Ford v R

BRERETON JA: At about 3.00am on the morning of Sunday 16 January 2011, the applicant Lee Ford, together with one Jamie Francis, broke into the residence of Christopher Meurant at 85 Dymond Street, Bargo and assaulted him in his bedroom. Mr Meurant was struck on the head repeatedly with a beer bottle, until it broke, and then with a lamp, which also broke; he suffered injuries and was taken by ambulance to hospital. On 23 April 2018, following a judge alone trial before English DCJ in the District Court at Campbelltown, Ford was convicted of an offence of specially aggravated break, enter and commit a serious indictable offence under (NSW) Crimes Act 1900, s 112(3). On 13 December 2018, he was sentenced to a total term of imprisonment of six years, commencing on 30 November 2018 when he was taken into custody; with a non-parole period of three years and six months, which will expire on 29 May 2022. Francis pleaded guilty to the same offence, and – with the benefit of a 50% discount for his plea of guilty and his assistance in the prosecution of Ford – was sentenced by Norton DCJ to a term of imprisonment of two years, to be served by intensive correction order. Ford seeks leave to appeal from the conviction and sentence.

The indictment upon which Ford was convicted was that he:

At trial, and on appeal, the only issue was whether the applicant was guilty of the specially aggravated offence; he did not dispute that on 16 January 2011, in company with Francis, he broke and entered the dwelling house of Mr Meurant and occasioned to him actual bodily harm, and thus was guilty of the aggravated form of the offence under s 112(2), though he did not formally enter a plea of guilty to it. The dispute was, and is, whether a circumstance of “special aggravation” under s 112(3) was established. At trial, this dispute had two aspects: first, whether the injuries inflicted on Mr Meurant amounted to wounds; and secondly, whether it was Ford who inflicted them (as distinct from being merely party to a joint criminal enterprise). As to the first, the trial judge unsurprisingly concluded that Mr Meurant’s injuries – which included lacerations penetrating the scalp to the fatty layer – were wounds, and this is no longer in dispute. As to the second, her Honour expressed herself to be satisfied beyond reasonable doubt that it was Ford who entered the house first in the early hours of the morning of 16 January 2011, and who struck Mr Meurant, first with a bottle and then with a bedside lamp, and thereby wounded him.

The grounds of appeal are that:

Given that the appeal involves a challenge to her Honour’s factual conclusion that Ford was the principal assailant, it is necessary to summarise the evidence that bore upon that question.

The victim, Mr Meurant, had resided at 85 Dymond Street, Bargo, a semi-rural property, for many years. Since about 2000 he had lived there alone; before then he had cohabited there in a de facto relationship with Wendy Makin. Wendy Makin’s two daughters, including her younger daughter Kristie Makin (hereafter referred to by her first name, in order to avoid confusion), were also members of the household. Wendy and Kristie had left in about 2000, when Kristie was about 17 or 18 years of age, after Kristie had commenced a relationship with the co-offender Jamie Francis, to whom she was married at the time of the offence, although they later separated and divorced.

On 15 January 2011, Ford and his partner – who were long-standing friends of Francis and Kristie – visited their home at Hill Top for a barbecue, arriving about mid-afternoon. Another acquaintance, Paul McHuen, arrived later. Evidence of the events of that evening was given at the trial by Mr Meurant, by Francis, and by Kristie Makin. Ford did not give evidence.

Mr Meurant said that he knew Francis before he became Kristie’s partner; he broke in a horse for his mother a long time before that. When Francis was going out with Kristie, before she moved out of the home, he saw Francis around once a week. After she moved out, he did not see him again.

Mr Meurant said that in the early morning of 16 January 2011 he was asleep when he heard two loud bangs. From the time when he would later make an emergency call, he calculated that this was at about 2.50am. He got up, turned on the main bedroom light, stuck his head out of the doorway, and saw someone running down the hall towards him. He was asked:

He was naked, so he bent down to pick up a pair of shorts, and was hit with a hard object to the left side of his head. He did not know at the time what it was that he was hit with. He stood up, looked at the person, and was hit again, in the head, around the temple on the left side of his head; he fell backwards, onto the upright post of the brass bed; he was worried about his back, because he had just had a back operation. He got up again, was knocked down again, and stayed down. He saw one male, and someone else was standing at the doorway in the shadows. He said:

He said that he was pinned down between the bed and the built‑in wardrobe, kneeling on the floor with his face buried in the mattress, and he was being struck to the head with a hard object; he was in considerable pain. While he was down, the second assailant entered the room and joined in hitting him. He tried to put his hands over his head to soften the blows, but they were afflicted by arthritis resulting in increased pain, and he turned his head on an angle and noticed the second assailant leaning over the end of the bed:

There was a short pause, and then he was struck again with another heavy object, five or six times before it shattered. He lay there pretending to be unconscious, and the men left. Neither man spoke.

After he realised that the assailants had left, he went to the back door (the lock of which, and the surrounding timber, had been smashed) and out onto the back verandah. He saw a motor vehicle drive off. He could tell by the sound of the engine that it was a six-cylinder automatic vehicle. He called an ambulance. After the police and an ambulance had arrived, and he had received some treatment, he walked out the front to the ambulance and, as he walked down the back stairs, noticed a black baseball cap lying in the grass, which had on it a logo which he thought was the same as he had seen on the T-shirt that had been worn by one of the men. He later identified the cap as one which had on it a TNG Kelly’s Trucking logo.

In respect of his assailants, he gave the following further evidence:

In cross-examination, he gave this evidence:

He said that in about January 2014, he received a telephone call from his ex-de facto wife Wendy Makin, who told him that she knew who had broken into the house and assaulted him. She indicated that she might be willing to say who those persons were, once a certain court case had concluded in a few weeks. He did not then understand, but has since discovered, that the court case in question was a family law dispute between Francis and Kristie. Although at first she offered to do so without seeking payment, sometime later she said that she would provide the information in return for a payment. He said that he had never spoken to Kristie Makin about the incident.

He confirmed that he had last seen Francis about a week before Kristie Makin had moved out of his home, and not since; and that prior to that he had seen him once a week or thereabouts when Kristie was still living at the house. He agreed that Francis would have come to the house on one or more occasions.

According to Francis, on Saturday 15 January 2011, Ford and his partner arrived at about 2.00 or 3.00pm for a barbecue. He and Ford were drinking pre-mixed cans of Jack Daniels, tequila shots and Sol beer. In the course of the afternoon, Kristie Makin and Ford’s partner went into Mittagong to purchase salads and more alcohol.

During the course of the evening, Kristie was "harassing" Ford to go and bash her de facto stepfather, Mr Meurant. At one stage she spoke by telephone to her mother Wendy Makin, who also encouraged an assault on Mr Meurant, and offered money for it. Initially, Ford, his partner and Francis said “No”.

After McHuen arrived, Ford’s partner went to bed. McHuen produced some cocaine which he had brought. Kristie again asked Ford to bash Mr Meurant, and Ford, Francis and McHuen all said “No”. Kristie then began crying and sobbing and pleading for Mr Meurant to be assaulted; she claimed that she used to have to listen to Mr Meurant dragging her mum around by the hair and bashing her.

Francis thought that this “began to wear Ford down a little”, and Ford said that he had listened to his father do the same to his mother, and became emotional. Then “[h]e hit his hands on the table and agreed to do it”. By this time, they had each consumed probably a dozen Jack Daniels, half a bottle of tequila and ten beers, as well as some cocaine.

Kristie then “changed her tune” and became “chirpy and happy”. She retrieved two pairs of black rubber disposable gloves from Francis’ shed, then hopped in the car and beeped the horn with the car running. The others – Ford, Francis and McHuen – each grabbed a bottle of beer and entered the motor vehicle; by this time, only beer was left. Kristie drove, Francis and Ford were in the back, and McHuen was in the front passenger's seat.

Kristie drove them to Dymond Street, Bargo, and on the way described the layout of Mr Meurant’s house. She parked the vehicle on the side of the road at the neighbouring property. Ford and Francis exited the car, put on the gloves, and walked to Mr Meurant's home. They went to the rear of the house. Ford kicked the back door in, kicking it twice. They entered the house. When asked who went in first, Francis answered: “I think it was [Ford], then me”. They stood in the kitchen/lounge room area, and could see nothing; then a light came on at the end of the hallway, and Mr Meurant stuck his head out of the doorway of his bedroom and then disappeared.

Ford and Francis walked up the hallway towards the room where they had seen Mr Meurant. Ford was in front; Francis was right behind him. Ford was wearing shorts and a T-shirt or singlet (later, in cross-examination, he said a singlet), and had nothing on his head; Francis was wearing shorts, a black T-shirt with an orange “plus” logo, and a black cap (which, he said later in cross-examination, had a TNG Kelly’s Trucking logo on it). When Francis reached the bedroom, Mr Meurant was kneeling beside his bed with his arms on the mattress, and Ford was behind Mr Meurant holding him down in that position, with his knees behind Mr Meurant's elbows, pinning him to the bed. When he saw Mr Meurant in that position, Francis believed that Mr Meurant was reaching for a gun, as they had been told by Kristie that Mr Meurant kept a gun either under his bed or in the bedside table. He then gave this evidence:

Ford struck Mr Meurant on the back of the head with the bottle five or six times, until it broke. Francis was standing to Ford’s left, towards the bedroom door, midway down the right-hand side of the bed. Once the bottle broke, Francis punched Mr Meurant to the back of the head, then:

They then ran from the house via the back door, jumped off the verandah, and ran to the car. In the course of this, his hat fell from his head. The car would not start at first (because it was still in “drive”), but then started. They dropped McHuen at his home at Braemar, and then returned to Francis’ home at Hill Top. Kristie went to bed, while Francis and Ford sat and had a couple more drinks. When Ford’s partner woke, perhaps about 7.30 or 8.00am, Ford and she went home, and Francis went to bed. He was woken by Kristie removing his clothing; she then drove around the town and disposed of it.

He and Kristie separated in 2013. In January 2014, he commenced proceedings in the Family Court regarding care arrangements for their children, and Kristie threatened to inform police about his involvement in the events of 15 January 2011.

In cross-examination, Francis said that Kristie did not like her stepfather Mr Meurant. Her urging to bash Mr Meurant was directed at Ford and not at him. He said that he was not part of their lives when she and her mother claimed to have been assaulted or abused by Mr Meurant, and that it had nothing to do with him, and that he went along with Ford as a result of peer group pressure, and not wanting to appear weak in the eyes of Ford or McHuen. He maintained that he had only ever previously been at Mr Meurant's house once, prior to Kristie moving out, and that he had never before entered the house. He was aware that people used the back door to the house rather than the front door, but he says they were informed by Kristie how to enter the house and about the layout of the house and where they were likely to find Mr Meurant.

It was put to him, and he denied, that he took charge of the break-in, that he was the first person to enter the house, and he was the first person to walk down the hallway. He agreed that he was wearing a black cap with a TNG Kelly’s Trucking logo on it, and a black T‑shirt with an orange plus symbol on it, which he said was the size of the whole front of the shirt, while Ford was wearing a singlet. He conceded that he and Ford were “smashed”, and under the influence of cocaine. It was put to him that Ford took with him a can of Jack Daniels and not a beer; it was not his recollection that Ford took a can of Jack Daniels when they entered the motor vehicle, and he thought that only beer was left at that stage. He confirmed that he took a bottle of Sol beer, which he said he drank on the way to Bargo and left on the floor of the car; he denied having a beer bottle in his hand when he got out of the vehicle, and denied that there was any drink sharing during the course of the night.

He was asked:

It was put to him that he was belting Mr Meurant with the bottle and the lampshade, and he denied that he hit Mr Meurant with a bottle. It was also put to him, and he denied, that he had gone to great lengths to write himself out of the story; and that he had given a version in which, in effect, everything of substance was done by Ford, in an attempt to reduce his own culpability.

In re-examination, the Crown was permitted to adduce evidence of previous representations made by Francis in lawfully intercepted telephone conversations. Francis agreed that in a conversation with McHuen on 12 February 2016 he had said "But I didn't hit him with a beer bottle. The other fellow did”. He also agreed that he had a conversation with his mother the following day (13 February) in which he said, "Yeah, but the worst thing is, mum, there's two DNAs and, like, one is a beer bottle which is"; she said, "Yeah, I mean, yeah"; he said, "My beer bottle"; she said, "Yep"; he said, "But I never hit him with the bottle"; she said, "Yeah"; and he said, "I never had the bottle".

In further cross-examination, he agreed that in the conversation with McHuen on 12 February 2016 at 2.17pm, he said: "I'm to roll over on Kristie, because it was her that got us drunk and got us to bloody do this", though he disputed that that was inconsistent with his evidence that Kristie was only asking Ford, not him, to bash Mr Meurant. He agreed that he had said "And the DNA is a hat and a beer bottle, both from one person, and the hat's mine”, and "They have a beer bottle from the scene”, and that he said to his mother “I have to cooperate, mum, it's going to give me a better sentence, then I could get fucking 20 years”. It was put to him, and he denied, that it was very clear to him in February 2016, that he needed to get a story together that involved him doing very little. He denied that, though he knew he was under investigation from 8 February 2016, he was aware of the possibility that the police might be tapping his phone calls, and said that this did not even cross his mind – notwithstanding that when he had telephoned Ford, Ford said that he did not want to talk on the phone. He accepted that he said to McHuen on 12 February 2016 at 6.21pm, "I don't even remember exactly what happened, but I know Kristie coerced us to do it”, and "They've got DNA, which is a hat and a beer bottle, which is mine." He maintained that he never had a bottle with him. He accepted that in a conversation on 23 February 2016 at 8.18pm, he said "Like, the, the beer bottle wasn't a weapon, it was a drink container. We were drinking it, like”, but denied that this meant that they were drinking from the same bottle. However, he agreed that he had had a concern that his DNA would be found on the bottle that he then understood had been located at the scene of the incident. He also accepted, though he did not remember, that he had said to McHuen on 12 February 2016, during the call at 6.21pm: "I've, I've got a vague memory of it", with reference to his recollection of the incident.

Kristie Makin made an induced statement to police in June 2015, and was aware that, as a result, she would not be prosecuted.

In her evidence at the trial, she said that Mr Meurant “kicked [her] out” when she was 18 and pregnant (to Francis), and that she did not like him, and sometimes thought badly of him, but although she did carry a grudge for a while, it subsided after subsequent events.

She could not remember much of the detail of what happened on 16 January 2011. She could not remember what time Ford and his partner arrived at the house; she thought it might have been in the afternoon, and that they might have been accompanied by their daughters. She said that she and Ford's partner did not go anywhere that afternoon. According to her, Ford brought Jack Daniels with him, but she was unsure whether it was cans or bottles. Francis was drinking the Jack Daniels, and probably beer as well. She could not recall any other spirits being consumed, nor whether anyone other than Francis was drinking beer. She could not recall whether they ate dinner.

She said that it was Francis who was always saying that he never liked Mr Meurant and that Mr Meurant needed to be taught a lesson, because he had “always gotten away with everything" – which she said was not true, because Mr Meurant had spent time in custody. She said that in the course of the evening, she told Francis to “stop blowing hot air”. However, Ford responded to what Francis said about teaching Mr Meurant a lesson with "Yeah, come on, let's go do it" – although she says she was not a party to the entire conversation, and was in and out of the house attending to one of her daughter's needs. She denied having had a telephone conversation with her mother that evening.

The next thing she knew, they were in the car driving to Bargo. Francis was in the front passenger seat and Ford in the back; another friend Paul (McHuen) was also in the back. There was no conversation in the car on the way to Bargo. To her knowledge, Francis knew the layout of the house; he had been inside the house before she had moved out. It was her recollection that Francis was wearing a flannelette shirt over his T-shirt (as that was what he always wore), and he was also wearing a TNG Kelly’s Trucking cap. She said that Ford was wearing shorts and a T-shirt because “That’s what he always used to wear”, but could not actually recall what he was wearing that night. She drove because she said she would. She parked the car, and then Ford and Francis got out; Ford had a pre-mixed Jack Daniels drink with him, and she could not recall if Francis had a Jack Daniels or a beer.

After the two men returned to the car, she drove back home. She says that she did not drive McHuen back to his house; her recollection was that he drove himself home. When they got back to Hill Top:

She was not 100% sure what Ford did when they returned to Hill Top. Refreshing her memory from her statement, she then said Ford also washed up and then went to bed.

In cross-examination, she said that she would not have said anything to the police about the incident "if [Francis] and I were still together". She also agreed that she had described Ford to the police as "a big fat thing", someone with a fat stomach and a beard:

DNA was recovered from the mouth of a broken Sol beer bottle which was found in Mr Meurant’s bedroom, and from a black cap which was found off the verandah.

The DNA on the mouthpiece of the bottle was a mixture that originated from at least two individuals; the presence of a third could not be excluded, although there was no evidence of it. On the assumption that there were only two contributors, Francis was excluded, as he did not possess the types attributed to the major and minor contributors. The major contributor had the same profile as Ford, and was 1.9 billion times more likely to have originated from Ford than from an unknown unrelated individual.

Francis’ DNA was recovered from the black cap.

It is logical first to address the second ground of appeal, which was that the trial judge erred in failing to determine or apparently consider whether the wounding of the victim was part of any common purpose or shared intention between the appellant and the co-offender, Francis, such that they were in company for the purposes of a specially aggravated offence pursuant to s 112(3) of the (NSW) Crimes Act 1900 as alleged. The applicant submitted that even if the finding that he was the primary assailant were correct, the trial judge did not make any finding of common purpose or shared intention to wound, and that no such finding was reasonably open on the evidence, so that the two offenders were not “in company” for the purpose of the specially aggravated offence. In this respect, it was argued that the only evidence of Francis’ purpose or state of mind was the bare evidence of his plea of guilty, which was unexplained, and that he gave no evidence of any common or shared intention to wound. It was submitted that to be “in company” requires that the offenders share a common purpose or intention to commit the relevant offence, and that it was incumbent on the prosecution to prove this.

It may be accepted that to be “in company” requires that the offenders share a common purpose or intention to commit the relevant offence. [1] However, for present purposes, the relevant offence is the simple form of the offence, not the circumstance of special aggravation. The appellant’s argument does not have regard to the structure of s 112, and how the circumstances of aggravation and special aggravation fit within it.

At all material times, s 112 has provided for the simple offence, the aggravated offence, and the specially aggravated offence, as follows:

At the time of the offence, s 105A relevantly provided as follows: [2]

The structure of s 112 is a cascading one. The first question is whether the accused is guilty of the simple offence, under subs (1). Ford admitted that he was.

If so, the second question is whether there are circumstances of aggravation, so as to render the accused guilty of the aggravated offence under subs (2). Here, the circumstance relied on was subs (b), that the accused was “in the company of another person”, and he admitted that he was. As it happens, several other of the circumstances of aggravation, in particular (a), (b), (d) and (f), could also have been relied on.

If – and only if – the second question is answered in the affirmative, does the third question arise, namely whether there are circumstances of special aggravation, so as to render the accused guilty of the specially aggravated offence under subs (3). Here, the circumstance relied on was the wounding of a person, namely Mr Meurant. The only question at this stage is whether there was a circumstance of special aggravation. There is no requirement that any common purpose necessary to establish the circumstance of aggravation that the accused was “in the company of another person” extend to the circumstance of special aggravation.

This ground of appeal must fail.

The principles applicable on an appeal which complains that a verdict is unreasonable were restated by this Court in Dickson v The Queen, [3] by Bathurst CJ, with whom Johnson and Fullerton JJ concurred, as follows (emphasis added): [4]

In considering this ground, an appellate court “must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses”. [5] The assessment of the reliability and credibility of witnesses is quintessentially a matter for the jury. [6] These considerations are reinforced by the following observations of the High Court in The Queen v Baden-Clay (“Baden-Clay”) (footnotes omitted): [7]

Nonetheless, the concluding words of that passage, and the authority cited for it, [8] show that the ultimate question remains whether the appellate court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Baden-Clay does not affect the propositions that:

These principles have generally been stated in the context of a jury verdict, but are also applied in a judge alone trial. [9] However, in the context of a judge alone trial, the availability of reasons for a judge’s decision will inform consideration of whether it is unreasonable, because, unlike in a jury trial, the process of reasoning is exposed. [10] Drawing on the authorities to which reference has been made, they may for present purposes, in the context of an appeal to this Court from a conviction by judge alone, be stated as follows:

The issue before the Court is therefore whether it was open (in the sense described in SKA v The Queen [15] and Libke v The Queen) [16] on the whole of the evidence for the trial judge to be satisfied, beyond reasonable doubt, that it was the appellant who struck Mr Meurant with a bottle and then a lamp and thereby wounded him.

The evidence which bore directly on the identity of the principal assailant was that of Mr Meurant, that of Francis, and the DNA evidence. In order to find that Ford was the principal assailant, her Honour found that Francis was a reliable witness, and that Mr Meurant was mistaken in respect of the hat and T-shirt.

Her Honour’s reasons for considering Francis to be reliable were as follows:

Her Honour’s reasoning for finding Mr Meurant mistaken as to who was wearing the cap were as follows:

As to the DNA evidence, her Honour reasoned:

As to the relative motives of Ford and Francis, her Honour continued:

Mr Meurant’s evidence was that the principal assailant was wearing a black T-shirt and a black cap, that he was a “big, pretty solid, muscly fellow”, and that he did not recognise him. He recalled that there was a logo on the cap and on the T-shirt which he thought were the same. He obtained only a glimpse of a figure of the other assailant, who was standing in the shadows.

It was not in doubt that it was Francis who was wearing a black cap (which had on it a TNG Kelly’s Trucking logo), which was retrieved from the scene, and on which Francis’ DNA was found, and which Francis admitted was his. Francis also admitted that he was wearing a black T-shirt, with a prominent orange “plus” symbol on it. So far as the evidence went, it suggested that Ford was wearing a singlet, and no headdress. Thus this part of Mr Meurant’s evidence pointed very strongly to Francis being the person he saw and who was the principal assailant.

Other aspects of Mr Meurant’s evidence, which were more equivocal, were relied on by the Crown, and by the trial judge, as tending to identify Ford as the principal assailant. First, he described the principal assailant as a “big, pretty solid, muscly fellow”; this was said to point to Ford, who was much larger than Francis. In my view, this is a very fragile basis for identification: Mr Meurant gained no more than a glimpse of the second assailant and was in no position to, and did not, offer a comparison of their respective sizes; to someone in his position during the assault (pinned down to a bed for most of the incident), woken from sleep at night, any assailant would appear large; and while there was evidence that Kristie Makin had described Ford as "a big fat thing", with a fat stomach, a beard and a ponytail, that is not consistent with Mr Meurant’s description of someone who was “solid and muscly” with short hair or a shaved head. Secondly, the fact that Mr Meurant did not recognise his assailant was also said to point to it being Ford, since he knew Francis, whom he had known since a young age, and who had been his stepdaughter’s boyfriend. However, they had not had contact for eleven years, and even then their contact had been limited; it was dark; and the circumstances were traumatic.

The applicant complained that Mr Meurant’s evidence about the cap and T-shirt had never been challenged, and the theory that he might have been mistaken had never been tested. I do not accept that the Crown was under any obligation to challenge his evidence by seeking leave to cross-examine him under (NSW) Evidence Act 1995, s 38. It is by no means clear that leave to cross-examine would have been given, just because his evidence might not in one respect have fitted the Crown’s. It is entirely orthodox for a party to submit that a witness called by it might be mistaken in one or more respects and that other evidence should be preferred, and it is entirely permissible for a judge to conclude, notwithstanding the absence of cross-examination, that the witness is mistaken in some respect. That is not to say, however, that in all the circumstances of this case it was open to be satisfied, beyond reasonable doubt, that Ford was the principal assailant.

Francis said that it was Ford who used the beer bottle and the lamp to strike Mr Meurant. At the time of the relevant events, he was of course well-intoxicated with alcohol, and under the influence of cocaine; this may be expected to have clouded his recollection. Consistent with this, he told McHuen, in the intercepted telephone conversations on 12 February 2016, that “I don't even remember exactly what happened” and "I've, I've got a vague memory of it"; all these matters raise doubt as to the accuracy of his apparently clear recollection of the events conveyed in his evidence at the trial.

Francis was, of course, criminally concerned in the incident. By the time he came to give evidence, he had pleaded guilty to the same offence as that with which Ford was charged. He had not yet been sentenced, but the sentencing judge had indicated that an offer of assistance would be taken into account in deciding whether to refer him for assessment for an intensive correction order. It is plain (including from his intercepted conversation with his mother) that he was motivated to co-operate by the prospect of receiving more lenient treatment, and although he said that he had not been assured of a discount for co-operation, he was plainly hoping to obtain one (as he eventually did), and in terms of motivation, the hope of such an outcome is not much less of an incentive than the assurance of one. Her Honour properly warned herself that these matters could affect his credibility:

Although Francis rejected the proposition that as Kristie’s wife and the father of her children he had at least as good a motive to assault Mr Meurant as Ford, and her Honour accepted his evidence, given “somewhat matter of factly”, that he had no interest in meting out punishment to Mr Meurant for some perceived past wrong, both logic and probability point in the other direction. Mr Meurant was unknown to Ford. The instigator was, on Francis’ evidence, his wife Kristie (and on her evidence, Francis himself); no one suggested that Ford was the instigator. Ford was under no apparent obligation to, or influence by, Kristie. The proposition that he would be motivated to take the lead role in this assault by memories of domestic violence allegedly perpetrated on his own mother in his childhood seems to me, objectively, far more improbable than that Francis would succumb to the entreaties and demands of his own spouse.

The assailants entered the property through the back door. As Mr Meurant explained, the front door was always kept locked and never used. Entry through the back door bespoke some familiarity with the property. While Kristie Makin was potentially one source of that information (according to Francis, she was; but this was not something included in his statement to police), so too was Francis. The trial judge rejected Francis’ evidence that he had only attended Mr Meurant’s Bargo residence once before this particular night, and had never entered it – which was improbable given that he was Kristie’s girlfriend prior to her vacating the property; and was contradicted by Kristie’s evidence that he visited her at the house in Bargo quite frequently before she moved out, as they were in a relationship at the time; and also by Mr Meurant’s evidence that he saw him roughly once a week before Kristie Makin moved out, and had known him from much earlier when he had broken in a horse for his mother. Francis’ evidence in this respect, which her Honour rejected, was calculated to dispel any inference that it was he who had the familiarity with the property to advise use of the back door. In the context that he was awaiting sentence, and hoping to receive favourable consideration on account of cooperating with police in the case against Ford, this raises a more general concern about his honesty and reliability.

Francis’ clothing was contaminated with a substantial quantity of blood, so that Kristie arranged for it to be disposed of in rubbish bins around the town the next day. This is not easily reconcilable with the minimal role in the assault which his evidence describes.

There is admittedly some support for Mr Francis’ version in the telephone conversations with McHuen and his mother which were intercepted. His statements to McHuen on 12 February 2016 in the conversation which commenced at 6.21pm: “But I didn’t hit him with a beer bottle, the other fellow did”, and to his mother on 13 February 2016 at 12.04pm: “But I never hit him with the bottle … I never had the bottle", provide corroboration for the version he gave at trial. I also accept that his statement to McHuen in the conversation on 12 February 2016 at 6.21pm: “They’ve got DNA, which is a hat and a beer bottle, which is mine”, is ambiguous, and could reflect his understanding of the police position, and that in any event it does not amount to an unequivocal statement that the beer bottle was his. Consistently with this, elsewhere, what appears to be the same conversation was adopted by him in different terms: “And the DNA is a hat and a beer bottle, both from one person, and the hat's mine”. However, those conversations took place five years after the incident, at a time when Francis was aware that there was a police investigation and that he was a suspect. The transcripts of the intercepted conversations were not in evidence, although they were in the prosecution brief and accessible to the parties; evidence of their content was adduced in re-examination, and then in further cross-examination. Thus only selected excerpts, and not the entire context of the relevant statement, were in evidence. This makes it difficult to draw conclusions about the significance of single sentences, devoid of their context.

Some corroboration for Francis’ version is also provided by Kristie Makin’s evidence that after they returned to Hill Top, Francis told her that “they ran up the hallway, but [Ford] was first and [Francis] was hiding behind [Ford]”. However, that statement describes the entry and move up the hallway; it does not clearly refer to the assault itself. Moreover, Kristie’s recollection of the whole night was poor, and she was considered unreliable by the trial judge.

To a high degree of certainty, Ford was a major contributor, and Francis was not a contributor, to the DNA obtained from the mouth of the beer bottle which was broken in Mr Meurant’s bedroom. That plainly founds a conclusion that the bottle was one from which Ford had drunk. However, it says nothing as to who had handled the bottle, or used it as a weapon, particularly as both men wore gloves during the assault. It leaves open the possibility that a bottle from which Ford had at some stage drunk was picked up by Francis and used as a weapon to hit Mr Meurant.

It was necessary for the Crown to prove beyond reasonable doubt that Ford was the principal assailant, or alternatively put, to exclude as a reasonable possibility that it was Francis. For Ford to have been the principal assailant, it was necessary to discard Mr Meurant’s identification of the principal assailant as a person wearing a black cap with a logo and a black T-shirt with a logo as mistaken. While it is not impossible that he was mistaken, that evidence corresponds so closely with the known facts that it is unlikely to be mistaken, given the specificity and accuracy of the description of the clothing, which matches what Francis admittedly wore. The possibility of reconstruction, arising from discovery of the cap after the event, is much reduced when one has regard to the accurate recollection concerning the black T-shirt with logo, which was not retrieved. On the other hand, the matters in his evidence relied on as pointing to Ford being the principal assailant have much less force.

Given that the men were gloved, and the DNA was taken from the mouthpiece, the DNA evidence says nothing as to who used the bottle to hit Mr Meurant, as either could have used a bottle from which Ford had at some stage drunk as the weapon. Only Francis’ evidence ties the bottle to Ford: Kristie’s evidence was that Ford had a pre-mixed Jack Daniels drink with him when they exited the car, while she could not recall if Francis had a Jack Daniels or a beer. There is no evidence that Ford was the instigator; it was either Kristie (according to Francis) or Francis (according to Kristie); in either case, it was Francis and not Ford who would have had the greater motive to assault Mr Meurant.

The evidence of Francis, which implicated Ford, was of questionable reliability. At the time, Francis was intoxicated and under the influence of cocaine; he had earlier stated (in the telephone conversations) that he did not remember exactly what happened; and by the time he came to give evidence, he was incentivised to underplay his own role, in order to maximise his prospects of leniency, as was illustrated by his claim – which was rejected by the trial judge – to have previously visited Mr Meurant’s home only once and never to have entered it. Moreover, Francis was already aware of the benefits of co-operation when he spoke on the phone to McHuen and to his mother.

Given:

I do not think that this can be resolved by the trial judge’s position of advantage in seeing the witnesses. There is nothing to indicate that her Honour’s conclusion that Mr Meurant must have been mistaken was based on demeanour. It is true that her Honour’s acceptance of Francis was, to some extent, based on demeanour; thus her Honour observed: “To my observation cross-examination of him revealed nothing to damage the reliability, but more importantly the consistency of his evidence. He had a good recollection of peripheral matters, in addition to the central aspects of the Crown case, the sort of witness who becomes more reliable as cross-examination continued”. However, her Honour’s justified rejection of his evidence that he had never been inside Mr Meurant’s home, coupled with his statements in the intercepted conversation with McHuen to the effect that his recollection of the events was vague, could not be rationalised with acceptance of his evidence as reliable, by demeanour. While Francis’ credibility was to some extent reinforced by his statements in the intercepted conversations that it was not he who struck Mr Meurant with the bottle, their force is undercut by his interest in minimising his own role, and the doubts cast on his claimed recollection by his intoxication and his statements to McHuen.

In those circumstances, his previous representations were insufficient to dispel, beyond reasonable doubt, Mr Meurant’s identification of the principal assailant as a man who was wearing not only a cap with a logo but also a black T-shirt with a logo, as Francis was. In my judgment, therefore, the trial judge ought to have had a reasonable doubt as to whether Ford was the principal assailant.

However, as will appear, it does not follow that Ford was not guilty of the specially aggravated offence.

The trial proceeded on the basis of a pre-trial ruling, sought by the accused, in respect of the mental element of the specially aggravated offence, insofar as it concerned an intention to wound. Before her Honour, it was submitted for the present applicant that, to establish the circumstance of special aggravation, the Crown must prove that the accused intended to wound the victim, while the Crown responded that what needed to be proved in respect of wounding was the possibility that a wound would occur, rather than the intention to inflict a wound.

As enacted the definition of circumstances of special aggravation under s 105A of the (NSW) Crimes Act 1900 was:

At the time of the relevant offence in 2011, the definition was as follows:

The form of s 105A in 2011 followed the (NSW) Crimes Amendment Act 2007, which replaced the word “maliciously” with the words “intentionally or recklessly”. Later, after Blackwell v The Queen, [17] it was further amended by the (NSW) Crimes Amendment (Reckless Infliction of Harm) Act 2012, to read (underlining emphasis added):

Thus, subs (a) now expressly requires that the wounding or infliction of grievous bodily harm be intentional, while under (b) it suffices, if grievous bodily harm be occasioned, that there was recklessness as to causing actual bodily harm.

Her Honour regarded the 2012 amendment as confirming what the law had always been, and concluded:

However, in Ryan v The Queen (“Ryan”), [18] the High Court considered the offence of armed robbery etc with wounding, under (NSW) Crimes Act 1900, s 98, which was then as follows:

Notably, the elements of the offence under s 98 included (1) the “simple” offence of robbery, or assault with intent to rob; (2) an aggravating circumstance of being armed, or being in company with another person who is armed; and (3) a further aggravating circumstance, of wounding or inflicting grievous bodily harm on the victim. It is therefore a closely analogous provision to s 112(3).

In respect of that part of s 98 which said, "Whosoever … wounds … such person", Barwick CJ said: [19]

For present purposes, there are two significant aspects of what was said in Ryan. The first is the conclusion that in neither s 96 nor in s 98 was it necessary to establish any intention to wound. The structure of the definition of “circumstances of special aggravation” in s 105A as it was at the time of the offence was analogous to that of s 98 as considered in Ryan. Parliament, in enacting s 105A using words to the same effect as those the subject of Ryan, should be taken to have intended them to have the same effect. The absence of the word “maliciously” or “intentionally” before “wounds”, and the presence of the words “intentionally or recklessly” before “inflicts grievous bodily harm”, indicate that an intention to wound was not required to attract the circumstance of special aggravation, where wounding was relied on.

However, the second aspect is the statement that the wounding must be the voluntary act of the accused: “whilst there need be no intent to wound, the wounding must be by the accused”. In Ryan, this flowed from the use of the words, in both s 96 and s 98, of the phrase “whosoever … wounds”, and although s 105A uses the more modern language “the alleged offender wounds or intentionally or recklessly inflicts grievous bodily harm on any person”, it is analogous to the provisions considered in Ryan. This means that the circumstance of special aggravation is not satisfied merely if the victim is wounded; it must be the voluntary act of the accused.

On this approach, it sufficed to convict Ford of the specially aggravated offence if he was the principal assailant: the mere fact that his blows wounded Mr Meurant is sufficient. In any event, use of a bottle on a bald head with such force that it breaks is ample to support an inference of, at the least, recklessness as to wounding. However, if he were not the principal assailant, there would be insufficient evidence to establish, beyond reasonable doubt, that he wounded the victim.

At trial, and on appeal, the Crown presented an alternative case that, even if Ford were not the primary assailant, he was guilty of the specially aggravated offence under the doctrine of joint criminal enterprise, if in the course of their joint criminal enterprise he contemplated the possibility of wounding. In this respect, the Crown referred to Sio v The Queen, [20] in which Sio had been charged with and convicted of an offence against (NSW) Crimes Act 1900, s 98, which had been slightly but immaterially amended from the form in which it was at the time of Ryan, on the basis of joint criminal enterprise. The trial judge had directed the jury as follows: [21]

The High Court observed:

In allowing the appeal from this Court, [22] and quashing the conviction, the High Court observed (footnotes omitted; underlining emphasis added):

These observations clearly contemplate that an accused can be convicted of armed robbery with wounding, if the accused participates in a joint criminal enterprise of armed robbery with the principal offender, and foresees the possibility that the principal offender will wound someone in the course of the robbery. Ryan was not concerned with the doctrine of joint criminal enterprise; relevantly, its point was that where the act which caused the wounding was not, in any relevant sense, the act of the accused, a charge based upon s 98 would fail, because in such circumstances it would not be the act of the accused that caused the wounding. [23] Sio shows that, notwithstanding this, a charge based on (extended) joint criminal enterprise can succeed, if the accused foresaw the possibility that the principal offender would wound the victim. Such a case, where the act of wounding is within the contemplation of the accused, is not one in which the act which caused the wounding was not, in any relevant sense, the act of the accused. In any event, to the extent that Sio is inconsistent with Ryan, then the recent decision in a joint judgment of a unanimous bench of the High Court should be taken as reflecting the current state of the law.

In the present case, it is not necessary to resort to the doctrine of extended joint criminal exercise, which was the issue in Sio. In Miller v The Queen, [24] it was said, with reference to McAuliffe v The Queen [25] (footnotes omitted):

While it is clear that Ford and Francis agreed to break, enter and commit a serious indictable offence, in company, I would not be prepared to conclude that they actually agreed to wound Mr Meurant. However, in circumstances where they intended to inflict bodily harm on him, and a bottle was taken to be used as a weapon for that purpose, they must have contemplated wounding as a possible incident of the execution of their agreement. It follows that if, as I have concluded, it is not established that Ford was the principal assailant, he can nonetheless be convicted of the specially aggravated offence on the basis of joint criminal enterprise. And even if, contrary to that view, wounding was not within the scope of the agreement, Ford must have foreseen – at least from the use of a bottle and lampshade as weapons – that wounding was a possibility, and as nonetheless continued to participate in the enterprise, he would be liable to be convicted on the basis of extended joint criminal enterprise. Accordingly, in my judgment, Ford was rightly convicted of the specially aggravated offence, albeit on the basis of joint criminal enterprise rather than on the basis that he was the principal assailant.

The appeal against conviction therefore fails.

On the basis that Ford was the principal assailant, the trial judge sentenced him to imprisonment for six years, with a non-parole period of three years and six months. In his appeal against sentence, the applicant advanced grounds that:

The parties agreed that if it were concluded, as I have, that the appeal succeeded insofar as concerned the finding that the applicant was the primary assailant, but the conviction was nonetheless upheld on the basis of joint criminal enterprise, the sentence appeal should be allowed. While the parties suggested that the matter should be remitted to the District Court for resentencing, there seems to me no reason why this Court should not proceed, as (NSW) Criminal Appeal Act 1912, s 6(3), commands, to substitute the sentence that ought to have been imposed. In so doing, the trial judge’s remarks, insofar as they were not challenged or are not affected by her Honour’s finding that Ford was the principal assailant, provide a sound starting point.

The maximum penalty for the specially aggravated offence is imprisonment for 25 years, and there is a standard non-parole period of 7 years.

Objectively, the offence had many marks of considerable gravity, but some moderating features. It was committed in the victim’s home, in the early hours of the morning, when the offenders anticipated that he would be home and, having regard to the hour, in all likelihood asleep. The weapons used – a bottle and a bedside lamp base – were well capable of inflicting serious injuries, but they were arguably less dangerous than others which might have been used (such as a knife or an iron bar or a firearm), and were used because they were close at hand; the offenders did not go to the victim’s home ready armed with iron bars or more dangerous weapons. The offence was a violent one, and the offenders intended from the outset to inflict bodily harm on the victim; it is not as if the wounding was an accident. However the degree of premeditation was modest; it was a decision spontaneously made on the evening of 15 January 2011, when the offenders were extremely intoxicated and under the influence of cocaine. The offence was committed, at the instigation and urging either of Kristie Makin or of Francis, to “punish” Mr Meurant – who was a stranger to Ford – for alleged conduct against his former de facto wife, Kristie’s mother. While the incident must have been utterly terrifying for Mr Meurant, it was of relatively short duration. Mr Meurant received severe head injuries (one wound required 18 staples or sutures to his scalp), and has been left with psychological sequelae: his treating psychologist suggested he might have post-traumatic stress disorder, although there was no evidence from a psychiatrist to that effect. Damage was also occasioned to his home by the forced entry.

The trial judge considered that the nature of the weapons used, and the brief duration of the home invasion, reduced the offence below the mid-range of objective seriousness, but that it was nonetheless towards the mid-range of objective seriousness having regard to the fact that there were two offenders, two weapons were used, it was a violent break-in to Mr Meurant’s home, it was an offence committed in the early hours of the morning with a degree of premeditation, and at a time when these offenders knew full well that the victim was likely to be home. Her Honour’s assessment of objective seriousness must be reduced on account of my conclusion that Ford has not been proved to be the principal assailant, but is guilty on the basis of joint criminal exercise. To that might be added that Ford had no personal interest in the commission of the offence, and stood to gain no benefit from it. In addition, in the context that being “in company” and armed were elements of the specially aggravated offence, they should not have aggravated its objective gravity. [26] Nonetheless, it remains an offence of considerable objective seriousness.

Subjectively, Ford is now 42 years of age. He did not give evidence in the sentencing proceedings, but a report of Professor Stephen Woods was tendered, as were references from his partner, his father and his sister. He also provided a letter to the trial judge, in which he said that he was deeply remorseful for what he had done to the victim, to his partner, to his children, to his family and to his friends. Her Honour found that Ford had done his best to demonstrate remorse for his wrongdoing and had an understanding of the impact of his offending behaviour on the victim and his family.

In his letter, he also wrote of witnessing things in his earlier life to which he should not have been subjected. To similar effect, Professor Woods reported that he referred to a history of being raised in a highly dysfunctional home environment, characterised by alcohol abuse and domestic violence inflicted by his father. Professor Woods opined that this early life experience appeared to have contributed to his decision, fuelled by drugs and alcohol, to agree with a request from his friend’s partner to assault her mother’s ex-boyfriend. Like the trial judge, in the absence of evidence from Ford I am not prepared to accept this. Ford’s father, Alex Ford, is a retired police sergeant, whose letter of reference said that Ford and his sister were brought up in a loving family environment where respect, especially for the law, was paramount. Alex Ford had been married to his wife for nearly 49 years. Ford worked side-by-side with his supposedly abusive father in their joint stonemasonry business for some 20 years. Ford’s sister’s letter of reference contains no mention of them being exposed to domestic violence as children, or being maltreated by their father, or of there being alcohol abuse. This does not sit at all well with Ford’s assertion to Professor Woods that his father was emotionally and physically abusive of their mother, and that his father inflicted harsh corporal punishment for the slightest misdemeanour or simply because he was in a bad mood. In the absence of any direct evidence to support Ford’s claim, and in the face of the evidence of his father and his sister which would tend to contradict it, I too would reject that claim.

According to Ford’s account to Professor Woods, he began to engage in substance and alcohol abuse between the ages of 12 and 14. By the age of 17 he was using amphetamines and cocaine, and had developed a daily habit and was also abusing alcohol. He says that when he was aged about 24 and the family moved to Bargo, he ceased using illicit substances and significantly reduced his intake of alcohol, but eventually he relapsed into drug abuse and engaged in what Professor Woods considered to be “dangerously high levels of binge drinking”.

At the age of 20 he was convicted of driving with the special range prescribed concentration of alcohol and driving while unlicensed. Subsequently he had convictions for resisting a police officer in the execution of duty; driving whilst his licence was expired; speeding; not complying with the conditions of his provisional licence; driving with the low range prescribed concentration of alcohol; driving with the mid-range prescribed concentration of alcohol; and, since the offence in question, for affray. Thus his record includes nothing similar to, or approaching in gravity, the current offence, his convictions being mostly for driving offences and, in particular, drink-driving offences. Notably, other than the affray, he has no convictions for violence, and none for breaking and entering, or otherwise analogous to the current offence.

Professor Woods described Ford as unassertive and retiring in presentation, with a blunted affect, indicative of a depressed mood. Following psychometric testing, in the opinion of Professor Woods, he is suffering from mild to moderate anxiety, a major depressive disorder, alcohol abuse disorder of moderate severity, and stimulant drug disorder which is now in sustained remission. Ford and his partner have three grown daughters, two of whom still reside in the family home. His partner is in employment. The family is facing the prospect of a forced sale of the family home, as she will be unable to meet the mortgage repayments from her income alone. He is fearful that their relationship may not survive the stress and financial hardship occasioned by his trial and sentence.

Her Honour said that this offence “clearly was an aberration on his part”, noting that his only other offence of violence post-dated it. By that her Honour presumably meant that, while he had a record of driving and drink-driving offences, he was not a person who had previously engaged in crimes of this nature and gravity, and that despite his considerable drug and alcohol problems, he had worked significant hours and contributed to supporting his family. In that sense, I agree with her Honour.

Her Honour found that his prospects for rehabilitation were “guarded, given his failure to attend for psychotherapy or undertake drug or alcohol counselling” to address his drug and alcohol addictions, even after this offence was committed until he went into custody. Her Honour found that if he does not undertake appropriate courses or counselling then the likelihood of him relapsing and re-offending was high. Given the apparently aberrant nature of the subject offence, I am less pessimistic about his future prospects. Her Honour rightly observed that since 2014 there had been no further offending, and that this bodes well for his rehabilitation if he is able to remain abstinent from abusing drugs and is able to manage his alcohol consumption.

Her Honour said that general deterrence was a significant consideration. While I do not disagree, its significance is moderated by the relatively spontaneous nature of the offence, the circumstances which led to its commission, and its aberrant nature.

Her Honour thought that the question of parity did not arise:

Francis had been sentenced by Norton DCJ to imprisonment for two years, to be served by way of an Intensive Correctional Order. He received a discount of 50% for his early plea of guilty and his co-operation, so that the notional starting point was a sentence of 4 years imprisonment. It was the fact that Ford was found to be the primary assailant, and that he was not entitled to a discount for a plea of guilty or for co-operation, where Francis was, that resulted in the disparity.

It follows from what has been said above in connection with the conviction appeal that he must be re-sentenced on the basis that it is not established that he was the primary assailant, and her Honour’s finding that he was the more violent of the two assailants cannot be sustained. In those circumstances, where he is convicted on the basis of joint criminal enterprise, parity becomes a more important consideration, although he remains disentitled to any discount for a plea or for co-operation.

Her Honour made a finding of special circumstances, on the basis that there is a need for a longer than normal period of supervision on parole to enhance the offender’s prospects for rehabilitation, and to ensure he attends counselling and drug and alcohol prevention and/or relapse prevention programs. This was reflected in a non-parole period which was less than 60% of the total sentence. I am prepared to accept her Honour’s finding of special circumstances, though to a lesser extent; if applied to a reduced head sentence, it would result in a period of full-time imprisonment inadequate to reflect the gravity of the offence.

Although Ford had indicated a willingness to plead to a less serious offence than the one for which he has been found guilty, that offer was not accepted by the Crown. The trial proceeded and Ford was convicted of the specially aggravated offence. Her Honour rightly concluded that he was not entitled to any discount for his preparedness to plead to the lesser offence, as it had no utilitarian value.

In Morgan v R, [27] Morgan was sentenced for an offence against (NSW) Crimes Act 1900, s 112(3) (the specially aggravated offence), to imprisonment for six years and three months, with a non-parole period of two years and nine months. The Court adverted to submissions based on the Judicial Commission's statistics of sentences for the offence under s 112(3) and with sixteen cases in this Court dealing with that offence, and said:

In my view, on the basis on which the trial judge sentenced him, being that he was the principal assailant, the sentence was a lenient one; the non-parole period of three years and six months was half of the standard non-parole period of seven years. However, the objective seriousness of the offence is reduced below the mid-range not only by the matters mentioned by her Honour, but also by its relatively spontaneous nature; and now by the conclusion that he is not shown to have been the principal assailant, but is convicted on the basis of joint criminal enterprise, in which circumstances parity becomes a much more important consideration. Subjectively, it is relevant that the offence is an apparent aberration on Ford’s part, and that he had no personal interest in and stood to gain no benefit from it.

Giving very considerable significance to considerations of parity, and having regard to the apparently aberrant and spontaneous nature of the offence, and accepting her Honour’s finding of special circumstances, I would quash the sentence, and substitute a non-parole period of two years and nine months commencing from 30 November 2018, and expiring on 29 August 2021, and a total term of imprisonment of four years, expiring on 29 November 2022.

I propose the following orders:

BELLEW J: I agree with Brereton JA and with the orders that his Honour proposes.

LONERGAN J: I agree with Brereton JA and with the orders that his Honour proposes.