Director of Public Prosecutions v Boys

[2020] VCC 1313

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-00628

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMIE BOYS

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	18 August 2020
DATE OF RULING:	25 August 2020
CASE MAY BE CITED AS:	DPP v Boys
MEDIUM NEUTRAL CITATION:	[2020] VCC 1313

REASONS FOR RULING
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Subject:  CRIMINAL LAW

Catchwords: Ruling – Emergency Protocol Case Management Hearing – Defence Application - Whether charges of aggravated home invasion (pursuant to s.77B Crimes Act 1958) and home invasion (pursuant to s.77A Crimes Act 1958) are open on the evidence – Statutory construction and statutory interpretation – Question as to whether premises where alleged offending took place was a 'home' as defined by s.77A(5) Crimes Act 1958 – Question of whether the definition of ‘home’ as set out in s.77A(5) Crimes Act 1958 encompasses the premises (crop house) allegedly entered by accused in this case - House no longer intended for use as a dwelling - House being used as cannabis production facility – Question of ambiguity after application of statutory rules – Liberty of an accused

Legislation Cited:       Crimes Act 1958 (Vic); Residential Tenancies Act 1997; Sentencing Act 1991; Crimes (Amendment Carjacking and Home Invasion) Act 2016; Interpretation Legislation Act 1984

Cases Cited:Little (a pseudonym) v The Queen (2015) 45 VR 816; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 26; Federal Commissioner for Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; DPP v Leys (2012) 34 VR 206; Beckwith v The Queen (1976) 35 CLR 569

Ruling:Defence Application to permanently stay charges of Aggravated home invasion and Home invasion granted

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Y. Hardjadibrata	Solicitor for Public Prosecutions
For the Accused	Mr A. Pyne	VALS

HER HONOUR:

1This is an advanced ruling upon application by defence on behalf of the accused, Jamie Boys, in respect of whether the charges of aggravated home invasion, pursuant to s.77B Crimes Act 1958 (the Act) and home invasion pursuant to s.77A of the Act, are open on the evidence in respect of his trial. This turns on the question of whether the premises where the alleged offending took place were a 'home' as defined by s.77A(5) of the Act (which I might refer to from time to time as ‘the primary issue’). 

2I make the ruling in the context of running an emergency protocol case management hearing (which I might refer to from time to time as the ‘EPCMH’ or ‘the hearing’), which was listed by agreement of the parties. 

3By way of background, originally there were two accused who were the subject of the EPCMH, Mr Boys and Jordan Guerra, each of whom were charged with one charge of aggravated home invasion, home invasion as an alternative and aggravated burglary as a further alternative.  They were each charged with theft of a motor vehicle.  Mr Guerra was also charged with theft of a mobile phone and theft of a laptop computer.

4In his defence response dated 20 July 2020, Mr Guerra indicated that he was prepared to plead guilty to all of the charges, save the home invasion charges, however his position had not been accepted by the prosecution as at the commencement of the EPCMH. Like Mr Boys, he argued that the premises in question were not a 'home' as defined by s.77A(5).

5Mr Boys intends to plead not guilty to all of the charges alleged against him, denying involvement in any of the alleged offences.  However, he argues that the alleged premises were not a home, in any event, and therefore, the home invasion charges are foredoomed to fail on that basis and ought be permanently stayed.[1]

[1] Little (a pseudonym) v The Queen (2015) 45 VR 816; references to other authorities in respect of this are made in Defence submissions dated 20^th July 2020 at para32.

6The prosecution alleges that on 4 October 2018 Mr Boys, Mr Guerra and two other offenders drove a stolen car to a house in Craigieburn with intent to steal cannabis plants which were being grown in a number of rooms at the house.  They forced entry to the house whilst one of them had a pickaxe, allegedly knowing or being reckless as to whether anyone was at the house.

7When they entered the premises, they disturbed a Nikita Farquhar who was asleep on a fold out bed in the living room.  They confronted Ms Farquhar and stole some of her belongings as well as a number of cannabis plants.

8The Prosecution Opening states at paragraph 7 that the:

"residential dwelling… had been converted into an elaborate cannabis crop house in which a large quantity of cannabis plants were being grown hydroponically.'[2]

[2] Summary of Prosecution Opening dated 19^th March 2020 (P.3)

9In her police statement which the Crown has sought to be admitted into evidence by way of a Notice to Admit, Ms Farquhar said that the house was, 'a drug house' which she was, 'told to stay in once and a while.  The Asians who owned the house tell my mum to tell me to stay at the house, I don't know why'.  (p.65 Depositions).

10Beyond this, there is nothing much more by way of evidence as to the nature of the premises in the prosecution opening other than paragraph 20 which refers to police attending and finding cannabis plants, and an electrical bypass at the house as well as the CCTV camera.  There is also reference to photos being taken at the house which are contained in the depositions.

11I received written submissions from each of the parties and further written submissions from the Crown in reply to those from defence.  At the commencement of the hearing I engaged in a discussion with the parties and indicated that my preliminary view was that the premises in the circumstances of this case did not come within the statutory definition of 'home', or rather that this was not clearly so, such that, an interpretation that was less punitive to the accused was to be preferred.

12After I expressed my preliminary view the matter was stood down for discussions and for the Crown to obtain instructions.

13At first the learned prosecutor returned indicating that the Crown would only accept pleas of guilty from each of the Accused to aggravated burglary or not at all.    When I raised my strong concern about the propriety of this approach, and after some further discussions, the matter was further stood down for the Crown to obtain further instructions from a Senior Crown Prosecutor or the Chief Crown Prosecutor, at my request.

14Ultimately, the Crown indicated that whilst not accepting the correctness of my preliminary view, they had accepted Mr Guerra's offer to plead guilty to aggravated burglary and a number of thefts, which was in accordance with what he had offered in his defence response, save that the Crown added a further theft charge in respect to the cannabis plants.  Mr Guerra agreed to plead guilty to this charge as well.

15Therefore, the prosecution accepted that Mr Guerra's criminality was appropriately reflected in his plea of guilty to aggravated burglary as opposed to the home invasion charges.  However, they maintained the home invasion charges in respect of Mr Boys, with the alternative of aggravated burglary and theft.  They requested that I give a formal ruling in respect of the primary issue.

16As I have said, Mr Boys intends to plead not guilty to all of the charges, as he denies any involvement in the alleged offending.  The case against him very much depends on whether a properly instructed jury is satisfied that he made an admission to his involvement in the offending to a witness in the trial, Ms Lisa Berhnt.  There is CCTV footage of the offenders and some shoes found at Mr Boys' house, as I understand it, which are similar to those worn by one of the offenders in the footage.  The Crown also appears to rely on some recorded conversations between Mr Guerra and Ms Berhnt.

17However, the central piece of evidence in relation to Mr Boys is the alleged admission.  Unless a jury was satisfied beyond reasonable doubt of its truth and accuracy, the Crown case would fail.

18Defence argue that I ought exclude the alleged admission on the basis that it was lacking in reliability.  I refused to do so, as I was of the view that this was a jury question.

19In essence, the determination of the ruling which I now give comes down to the question of whether the definition of ‘home’ which is set out in s.77A(5) encompasses the premises which were allegedly entered by the accused in this case.

20Section 77A provides:

(1) A person commits a home invasion if

(a) the person enters a home as a trespasser with intent -

(i) to steal anything in the home; or

(ii) to commit an offence punishable by imprisonment for a term of five years or more -

(A)  involving an assault to a person in the home; or

(B)  involving any damage to the home or to property in the home; and

(b) the person enters the home in company with one or two other persons; and

(c) either -

(i) at the time the person enters the home, the person has with them a firearm, an imitation firearm, an offensive weapon, an explosive or imitation explosive; or

(ii) at any time while the person is present in the home, another person (other than a person referred to in paragraph (b)) is present in the home.

21Sub-section 2 provides that for the purpose of sub(1)(c)(ii), it was immaterial whether or not the person knew that there was or would be another person present in the home.

22Relevant to the primary issue in this ruling, s.77A(5) provides:

'Home means any building, part of a building or other structure intended for occupation as a dwelling and includes the following:

(a) any part of commercial or industrial premises that is used as residential premises;

(b) a motel or room or hotel room or other temporary accommodation provided on a commercial basis;

(c) a rooming house within the meaning of the Residential Tenancies Act 1997;

(d) a room provided to a person as accommodation, a residential care hospital or any other premises involved in the provision of health services to the person;

(e) a caravan within the meaning of the Residential Tenancies Act 1997 or any vehicle or vessel used as a residence.

23The offence of aggravated home invasion is set out in s.77B and adopts the same definition of ‘home’ - that is, the definition in 77A(5).

24Section 77A is a category 2 offence for the purposes of the Sentencing Act 1991, which means that a custodial sentence must be imposed, and s.77B is a category 1 offence which means that a non-parole period of at least three years imprisonment must be imposed.

25The offence of aggravated burglary also has a maximum penalty of 25 years but does not have these sentencing mandates and in that way, is less punitive- at least, potentially.

26There is no case law which directly deals with the primary issue in this case.

27Section 77A was inserted into the Crimes Act 1958 by the Crimes (Amendment Carjacking and Home Invasion) Act 2016.  The explanatory memorandum states, in part:

'For the purpose of this new s.77A, home is defined as any building, part of a building or other structure intended for occupation as a dwelling.  This includes a part of a commercial or industrial premises that is used as residential premises, for example, a home with a shopfront open to the public.  This also includes a motel room or hotel room or other temporary accommodation provided on a commercial basis, a rooming house, a room in a residential care service, hospital or other health service provider, and a caravan or any vehicle used as a residence.'

28In written submissions on the primary issue, the prosecution relies on the CCTV footage and photos saying that the house in question was an ordinary residential dwelling located in a residential street in a residential suburb of Melbourne.  They refer to parts of Ms Farquhar's statement including the reference to which I have just referred, and also to a passage where she says that some of the men went to the back of the room next to the kitchen where there were pots of marijuana.

29The prosecution further relies on evidence of the police who first attended who said that most of the rooms of the house were being used to grow cannabis plants. The salient parts of the statement of police officer, Mr Dehmel, from the prosecution's point of view, appear to be his observations of a sleeping area in the main living room and large amounts of rubbish 'strewn about'.  I understand that the rubbish comprised, at least in part, of food packaging. The police officer also says that there were four large rooms inside the house with a setup to grow cannabis plants and that there were several plants of different ages in these rooms- Of course, that is at a time after cannabis plants had been removed from the property by the alleged offenders in this matter.

30The prosecution submits that the definition of ‘home’ for the purposes of the home invasion offences, is a wide one, which is inclusive, and it expands on the ordinary meeting of ‘home’.

31Mr Hardjadibrata referred to s.35 Interpretation Legislation Act 1984 which provides:

'In the interpretation of a provision of an Act or subordinate instrument -

(a)  a construction that would promote the purpose or object underlining the Act or subordinate instrument, whether or not that purpose or object is expressly stated in the Act or subordinate instrument, shall be preferred to a construction that would not promote that purpose or object; and

(b) consideration may be given to any matter or document that is relevant including but not limited to -

(i) all indications provided by the Act or subordinate instrument as printed by authority, including punctuation;

(ii) reports of proceedings in any house of Parliament;

(iii) explanatory memorandum or other documents laid before or otherwise presented to any house of Parliament; and

(iv) reports of Royal Commissions, parliamentary committees, law reform commissioners and commissions, boards of enquiry, formal reviews or other similar bodies.'

32He referred to the definition of ‘home’ from the Oxford English Dictionary (online version) as being ‘a place where one lives permanently’, and from the Macquarie Dictionary (online version) as ‘the fixed residence of a person’.

33He went on to set out the dictionary definitions of 'dwelling', 'residence' and 'building'.

34In relation to ‘dwelling’, at paragraph 14 of his initial written submissions, Mr Hardjadibrata said, 'There is no statutory definition of ‘dwelling’.  It is defined by the OED (Oxford English Dictionary) as, "A house, flat or other residence."  The Macquarie Dictionary defines a dwelling as "'1, a place of residence or abode, a house.  2, a room or suite to be used as a separate domicile.  3, obsolete, continued or habitual residence."'

35He went on to set out, the Oxford and Macquarie Dictionary definitions of 'residence' and 'building'.

36He submitted that the words in s.77A(5), 'Other structure intended for occupation as a dwelling’, following on from the words, "any building or part of a building" indicated that the definition of a home was ‘expanded to include ‘other structures’, with the limitation that the purpose for which the structure was constructed was one intended as occupation as a dwelling'.

37He submitted that an examination of the plain and literal terms of the definition of ‘home’ showed that a residential house, such as the premises in the case before me, was caught by the definition notwithstanding that it was subsequently being used by persons to conduct unlawful activity such as cannabis cultivation, and that the temporary nature of the victim's occupation of the house did not prevent it from being caught by the inclusive definition of ‘home’.

38He submitted that the definition of ‘home/’ comprehended buildings that were originally not intended for residential purposes, but which became so, such as a factory which is then converted into a residence.

39The learned prosecutor referred to the fact that the definition covered motel and hotel rooms, hospital rooms as well as vehicles or vessels, pointing to the fact that in some of these instances, the nature of the accommodation was of a temporary nature.

40I pause here to observe that in his initial written submissions, the learned prosecutor appeared to be saying that any building or structure that was originally constructed as residential in nature never lost that character, no matter the changes that might have been made to the nature of those premises since construction- that they would always come within the definition of ‘home’. So, on that view, he appeared to be saying that in determining whether a building or structure is a ‘home’, one ought look at the original purpose for which the building or structure was constructed. However, he then referred to buildings such as factories which had been repurposed as residential premises, (in keeping with the statutory definition), saying that such buildings would also be caught by the definition. In my view his arguments on this point conflict with one another and with a number of the examples of buildings or structures, that would come within the statutory definition of ‘home’, but I shall address this aspect further a little later on.

41The learned prosecutor referred to various extracts from Parliamentary material, when the relevant Bill[3] was being introduced, and he also referred to the relevant explanatory memorandum, submitting that that there was nothing in any of this material which indicated an intention to limit the broad purport of the plain and literal terms of the definition of ‘home’.

[3] Crimes Amendment (Carjacking and Home Invasion) Bill 2016

42He referred to the second reading speech in relation to the relevant bill:

Having previously stated the definition of ‘home’ was a broad one, 'intended to capture any buildings intended to be used for the purposes of dwelling', the (then) Attorney-General said that the definition of ‘home’ was:

'Broad enough to also cover rooming houses, caravans and hotels.  It is intended to cover any building in which a person lives.'

43The Attorney-General also said, inter alia:

'It is unacceptable for people to feel unsafe in their own home.  It would be even worse to be actually confronted by strangers in what should be a person's sanctuary.'[4]

[4] Emphasis mine. These quotes have been extracted for the purposes of this ruling from lengthier quotes from the Second Reading Speech Crimes Amendment (Carjacking and Home Invasion) Bill 2016

44The prosecution submitted that there was nothing in the broad definition which excluded ‘the occupied crop house in this case’ and nothing in any extrinsic legislative material, or any public policy reason which militated against the inclusion of a crop house in the circumstances of this particular case.

45He submitted that there was nothing in anything that the Attorney General said which indicated that the home invasion offences would not extend to victims where they were carrying out illegal activities, such as crop sitters. He submitted that the victim (in the present case) ought not be any the less protected because she was occupying a crop house as opposed to premises where no illegal activity was being conducted.

46Mr Hardjadibrata submitted that, at the very least, the room that the victim was sleeping in at the premises qualified as 'part of a building intended for occupation as a dwelling' and that the premises were akin to commercial premises, part of which had been used as residential premises.

47Essentially, Defence submitted that the house was not a ‘home’ for the purposes of s.77A(5) of the Act.  They say that at the relevant time the premises were being used by those who controlled it as a crop house and were not intended for occupation as a residential dwelling.  They argued that the proper construction of the relevant provision is that one must look at the intention of the people who are using or controlling the building at the time of the alleged offending rather than looking at what the intention of those who originally constructed the building was.

48They argued that the premises in this case was a crop house and was no different to a factory or storage unit which had been converted to store cannabis-  But no one was 'living' at the house in the sense that is comprehended by the expression 'home' as defined by the relevant provision.

49Mr Pyne referred to the need to construe the relevant provision by first examining the text and having regard to the context in which the home invasion offences were to be found, submitting that in view of ‘significant differences’ as between the burglary offences and home invasion offences, the legislative intent must have been to protect people in the place they presently lived.

50Further, Mr Pyne submitted that in the absence of clarity, the proper construction of the relevant provision ought be one which favoured liberty as it avoided the possibility that serious penalties might attach to, 'entering any premises that were originally a residence that which might not have been so for a long time'.  In saying this, I understand that he was referring to the mandatory sentencing aspects of ss.77A and 77B. 

51Mr Pyne submitted, citing the High Court in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 26, [46-47], and Federal Commissioner for Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, that the starting point and end point in respect of statutory construction is the text itself.

52He submitted, citing DPP v Leys (2012) 34 VR 206 at [46] that the proper approach at the outset was:

'Examining the context of the provision with the object of adopting an interpretation that is consistent with the ordinary and natural meaning of the words derived from the context in which they appear and having regard to the legislative purpose of all of the provisions of the statute.'

53When one looks at the context in which s.77A and s.77B appear, as Mr Pyne notes, they follow on directly from the offences of burglary and aggravated Burglary in Part 1, Division 2 of the Crimes Act, which is headed, ‘Theft and similar or associated offences.'

54As Mr Pyne submitted, there is a good deal of overlap between aggravated burglary and the home invasion offences, but that Parliament must have intended that the home invasion offences constituted separate offences to the offence of aggravated burglary.

55He pointed to what he called significant differences between aggravated burglary and home invasion offences, submitting that these reflected, 'a legislative intention to protect people in the place they presently live.' He submitted that in the present case, the evidence that the house was no longer intended for use as a dwelling was overwhelming, and that the premises were being used as a cannabis production facility, not a home where people lived.

56In my view, it is apparent from s.77A(5) itself that the relevant time that one looks at in order to decide whether the building, part of a building or structure are intended for occupation as a dwelling is the time of the alleged offending. Otherwise, the inclusion of a structure, which as I understand it would be comprehended by the examples, such as a car would make no sense, unless it could be proven that the car was intended by its owner to be his or her residence from the outset- That is, from when it was purchased or indeed constructed.

57Having said this, it is unclear from the provision and the explanatory memorandum and any other extrinsic material for that matter, as to whose intention one looks at when considering whether the building etcetera, is 'intended for occupation as a dwelling'.  Apparently, one must consider the premises or structure in any given case and deduce from it and the surrounding circumstances as to whether it was intended for occupation as a dwelling at the time that the alleged offence was said to be committed.   Presumably, it is the intention of those who control or occupy the premises or structure in question at the relevant time that is being referred to.

58Having considered the evidence, the relevant provision and the arguments of counsel, as well as the text, the context and the apparent legislative purpose of the home invasion offences, I have come to the view that it is not clear as to whether a crop house which is occupied occasionally by a crop sitter, at least in the circumstances of the present case, comes within the definition of 'home' in s.77A(5).

59Of course, the victim in this matter was entitled to feel safe in the house she was in, just as anyone anywhere is entitled to feel safe from being confronted by offenders as they sleep; it is not as if the victim in such a situation is not protected by the law however, as aggravated burglary clearly covers such a situation; no doubt, the purpose of that offence is also to protect people from being confronted by intruders in a building or part thereof where they are entitled to feel safe.

60I accept that the definition of 'home' in s.77A(5) is a broad and inclusive one, and I accept that the purpose of the legislation is to protect people from being subjected to attacks in their homes, as broadly defined, but whether such a definition would extend to the present circumstances, where even on the Crown case, the house had been ‘converted to a crop house’, is not clear.

61On balance, it seems to me that the premises were not intended for occupation as a dwelling at the time of the offending- even where the victim was sleeping,  there was such a sparsity of furniture or indicia of the room constituting a 'dwelling' as defined, and such an abundance of evidence that the entire house was devoted to cannabis production, that it could not clearly constitute a part of a building intended for occupation as a dwelling; moreover, this was not where the victim lived, this was not her home.  This was a building that was intended to house cannabis plants, with a crop sitter assigned to stay at the place occasionally.

62If the definition of 'home' was intended to cover all occupants of all premises or structures where a person was staying the night from time to time, or fell asleep on a makeshift bed, one would have expected this to be spelt out in the relevant provision.  If this were the case, then the concept of the word 'home' would become so elastic in my view, that it would cease to have any meaning in itself. 

63However, the legislature has seen fit to use this term 'home' for the purposes of ss.77A and 77B in contradistinction to the concept of a building or part thereof for the purposes of the burglary offences.  The Attorney-General was clearly mindful of the concept of one's home, of one's sanctuary, in his second reading speech, as previously noted.

64In my view, the definition of 'home' as any building, part of a building or structure, 'intended for occupation as a dwelling', does not thereafter lose its flavour by virtue of the ensuing examples in s.77A(5), to the point where any form of accommodation or shelter for any length of time in any circumstances is captured. However, as I have said, this is not entirely clear.

65As Mr Pyne submitted, citing Beckwith v The Queen (1976) 35 CLR 569, 'penal statutes are to be interpreted in a way that favours liberty', and that any ambiguity or doubt that remains after applying the rules of statutory construction, 'may be resolved in favour of the subject by refusing to extend the category of criminal offences.' (per Gibbs J at 576.)

66In the absence of clarity as to whether the premises in this case would come within the definition of 'home' in s.77A(5), I am of the view that the construction of the provision ought weigh in favour of the accused, and therefore, I rule in favour of defence's application.

67As I have effectively ruled that the present circumstances do not amount to the statutory definition of a 'home', which is one of the elements of the home invasion offences, it is not open to the prosecution to proceed with the home invasion charges, as they would be foredoomed to fail, and in that case, I grant the Defence’s application to permanently stay those charges.

68This means that Mr Boys will still face a charge of aggravated burglary, the charge which the prosecution accepted in Mr Guerra's case as appropriately reflecting his criminality, and, as defence accepts on behalf of Mr Boys, it is an alleged offence which is clearly open on the evidence in the case against him, albeit that he intends to plead not guilty to it.

‑ ‑ ‑

P3327, in the Prosecution’s written submissions dated 2^nd July 2020.