R v Rice

[2004] NSWCCA 384

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

1. 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. 

1. 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.

1. 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.

1. However, that does not mean that the place where the offence is committed is confined to the dwelling house, so that it is only inside the dwelling house that could be “in the place where the offence is alleged to be committed”.  The breaking and entering of a dwelling commences outside the dwelling, in the immediate area from which the breaking is effected; so the place where the offence is committed must include at least that area immediately outside the dwelling. 

1. Count 1 relevantly charged that the appellant “did break and enter the dwelling house of Elaine Monaghan situated at 91 Morgan Street”.  Having regard to the previous paragraph, in my opinion “the place where the offence is alleged to be committed” is 91 Morgan Street, extending at least to the dwelling there and its immediate surrounds from which a breaking could be effected.  Whether or not a person in the curtilage of that dwelling is “in” that place could be a question of fact and degree, which could depend on the size and degree of enclosure of the curtilage, and the precise location of the person within it.  In my opinion, the agreed facts did not exclude a finding that Mrs. Monaghan was in the place where the offence was alleged to be committed.

1. In relation to Count 2, there is a further consideration.  The offence charged was of breaking, entering and stealing.  The victim entered the house when the alarm went off, and shortly afterwards encountered the appellant, who then left the house.  Stealing includes taking, so the offence in question continued after the victim was in the house.  I am inclined to the view that the victim need not be “in the place” throughout the commission of the offence, for the aggravating circumstance to apply.  If a victim is in a dwelling when it is broken into, and runs out before a stealing takes place, I am inclined to think that there will have been a person in the place where the offence of break enter and steal is committed, at the time it is committed.  If so, the same would apply where a victim enters the dwelling while the offence is continuing. 

1. In relation to the appeal against sentence, I agree with Smart AJ and with the additional remarks of Hulme J.  There is a theoretical possibility that some extremely powerful subjective case, that was not led either in the Drug Court or before this Court, might impact on the question of manifest inadequacy; but I think it is unlikely in the extreme that any such case could justify any conclusion other than that the sentence was manifestly inadequate.

1. HULME J:  In this matter, subject to the following remarks, I agree with the orders proposed by Smart AJ and with his Honour’s reasons.

1. I do not agree with his Honour that the presence of a person or persons on a patio or in the yard of a dwelling house is sufficient to satisfy the requirements of location in paragraph (f) of s105A(1) of the Crimes Act, nor that, at least in the context of the Crimes Act, a dwelling house normally includes the curtilage. Whether the expression “dwelling house” 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:

“(1) In sections 106-115A:

circumstances of aggravation means circumstances involving any one or more of the following:

(a)…

(f)the alleged offender knows that there is a person, or that there are persons, in the place where the offence is alleged to have been committed”.

1. Sections 106 and 107 refer to breaking and entering or being in a place of Divine Worship. Section 108 has been repealed. Section 109 refers to entering a dwelling house or being in a dwelling house and breaking out. Section 110 refers to breaking and entering a dwelling or any building appurtenant thereto. Section 111 refers to entering a dwelling house. Sections 112 and 113 refers to breaking and entering or being in a building of a variety of specified types. Included in those sections are the following words:-

   “Whosoever breaks and enters any dwelling-house, or any building within the curtilage of any dwelling house … shall be liable to imprisonment …”

2. Much of s114 is of a different nature, although sub-section (1)(d) is not.  So far as is relevant, that sub-section provides:-

“(1)Any person who:

(a)is armed with any weapon, or instrument, with intent to commit an indictable offence,

(b)has in his or her possession, without lawful excuse, any implement of housebreaking or safebreaking, or any implement capable of being used to enter or drive or enter and drive a conveyance,

(c)has his or her face blackened or otherwise disguised, or has in his or her possession the means of blacking or otherwise disguising his or her face, with intent to commit an indictable offence,

(d)enters or remains in or upon any part of a building or any land occupied or used in connection therewith with intent to commit an indictable offence in or upon the building,

shall be liable to imprisonment for seven years.”

1. All of these sections except s110 (which in any event provides a penalty of 25 years imprisonment) and s114 include subsections rendering an offender against them liable to a heavier penalty if the offence under them is committed in circumstances of aggravation.  Section 114 makes no reference to circumstances of aggravation and, despite the opening words of s105A, there is no other provision which seems to make s105A relevant to it.  Section 115 sets out other circumstances rendering an offender against Section 114 liable to heavier imprisonment but again makes no reference to circumstances of aggravation.  Section 115A is a procedural section enabling someone charged with an offence in circumstances of aggravation (or special aggravation) to be convicted of the primary offence. 

1. The references in sections 106 to 113 to entering or being in buildings leads me to the conclusion that the words in s105A(1)(f), “in the place where the offence is alleged to have been committed”, should be regarded as meaning “in those buildings” and not extending to merely being “at” the place where the buildings are situate. It must be accepted that the breaking into a building will commence outside the building and thus that that part of many of the offences may fairly be described as ”in” a place outside the building. Even then, I should have thought the more appropriate reference to such a place was “at” it. However the nature of the offences is such that, at most, only a minor component of them is committed outside and it would not be accurate to regard one of the offences as committed there. Nor, given the attention in the sections to buildings, does it seem to me apt to regard the offences as occurring “in” the area or, curtilage or piece of real estate on which the offences occur.

1. That conclusion also seems to me to accord with what I perceive as the problem or circumstance at which paragraph (f) is directed.  The presence of an intruder in a building is liable to be far more frightening to a person inside than to someone outside who, commonly, has ready means of escape from the intruder and access to help.

1. In saying what I have I am not unconscious that s109 refers to entering or being in a dwelling house and breaking out and some of what I have said perhaps may not apply as well in the case of this section.  However, in the overall scheme of the provisions, it does not seem to me that the reference to “breaking out” makes a difference.

1. Even apart from the portions of ss112 and 113 which I have quoted, I would not have regarded, for example s111, as offended against by someone who simply entered the curtilage of a dwelling house with the intention referred to in that section. However s112 and 113 to my mind put the matter beyond doubt. If “dwelling house” included its curtilage, so that breaking or entering the curtilage was to break or, as the case may be, enter the dwelling house, there was no occasion for these sections to have been framed as they are.

1. The reference in s114(1)(d) to “a building or any land occupied or used in connection therewith”, “land” not being mentioned in the earlier sections, argues in the same direction.

1. In reaching the conclusion I have, I have not found it necessary to have regard to the remarks contained in the Second Reading Speech of the Minister when introducing the Bill that led to the introduction of s105A.  They have been quoted by Smart AJ.  The reference therein to “where an offender breaks and enters premises while a person or persons are inside, that offender will automatically be liable to” a higher maximum penalty supports the conclusion at which I have arrived.

1. On the other hand, the presence of a person on a patio – at least of the nature revealed in the evidence here - does satisfy the requirements of s105A(1)(f). The patio was enclosed at its rear and one end by walls of the house and covered by a roof which was supported at the front and possibly other end by pairs of posts which seem to have metal work in-between. It is not clear from photos which were in evidence whether the patio was raise above ground level. Be that as it may, given the extent of enclosure of the patio, I would regard someone on it as “in the place”, i.e. the dwelling house, where the offence the subject of the count 3 was committed.

1. Nevertheless, despite my conclusion that the Appellant was not guilty of the aggravated form of the offence in respect of counts 1 and 2, for the reasons given by Smart AJ the Appellant’s convictions following his plea of guilty to those counts do not constitute a miscarriage of justice.  Nor should those convictions be set aside or he be allowed to change his pleas.   By pleading guilty as the Appellant did, he obtained the benefits of being dealt with by the Drug Court.  Having sought and obtained 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.

1. I turn to the Crown’s appeal against sentence.  I agree with Smart AJ that the Crown does have a right of appeal.  To the reasons given by his Honour for that conclusion, and upon the basis of the principle of expression unius exclusion alterius, might be added s7(5) of the Drug Court Act set out below.

1. As Smart AJ has demonstrated, the determination in the Drug Court of the sentences to be imposed on the Appellant miscarried because of an erroneous approach to the task.  However in my view that determination also miscarried because of manifest inadequacy in the sentence or sentences imposed.  (I make it clear that that observation is not directed to the Drug Court’s decision to suspend the sentences.  The Crown has not challenged that decision and I do not criticise it.)

1. The Appellant had, between 3 and 18 November 2003 deliberately committed offences of breaking entering and stealing in 5 different houses.  At least on 2 occasions when detected he left but, either lacking in remorse, or with any remorse overcome by his need to feed his drug habit, he simply went on to another location to repeat his depredations.  All offences were committed while he was on conditional liberty, on a bond to be of good behaviour – a factor which the courts have made clear is a seriously aggravating circumstance.  

1. Furthermore, the offences were committed against an appalling history of offences of dishonesty which Smart AJ has summarised.  It reveals that the Appellant has been given numerous chances to reform and that significant periods of imprisonment have not operated as a sufficient disincentive against repetition.  In his favour is an apparently offence-free period from March 1997, the conclusion of a 3 months term of imprisonment, to September 2002 when he used an unregistered and uninsured vehicle and drove without a licence.  Having been punished for these offences in September he committed similar offences in November 2002, leading in January 2003 to a 12 months sentence of imprisonment suspended upon him entering into the bond which was current at the time of the break, enter and steal offences.  In August 2003 he entered inclosed lands without lawful excuse.

1. Judge Barnett regarded the utilitarian value of the Appellant’s pleas of guilty as substantial and the pleas as demonstrating remorse - conclusions I am prepared to accept. I also accept, although I do not need to repeat, the findings his Honour made in his consideration of s21A of the Crimes (Sentencing procedure) Act. I agree also with his Honour and with Smart AJ that the offences fell below the middle range of objective seriousness. I acknowledge that that conclusion and Division 1A of Par 4 of the above mentioned Act are to be taken into account in the manner laid down in R v Way [2004] NSWCCA 131.

1. But even after all of the matters favourable to the Appellant are taken into account, the fact remains that he is a recidivist.  He has manifested a continuing attitude of disobedience to the law.  Given this, society is fairly entitled to have greater than usual weight given to retribution, society’s protection from him – not forgetting the limits on this latter element – see Veen v R (1987-1988) 164 CLR 465 at 477 – and to personal deterrence. Those remarks apply when the Appellant’s offences are considered individually. A fortiori they do so when account is taken of the fact that he stood to be sentenced for 5 offences of aggravated breaking and entering and one of breach of a bond. His criminality demanded penalties which in total were appreciably more substantial than the 3 years (minimum) and 2 years (additional) that have previously been imposed. Furthermore, the fact of there being separate dwelling houses and separate victims and that some of the offences were committed on different days to my mind meant that the sentences should have been to some appreciable extent accumulated.

1. Thus it is that on the ground of manifest inadequacy also, the sentencing of the Appellant miscarried.  The appeal by the Crown of course attracts the discretionary considerations which apply to all such appeals, including the discretion not to interfere despite manifest inadequacy or other error in the Court below.  However, given the errors to which reference has been made and the extent of inadequacy, the Crown appeal should be allowed.

1. I would except from the remarks just made, the sentence imposed in respect of the breach of the s12 bond.  The bond was the result of a sentence of 12 months imprisonment imposed on 23 January 2003 and suspended for driving in November 2002 whilst disqualified.  The disqualification had been imposed in September 2002 for driving when the Appellant’s licence had expired.  At the time of sentence on 13 April 2004, the Appellant had been in custody only since 18 November 2003 – something under 5 months - and in the circumstances, Judge Barnett’s decision to determine the non-parole period on 13 April was certainly lenient.  However, given his Honour’s motivation in doing so was to enable the Appellant to participate in the Drug Court program, I am not persuaded this Court should interfere with that sentence.

1. Smart AJ has quoted remarks of the sentencing judge, Judge Barnett, that the Drug Court “only takes into account as a general practice matters relating to objective features” and has pointed out that “this Court has relatively little subjective material relating to the offender”.  His Honour proposes that the re-sentencing of the Appellant be remitted to the Drug Court. 

1. The usual practice when a Crown appeal against sentence is successful is for this Court to proceed to re-sentence, further evidence being presented if the parties so desire.  Clearly it would be appropriate to depart from the usual course if the paucity of subjective material was simply because the Appellant’s lawyers had followed the practice in the Drug Court.  However that is not so in this case. 

1. During the hearing of the appeal in this Court, counsel appearing for the Crown sought to tender further evidence on the topic of sentence.  Counsel for the Appellant objected saying:-

   “DHANJI:  I think on the last occasion I discussed it with the Crown.  I chose that I wouldn’t read the affidavit filed by the Respondent on the Crown appeal and that the Crown wasn’t going to read the adduced evidence on re-sentence.  I can’t go so far as to say that there was any binding.  I would object to the Crown reading material on.  I will certainly accept that if I was to read an affidavit that the Crown had material that counted against it, that the Crown ought to be allowed to do that.”

2. After discussion, the Crown did not press the tender. The Court was not provided with any information as to the contents of the affidavit Mr Dhanji chose not to read but it is clear that the absence of any further evidence as to the Appellant’s subjective factors was the result of a conscious decision on the part of his advisers. In that situation there is much to be said for the view that this Court should proceed to re-sentence in accordance with the usual practice, recognising of course that that sentence will, in accordance with s12 of the Drug Court Act, be only the upper limit for the sentence ultimately to be imposed by that Court on the termination of the Appellant’s program.

1. However the unusual provisions of the Drug Court Act may present some difficulty if this Court proceeds to re-sentence. Section 7 of the Drug Court Act provides, inter alia:-

“(1)This section applies to a person who has been referred to the Drug Court under section 6.

(2)The Drug Court may deal with a person under this section in relation to an offence if, and only if, it is satisfied as to each of the following matters:

(a) …

(c) that facilities to supervise and control the person’s participation in such a program are available, and have been allocated to the person, in accordance with the guidelines prescribed by the regulations,

(d) that the person accepts the conditions imposed by this Act and the conditions that the Drug Court proposes to impose on the person (whether immediately or at some later date) as a consequence of his or her conviction and sentence under this section.

(f) that any person (an “affected person”) with whom it is likely the person would reside during the period of the person’s participation in a program under this Act has consented in writing to the person residing with the affected person during that period.

(2A) The Drug Court deals with a person under this section in relation to an offence by convicting that person and sentencing the person in accordance with the Crimes (Sentencing Procedure) Act 1999”.

(3) On or within 14 days after sentencing the person, the Drug Court:

(a)must make an order imposing on the person the conditions that the person has accepted as referred to in subsection 2(d) (the person’s program), and

(b)must make an order suspending execution of the sentence for the duration of the person’s  program (the person’s suspension order).

(5) Nothing in this Act entitles a person to be convicted and sentenced under this section, and no appeal lies against any decision by the Drug Court not to convict or sentence a person under this section.

1. It is sentences imposed under s7(2A) with which this Court is interfering pursuant to the Crown appeal. As Smart AJ concludes, “sentence” in the relevant section of the Criminal Appeal Act means “any order made by the court of trial on convicting a person of an offence” and s5D of the Court of Criminal Appeal Act provides that “the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper”.

1. Once the conclusion is reached that there is an appeal in respect of orders made under subsection (2A) it seems to me that orders under subsection (3) must also fall within the jurisdiction of the Court of Criminal Appeal.  Notwithstanding the orders referred to in that subsection are mandatory, they are ancillary to the orders (or sentence) envisaged by subsection (2A).  Interference by the Court with any orders made under subsection (2A) is liable to require interference with the orders under subsection (3) and, notwithstanding the reference in sub-section 3 to “the Drug Court”, it seems to me that this Court has the powers referred to in that sub-section.

1. However, some appreciable time has now passed since the original sentence and the Appellant’s entry into the Drug Court program. Any possible complications arising in that time were not the subject of evidence or discussion during the appeal, nor was there any debate upon the question whether any sentence this Court imposed was automatically subject to the conditions previously imposed by the Drug Court. The Court does have power under s12 of the Court of Criminal Appeal Act to remit the matter to the Drug Court and in the circumstances to which I have referred that seems to me a preferable course. It may not be so in the future now the question of whether the Crown has a right of appeal against an initial sentence imposed by the Drug Court has been resolved.

1. There is one further matter to which I should refer. The Crown’s abandonment of its appeal against the sentences imposed in respect of counts 1 and 2 means that the sentences imposed on those counts, notwithstanding they are affected by the errors to which Smart AJ has referred, including the absence of any non-parole and parole periods, must stand even though the absence of the specification of any non-parole period in those sentences makes the accumulation of any other sentence on them impossible. On the other hand, it may well be that the commencement date of those sentences can be varied under s59 of the Crimes (Sentencing Procedure) Act although this was not the subject of debate. But be that as it may, it would seem possible, without injustice, to make the sentences imposed in respect of counts 3 to 5 cumulative, or partially cumulative on one another, and concurrent with those imposed in respect of the offences the subject of counts 1 and 2.

1. SMART AJ:   Colin Ray Rice pleaded guilty to the following charges on indictment in the Drug Court at Parramatta on 8 April 2004:

   Count  1     -             break and enter with intent to steal In circumstances of aggravation

   -3 November 2003 at Beverley Hills   

   Count 2     -              break enter and steal in circumstances of aggravation

   -11 November 2003 at Beverley Hills

   Count 3     -              break enter and steal in circumstances of aggravation

   -11 November 2003 at Hurstville

   Count 4     -              break enter and steal  in circumstances of aggravation 11 November 2003 at Blakehurst

   Count 5     -              break enter and steal in circumstances of aggravation

   -18 November 2003 at Fivedock

2. Count 1 was laid pursuant to s 113(2) of the Crimes Act 1900 and counts 2, 3, 4 and 5 pursuant to s 112(2) of that Act. Each offence under s 112(2) carries a maximum penalty of 20 years imprisonment.

1. In each of counts 1 to 5 a dwelling house was broken and entered and the circumstance of aggravation was knowing that a person was in the place where the offences were committed. The offender admitted a breach of a bond under s 12 of the Crimes (Sentencing Procedure) Act 1999.

1. On 23 January 2003 he had received a sentence of imprisonment for 12 months suspended pursuant to entering a s 12 good behaviour bond for one year commencing that day.

1. Consequent upon the breach of the bond the offender was ordered to serve his twelve months sentence commencing on 18 November 2003, the day on which he was arrested. He remained in custody until the date of sentence (13 April 2004) when he was released into residential detoxification as Phase 1 of his Drug Court Treatment Program. He had thus spent 148 days (5 months 1 week and 1 day) in custody. As to this sentence of 12 months, a non-parole period commencing on 18 November 2003 and ending on 13 April 2004 (the day of sentence) was set pursuant to s 8 of the Drug Court Act 1998.  It was a condition of his parole that he comply with his Drug Court Program.  That involved a residential rehabilitation course.

1. On count 1 the offender was sentenced to imprisonment for 3 years 6 months cumulative on the non-parole period of 148 days expiring on 13 April 2004. On each of counts 2, 3, 4 and 5 the offender was sentenced to imprisonment for 4 years cumulative on the non-parole period expiring on 13 April 2004. The sentences on counts 1 to 5 were described as initial sentences and were imposed under s 7 of the Drug Court Act and then suspended for the duration of the offender's program.  No non-parole period was fixed.  No final sentence has been fixed.

1. The offender has appealed against his conviction on counts 1, 2 and 3.  He has abandoned his appeal against conviction on counts 4 and 5.  He seeks leave to withdraw his pleas of guilty to counts 1, 2 and 3.  The Director of Public Prosecutions appealed against the non-parole period fixed on the charge of driving whilst disqualified and the sentences imposed on counts 1-5. The Director subsequently abandoned his appeal against the sentences imposed on counts 1 and 2.  The offender challenged the right of the Director to appeal against the initial sentences imposed by the Drug Court.

1. The Facts

These may be briefly stated.

Count 1 – On 3 November 2003, Mrs Monaghan, aged 77, walked outside her Beverley Hills home via the back door.  She closed the screen door but did not lock it.  She left the wooden door open.  The rest of her home was closed and locked.  She unlocked and opened the doors to her garage and went to the front of her home where she swept up leaves in her driveway and in the gutter.  About ten minutes later she re-entered her home via the garage and through her back door.  Once inside she locked the screen door.  She saw the offender walk from her bedroom into the hallway.  She asked the offender what he was doing in her home.  The offender said he had seen a person jump over the fence.  Mrs Monaghan told him that he did not and led him to the back door and then to the back fence.  The offender could not get over the back fence and she told him to "get out".  She led him to the side fence and the offender walked out the gate.  No property was taken.

1. 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.

1. Mrs Milton's purse and the contents had been stolen from her handbag which had been in the second bedroom.

1. 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.

1. Count 4

On 11 November 2003 Mrs Roach, aged 68, received a telephone call at her Blakehurst home  She walked out her back door to pass the telephone to her husband who was working at the front of her home.  She re-entered the house via the back door which she closed but did not lock.  She heard the back door click.  She heard the back door click again about 10-20 seconds later.  She saw a leg as it went around the rear of the house. The telephone had not been returned.  She followed the offender out the back door of her home and around the corner and asked what he was doing.  He replied that he was looking for his mate, a plumber.  The offender walked past Mrs Roach back into the backyard and walked towards the rear of the yard, saying, "I think I see him."  She lost sight of the offender.  Her purse (and contents), which had been in the family room had been stolen.

1. Count 5

On 18 November 2003 Mr Dorn, aged 64, was in his Fivedock home  About 11am his wife, aged 63, went to the front yard to do some gardening.  About 11.25am he left his bedroom and went to the family room.  The windows were shut and locked and the rear door was locked.  Mr Dorn heard a click on the lock of the rear door.  He walked to that door.  The back security door was locked and a baseball cap hung on the door handle.  Mr Dorn saw the offender outside the door standing at the bottom of the stairs.  The offender said, "Did you see him?  A man just came into your backyard.  I have followed him."  The offender said that he was walking three doors down and had seen a man enter.  As he spoke he retrieved his cap from the door handle.  The offender invited Mr Dorn to follow him to see where he worked.  He left by the rear gate.  Mrs Dorn's handbag, which had been in the kitchen, had been stolen.

1. Statutory Framework

Section 112 of the Crimes Act relevantly provides:

"(1)Whosoever:

breaks and enters any dwelling house or any building within the curtilage of any dwelling house and occupied therewith but not being part thereof, … and commits any serious indictable offence therein shall be liable for imprisonment for fourteen years.

(2)A person is guilty of an offence under this subsection if  the person commits an offence under subsection (1) in circumstances of aggravation.  A person               convicted of an offence under this subsection is liable to imprisonment for 20 years."

1. 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:

"…

(f)the alleged offender knows that there is a person, or that there are persons in the place where the offence is alleged to be committed"

1. 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)

"Dwelling-house includes: 

(a)any building or other structure intended for occupation as a dwelling and capable of being so occupied.

(b)a boat or vehicle in or on which any person resides, and

(c)any building or other structure within the same curtilage as a dwelling house and occupied therewith or whose use is ancillary to the occupation of the dwelling house."

It is to be noted that the word used is "includes", not "means".

1. 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."

2. In the Shorter Oxford English Dictionary, 3rd Edition, under the entry of dwelling, the following appears "dwelling house, a house occupied as a place of residence".

1. A dwelling house normally includes the "curtilage".  Stroud, supra, gives these meanings of curtilage:

"(1)A garden, yard, field or piece of void ground, lying near and belonging to the messuage

…

(7)       Ground which is used for the comfortable enjoyment of a house or other building may be regarded in law as being within the curtilage of that house or building and thereby as an integral part of the same, although it has not been marked off or enclosed in any way."

1. The Second Reading Speech of the Minister for Police, Hansard, Legislative Assembly, 8 June 1995 when introducing the Criminal Legislation Amendment Bill spoke of the major initiatives in addressing the problem of crime and improving the operation of criminal justice. The Minister continued:

   "The first consists of amendments to section 105A of the Crimes Act 1900 which will result in the insertion of an additional aggravating feature for burglary offences, that is, where an offender breaks and enters premises while a person or persons are inside, that offender will automatically be liable to a maximum penalty of 20 years instead of the 14 years which would otherwise apply."

2. As to count 1 the offender did not contest that he was guilty of break and enter with intent (s 113(1)) nor, as to counts 2 and 3 that he was guilty of break, enter and steal (s 112(1)).  What he contested was that there was any evidence that he committed the offences in circumstances of aggravation.  The offender's point was that at the time he broke and entered there was no-one in the building.  It was not sufficient that a person entered the dwelling house after he had broken and entered, but before he had left the house.  Nor was it sufficient that the resident was outside his or her home working in the garden.  The offender contended that the resident could not be said to be in the building if that resident was on the front or the rear patio.

1. The photographs in evidence reveal that each of the premises the subject of counts 1, 2 and 3 consisted of a well maintained and typical suburban cottage (or dwelling house) with a garage or carport and with relatively small but adequate front and back gardens, patios or porches and concreted areas. There were pathways and driveways.

1. Section 105A(1)(f) speaks of the alleged offender knowing that there are persons in the place where the offence is alleged to have been committed. The word used is "place", not building. The offences may occur not only where a person breaks and enters a dwelling house but also a schoolhouse, shop, warehouse or counting house, office, store, garage, pavilion, factory or workshop or Government, Local Government or Police Authority building. (s 112(1) & (2), s 113(1) & (2). There is a companion offence in s 112(1) and (2), where a person, being in any of the buildings mentioned commits a serious indictable offence therein and breaks out of the same.

1. When a person breaks and enters a building he does so from the outside of it and when a person breaks out the offence is completed when he is outside the building. The word "place" is a word of wide import. While there has to be a breaking and entering or a breaking out of a building of the kind nominated in the sections, it suffices if there is a person or persons in the place where the offence is alleged to have been committed. "Place" includes the areas close by the building where the offence is committed. Section 112(2) and s 113(2) with a 105A(1)(f) are seeking to deal with situations where the burglar comes into close contact with a person or persons in the course of the commission of crime and causes apprehension in such person or persons. To some extent this is a matter of degree.

1. Turning to the facts of count 3, I am of the opinion that the front patio on which Mrs Waddington was talking to her friend, with the front door open, was part of the dwelling house and that Mrs Waddington was in the dwelling house when the offender broke and entered.  Even if that view be incorrect she was in the place where the offence is alleged to have been committed.  There is nothing to rebut the presumption in s 105A(2A)

1. As to counts 1 and 2, in both instances there were persons in the confined grounds of the dwelling houses.  In my view it could fairly be said as to count 1 that Mrs Monaghan was in the place where the offence is alleged to have been committed at the time it was committed.  The photographs of her home make plain that the front garden and driveway in which she was working are small in area and very close to the house.  Similarly with count 2,  Mr Milton was working in the small front garden and Mrs Milton was working in the backyard.  While larger than the front garden the backyard was not a large one.  Both Mr and Mrs Milton were at the time of the alleged offence in the place in relation to which the offence is alleged to have been committed.

1. In my opinion there was sufficient in the prosecution materials to justify the judge accepting the pleas of guilty.  The pleas of guilty in themselves admitted every element of the offence.

1. On the evidence before this Court it could not and would not direct an acquittal of the offender on counts 1, 2 and 3.  Even if it gave leave to the offender to withdraw his pleas of guilty to counts 1, 2 and 3 it would remit the matter to the District Court for trial on these counts.  The Crown may wish to lead additional evidence if there were to be no plea of guilty. With the pleas of guilty there would have been no need for the Crown to consider whether it wished to lead further evidence.  On the existing evidence the Crown has a substantial case.

1. The offender wished to be dealt with by the Drug Court because of its more beneficial regime. That gave him the opportunity of undergoing drug rehabilitation rather than going straight to gaol.  There was also the possibility of a lesser sentence if he complied with his Drug Court Program and of a shorter non-parole period.  If the offender had pleaded not guilty to counts 1, 2 and 3 these counts could not have been dealt with by the Drug Court.  That Court may not have thought it correct to deal with counts 4 and 5 when counts 1, 2 and 3 had to go to trial and it could not deal with them.  A plea of guilty is a pre-requisite to the Drug Court exercising  jurisdiction.  There would be little point in a Drug Court Program if, as seems probable, the offender was going to gaol on any of counts 1 2 and 3.  The sentence would not have been a short one; the offender did not have a good record.

1. It is true that the maximum penalties on counts under s 112(1) and s 113(1) are, as mentioned earlier, less than those on counts under s 112(2) and s 113(2). The sentences imposed on the offender of 3½ years and 4 years were well below the maximum penalties under s 112(1) and s 113(1). It should not be assumed that if the District Court had imposed sentences under s 112(1) and s 113(1) they would have been less than the concurrent sentences in fact imposed under s 112(2) and s 113(2) by the Drug Court. Nor should it be assumed that the Crown would have been prepared to accept pleas to lesser counts under s 112(1) and s 113(1).

1. As a result of the pleas the offender obtained the benefits he sought and avoided being sent to gaol immediately.  The early pleas of guilty also resulted in the offender receiving a lesser sentence.

1. The offender was legally represented.  There is no evidence what legal advice was given and no evidence from the legal advisers.

1. In Meissner v The Queen (1994-5) 184 CLR 132 at 141 Brennan, Toohey and McHugh JJ said:

   "A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty. … A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea.  There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not guilty of the offence."

2. The Justices referred with approval to this observation of Lawton LJ in R v Inns (1974) 60 Cr App R 231 at 233:

   "… the law attaches so much importance to a plea of guilty in open court that no further proof is required of the accused's guilt."

3. There has been no miscarriage of justice in the circumstances of the present case and the offender should not be given leave to withdraw his pleas of guilty.

1. The appeal against conviction should be dismissed.

1. The Crown Appeal against Sentence

This relates to the sentences imposed on counts 3, 4 and 5 as the Crown has abandoned its appeal as to the sentences imposed on counts 1 and 2.  The original notice of appeal included "Breach of Section 12 bond."  This last mentioned matter was barely touched upon in submissions.

1. The offender contended that no appeal by the Crown lies from an initial sentence imposed in the Drug Court to the Court of Criminal Appeal. Section 5D(1) of the Criminal Appeal Act 1912 provides:

"(1)The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence pronounced by the court of trial in any proceedings to which the Crown is a party and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper."

1. Section 2 provides:

   " 'Court of trial' means any court from whose finding, sentence order or other determination, a person is by this Act entitled to appeal or to apply for leave to appeal."

2. The Drug Court is a court of trial.  Section 5AF confers a right of appeal on a convicted offender in relation only to a final sentence determined by the Drug Court under s 12 of the Drug Court Act 1998.  In the Criminal Appeal Act 1912 courts of trial are defined or described by reference to the offender's rights of appeal.

1. Section 2 also provides:

   "Sentence means:

   (a)any order made by the court of trial on convicting a person of an offence, including:

   (i)any sentence of imprisonment (including any sentence of imprisonment the subject of a periodic detention order or home detention order and any sentence of imprisonment whose execution is suspended), and

   (ii)any community service order, and

   (iii)any good behaviour bond, and  

   (iv)any fine

   imposed under Part 2 of the Crimes (Sentencing Procedure) Act 1999, or

   (b)any order made by the court of trial in respect of a person under section 10 or 11 of the Crimes (Sentencing Procedure) Act 1999 on finding the person guilty of an offence, or

   (c)any order made by the court of trial in respect of a person under section 12 or 17A of the Crimes (Sentencing Procedure) Act 1999 on convicting the person of an offence, or

   (d)any order made by the court of trial imposing a limiting term of imprisonment on a person under section 23 (1) of the Mental Health (Criminal Procedure) Act 1990, and any other order or penalty made or imposed by the court of trial in respect of the person under section 23 (2) of that Act, or

   (e)any order made by the court of trial in respect of a person under section 39 of the Mental Health (Criminal Procedure) Act 1990, or

   (f)any direction for compensation made by the court of trial in respect of a person under section 71 or 77B of the Victims Compensation Act 1996, or

   (g)any order for restitution made by the court of trial in respect of a person under section 126 of the Criminal Procedure Act 1986, or

   (h)any order for the payment of costs made by the court of trial in respect of a person under Part 6 of Chapter 4 of the Criminal Procedure Act 1986,

   and the power of the Court of Criminal Appeal to pass any such sentence includes power to make any such order or direction."

2. Paragraph (a) of the definition of Sentence poses a difficult question of construction. Do the words "imposed under Part 2 of the Crimes (Sentencing Procedure) Act 1999 "qualify the words "any order made by the court of trial on convicting a person of an offence" or do they qualify only sub-pars (i)-(iv) of par (a).  The format of par (a) is consistent with both views.

1. The offender submitted that the former construction was correct.  If this were so as the sentences were imposed under the Drug Court Act and not under Part 2 of the Crimes (Sentencing Procedure) Act  the Crown would have no right of appeal.  On the other hand, if the words quoted qualify only sub-pars (i) to (iv) of par (a), then the Crown could rely on the general introductory words of par (a), when read with s 5D as conferring a general right of appeal on the Crown against any order made by the court of trial.

1. If the words "imposed under Part 2 of the Crimes (Sentencing Procedure) Act " apply to the introductory words of par (a) rather than just to sub-pars (i) to (iv) there would be little point in having pars (b) and (c) as sections 10, 11, 12 and 17A fall within Part 2 of that Act.

1. Pars (d) and (e) deal with special situations, namely, under the Mental Health (Criminal Procedure) Act and par (f) deals with directions for compensation under sections 71 or 77B of the Victims Compensation Act 1996.  Par (g) refers to any order for restitution made by the court of trial in respect of a person under s 126 of the Criminal Procedure Act 1986. That section was renumbered and it is now s 43 of the current Act. It enables the Court in any criminal proceedings in which it is alleged that the accused has unlawfully acquired or disposed of property to order that the property be restored to such person as appears to the Court to be lawfully entitled to its possession. Such an order may be made whether or not the Court finds the person guilty of any offence with respect to the acquisition or disposal of the property.

1. Par (h) refers to an order for the payment of costs made by the court of trial in respect of a person under Part 6 of Chapter 4 of the Criminal Procedure Act 1986. Matters of costs are dealt with in Division 7 of Part 2 of Chapter 3 and Division 4 of Part 1 of Chapter 4 of the Act. Consequential amendments have not been made to the Criminal Appeal Act and the Divisions to which reference has been made may not be the intended successors.

1. Each of the pars (d), (e), (f), (g) and (h) deal with particular situations which do not readily fit the conventional concept of a sentence or an order naturally following on or flowing from a conviction. For example, under s 43 of the Criminal Procedure Act restitution may be ordered even where there is no conviction.  It can readily be understood why particular provision was made as to pars (d)-(h).

1. These paragraphs when taken with the other paragraphs, indicate that the word "sentence" was to have a wide reach and there were to be extensive rights of appeal.

1. Because of the statutory indications that the word "sentence" was to have a wide reach and that pars (b) and (c) would be largely, if not entirely, superfluous if the words "imposed under Part 2 of the Crimes (Sentencing Procedure) Act 1999" were held to apply to the opening clause of par (a) I have reached the conclusion that the words quoted apply to sub pars (i)-(iv) and not to the opening clause of par (a).  Thus those words, namely, "any order made by the court of trial on convicting a person of an offence:" are words of wide general application and would cover the initial sentence passed by the Drug Court.

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 convicting a person of an offence.  This is a difficult question but I am inclined to the view that they do."

2. I remain of the view that it is a difficult question. What I wrote was obiter. On re-consideration and further analysis of the section I regard my tentative view as wrong. I am now of the opinion that the words "imposed under Part 2 of the Crimes (Sentencing Procedure) Act " at the end of par (a) qualify sub-pars (i) to (iv) but not the opening clause of par (a).  Those opening words have a wide import.  I am of the opinion that the Crown does have a right of appeal against an initial sentence imposed by the Drug Court.  This is an order made by the court of trial on convicting a person of an offence.  That suffices.

1. I have preferred to deal with the matter as one of construction.  However, I should briefly note a number of authorities to which the Court was referred.  None is directly in point.

1. In R v Toman [2004] NSWCCA 31 this Court (Grove J, with whom Sully and Bell JJ agreed) held that it, equally with a judge at first instance was bound by the restriction in s 12 of the Drug Court Act which provides:

   "The final sentence determined for a drug offender in relation to an offence is not to be greater than the initial sentence imposed on the drug offender in relation to that offence."

2. The Court in Toman noted that the offender had no right to appeal against an initial sentence and that his right of appeal was limited to an appeal against a final sentence (s 5AF(1) of the Criminal Appeal Act, 1912).  The Court also noted the absence of any limitation in the Criminal Appeal Act of any restriction of the Crown's right of appeal against any sentence.  Section 5D entitles the Attorney General or Director of Public Prosecutions to appeal to the Court of Criminal Appeal against any sentence pronounced by the court of trial in any proceedings to which the Crown was a party.  The width of that right of appeal meant that the parties in the present case focussed upon the meaning of the words "any sentence."

1. It was held that the prohibition in s 12(4) of the Drug Court Act could not be avoided by this Court in making final sentences cumulative in whole or in part rather than concurrent.

1. It is appreciated that even if this Court increases the initial sentence the effect of its order may be abrogated by the final sentence imposed in the Drug Court. However, there are two answers to that. First, it should be assumed that the Drug Court will accept this Court's determination of the initial sentence and the views it has expressed. Secondly, if the Crown does appeal against the final sentence there will be a higher ceiling before s 12(4) operates. That is an important factor.

1. Toman was followed in R v Uyrun [2004] NSWCCA 103.

1. The offender relied upon the following passage from the judgment of Hodgson JA in R v Tolley [2004] NSWCCA 165 at [2]:

   "…the consequences of giving effect to a literal interpretation of s 47 of the Crimes (Sentencing Procedure)Act in the case of revocation of a s 12 bond are so anomalous that the following approach is preferable. Upon revocation of a s 12 bond, s 99 requires the Court to apply s 47,and subject to s 47 and any other relevant part of Pt. IV being complied with the sentence 'takes effect'. That means that, for the first time, there is an effectual imposition of a sentence; and accordingly, in that case, 'the day on which the sentence is imposed' in s 47 should be taken as the day on which the sentence takes effect pursuant to s 99(1)(c)(iii)."

2. The offender placed reliance upon that passage for the following submission:

   "The sentence is only imposed when the final sentence takes place.  It is at that time the sentence actually commences …"

3. What Hodgson JA said in Tolley was directed solely to the interpretation of "imposed" in s 47 of the Crimes (Sentencing Procedure) Act in circumstances where a sentence "takes effect" pursuant to s 99(1)(c)(iii) of that Act upon revocation of a bond: in that particular case only, because of the gross anomalies produced by any other view, it was considered that s 99(1)(c)(iii) manifested a clear intention that the date when the sentence takes effect under that provision should be treated as the day when it is imposed for the purposes of s 47.

1. After taking the pleas of guilty to each of counts 1 to 5 the judge heard submissions on sentence. It seems that a major portion of the argument centred on whether the offences fell within or below the middle range of objective seriousness for offences pursuant to s 112(2).

1. In his remarks the judge reminded himself that s 54A of the Crimes (Sentencing Procedure) Act 1999 applied, that the standard non-parole period for an offence pursuant to s 112(2) was five years and that the standard non-parole period applied to an offence in the middle of the range of objective seriousness for such an offence.

1. In his remarks the judge said:

   "The approach adopted by this Court on Initial Sentence is that the Court only takes into account as a general practice matters relating to objective features of the matter.  Subjective matters are considered at the time of Final Sentence when more is known about the offender's participation on his Drug Court Program."

2. I appreciate the practical considerations underlying such an approach and that it probably facilitates dealing with an offender more expeditiously initially.  However, this approach is not permitted under the Drug Court Act 1998. Section 7(2A) provides:

   "The Drug Court deals with a person under this section in relation to an offence by convicting the person and sentencing the person in accordance with the Crimes (Sentencing Procedure) Act 1999."

3. Section 44 of the Crimes (Sentencing Procedure) Act 1999 provides:

"(1)When sentencing an offender to imprisonment for an offence the court is first required to set a non-parole period for the sentence (that is the minimum period for which an offender must be kept in detention in relation to the offence).

(2)The balance of the term of the sentence must not exceed one third of the non-parole period for the sentence unless the court decides that there are special circumstances for being more …"

1. The terms of s 7(2A) of the Drug Court Act and s 44 of the Crimes (Sentencing Procedure) Act 1999 do not permit the Drug Court to pursue its stated approach.  In determining both the non-parole period and the balance of the term it is not possible to leave out of account the subjective features of an offender.  Matters such as his criminal record, prior good character, first time in custody and health (and this is not an exhaustive list) arise at both stages.  The prospects of rehabilitation also arise.  It is appreciated that prospects of rehabilitation may differ if the offender successfully completes his Drug Court Program.

1. In the future, and unless the legislation is changed, the Drug Court must change its approach to accord with the terms of the Statutes.

1. The offender was born on 31 March 1967.  He has a lengthy record which starts in July 1980 when he was 13 years old and was dealt with in the Children's Court for stealing.  Between July 1980 and January 1985 he was dealt with by the Children's Court on eleven occasions including for offences of dishonesty, driving offences, absconding and relatively minor drug offences.  After numerous releases on probation to be of good behaviour he was in January 1983 committed to an institution for nine months.  Between 1986 and 27 August 2003 he was before either the Local Court or the District Court on some thirteen occasions for a variety of offences, for some of which he received substantial sentences. In February 1986 he was sentenced to imprisonment for 1 year for larceny of a motor vehicle and 3 years imprisonment (cumulative) for assault and robbery.  He was also sentenced for two stealing charges and two further charges of larceny of a motor vehicle.  His non-parole period expired on 1 June 1989.  In 1991 he uttered forged Commonwealth documents and used a false instrument.  He was sentenced to 18 months periodic  detention in 1991.  That was cancelled and he was imprisoned  until 27 December 1992.  In October 1992 on each of two counts of break and enter with intent, and one count of threaten to use offensive weapon to resist arrest he was sentenced to a minimum term of imprisonment for 3 years with an additional term of 2 years. In 1996 he was sentenced to 3 months imprisonment for larceny.  There was then a gap until September 2002, when he was dealt with for driving offences.  There were further driving offences in early 2003 for one of which (driving whilst disqualified) he received the 12 months suspended sentence.

1. The Crown submitted that the judge's sentencing discretion miscarried by reason of error of law in determining that the offences the subject of counts 3, 4 and 5 on the indictment were "below the middle range of objective seriousness for offences pursuant to s 112(2) of the Crimes Act.

1. The Crown contended that the judge made a material error of law when, in considering whether counts 3, 4 and 5 fell below the middle range of objective seriousness he had "regard particularly to the early pleas" and that R v Way [2004] NSWCCA 131 established that considerations which do not have a nexus with the commission of the offence are to be placed to one side in determining the objective seriousness of the offence.

1. In Way, which had not been delivered when the judge gave his decision, this Court distinguished between circumstances which go to the seriousness of the offence considered in a general way and matters more appropriately directed to the objectives of punishment. The Court continued at [91]:

   "If that distinction is respected then the spectrum of offences and the identification of those which fall in the mid range of seriousness can be confined to matters which are directly or causally related to its commission."

2. The Court pointed out at [99] that as to sentencing for offences for which standard non-parole periods have been set, in so far as there needs to be an examination of the level of objective seriousness involved in the offence, considerations which do not have a nexus with its commission are to be placed to one side.

1. The Court noted that the s 21A factors are not confined to those that are specifically identified in subs (2) (aggravating factors) and (3) (mitigating factors) and that s 54B(3) is not to be read down as restricting consideration to those factors.

1. Notwithstanding that the judge incorrectly took into account the early pleas of guilty in deciding whether the offences the subject of counts 3, 4 and 5 fell in the middle range of objective seriousness he reached the right conclusion.

1. The offender occasioned no physical harm to the victims and made no threats.  Although shocked, the offender's modus operandi did not deter the victims from confronting the offender.  He did little or no damage to their premises.  Small amounts were taken.  The period he spent in each of the premises was brief.  He endeavoured to slip in and out of the premises quickly and unobtrusively and avoid causing alarm.  The materials did not suggest that the victims of the offences the subject of counts 3, 4 and 5, suffered any serious emotional or psychological harm.  The offender did not become aggressive and tried to explain his presence away.

1. The offences the subject of counts 3, 4 and 5, although serious, fell below the middle range of objective seriousness for offences of that kind.

1. In Way at [68] the Court held that the standard non-parole period in the Table must also have been intended for a middle range case where the offender was convicted after trial.

1. The Crown contended that the judge had failed to give adequate weight to the seriously aggravating feature that the offender was on a bond at the time of the commission of the offences the subject of counts 3, 4 and 5. This was said to be evident from the sentences imposed.  This contention was not developed separately but as part of the Crown's case that the sentences were manifestly inadequate.

1. The Crown contended that the judge had failed to adhere to the terms of the Drug Court Act and the Crimes (Sentencing Procedure) Act 1999.  That contention must be upheld.  I have earlier dealt with the departures from the Statutes.

1. The Crown acknowledged that there are some circumstances in which a Court may decline to set a non-parole period.  Section 45(1) provides:

"45 (1)When sentencing an offender to imprisonment for an offence (other than an offence set out in the Table to Division 1A of this Part), a court may decline to set a non-parole period for the offence if it appears to the court that it is appropriate to do so:

(a)because of the nature of the offence to which the sentence relates or the               antecedent character of the offender, or

(b)because of any other penalty previously imposed on the offender, or

(c)for any other reason that the court considers sufficient."

1. As the Crown pointed out the offences set out in the Table to Division 1A of Part 4 are specifically excluded from the exemption in s 45(1). It was an error of law not to specify a non-parole period in relation to each of the s 112(2) offences when imposing the initial sentences.

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 then consider questions of cumulation or concurrence, as well, of course, as questions of totality."

2. The judge appears to have given no consideration to questions of cumulation, concurrence and totality.  The judge made all sentences on counts 1 to 5 concurrent as between themselves and cumulative on the non-parole period he fixed in respect of the sentence of 12 months which , because of the breach of the bond, ceased to be suspended.

1. Each of the offences the subject of counts 1 to 5 involved separate victims, separate premises and a separate occasion.  The offences the subject of counts 2, 3 and 4 took place on the morning of 11 November 2003 and could be regarded as one episode of criminality designed to obtain money to feed a drug habit.  The offence the subject of count 1 occurred six days earlier and that the subject of count 5, seven days later.

1. As the Director has abandoned his appeal as to counts 1 and 2, no comment is made as to these.  The judge has made significant errors and has not sentenced in accordance with the statutory regime which binds him.  The non-parole period must be fixed first.  This Court has relatively little subjective material relating to the offender.  The practice of the Drug Court adopted in this case has been pursued by judges of the Drug Court for some years and is widely known.  Evidence as to an offender's subjective features is usually led on the hearing which precedes final sentence and not on that which precedes the initial sentence.  The effect of these reasons is to require a major change in the practice of the Drug Court.

1. If the offender and his legal representatives had been aware that the Drug Court's practice had to change, it may have been desired to lead evidence as to the offender's subjective features.  The offender must now be given the opportunity to adduce evidence and to obtain the decision of the judge I the light of these reasons.

1. For the assistance of the judge I would intimate that, as at present advised, and on the present evidence, it is hard to see any justification for making the sentences on counts 1 to 5 wholly concurrent.  That would not appear adequately to reflect the total criminality involved in these five offences.  The judge may think that it was correct to make the sentences on counts 3, 4 and 5 partially cumulative 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.

1. I propose the following orders:

1.Note that Colin Ray Rice has abandoned his appeal against conviction on counts 4 and 5.

2.Note that the Director of Public Prosecutions has abandoned his appeal against sentence on counts 1 and 2.

3.Dismiss the appeal of Colin Ray Rice against his conviction on counts 1, 2 and 3.

4.Dismiss the appeal of the Director against the sentence of 12 months imprisonment in respect of the breach of the bond to be of good behaviour during his suspended sentence, such sentence commencing on 18 November 2003` and having a non-parole period ending on 13 April 2004.

5.Allow the appeal of the Director against the initial sentences of 4 years imprisonment commencing on 13 April 2004 on each of counts 3, 4 and 5 and quash such sentences.

6.Remit to the Drug Court the sentencing of Colin Ray Rice on counts 3, 4 and 5 in accordance  with law and conformably with these reasons.

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LAST UPDATED:     17/11/2004