22] and (v) the specific reference to the offence of murder in part (a) of the table to s 428B(2). The last point depends on part (a) identifying offences of which specific intent is a necessary element, by contrast with part (b) listing offences “to the extent that an element of the offence requires a person to intend to cause the specific result”.

9. [37]

   Some of these considerations are clearly specific to the offence of murder, others are not. Generally, it is necessary to apply caution in comparing the concepts of “intention”, “recklessness” and “knowledge” in different statutory contexts. For example, s 4A of the Crimes Act states that “[f]or the purposes of this Act, if an element of an offence is recklessness, that element may also be established by proof of intention or knowledge.” It is not necessary to explore the significance of this provision as it does not apply to the Personal Violence Act, which, in any event, did not use the term “recklessness”. Further, s 4A post-dated the judgment in Grant. [23]

10. [38]

    Adopting the reasoning in Stones and Grant, the particular form of the mental element identified in s 13(3), although not in truth a form of intention, is a relevant state of mind having a specific or particular focus and is thus distinguishable from the general intention required in relation to the conduct constituting an offence (which is not subject to considerations based on intoxication). Because subs (3) uses language associated with reckless indifference, it is closely analogous to the particular state of mind necessary for specific intent.

11. [39]

    The provisions of Part 11A dealing with intoxication, understood in their conceptual context within the criminal law, are concerned with circumstances in which a particular state of mind is required and can be characterised as wrongful. A particular state of mind can involve a specific intent to achieve an identified consequence (as in s 13(1)) or, (as in s 13(3)), matters of which the accused is aware (knowledge) and consequences which he or she knows to be likely. It is therefore coherent to treat as an offence of specific intent, one which can be proved by knowledge of specific matters in the same way as one where the state of mind involves a specific intention, and thus subject to the provisions of Part 11A. The underlying distinction, which is preserved by this approach, is between refusing to allow intoxication to remove what is described as “general intent”, and allowing it to be taken into account in considering a specific intent. This is an application of the principles of interpretation identified at (i) and (ii) in [36] above.

12. [40]

    The practical considerations relied on in Grant also support this conclusion. Subject to one further issue, the complexity of jury directions if a charge could be based on specific intention (regarding consideration of intoxication) and knowledge of likely consequences (not permitting such consideration) is a significant reason to doubt that the legislation was intended to be so understood. Although neither party referred to Grant, either before the trial judge or in this Court, that case supports the applicant’s submissions as to error. If murder, which can be based on reckless indifference, is always to be treated as an offence of specific intent, the legislative scheme should be understood as including an offence under s 13, whether based on a specific intention or a form of reckless indifference. The statute (s 428B) could not properly be read as encompassing reckless indifference in relation to one offence of specific intent, but not another, absent a justification which does not appear in the present case.

13. [41]

    The further issue referred to in the preceding paragraph in relation to the potential complexity of jury directions is whether s 13(3) may be a sufficient, but not a necessary, basis for establishing intention under s 13(1). That should follow because subs (3) adopts the structure “a person intends … if he or she knows …”. Had it been intended to provide an exclusive method of proof of intention, one would expect the drafter to have used the expression “if and only if”, rather than merely “if”. On the other hand, in the previous subsection, subs (2), in providing an expansive reading of “causing a person to fear physical or mental harm”, the drafter used the term “includes”, making it clear that what followed was not an exhaustive provision, although that might, in any event, have been clear from the subject matter. Such language was eschewed in s 13(3). However, the better view is that subs (3) is expansive and not exhaustive: in other words, the offence can be established by proving an intention to cause a person to fear physical or mental harm, without reference to subs (3). This is in part because of the effect of reckless indifference in determining criminal responsibility (for example, it does not create a lesser form of murder) and the fact that s 13(3) uses the language of reckless indifference.

14. [42]

    Accepting that s 13(1) is an offence of specific intent, however, does not result in the conviction being set aside. Having dealt with count 7 on the basis that it did not involve an offence of specific intent, the trial judge continued: [24]

Challenge to factual findings – ground 3

1. [43]

   As noted above, the applicant was given leave in the course of the hearing to formulate a fresh ground challenging the factual findings which supported the conclusion that, taking account of his drug-induced state of intoxication, the elements of the s 13(1) offence were made out. It will be recalled that whilst count 5 related to the confrontation between the applicant and Mr Zervas in the side passage of his home, the offence identified in count 7 referred to the conduct of the applicant whilst in the laundry of the neighbouring house. The factual challenges raised at the hearing of the appeal related to the finding that the applicant had the tomahawk with him in the laundry and, secondly, his state of mind at that time. The amended notice of appeal was limited to the latter point, but both will be addressed.

2. [44]

   The applicant’s case with respect to the tomahawk was, primarily, based on his own evidence that he had laid the tomahawk down before entering the laundry, and picked it up again on his departure. He urged that that should have been sufficient to raise a reasonable doubt in the judge’s mind. That was because Mr Zervas could not see what was going on in the laundry and Ms Hodgson-Croker, who did observe some of the activities in the laundry, did not see the tomahawk in the applicant’s hand until he was leaving the laundry.

3. [45]

   With respect to his state of mind, the applicant placed reliance upon the fact that his plea with respect to count 5 did not constitute an admission as to his state of mind at the later stage when he was in the laundry and noted his own evidence that when he realised that he might be causing concern to those in the house, he left.

4. [46]

   Dealing first with the presence of the tomahawk, the finding of the trial judge rejecting the applicant’s evidence that he had not taken the tomahawk into the laundry was referred to above. [25] The judge gave three reasons for rejecting the applicant’s evidence in this regard. The third reason has already been identified; [26] it was, in short, that the accused’s account was “inherently implausible”.

5. [47]

   The second reason was that the damage done to the laundry door was consistent with it being caused by the tomahawk. There was no challenge to that finding which, it may be inferred, the applicant did not treat as sufficient to warrant a conclusion beyond reasonable doubt that he took the tomahawk into the laundry.

6. [48]

   The first reason depended on the evidence of the occupier of the house, Ms Hodgson-Croker. Her evidence was accepted, the judge stating that she “impressed me as a careful and accurate witness.” [27] The specific finding that she had seen the applicant with the tomahawk “immediately after he had left the laundry” was also not challenged by the applicant, again presumably on the basis that it was not sufficient to warrant a finding beyond reasonable doubt that he had the tomahawk with him when he was in the laundry.

7. [49]

   The evidence underlying the judge’s findings should be considered further. The external door to the laundry led into a carport. The laundry door was a little above ground level and there were two steps from the carport floor up to the door. Ms Hodgson-Croker described the action of Mr Zervas inside her house, holding onto the handle of the internal laundry door. She said she then went out onto her veranda and could look through the window into her own laundry. The relevant testimony was as follows: [28]

8. [50]

   As the trial judge accepted, that evidence was not consistent with the applicant having put down the tomahawk before entering the laundry and then picked it up as he left. Ms Hodgson-Croker saw him leave the laundry and saw that he had “an axe” in his hands at that time.

9. [51]

   The applicant’s account was in the following terms in his evidence-in-chief: [29]

10. [52]

    In the cross-examination of the applicant, dealing with the short period between his first confrontation with Mr Zervas and his entry to the laundry of the neighbouring house, the following exchange occurred: [30]

11. [53]

    The trial judge was entitled to be satisfied beyond reasonable doubt that the applicant took the axe into the laundry with him. Indeed, as she stated, the applicant’s account of putting it down and picking it up again was inherently implausible.

12. [54]

    The evidence given by other witnesses, including Ms Jones, who lived in a house on the other side of the street, and saw the applicant chasing Mr Zervas with something raised in his hand (which she thought was a hammer) left little doubt as to the conduct of the accused and led to the finding of fact (made disregarding the effect of the drugs) that it was “highly unlikely that the accused did not know that his conduct was likely to cause Mr Zervas to fear physical harm.” [32] The admission set out at [52] above was sufficient to justify the conclusion that the effects of the drug did not prevent him understanding the likely consequences of his conduct. Accordingly, the conclusion reached by the trial judge, even taking his intoxication into account, was open on the evidence.

13. [55]

    With respect to the challenge to the fact-finding, there is no doubt that it was an afterthought on the part of counsel for the applicant, realising the significance of the alternative finding made by the trial judge on the basis that intoxication was a relevant consideration. There was ample evidence, however, to support the findings that were made and no basis for concluding that the judge ought to have had a reasonable doubt in respect of the two factual issues under challenge. For these reasons, leave to appeal on this ground should be refused.

Sentence – special circumstances

1. [56]

   There is no challenge to the 4 year sentence imposed for the offence under count 7. The proposition underlying the appeal against sentence is that the judge should have found there were special circumstances for the purpose of s 44 of the Crimes (Sentencing Procedure) Act and should have varied the non-parole period so that it constituted less than 75% of the overall sentence. That would be achieved by increasing the proportion constituting the balance of the term beyond one-third of the non-parole period.

2. [57]

   The error in this regard is said to have arisen from the following passage in the reasons given by the trial judge in sentencing the applicant: [33]

3. [58]

   The objection to this passage appears to have been that it failed to take into account in express terms a submission made on behalf of the applicant, namely that incarceration had failed to break what was described as a “cycle of offending and drug use”. In his 34 years, the applicant had spent 17.5 years in custody and during the last 18 years had been outside prison for only 18 months. [34] It was submitted that a longer period of parole would allow him to enter a “long term residential rehabilitation program outside of prison.” [35] No other circumstance was relied on to justify a finding of special circumstances.

4. [59]

   As noted by the Director on the appeal, the judge expressly dealt with prospects of rehabilitation, to which that submission was directed, in the following terms: [36]

5. [60]

   That assessment was undoubtedly open in the circumstances. One circumstance of significance was that the applicant had been released from custody only six weeks before the present offending. He was on parole at the time of the present offending. There was indeed, as the sentencing judge said, little beyond “hope” to suggest that the next period of parole would be more productive.

6. [61]

   A finding of special circumstances in the present case would have been remarkable. That no such finding was made is unremarkable. Leave to appeal against sentence should be refused.

Orders

1. [62]

   The Court should make the following orders:

   1. (1)

      Refuse leave to appeal with respect to the challenge to findings of fact.

   2. (2)

      Otherwise dismiss the appeal against conviction.

   3. (3)

      Refuse leave to appeal against the sentence imposed in the District Court on 20 November 2015.

2. [63]

   JOHNSON J: I agree with the orders proposed by Basten JA and with his Honour’s reasons for making those orders.

3. [64]

   BUTTON J: I agree with the proposed orders of Basten JA, and with the reasons of his Honour for them.