CHATTERTON v Police - [2011] SASC 137

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CHATTERTON v POLICE
[2011] SASC 137
Judgment of The Honourable Justice Anderson
25 August 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY, HOUSEBREAKING AND LIKE OFFENCES - ENTERING AS TRESPASSER OR WITH INTENT OR BEING FOUND WITH INTENT
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against conviction and sentence - appellant convicted of three offences, namely failing to comply with a bail agreement, criminal trespass and assault - appellant entered the balcony of a residence whilst intoxicated and assaulted the occupant - appellant sentenced to concurrent sentences amounting to 2 months imprisonment - appellant at the time of sentencing already serving a 16 month term of imprisonment commencing on 25 March 2011 with a non-parole period of 9 months for unrelated offending.
Whether magistrate erred in finding elements of the offence of criminal trespass made out - whether appellant knew he was a trespasser or was recklessly indifferent to the fact - whether a balcony constitutes a "place of residence" for the purposes of s 170A of the Criminal Law Consolidation Act 1935 (SA) - whether sentence manifestly excessive - whether extension of existing non-parole period manifestly excessive where non-parole period same as head sentence.
Held: Magistrate correct in finding the elements of the criminal trespass offence proved beyond reasonable doubt - appellant either knew or was recklessly indifferent - balcony constitutes a "place of residence" - sentence not manifestly excessive - extension of existing non-parole period not manifestly excessive - appeal allowed insofar as magistrate erred in not setting a commencement date for the head sentence - sentence of magistrate set aside - appellant resentenced to a head sentence of 2 months to commence at the end of the 16 month head sentence imposed on 25 March 2011 - existing non-parole period of 9 months extended by 2 months - all other grounds of appeal dismissed.
Bail Act 1985 (SA) s 17; Criminal Law Consolidation Act 1935 (SA) s 20, s 170 and s 170A; Criminal Law (Sentencing) Act 1988 (SA) s 32, referred to.
R v Bennett [2004] SASC 52; R v Jackson [2005] SASC 472; R v Williams (1990) 53 SASR 253, discussed.

CHATTERTON v POLICE
[2011] SASC 137
Magistrates Appeal: Criminal
ANDERSON J.
Introduction

This is an appeal against conviction and sentence. The appellant was convicted by a magistrate of three offences, namely failure to comply with a bail agreement contrary to s 17 of the Bail Act 1985 (SA) (count 1), criminal trespass in a place of residence contrary to s 170A of the Criminal Law Consolidation Act 1935 (SA) (“the Act”) (count 2) and assault contrary to s 20(1) of the Act (count 3). The appellant pleaded guilty to the bail offence and to assault but not guilty to the offence of criminal trespass and the trial was conducted on this count alone. The trial was conducted on the papers.
On 1 June 2011 the appellant was found guilty of criminal trespass by the magistrate and was sentenced as follows:
(1)Fail to comply with a bail agreement – conviction recorded and no further penalty;
(2)Criminal trespass in a place of residence - conviction recorded and 2 months imprisonment;
(3)Assault – conviction recorded and 1 month imprisonment, concurrent with the 2 months.
At the time of sentencing the appellant was already serving a sentence of imprisonment of 16 months and was subject to a non-parole period of 9 months for unrelated offending. That sentence was imposed by the District Court of South Australia on 25 March 2011.
The magistrate determined that the sentences for the criminal trespass and assault were to be served concurrently but cumulative to the term of imprisonment already being served. The magistrate extended the existing non-parole period by a period of 2 months from 25 March 2011 which resulted in a revised non-parole period of 11 months. It appears that Her Honour intended to set a head sentence of 2 months for this new offending to be cumulative to the existing head sentence of 16 months but that is not clear.
Background
The prosecution led evidence at trial that on the evening of 15 March 2011 the appellant went to the complainant’s residence at Mawson Lakes. The complainant was on his first floor balcony when he heard the appellant yelling from the footpath below. The complainant enquired who the appellant was after and the appellant requested a number of times a person named “Dan”. A five minute conversation ensued whereby the complainant attempted to explain to the appellant that there was no “Dan” residing at his apartment. The appellant then walked off to a vehicle parked on the street and the complainant went back inside his apartment.
Approximately 20 minutes later the complainant heard noises coming from the balcony. When he went to inspect the noise, he discovered the appellant was on the balcony. The appellant grabbed the complainant by the shirt and again shouted at him to “get Dan”. The complainant managed to push the appellant away and call the police. The two continued to argue for another 15 minutes as the appellant kept asking for “Dan”. The complainant told the appellant he had contacted police and the appellant climbed down from the balcony.
Police attended the residence and arrested the appellant who had not left the area. The appellant was intoxicated at the time of his arrest and was subject to home detention bail for another offence with a condition that he not consume any drugs or alcohol.
Grounds of appeal
The grounds of appeal raised by the appellant are:
1.That the charge (criminal trespass) was not proved beyond reasonable doubt;
2.That the sentence for the charge of criminal trespass and assault are both manifestly excessive; and
3.That the extension of the existing non-parole period is manifestly excessive.
Criminal Trespass
Section 170A of the Act states:
170A—Criminal trespass—places of residence
(1)A person who trespasses in a place of residence is guilty of an offence if another person is lawfully present in the place and the person knows of the other's presence or is reckless about whether anyone is in the place.
Maximum penalty:
(a) for a basic offence—imprisonment for 3 years;
(b) for an aggravated offence—imprisonment for 5 years.
(2)In this section—
place of residence means a building, structure, vehicle or vessel, or part of a building, structure, vehicle or vessel, used as a place of residence.
Submissions of counsel
Counsel for the appellant, Mr Blake, submitted that the magistrate erred in finding that all the elements of the criminal trespass offence were proved beyond reasonable doubt. He submitted first that the appellant did not have the requisite intention to commit the offence and secondly that the balcony in question did not constitute a “place of residence” for the purposes of the section.
In relation to the first point Mr Blake referred to the case of R v Bennett [2004] SASC 52 as authority for the proposition that a trespass requires proof that the person charged knew that a trespass was occurring or was reckless to as to that fact. In Bennett Doyle CJ was dealing with s 170 of the earlier Act (Serious Criminal Trespass) which is couched in similar terms to s 170A. His Honour stated at [28] in relation to s 170:
[28]It is consistent with principle to treat s 170 (1) of the Criminal Law Consolidation Act 1935 (SA) as requiring proof that the person charged knew that he or she was a trespasser, or was recklessly indifferent as to whether he or she was a trespasser. The section creates a serious criminal offence. Parliament should not be taken to have intended to punish merely unknowing or careless conduct that amounts to a trespass at law. The law of trespass is complex in some respects. Requiring proof that the person charged knew that a trespass was occurring, or was reckless as to that, will help ensure that the application of the section is appropriate. As well, High Court authority dealing with a somewhat similar provision indicates that the state of mind of the accused should be treated as an element of the offence: Barker v The Queen (1983) 153 CLR 338 at 344, 348, 361, 365-6.
Mr Blake submitted that the appellant was not a trespasser as he mistakenly thought he was at the premises of a person “Dan”, who was known to him. Upon realising his mistake the appellant left the balcony and remained in the immediate vicinity of the residence. It was submitted that whilst such conduct is careless, it is not the actions of someone with the relevant intention to act as a trespasser.
Mr Blake further submitted that Parliament intended that the purpose of s 170A of the Act, which was introduced by the Criminal Law Consolidation (Serious Criminal Trespass) Amendment Bill 1999, was to overcome the perceived weakness in the law of serious criminal trespass that required both proof of the trespass and intention to commit theft, assault or property damage: see Hansard, House of Assembly, 18 November 1999 at pages 559-580. Mr Blake submitted that Parliament did not intend to punish merely careless conduct that amounts to trespass at law.
In relation to the second point, Mr Blake submitted that a balcony is not a place of residence for the purposes of s 170A(2) of the Act. He submitted that a balcony is outside of a residence and in relation to this balcony there were lockable doors to separate it from the place of residence. Mr Blake argued that a balcony is no different to a front porch of a house, a private courtyard behind locked gates, a private deck are outside a lockable door or a roof of a house, which he submitted are all not a place of residence as defined by the Act.
Counsel for the respondent, Ms Amos, submitted that magistrate was correct in finding that the charge of criminal trespass had been proved beyond reasonable doubt. She submitted that the appellant had the intention to act as a trespasser and the balcony constituted part of the place of residence for the purposes of the Act.
Ms Amos submitted that on the facts, the appellant could not have had any other intention other than to trespass. He had been told prior to gaining access to the balcony that his friend “Dan” did not live at the premises. He was not given permission to be on the premises by the occupant. He then went to some considerable effort to get on to the balcony by scaling scaffolding that was erected next to the complainant’s apartment. It is clear that he was not given permission to be there. Had he been a lawful attendee he would have attended via the front door of the apartment.
In relation to the second point Ms Amos submitted that the balcony constitutes part of the place of residence for the purposes of s 170A(2) of the Act. She stated that whether the balcony is part of the residence is a question of fact. In R v Jackson [2005] SASC 472, Debelle J stated at [12]:
[12]The expression “place of residence” is not a legal or technical term but is to be given its meaning in ordinary usage: Gregory v Deputy Federal Commissioner of Taxation (WA) (1937) 57 CLR 774 per Dixon J at 777. In addition, its meaning must be understood in every case in accordance with the object and intent of the Act in which the expression occurs: cf Ex parte Breull; re Bowie (1880) 16 Ch D 484 at 486. What constitutes a place of residence is a question of fact; it is not a question of law: Australasian Temperance & General Mutual Life Assurance Society Co v Howe (1922) 31 CLR 290 per Higgins J at 329; Gregory v Deputy Federal Commissioner of Taxation (WA) (supra). It is a question of fact and degree: Commissioner of Taxation v Miller (1946) 73 CLR 93 at 97, 101, 103; cf R v King (1978) 19 SASR 118 at 119–120, 123. Although it is a question of fact, reference to authority provides assistance for determining what kind of premises are comprehended by the expression a “place of residence”.
Ms Amos submitted that the balcony is part of the residence as it comes under the same roof structure as the rest of the apartment and has direct access into the main living area of the apartment. It is a private elevated area to which there is no other designated means of access except through the main living area of the apartment. Ms Amos submitted that this is quite different to a private courtyard or backyard which is easily accessible to visitors who may be complete strangers.
Consideration
In my view, the magistrate was correct in finding that the elements of the offence of criminal trespass were made out. The appellant knew from his earlier conversation with the complainant that the complainant was present in the place and that ‘Dan’ did not reside there. At the very least, the appellant was reckless as to whether the complainant was lawfully present there. By climbing up the balcony to gain access the appellant has done significantly more than mere unknowing or careless conduct. He was in fact defiant. Had he had an intention other than to trespass, one would have assumed the appellant would have wished to enter the residence via the front door which is the orthodox method of entering a house rather than scaling scaffolding next door and jumping across onto a balcony. That has all the hallmarks of an intention to trespass.
In terms of the balcony itself, it is in my view, for the reasons submitted by Ms Amos, an integral part of the house that does not have a designated means of access other than from inside the apartment. It is “part of a building” used as a “place of residence” for the purpose of s 170A of the Act. It clearly comes within the definition in my view.
I therefore dismiss the first ground of appeal.
Sentences for criminal trespass and assault manifestly excessive
Section 170A(1)(a) of the Act provides a maximum penalty for a basic offence of criminal trespass in a place of residence of imprisonment for 3 years. Section 20(3)(a) of the Act provides a maximum penalty for a basic offence of assault of imprisonment for 2 years.
Mr Blake submitted that the sentences imposed by the learned magistrate in relation to the criminal trespass and assault offences, being 2 months imprisonment and 1 month imprisonment respectively, were manifestly excessive given the nature of the offending and the personal circumstances of the appellant. Mr Blake pointed out that there was no relevant prior offending by the appellant which involved offences of violence or trespassing and the offence itself was relatively minor in nature.
The appellant was 22 years of age when sentenced. He had a number of previous convictions for traffic offences and was given suspended sentences for driving whilst disqualified. He breached one of the suspended sentences. He was a binge drinker in the past and experimented with illicit drugs. This became a habit for which the appellant required treatment. Her Honour took into account the appellant’s prospects of rehabilitation. It was recommended that he attend an anger management program.
Mr Blake submitted that the magistrate erred in incorrectly imposing a sentence of imprisonment as a starting point for the penalty. He submitted that the magistrate’s sentencing remarks do not indicate why any other sentencing options were not appropriate.
Ms Amos submitted that the magistrate did consider alternative sentences. In her sentencing remarks the magistrate specifically indicated at [7]:
[7]I take into account submissions by your counsel regarding penalty. I reject the submission that a simple good behaviour bond would be sufficient penalty for Counts 2 and 3. In my view it does not reflect the seriousness of the offending, and would be inappropriate.
In my view the magistrate has been quite lenient. I consider that each of the two sentences for criminal trespass and assault, and the fact that they were ordered to be concurrent, is a light penalty for the appellant’s behaviour in this instance. The magistrate did not accept that his behaviour was not much more serious than an annoyance. She found that he was aggressive and posed a potential danger to the complainant. Her Honour commented at [1] that:
[1]… That would have been quite frightening for him to be confronted by you in your intoxicated state; in the confines of a little balcony on that first floor apartment; not knowing you, what you were capable of; what this was all about. It is not something that a person should be expected to have to deal with …
I agree with those comments of Her Honour.
Extension of the existing non-parole period manifestly excessive
Section 32(1)(b) of the Criminal Law (Sentencing) Act 1988 provides that:
32—Duty of court to fix or extend non-parole periods
…
(1) Subject to this section, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must—
…
(b) if the person is subject to an existing non-parole period—review the non-parole period and extend it by such period as the court thinks fit (but not so that the period of extension exceeds the period of imprisonment that the person becomes liable to serve by virtue of the sentence, or sentences, imposed by the court);
…
Her Honour states in her sentencing remarks at [10]:
[10]… You are already subject to a nine month non-parole period. I extend the non-parole period by a period of two months from 25 March 2011. In my view it is appropriate to do that to give some meaning to the sentence that I impose today so that you understand that there is a penalty for what occurred.
Mr Blake submitted that the fixing of a non-parole period should not be a mechanical exercise of simply adding on to the previous non-parole period. He submitted that a discretion had to be exercised.
In my view the magistrate wanted to make it plain that the appellant was being penalised for his conduct in the offending under review and to that end she wished to impose an additional term of imprisonment. Her Honour rejected the submission that a good behaviour bond would be sufficient penalty. The magistrate reviewed the existing non-parole period and extended it by 2 months. The magistrate did not, however, adequately deal with the commencement date for the head sentence in her final analysis. That in my view is a sentencing error.
In R v Williams (1990) 53 SASR 253 at 254 King CJ stated:
I think that it is important that the sentence which appears in the records of the court should properly reflect the court’s estimate of the degree of culpability involved in any crime, and I do not think that it would be right to inflate the head sentence because part of it is running concurrently with another sentence. There is no relationship between the crimes for which the appellant was sentenced to the 15 months’ imprisonment and the present crime and I think that it was wrong in principle to make them run concurrently with one another. In my opinion the sentence of the court should be made to commence at the expiration of the sentence which the appellant was serving at the time that he was sentenced for these present offences.
Ms Amos suggested that there was no reason why the head sentence in this matter could not be for a total of 2 months commencing on the expiration of the sentence imposed on 25 March 2011 and that the extension of the non-parole period by 2 months should remain.

I have said earlier that in my view the sentences imposed by the magistrate are lenient. Consistent with what Her Honour wished to achieve in her sentencing I would order that the head sentence of 2 months commence at the expiration of the sentence of 16 months which was imposed on 25 March 2011.
On her review of the existing non-parole period of 9 months I do not consider that the magistrate has erred in then extending the non-parole period by a further 2 months.
In particular I do not consider this to be manifestly excessive. The magistrate was entitled in the broad exercise of her sentencing discretion to deal with the matter in this way.
Conclusion
I therefore allow the appeal in respect of counts 2 and 3 insofar as I agree that the magistrate was in error in that she did not adequately address the need to impose a separate head sentence when she extended the existing non-parole period. Specifically, Her Honour did not indicate a starting date for the new head sentence.
I set aside the sentence of the magistrate. In relation to count 2, I resentence the appellant to a head sentence of 2 months imprisonment to commence at the end of the 16 months head sentence imposed on 25 March 2011.
In respect of count 3, I resentence the appellant to a head sentence of 6 weeks imprisonment, which I reduce for the guilty plea to 1 month. This is to be served concurrently with count 2, commencing at the end of the 16 month head sentence imposed on 25 March 2011.
Turning now to the non-parole period, I extend the existing non-parole period by a further period of 2 months to a total period of 11 months commencing from 25 March 2011.
In all other respects the appeal is dismissed.