R v Perrine (No 2)

[2021] NSWDC 828

District Court

New South Wales

Medium Neutral Citation:

R v Perrine (No 2) [2021] NSWDC 828

Hearing dates:

7 June 2021

Date of orders:

8 June 2021

Decision date:

08 June 2021

Jurisdiction:

Criminal

Before:

P Taylor SC DCJ

Decision:

I find the accused not guilty of the s 166 related offence of use or consume electricity without authority under s 64 of the Electricity Supply Act 1995.

Catchwords:

CRIME – use/consume/waste electricity without authority – theft of electricity – illegal bypass – use of metered versus unmetered electricity – intention - duress

Legislation Cited:

Criminal Procedure Act 1986, s 166

Electricity Supply Act 1995, s 64

Interpretation Act 1987, s 34, s 35

Category:

Principal judgment

Parties:

Regina (Crown)
Jean Cedrick Perrine (Accused)

Representation:

Counsel:
Ms T Hennessy (Accused)

Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Accused)

File Number(s):

2020/00107366

Publication restriction:

None

Judgment

1. The charge

1. Jean Cedrick Perrine was tried on a charge of cultivating a commercial quantity of prohibited plants, namely cannabis cultivated by enhanced indoor means.  He was found not guilty by a jury. 

2. A major issue in the trial was whether the actions of Mr Perrine were done as a consequence of duress. The necessary inference from the verdict is that the jury was not satisfied beyond reasonable doubt that the Crown had negatived duress.

3. Mr Perrine was also charged with a related offence under s 166 of the Criminal Procedure Act 1986 of using electricity without authority under s 64 of the Electricity Supply Act 1995. Section 64 of that Act, relevantly, provides:

“64   Theft of electricity

(1)  A person must not abstract, cause to be wasted or diverted, consume or use any electricity from a generating, transmission or distribution system unless authorised to do so under a wholesale supply arrangement or customer retail contract.”

4. After the verdict, the Crown elected to proceed with the related offence, relying on the evidence in the trial, and this was not opposed by the defence.

5. It was not in contest that electricity was illegally diverted and used at the premises.  Whether Mr Perrine used that illegally diverted electricity was a principal issue.

6. The submissions proceeded on the basis of the evidence at trial.  I take into account the following matters in hearing these criminal proceedings. 

7. The accused pleaded not guilty to the charge at the Local Court, and that plea was treated as remaining applicable to the present proceedings.  It is my duty and responsibility to determine whether he is guilty or not guilty of the charge and to return my verdict according to the evidence. 

8. Mr Perrine is not required to prove his innocence. He is presumed to be innocent of the crime charged unless the evidence has established his guilt beyond reasonable doubt.

9. The Crown bears the onus of proof to establish the guilt of the accused.  The accused bears no onus and is not required to prove anything. 

10. The standard of proof is beyond reasonable doubt and suspicion that the accused is guilty or probably guilty is insufficient. 

11. The matters that the Crown needs to establish beyond reasonable doubt are the essential elements of the offence.  In the circumstances of the present case, for reasons which I will address, the elements, relevantly, are that Mr Perrine:

1. without duress;

2. intended to; and

3. did use electricity;

4. that was illegally diverted from the consumer main and away from the meter.

12. I adopt the same directions that I gave to the jury as directions to me, including in respect of the need for the Crown to negative duress beyond reasonable doubt which, in summary, requires proof beyond reasonable doubt that a reasonable person of Mr Perrine's age and sex, of ordinary firmness and strength of will, in his circumstances, would not have acted so as to commit the crime alleged. 

13. I also direct myself that the accused's account, given in two interviews to the police and in evidence, so far as it contradicts elements of the offence, must be negatived as a reasonably possible account in order for guilt to be established.

14. If the accused's account contradicts elements of the offence, and I accept it or accept that it might be true, then he is entitled to a verdict of not guilty.  Mr Perrine does not have to establish his account, nor is the question a matter of whose account is to be preferred. 

15. Further, I must take into account Mr Perrine's good character, both as a relevant matter going to the likelihood of him committing the offence as well as the likelihood of his account being true. His good character is not, however, any kind of defence.

2. Use of electricity

16. The Crown relies on three matters to establish the use of electricity:

1. That Mr Perrine charged his mobile phone at the premises;

2. That Mr Perrine used an electric saw at the premises; and

3. That Mr Perrine lived at the premises.

(a) Charging his mobile phone

17. The evidence that Mr Perrine charged his mobile phone on the premises is contained in an exchange in his cross‑examination as follows:

“Q. If you could turn to page 5. Can you see at the bottom of that page there is a mobile phone?

A. INTERPRETER: Yes, correct.

Q. That’s the mobile phone that Peter gave to you?

A. INTERPRETER: Yes, correct.

Q. When did Peter give you this phone?

A. INTERPRETER: I don’t remember.

Q. Was it the day that you first found out about the cannabis plants?

A. INTERPRETER: No.

Q. Was it sometime during the new crop of cannabis plants?

A. INTERPRETER: New crop - yes.

Q. How did you charge that mobile phone?

A. INTERPRETER: There was an electric plug, I believe, in the room in the kitchen - in the room that I made with gyprock, and I extended that to the corridor.” ^[1]

1. Tcpt, p 213(14-30).

18. I am satisfied beyond reasonable doubt on the basis of this evidence that Mr Perrine charged, at the house, the mobile phone that he was given by Peter and did so by use of a power point in the kitchen.

(b) Using an electric saw

19. The Crown again relies on evidence of Mr Perrine in cross‑examination.  The following exchange occurred:

“Q. So, Peter has shown you around the house. What happened then?

A. INTERPRETER: So, I accepted, and I started demolishing.

Q. You started immediately?

A. INTERPRETER: Yes.

Q. With what tools?

A. INTERPRETER: Peter had the tools since the first day.

Q. Which tools did Peter have?

A. INTERPRETER: Hammers. Crowbars. Saws. Electrical saws. Knives. And quite a lot of other tools.” ^[2]

2. Tcpt, p 168(21-32).

20. For this evidence to establish that Mr Perrine used electricity in operating an electric saw at the house requires two inferences. 

21. First, that the electric saws were powered directly by electricity through a cable connected to a power point or, if any electrical saw used battery power, that the battery was charged at the site. 

22. Secondly, guilt requires an inference that Mr Perrine used the saws. But the only evidence is that Peter had electrical saws and many other tools.  That is not compelling evidence that Mr Perrine used all of the tools of Peter and, in particular, the electrical saws or any of them.

23. I take into account that the Crown directed no questions to Mr Perrine or any other witness on this issue of the use of the electrical saws.  It follows that there are available other reasonable inferences consistent with innocence, that Mr Perrine used no electrical saw, and that any electrical saw may have been battery powered and the battery charged elsewhere.

24. Accordingly, I am not satisfied beyond reasonable doubt that Mr Perrine used electricity at the house using an electrical saw.

(c) Mr Perrine lived at the house

25. It is not disputed that for a period of a week or more, Mr Perrine lived at the house. 

26. There is no other evidence that Mr Perrine used any electricity at the house.  He did live at the house while substantial amounts of electricity were used to light and heat cannabis plants, drive air filters and air circulation and the like, but there was evidence that the lighting was automatic. ^[3]   There was an oblique reference by Mr Perrine to "turning off" the electricity, ^[4] but none to turning it on or to Mr Perrine using electricity in the cannabis cultivation in any other way.

    3. Exhibit G; MFI 5 at A48.

    4. Exhibit G; MFI 5 at A50.

27. No questions on this topic were put to Mr Perrine. I do not accept that Mr Perrine’s use of electricity is established beyond reasonable doubt by Mr Perrine living at the premises for a week, in the absence of any inquiry on the topic, even though substantial amounts of electricity were used at the premises to cultivate cannabis plants.  The circumstance that others had a right of occupation, had installed an illegal bypass to cultivate indoor cannabis plants, and had used electricity for that purpose does not establish that Mr Perrine used that electricity by living at the house.

28. Accordingly, the element of using electricity is established by Mr Perrine charging his mobile phone, but not otherwise. 

3. Electricity used was illegally diverted and not metered

29. The question raised by this element is whether the unlawful, unmetered electricity rather than electricity through the meter was used by Mr Perrine to charge the mobile phone. 

30. There was evidence, which I accept, that no authorisation had been provided by Endeavour Energy to use unmetered electricity at the address. ^[5]

    5. Tcpt, p 45(39-45).

31. William Lockhart from Endeavour Energy gave evidence.  He gave evidence of "within the roof cavity, there was an illegal bypass", ^[6] and the following exchanges occurred:

    6. Tcpt, p 45(8).

“Q. When you say illegal bypass, what do you mean?

A. Basically it’s a connection that’s unauthorised that diverts electricity diverting it from the meter so it’s unmetered basically.

Q. Is it fair to say that it’s coming directly from the consumer main?

A. Yes. Yeah. Yep.

Q. When you say unmetered, what does that mean?

A. Basically because it’s not being supplied from a metered point, any electricity that’s consumed from that illegal bypass hasn’t been accounted for in the meter, and therefore it’s not paid for or billed for.

Q. An illegal bypass such as what you found, does it create any risks or danger?

A. Yeah, there’s quite a - a few risks. I mean one of the risks that I see quite often is fire starting from the - the bypass point because they’re put in by people that don’t really know what they’re doing so it creates potential to start a fire. And also that whole circuit supplied from that bypass, it’s not protected by the normal protections that are found in a metre board. Therefore, anyone working at the property even if they turn the main switch off and do what they’re meant to do which would normally cut all the electrical supply to the house off, it still remains live. So, you know, anyone unsuspecting working at the property could be electrocuted.” ^[7]

“A. Basically there’s, like, 16 mil cables that you can see right in from sort of the eve of the roof and then through the property. So those black cables are the consumer mains. Basically it’s the electrical supplier from the point of attachment where the street main is attached to the house. Then the consumer mains then run to the consumer fuses which are located within the main switchboard. Now you can see some red and black connections on those black wires and then some white wires feeding off that. So those black and red connections are called piercing clamps and basically, it's an insulated clamp with little teeth that bite through the insulation forming a - a contact and then those white cables are also connected to it which is effectively creating a circuit off the consumer mains.

Q. And did you conduct any test on the day being 8 April 2020 to find out exactly what these - illegal connections were powering?

A. Yes, through a number of ways, so we chased the wires which is basically just finding out where those wires went and also with a tong meter or a clamp meter actually measure what was going through those wires so we could measure it at two different points.

Q. And were you able to find out what the bypass was supplying electricity to?

A. Yeah, so those bypass wires supplied power to what’s called sub walls which are like these makeshift boards with power points and switches on them and so it basically fed those sub boards that were located down in the dwelling.

Q. Are you aware of what was connected to the sub walls?

A. The lights, hydroponic lights, hydroponic fans, extractors and pumps.” ^[8]

7. Tcpt, p 45(10-32).

8. Tcpt, p 46(19-45).

32. Mr Lockhart also gave evidence that:

“Q. When you arrived at that location, what did you do?

A. First thing I did is inspect the meter boards just to see if the other meters were in good working order, and also behind the meter boards just to see if there was any anomaly to the electrical installation.

Q. Were the meter boards in good working order?

A. Yes.

Q. Did you find any anomalies with the meter board?

A. (No verbal reply)” ^[9]

9. Tcpt , p 44(32-41).

33. There was no evidence of an anomaly in the meter boards.  The evidence was that they were in good working order and also that the electrical bypass supplied power to the "sub walls...these makeshift boards with power points and switches on them", ^[10] and that this powered "[t]he lights, hydroponic lights, hydroponic fans, extractors, and pumps". ^[11]  

    10. Tcpt, p 46(39).

    11. Tcpt, p 46(45).

34. The property comprised a residential house that was rented to conventional tenants before the illegal bypass. I would infer that legal metered circuits did exist before January 2020, when the bypass was evidenced to be installed.

35. It follows that there likely remained, at the house, conventional room lights, power points, and perhaps hardwired kitchen appliances that were once powered through a metered circuit. That the cannabis cultivation arrangement ‑ the lights, extractors, fans, and pumps ‑ was powered by the unmetered electrical bypass does not establish that the conventional circuits in the house were so powered.

36. At least I was not satisfied to the criminal standard that there was no operating electrical circuit through the meter boards.  The matter was not directly the subject of questions.  I take into account that, were the electrical circuit to power all the existing circuits in the house, it would require significant electrical work to connect the bypass to all the circuits coming from the meter, an apparently complicated arrangement for no discernible benefit to the production of cannabis, which was the evident purpose of the illegal bypass.

37. The photographs of the bypass in the roof did not indicate it, and for the reasons given, it seems unnecessary and unlikely. 

38. Nor was there evidence that the metered supply of electricity was unconnected, or that there was no legal supply to the house.

39. If, inferentially, there is legal power available at the house, there is nothing to indicate conclusively, even persuasively, that the power Mr Perrine used to charge the mobile phone or power any other personal or domestic appliance came via the illegal bypass.

40. Accordingly, the inference that the legal electricity at the house was used to charge Mr Perrine's mobile phone was not excluded and remained a reasonably possible inference.  That being so, the Crown has not proved beyond reasonable doubt that Mr Perrine used the illegal electricity to charge his mobile phone.

4. Intention

41. The heading to the relevant offence is, "Theft of electricity".  Although the heading is not part of the offence under the Interpretation Act 1987, ^[12] it is part of the material available to correctly construe the provision.  The heading indicates that the mental element required for a theft is also an element of this offence. 

    12. Sections 34 and 35.

42. In a theft, the accused's mental state at the time of the taking must include:

1. the property must be taken with the intention of permanently depriving the owner of it;

2. the property must be taken without a claim of right made in good faith; and

3. the property must be taken dishonestly.

43. Use of electricity would involve permanent deprivation, but there was no evidence of a lack of good faith or dishonesty in respect to the use of the electricity in charging the mobile phone.  In particular, there is no evidence that Mr Perrine was aware that illegal electricity was being used in the cultivation of the cannabis, let alone in the charging of the mobile phone.  No questions were directed to him about the illegal bypass and no submission was made that he was involved in its setup or was aware of it.  The existence of the illegal bypass was hidden in the roof cavity, a place where, so far as the evidence revealed, he never ventured.

44. I am satisfied that there is an intention element in the offence: for Mr Perrine to be guilty of the offence, he must be using electricity at the house and aware that he has no entitlement to use it.  The Crown made no argument to this effect, and the circumstance that the bypass was hidden in the roof cavity suggests the contrary.

5. Duress

45. Finally, there is the issue of duress.  The jury verdict establishes that the Crown did not negative duress to the criminal standard.  The question of duress applies equally to this alleged offence. There was no submission by the Crown against the applicability of duress to the offence of theft of electricity, or to the charging of the mobile phone, and I find that it applies to this action, and alleged offence, as it did to the matter before the jury.

6. Conclusion

46. Three of the four elements were unsatisfied. Accordingly, I am not satisfied to the criminal standard that Mr Perrine committed the offence. I find the accused not guilty of the s 166 related offence of use or consume electricity without authority under s 64 of the Electricity Supply Act 1995.

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Endnotes

Decision last updated: 04 November 2022