R v Venn

[2013] SASCFC 131

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v VENN

[2013] SASCFC 131

Reasons for Rulings of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Peek)

2 December 2013

CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA - GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA - PARTICULAR CASES

These are applications for permission to appeal against conviction and sentence.  The defendant pleaded guilty to the offences of aggravated serious criminal trespass in a place of residence and theft.  By reason of these offences, the defendant breached a suspended sentence bond imposed for an earlier offence of theft.  The Judge revoked the suspended sentence of two months and sentenced the defendant to a term of imprisonment of three years in respect of the offence of aggravated serious criminal trespass and to a term of imprisonment of eight months in respect of the offence of theft, with a non-parole period of three years.

The matter of aggravation for the offence of aggravated serious criminal trespass in a place of residence was the presence of the occupier who was aged over 60 years at the residence at the time of the offence.  During sentencing submissions, defence counsel submitted that the defendant had seen a motor vehicle drive away from the property and when he broke into the residence he believed that no one was at home.

Counsel for the defendant deposed in an affidavit filed in support of the defendant’s application that the conviction of the offence of aggravated serious criminal trespass in a place of residence be set aside that he did not notice that the aggravating features alleged went to the age of the victim, that he did not advise the defendant as to the aggravating features and that, had he done so, he ought to have advised the defendant to plead not guilty as charged but guilty to serious criminal trespass.  Counsel for the Director of Public Prosecutions did not oppose the appeal against conviction on the count of aggravated serious criminal trespass in a place of residence being allowed.

Held (allowing the appeal) per Gray J (at [15]) (Kourakis CJ and Peek J agreeing):

(1)     Appeal against conviction on the charge of aggravated serious criminal trespass in a place of residence allowed.

(2)     Defendant granted leave to withdraw his plea of guilty to the charge of aggravated serious criminal trespass in a place of residence.

(3)     Sentence imposed on the charge of aggravated serious criminal trespass in a place of residence set aside.

(4)     The charge of aggravated serious criminal trespass in a place of residence remitted to the District Court for rehearing.

(5)     Sentence imposed for the offence of theft set aside.

(6)     Sentencing of the defendant in respect of the offence of theft remitted to the District Court to be dealt with by the Judge presiding over the rehearing of the charge of aggravated serious criminal trespass in a place of residence.

(7)     Order revoking the suspended sentence bond entered into on 28 March 2012 set aside.

(8)     Consideration of the Director’s application that the suspended sentence bond be revoked remitted to the District Court to be dealt with by the Judge presiding over the rehearing of the charge of aggravated serious criminal trespass in a place of residence.

(9)     Defendant remanded in custody pending the resolution of the above matters having regard to his acceptance of each of the elements of the offence of serious criminal trespass in a place of residence, to his conviction of the offence of theft and to his acknowledgement of the breach of his suspended sentence bond.

R v VENN
[2013] SASCFC 131

Court of Criminal Appeal:       Kourakis CJ, Gray and Peek JJ

1. KOURAKIS CJ.    I agree with the reasons of Gray J for the orders made by the Court on 18 November 2013.

   GRAY J.

2. These are applications for permission to appeal against conviction and sentence.  On 18 November 2013, the Court allowed the appeals.  I now publish my reasons for joining in those orders.

3. On 6 October 2012, the defendant and appellant, Geoffrey James Venn unlawfully entered a private residence.  At the time, the occupier, a woman aged in her sixties, was gardening in the front yard.  The defendant removed a fly screen from a rear bathroom window and then entered the property through that window.  Once inside, the defendant searched for valuables in a bedroom and stole a handbag from a chair near the door of that room.  The handbag contained a number of items including $250.00 cash, a mobile phone and other personal effects.  The defendant then unlocked, opened and left the premises from the rear door.  An off-duty police officer observed the defendant entering the backyard of the premises.  The defendant was later apprehended.  The handbag was found in the defendant’s premises and the mobile phone in his possession. 

4. On 18 February 2013, the defendant pleaded guilty to the offences of aggravated serious criminal trespass in a place of residence and theft.  Sentencing submissions proceeded on 3 June 2013. 

5. On 17 June 2013, the defendant was sentenced in the District Court to a term of imprisonment of three years in respect of the offence of aggravated serious criminal trespass.  In arriving at that sentence, the Judge made a reduction of one year and six months on account of his plea of guilty.  He was sentenced to a term of imprisonment of eight months in respect of the offence of theft.  In arriving at that sentence, the Judge made a reduction of four months on account of the plea of guilty.  The Judge determined that these two sentences should be served cumulatively.  He declined to exercise his discretion to suspend either sentence.  The defendant, by reason of the above offences, breached a suspended sentence bond imposed for an earlier offence of theft.  The Judge revoked the suspended sentence of two months.  The Judge fixed a non-parole period of three years. 

6. The Information charging the offence of aggravated serious criminal trespass in a place of residence particularised the matter of aggravation as follows, “It is further alleged that Geoffrey James Venn committed the offence knowing that [the occupier] was at the time of the offence over the age of 60 years.”

7. During sentencing submissions, defence counsel submitted that the defendant had seen a motor vehicle drive away from the property and when he broke into the residence he believed that no one was at home.  The defendant was, it was said, unaware of the presence of the occupier in the front yard.  There was no challenge to these assertions by the prosecution. 

8. When sentencing, the Judge observed:

   Your counsel stresses that you did not think anyone was at home on the day of the offending because you had seen a car drive away before you broke into that residence. As I have said, it turns out that the victim was outside tending to some gardening. You tell me, through your counsel, that at that time you were (mistakenly) relieved to think that no-one was at home.

   You did not intend to frighten the victim who was over 60 years of age.

9. In an affidavit filed in support of the defendant’s application that the conviction of the offence of aggravated serious criminal trespass in a place of residence be set aside, his counsel deposed as follows:

   I act in this matter for [the defendant].  I was counsel with conduct of the plea on behalf of [the defendant] on 17^th June 2013.

   At that time I proceeded on the assumption that [the defendant] had pleaded to aggravated serious criminal trespass on the basis of recklessness to the presence of the victim to the offence.  This ought to have been but was not checked.  My notes of submissions made were that his entry was opportunistic following his seeing a vehicle leave, the appellant being unaware of the victims [sic] presence in the front yard at the time of entry.  It follows he could not have known of the age of the victim.

   I did not notice that the aggravating features alleged went to the age of the victim.  I did not advise [the defendant] as to the aggravating features.  Had I done so I ought to have advised [the defendant] to plead not guilty as charged but guilty to serious criminal trespass. 

   In the circumstances [the defendant’s] plea was entered due to my error alone.

10. The defendant’s account, as recorded in the transcript and in the Judge’s sentencing remarks, was that he had no awareness of the occupier of the premises being present at the time.  If his account is accepted, it follows that the defendant could not have had knowledge of her age.  It appears that defence counsel failed to take adequate instructions on the question of aggravation.  The Director of Public Prosecutions did not challenge the affidavit evidence. 

11. It is apparent that not only did the defendant’s counsel fail to address the question of aggravation, but that counsel for the prosecution did not appreciate the significance of the factual account being advanced on behalf of the defendant.  In the circumstance where neither counsel drew attention to these matters, it appears that the Judge proceeded being unaware of the difficulty that had arisen. 

12. Counsel for the Director advised this Court that there was no opposition to the appeal against conviction on the count of aggravated serious criminal trespass in a place of residence being allowed.  In particular, it was accepted that the defendant advanced an account during sentencing submissions that was inconsistent with his plea to this count.  In the circumstances, I consider it appropriate to allow the appeal, set aside the conviction and remit the matter to the District Court for a retrial.  Leave should be granted to the defendant to withdraw his plea to this count.  It follows that the sentence imposed in respect of the offence of aggravated serious criminal trespass in a place of residence should be set aside. 

13. The defendant has acknowledged each of the ingredients of the offence of serious criminal trespass in a place of residence and the only matter remaining in issue is the defendant’s knowledge of the alleged matter of aggravation.  It is to be further noted that there has been no consideration of the merits of the defendant’s appeal against sentence.

14. Although the sentencing Judge imposed a separate sentence in respect of the offence of theft, as this formed part of the one course of conduct, it is appropriate that this sentence be set aside and the matter remitted to the District Court for the defendant to be resentenced once the offence of aggravated serious criminal trespass in a place of residence has been resolved.  Similarly, at that time, the Court can determine the appropriate course to be taken in regard to the defendant’s breach of his suspended sentence bond. 

    Conclusion

15. In the above circumstances, the Court, on 18 November 2013, ordered:

    1.That the appeal against conviction on the charge of aggravated serious criminal trespass in a place of residence is allowed.

    2.That the defendant is granted leave to withdraw his plea of guilty to the charge of aggravated serious criminal trespass in a place of residence.

    3.That the sentence imposed on the charge of aggravated serious criminal trespass in a place of residence is set aside.

    4.That the charge of aggravated serious criminal trespass in a place of residence is remitted to the District Court for rehearing.

    5.That the sentence imposed for the offence of theft is set aside.

    6.That the sentencing of the defendant in respect of the offence of theft is remitted to the District Court to be dealt with by the Judge presiding over the rehearing of the charge of aggravated serious criminal trespass in a place of residence.

    7.That the order revoking the suspended sentence bond entered into on 28 March 2012 is set aside.

    8.That consideration of the Director’s application that the suspended sentence bond be revoked is remitted to the District Court to be dealt with by the Judge presiding over the rehearing of the charge of aggravated serious criminal trespass in a place of residence.

    9.That the defendant be remanded in custody pending the resolution of the above matters having regard to his acceptance of each of the elements of the offence of serious criminal trespass in a place of residence, to his conviction of the offence of theft and to his acknowledgement of the breach of his suspended sentence bond.

16. PEEK J.    I agree with the reasons of Gray J for the orders made by the Court on 18 November 2013.