Director of Public Prosecutions v Hudson (Ruling No 1)
[2025] VCC 1194
•25 August 2025 (First Revision 28 August 2025)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Unrestricted Suitable for Publication |
GENERAL LIST
Case No. CR-24-00847
CR-24-00846
CR-24-00844
CR-25-01445
Indictment No. C2316620.2A
C2316620.2B
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL HUDSON |
| and |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LUAL AJING |
| and |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JYE PITTARI |
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JUDGE: | HER HONOUR JUDGE MANOVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5, 11, 13, 15 and 20 August 2025 | |
DATE OF RULING: | 25 August 2025 (First Revision 28 August 2025) | |
CASE MAY BE CITED AS: | DPP v Hudson & Ors (Ruling No 1) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1194 | |
RULING
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Subject:CRIMINAL LAW Ruling - statutory construction and interpretation
Catchwords: Three accused charged with multiple aggravated home invasions (pursuant to s.77B Crimes Act 1958) Question as to whether premises where alleged offending took place was a 'home' as defined by s.77A(5) Crimes Act 1958 – Question whether the definition of ‘home’ as set out in s.77A(5) Crimes Act 1958 includes a second purpose – cultivation of cannabis – whether the prosecution bears an onus of proving the accused intended to enter a “home” as opposed to a building (“crop house”);
Legislation Cited: Crimes Act 1958 (Vic), s77A and s77B; Crimes Amendment (Carjacking and Home Invasion) Bill 2016
Cases Cited:Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; SZTAL v Minister for Immigration and Border Protection; SZTGM v Same (2017) 262 CLR 362; Richardson v Austin (1911) 12 CLR 478; Dyke, H M Procurator-General v Eliott & Owners of the Steam-Tug Gauntlet (The Gauntlet) (1872) LR4PC 184; Sherras v De Rutzen [1895] 1 QB 918; He Kaw Teh v The Queen (1985) 157 CLR 523; R v Wampfler (1987) 11 NSWLR 541; R v Reynhoudt (1962) 107 CLR 381; R v Cahill (No 2) [1999] 2 VR 387; Barker v The Queen (1983) 153 CLR 338; DPP v Boys [2020] VCC 1313; R v AJS (2005) 12 VR 563
Ruling: A residential premises which is also being used to cultivate cannabis can meet the definition of “home”.
The prosecution is not required to prove that the accused intended to enter “a home”, it is sufficient to prove that “a home” was in fact entered by the accused.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr A Buckland with Mr E Dober | Solicitor for the Office of Public Prosecutions |
| For the Accused Hudson | Mr J Moore with Ms I Siriwardana | Victoria Legal Aid |
| For the Accused Pittari | Ms J Swiney | Stary Norton Halphen |
| For the Accused Ajing | Ms J Clark | Greg Thomas Barristers & Solicitors |
| For the Accused Pittari | Ms J Swiney | Stary Norton Halphen |
HER HONOUR:
Introduction
1This pre-trial ruling deals with two issues. The first is whether a “home” within the meaning of s77A(5) of the Crimes Act 1958 (Vic) (“the Act”) ceases being a home, if cannabis is being cultivated within it. The second is whether, in a charge of aggravated home invasion under s77B of the Act, the prosecution must prove that an accused intended to enter “a home”.
2In my view, the answer to both questions is “no”.
Background
3In this case, the prosecution alleges that between May and November 2023, a number of young men committed a series of aggravated home invasions in the Western suburbs of Melbourne. The offences were committed between the hours of 10.40pm and 3.40am, often using stolen cars for travel to and from the crime scenes. At times up to five, but always at least three or more offenders entered the premises at each incident. The offenders wore face coverings and dark clothing. They were armed with machetes and gardening implements. These weapons were used to force open the front door of each premises. People were present inside. On some occasions there were violent confrontations between the offenders and the occupants.
4There are two indictments.
5On one indictment, Mr Hudson is charged, together with Mr Ajing, with two charges of aggravated home invasion alleged to have been committed on 18 May 2023 and 24 May 2023. Each is also charged with theft of a motor vehicle, which charge is not relevant to this ruling.
6Mr Ajing did not wish to be heard on this argument.
7On the second indictment, Mr Hudson is charged, together with Mr Pittari, on eight charges of aggravated home invasion alleged to have been committed on 16 August 2023, 11 October 2023, 17 October 2023 (two instances), 20 October 2023, 16 November 2023 (two instances), and 22 November 2023 and two charges of attempted aggravated home invasion alleged to have been committed on 23 August 2023 and 11 November 2023. They are also charged with theft of motor vehicle, common assault, burglary and intentionally causing injury, which charges are not relevant to this ruling.
8The prosecution opening[1] refers to theft of cannabis as the motive for the offending. The accused allegedly targeted “residential premises they, rightly or wrongly, believed, were set up for the purpose of cultivating cannabis”.[2]
[1]Summary of Prosecution Opening for Trial dated 28 March 2025
[2] (Ibid) at paragraph [7]
9A number of properties on the indictment were not involved in the cultivation of cannabis. Mr Hudson and Mr Pittari do not dispute that those properties meet the definition of “home”[3] and presumably (although it was not expressly stated), that any asserted intention to enter a home would have existed at the time of entry. What is in dispute is whether the prosecution can establish that a property is a “home” if its occupants are also cultivating cannabis.
[3]Transcript (“T”) 207
The law
10Section 77A of the Act provides:
“77A Home invasion
(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 5 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 more 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 an 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.”
(2) For the purpose of subsection (1)(c)(ii), it is immaterial whether or not the person knew that there was, or would be, another person present in the home.
(3) A person who commits a home invasion commits an offence and is liable to level 2 imprisonment (25 years maximum).
(4) A person may be found guilty of an offence against this section whether or not any other person is prosecuted for or found guilty of the offence.
(5) In this section—
explosive, firearm, imitation explosive, imitation firearm, and offensive weapon” have the same meanings as in section 77;
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 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 in a residential care service, 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.
(Emphasis added.)
11Section 77B of the Act provides:
“77B Aggravated home invasion
(1) A person commits an aggravated 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 5 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 2 or more other persons; and
(c) at the time the person enters the home—
(i) the person has with them a firearm, an imitation firearm, an offensive weapon, an explosive or an imitation explosive; and
(ii)the person knows or is reckless as to whether there is or will be another person (other than a person referred to in paragraph (b)) present in the home while the person is present in the home; and
(d) 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.
(2) A person who commits an aggravated home invasion commits an offence and is liable to level 2 imprisonment (25 years maximum).
(3) A person may be found guilty of an offence against this section whether or not any other person is prosecuted for or found guilty of the offence.
(4) In this section—
explosive, firearm, imitation explosive, imitation firearm, and offensive weapon have the same meanings as in section 77;
home has the same meaning as in section 77A.”
(Emphasis added.)
Relevant Legal Principles
Statutory Interpretation
12In Project Blue Sky Inc v Australian Broadcasting Authority,[4] McHugh, Gummow, Kirby and Hayne JJ said:
“… the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction … may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. … .”
(Footnote omitted.)
[4](1998) 194 CLR 355 at 384, paragraph [78]
13In SZTAL v Minister for Immigration and Border Protection; SZTGM v Same,[5] the plurality (Keifel CJ, Nettle and Gordon JJ) said:
“The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.”[6]
(Emphasis added and footnotes omitted.)
[5](2017) 262 CLR 362
[6](Ibid) at 368, paragraph [14]
14Penal statutes are to be construed strictly. In Richardson v Austin,[7] O’Connor J referred to the modern rule of interpretation of criminal provisions[8] and said:
“… No doubt all penal Statutes are to be construed strictly, that is to say, the Court must see that the thing charged as an offence is within the plain meaning of the words used, and must not strain the words on any notion that there has been a slip, that there has been a casus omissus, that the thing is so clearly within the mischief that it must have been intended to be included and would have been included if thought of. On the other hand, the person charged has a right to say that the thing charged, although within the words, is not within the spirit of the enactment. But where the thing is brought within the words and within the spirit, there a penal enactment is to be construed, like any other instrument, according to the fair common-sense meaning of the language used, and the Court is not to find or make any doubt or ambiguity in the language of a penal Statute, where such doubt or ambiguity would clearly not be found or made in the same language in any other instrument.’ That I think is the rule which I may describe as the modern rule by which we are to be guided in interpreting penal Statutes. One fair way of looking at the section is to inquire: what is the scope of the legislation, and will the construction contended for carry the provision beyond that scope?”[9]
(Emphasis added.)
[7](1911) 12 CLR 463 (“Richardson”)
[8]Dyke, H M Procurator-General v Eliott & Owners of the Steam-Tug Gauntlet (The Gauntlet) (1872) LR4PC 184
[9]Richardson at 478
Intent of Parliament
15Section 77A was introduced into the Act by the Crimes (Carjacking and Home Invasion) Act 2016.
16The Explanatory Memorandum to the Crimes Amendment (Carjacking and Home Invasion) Bill 2016 (”the Bill”) provides the following:
“Under new section 77A(2), for the purposes of section 77A(1)(c), it is immaterial whether or not the person knew there was or would be another person present. It is intended that this element will operate as strict liability and it will not be necessary to prove that an accused person had, or should have had, knowledge of the presence of another person. It is sufficient for the purposes of the offence that the person committed a burglary in the company of one or more others and, at the time or during the commission of the offence, another person who was not also an offender was present.”
17The Attorney-General’s Second Reading Speech for the Bill provides as follows:
“The definition of home is broad enough to also cover rooming houses, caravans and hotels. It is intended to cover any building in which a person lives.
…
The bill specifically introduces an element of strict liability into the offence of home invasion, so that an offender’s knowledge of the presence of another person is irrelevant. This is deliberate and is a response that properly recognises the traumatic effect on victims. If two or more individuals decide to enter a residence as a trespasser to commit a burglary and there is someone present, they should face a serious charge. Whether they knew someone was present or whether they turned their minds to that possibility is irrelevant. Anyone who targets a residence for burglary takes the risk that a person will be inside and should face the consequences of that risk.
It is unacceptable for someone to feel unsafe in their own home. It would be even worse to actually be confronted by strangers in what should be a person’s sanctuary. If a person wants to engage in these acts of criminality, they should get no credit for arguing that they did not know people would be present or they did not think other people would be present. Whether or not it is intentional, the effect on victims is the same and is rightly condemned by the introduction of this offence.
The bill also introduces the offence of aggravated home invasion. … .
Like home invasion, this offence has a 25-year maximum penalty, but it also carries a statutory minimum sentence of three years imprisonment. As with aggravated carjacking, this is intended to deter those who think it is acceptable to form a gang, arm themselves and break into a home—not caring that there are people at home and that those people will be terrified and traumatised.
…
The government has examined the existing laws and concluded that these modifications are a necessary response to recent incidents of criminal offending. It is incumbent on governments to make laws which help to improve community safety.
Some may say the new offences and sentences are too harsh. The government says offenders take the risk when they decide to engage in acts of serious criminality.
The community rightly expects that such acts with their traumatic consequences for victims should be punished in a manner consistent with the harm caused. This bill delivers on that expectation.[10]
(Emphasis added.)
Where a provision is silent as to mens rea
[10]Crimes Amendment (Carjacking and Home Invasion) Bill 2016, Second Reading Speech Assembly, dated Thursday 1 September 2016, Hansard 150 1866-2016 (“Second Reading Speech”) at 2329-3330
18At common law, there is a presumption that every offence carries with it the essential ingredient of mens rea (an evil intention or knowledge of the wrongfulness of the act). However, that presumption can be displaced by the words of the statute creating the offence or the subject matter with which it deals and both must be considered.[11]
[11]Sherras v De Rutzen [1895] 1 QB 918 (“Sherras”) at 921 (per Wright J), cited in He Kaw Teh v The Queen (1985) 157 CLR 523 (“He Kaw Teh”)
19A statutory provision may be silent as to mens rea and there may be no explicit reference to an intention that the offence be of absolute or strict liability.[12] In such cases, it is necessary to look at the seriousness of the offence, the context of the provision and its purpose or the mischief to which it is directed.
[12]An absolute liability offence is an offence in which mens rea plays no part and guilt is established by proof of the ingredients of the offence. A strict liability offence is an offence which assumes the presence of mens rea, unless and until an issue is raised by or on behalf of the accused of the existence of an honest and reasonable belief that the conduct in question is not criminal, in which case the prosecution bears the burden of negativing that belief beyond reasonable doubt: R v Wampfler (1987) 11 NSWLR 541.
20In He Kaw Teh v The Queen[13], the High Court considered two provisions in the Customs Act 1901 (Cth). Each was under s233B(1); importing prohibited goods into Australia and possession of prohibited goods (heroin). Each provision was silent as to mens rea. Words such as “knowingly”, “intentionally” or “recklessly” were absent from the provisions.
[13]1985) 157 CLR 523
21On the face of the importation provision, it appeared to be an absolute liability offence. If the Crown established that a person imported prohibited goods into Australia, the offence was made out whether or not the person was aware of the existence of the goods in his suitcase, and whether or not he was aware of their nature – a drug. The offences carried a maximum penalty of life imprisonment.
22The High Court[14] held that the common law presumption that mens rea is required before a person can be held guilty of a grave criminal offence is not displaced in relation to s233B(1)(b). The prosecution bears the onus of proving that the accused knew he was importing a prohibited import. Where a person is charged with possession of goods, knowledge of the existence of goods is a necessary ingredient of the offence, because the word “possession” necessarily imports a mental element.
[14]Gibbs CJ, Mason, Brennan and Dawson JJ
23Of relevance to the pre-trial issues raised here, Brennan J said:
“… But if there be a legislative intention to apply a mental element to the circumstances different from the mental element applicable to the act involved in the offence, it is necessary to decide what circumstances are defined to be an integral part of the act (to which intent and therefore knowledge will ordinarily apply) and what circumstances are defined to be merely attendant (to which no mental element may be intended to apply or to which a mental element less than knowledge may be intended to apply) … .
…
If there are alternative states of mind - knowledge or absence of exculpatory belief - that may apply to circumstances which are external elements of a statutory offence, how is the applicable state of mind to be ascertained? Principally, by reference to the language of the statute and its subject matter. From those sources, the mischief at which the statute is aimed is derived, and the purpose of the statute is perceived. The purpose of the statute is the surest guide of the legislature's intention as to the mental state to be implied. … .”[15]
(Emphasis added.)
[15]He Kaw Teh at 571 and 576
24In R v Reynhoudt v The Queen,[16] the High Court[17] considered a charge of assaulting a police officer in the execution of his duty.[18] The issue before the court was whether the prosecution was required to prove that the accused person was aware they were assaulting a police officer and was aware the police officer was acting in the execution of his duty.
[16](1962) 107 CLR 381 (“Reynhoudt”)
[17]Taylor, Menzies and Owen JJ (Dixon CJ and Kitto J dissenting)
[18]Under s40 of the Crimes Act 1958 (Vic) as it then stood.
25The majority held that there was no such requirement. Effectively, once the assault had been established, strict liability was imposed with respect to the status of the victim.
26Menzies J considered the purpose of the provision:
“… which it may be inferred was to give policemen, whether in uniform or plain clothes, protection and freedom from interference in the discharge of their dangerous duties by imposing an additional penalty … .
…
… it is not necessary for the prosecution to prove more than the facts that the person assaulted or resisted or wilfully obstructed by the accused was a police officer acting in the due execution of his duty … .”[19]
[19]Reynhoudt at 402-403
27Owen J considered the absence of reference to state of mind within the provision as evidence of Parliamentary intent:
“… The words ‘assaults’, ‘resists’ or ‘wilfully obstructs’ undoubtedly refer to intentional acts and in establishing one or other of these elements in the offence, an intent to do the act must be shown to have existed, but the section makes no reference to any requirement that the accused shall be shown to have had knowledge that the person assaulted resisted or obstructed was a police officer or that he was acting in the execution of his duty. In this respect it may be compared with s. 38 of the Act which makes it an offence to strike or offer violence or to arrest upon civil process a clergyman or other minister who is engaged in or ‘to the knowledge of the offender is about to engage in’ the performance of his religious duties or who ‘to the knowledge of the offender is going to perform the same or returning from the performance thereof’ … .
…
… I think the draftsman of the Victorian legislation should be taken to have intended that the essential elements to be proved by the Crown were an assault or an intentional act of resistance or obstruction, that the person assaulted, resisted or obstructed was a police officer and that he was acting in the due execution of his duty and no more. If these facts are proved, then I agree with the Court of Criminal Appeal in the first Galvin Case … that the accused may exculpate himself by showing, on a balance of probabilities, that he held an honest and reasonable belief in the existence of facts which, if they had existed, would have made his act a lawful one. There are statements to be found in some of the cases which suggest that, in the case of a statutory offence, the omission of the word ‘knowingly’ merely means that the onus of disproof of knowledge is placed upon the accused. … .”[20]
(Emphasis added.)
[20](Ibid) at 402-403 and 408
Meaning of “home” is a jury question
28In R v Cahill (No 2),[21] the Court of Appeal considered whether a trial judge erred when he directed the jury “as a matter of law” that the presence of the accused on the porch of the complainant’s home constituted entry into the building for the purposes of the charge of aggravated burglary.
[21](1999) 2 VR 387 (“Cahill”)
29Buchanan JA (with whom Winneke P and Charles JA agreed), said:
“It was an element of the offence of burglary that the accused entered a building. …
…
Whether the applicant entered the building was a question of fact to be determined by the jury. ... It remained to appraise all the facts to determine whether the porch could be fairly regarded as part of the building or whether it was a space remaining outside the building. In my opinion a crucial fact was withdrawn from the jury. … .”[22]
(Emphasis added.)
[22](Ibid) at 393, paragraphs [32]-[35]
Entry as a trespasser
30In Barker v The Queen,[23] the High Court[24] considered the meaning of trespass under s76(1)(a) of the Act (burglary) in the context of a limited authority to enter a building for the purposes of looking after it while the occupier was on holiday. Mr Barker had entered the building and stolen certain items. At trial, he argued he was not trespassing as he had a limited authority to enter.
[23](1983) 153 CLR 338
[24]Mason, Murphy, Brennan, Deane and Dawson JJ
31The majority agreed that “trespasser” should be given its common law meaning. In relation to mens rea within the provision, Brennan and Deane JJ said:
“The fact that an entry was, in a particular case, as a ‘trespasser’ within the common law meaning of that word will satisfy that element of the offence created by s. 76(1). It will not, however, satisfy the requirement that the actus reus must be accompanied by mens rea before an offence under s. 76(1) will be committed. A person who enters upon another's property as a trespasser, though he has the specific intent mentioned in s. 76(1), is not guilty of an offence under that provision unless he knows the facts which make him a trespasser or, at the least, he is reckless as to the existence of those facts. Moreover, as the gist of the offence created by s. 76(1) is a trespassory entry, it is an offence with respect to the property entered, and mens rea is excluded by an honest claim of right to enter. … .”[25]
(Emphasis added.)
[25](Ibid) at 365
32Dawson J said, to be guilty of burglary, Mr Barker “must not only have entered as a trespasser but must have intended to enter as a trespasser or have been reckless as to whether he did or not”.[26]
[26](Ibid) at 375
Defence submissions
33Junior Counsel for Mr Hudson submitted as follows:
(a) on the Crown case, Mr Hudson and the other accused were allegedly looking for “a crop house” – a residential premises where cannabis was being cultivated, which by necessity of the criminal enterprise being carried on inside, showed no outward signs of anything irregular or illegal being done inside;
(b) the definition of “home” in the Act does not apply to “a crop house”, even one where people were living, because the illegal nature of the cannabis cultivation created a “dual purpose” to the building which fell outside the scope envisaged by Parliament when the offence was created;[27]
(c) the case of DPP v Boys,[28] in this court, is an example of a “crop house” being held to fall outside the definition of “home”. The house had been significantly altered to accommodate a hydroponic set up. A woman was inside the house when the accused entered, however she was “temporarily residing” there. Judge Cannon found the premises was not a “home” within the meaning of the Act. It was a “building” devoted to growing cannabis, there was a sparsity of furniture and the occupant was not living there;
(d) the prosecution must establish a mental element of “intent to enter a home”, which is not made out when the intent is to enter a “crop house”;
(e) the relevant mental element was described as “a subjective fault element” central to the notion of the word “home”.[29] Because Parliament intended to protect a person’s home, the offender must be shown to have the intention of entering “a home”;[30]
(f) if the Court is satisfied that a mental element must be made out by the prosecution, then a common law statutory alternative of aggravated burglary can be left to a jury and directions given about the mental element;[31]
(g) where an offence is of a serious kind, it is more likely Parliament would have intended “that full mens rea”, in the sense of guilty intention or knowledge that a home was being entered, is an element of the offence,[32] and therefore is to be ‘read in’ to the provision. The gravity of the offending is seen in both the maximum of twenty-five years, and the three-year mandatory minimum non-parole period;
(h) ultimately, an accused person should only be convicted of what s/he intended to do, that being to trespass into a building (a crop house), even if that building also happened to be a home. The occupants of that home/crop house would be well protected under the aggravated burglary provisions, but the mandatory minimum non-parole period would not automatically apply;[33]
(i) Parliament intended for there to be only one component of strict liability in the offence of home invasion, namely the offender’s state of mind as to whether a person was present inside the home.
[27]T235 ꟷ T236
[28][2020] VCC 1313 (“Boys”)
[29]T221
[30]T234
[31]T219
[32]T222 ꟷ T223
[33]T241 ꟷ T242
34Counsel for Mr Pittari submitted that the intent element is plainly a necessary part of the entry into a home as a trespasser. Counsel referred to the example of a person living in a motor vehicle. If there is no intent element associated with the word “home”, that would turn a mere car theft into an aggravated home invasion, with the associated severe minimum non-parole period. Parliament cannot have intended that.[34]
[34]T273
Prosecution submissions
35Junior Counsel for the prosecution submitted that:
(a) the definition of “home” in the Act includes a building which is used as a residence and for some other purpose. There is no requirement within the definition of “home”, that the structure be used exclusively as a dwelling;
(b) the question whether a given premises is a “home” is a jury question. It is legally open for a “dual purpose” building to be a “home”, and in this case there is ample evidence that the properties now said to be “crop houses” were residential buildings which had the appearance of being a home, and no other purpose was obvious to the beholder. The occupants were living there at the time of entry;
(c) the circumstances of the prosecution case, here, can be distinguished from the circumstances in Boys, because, in that case, the occupant was not residing in the “crop house”;
(d) Parliament’s purpose in enacting the provisions was to protect people inside their homes, including places not typically associated with “home”, such a motor vehicle. To construe the provision as requiring proof of intent to enter a “home”, would be at odds with the purpose of the legislation. There is no authority supporting the argument made on behalf of Mr Hudson and Mr Pittari;[35]
(e) it is clear from the wording of s77A, and the Second Reading Speech, that Parliament intended “home” to have a very broad definition and meaning. It would be a surprising result, if, in those circumstances, a subjective element is read into the provision, undermining that broad definition;[36]
(f) the definition of “home” applies to both home invasion and aggravated home invasion. Therefore, the argument that intent to enter a home should be read into the provisions on account of the mandatory minimum non-parole period, does not withstand scrutiny. The reason is that, although the word “home” is the gravamen of both provisions, only aggravated home invasion carries the minimum non-parole period;[37]
(g) there are multiple mens rea elements within both provisions (for example entry as a trespasser (which incorporates voluntariness), intent to steal, knowledge or recklessness as to the presence of a person[38] and possession of a weapon. It is therefore clear Parliament devoted attention to which mental elements should apply to the offences. The fact that they did not refer to “intentionally” or “knowingly” in relation to “enter[ing] a home” strongly suggests they did not intend for there to be any subjective element;[39]
(h) if there was a mental element – it could be met by knowledge or recklessness, not actual intent to enter a home. In the circumstances of this case, the prosecution is in a position to establish, on a recklessness basis, that the accused men were entering homes by reference to observable indicia at the time of entry (for instance, the properties all look like suburban homes, there might be cars parked out the front, or curtains on the window, flower pots and the like).[40]
[35]T261
[36]Ibid
[37]Ibid
[38]Relevant to s77A (home invasion) only.
[39]T264 ꟷ T266
[40]T268 ꟷ T270
Consideration
Does a “home” within the meaning of s77A(5) of the Act cease being a home, if cannabis is being cultivated within it?
36Although Junior Counsel for Mr Hudson conceded that the question whether a “crop house” is a “home” is a jury question, it was argued that the distinction still had work to do in terms of the argument relating to the alleged mental element.[41] The prosecutor agreed that it is difficult to divorce the discussion about whether a “crop house” is a home from the discussion whether the alleged mental element ought to be read into the provisions.
[41]T218 ꟷ T219
37The meaning of the word “home” in the Act, is found in s 77A(5). It includes:
“…
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; and ….
(e) a caravan within the meaning of the Residential Tenancies Act 1997 or any vehicle or vessel used as a residence.”
(Emphasis added.)
38The provision is focused on the purpose to which the relevant building, part of a building, vehicle or vessel is being put. That purpose is the intent to occupy as a dwelling or for residential purposes. The relevant time for the assessment is the time of the offence. The Act does not define “dwelling” or “residential”.
39Relevant definitions of “dwelling”, “residential”, “residence” and “reside” are found in the Macquarie Dictionary:
(a) “dwelling” is defined as:
“… 1. a place of residence or abode, a house,
2. a room or suite of rooms designed to be used as a separate domicile
3. Obsolete continued or habitual residence.”
(b) “residential” is defined as:
“… 1.of or relating to residence or residences.
2. adapted or used for residence: a residential district.
3. (of a hotel, etc.) catering for guests who stay permanently or for extended periods.”
(c) “residence” is defined as:
“… 1. the place, especially the house, in which one resides; dwelling place; dwelling.
2. a large house.
3. the act or fact of residing.
4. the time during which one resides in a place.
–phrase 5. in residence, living or staying in a place of official or other duty.”
(Emphasis added.)
(d) “reside” is defined as:
“verb (i) 1. (resided, residing) to dwell permanently or for a considerable time; have one’s abode for a time: he resided in Box Hill.
–phrase 2. reside in,
a. (of things, qualities, etc.) to abide, lie, or be present habitually in; exist or be inherent in.
b. to rest or be vested in, as powers, rights, etc.”
(Emphasis added.)
40Therefore, “home” is any building, or “part of a building”, or other structure, vehicle or vessel which is intended to be a place where an occupant resides, either permanently or for a considerable period of time.
41It is significant that the definition of home extends to commercial and industrial premises.[42] The extension of the definition to vehicles and vessels, demonstrates that there is no intention to exclude any conceivable place where a person could reside, or which a person could occupy as a dwelling.
[42]Section 77A(5)(a) of the Act.
42Junior Counsel for Mr Hudson submitted that, where a residential home is utilised to cultivate cannabis, that has “diluted” the residential purpose. I do not accept that submission.
43It is possible to envisage a very broad range of circumstances in which people utilise the apartment, unit or house in which they reside for more than one purpose. For instance, a barrister working in a room in their house converted to an office; a seamstress working in a room, shed or garage of her residence to sew garments for sale; or a carpenter turning wood in the garage of his residence on weekends. It is inconceivable that Parliament intended such persons to be excluded from the protection of the provisions because they were using their residence for a second purpose.
44It was submitted that cannabis cultivation is an illegal activity and therefore it fell outside the scope envisaged by Parliament when the offence was committed.
45I reject that submission. No authority was relied upon to support it. It assumes that the law offers a different level of protection to people in their homes if they are using part of the home for illicit activity. The submission fails to account for the possibility that there may be people in the home who have nothing to do with the illicit activity (children or visitors for instance).
46The clearly-stated intention of Parliament is to “make laws which help to improve community safety” and to give effect to the expectation of the community that criminal acts which fall within the operation of the provisions “with their traumatic consequences for victims should be punished in a manner consistent with the arm caused”.[43]
[43] Second Reading Speech at 3330
47It is unlikely that Parliament only intended to protect people who were not committing crimes. If that had been Parliament’s intention, it is expected that it would have been clearly expressed in the form of some type of carve out or exception within the provision itself. Unless clearly stated, the law must be taken to apply equally to and for all people.
48I consider the construction contended for on behalf of Mr Hudson and Mr Pittari will carry the provision beyond the scope of the legislation and will lead to an absurd result.
49The argument could not be sensibly applied to the asserted facts in this case.
50The accused are alleged to have entered the various “homes” via the front door where the “residential” portion of the home was located (loungeroom, kitchen, bedrooms, hallway). None of the offenders can be said to have focused initially or primarily on the area where the crop was being grown (either in a shed or garage of the home, rather than inside the home itself). They are alleged to have entered the home via the front door, in order to steal a cannabis crop. However, while there, the, offenders have had violent confrontations with some of the residents, stolen car keys, cars, handbags and money which suggests a broader purpose than only entering a “crop house”.
51I accept the prosecution submission that the distinction between a legitimate commercial enterprise and an illegal one is not within the scope of the provisions. The focus of the provisions is whether a building, or at least the relevant part of it[44], is intended for occupation as a dwelling, irrespective of other purposes to which the occupier is putting the premises.
[44]That is the part which was entered by the offenders.
Does the Prosecution need to establish “intent to enter a home”?
52Save for the word “aggravated” in S 77B, sections 77A(1) and s77B(1) of the Act, contain identical wording:
“(1)A person commits a home invasion/aggravated home invasion if—
(a) the person enters a home as a trespasser with intent—
(i) to steal …;or
(ii) to commit an offence … .”
53Although there are other ingredients to the offence, this is the first ingredient.
54The essence of the submissions on behalf of Mr Hudson is that the severity of the minimum non-parole period for aggravated home invasion warrants a reading in to the first ingredient, words which are not there, namely “intentionally or knowingly”[45] enters a home as a trespasser”.
[45]Or possibly “recklessly”, although this was not conceded (seeT224 ꟷ T226)
55The flaw in this argument is that, unlike an offence under s77B, an offence under s77A does not carry a mandatory minimum non-parole period. If I accept the submission, the intent would have to be imputed into both provisions, but the reason for doing so exists only in relation to one of them. This is an incoherent approach to statutory interpretation. It would mean that a home is not a home if a mandatory non-parole period was attached to the offence, but is a home if there is no such period.
56On behalf of Mr Hudson, it is also argued that the offences under s77A and s77B are of a serious kind. Therefore, Parliament was likely to have intended for actual intent to enter a home to be an element of each offence.
57Mr Pittari’s counsel argued that the broad definition of “home”, which includes a motor vehicle, is such that an absurd result would follow if no mental element exists. The reason for this was that an ordinary car thief would otherwise automatically become an aggravated home invader.
58I do not accept this submission. There are a number of ingredients to aggravated home invasion, only one of which is entry into “a home” as a trespasser. If an ordinary car thief had only the intention to steal the car in which a person was living, the remainder of the ingredients of the offence would not be made out.
59Both submissions detour around the stated intentions of Parliament, the reasons for the legislation and the words of the statute.
60Neither party referred the Court to any direct authority on this point.
61Junior Counsel relied on He Kaw Teh and on R v AJS,[46] and on the dissenting judgement in Reynhoudt.
[46](2005) 12 VR 563 (“AJS”)
62He Kaw Teh dealt with s233B(1)(b) of the Customs Act 1901, which made it an offence to import any prohibited goods into Australia. The provision was silent as to mens rea, but carried life imprisonment. The court interpreted the provision in light of common law principles of criminal responsibility which incorporate a presumption that mens rea is an essential ingredient in every offence, only liable to be displaced by the words of the statute creating the offence, or the subject matter with which it deals.[47]
[47]Sherras, cited by Gibbs CJ at 528
63Unlike s77A and s77B, which contain a number of express mental elements, neither of the provisions considered by the High Court in He Kaw Teh had reference to any mental element. It is not in issue here that mens rea is otherwise incorporated into the offences, but rather whether it is incorporated into the first ingredient. On one view, that ingredient contains a circumstance of the offence of aggravated home invasion – entering “a home” as a trespasser.
64Brennan J distinguished between the circumstances of an offence which are an integral part of the act, and the circumstances which are “merely attendant” to it. In the former, intent, and therefore knowledge, would apply. In the latter, no mental element may apply, or a mental element less than knowledge may apply.
65His Honour provided the following guidance on resolution of these alternate possibilities:
“If there are alternative states of mind - knowledge or absence of exculpatory belief - that may apply to circumstances which are external elements of a statutory offence, how is the applicable state of mind to be ascertained? Principally, by reference to the language of the statute and its subject matter. From those sources, the mischief at which the statute is aimed is derived, and the purpose of the statute is perceived. The purpose of the statute is the surest guide of the legislature's intention as to the mental state to be implied. … .”[48]
(Emphasis added.)
[48]He Kaw Teh at 576
66In AJS, the Victorian Court of Appeal[49] considered whether the offence of incest by digital penetration could be made out if the accused performed the touching without awareness of what he was touching (the accused said he thought he was rubbing the child’s stomach). The court held that the trial judge erred when he failed to direct the jury that the act of penetration must be committed intentionally, and that to prove the crime of incest the prosecution had to establish that the act of penetration was a voluntary, intentional or willed act of the accused.
[49]Maxwell P, Nettle JA and Redlich AJA
67Junior Counsel for Mr Hudson submitted that, in AJS, the offence subject of the appeal did not contain the words “intentional” touching. However, intent was raised by the accused, who said he had accidentally or involuntarily touched the child. In such a case, counsel argued the question of intent should be left to a jury. Therefore, by analogy, the question whether the accused intended to enter a home or building (“a crop house”) should also be imported in to the provision.
68I reject those submissions. They conflate the circumstances which are an integral part of the act with the circumstances which are merely attendant to it. In AJS, the question was whether the act of penetration was voluntary. That act was integral to the offence of incest.
69Here there is no issue that any acts of entry into an alleged “home” would have been voluntary. As the prosecutor said, an accidental entry into a home would not suffice. The relevant mental element is associated with entry in the form of a “trespass”. The object of the entry is “a home”. In burglary, the object of the entry is “a building”. I consider that the “home” is merely attendant to the integral act of trespass. AJS says nothing about this aspect.
70In Reynhoudt, the High Court considered an offence of assaulting a police officer in the execution of his duty. The majority[50] held that only the essential element of the offence – the assault ꟷ was accompanied by mens rea. The circumstances surrounding the offence of assault (police officer in the execution of his duty) were not accompanied by a mental element.
[50]Menzies, Owen and Taylor JJ
71Menzies J considered that the purpose of the provision was to protect police officers in the performance of their very dangerous duties, whether in uniform or plain clothes. The way to give effect to that purpose was to require the prosecution to prove no more than the assault by the accused and the fact that the person assaulted was a police officer. It was not necessary to show the accused was aware that he was assaulting a police officer in the execution of is duty.
72Owen J observed that the section itself:
“… makes no reference to any requirement that the accused shall be shown to have had knowledge that the person assaulted resisted or obstructed was a police officer or that he was acting in the execution of his duty. … .”[51]
[51] Reynhoudt at 406
73His Honour considered that was a deliberate omission, as the draftsman had used such language in other sections, which incorporated language such as “to the knowledge of the offender”.
74In He Kaw Teh, Brennan J considered the majority judgment in Reynhoudt and said:
“… The majority (Taylor, Menzies and Owen JJ.), largely under the guidance of long-standing authority on similar provisions, restricted the requirement of intent to the physical act of assault. Menzies J. noted that intent and the absence of an honest and reasonable but mistaken belief are different conceptions. … .
…
Putting aside the onus of ‘proving honest mistake on reasonable grounds’ - Menzies J. thought that the onus ‘at least initially’ was on the defence (at p.399) - his Honour was surely right to direct attention to the general scope of the legislation and the evils to be avoided in ascertaining which presumption applies. But those indicia may be equivocal. … .”[52]
[52] He Kaw Teh at 557-578
75His Honour referred to the dissenting judgments (upon which counsel for Mr Hudson relies) and said they offered one method of approach to the problem of determining whether a mental element applied, not a solution.[53]
[53]He Kaw Teh at 578
76I consider none of the three cases support the arguments put on behalf of Mr Hudson. On the contrary, for the reasons outlined above, they support the prosecution position. They highlight the difference between acts which are integral to the offence and carry a mens rea and acts which are merely attendant to it which do not.
The wording and context of the statute and the intent of Parliament
77Sections 77A and 77B do not replace the aggravated burglary provisions, which remain in the Act. They create a new species of aggravated burglary which was designed to address a growing social problem of gangs entering into people’s homes at night, sometimes armed and terrorising the occupants.
78This context is clearly outlined in the Second Reading Speech. The Government was very concerned about this type of offending:
“There is absolutely no place for this sort of behaviour. All Victorians should be able to feel safe and secure in their own homes. … .”[54]
[54]Second Reading Speech at 3329
79By inserting the new home invasion provisions into the Act, Parliament was concerned to make laws which improve community safety and accommodate community expectations of appropriate punishment for the harm caused by such violent offending.[55]
[55](Ibid) at 3330
80The prosecution submitted that the question whether an offender enters “a home” in s77A(1) and s77B(1) of the Act is a question of fact to be answered by the jury, it contains no mental element.[56]
[56]This portion of the submission was accepted by Junior Counsel on behalf of Mr Hudson (see T218 ꟷ T219)
81I accept that submission.
82Aside from use of “aggravated” in s 77B, the wording in the first ingredient of s77A(1) and s77B(1) of the Act is identical:
“A person commits a home invasion/aggravated home invasion if—
(a) the person enters a home as a trespasser … .”
(Emphasis added.)
83“Home” is clearly and very broadly defined by s77A(5). Parliament intended to the provision to apply to any building in which a person lives.
84There is nothing in the Second Reading Speech or the Explanatory Memorandum which suggests the intent of the offender is a relevant matter to be established in relation to the entry of the home. On the contrary, the legislation extends to any building in which a person lives. This suggests the focus is on the building and its use as a home, not on the state of mind of the offender in relation to the building.
85The plain reading of the provision is that the first ingredient – entering a home as a trespasser ꟷ contains only one mental element – trespass. The absence of words such as “intentionally” or “knowingly” supports this conclusion.
86The prosecution submitted that the relevant mental element is whether the accused enters the home “as a trespasser”. To apply Brennan J’s reasoning to this submission, entry as a trespasser is the integral part of the act of trespass and the entry into a “home” is a circumstance merely attendant to it.
87On this interpretation of the provision, while it is possible for a mental element to apply to “a home”, it is also possible for no mental element to apply. The mischief to which the statute is directed and its purpose, will guide resolution of the question.
88This is a convenient point at which to deal with parliamentary intent.
89The mischief to which the provisions are directed, and the corresponding purpose of the provisions, is the protection of people in their homes. In particular, protection from intrusion by multiple, often violent or armed offenders. Such offenders enter late at night with intent of theft or other crimes, and their actions cause an exceptional trauma to the occupants.
90The interpretation suggested by Junior Counsel for Mr Hudson does not promote this purpose or address the mischief.
91On the contrary, by directing the intent of the offender to entry of “a home” or entry of a building (“crop house”), it makes the protection of any occupants residing there, subservient to the criminal enterprise and to the offender’s intent. Further, it elevates the interests of the offender in seeking to avoid a mandatory prison term above the protection of the victims. That is an absurd result and is contrary to Parliament’s clearly stated intention.
92I consider that to construe the first ingredient as containing no mental element other than trespass would assist observance of the statute and facilitate the purpose intended by Parliament:
Decision
93For all of these reasons, I find that it is sufficient for a charge under ss77A and s77B of the Act for the prosecution to prove, as a matter of fact, that what was entered was “a home”. That is, at the time of the alleged offence, the premises were intended for occupation as a dwelling (for people to be residing or living in them).
94Knowledge or recklessness by the accused that what s/he was entering was a home is not an element of the offence of home invasion or aggravated home invasion. Intent or recklessness to enter as a trespasser is the integral part of the first ingredient. Entering “a home” is a circumstance merely attendant that mental element. Therefore, the only mental element which applies to the first ingredient is the mental element associated with trespass.
95The effect of my decision is that the first ingredient is a form of strict liability. That is, if the prosecution established, as a matter of fact, that the accused entered a home as a trespasser, the offence is made out (providing the other ingredients are made out), whether s/he intended to enter a home or a building (“crop house”).[57]
[57]In such circumstances, the principles outlined by Murphy J in Reynhoudt and Brennan J in He Kaw Teh as to honest and reasonable mistake would operate (see para 74-75 above)
96Junior Counsel for Mr Hudson submitted that Parliament intended for there to be “only one element of strict liability”. That element was in the offence of home invasion; namely, the offender’s state of mind as to whether a person was present in the home as provided in s77A(2).
97I do not accept that Parliament intended for there to be “only one” such element. It is noteworthy that the Second Reading Speech provides:
“The bill specifically introduces an element of strict liability into the offence of home invasion, so that an offender’s knowledge of the presence of another person is irrelevant. This is deliberate and is a response that properly recognises the traumatic effect on victims. Anyone who targets a residence for burglary takes the risk that a person will be inside and should face the consequences of that risk.
…
… they should get no credit for arguing that they did not know people would be present. … .”[58]
[58]Second Reading Speech at 3329-3330
(Emphasis added.)
98I consider Parliament also intended, but did not expressly state that an offender should get no credit for arguing that they did not know the home was a home, they thought it was a crop house.
99The deliberate introduction of one strict liability offence does not negate the presence of another, when the wording of the statute, the parliamentary intent and the mischief sought to be addressed apply equally to both.
100For the above reasons, I rule that to make out the first ingredient of an offence under s77A or s77B:
(a) a residential premises which is also being used to cultivate cannabis can meet the definition of “home” for the purposes of the offence if the definition of “home” is otherwise made out; and,
(b) the prosecution does not have to prove that the accused intended to enter a home, it is sufficient to prove that “a home” was in fact entered by the accused, as a trespasser.
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