New South Wales Court of Criminal Appeal CITATION : Regina v Cooper [2001] NSWCCA 542 FILE NUMBER(S) : CCA 60110/01 HEARING DATE(S) : 04/12/01 JUDGMENT DATE : 4 December 2001 PARTIES : Regina v Paul Antonio Cooper JUDGMENT OF : Stein JA at 1, 36, 38; Hidden J at 37; Howie J at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/61/0165 LOWER COURT JUDICIAL Coleman DCJ OFFICER : COUNSEL : Applicant appeared in person W.G. Dawe QC - Crown SOLICITORS : Applicant appeared in person S.E. O'Connor - Crown CATCHWORDS : Criminal Law and Procedure - offence against property - Aggravated break enter and steal - elements of the offence - onus of proof. LEGISLATION CITED : Justices Act 1902 - s 51A Crimes Act 1900 - ss 105A, 112(1), 112(2), 117, 428A, 428B(1), 428B(2), 428D CASES CITED: R v Lars aka Larsson (1994)73 A Crim R 91 DECISION : Application for leave to appeal is granted and the appeal is allowed to the extent that the non-parole period specified in the offence of aggravated break, enter and steal be quashed and in lieu thereof a non-period period of 18 months be specified to commence on 22 February 2001 and to expire on 21 August 2002, the date upon which the applicant is to be released to parole. It is to be a condition of his parole that he subject himself to the supervision of the Probation and Parole Service and those provisions which relates to such supervision contained in the Regulations should apply to the parole order. IN THE COURT OF CRIMINAL APPEAL 60110/01 STEIN JA HIDDEN J HOWIE J DATE: 4 December 2001 REGINA v PAUL ANTONIO COOPER JUDGMENT 1 STEIN JA: The Court is in a position to proceed to judgment now in this appeal and I will ask Justice Howie to deliver the first judgment of the Court. 2 HOWIE J: By notice dated 5 March 2001 the applicant sought leave to appeal against a sentence imposed upon him on 27 February 2001 by Judge Coleman QC. That sentence was one of two passed upon the applicant by his Honour for offences to which the applicant had pleaded guilty before the Local Court and for which he had been committed to the District Court for sentence pursuant to s51A of the Justices Act. The offences for which the applicant was sentenced were a charge of aggravated break enter and steal contrary to s 112(2) of the Crimes Act and a charge of larceny contrary to s 117 of that Act. It is the sentence for the first mentioned of those offences about which the applicant complains. 3 The applicant was legally represented in the District Court by a solicitor, Mr Doyle. At the outset of the proceedings Mr Doyle indicated to his Honour that the applicant adhered to the pleas of guilty entered before the magistrate. This was after the solicitor representing the Crown had indicated to his Honour that the applicant had pleaded guilty to one count of aggravated break, enter and commit a serious indictable offence, that is, to steal with people present and one count of larceny. After receiving into evidence the prosecution brief and hearing testimony from the applicant and his mother, Judge Coleman sentenced the applicant as follows: in respect of the offence of larceny, a fixed term of imprisonment for 4½ months to commence on 22 November 2000 and to expire on 6 April 2001; in respect of the aggravated break enter and steal offence, imprisonment for 3 years to commence on 22 February 2001 with a non-parole period of 2 years to expire on 21 February 2003. 4 It is convenient to refer briefly to the facts of the two offences although I will need to return to consider the facts of the aggravated break, enter and steal offence in more detail later. The first offence in time was the larceny. On 21 November 2000 the applicant stole a large number of tools, fishing equipment and a rifle from a property where he had been staying with his girlfriend. The applicant removed the items from a shed on the property and placed them in his girlfriend's vehicle intending to keep some and sell the others. He then drove the vehicle from the property and travelled the short distance into Wentworth in the South of this State. 5 At around 4 am that morning, the applicant gained entry through a closed but unlocked door into the home of the manager of a motel and in his wife. The house was a distinct dwelling located in front of the motel units. Before he entered the premises, the applicant took with him a butter knife that he said he found in the street outside the motel. The manager's wife, who was awake at the time, heard somebody in the house and woke her husband. He found the applicant in the kitchen holding a mobile telephone and the knife. The manager confronted the applicant who immediately allowed these items to be taken from him and he remained compliantly in the kitchen until the police arrived. The applicant was then arrested and he admitted that he intended to steal the mobile phone. His girlfriend's vehicle was located and the stolen property discovered. The applicant told police that the items taken belonged to his deceased brother and he believed he was entitled to them. 6 The Notice of Application for Leave to Appeal, apparently signed by the applicant, indicates that he desires only to appeal against sentence and refers only to his conviction of an offence of "aggravated burglary". Under the heading "Grounds of Appeal or Application" on the Notice the following has been hand-written: "I consider the sentence imposed is far too severe when the full facts are considered. I did not harm or threaten any person & I didn't steal any property from the house where I was charged for illegal entering". The applicant had also indicated on the Notice that he wanted legal aid but did not wish to be present at the hearing of the appeal. 7 On 5 November 2001 the applicant wrote to the Registrar of this Court setting out the arguments that he wished to have this Court consider when determining his application. It seems that legal aid for the application had been refused and, therefore, the applicant was without legal representation. As is the normal procedure in such a case, the Registrar sought clarification of the matters that the applicant wished to have considered by the Court. The substance of the complaint set out in the applicant's letter is that he was unaware of the nature of the charge under s 112(2) to which he had pleaded guilty and that had he been aware of the matter of aggravation relied upon, that is that he knew there was a person or persons in the house at the time of the offence, he would not have pleaded guilty. 8 In his letter the applicant refers to a communication between Mr Doyle, the solicitor who appeared for him before Coleman DCJ, and a solicitor named Ms Anderson that communication being set out in an advice from the Public Defender's Chambers, presumably, as to the merits of any appeal for the purposes of a decision whether to grant the applicant legal aid for the application. The applicant complains in particular about the following material apparently set out in the advice that he had received: "Mr Doyle told me [Ms Anderson] that he was aware of the mental element requiring the awareness of Mr Cooper that there was the likelihood that persons were within the dwelling. Further Mr Doyle tells me that during the course of instructions Mr Cooper indicated that he was aware that the premises were in fact the premises of the manager of the hotel and consequently was aware that the manager and his wife were likely to be in the premises at the time he entered them". 9 After referring to this material, the applicant states in his letter: "This advice consequently proceeds (in the absence of instructions to the contrary) on the assumption that the plea of guilty to the aggravated charge was in fact properly entered. I emphatically deny that any such conversation took place between Mr John Doyle and myself at any time prior to the trial. I do not know where Mr Doyle gained this information – but it certainly was not from myself. I therefore contend that the plea of guilty to the aggravated charge was a totally incorrect assumption and was therefore incorrectly and improperly entered." 10 The applicant then proceeds in his letter to refer to the evidence given before Judge Coleman as to his ingestion of alcohol and drugs prior to the commission of the offence and asserts that in his "confused state" it did not occur to him that the premises were occupied. He states that he remembers being shocked and surprised when he was confronted by someone in the house and this, he states, was the reason that he "immediately surrendered and offered any information requested". 11 Throughout his letter to the Registrar the applicant repeatedly denies that there was any discussion with Mr Doyle about the issue of his knowledge as to the likelihood of any person being in the premises. He categorically refutes any suggestion that he indicated to his solicitor that he was in any way aware that there may have been persons present. The applicant's letter concludes with the following statement: "I believe that I have been unfairly dealt with in this matter and I do not believe that I should have been sentenced for break, enter and steal in circumstances of aggravation. I have attempted to indicate to you throughout this letter that I do not agree that I am guilty of CIRCUMSTANCES OF AGGRAVATION, and it may be that I have not framed my statements in correct legal parlance - But the arguments I have shown above are all that I am able to provide to you as a means of support for the appeal". 12 When this matter came before this Court differently constituted than it is at present, the Court was concerned about the matters raised by the applicant in his letter particularly in light of the fact that the application for leave purported to be against sentence only and that the applicant remained unrepresented. The Court adjourned the matter and asked that reconsideration might be given to the question of legal aid presumably in light of the material contained in the applicant's letter. 13 The applicant remains unrepresented today but has appeared before the Court and relied upon the matters the substance of which he raised in his letter to the Registrar. In addition, he has placed before the Court (without objection by the Crown) an affidavit by him sworn on 4 December of this year. In the course of that affidavit the applicant, in effect, restates the complaints made by him about the conduct of his solicitor prior to the plea of guilty being entered, as he had done in the letter to the Registrar. However, the last two paragraphs of that affidavit should be referred to. They are as follows: "11. After I had been sentenced I found out what 'aggravate' meant from other inmates who went up for the same charges. 12. I don't remember anything of that night. I can remember little bits and pieces but that is all. I didn't know where I was. The only thing I can remember is the man coming downstairs and I was shocked. I was shocked because I didn't think anyone was there. I didn't recognise the man. I didn't know that I was somewhere where people lived. I remember that I thought I was going to a pub when I was in the place." 14 In answer to matters raised in this affidavit the Crown has placed before this Court a tape recording of a record of interview made by the applicant with the arresting police some 2½ to 3 hours after his arrest in the manager's dwelling house. The material contained in that record of interview and, in particular, the answers supplied by the applicant to the police are, in my view, inconsistent with those two paragraphs of the applicant's affidavit which I have quoted above. The police officers, during the course of that interview, indicated to the applicant that the offence with which he was to be charged was aggravated break, enter and steal and that the circumstances of aggravation relied upon were to be the fact that he had a knife in his possession and that there were people in the premises into which he had entered, being the manager and his wife. 15 Further, the applicant, in his answers to the police, indicated that at least at that time he had a very clear recollection of the events of the evening, in particular, the way in which he entered into the premises of the dwelling house by scaling a six foot picket fence and then by pushing the door of the premises open. He told the police that he intended to get a drink of water and that he had seen lights on in the premises and that is why he entered. He told the police that he intended to steal the mobile telephone by taking it with him out of the premises when he left. He could not explain to the police why it was that he picked up the butter knife and took it with him into the premises. 16 Notwithstanding that there is no appeal against conviction and the applicant has raised these matters under an application for leave to appeal against sentence, the matters raised with respect to his plea and its appropriateness were ventilated during the hearing by way of evidence placed before this Court by both the applicant and the Crown. The Crown has also tendered an affidavit by Mr Doyle as to conversations that he says occurred between himself and the applicant and which confirms the material set out in advice from the Public Defenders' Chambers to which I have earlier referred and which is disputed by the applicant. I should indicate that the applicant was not required for cross-examination and Mr Doyle did not appear to give evidence in this Court. However, it is unnecessary (for reasons that will hopefully become apparent) to detail Mr Doyle's account of the instructions he received from the applicant or to attempt to resolve the dispute between him and the applicant about what instructions Mr Doyle had prior to him confirming the applicant's adherence to his pleas before the magistrate. 17 The offence with which the applicant was charged in the Local Court and to which he pleaded guilty was in the following terms: "That Paul Antonio Cooper on the 22nd day of November 2000, at Wentworth, in the State of New South Wales did break and enter the dwelling house of Robyn WARHURST situate at Central Motel, Adams Street, and then in the said dwelling house did commit a serious indictable offence, to wit, Stealing one Nokia mobile phone in circumstances of aggravation, to wit, he knew that there were persons present within the said Dwelling House." 18 The charge sheet indicates that the offence was alleged under subs 112(2) of the Crimes Act. Subsection 112(1) contains the general offence of break, enter and commit a serious indictable offence and it is unnecessary for present purposes to set it out. It appears that the applicant concedes that he is guilty of an offence under that subsection. Subsection 112(2) is as follows: "Aggravated offence 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." In order to understand what is meant by the expression "in circumstances of aggravation" one is required to go to s 105A of the Act. It is relevantly as follows: "105A (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 be committed. (2) The matters referred to in: (a) paragraph (c), (d) or (e) of the definition of "circumstances of aggravation"; or (b) paragraph (a) of the definition of "circumstances of special aggravation", can occur immediately before, or at the time of, or immediately after any of the elements of the offence concerned occurred. (2A) 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. (3) The definitions in subsection (1) are not mutually exclusive." 19 It appears to me that, quite understandably, the applicant does not comprehend the onus placed upon him by subs (2A) once it is proved that there were persons in the house when he entered it. I should add that the applicant's understanding of the circumstances of aggravation have not been assisted either by the way it was described by the police officer during the record of interview or the way it was described by the solicitor for the Crown before his Honour Judge Coleman. The matter of aggravation is not that there was a person or persons in the house but that the applicant knew that there was a person or persons in the house. In the present case, in order for the applicant to successfully defend the charge alleging the aggravated form of the offence found in subs 112(1), he was required to satisfy the court, on the balance of probabilities, that he had reasonable grounds for believing that there was no one in the premises. Even putting aside the issue of the applicant's state of intoxication, the applicant would have been met with, what appears to me to be, an insuperable difficulty. 20 In his letter to the Registrar the applicant maintains that he had no belief, on reasonable grounds or otherwise, that there was "no one in the place". The applicant stated: "It was not a premeditated event – I was not aware of the time – I do not know why I chose that particular premises other than that I probably thought it a good idea at the time. It did not occur to me in my confused state to even consider that the place was occupied." I should note in passing that Mr Doyle states that the applicant told him, when they were discussing the nature of the matter of aggravation alleged before the applicant adhered to his plea in the District Court, that it never entered his head that there was likely to be persons at home. The applicant has never disputed this statement at least. 21 However, it is not an answer to the circumstance of aggravation alleged that the applicant simply did not give any consideration to whether any person might have been in the premises. If he formed no view about that matter, he cannot satisfy the requirement placed upon him by subsection 112(2A). 22 The applicant has relied, both in his letter to the Registrar and in his affidavit, upon his state of intoxication at the time to refute any assertion that the offence was premeditated, that he was aware of the time of day when he entered the premises, or that he was conscious of the nature of the premises that he entered. Presumably the applicant raises these matters in an attempt to rebut the otherwise overwhelming inference that any person, who entered a dwelling house in the circumstances that attended the commission of the offence in the present case, must at least have been aware of the possibility that the premises were occupied at the time. Such an inference would make it virtually impossible for the applicant to convince a court, even on the balance of probabilities, that he had reasonable grounds to believe that no person was in the house. But in my view the evidence of the applicant's intoxication is irrelevant to the question of whether he was guilty of the offence charged against him. 23 An offence under s 112(1) is not an "offence of specific intent" for the purposes of Part 11A of the Act. The offence does not come within the definition of that term in subs 428B(1) nor does it appear in the Table of Offences contained in subs 428B(2). Part 11A is concerned with the issue of intoxication in respect of criminal responsibility. Section 428D is as follows: "In determining whether a person had the mens rea for an offence other than an offence of specific intent, evidence that a person was intoxicated at the time of the relevant conduct: (a) if the intoxication was self-induced — cannot be taken into account, or (b) if the intoxication was not self-induced — may be taken into account". There is no suggestion in the present case that the applicant's state of intoxication was other than " self-induced intoxication " as that term is defined in s428A. Therefore, whatever might have been the state of his intoxication, it was irrelevant to the issue of whether he formed any mental element necessary to establish the offence charged and, in particular, as to his state of knowledge or belief as to the presence of any person in the house. 24 In any event, the applicant's assertions that he was so heavily intoxicated that he had no real understanding of what he was doing is in my view inconsistent with the objective evidence and his statements to the manager and the police after his arrest, in particular as has been recorded in the record of interview. The only account of the amount of alcohol and drugs he consumed came from the applicant in his evidence before Judge Coleman. However, his Honour did not believe the applicant's assertions that he had no recollection of why he entered the premises. In light of what is contained in the recorded interview, it is clear that his Honour was quite justified in that opinion. There is no evidence in the statements of the witnesses to suggest that the applicant was as intoxicated as he claims he was. 25 It is clear in my view that, whatever be the situation in relation to the instructions given by the applicant to his solicitor, the plea of guilty was appropriate and in accordance with the evidence. In fact it was the only course that was reasonably open to the applicant. This Court will not permit a person to go behind his plea of guilty unless it appears that a miscarriage of justice might have occurred were the appellant to be bound by his plea; R v Lars aka Larsson (1994) 73 A Crim R 91. There is not the slightest suggestion of a miscarriage of justice in the present case: the applicant simply had no defence to the charge either on the material before the District Court and notwithstanding his assertions in his letter to the Registrar or in the affidavit placed before the Court today. The present matter is an application for leave to appeal against sentence but, if the applicant sought to amend the application to an appeal against conviction, leave to do so should be refused. 26 I turn then to the applicant's complaints about the length of the sentence imposed. On the basis that this Court may be required to re-sentence the applicant a letter by the applicant setting out the courses he has undertaken in custody and another setting out his post-release plans has been received with consent of the Crown. However, there is in my view no substance in any of the matters raised that would warrant this Court's intervention. There is no error in his Honour's remarks as to the facts or the relevant principles that were to be applied in sentencing the applicant. Nor was the starting sentence of four years that his Honour chose, before giving the applicant the full benefit of a 25 percent discount for his plea, unduly high having regard to the maximum penalty prescribed for the offence, imprisonment for 20 years. As his Honour stated, the offence was a serious one involving as it did entering what was clearly a private dwelling in the early hours of the morning whilst carrying a knife. Even though the weapon was unlikely to cause serious injury to any person it was an aggravating feature of the offence, independent of the aggravating feature which had actually been charged. The facts may have been different had the applicant been confronted by the wife and not the manager. 27 Parliament has comparatively recently increased the penalty for offences such as that committed by the applicant by introducing a series of aggravating circumstances which result in a markedly increased maximum penalty. The particular aggravating circumstance, with which the applicant was charged, clearly reflects the concern of the community about persons entering homes whilst the occupants are present, even if they are likely to be asleep at the time. The courts must comply with the legislature's will and accord appropriate weight to the seriousness of the offence as reflected in the terms of the section and the maximum penalty prescribed. Further, general deterrence is a very significant matter to be reflected in the sentence for such an offence and there was no reason why the present case should not be considered as a suitable vehicle to reflect that particular purpose of punishment. 28 True it is that the matter was not in the upper range of seriousness of an offence of its type but the starting sentence considered by his Honour was nowhere near the maximum penalty prescribed. Although regard must be had to the applicant's behaviour when he was confronted by the manager, that offers little mitigation of the offence charged. It would have been a further, or more serious, offence had the applicant threatened the manager or assaulted him in attempting to escape. There was no mitigation in the fact that the applicant was intoxicated, having regard to the fact that the applicant had a lengthy history of offences of dishonesty committed while under the influence of alcohol and drugs. His record extends back to 1988. I accept that his other appearances had been before a magistrate's court and it can be accepted that none of his previous offences were as serious as this matter. However, he had been given many opportunities to take stock of himself and address the issues that caused him to abuse alcohol and drugs. Most of the sentences were designed to assist the applicant rather than to punish him. 29 Although the applicant had suffered a number of difficulties and events in his personal life that might arouse genuine sympathy for him and explain his reliance upon alcohol and drugs, the applicant's criminal record required a sentence that would act as a significant personal deterrence against his re-offending. The applicant had twice served gaol sentences in Victoria. At the time of the commission of the offences for which he was before Judge Coleman, the applicant was subject to an intensive correction order and a suspended sentence in that State. 30 In my view generally speaking the sentence was well within his Honour's discretion and there is no basis upon which this Court, could or should, intervene. His Honour found special circumstances but in light of the applicant's repeated offending, his failure to take the opportunities that had been presented to him in the past and his breach of the sentencing orders outstanding in Victoria, this was a lenient view to take. The applicant complained particularly that the sentence had not been backdated appropriately but it is clear that what his Honour intended to do was to date the overall sentence from the date the applicant went into custody but to commence the sentence for the more serious offence at a time during the sentence imposed for the larceny offence which was a separate and antecedent act of criminality. 31 However, there is merit in the applicant's complaint that he did not seem to receive any significant benefit from his Honour's finding that there were special circumstances. His Honour made that finding within s 44 of the Crimes (Sentencing Procedure) Act 1999 in view of the contrition that the applicant had expressed and the intention that he had conveyed to his Honour to try to break away from his old habits. His Honour indicated that he thought that the applicant would benefit from an extended period of supervision. His Honour then said: "Accordingly, the second sentence will be one of a head sentence of three years with a non parole period of two years." 32 In one view the applicant was fortunate that his Honour made a finding of special circumstances in light of the fact the applicant was 29 years of age when he came to be sentenced and might have then been considered a poor chance for rehabilitation, given the opportunities which he had been offered but which he failed to use to change his reliance on alcohol and drugs or his disrespect for other persons' property. 33 However, having found that there were special circumstances his Honour then ought to have put that finding into effect by giving the applicant a proper opportunity to show his attempts at rehabilitation were genuine by a longer period of supervision on parole. It seems to me, with great respect to his Honour, that his Honour's intention miscarried to some degree because his Honour overlooked that the sentence in respect of which he was making a finding of special circumstances was a sentence which was to be partly cumulative and partly concurrent with another sentence. In the end his Honour proposed a total sentence of three years and three months with a non-parole period of 27 months and a parole period of 12 months. Had his Honour imposed such a head sentence and not found special circumstances, the application of the provisions of the Act would have resulted in a parole period of 9½ months. In fact, as a result of finding special circumstances, his Honour gave the benefit to the applicant of a period of parole extended by a mere 2½ months. I can't believe that his Honour intended that result and it seems to me, as I have indicated, that his Honour simply made a mathematical error, having overlooked the fact that the sentence was to be partly cumulative on the sentence for the larceny. 34 In my view, therefore, the application for leave to appeal should be allowed to the extent that the non-parole period specified by his Honour should be quashed and lieu thereof a non-parole period of 18 months should be specified. I come to that view taking into account the evidence placed by the applicant before this Court as to his further attempts at rehabilitation and his intentions once he is released from custody. It seems to me in those circumstances his Honour also ought to have indicated the applicant was to be released on parole at the end of the non-parole period, not that he was, as his Honour said, "to be considered for release on parole". The sentence to which the parole period relates is one of three years and therefore by operation of the Act the applicant is entitled to be released at the end of the non-parole period. 35 Therefore, the orders that I would propose are that the application for leave to appeal be granted and the appeal is allowed to the extent that the non-parole period specified in the offence of aggravated break, enter and steal be quashed and in lieu thereof a non-parole period of 18 months be specified to commence on 22 February 2001 and to expire on 21 August 2002, the date upon which the applicant is to be released to parole. It is to be a condition of his parole that he subject himself to the supervision of the Probation and Parole Service and those provisions which relates to such supervision contained in the Regulations should apply to the parole order. 36 STEIN JA: I agree with Justice Howie's reasons for judgment and with the orders which he proposes. 37 HIDDEN J: I also agree. 38 STEIN JA: Accordingly, the orders of the Court will be as just announced by Justice Howie. ************ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.