R v Delk [1999] NSWCCA 134

Reported Decision : 46 NSWLR 340 106 A Crim R 240

New South Wales Court of Criminal Appeal CITATION : R v Delk [1999] NSWCCA 134 FILE NUMBER(S) : CCA 60707/98 HEARING DATE(S) : 21 May 1999 JUDGMENT DATE : 21 May 1999

PARTIES : Frederick Alvin Delk (Appellant) Regina (Respondent) JUDGMENT OF : Dunford J at 28; Greg James J at 31; Smart AJ at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0454 LOWER COURT JUDICIAL OFFICER : Kinchington DCJ

COUNSEL : GP Craddock (Appellant) CK Maxwell QC (Respondent/Crown) SOLICITORS : TA Murphy (Appellant) CK Smith (Respondent/Crown) CATCHWORDS : CRIMINAL LAW - steal from the person - not actual person - presence sufficient. ACTS CITED : Crimes Act 1900, ss 94 & 95 Regina v Stewart and Ors [1929] SASR 500 CASES CITED: Smith v Desmond [1965] AC 960 The Queen v Foster (1995) 78 ACR 517 DECISION : Appeal dismissed, conviction confirmed.

IN THE COURT OF CRIMINAL APPEAL

60707/98

DUNFORD J GREG JAMES J SMART AJ 21 MAY 1999 R v Frederick Alvin DELK JUDGMENT 1 SMART AJ: Frederick Alvin Delk appeals against his conviction of a charge, tried by a judge alone, that he, Delk, on 20 February 1998, did steal certain property, to wit, one platinum and diamond wristwatch, one platinum and diamond brooch, and one platinum, diamond and sapphire bracelet, the property of John T. Hinkley Pty Limited, from the person of Geoffrey Kenneth Goldthorp, in circumstances of aggravation, namely, immediately after the stealing, maliciously, did inflict actual bodily harm on Geoffrey Kenneth Goldthorp. 2 On 19th February 1998 the appellant visited the company's shop at 172 Castlereagh Street, Sydney, and spent about 30 minutes there looking at pieces of jewellery. The company sold expensive jewellery. The door to the shop is kept locked and potential customers are admitted only after a member of the staff causes the door to open. On 19 February 1998 the appellant and a saleswoman negotiated a sale price of $183,000 for the three pieces of jewellery. 3 About 11.15 am on 20 February 1998 the appellant entered the shop and asked Mr Goldthorp, a salesman, if he could look at the pieces of jewellery again. The appellant was seated on a stool on one side of a glass counter. Mr Goldthorp retrieved the pieces from the window and placed them on a tray on the counter in front of the appellant. Mr Goldthorp remained standing. The appellant asked Mr Goldthorp for the weight of the stones. Mr Goldthorp went to obtain a certificate with the details, temporarily placing the pieces out of the appellant's reach as he did so. On obtaining the certificate he placed the pieces on the counter in front of the appellant. There was a short conversation. 4 The appellant while still seated and with Mr Goldthorp opposite him, and close to him, lunged across the counter and with one arm grabbed the pieces and pulled them towards his body. At the same time he leant over the counter and with his other arm reached for the key to release the door. Mr Goldthorp moved to the appellant's side of the counter and grabbed the appellant by the throat. During the ensuing struggle the appellant punched Mr Goldthorp about the forehead causing a number of injuries which constituted actual bodily harm. The appellant escaped from the shop but he was pursued and apprehended. The jewellery was recovered from his person. 5 At the trial there was no issue that the appellant had stolen the company's jewellery and that immediately after the theft the appellant had maliciously inflicted actual bodily harm on Mr Goldthorp. The issue is whether the appellant had stolen the jewellery from the person of Mr Goldthorp. The appellant contended that the property had to be taken from the actual person of Mr Goldthorp and that it was not sufficient that it was taken from his immediate presence. The judge rejected the appellant's argument. 6 The appellant contended that the starting point should be s 95 of the Crimes Act 1900 which relevantly provides: (1) Whosoever robs or assaults with intent to rob any person, or steals any chattel, money or valuable security from the person of another in circumstances of aggravation, shall be liable to penal servitude for twenty years. (2) In this section, "circumstances of aggravation" means circumstances that (immediately before, or at the time of, or immediately after the robbery, assault or larceny) involve anyone or more of the following: