CHATTERTON v Police

Case [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

  1. 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…

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CHATTERTON v Police [2011] SASC 137
Case
[2011] SASC 137
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CaseChat Overview and Summary

The appeal in Chatterton v Police involved the appellant, Chatterton, challenging his conviction and sentence for three offences. These included failing to comply with a bail agreement, criminal trespass, and assault. The incident occurred when Chatterton, intoxicated, entered the balcony of a residence and assaulted the occupant. The magistrate sentenced Chatterton to concurrent sentences amounting to two months imprisonment, which were to be cumulative with a 16-month sentence he was already serving for unrelated offences. The key legal issues for the court to decide were whether the magistrate erred in finding the elements of the criminal trespass offence proved, whether the balcony constituted a "place of residence" under the Criminal Law Consolidation Act 1935 (SA), and if the sentence was manifestly excessive.

The court found that the magistrate was correct in establishing that the elements of the criminal trespass offence were met. Chatterton either knew he was a trespasser or was recklessly indifferent to the fact. The court also held that the balcony, being part of the apartment with no other designated means of access except through the main living area, qualified as a "place of residence". The sentence was deemed not manifestly excessive, and the extension of the existing non-parole period was not found to be manifestly excessive either. However, the court did find that the magistrate erred in not setting a commencement date for the head sentence for the new offences. Consequently, the sentence was set aside, and Chatterton was resentenced to a head sentence of two months to commence at the end of the existing 16-month sentence imposed on 25 March 2011. The existing non-parole period was extended by two months to a total of 11 months. All other grounds of appeal were dismissed.

The reasoning of the court was grounded in the evidence presented and the statutory definitions. The court emphasised that the appellant's actions went beyond mere unknowing or careless conduct and had the hallmarks of an intention to trespass. Additionally, the court found the balcony to be an integral part of the house, clearly coming within the definition of a "place of residence". The court also concluded that the sentence was within the broad exercise of the magistrate's sentencing discretion and was not manifestly excessive, considering the appellant's personal circumstances and the nature of the offences. The court's final orders included the resentencing of the appellant with a specified commencement date for the new head sentence and an extension of the non-parole period by two months. The appeal was otherwise dismissed.

Orders

Orders of the court

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.

Background

Background to the litigation

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; and3.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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

ANDERSON J
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.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J

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.