Criminal Code (WA), Pt V, ch XXXI, s 1(1), s 221, s 338D, s 338E, s 391, s 392, s 617A, s 642, s 654,

Sentencing Act 1995 (WA), s 7(3), s 146

Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293

Kingswell v The Queen [1985] HCA 72; (1985) 159 CLR 264

Langridge v The Queen (1996) 17 WAR 346

R v De Simoni [1981] HCA 31; (1981) 147 CLR 383

R v Meaton [1986] HCA 27; (1986) 160 CLR 359

Robinson v The Queen, unreported, CCA SCt of WA; Library No 980587; 9 October 1998

Van Den Berg v The Queen (1984) WAR 162

1 MURRAY J: The accused was presented for trial upon an indictment charging him with three counts of robbery, contrary to the Criminal Code (WA), s 392. There was also a count of unlawful detention, to which charge the accused pleaded not guilty. He was tried by a jury and convicted of that offence. That matter need not be mentioned further in these reasons.

2 Each count of robbery was accompanied by allegations of circumstances of aggravation. In each case the accused was alleged to be in company with another or others and in two out of the three cases it was alleged that he did bodily harm to the victim of the alleged robbery. A further circumstance of aggravation was alleged in each case -

1. As to the first charge it was alleged that the accused "pretended to be armed with a dangerous weapon, namely a handgun."

2. In relation to the second such charge it was alleged that the accused "was armed with offensive weapons, namely a shredder blade and garden shears."

3. As to the final charge of robbery, it was alleged that the accused "was armed or pretended to be armed with a dangerous weapon, namely a handgun."

3 When the accused was arraigned he pleaded guilty to each of the charges of robbery. I had the circumstances of aggravation separately put to him in accordance with the ordinary practice of the Court. The offender admitted in each case the circumstance of aggravation that the offence was committed in company with another or with others. In the two cases where it was alleged that he did bodily harm to the victim of the offence, that circumstance of aggravation was admitted. In each case when it was put to the offender he denied that he had pretended to be armed or was armed with the dangerous weapon or offensive weapons identified in the indictment.

4 The question arose whether the existence of that circumstance of aggravation was to be tried by me or by the jury empanelled to try the related charge of unlawful detention. I held that the alleged, but disputed, circumstance of aggravation was to be tried by me. These are my reasons for so holding.

5 The offence charged was the offence of robbery defined in the Code, s 392, which is in the following terms:

"Robbery

A person who steals a thing and, immediately before or at the time of or immediately after doing so, uses or threatens to use violence to any person or property in order -

(a) to obtain the thing stolen; or

(b) to prevent or overcome resistance to its being stolen,

(c) if immediately before or at or immediately after the commission of the offence the offender is armed with any dangerous or offensive weapon or instrument or pretends to be so armed, to imprisonment for life;

(d) if the offence is committed in circumstances of aggravation, to imprisonment for 20 years; or

(e) in any other case, to imprisonment for 14 years."

6 For the purposes of s 392(d), the term "circumstances of aggravation" is defined by s 391 as follows:

"'circumstances of aggravation' means circumstances in which -

(a) immediately before or at or immediately after the commission of the offence -

(i) the offender is in company with another person or persons;

(ii) the offender does bodily harm to any person; or

(iii) the offender threatens to kill any person;

(b) the person to whom violence is used or threatened is of or over the age of 60 years."

7 It is apparent, I think, that the reference in s 392(c) to being armed or pretending to be armed with any dangerous or offensive weapon or instrument and the other circumstances of aggravation defined by s 391 are true circumstances of aggravation within the meaning of the Code, s 1(1), which defines that term as follows:

"The term 'circumstance of aggravation' means and includes any circumstance by reason whereof an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance;"

8 In other words, s 392, as I think is apparent from the way the section is expressed, defines the crime of robbery and then refers to three different cases when the punishment for the crime is limited by different maximum penalties. The standard penalty is that referred to in s 392(e) and s 392(c) and (d) increase that maximum penalty by reference to nominated circumstances of aggravation.

9 The same course is taken in s 338E, where the relatively new offence of stalking is punishable by different maximum penalties according to whether or not the crime is committed in circumstances of aggravation, which are defined for that purpose in s 338D. More recently, by amendments which became operative on 1 December 2004, s 221 was enacted, to add further circumstances of aggravation to offences defined in Pt V s 221 is in the following terms:

"Circumstances of aggravation for offences in this Part

(1) In this Part ¾

'circumstances of aggravation' means circumstances in which ¾

(a) the offender is in a family and domestic relationship with the victim of the offence;

(b) a child was present when the offence was committed;

(c) the conduct of the offender in committing the offence constituted a breach of an order made or registered under the Restraining Orders Act 1997 or to which that Act applies_;_ or

(d) the victim is of or over the age of 60 years.

(2) In this section ¾

'family and domestic relationship' has the same meaning as it has in section 4 of the Restraining Orders Act 1997."

10 At the same time, the offences defined by s 297, grievous bodily harm, s 301, unlawful wounding, s 313, the simple offence of common assault, s 317, assault occasioning bodily harm, s 317A, assaults with intent, and the sexual offences defined in ch XXXI, were all amended to provide a different maximum penalty when the offences are committed in circumstances of aggravation. In addition, the concept of a circumstance of aggravation in s 338D, for the purpose of the stalking offence, was amended to include a reference to s 221. Again, in this regard, in my opinion, the Code is talking about a circumstance of aggravation referable to the maximum penalty available within the meaning of s 1(1).

11 However, that is not the case in relation to sexual offences defined by ch XXXI. In that chapter there are offences defined without reference to circumstances of aggravation and the same offences are then defined with a reference to circumstances of aggravation. Examples are indecent assault (s 323 and 324), sexual penetration without consent (s 325 and 326), and sexual coercion (s 327 and 328). For the purposes of ch XXXI, the term "circumstances of aggravation" is defined in s 319(1), which now incorporates the provisions of s 221, but in this chapter a circumstance of aggravation is not that referred to in s 1(1) because in each case the offence of indecent assault, or sexual penetration without consent, or sexual coercion, in circumstances of aggravation, is a different offence, defined in a different section from that offence committed without a circumstance of aggravation. In that case therefore, the circumstance of aggravation is an element of the offence which, in case of a plea of not guilty, would have to be established by the verdict of the jury.

12 However, in relation to a true circumstance of aggravation within the meaning of s 1(1) and s 392, including reference to being armed or pretending to be armed with a dangerous or offensive weapon or instrument, that circumstance of aggravation is not part of the definition of the offence.

13 In that case, upon arraignment the accused may plead any of the pleas set out in s 616, including that in par (1):

"That he is guilty of the offence charged in the indictment, or, with the consent of the prosecutor, of any other offence of which he might be convicted upon the indictment;"

That is what occurred in this case. Upon that plea, the Court was authorised to pass sentence, subject only to the determination of the maximum penalty available. The allocutus might be put. Under s 654, the convicted person is to be asked if there is any reason why sentence should not be passed. The facts are to be stated aloud by the prosecutor: s 617A. By the Sentencing Act 1995 (WA), s 15, the Court "may inform itself in any way it thinks fit", "to decide on the proper sentence to be imposed".

14 No particular formality is required to establish the judgment of conviction of the offence to which the offender has pleaded guilty. It is sufficient that the Court moves to the consideration of the disposition of the case by the imposition of sentence or the making of another order which may only be made upon conviction: Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293.

15 The same position applies if a plea of guilty is made "of the offence charged in the indictment, or, with the consent of the prosecutor, of another offence of which [the accused person] might be convicted on the indictment", during the course of the trial by jury: s 632A. By that section, upon the making of such a plea the Court is to discharge the jury. It follows that any further matter to be resolved is to be resolved and dealt with by the trial Judge. By s 622, only a plea other than a plea of guilty or a plea to the jurisdiction of the Court will result in a trial by jury of the issues raised by the plea.

16 In my view then, the position under the Code is that if there is a plea of not guilty, the issues raised by that plea are to be tried by a jury. In that case, s 642 will operate. It provides:

"Special verdict

In any case in which it appears to the court that the question whether an accused person ought or ought not to be convicted of an offence may depend upon some specific fact, or that the proper punishment to be awarded upon conviction may depend upon some specific fact, the court may require the jury to find that fact specially."

17 The second part of s 642 would permit the jury to be asked especially to find a circumstance of aggravation pleaded, but the section presupposes that there is a jury to find the facts and it does not, in my opinion, add to the circumstances in which, under s 622, trial by jury is secured.

18 In passing, I note the provisions of s 648 which deal with a case (rare these days, eg, under s 378(12) and s 407) where, for the purpose of increasing the available punishment an accused is to be indicted for committing an offence after a previous conviction. The procedure laid down under the section is to call upon the accused to plead to so much of the indictment as charges the subsequent offence. If he pleads not guilty a jury is to be empanelled to try that offence. If he pleads guilty, or upon conviction after trial, it is then to be put to him whether he had been previously convicted as alleged. If he admits that fact, sentence may be passed accordingly. If that is denied, then the section provides that that issue is to be tried by the jury who need not be "sworn afresh". Again, the section is specific and presupposes that a jury will have been required to try the substantive subsequent offence. The question may be left for another day whether a jury would, in all cases, need to be empanelled.

19 My view that the existence of a pleaded circumstance of aggravation may be tried by jury where, on a plea of not guilty a jury is to try the substantive offence, but the existence of the pleaded circumstance of aggravation is to be tried by the judge where there is a plea of guilty to the substantive offence, is reinforced by the obiter discussion of the common law position by the High Court in Kingswell v The Queen [1985] HCA 72; (1985) 159 CLR 264. That case actually involved consideration of a drug importation offence under the Customs Act 1901 (Cth) where there were defined offences and, under a different section, the maximum penalty was increased if the offence was established to have been committed with respect to a commercial quantity of narcotic goods, or a trafficable quantity of such goods after a previous conviction. A different penalty applied where there was a trafficable quantity of goods, but no previous conviction. A lower penalty was provided where neither of those circumstances applied.

20 It was held by the majority, Gibbs CJ, Mason, Wilson and Dawson JJ, that the matters mentioned affecting penalty were circumstances of aggravation applicable to offences otherwise defined and that those circumstances were not elements of the offences defined. In that event, under the Customs Act, there was express provision for the existence of those matters to be established by a trial held by the judge and not by a jury, provided the circumstances of aggravation relied upon were charged in the indictment.

21 The provision for trial by judge alone of the circumstance of aggravation under the Customs Act was held to accord with that which would be applicable at common law: see per Gibbs CJ, Wilson and Dawson JJ, at 280, where their Honours draw the distinction between "questions of fact affecting the liability of the accused to punishment" which, unless there is a plea of guilty, are to be tried by the jury and "circumstances said to aggravate the offence which are relevant only to the exercise of the sentencing discretion of the judge", which circumstances are to be found by the judge.

22 Mason J, as his Honour then was, expressed the same view more directly at 282-3, where his Honour noted:

" ... there is strong support for the view that a jury, once it has returned a verdict, has discharged its duties and has no further function to perform. The finding of facts relevant to the proper exercise of the sentencing discretion would then fall within the province of the trial judge, subject to the qualification that the view he adopts must be consistent with the verdict or plea."

23 At 284 his Honour made it clear that he would place in the latter category of fact finding, the determination of the existence of aggravating circumstances.

24 Although in the minority, holding that in the Customs Act the circumstances affecting penalty were properly to be regarded as elements of the offences (in the same way as applies in the case of sexual offences under the Code), Brennan J considered that for that reason the existence of the aggravating fact would ordinarily be tried by a jury, a course prevented in the case of the Customs Act by the express provision in the Act for trial by the judge. Were that not the case, his Honour noted, it would have been clear that a jury would have no role to play in the trial of an issue of fact not relevant to guilt of the offence charged: 287. His Honour's view that the aggravating circumstances were elements of the offences defined in the Act led him to the view, with which Deane J agreed, that the offence creating provisions of the Customs Act were invalid because they did not comply with the Constitution, s 80, which provided the constitutional guarantee of trial by jury for indictable offences against the law of the Commonwealth.

25 The Court, similarly constituted but without the presence of Mason J, subsequently reaffirmed the position taken with respect to the constitutional validity of the provisions of the Customs Act and provided guidance in relation to the trial of a circumstance of aggravation which alleged a previous conviction of a narcotics offence: R v Meaton [1986] HCA 27; (1986) 160 CLR 359.

26 These cases proceed upon the basis that the circumstance of aggravation is charged in the indictment. That is the procedure in WA, where originally s 582 of the Code contained the provision that:

"If any circumstance of aggravation is intended to be relied upon, it must be charge in the indictment."

27 In R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 the majority of the High Court held that where a circumstance of aggravation is not pleaded in the indictment, a sentencing judge could not have regard to it at all so as to increase the punishment which was to be imposed.

28 As a consequence of that decision, in 1982 the provision in s 582 to which I have referred was deleted and s 656 was amended by adding:

"When considering the sentence proper to be passed the Court may have regard to a circumstance of aggravation whether or not that circumstance has been charged in the indictment, but notwithstanding any other provision of this Code, if the circumstance has not been charged in the indictment the Court shall not impose on the offender a punishment that is greater than that to which he would have been liable if the offence had been committed without the existence of that circumstance."

29 Section 656 was amended to delete that provision on the enactment of the Sentencing Act 1995 (WA), in which is to be found s 7, dealing with what are aggravating factors for the purpose of the imposition of sentence. Section 7(3) provides:

"(3) If the statutory penalty for an offence is greater if the offence is committed in certain circumstances than if it is committed without the existence of those circumstances, then -

(a) an offender is not liable to the greater statutory penalty unless he or she has been charged and convicted of committing the offence in those circumstances; and

(b) whether or not the offender was so charged, the existence of those circumstances may be taken into account as aggravating factors."

30 The requirement that the greater maximum penalty will only apply if the offender has been charged and convicted of the offence in the circumstance of aggravation might suggest that the existence of that circumstance is to be tried by a jury, but in my opinion that view is not open, having regard to the express provisions of the Code to which I have adverted.

31 In a case where a circumstance of aggravation is pleaded so as to inflate the maximum penalty available upon conviction and where a plea of not guilty is made, the jury's task and statutory capacity to try the case is at an end when it returns a verdict of guilty of the offence charged. Unless they are asked for a special verdict in relation to the existence of a circumstance of aggravation under s 642, as is the practice on a trial by jury, the jury would have no power to find any such circumstance. A fortiori in a case where there is a plea of guilty to the offence charged, a jury may not be empanelled to find the existence of a circumstance of aggravation, which is relevant to sentence only and the available penalty in respect of which the judge's discretion is to be exercised.

32 Consistently with that view, that matters concerning sentence are the province of the judge, subject only to the requirement where there has been a trial by jury that the findings made by the judge must not be inconsistent with the verdict of the jury, s 146 of the Sentencing Act provides:

"In proceedings under this Act before a superior court, any question of fact is to be determined by a judge and not by the verdict of a jury."

33 It is clear, of course, that where the judge is required to try the issue of fact concerning the existence of a circumstance of aggravation, that fact would not be found unless the judge was satisfied of its existence beyond reasonable doubt: Langridge v The Queen (1996) 17 WAR 346.

34 Finally, it is convenient here to set out briefly the rulings I made about the nature of the pleaded circumstance of aggravation and their establishment in the trial of the issue for sentencing purposes. In the first place, I took the view that in a case such as this where more than one offender was involved in the commission of the robberies, s 7 of the Code could not be relied upon for the purpose of establishing a circumstance of aggravation by a process of reasoning which would fix the particular offender before the Court with criminal responsibility for the circumstance of aggravation in a case where the co-offender was armed, upon the ground that the two were in company and acting in concert, rendering mutual aid to each other in the commission of the robbery.

35 Section 7 is directed to determining who are the persons who are to be regarded as parties to the commission of the offence. In terms of the section the question is, who are the persons "deemed to have taken part in committing the offence and to be guilty of the offence." The work of the section is to determine, by reference to the nature of the involvement of the person charged, whether that person is properly to be considered a party to the commission of the offence. It has no work to do in the determination whether the offence was committed in a circumstance of aggravation.

36 However, in my opinion the concept of being "armed" does not require that the weapon or thing with which the person was said to be armed was in the actual physical possession of the person. Provided the notion of being armed with a dangerous or offensive weapon or instrument is otherwise satisfied, it is sufficient if the weapon or thing is, at the relevant time, within the power or possession of the offender, available for use to reinforce the demand and the use or threat of violence so as to facilitate the commission of the robbery. In that regard, it matters not whether the weapon or instrument is or is not shown to the victim or actually used to make more effective the capacity of the offender to commit the offence. I cannot think that it would matter that a robber would not have physical possession of a weapon, perhaps carried by a co-offender to the offender's knowledge, but the particular offender would have both hands free for the purpose of shovelling money into a carry bag.

37 I discussed matters of this kind in my judgment, with which Ipp and Wallwork JJ agreed, in Robinson v The Queen, unreported, CCA SCt of WA; Library No 980587; 9 October 1998. In that case, reference was also made to the earlier decision of the CCA in Van Den Berg v The Queen (1984) WAR 162, as a result of which decision the Code provisions concerning the circumstance of aggravation that the offender was armed with a dangerous or offensive weapon or instrument were amended to equate being armed with pretending to be armed with a dangerous or offensive weapon or instrument.

38 To my mind, that reinforces the dual aspect of the circumstance of aggravation. It will be properly found where the offender has, in the course of the commission of the offence, immediate access to a weapon or thing of the kind described so as to enable its use to reinforce or make more effective the offender's capacity to commit the offence of robbery if the need should arise and it will apply where no such thing is available, but the offender makes the appropriate pretence so as again to improve his or her capacity to successfully carry out the commission of the offence.

39 Finally, it has long been held that a dangerous weapon is, firstly, something which is a weapon in the ordinary sense, that it is capable of being used to do another an injury and it has no other use. Such a thing will also be an offensive weapon. On the other hand, an offensive weapon or instrument may be a thing which is ordinarily adapted for use for a purpose other than as a weapon, provided the offender who is armed with it intends to use the thing for a offensive purposes to aid the commission of the offence if the occasion should arise. It was this aspect of the circumstance of aggravation which was under discussion in Van Den Berg.

40 In relation to the charges contained in the indictment, I found the offender to be armed immediately before or at or immediately after the commission of each offence charged.

41 In the first case there was a co-offender who patted his back as if to indicate a weapon under his shirt and made the threat that he had a gun. A little later during the commission of the robbery, to reinforce the demand made by the offender before the Court for more money, he said that the victim would not be hurt if he gave them more money, but he would be hurt if he did not, saying several times, "We've got a gun." I found that the offender in that way pretended to be armed with a handgun, a dangerous weapon, because he asserted that he, as well as his co-offender, had the capacity to obtain it and shoot the victim if he did not co-operate.

42 As to the second offence, it was committed when the two offenders followed up the demand made for more money during the course of the commission of the first robbery by requiring the victim to drive the offenders in his car to an ATM from which he was required to withdraw $400, almost all the money he had in his account, and give it to the offenders. It will be recalled that the allegation was that the offender before the Court was armed with offensive weapons in the form of a shredder blade and garden shears. I found that he was not armed with the shredder blade which, to the extent that it was used or intended to be used as an offensive weapon rather than a gardening implement, was in the possession of and used by the co-offender.

43 On the other hand, I found that he was armed with the garden shears which, in the circumstances, I found to be an offensive weapon, relying upon Van Den Berg. At one point during the journey to the ATM, the vehicle was stopped and all three alighted. At the insistence of the offenders, the boot of the car was opened and its contents inspected. The offender before the Court had been seated in the rear seat of the car, immediately behind the victim, who was driving. When he saw the garden shears, the offender required the victim to remove them from the boot and put them on the back seat where they would be readily available to the offender, who did not, however, touch the implement. All three resumed their original positions in the car and the journey to the ATM continued.

44 In my view, having found those facts, the proper conclusion was that the garden shears constituted an offensive weapon in that, although ordinarily adapted for innocent use, they were, on the occasion in question, intended to be used as a weapon, if necessary, to reinforce the demand for more money. They were certainly capable of being so used to cause bodily injury. The offender was armed with the garden shears because although he was not physically carrying them he had immediate access to them. They were in his possession.

45 The third and final robbery offence was committed on a different occasion. It involved the offender before the Court and two co-offenders and the allegation was that the offender was armed or pretended to be armed with a dangerous weapon, a handgun. In this case the victim was shown what appeared to be a handgun, but may have been a replica. It was in the actual physical possession of a co-offender who reinforced the demand made by pushing the gun into the side of the victim's torso. Although the offender was present at that time, he played no part in that event.

46 However, at the conclusion of the robbery, when the victim's property had been stolen from him, the offender said, "You have 30 seconds to run away, or we're going to shoot you." I found that in so saying, the offender asserted that he was armed or that he pretended to be armed with what was or appeared to be a handgun, a dangerous weapon, because he asserted his capacity to cause the weapon to be used immediately after the commission of the offence for the purpose of enabling the offenders to get away, unobserved by their victim.