Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Markou v R [2012] NSWCCA 64
• Hearing dates: 23 February 2012
• Decision date: 23 April 2012
• Before: Macfarlan JA at [1]; RS Hulme J at [64]; RA Hulme J at [74]

Decision

(1) Leave granted under r 4 of the Criminal Appeal Rules to raise Additional Ground of Appeal 2.

(2) Appeal allowed.

(3) The appellant's conviction on 7 April 2011 of an offence under s 59(2) of the Crimes Act is quashed.

(4) The appellant is convicted of an offence under s 59(1) of the Crimes Act that he did on 9 August 2009 at Surry Hills in the State of New South Wales assault Mathew Cunneen Wyllie thereby occasioning to him actual bodily harm.

(5) The appellant is directed to perform 75 hours of community service work. The appellant is to attend the City District Office of the Probation and Parole Service within seven days of the date of this judgment.

• Catchwords: CRIMINAL LAW - appeal - conviction - assault occasioning actual bodily harm in company - whether evidence of actual bodily harm - definition of 'bodily harm' - whether explanation necessary in judge-alone trial - whether offence committed 'in company' - evidence of common purpose - whether self-defence open on facts; CRIMINAL LAW - appeal - sentence - assault occasioning actual bodily harm - whether necessary to identify extent of harm inflicted - whether sentence of imprisonment warranted
• Legislation Cited: Crimes Act 1900; Crimes (Sentencing Procedure) Act 1999; Criminal Appeal Act 1912; Criminal Procedure Act 1986
• Cases Cited: Adsteam Building Industries Pty Ltd & Anor v The Queensland Cement and Lime Co Ltd & Ors [1985] 1 Qd R 127; (1984) 14 ACLR 456; AK v State of Western Australia [2008] HCA 8; 232 CLR 438; Cramer v R [1998] WASCA 300; Fleming v The Queen [1998] HCA 68; 197 CLR 250; Handlen v The Queen [2011] HCA 51; 86 ALJR 145; Overall v R (1993) 71 A Crim R 170; Pemble v R [1971] HCA 20; 124 CLR 107; R v Brougham (1986) 43 SASR 187; R v Button [2002] NSWCCA 159; 54 NSWLR 455; R v Donovan [1934] 2 KB 498; R v Ion (1996) 89 A Crim R 81; R v Moussa [2001] NSWCCA 427; 125 A Crim R 505; R v Tamcelik, ex parte Ozcan [1998] 1 Qd R 330; R v Winner (1995) 79 A Crim R 528; Smejlis v Matthews [2004] WASCA 158; Spies v R [2000] HCA 43; 201 CLR 603; Western Australia v Maria Mona Dick [2006] WASC 81; 161 A Crim R 271
• Category: Principal judgment
• Parties: Blake Kevin Markou (Appellant); Regina (Respondent)
• Representation: Counsel: G Wendler (Appellant); W Abraham QC (Respondent); Solicitors: Paris J Carr & Associates (Appellant); Solicitor for Public Prosecutions (Respondent)
• File Number(s): 2010/99187

Decision under appeal

• Citation: R v Blake Kevin Markou
• Date of Decision: 2011-07-22 00:00:00
• Before: Finnane DCJ
• File Number(s): 2010/99187

Judgment

1 MACFARLAN JA: The appellant was charged with the offence of recklessly inflicting grievous bodily harm on Mathew Cunneen Wyllie (the "complainant") whilst in company, contrary to s 35(1) of the Crimes Act 1900, and in the alternative with assault occasioning actual bodily harm to the complainant whilst in company, contrary to s 59(2) of the Crimes Act. The appellant elected to be tried by a judge alone, pursuant to ss 132 - 3 of the Criminal Procedure Act 1986.

2 Upon arraignment before Finnane DCJ, the appellant pleaded not guilty and the trial proceeded. By a judgment dated 7 April 2011 his Honour found the appellant not guilty of the first charge but guilty of the alternative charge of assault occasioning actual bodily harm whilst in company.

3 On 22 July 2011 his Honour sentenced the appellant to nine months imprisonment to be served by way of an Intensive Correction Order commencing on 29 July 2011 and concluding on 28 April 2012. The appellant served about four months of his sentence before being granted bail by Schmidt J on 6 December 2011.

4 The charges against the appellant arose out of an incident that occurred in the early hours of Sunday 9 August 2009 at a nightclub in Oxford Street, Darlinghurst. The appellant, who was then aged 24, was present with a group of friends to celebrate a 21st birthday. The complainant, who was then aged 19, was also present at the nightclub with a group of friends to celebrate a 21st birthday. The appellant and the complainant were not known to each other. A scuffle occurred, as a result of which the appellant punched the complainant. The appellant made a formal admission for the purposes of his trial that he assaulted the complainant "by punching him to the left side of the jaw in the lounge bar area" of the nightclub.

5 The trial judge made the following observations concerning what appeared on CCTV footage of the incident:

"The accused then comes into view accompanied by another man. He came into view with this man, he advances towards the complainant with this man and I am of the opinion that at all relevant times he was accompanied by this man who I think was a man called Lillas. Again, he was identified as such by the accused. Had the accused not said who he was I would not have known who he was.

The complainant is shown on the CCTV footage as standing there with his hands out on each side of his body pointing to the ground at about forty-five degrees. His left appears to be partly covering the body of his friend who appears to be a little shorter than him but that could be wrong because it could be some error obtained by the way in which [the] camera is situated. All I can say is that appears to be the position. The accused is then seen on the film. He advances towards the complainant and strikes at him. He has admitted striking on the left of the jaw. The admission was made in writing on the advice of counsel" (Judgment p 3).

6 The trial judge said later in his judgment that the complainant could be seen on the film "to reel back after he was hit by the accused, to put his left hand up and then to come round the corner and at the same time that he came round the corner, he was then pursued by someone who attacked him by throwing a punch aimed at his head" (Judgment p 5). It is clear from the film that it was not the appellant who committed the second assault.

7 As a result of one or both of these assaults the left side of the complainant's lip was lacerated, one tooth was lost, one tooth became loose and the complainant's jaw was broken. Whilst the trial judge found that the complainant suffered grievous bodily harm, he was unable to attribute the infliction of that harm to the punch thrown by the appellant rather than that thrown by the second assailant.

8 His Honour accordingly found the appellant not guilty of the first charge, which involved the infliction of grievous bodily harm. He concluded however for the purposes of the alternative count that the punch delivered by the appellant did cause the complainant "some actual bodily harm" (Judgment p 18).

9 The trial judge concluded as follows in relation to the "in company" element of the offences with which the appellant was charged:

"In my opinion there is evidence that at relevant times he was accompanied by persons. They may not have been known to the Crown but certainly they were known to the accused, and one of them was a person he nominated. At the time he struck at the complainant he was accompanied by that person" (Judgment pp 17 - 18).

10 In light of these conclusions the trial judge found the appellant guilty, whilst "in the company of unknown persons", of assaulting the complainant, thereby occasioning him actual bodily harm (Judgment p 19; s 59(2) of the Crimes Act).

11 In considering sentence, the trial judge expressed the view that the objective seriousness of the offence was "significant" even though it had not been proved that the appellant had caused the complainant's grievous bodily harm. His Honour went on to say:

"I can be sure of the fact that he did strike him either on the jaw or near the jaw and he struck him sufficiently hard enough for Mr Wyllie to turn and disappear. He did it deliberately. He has advanced no reason for doing it. It was not done to defend himself. He was not at the time under any attack and I think the conduct itself is serious" (Judgment dated 20 May 2011, p 2).

12 His Honour noted that the appellant had previous convictions which indicated "that he was engaged in deliberate violent conduct on a number of earlier occasions" (ibid p 2) and that the appellant is a "very large", "very powerfully built" man (ibid p 2).

13 The trial judge considered that the seriousness of the offence could not be adequately dealt with by giving the appellant a recognizance or imposing a fine (ibid p 3). He considered that a sentence of imprisonment was warranted (Remarks on Sentence dated 22 July 2011, p 1). Having received a report assessing the suitability of the appellant for an Intensive Correction Order, the trial judge imposed a sentence of imprisonment of nine months to be served by way of such an order.

14 I now turn to consider the appellant's grounds of appeal in relation to his conviction and sentence:

GROUND 1: "THE TRIAL JUDGE'S VERDICT OF 'GUILTY' OF ASSAULT OCCASIONING ACTUAL BODILY HARM IN COMPANY WAS CONTRARY TO LAW BECAUSE IT WAS NOT A FINDING IN ACCORDANCE WITH THE MANDATED REQUIREMENTS OF S 133(2) OF THE CRIMINAL PROCEDURE ACT 1986 (NSW). THEREFORE THERE HAS BEEN A WRONG DECISION ON A QUESTION OF LAW WITHIN THE MEANING OF S 6(1) OF THE CRIMINAL APPEAL ACT 1912 (NSW)"

ADDITIONAL GROUND 1: "THE TRIAL JUDGE'S VERDICT OF 'GUILTY' AND CONVICTION FOR ASSAULT OCCASIONING ACTUAL BODILY HARM IN COMPANY WAS UNREASONABLE WITHIN THE MEANING OF S 6(1) OF THE CRIMINAL APPEAL ACT 1912 (NSW) BECAUSE THERE WAS NO EVIDENCE OF ACTUAL BODILY HARM OCCASIONED TO THE VICTIM"

15 The appellant submitted that the trial judge did not comply with the requirement applicable in a judge-alone trial that the Court's judgment "include the principles of law applied by the Judge and the findings of fact on which the Judge relied" (s 133(2) of the Criminal Procedure Act). The appellant relied upon the following observations of the High Court in Fleming v The Queen [1998] HCA 68; 197 CLR 250 concerning an earlier statutory provision relevantly in the same terms as s 133(2):

"[28] ... while s 33(2), when specifying that which a 'judgment' must include, does not use the expression 'reasons for judgment', it should not be taken as intending that the requirements of s 33(2) be satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached" (see also AK v State of Western Australia [2008] HCA 8; 232 CLR 438).

16 The appellant argued that the trial judge erroneously failed to identify what in law amounts to "actual bodily harm" and the evidence justifying his conclusion that the appellant inflicted such harm upon the complainant. The appellant argued that there was in fact no evidence capable of justifying his Honour's conclusion.

17 The expression "actual bodily harm" is not defined in the Crimes Act. The generally accepted judicial explanation of the meaning of the expression "bodily harm" is that given in R v Donovan [1934] 2 KB 498:

"... we think that 'bodily harm' has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling" (at 509); see also for example Overall v R (1993) 71 A Crim R 170 at 178 and R v Tamcelik, ex parte Ozcan [1998] 1 Qd R 330 at 332.

18 A judge sitting alone may derive some assistance from reference to this statement. However as Donovan itself confirmed, "bodily harm" (and hence I consider "actual bodily harm") "has its ordinary meaning". A judge does not in my view breach the requirements of s 133 by failing to refer to judicial expositions of such an expression which is used in the relevant statute with its ordinary English meaning.

19 A judge sitting alone is not required to "express all of the matters which necessarily have to be stated to a jury unfamiliar with even the basic principles of the law" (R v Winner (1995) 79 A Crim R 528 at 531). There are natural "differences between the instruction which would be expected of a judge to a jury and the elaboration of reasons for the judge's own decision" (ibid at 531). Kirby ACJ said in R v Winner that he was "far from convinced that the absence from such reasons of express references to judicial instruction which might be required for a jury trial will necessarily ... authorise the intervention of a Court of Criminal Appeal. One of the obvious advantages intended by Parliament in the procedure of trial before a judge sitting alone is the saving of time, the consideration of the case by a trained and experienced decision-maker and the provision of reasons for the decision which may be reviewed on appeal" (ibid at 531).

20 In these circumstances I do not consider that the trial judge infringed s 133(2) by not elaborating upon the meaning of the ordinary English expression "actual bodily harm".

21 Further, contrary to the appellant's submissions, there was in my opinion evidence that supported the trial judge's conclusion that the appellant's blow caused the complainant some actual bodily harm. Understandably, his Honour could not conclude that the serious injuries suffered by the complainant were caused by the first assault (by the appellant) rather than by the second assault (by the unknown assailant). However, the inference that the complainant suffered some not insignificant physical harm as a result of the appellant's assault can be drawn from a number of matters.

22 First, the appellant admitted assaulting the complainant by punching him on the left side of the jaw. Secondly, it is apparent from the CCTV footage that the punch was swung with significant vigour by a man who is undoubtedly large and well-built. Although it is possible that the punch was to some extent deflected by the complainant's arm, the appellant's admission indicates that it did land. Thirdly, it is apparent from the CCTV footage that the force of the blow was sufficient to send the complainant reeling or staggering back. His Honour's finding to this effect accorded with what is apparent on the film. Fourthly, the result of the punch, also evident on the film, was that the complainant immediately brought his left hand up to his face in a manner suggesting he had been hit there.

23 These matters are in my view sufficient to establish beyond reasonable doubt that the complainant suffered some actual bodily harm as a result of the first assault, at least by way of the bruising which would inevitably flow from the receipt of a forceful blow to the face. There can be no doubt that the complainant suffered an injury that resulted in significant interference with his comfort (see the passage from Donovan quoted in [18] above; Cramer v R [1998] WASCA 300 and compare Smejlis v Matthews [2004] WASCA 158 at [54] - [55]).

GROUND 1: [AS ABOVE] INSOFAR AS IT RELATES TO THE "IN COMPANY" ELEMENT OF THE OFFENCE

ADDITIONAL GROUND 2: "THE TRIAL JUDGE'S VERDICT OF GUILTY AND CONVICTION FOR ASSAULT OCCASIONING ACTUAL BODILY HARM IN COMPANY WAS UNREASONABLE WITHIN THE MEANING OF S 6(1) OF THE CRIMINAL APPEAL ACT 1912 BECAUSE THERE WAS NO EVIDENCE THAT THE ASSAULT WAS COMMITTED IN COMPANY AS REQUIRED BY S 59(2) OF THE CRIMES ACT 1900 (NSW)"

24 The meaning of the expression "in company" was explained as follows by von Doussa J in the context of a charge of assault with intent to rob:

"The true meaning of the provision emerges from the authorities just cited. A person commits a robbery, or an assault with intent, in company where that person participates in the robbery or assault together with another or others in the sense that the victim is confronted by the combined force or strength of two or more persons or that the forces of two or more persons are deployed against the victim. It is not necessary that more than one participant actually strike or rob the victim; it is sufficient that the accused and one or more other participants be physically present for the common purpose of robbing, or assaulting with intent, and of physically participating if required" (R v Brougham (1986) 43 SASR 187 at 191).

25 After referring to Brougham and other cases, Kirby J in R v Button [2002] NSWCCA 159; 54 NSWLR 455 summarised the law in this area as follows:

"[120] What emerges from these cases? A number of propositions can be stated:

First, the statutory definition (s 61J(2)(c)) requires that the offender be 'in the company of another person or persons'.

Secondly, the accused and such person, or persons, must share a common purpose (either to rob, or as here, sexually assault).

Thirdly, the cases appear to assume that each participant is physically present.

Fourthly, participation in the common purpose without being physically present (for example, as a look-out or as an accessory before the fact) is not enough.

Fifthly, the perspective of the victim (being confronted by the combined force or strength or two or more persons) is relevant, although not determinative. If two or more persons are present, and share the same purpose, they will be 'in company', even if the victim was unaware of the other person."

26 It is apparent from these statements that the accused and the person or persons with whom the accused is alleged to have been in company must have shared a relevant common purpose. In this case the Crown needed to establish beyond reasonable doubt that the appellant and the man whom the judge referred to as 'Lillas' and whom he concluded was "in company" with the appellant shared a common purpose that embraced the assault of the complainant.

27 His Honour referred to the appellant advancing towards the complainant and being "at all relevant times ... accompanied" by Lillas (see [5] and [9] above) but his Honour did not expressly refer to the need for the Crown to prove that those persons had a common purpose. His Honour may have had this requirement in mind, however the words used in his judgment suggest a view on his part that it was sufficient for the Crown to establish that the persons were present together and appeared to be seeking the same end, namely, to assault some or all of the persons in the group of which the complainant formed part.

28 In my view however, persons are not acting "in company", with a common purpose, unless there is some express or implied arrangement or understanding between them to act together to achieve an agreed end. Proof of a nod or even a look acknowledging that they will act together may suffice, but a mere coincidence of purpose not resulting from an arrangement or understanding will not be enough. As observed by McPherson J in Adsteam Building Industries Pty Ltd & Anor v The Queensland Cement and Lime Co Ltd & Ors [1985] 1 Qd R 127; (1984) 14 ACLR 456 in a civil context "I cannot see that it is possible for persons to 'act in concert' towards an end or object, or even simply to act in concert, unless there is at least an understanding between them as to their common purpose or object ... A mere coincidence of separate acts is insufficient" (at 459). His Honour's remarks are, in my view, equally applicable to the criminal concept of acting "in company". For persons to act "in company" there must at least be an understanding between them as to their common purpose or object.

29 The trial judge's judgment does not recognise that a finding of common purpose was necessary to justify a conclusion that the appellant acted "in company" with others when he assaulted the complainant. Whilst the judgment contains, as required by s 133(2) of the Criminal Procedure Act, "the principles of law applied by the Judge", it reveals that the trial judge did not apply the correct principles.

30 The further question raised by these grounds of appeal is whether there was any evidence that could have supported a finding that the appellant and the person by whom he was accompanied had a requisite common purpose, permitting the conclusion that the appellant acted "in company".

31 There was no evidence of any relevant express communication between the appellant and Lillas. The only possible evidence that they shared a common purpose was their conduct in the moments before the appellant assaulted the complainant.

32 The trial judge referred to the CCTV film as showing that the appellant "advances towards the complainant with [Lillas]" (see [5] above). This accords with my observation of the film. The appellant and Lillas step towards the complainant and others standing near him. The appellant hit the complainant and Lillas appeared to hit a man next to him. However the advance together amounts to no more than about two or three steps.

33 This material is not, in my view, sufficient to permit the inference that there was a relevant arrangement or understanding between the appellant and Lillas. It is true that, from the complainant's point of view, he was being "confronted by the combined force or strength of two of more persons" (see the passage from Brougham quoted in [24] above) but that is not sufficient. If the psychological impact on the victim of the presence of more than one individual was the only relevant factor in determining whether an offence was committed "in company", an innocent bystander could be put at risk of involvement in an offence (see Western Australia v Maria Mona Dick [2006] WASC 81; 161 A Crim R 271 per Johnson J at [18]). Rather, the critical element is the existence of an arrangement or understanding between the accused and another (or others) to act in a certain way.

34 In the present case, the appellant and Lillas may have independently decided, on the spur of the moment, to approach and assault those in the complainant's group. The film of the moment in which they both appeared to advance to do that did not in my view establish beyond reasonable doubt that they implicitly agreed or had an understanding between themselves to do so.

35 In these circumstances I would uphold Additional Ground 2 as there was no evidence upon the basis of which the trial judge could have found that the appellant acted "in company" with another person or persons. The appellant's conviction of an offence under s 59(2) should therefore be quashed. However unless the appellant succeeds on one of the further grounds of appeal with which I have yet to deal, he should be convicted of an offence under s 59(1) as this replicates the offence created by sub-section (2) save for the "in company" element.

36 I note in conclusion in relation to these grounds of appeal that counsel for the appellant did not contend at the trial that the "in company" element of the offence had not been established. Nevertheless leave to raise the point on appeal (see r 4 of the Criminal Appeal Rules) should in my view be granted as it concerns an essential element of the offence of which the appellant was convicted and my conclusion on this point indicates that there was a miscarriage of justice so far as that conviction was concerned (see R v Moussa [2001] NSWCCA 427; 125 A Crim R 505 at [63]; Handlen v The Queen [2011] HCA 51; 86 ALJR 145 at [3]).

GROUND 2: "THE TRIAL JUDGE ERRED IN LAW BY FAILING TO CONSIDER THE DEFENCE OF SELF-DEFENCE WITHIN THE MEANING OF S 418 OF THE CRIMES ACT 1900 (NSW) ('THE ACT')"

37 This also was an issue that the appellant's counsel did not raise at the trial. On appeal the appellant contended that the omission was not significant as "the defence cannot effectively disclaim a defence open to the accused upon the evidence" (Pemble v R [1971] HCA 20; 124 CLR 107 at 133). The Crown responded by relying upon the decision of this Court in R v Ion (1996) 89 A Crim R 81 holding that the principle in Pemble does not apply to judge-alone trials. In turn the appellant responded by submitting that Ion was incorrect and should not be followed.

38 This possible application of Pemble in the present case need not be resolved as, for reasons given below, there was not in my view any evidence that provided a proper foundation for a defence of self-defence. Counsel for the appellant therefore had good reason for not raising the defence at the trial. In these circumstances, leave to raise this ground of appeal should be refused.

39 Section 418 of the Crimes Act provides for a defence of self-defence when two conditions are satisfied. First, the accused must have believed the conduct to be necessary (so far as is relevant to this case) "to defend himself or herself or another person". Secondly, the accused's conduct must have been "a reasonable response in the circumstances as he or she perceive[d] them". The first condition is concerned with the subjective state of mind of the accused and the second condition concerns the objective reasonableness of the conduct.

40 The appellant gave evidence in chief that he saw two people confronting his friend Blake Colombo and that he "walked around the back of Blake, because he is only a little guy, for his protection" (Transcript p 274). He said that Mr Colombo was head-butted and then "everybody jumped in. There was a lot of pushing and shoving" (ibid). He went on to say:

"I remember people getting pulled out, people that were in the fight getting pulled out, by who I am not sure. And I remember I took two or three steps and I jabbed out with my right hand ... I have taken two or three steps forward and jabbed out with my right hand [hitting the complainant] ... I knew Blake was behind me. I knew he was with the other group. I was more or less protecting my friends ... it wasn't a punch that had any intent to it, it was more or less a 'back off' kind of, 'get away from my friends' (Transcript pp 274 - 6).

41 The appellant also gave the following evidence in cross-examination:

"Q. At the time you approached Mr Wyllie, there was no threat coming from Mr Wyllie or Mr Coleman, was there?

A. To my opinion, yes, there was.

Q. What was that threat?

A. Mr Wyllie I knew was involved and I knew Mr Coleman was involved. I didn't know what they were going to do next. Mr Wyllie, I remember, was looking straight at me and I, my first instinct was, I wanted to protect my friend Blake who was behind me.

Q. Mr Wyllie was standing with his hands by his side, wasn't he?

A. Yes.

Q. He was standing in a type of posture suggesting 'there is no threat here', 'there is no drama here'?

A. In my opinion or my recollection, no he wasn't.

Q. How do you describe the stance that he was projecting?

A. It was more a - how do you describe it? A stance - he had his hands to his side but he was certainly looking straight at me and it was more of a, you know, kind of a--

Q. What? 'Come and hit'?

A. Kind of, yeah. That's what I would describe it.

Q. Standing there in a 'come and hit me' kind of stance?

A. He was looking straight at me, so he certainly didn't appear to me as if he was scared or he was cowering away or anything like that. It was straight up, looking straight at me.

Q. What, daring you to hit him?

A. I wouldn't say daring me to hit him but he certainly wasn't running away" (Transcript pp 293 - 294).

...

"Q. His hands were out extended as you have indicated, palms facing you in the gesture not of defiance or aggression but of submission or non-aggression?

A. Well no, being there it certainly wasn't submission. He would have been more aggressive or more aggressive than submission if you like, to put it that way.

Q. You agreed before I think with the suggestion that he was virtually saying [well come] and hit me or that was the impression you got?

A. That was the impression I got when I was there, yes" (Transcript p 307, 30 March 2011).

...

"Q. And you told us just then the extent you paid attention to Mr Wyllie on this night. Tell us about this aggressive look that he was portraying to you, what made this look aggressive?

A. Given the fact that I originally knew he was involved because he was one of the people that walked up and confronted Blake Colombo, so I knew he was in the fight in a sense there and when he got pulled back I remember him looking at me like that so as to say come on. It certainly wasn't a don't come near me look. It was more of a what have you got kind of look" (Transcript p 309).

...

"Q. You were the peace maker protecting your friend, weren't you?

A. I was protecting my friend, yes" (Transcript p 312).

42 None of this material constituted evidence of an imminent threat of physical harm to Mr Colombo or to the appellant which the appellant asserted justified immediate action on his part to defend himself or Mr Colombo by hitting the complainant. Certainly the appellant regarded the complainant's attitude as defiant but the appellant did not say that he thought that the complainant was about to hit him or Mr Colombo and that the appellant therefore needed to get his punch in first. Accordingly, there was no evidence that the first, subjective element of self-defence was satisfied. In any event, the second, objective element of a proportionate response to a perceived threat was also plainly not satisfied.

GROUND 3: "THE TRIAL JUDGE ERRED IN LAW BY MISDIRECTING HIMSELF ON THE STANDARD OF PROOF CONCERNING THE ELEMENT OF ACTUAL BODILY HARM IN THE OFFENCE OF ASSAULT OCCASIONING ACTUAL BODILY HARM IN COMPANY"

43 This ground relates to a statement made by the trial judge near the end of his judgment that the actual bodily harm that he found the appellant to have caused "together with the harm caused by the man around the corner [in the second assault] is probably what caused the complainant to be in the state that he is currently in" (Judgment p 18, 7 April 2011). The appellant submits that this statement indicated that his Honour did not regard it as necessary for him to be satisfied beyond reasonable doubt that the appellant caused actual bodily harm to the complainant.

44 I make the following observations in response to that submission.

45 First, the trial judge's conclusion was an understatement. It was clear, not merely "probable", that one or other, or both, of the two assaults caused the complainant's injuries. No other conclusion was available on the evidence.

46 Secondly, the statement did not represent a step in the trial judge's reasoning that led to his conclusion that the appellant was guilty of the relevant offence. It was merely a supplementary remark about the totality of the injuries suffered by the complainant. Once his Honour had concluded, in the absence of proof of grievous bodily harm, that the appellant had at least caused the complainant some actual bodily harm, it was not strictly relevant for his Honour to express a view as to how the totality of the injuries was occasioned. However his Honour apparently did so for the sake of completeness.

47 Thirdly, there is nothing in the passage relied upon to suggest that when considering whether the elements of the relevant offence were established, the trial judge considered that the Crown was not bound to prove its case beyond reasonable doubt. Indeed at two points not much earlier in his judgment, his Honour specifically stated that the Crown had to prove its case beyond reasonable doubt (Judgment pp 16 and 17).

48 This ground of appeal should accordingly be rejected.

CONCLUSION ON CONVICTION APPEAL

49 The remaining grounds of appeal relate to the sentence that his Honour imposed. As the appellant has succeeded in respect of Additional Ground 2 of his appeal, his conviction of an offence under s 59(2) of the Crimes Act should be quashed. However as that is the only ground upon which he succeeds, he should, for the reasons that I have given above (see [32]), be convicted of an offence under s 59(1) of the Crimes Act in exercise of the power conferred on this Court by s 7(2) of the Criminal Appeal Act (see Spies v R [2000] HCA 43; 201 CLR 603).

50 It is accordingly necessary to re-sentence the appellant. However before doing so I should deal with the appellant's grounds 4, 5 and 6 as they may be relevant to the re-sentencing (I shall continue to refer to the appellant as such notwithstanding that in respect of his sentence he needs leave to appeal). It is unnecessary to deal with Ground 7 (contending that the sentence is manifestly excessive) as the impugned sentence is nullified as a result of the appellant's conviction being quashed.

GROUND 4: "THE SENTENCING JUDGE ERRED BY FINDING THAT 'AT NO POINT HAS HE EXPLAINED IN ANY SATISFACTORY WAY WHY HE STRUCK AT THE VICTIM' AND 'IT IS HARD TO KNOW PRECISELY WHY HE HIT HIM ...' AND 'CAUSING HIM SOME HARM FOR NO APPARENT REASON ... '"

51 The appellant submitted that these remarks of the sentencing judge indicated that he had not considered the appellant's evidence "as to why he struck the victim".

52 I consider that the sentencing judge was well justified in making the remarks that he did. The appellant's description of the circumstances leading to his assault of the complainant did not in my view satisfactorily explain his behaviour. Certainly he asserted in general terms that he was defending his friend but the evidence that he gave did not reveal why he thought it necessary to punch the complainant when he did (see [40] above).

GROUND 5: "THE SENTENCING JUDGE ERRED BY NOT IDENTIFYING WITH PARTICULARITY THE EXTENT OF THE ACTUAL BODILY HARM INFLICTED BY THE APPLICANT UPON THE VICTIM"

53 The evidence did not in my view enable his Honour to identify with any particularity the extent of the actual bodily harm inflicted by the appellant upon the complainant. His Honour was not able to conclude that the complainant's grievous bodily harm resulted from the punch thrown by the appellant. The precise extent to which each assault contributed to the totality of the complainant's injuries could not be ascertained. It remained a "reasonable possibility that the grievous bodily harm was caused by the man who struck the complainant around the corner or by a combination of that man and the accused" (Judgment 7 April 2011, p 18). In these circumstances the only conclusion open to his Honour was that the complainant suffered at least actual (though not grievous) bodily harm as a result of the appellant's punch. An inability to identify with precision the extent of harm inflicted did not preclude the finding that actual bodily harm was undoubtedly inflicted by the appellant.

54 This ground of appeal should be rejected.

GROUND 6: "THE SENTENCING JUDGE ERRED BY FINDING 'VERY MANY ASSAULTS DO NOT WARRANT SENTENCES OF IMPRISONMENT AT ALL BUT WHERE A PERSON OF LARGE BUILD STRIKES ANOTHER CAUSING HIM SOME HARM FOR NO APPARENT REASON WITH NO JUSTIFICATION OFFERED THEN THAT CIRCUMSTANCE IN MY OPINION WARRANTS A SENTENCE OF IMPRISONMENT'"

55 The appellant's submission in relation to this ground was similar to that made in relation to ground 4, that is, that the statement that the appellant acted "for no apparent reason" ignored the reasons that the appellant gave for striking the complainant.

56 For the same reasons that I gave in connection with ground 4 (see [50] - [51] above), I would reject this ground of appeal.

RESENTENCING

57 The appellant is to be sentenced for an offence under s 59(1) of the Crimes Act. As pointed out earlier, it is not an element of this offence that the offender acted "in the company of another person or persons". The difference between the offences created by s 59(1) and (2) is significant as the maximum penalty for an offence under s 59(1) is imprisonment for 5 years compared to 7 years for an offence under s 59(2). The significance is also illustrated by the terms of the then Attorney-General's Second Reading Speech in relation to the Act (Crimes Amendment (Gang and Vehicle Related Offences) Act No 84 of 2001) that introduced sub-section 2 into the Act. The Honourable Mr Debus referred to the bill he presented as "a multifaceted approach to the issue of gang related activity" and said that "[t]he criminal law recognises that a crime committed by two or more persons together is more serious than when an offender acts alone".

58 Relevant to the objective seriousness of the appellant's offence is that he must be sentenced upon the basis that the Crown did not prove that his punch caused anything greater than some unidentified actual bodily harm. This harm, although not trivial, nevertheless cannot be taken to have been of any particular seriousness. Of significance is the fact that the blow constituted aggressive, potentially dangerous, conduct, engaged in without justification.

59 The appellant's criminal record included various driving offences in 2002 and 2003 including one "Drive vehicle in manner that menaces other with intent to menace" (Criminal history, NSW Police Force, 18 February 2011, p 3). The appellant was also convicted in 2003 of "Resist officer in execution of duty" (ibid p 3) and in 2007 of "Affray" (ibid p 3), for each of which offences he received a 12 month bond under s 9 of the Crimes (Sentencing Procedure) Act.

60 So far as the appellant's personal circumstances are concerned, his Honour observed that the appellant is a powerfully built man who has ambitions to join the Australian Army. At the time of sentencing by his Honour the appellant lived at home with his parents and had a lawful occupation that was interrupted by his involvement in these proceedings (Probation and Parole Service Pre-Sentence Report, 20 May 2011, p 1). He resumed full-time employment whilst subject to the Intensive Correction Order which commenced on 29 July 2011. He was supported by references that described him, in one case, as "caring and kind ... devoted and compassionate" (Letter dated 10 May 2011) and in another as "an honest, genuine and a kind natured individual" (Letter dated 17 May 2011, p 1). As noted by Dr Gregory Levenston, the appellant "stands on the threshold of his adult life" (Bronte Medical Centre Report, 13 May 2011) and the decision of this Court has the potential to steer its commencement in a propitious direction. Accordingly, the views of the appellant's referees that he is a "man of honesty and integrity" who "will contribute to society in a positive and productive manner" (Letter dated 10 May 2011) assume importance in the sentencing process and suggest that the appellant has good prospects of rehabilitation (see s 21A(3)(h) of the Crimes (Sentencing Procedure) Act 1999).

61 In my view a sentence of imprisonment is not warranted in respect of this isolated act of aggression that was not proved to have caused significant harm. Whilst the conduct of the appellant is to be condemned, I consider that it would sufficiently satisfy the purposes of sentencing identified in s 3A of the Crimes (Sentencing Procedure) Act 1999, including punishment, deterrence and protection of the community, for the appellant to be ordered to undertake 150 hours of community service work. The appellant has been assessed as suitable for a community service order and has signed an undertaking to this effect pursuant to s 86 of the Crimes (Sentencing Procedure) Act.

62 As it appears that in his partial performance of the Intensive Correction Order made on 22 July 2011, the appellant should have undertaken community service for almost half of this period, I would limit the order now made to 75 hours of community service work.

63 For the reasons that I have given, I propose that the following orders be made:

(1) Leave granted under r 4 of the Criminal Appeal Rules to raise Additional Ground of Appeal 2.

(2) Appeal allowed.

(3) The appellant's conviction on 7 April 2011 of an offence under s 59(2) of the Crimes Act is quashed.

(4) The appellant is convicted of an offence under s 59(1) of the Crimes Act that he did on 9 August 2009 at Surry Hills in the State of New South Wales assault Mathew Cunneen Wyllie thereby occasioning to him actual bodily harm.

(5) The appellant is directed to perform 75 hours of community service work. The appellant is to attend the City District Office of the Probation and Parole Service within seven days of the date of this judgment.

64 RS HULME J: I have had the advantage of reading the reasons for judgment of Macfarlan JA. I agree with his Honour that, for the reasons his Honour gives, the appeal against conviction should be allowed.

65 I disagree with his Honour as to the sentence which should be imposed upon the Appellant for the offence of assault. While I accept that the Appellant's offence was an isolated act of aggression that was not proved to have caused significant harm, there are limits to the weight to be given to this latter circumstance. Certainly, the injury inflicted could have been greater, but if too much greater, it was liable to amount to grievous bodily harm and the character of the offence substantially more serious. Furthermore, the seriousness with which the legislature views conduct such as the Appellants must also be borne in mind. His offence, of inflicting actual but not grievous bodily harm, rendered him liable to imprisonment for 5 years - Crimes Act 1900, s 59. Mere common assault, ie, without occasioning any bodily harm, renders an offender liable to imprisonment for 2 years - s 61.

66 The fact that the Appellant's action was an "isolated act of aggression" must also be judged in light of his not insubstantial record.

67 He has previously been convicted:-

(i) In 2002, of, inter alia, on two occasions driving a vehicle recklessly, furiously or in a speed or manner dangerous to the public for which offences two Community Service Orders were imposed;

(ii) in 2002, resisting or hindering a police officer in the execution of his duty for which he was given a 6 month bond;

(iii) in 2003, of driving a vehicle in a manner that menaces with intent to menace and also of assault for which offences another two Community Service Orders were imposed;

(iv) in 2003, of resisting an officer in the execution of his duty for which a 12 month bond was imposed; and

(v) in 2007, of affray for which he received a third bond.

68 Given this prolonged history of antisocial behaviour, I would regard it as quite inappropriate that the Appellant receive yet more leniency by way of a Community Service Order. He is a thug who has not learnt, from prior chances he has been given, as to how to behave in a civilised society.

69 That conclusion is reinforced by evidence which was provided to the Court after the hearing of the appeal pursuant to orders then made and with a view to the Court being able to re-sentence should that be necessary. That evidence consisted, in part, of an affidavit of the solicitor for the Appellant which was received on 1 March 2012 which indicated, inter alia, that the Appellant had undertaken some short term but later full time employment and, apart from four days when he provided medical certificates, had performed community work duties each Sunday during August to December 2011. (I infer the reference to December was intended to encompass only that part of December prior to the Appellant being given bail.)

70 In response, the Crown provided an affidavit from a Ms Rottenberg, solicitor in the employ of the Office of the Director of Public Prosecutions, which annexed a report from a Compliance and Monitoring Officer of the Department of Corrective Services. That report records that the Appellant had been significantly non-compliant with the requirements of the Department, had failed to attend 11 of 20 compulsory work component days, providing medical certificates for only four of these days and had failed to attend induction programmes on two occasions. However, no breach action had been initiated.

71 The Court orders provided for the Appellant to file further material if there remained any issue consequent on any affidavit filed by the Crown. No further material was received.

72 I appreciate that he has already served something over four months under the Intensive Correction Order imposed by Finnane DCJ, but it seems to me that form of penalty is one which should remain notwithstanding the fact that the offence for which the Appellant is now to be sentenced is assault occasioning actual bodily harm, not the more serious offence of assault occasioning actual bodily harm in company for which he was sentenced by Finnane DCJ.

73 Given the reduction in the gravity of the offence, it is appropriate to reduce the length of the Appellant's sentence from that imposed by his Honour. Subject to the Appellant being given credit for time served, he should be sentenced to imprisonment for a period of 6 months to be served by way of an Intensive Correction Order. The time served pursuant to the orders of Finnane DCJ prior to being granted bail amounted to 4 months and 1 week. Accordingly, I would impose a further sentence of imprisonment to be served by way of an Intensive Correction Order for a period of 1 month and 3 weeks. However, in light of the fact that mine is a minority view, it is unnecessary for me to formulate precise orders.

74 RA HULME J: I agree with Macfarlan JA.

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Decision last updated: 23 April 2012