R v Radic

[2001] NSWCCA 174

Reported Decision: 122 A Crim R 70

New South Wales

Court of Criminal Appeal

CITATION:	R v Radic [2001] NSWCCA 174 revised - 1/06/2001
FILE NUMBER(S):	CCA 60547/00
HEARING DATE(S):	7/5/01 18/05/2001
JUDGMENT DATE:	29 May 2001
PARTIES :	Regina Dragan Radic
JUDGMENT OF:	Hidden J at 1; Carruthers AJ at 2; Badgery-Parker AJ at 59

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/41/0135
LOWER COURT JUDICIAL OFFICER :	Goldring DCJ

COUNSEL :	W. Robinson QC (Crown) S. Odgers SC (Applicant) and R.J. Button (Applicant)
SOLICITORS:	S E O'Connor (Crown) D J Humphreys (Applicant)
CATCHWORDS:	Sentencing - Appellant committed for sentence to the District Court pursuant to s 51A of the Justices Act 1902 - One count of break, enter and steal specified jewellery to the value of $38,000 - Appellant adheres to plea of guilty in District Court and admits stealing electric drill (not particularised) but denies stealing the particularized jewellery - Consideration of appropriate procedure to be followed by the sentencing judge in such circumstances - necessity to comply carefully and precisely with terms of s 51A.
LEGISLATION CITED:	Crimes Act 1900 Criminal Procedure Act 1986 Justices Act 1902
CASES CITED:	Lacis v Cashmarts [1969] 2 QB 400 Pilgram v Rice-Smith (1977) 65 Cr App R 142 R v Bamford (1972) 2 NSWLR 261 R v Burns (1920) 20 SR 351 R v Crombie [1999] NSWCCA 297 R v Gibson (Unreported, NSWCCA 19 March 1987) R v Paauwe [1970] 3 NSWLR 125 R v Ponfield (1999) 48 NSWLR 327 R v Saxon (Unreported, NSWCCA, 21 April 1998) R v Thomson & Houlton (1999-2000) 49 NSWLR 383 R v Tideswell [1905] 2 KB 273 R v VHP (Unreported, NSWCCA 7 July 1997)
DECISION:	Leave to appeal granted. Appeal upheld. Sentence by Goldring DCJ set aside. New sentence: imprisonment for 3 years, commencing 27 April 2000 and expiring 26 April 2003. Non-parole period of 1 year and 9 months, commencing 27 April 2000 and expiring 26 January 2002, on which date the applicant is to be released to parole.

1    HIDDEN J: I agree with Carruthers AJ

2    CARRUTHERS AJ: Dragan Radic seeks leave to appeal against a sentence imposed upon him by Judge Goldring at the Wollongong District Court on 4 August 2000. This application has raised important questions relating to committals for sentence by a Local Court pursuant to s 51A of the Justices Act 1902.

3 The background to the matter is important. On 27 April 2000 the applicant was arrested by Wollongong Police and charged with an offence under s 112(1) of the Crimes Act 1900, as amended. Relevantly s 112(1) provides that: -

“Whosoever breaks and enters any dwelling-house…and commits any serious indictable offence therein… shall be liable to imprisonment for fourteen years.”

The combined effect of s 20(1) of the Criminal Procedure Act 1986, and Table 1 to Schedule 1 of that Act, is that where the serious indictable offence is stealing, and the property allegedly stolen does not exceed $15,000.00, the charge is to be dealt with summarily by a Local Court, unless the prosecuting authority, or the person charged with the offence elects, in accordance with Division 3 of the Criminal Procedure Act, to have the offence dealt with on indictment. If the matter is dealt with summarily, the maximum penalty which can be imposed is two years imprisonment.

4 The applicant was charged in the following terms, under s 112(1):

“That Dragan RADIC between the 10th day of March 2000, and the 17th day of March 2000, at CRINGILA, in the State of New South Wales, did break and enter the dwelling house of Eric BIYIK situated at 44 Auburn Pde, Cringila and then while in the said dwelling house did steal certain property to the value of $38100, to wit, 14 x 22ct gold ladies bracelets, 6 x 18ct gold bracelets, a quantity of 14ct gold earrings, a quantity of 14,18 &22ct gold necklaces, 3 x 18ct gold watches, large quantity of silver necklaces, bracelets, earrings, rings and watches, a quantity of gold infants jewellery, a quantity of unique gold medallions and $1500 in cash denominations the property of Eric BIYIK then being.”

5    As the value of the property allegedly stolen was $38,100.00, the matter did not qualify to be dealt with summarily in the Local Court.

6 The matter came before Ms Judith Fleming LCM in the Wollongong Local Court on 25 May 2000, on which occasion the applicant pleaded guilty to the charge in the above terms. The presiding Magistrate accepted the plea and committed the applicant to the District Court at Wollongong for sentence pursuant to the provisions of s 51A of the Justices Act 1902.

7 It is necessary to note the provisions of ss (1) of s 51A, which are in the following terms: -

“51A (1) A person charged before one, or more than one, Justice with an indictable offence may, at any stage of the proceedings, plead guilty to the charge and thereupon the following provisions of this section have effect:
(a) The Justice or Justices may accept or reject the plea.
The rejection of a plea of guilty at any stage of the proceedings does not prevent the accused from pleading guilty under this section at a later stage of the proceedings and the Justice or Justices have power to accept or reject the plea at that later stage,
(b) Where the Justice or Justices reject the plea the proceedings before the Justice or Justices shall be continued as if the plea had not been made,
(c) Where the Justice or Justices accept the plea, the Justice or Justices shall thereupon commit the accused to such sittings of the Supreme Court or the District Court as the Justice or Justices may direct to be dealt with as hereinafter in this section provided,
(d) The Judge of the Supreme Court or of the District Court, as the case may be, before whom the accused is brought in accordance with this section:
(i) shall, if it appears to him or her from the information or evidence given to or before him or her that the facts in respect of which the accused was charged before the Justice or Justices do not support the charge to which the accused pleaded guilty or if counsel for the Crown requests that an order be made under this subparagraph, and may, if for any other reason the Judge sees fit so to do, order that the proceedings before the Justice or Justices at which the accused pleaded guilty be continued at a time and place to be specified in the order,
(ii) unless an order is made under subparagraph (i), has the same powers of sentencing or otherwise dealing with the accused, and of finally disposing of the charge and of all incidental matters, as he or she would have had if the accused on arraignment at any sittings of the Court had pleaded guilty to the offence charged on an indictment filed by the Attorney-General or the Director of Public Prosecutions,
(e) Notwithstanding paragraph (d), where the accused is, in accordance with this section, brought before a Judge and changes to not guilty the plea to the charge on which the accused was committed under paragraph (c):
(i) the Judge shall, unless the Judge is of the opinion that an order should be made under paragraph (d)(i), direct that the accused be put on trial for the offence charged,
(ii) upon the giving of the direction, the committal under paragraph (c) shall be deemed to be a committal of the accused for trial for that offence, and
(iii) the Judge may make such orders, may do such other things that the Justice or Justices could have done on a committal for trial, and may give such directions with respect to matters preliminary to the trial, as to the Judge seems to be just.
(f) Paragraph (e) does not apply in relation to an offence punishable with imprisonment for life.”

8    The matter came before Judge Goldring in the District Court in Wollongong for sentence on 4 August 2000, when Mr B. Diggins appeared for the Crown, and Mr I. Rodgers appeared for the applicant.

9    By consent, Mr Diggins (to whom I shall refer to as the Crown Prosecutor) tendered the Crown brief. After his Honour had read the brief, the following exchange took place: -

HIS HONOUR: I’ll just continue reading it. Yes, thank you. Mr Rodgers, when you’re ready? You said there is a dispute about the facts, but your client adheres to his plea of guilty, does he?
RODGERS: He does, your Honour.
HIS HONOUR: Yes?
RODGERS: I can outline the disputed facts to your Honour right now, just to foreshadow it.
HIS HONOUR: Please?
RODGERS: Your Honour, he agrees that he did break and enter the shed, what’s effectively a shed attached to the house. He says though that he only stole a drill, the allegation is that he stole an amount of jewellery.
HIS HONOUR: Yes, I see. Yes, Mr Rodgers, well just go ahead and call your evidence.” [My emphasis]

10    Due no doubt to the pressure of Court business, no consideration appears to have been given by the learned sentencing Judge, or counsel before him, to the legal complication which arose in the proceedings by reason of the applicant adhering to a plea of guilty to a charge that he broke and entered the subject premises and stole property to the value of $38,100.00, as enumerated in the charge, but nevertheless denying that he stole such property. Nor, specifically, was consideration given to the fact that the applicant was asserting that he stole a drill from the subject premises although the stealing of a drill was never the subject of any charge by the prosecution.

11    The Crown prosecutor called Mr Biyik, the owner of the subject dwelling house at Cringila. He described the house as consisting of two storeys with his parents living upstairs and he, his wife and young daughter, living downstairs. The family is of Turkish origin, and it is the custom for Turkish women to wear gold jewellery at social and family functions. The gold jewellery belonging to Mr Biyik’s wife and other female members of the family was kept in two former army cartridge cases, which were generally kept in a safe in a storeroom on the ground floor. The door to the storeroom opens to the outside yard. Normally the cartridge cases are locked in a safe, located in the storeroom, the door of which is kept locked.

12    On Friday 10 March 2000 the whole family left the Cringila home to attend a function in Sydney. Mr Biyik’s father removed certain of the gold jewellery from the cartridge cases so that it might be taken to Sydney but, apparently due to pressure of time, omitted to return the cases to the safe. He left the cases (which still contained some jewellery) sitting on top of the safe and locked the door to the storeroom.

13    The family returned to the Cringila residence on the evening of Sunday 12 March but did not immediately observe that the storeroom had been broken into. That became apparent about three or four days later. The police were notified. The investigating police officers caused fingerprints to be taken of the cartridge cases and the fingerprints of the applicant were located on the lid of one of the cases. The cases were empty but there were some pieces of gold lying on the storeroom floor. The lock to the storeroom door had been forced.

14    During the course of his evidence in chief, Mr Biyik was asked: -

“Do you recall [sic] drill being in that area [ie the storeroom] before you left?”
He answered: -
“We don’t keep drills in that area, sir.”

15    No cross-examination was directed to Mr Biyik by way of challenge to this evidence.

16    The applicant gave evidence. Relevantly, the following evidence was given in chief: -

“RODGERS: Q. Now, just tell us what happened on that day. Do you remember how you got in there?
A. I just went through the door.
… … …
WITNESS: I went through the door, like I think, like I was, I had some heroin like before I went in there, probably 15 minutes prior to that - -
RODGERS: Q. You were using heroin at that time, were you?
A. Yeah, and- -
Q. And you had some just before you went to this house?
A. Yeah.
Q. So you went into the door?
A. Yeah, I went to the door.
Q. What did you do when you were inside the room?
A. I was just looking around for stuff and that, you know. So I found a, there just boxes of stuff in there and that, looking around and stuff and found the drill, that was the only thing that was worth taking to me, grabbed that, took it and left, that was it. There was no jewellery. Like, he’s saying it’s in them steel containers, right? Now, I’m not, you know, like if I seen that there’s no way, there’s no way I’m going to leave them containers behind because it’s already in the containers, all this stuff that he’s trying to say is in there, the jewellery, I would have took the containers. I wouldn’t empty out the containers, whatever he’s trying to say, you know what I mean? I would have took the containers with me if there was jewellery in the containers.
Q. So you say that you only took the drill away from the premises?
A. That’s all I took.
Q. What did you do with that drill?
A. I sold it for $40 the following morning, because it was night time when I went in there, late at night.
Q. How did you leave the premises when you went away, did you try and secure the door back on or anything like that?
A. Just walked out.
Q. You don’t recall exactly what date that was, is that the case?
A. No, I don’t, I don’t, I think it was a week day.
Q. It was a week day?
A. I think so.
Q. What happened after that, did you stay in Wollongong after that or what happened to you after that?
A. Yeah, I stayed at Wollongong for a couple more days. It’s just, you know, being, like I didn’t want to get into doing crime again stuff, you know, so I just spoke to my parents and that, I said, “I want to get out of here”, you know, and I went to Melbourne to my sister’s place to dry out.
Q. You dried out in Melbourne, how long did you stay down in Melbourne for?
A. Two days I think.
Q. And then what brought you back to Wollongong?
A. I dried out, come back to Wollongong, I knew I had further court so, you know, that’s why I come back to Wollongong.
Q. What happened when you got back to Wollongong, did you speak to your parents about anything?
A. Yeah, I knew it was about this, And that’s what I’m trying to say, if I knew that they’re trying to get me for so much jewellery and stuff like that, there’s no way I would have handed myself in, I would have still been out there today probably trying to, you know, hiding and that.”

17    Relevantly, the following cross-examination is of interest: -

“Q. So you’ve gone inside this storage shed, what did you see?
A. Walked in and I had a look and there’s just junk everywhere.
Q. Where was the drill that you say?
A. The drill was on the left hand side I think it was, on one of the benches there.
Q. What sort of drill was it?
I think it was a Makita - -
Q. You think it was a Makita?
A. A Makita, yeah, a Makita.
Q. Where did you sell it?
I sold it at, to a bloke, you know.
Q. Where?
A. Port Kembla.
Q. Where?
A. On the main street to a bloke.
Q. So you were walking around with a drill in your hand - -
A. You know yourself that’s where everyone goes to score, right, so, you know, that’s where I went, I went and sold it there.
Q. Where did you go after you broke into that shed and took the drill, where did you go?
A. After I left there and I went to a person’s house.
Q. With the drill, carrying the drill?
A. Yeah.
Q. Wrap it in anything?
A. No, just carried the drill.
…
Q. Tell anyone you broke into the house?
A. Sorry?
Q. Did you tell anyone you broke into the house?
A. No, I don’t think I did. I can’t remember to tell you the truth.
Q. When you were leaving the house what did you do with the door, leave it open or closed?
A. I just walked out.
Q. I’ll ask you again, did you open or close the door?
A. I walked out, I didn’t close the door.
Q. So the door was left open when you left?
A. Yeah.
Q. See the ammunition boxes?
A. Yeah, I seen them.
Q. Where were they?
A. They were in there somewhere, they were just lying around I suppose because I remember to me they looked like tool boxes and I’m there to, you know, I’m looking around and that was it, there was nothing in it, mate.
Q. You didn’t open them up and have a look did you?
A. I don’t think I, I only think I opened one of them up.
Q. And what was in that?
A. Nothing, it was empty.
Q. So you’ve had to force open that door to get into the shed is that right?
A. Yeah.”

And later: -

“Q. You thought it was Christmas when you found that jewellery in that box that night, didn’t you?
A. Listen to me, if I found that jewellery, right? I’m just saying, if found that jewellery I wouldn’t have taken it out of them boxes for starters, all right? Because I’m not stupid to leave my fingerprints on a box, which I probably did, that’s how you scored me, right.”

18    Mr Rodgers also called the applicant’s mother who gave evidence that she lent her son $60 to go to Melbourne and his sister lent him $100 for the same purpose.

19    $800.00 worth of the jewellery was recovered in the Cringila area, but it could not be traced back to the applicant.

20    It would appear that the applicant was taken to Wollongong Police Station by his parents on 27 April 2000, where he was arrested on two outstanding first-instance warrants.

21    Detective Senior Constable Northfield then sought to interview the applicant in relation to the subject offence. The totality of the relevant conversation between Detective Northfield and the applicant is as follows: -

“I said, ‘Do you know the bust I’m talking about?’
He said, ‘No.’
I said, ‘It involved a lot of middle eastern gold jewellery and cash that was hidden under a stair well in an ammunition container. Does that ring any bells?’
He said, ‘How much are we talking about?’
I said, ‘About $40000 worth’
He said, ‘What?’
I said, ‘Yep.’
He said, ‘I can’t remember it.’
I said, ‘Are you prepared to be interviewed over this matter?’
He said, ‘No. I don’t remember it.’
I said, ‘Well basically it’s like this. We have located your fingerprints on the ammunition container which had all the jewellery in it. Have you ever been inside the stair well at 44 Auburn Parade in Cringila before?’
He said, ‘I don’t know.’
I said, ‘Alright, rather than wasting everyone’s time, I will just be charging you with the break and enter at the house okay.’
He said, ‘If I did say anything, will it make a difference. Would I still get charged?’
I said, ‘Yep. You are going to be charged regardless.’
He said, ‘Well piss off then and just do it.’”

22    This Court does not have the advantage of a transcript of the submissions by counsel. However, immediately counsel completed their submissions, his Honour delivered judgment and proceeded to sentence the applicant.

23    The transcript of his Honour’s remarks on sentence discloses that he resolved the dispute as to whether the jewellery was or was not stolen as follows: -

“The case that what was stolen was the jewellery is a circumstantial case. It is a strong circumstantial case, because of the finding of the fingerprint on the ammunition box. But nevertheless, if there is an alternative hypothesis consistent with the innocence of the accused, then I cannot find those facts beyond reasonable doubt. I certainly have a reasonable suspicion that was the case, but I cannot find those facts proved to that standard. So for that reason the sentence I impose, although it will be a long one, is not as long as it would be if I had found as a fact that Mr Radic had stolen the jewellery.
It is clear from Mr Biyik’s evidence that there was a period of about a week during which the jewellery could have been stolen, and it is not impossible that someone else could have broken in. The evidence about the way in which the lock had been removed and replaced which Mr Biyik gave is not consistent with that given by Mr Radic, and I think I would have to prefer Mr Biyik’s evidence.

However, the evidence of Mr Radic’s sister that he borrowed money to go to Melbourne, the fact that he was only in Melbourne for two days because his mother saw him on the Tuesday, suggests to me that he did not have the jewellery with him and that he would not have borrowed money had he stolen the jewellery and disposed of it.” [My emphasis]

24    His Honour then proceeded to sentence the applicant as follows:

“However, he has pleaded guilty to the offence, and for that he will be sentenced to imprisonment for a term of three years and four months with a non-parole period of two years and six months. The sentence will commence on 27 April of this year and expire on 26 August 2003. The non-parole period will expire on 25 October 2002, and on that date he will be eligible for release on parole. There are no special circumstances.” [My emphasis].

25    Interestingly, his Honour does not state that he was satisfied beyond reasonable doubt that it was a drill which had been stolen by the applicant. Of course, it does not follow that because his Honour was not satisfied beyond reasonable doubt that the jewellery was stolen that it necessarily followed that his Honour was satisfied beyond reasonable doubt that the drill had been stolen. This simple proposition demonstrates the dilemma with which his Honour was faced.

26    Prior to sentencing the applicant his Honour did not give the parties the opportunity of making submissions as to the consequences which flowed from his rejection of the Crown case that the applicant had stolen the jewellery alleged. Although the assumption is an unsatisfactory one, this Court is left with no option but to assume that his Honour sentenced on the basis that a drill was stolen.

27    The written submissions on behalf of the applicant, dated 6 April 2001, were based upon two fundamental contentions, firstly, that the sentencing Judge erroneously believed that at the time of the offence the applicant was on parole, and secondly, that the sentence was manifestly excessive in the circumstances. One circumstance that was particularly relied upon was that as the drill was obviously of small value, the matter was appropriately one for the Local Court.

28    The written submissions by the Crown, dated 1 May 2001, focused solely upon the points raised in the applicant’s written submissions. When this matter originally came before Badgery-Parker AJ and myself sitting as a two Judge Bench, on 7 May 2001, the Court drew the parties’ attention to the concern that there was an apparent irregularity in the manner in which these proceedings had been conducted, and seeking submissions as to the consequences of such irregularity insofar as this Court was concerned. The matter was then stood over until 18May 2001 to enable the parties to give consideration to the matters raised by the Court. For this purpose a three Judge Bench was constituted, presided over by Hidden J. Having received further submissions from the parties and taken fresh evidence, the Court reserved its decision. Specifically, it should be noted that the applicant did not seek leave to appeal against the conviction.

29 The circumstances under which this matter was dealt with at first instance raise important questions for the due administration of the criminal justice system of this State, and therefore are required to be addressed. The focal point for consideration is s 51A which deals with the effect of a plea of guilty in committal proceedings. Section 51A was added to the Justices Act by the Crimes (Amendment) Act 1955, to enable an accused person to enter a plea of guilty before the Magistrate to an indictable offence whereas previously such a plea could only be entered after arraignment before the Central Criminal Court or the Court of Quarter Sessions (now the District Court Criminal Jurisdiction): see R v Paauwe [1970] 3 N.S.W.R. 131 at 133.

30    It is important to remember that a plea of guilty is a solemn matter; it has two effects: first of all it is a confession of fact; secondly, it is such a confession that without further evidence the Court is entitled to, and indeed in all proper circumstances will so act upon it, that it results in a conviction: see R v Bamford (1972) 2 NSWLR 261 at 263. Thus the plea admits those matters which are of the essence of the charge. A plea of guilty does not, however, admit non-essential ingredients of the offence: see R v O’Neill (1979) 2 NSWLR 582 at 588.

31    The question must be asked then, as to the effect of the guilty plea by the present applicant before the learned Magistrate.

32 There can be no doubt that a charge under s 112(1) of the Crimes Act, which relies upon stealing as the indictable offence, must identify specific property which is alleged to have been stolen. The importance of this requirement is evident from a number of cases, discussed in Archbold, Criminal Evidence and Practice [2001] at para 21-56. Reference may be made to Lacis v Cashmarts [1969] 2 QB 400; R v Tideswell [1905] 2 KB 273 and Pilgram v Rice-Smith 65 Cr. App. R 142.

33    A helpful statement of general principle is to be found in R v VHP (Unreported NSWCCA 7 July 1997) where this Court was concerned with whether the Crown had made the date of the alleged offence in a charge of sexual assault of the essence, or to put it another way, an essential ingredient of the offence. Gleeson CJ (with whom Handley JA and Studdert J agreed) stated: -

“As a general rule, what the Crown needs to establish in order to obtain a conviction are the essential facts alleged in the indictment, and if the Crown fails to establish an inessential fact, or a particular which has been provided before the trial, or which emerged from the evidence of Crown witnesses, that is not fatal. However, that generalisation may, in any given case, need to be qualified. Two examples of possible qualifications are of present relevance. First, in some circumstances the requirements of procedural or substantive fairness may restrict the capacity of the Crown to depart from particulars. Second, the evidence in a case may be such that it would not be open to a jury, acting reasonably, to treat one part of the Crown case as reliable, and another part as unreliable.
The general rule was stated by Atkin J in Reg v Dossi (1918) 13 Cr App R 158 at 159-160 in the following terms:
From time immemorial a date specified in an indictment has never been a material matter unless it is actually an essential part of the alleged offence…Thus, though the date of the offence should be alleged in the indictment, it has never been necessary that it should be laid according to truth unless time is of the essence of the offence.
There are, however, many examples of cases in which it has been held that time has been made of the essence of the offence, or, to use another expression adopted by judges, has been made vital, by reason of circumstances which give rise to qualifications of the kind mentioned above. (e.g. The King v Dean [1932} NZLR 753, R v Kringle [1953] Tas SR 52, R v Pfitzner (1976) 15 SASR 171, R v Macdonald (1996) 84 A Crim R 508, R v Westerman (1991) 55 A Crim R 353).”

34    In the light of the authorities, the particularisation of the jewellery allegedly stolen by the present applicant was of the essence of the offence. This did not mean that if the matter went to trial the Crown would be required to prove that each item in the particulars was stolen; it would be sufficient for the Crown to prove that at least one item was stolen: See R v Hancock [1996] 2 Crim App R 554. Such particulars contained no reference to a drill and, indeed, the evidence available to the Crown, and led by the Crown, was that there was no drill present in the storeroom when it was broken into by the applicant.

35 It is necessary then to consider with care the provisions of s 51A of the Justices Act. It is not to be thought that these provisions are merely of a procedural nature. They provide the accused person with substantive rights and invest Justices and Judges with significant obligations and discretions directed towards the due administration of the criminal law and the protection of the accused person. In the instant case the learned Magistrate committed the applicant for sentence pursuant to para (d) of ss (1).

36 There is no provision in s 51A for the accused to be asked when he or she appears in the District Court or in the Supreme Court whether he or she adheres to the plea of guilty. However, this Court has noted that it is common practice and, indeed, it is a desirable practice, that when the matter comes before a Judge, the accused should be asked whether he or she adheres to the plea, thereby affording him or her an opportunity of exercising the right to change it: see R v Anthony Lawrence Gibson (Unreported, NSWCCA 19 March 1987).

37    In the present case the judge appropriately inquired whether the applicant adhered to his plea of guilty and received a reply in the affirmative. However a clear difficulty arose when the applicant’s counsel indicated that he denied stealing the property particularized in the charge.

38 A number of alternatives were available once the applicant had indicated that he denied stealing the property particularized in the charge. The Crown prosecutor may have requested the Judge to remit the matter to the committing Justice. The Judge, of his own motion, may have ordered that the matter be remitted: see subpara (i) of para (d). Alternatively, under sub para (ii) the Judge may have refused to accept the plea, directed that a plea of not guilty be entered, and that the matter proceed to trial. Regrettably, however, his Honour and the parties adopted a course which was not authorized by s 51A, which section exhaustively set out the courses which were available to the Court in the circumstances. This irregularity created difficulties for the sentencing Judge with consequent difficulties for this Court. One significant criticism of the course which was adopted was that it effectively took the conduct of the prosecution out of the hands of the Crown. It was for the Crown, and not the applicant, to nominate the goods which were alleged to be stolen from the subject premises.

39    Although (somewhat surprisingly) the applicant received a favourable finding in relation to the property allegedly stolen, he nevertheless complains that the sentence which he received was excessive. He complains (inter alia) that it was excessive in light of the property which he contends was stolen from the subject premises, namely one drill. The applicant declines to appeal against the conviction. Thus the conviction must stand. This Court has no power to set it aside of its own motion, even if it were minded to do so: see R v Burns (1920) 20 SR 351, which emphasises the restricted jurisdiction of this Court. See also R v Saxon (Unreported, NSWCCA 21 April 1998).

40    I turn then to the question whether the applicant has satisfied this Court that it should intervene on the issue of sentence. The applicant was born on 7 January 1975, and was accordingly 25 years old at the time of the commission of the offence.

41    He is addicted to heroin and has a criminal record embracing a variety of offences dating back to February 1994, when he was 19 years of age. He has prior convictions for the offence of break, enter and steal.

42    Certain aspects of the prior criminal record require attention. On 14 July 1999, the applicant was sentenced by the Wollongong Local Court, in relation to the offence of break, enter and steal, to a minimum term of 9 months imprisonment commencing on 14 July 1999 and expiring on 13 April 2000, with an additional term of 3 months. The record before his Honour states that such sentence was “appealed”.

43    On 27 August 1999, at the Wagga Wagga Local Court, the applicant was sentenced in relation to the offence of break, enter and steal, to a minimum term of 12 months imprisonment commencing on 28 May 1999, and expiring on 27 May 2000, with an additional term of 4 months. Again, the record contains the notation “appealed”.

44    During the course of his Honour’s remarks on sentence, the following exchange took place: -

“HIS HONOUR: Mr Radic has had a problem with heroin for some time and he has a lengthy record, including a number of break, enter and steal offences. He was in fact on parole for a similar offence when this offence was committed. Am I correct, Mr --
DIGGINS: I understand he’s on bail on appeal to the District Court.
HIS HONOUR: I think he is also on parole . How long has he been in custody?
DIGGINS: 27 April.
ROGERS: That’s my understanding as well, your Honour.
HIS HONOUR: Yes. I am just looking at the record and I see that there are a number of offences, but they include offences of violence, a breach of recognisance, breach of Community Service Order, malicious damage, dispose of stolen property, goods in custody on a number of occasions and I think three previous break, enter and steal offences.” [My emphasis].

45    The reality is that the applicant was not on parole, but was on bail pending appeals to the District Court at the time he committed the subject offence. His Honour made it clear that he had looked at the prior record of the applicant. This should have made it clear to him that the applicant was not on parole but was on bail at the time of the subject offence. Nevertheless, his Honour may possibly have incorrectly taken into account, to the detriment of the applicant, that at the relevant time the applicant was on parole as well as on bail. It is, indeed, a fine point.

46    It is relevant to note that the sentence imposed by Judge Goldring was fixed to commence on 27 April 2000, and accordingly, was partly concurrent with a number of sentences that had been imposed after the date of the subject offence, but prior to the date of sentence. The longest of those sentences had a non-parole period that expired on 4 November 2000. Therefore, bearing in mind that the sentence under appeal was back dated to 27 April 2000, there was an overlap of a little over six months, during which time the applicant was effectively in custody pursuant to the subject sentence and, at least, one other sentence.

47    It was submitted that the applicant obtained insufficient allowance for his plea of guilty in accordance with the guideline case of R v Thomson and Houlton (1999-200) 49 NSWLR 383.

48    Further, it is contended, that when one looks at the JIRS statistics, the particular facts of this offence demonstrate that although the sentence falls within the general range of the graphs, it nevertheless occupies a position in the range that is too high by reason of the objective circumstances.

49    Finally, it is contended (as has already been noted) that in view of his Honour’s finding as to the value of the property stolen and the nature of that property, the matter could have been dealt with summarily, and that was a relevant factor which his Honour overlooked; see R v Crombie [1999] NSWCCA 297.

50    As against these matters the Crown relies upon the fact that the plea of guilty was only of utilitarian value, and a very limited one at that, because of the fingerprint evidence. One is to take into account the applicant’s poor record, his lack of contrition which was manifest from his response to the police investigating the matter and the answers contained in his evidence before the sentencing Judge. He is a constant offender who is unable to attract any ameliorating factors, other than what was found to be the value of the property stolen.

51    When this matter came back before the Court on 18 May 2001, evidence was tendered which established that the applicant was suffering, at the time of sentence, from chronic hepatitis C infection and consequent liver damage. Indeed, as at the date of sentence, the applicant was in the Metropolitan Medical Transit Centre of the Long Bay Complex where he was receiving Interferon therapy. No explanation has been given of the reason why this material was not before the sentencing Judge. Clearly, the chronic liver damage from which the applicant suffers, renders his incarceration more stressful than otherwise would be the case.

52    Taking the various matters into consideration which have been adverted to in this judgment, I am satisfied that sufficient cause has been shown for this Court to grant the applicant leave to appeal, and for him to rely upon additional evidence to that before the sentencing Judge.

53    The applicant’s period in custody has not been uneventful. He spent some time at the Metropolitan Reception and Remand Centre (MRRC) at Silverwater. He has deposed in an affidavit that whilst in the MRRC he was threatened by inmates. After he informed Corrective Services officers of these threats, the inmates in question told him that they were going to “get him”, even if he went on to normal protection. Thereafter, the applicant signed on to strict protection. Once he signed on to strict protection at the MRRC, he contends that he was kept in his cell for about 21 hours a day and on some occasions, for a full 24 hours a day. The fact that the applicant will serve his sentence in strict protection is clearly a relevant factor for re-sentencing purposes. The significant difficulties associated with serving a sentence in protection are discussed in a helpful article by Lynne A. Barnes, Protective Custody and Hardship in Prison, published by the Judicial Commission of New South Wales (Number 21, February 2001).

54    As is not uncommon in these situations, no evidence was put before the Court as to the reason that the applicant was threatened by fellow inmates. In any event the applicant was transferred to Junee Correctional Centre on 4 February 2001. Unfortunately there are no facilities at Junee for the Interferon treatment. However, there is a positive aspect, in that the applicant has access to certain educational courses, despite being on strict protection. To his credit he is undertaking courses in Anger Management and Alcohol Violence Prevention in addition to a computer course. He has also actively co-operated in counselling regarding his drug misuse. There is thus evidence of attempts by the applicant to rehabilitate himself. There is also evidence that his family (which live in the Wollongong area) will support him upon his discharge from custody, and that Interferon Therapy Treatment for chronic hepatitis C is available at Wollongong Hospital.

55    One turns then to the objective circumstances. Although there is an air of unreality about it, the applicant is entitled, in the events which have happened, to the assumption that he stole no more than an electric drill from the premises. Be that as it may, the offence was a serious one, committed in a climate where there is grave public concern about the invasion of people’s homes by persons seeking to steal property in order to provide themselves with the funds to “feed” their drug addiction. The extracts from the applicant’s evidence set out above clearly demonstrate the high degree of criminality involved in this offence.

56    There are clearly special circumstances arising out of the applicant’s drug addiction and the consequent need for a significant period of supervision on parole.

57    Leave to appeal should be granted, the appeal upheld, and the sentence imposed by Judge Goldring set aside. In lieu thereof the applicant should be sentenced to imprisonment for three years to date from 27 April 2000 and to expire on 26 April 2003. A non-parole period should be fixed of 1 year and 9 months, to date from 27 April 2000 and to expire on 26 January 2002, on which date the applicant is to be released to parole.

58 The difficulties which arose in this case demonstrate the need for sentencing Judges to ensure that when accused persons are committed for sentence pursuant to s 51A of the Justices Act, the terms of that section are carefully and precisely complied with.

59    BADGERY-PARKER AJ: I agree with Carruthers AJ.