Nassr v The Queen

[2015] NSWCCA 284

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Nassr v R [2015] NSWCCA 284
Hearing dates:	04 November 2015
Date of orders:	04 November 2015
Decision date:	17 November 2015
Before:	Meagher JA; Rothman J; Bellew J
Decision:	1.   Amend order 2 made on 4 November 2015 to read: “2.   Allow the appeal in relation to the applicant’s conviction on count 1, quash that conviction and direct a judgment of acquittal be entered in relation to that count.” 2.   Revoke order 3 made on 4 November 2015. 3.   Grant leave to the parties to apply to set aside or vary order 1 above, any such application to be made within seven days of the date of this order.
Catchwords:	CRIMINAL LAW – conviction – leave to appeal out of time – miscarriage of justice – offence of breaking and entering dwelling-house and committing serious indictable offence “therein” in circumstances of aggravation under s 112(2) of Crimes Act 1900 (NSW) – serious indictable offence not committed in dwelling-house – agreed facts cannot in law support conviction of offence charged – error conceded by Crown
Legislation Cited:	Crimes Act 1900 (NSW), ss 4, 112 Criminal Appeal Act 1912 (NSW), ss 5(1), 6, 12(2) Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A(1)
Cases Cited:	R v Liberti (1991) 55 A Crim R 120 R v Pedrana [2001] NSWCCA 66; 123 A Crim R 1
Category:	Principal judgment
Parties:	Edward Nassr (Applicant) Regina (Crown)
Representation:	Counsel: Robyn Burgess (Applicant) Natalie Adams SC with Michelle Rabsch (Crown)   Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2013/336921; 2013/366148
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 4 August 2014 Before: Williams SC DCJ File Number(s): 2013/336921 2013/366148

Judgment

1. THE COURT: On 17 April 2014 the applicant pleaded guilty to two charges brought in proceedings commenced in the Local Court. The first (count 1), which was the subject of this appeal, was of breaking and entering a house and committing a serious indictable offence therein contrary to s 112(2) of the CrimesAct 1900 (NSW) on 2 August 2013, in circumstances of aggravation. The Court Attendance Notice included the following details of that offence:

That [the applicant] … did break and enter the dwelling house of Gary TORR situate at … Stanhope Gardens, and then in the said dwelling house did commit a serious indictable offence, to wit, assault occasioning actual bodily harm in circumstances of aggravation, to wit, the said NASSR did maliciously inflicted [sic] actual bodily harm on Gary TORR.

2. The second charge was of breaking and entering another house and committing a serious indictable offence therein on 7 November 2013 contrary to s 112(1) of the Crimes Act.

3. The applicant pleaded guilty to each of those charges in the Parramatta Local Court and was committed to the District Court for sentence. On 4 August 2014 M Williams SC DCJ sentenced the applicant to an aggregate sentence for the two offences of 8 years imprisonment with a non-parole period of 4 years and 6 months, that sentence to date from 4 April 2014.

4. The applicant seeks leave to appeal out of time against his conviction on the first count. That appeal is brought pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) on grounds which include (ground 2) that on the admitted and established facts, he could not in law have been convicted of the offence charged under s 112(2).

5. Under s 6(1) of the Criminal Appeal Act, on any appeal against conviction under s 5(1), the Court must allow the appeal if it is of the opinion that, on any ground whatsoever, “there was a miscarriage of justice”. A miscarriage of justice will have occurred if on the admitted or uncontroversial facts the applicant could not in law have been convicted of the offence charged: R v Liberti (1991) 55 A Crim R 120 at 121-2 (per Kirby P, Grove and Newman JJ agreeing).

6. The applicant also sought leave to appeal against the severity of the aggregate sentence imposed in relation to the two offences.

7. On 4 November 2015, the Court made the following orders:

1.   Grant leave to the applicant to bring his appeal against conviction on count 1 out of time.

2.   Allow the appeal in relation to the applicant’s conviction on count 1 and quash that conviction.

3.   Grant leave to the applicant to appeal against the aggregate sentence imposed by the District Court.

4.   Set aside that aggregate sentence.

5.   Remit the matter to the District Court for determination as to sentence.

8. The Court reserved its reasons for the making of these orders. Those reasons are set out below.

9. The Crown did not oppose leave being granted to bring the appeal against conviction out of time. It conceded that there had been a miscarriage of justice because on the agreed or uncontroversial facts the applicant could not have been convicted of count 1.

10. In our view that concession was correctly made. An element of the offence charged was that the applicant had committed the assault occasioning actual bodily harm on Mr Torr in the “dwelling-house” at Stanhope Gardens. The expression “dwelling-house” is defined in s 4 of the Crimes Act and includes a building or structure that is intended for or capable of occupation or is within the same curtilage as, and occupied with, a house-dwelling, or whose use is ancillary to the occupation of the house. It does not include the front or side yard of the property on which the relevant house, building or structure is erected.

11. The agreed facts, on the basis of which the applicant pleaded guilty to the first count, did not disclose precisely where the assault on Mr Torr had taken place. The facts were that the applicant had broken into the premises with another person and was in the process of going through some furniture boxes inside the house when he was interrupted by Mr Torr arriving home with his young son. From evidence given at the proceedings on sentence it was clear that the applicant had broken into the premises to steal but had not in fact stolen anything because he had been interrupted. That evidence also included that the applicant had assaulted Mr Torr as part of a violent altercation which occurred outside the dwelling-house as the applicant was attempting to escape from Mr Torr’s property.

12. It followed that ground 1 was made out. The appeal against the conviction on count 1 had to be allowed and that conviction quashed.

13. It also followed that the aggregate sentence imposed by the District Court could not stand because that sentence could only be imposed in circumstances where the Court was sentencing the offender “for more than one offence”: Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A(1).

14. That being so, the applicant submitted, and the Crown accepted, that the appropriate course was for the question of sentence in respect of the applicant’s conviction on the second count (which is not the subject of any appeal) to be remitted to the District Court for determination. We agree that such an order should be made, under s 12(2) of the Criminal Appeal Act.

15. There are two matters remaining to be considered.

16. First, s 6(2) of the Criminal Appeal Act provides as follows:

Subject to the special provisions of this Act, the court shall, if it allows an appeal under section 5 (1) against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered.

17. That Act makes such special provisions by ss 6A, 7 and 8. None of those provisions apply in the present case. In particular this is not a case in which an order should be made for a new trial of the charge under s 112(2) for reason that the uncontroversial evidence does not support the making or prosecution of that charge.

18. Accordingly, this Court is required by the language of s 6(2) to quash the conviction and enter a verdict of acquittal on the first count: R v Pedrana [2001] NSWCCA 66; 123 A Crim R 1 at [71] (Ipp AJA, Wood CJ at CL and Simpson J agreeing).

19. Order 2 made by the Court on 4 November 2015 should be amended to direct that a judgment of acquittal be entered in relation to count 1. The parties should also be given the opportunity to apply to set aside or vary that amending order.

20. The second matter is that, on reflection, order 3 made by the Court on 4 November 2015 was unnecessary. The aggregate sentence had to be set aside as a consequence of the quashing of the conviction on count 1. There was no need to give any consideration to the separate application for leave to appeal against that sentence.

21. For these reasons, the Court makes the following further orders:

1.   Amend order 2 made on 4 November 2015 to read:

“2.   Allow the appeal in relation to the applicant’s conviction on count 1, quash that conviction and direct a judgment of acquittal be entered in relation to that count.”

2.   Revoke order 3 made on 4 November 2015.

3.   Grant leave to the parties to apply to set aside or vary order 1 above, any such application to be made within seven days of the date of this order.

**********

Decision last updated: 17 November 2015