R v Rice

Case [2004] NSWCCA 384 10 November 2004

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Rice [2004] NSWCCA 384

FILE NUMBER(S):
60201/04

HEARING DATE(S): 11/08/04

JUDGMENT DATE: 10/11/2004

PARTIES:
Regina v Colin Ray Rice

JUDGMENT OF: Hodgson JA Hulme J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2004/0004

LOWER COURT JUDICIAL OFFICER: Barnett DCJ

COUNSEL:
(C) D Woodburne
(R) H Dhanji

SOLICITORS:
(C) S Kavanagh
(R) S O'Connor

CATCHWORDS:
Correct construction of ss 105A, 112 and 113 of Crimes Act - refusing leave to withdraw pleas of guilty when offender desired to obtain benefit of Drug Court dealing with his matters - appeal by Crown lies from Drug Court to Court of Criminal Appeal as to initial sentences imposed under s 7 of the Drug Court Act - meaning of "sentence" in s 2 of Court of Criminal Appeal Act - meaning of dwelling house in s 112 of Crimes Act - does it include curtilage - Drug Court following impermissible procedure in not sentencing in accordance with Crimes (Sentencing Procedure) Act 1999 and fixing non-parole period on initial sentence - initial sentences manifestly inadequate - matters remitted to Drug Court for re-sentencing.

LEGISLATION CITED:
Criminal Appeal Act 1912
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Legislation Amendment Bill
Drug Court Act 1998
Mental Health (Criminal Procedure) Act 1990
Stroud's Judicial Dictionary 1952 3rd ed
Shorter Oxford English Dictionary 3rd ed
Victims Compensation Act 1996

DECISION:
See para 125

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
60201/04

HODGSON JA
HULME J
SMART AJ
Wednesday 10 November, 2004
Reginav Colin Ray RICE
Judgment

HODGSON JA: In relation to the appeal against conviction, I agree with Hulme J that, even if on the agreed facts the appellant could not have been guilty of the aggravated form of the offence in respect of counts 1 and 2, the appellant should not be permitted to withdraw his plea. The plea was entered into on legal advice, with the object and achieved result of obtaining the considerable advantage of the Drug Court procedure, and there is no evidence offered as to what legal advice was given and no evidence at all from the legal advisers themselves.

In those circumstances, it is not strictly necessary for me to express a concluded view as to what is meant by “in the place where the offence is alleged to be committed” in s.105(1) of the Crimes Act, in relation to offences under ss.112(1) and 113(1) of that Act committed by a person who “breaks and enters a dwelling house”. However, since Hulme J and Smart AJ have expressed differing opinions, I should state my own view.

I accept that in order that an offence involving the breaking and entering of a dwelling house be committed, it is not sufficient that there be a breaking and entering of the curtilage of the dwelling house.

However, that does not mean that the place where the offence is committed is confined to the dwelling house, so that it is only…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Rice

Details

AGLC: R v Rice [2004] NSWCCA 384
Case: [2004] NSWCCA 384
Decision Date: 10 November 2004

CaseChat Overview and Summary

The case of R v Rice involved an appeal by the Crown against the sentences imposed by the Drug Court. The appellant, Rice, had pleaded guilty to entering homes with intent to commit a serious indictable offence, namely theft. The dispute centred on the interpretation of several sections of the Crimes Act, including sections 105A, 112, and 113, and whether the Drug Court followed proper sentencing procedures under the Crimes (Sentencing Procedure) Act 1999. Additionally, the Crown argued that the initial sentences were manifestly inadequate and that the Drug Court did not correctly apply the law in determining the non-parole periods.

The legal issues before the court were multifaceted. The primary concerns were whether the Drug Court correctly interpreted and applied sections 105A, 112, and 113 of the Crimes Act, particularly in relation to the definition of "dwelling house" and the appropriate procedure for sentencing. Furthermore, the court had to determine the meaning of "sentence" in section 2 of the Court of Criminal Appeal Act and whether the Drug Court followed the required sentencing protocols under the Crimes (Sentencing Procedure) Act 1999. Finally, the court needed to decide if the sentences imposed were manifestly inadequate and whether they warranted a remand for re-sentencing.

The Court of Criminal Appeal held that the Drug Court did not follow the required sentencing procedure, leading to an improper determination of the non-parole periods. The court also found that the sentences imposed were manifestly inadequate. Consequently, the appeal was allowed, and the matters were remitted to the Drug Court for re-sentencing. The court emphasised that the Drug Court must adhere to the statutory requirements for sentencing and ensure that the sentences imposed are proportionate to the offences committed.

The court's final orders were that the appeal be allowed, and the matters be remitted to the Drug Court for the purpose of re-sentencing the appellant in accordance with the law. The Drug Court was directed to ensure compliance with the Crimes (Sentencing Procedure) Act 1999 and to impose sentences that reflect the gravity of the offences committed.

Orders

Orders of the court

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Background

Background to the litigation

The Facts Count 2 - On 11 November 2003 Mr Milton, aged 77 was gardening in the front garden of his Beverley Hills home. Mrs Milton, aged 74, left the home through the back door which she closed but did not lock. The front of the house was locked save for a window which had a fly screen. The alarm was activated. She hosed the lawn in the backyard. She heard the alarm go off and entered her home via the back door. She switched off the alarm, walked through the kitchen into the lounge room, turned and saw the offender who stood inside near the back door. Mrs Milton asked what he was doing in her house. He replied, "Somebody jumped over your back fence". She asked, "Well, what are you doing here, how did you get in?" The offender replied, "Well, I walked past you." He walked out of the house. He was instructed by Mrs Milton to leave and did so. Mrs Milton's purse and the contents had been stolen from her handbag which had been in the second bedroom. Count 3 - On 11 November 2003 Mrs Waddington, aged 73, spoke to Mrs Maglia on the front porch of her Hurstville home for 10-15 minutes. The back wire door was closed, but not locked. The wooden door was open. After Mrs Maglia left Mrs Waddington walked inside her house. She saw the offender walk from her bedroom. She asked "How did you get in here?" He replied, "I came with the red lady, she has red hair, doesn't she?" She repeated, "How did you get in here?" and told him she was going to check her purse. She went into her bedroom and saw that her purse and its contents were missing from her handbag. When she came from her bedroom the appellant had left the home. She watched him as he fled. Later she discovered that the flyscreen at her back door had been cut. Count 4 Count 5 Statutory Framework Section 113(1) and (2) are in substantially similar terms except that the words "with intent to commit a serious indictable offence therein" should be substituted for the words "and commits any serious indictable offence therein." The maximum penalties are a little less, being 10 and 14 years respectively. Stealing is a serious indictable offence as it is punishable by a maximum penalty of 5 years imprisonment. Section 105A(1) provides circumstances of aggravation means circumstances involving any one or more of the following: Section 105A(2A) provides:"For the purposes of paragraph (f) of the definition of 'circumstances of aggravation', if there was a person, or there were persons in the place in relation to which an offence is alleged to have been committed at the time it was committed, the defendant is presumed to have known that fact unless the defendant satisfies the court that he or she had reasonable grounds for believing that there was no one in the place."Under the definition section (s 4) Stroud's Judicial Dictionary, 1952 reveals that the words "dwelling house" have been used in many different contexts and that their precise meaning depends very much on the context in which they are used. Stroud states:"(8)In burglary a house means a permanent building in which the owner, or the tenant or any member of the family habitually sleeps at night."

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Actions

Citations

R v Rice [2004] NSWCCA 384

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…91) 57 A Crim R 391 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Oliver (1980) 7 A Crim R 174 R v Rice [2004] NSWCCA 384 R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Visconti [1982] 2 NSWLR 104 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 16…
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Citation 7

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Citation 8

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R v Way [2004] NSWCCA 131
Citation 2 (Para 1)

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R v Uyrun [2004] NSWCCA 103
Citation 3 (Para 1)

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Johnson v The Queen [2004] HCA 15
Citation 4 (Para 1)

…and partially concurrent with each other and the sentences imposed on counts 1 and 2. The judge may find the discussion in Johnson v The Queen [2004] 78 ALJR 616 at 618 and 624 helpful when re-sentencing.…
Regina v Toman [2004] NSWCCA 31
Citation 5 (Para 1)

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R v Trindall [2002] NSWCCA 364
Citation 6 (Para 1)

…In R v Trindall (2002) 133 A Crim R 119 at 125-126 I wrote: "It is clear the words at the end of par (a),namely 'imposed under Part 2 of the Crimes (Sentencing Procedure) Act 1999' qualify the sub-pars (i) to (iv). Do they also apply to the introductory words of par (a),namely "any order made by the court of trial on…
Pearce v The Queen [1998] HCA 57
Citation 7 (Para 1)

…he judge erred in imposing wholly concurrent sentences on all five counts. He had failed to apply the principles in Mill (1988) 166 CLR 59 and Pearce (1998) 194 CLR 610, namely: "A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of c…
Meissner v the Queen [1995] HCA 41
Citation 8 (Para 1)

…ned that benefit, there is no miscarriage of justice in leaving the Appellant with the consequences of his decision. See also Meissner v R (1994-5) 184 CLR 132 at 141.…
Mill v The Queen [1988] HCA 70
Citation 9 (Para 1)

…The Crown contended that the judge erred in imposing wholly concurrent sentences on all five counts. He had failed to apply the principles in Mill (1988) 166 CLR 59 and Pearce (1998) 194 CLR 610, namely: "A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and t…
Veen v The Queen (No 2) [1988] HCA 14
Citation 10 (Para 1)

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Wright v Wallasey Local Board (1887) 18 QBD 783
Citation 11 (Para 1)

…includes its curtilage depends on the circumstances in which the expression is used – see e.g. the discussion in Wright v Wallasey Local Board (1887) 18 QBD 783 where it was regarded as meaning the building. So far as is presently material sub-section (1) provides:…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 1)
Crimes Act 1900 (ACT)
1 mention (from Para 2)
Criminal Appeal Act 1912 (NSW)
1 mention (from Para 1)
Criminal Procedure Act 1986 (NSW)
1 mention (from Para 1)
Drug Court Act 1998 (NSW)
1 mention (from Para 1)
Mental Health (Criminal Procedure) Act 1990 (NSW)
1 mention (from Para 1)
Victims Compensation Act 1996 (NSW)
1 mention (from Para 1)