New South Wales Court of Criminal Appeal CITATION : Regina v WILKS [2001] NSWCCA 383 FILE NUMBER(S) : CCA 60852/00 HEARING DATE(S) : 25/09/01 JUDGMENT DATE : 25 September 2001 PARTIES : Terrence George WILKS (Appellant) Regina JUDGMENT OF : Powell JA at 27; Sully J at 28; Bell J at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/31/0392 LOWER COURT JUDICIAL Shillington DCJ OFFICER : COUNSEL : R Button (Appellant) L M B Lamprati (Crown) SOLICITORS : David Giddy & Associates (Appellant) S E O'Connor (Crown) Crimes Act 1900 LEGISLATION CITED : Criminal Appeal Act 1912 Justices Act 1902 CASES CITED: R v Wilkes [2001] NSWCCA 97 DECISION : Time extended pursuant to s 10(3) of the CAA; Appeal against conviction allowed; Conviction recorded in the District Court quashed; Proceedings to be continued before the Local Court at Scone on the first date available convenient to the Court and to the parties IN THE COURT OF CRIMINAL APPEAL 60852/00 POWELL JA SULLY J BELL J TUESDAY 25 SEPTEMBER 2001 REGINA v Terrance George WILKS Judgment 1 POWELL J: I will ask Bell J to deliver the first judgment. 2 BELL J: The appellant pleaded guilty before the Local Court at Scone to one charge of break enter and steal contrary to s 112(1) of the Crimes Act 1900 ("the Act") He was committed for sentence to the District Court. On 12 December 2000 he adhered to his plea of guilty in the District Court. He was sentenced on that date to a term of imprisonment of three years, to commence on 6 September 2000 and to expire on 5 September 2003. A non-parole period of two years, to expire on 5 September 2002 was specified. The sentencing judge directed that the appellant be released on parole under the supervision of the Probation Service upon the expiration of the non-parole period. 3 The appellant appeals against his conviction upon a single ground; namely, that there has been a miscarriage of justice in that despite his plea of guilty he should not have been convicted of any offence that incorporated "breaking" as an element. 4 The appellant requires an extension of time in order to bring his appeal. It appears that an appeal against the severity of sentence was lodged within time. The notice of appeal against conviction was not lodged until 30 July of this year. 5 In the circumstances of this case I would propose that the extension of time be granted. 6 The charge to which the appellant pleaded guilty alleged that on 12 July 2000 he broke and entered premises at 177 Liverpool Street, Scone, and that he stole a substantial sum of cash and a fob watch, the property of Ms Lilly Adams, from those premises. 7 At the sentence hearing an agreed statement of facts was tendered together with the statements of a number of witnesses including that of Ms Adams, Laura Dever and a number of investigating police. The agreed statement of facts contained no assertion that the appellant had broken into the premises at 177 Liverpool Street, Scone. Relevantly, it recited: "On 12 July 2000, the offender has entered the home of the victim, Ms Lilly Adams, in Scone. The victim was in her garden mowing the lawn. The offender has entered the bedroom of the victim and removed an amount of money from a bag kept in a cane basket beside the victim's bed." 8 In her statement dated 27 July 2000 Ms Adams said: "About 8.00am on Wednesday the 12th July 2000 I went into the backyard and got the mower out of the garden shed. The mower would not start so I left the mower in the sun (in the backyard). I then went out into the front yard and took my tomato plants out the front. I came back into the house via the front door. I left the front door open and the front screen door unlocked. I then went into the backyard and started up the mower and wheeled it around the front of the house." 9 Ms Adams went on to detail that at around 8.00 am the following morning she noted that the tartan bag kept in the cane basket in her bedroom which contained a substantial sum of cash was not in its usual place. Examination of the bag revealed that the cash was missing. 10 In none of the statements prepared by the investigating police is there any suggestion of evidence of any forced entry to the premises. 11 The appellant's sister, Laura Dever, in a statement dated 26 July 2000 gave an account of a conversation with the appellant following his return to her home after he had been absent for the stated purpose of jogging. She observed that he had an envelope containing a large number of $20 notes. She challenged him, saying, "Where did you get it from?" to which he replied, "A house. They were outside. I went in and found the bag." 12 The appellant gave evidence at the sentence hearing. He was asked to describe what had happened on the day that he stole money from Ms Adams' premises. He said: "I told my sister I was going for a jog. I've jogged maybe for about 5, 10 minutes up around the corner from my sister's place. I saw a person out the front mowing a lawn. I didn't realise how old she was or anything. Was just a normal lady to me and I've jumped over two fences, I've gone through the back door which was open. I've gone into the bedroom, I've picked up the fob watch which was sitting on the dressing table and then I've looked under the bed and I've looked across to my other side and I saw a bag there. I've picked up the bag, I've looked inside it and I saw all this money and I was quite surprised and shocked and I bolted with the money back down to my sister's place." 13 Mr Button, who appears on behalf of the appellant, in written submissions referred the Court to a number of authorities concerning the concept of a "breaking" at common law. The principles are as set out in Gillies, Criminal Law, 4th Ed, pp 497/498: "An actual breaking required, broadly, that D interfere with the building's physical security, in a recognised way. To obtain entry by prising open a locked door or window (or indeed, to cut through a wall, or otherwise destroy part of it) constitutes a breaking. Further, to open a shut, but not locked, door or window is a breaking. To fully open a partly opened window which is secured by a fastening device, as in the instance of a casement window, is a breaking. To further open an already open window not so secured, or a door which is ajar, is not a breaking. Where D can enter a building without a breaking (such as through an open door), but then opens a shut, internal door to further ingress, D commits a breaking,, that is, the common law recognises that an inner braking is a breaking for the purposes of liability." 14 There has been no issue taken by the Crown with the statement of principle to which we were referred by Mr Button. The Crown concedes that in the light of the evidence given by the appellant at the sentence hearing (and having regard to the other material to which I have referred) there was no evidence upon which the appellant might properly be convicted of the offence of breaking, entering and stealing. 15 The circumstances in which a conviction entered upon a plea of guilty may be set aside have been recently considered by this Court in Wilkes [2001] NSWCCA 97. 16 It has not been submitted, having regard to the concession to which I have referred, that this is not an appropriate case in which the Court should uphold the appeal and set aside the conviction notwithstanding the appellant's plea of guilty. 17 Mr Button submitted in the event that the appeal was allowed, an appropriate course would be for this Court to substitute the conviction for the offence of "steal in a dwelling" contrary to s 148 of the Act. On the appellant's behalf it is conceded that no doubt exists as to his guilt of this offence and that so much was embraced by his plea. 18 We were invited to substitute a verdict of guilty for the lesser offence and to proceed to sentence the appellant for that offence by reference to the provisions of s 7(2) of the Criminal Appeal Act 1912 ("the CAA"). That subsection is in these terms: "Where an appellant has been convicted of an offence, and the jury could on the indictment have found the appellant guilty of some other offence, and on the finding of the jury it appears to the court that the jury must have been satisfied of facts which proved the appellant guilty of that other offence, the court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity." 19 The appellant was not tried on indictment before a judge and jury for the offence of breaking entering and stealing. He pleaded guilty to that charge before the Magistrate and was committed for sentence in accordance with the provisions of s 51A of the Justices Act 1902. Section 51A(7) provides that a person sentenced for an offence to which he or she has pleaded guilty in accordance with s 51A(1) is deemed to have been convicted on indictment of that offence. 20 I am not persuaded that the deemed conviction upon indictment serves to admit of this Court substituting a verdict and proceeding to sentence pursuant to the provisions of s 7(2) of the CAA. 21 Mr Button has submitted that it is an odd result to allow that the Court may substitute a verdict for a lesser offence following a trial in which the appellant has put in issue all the elements of an offence but not to allow of a substituted verdict upon a plea of guilty where at all times the appellant has admitted the elements of the lesser offence. 22 It may be that that the result is an odd one but, to my mind, the terms of s 7(2) of the CAA are plain and this Court's powers are circumscribed by the terms of its Act. 23 Section 8A(1) of the CAA provides that where a person appeals to this Court against his or her deemed conviction upon indictment under s 51A(7) of the Justices Act the Court may order that the proceedings before the Justice at which the appellant pleaded guilty be continued at a time and place to be specified in the order if the Court considers that a miscarriage of justice has occurred and, having regard to all the circumstances, that the miscarriage can more adequately be remedied by an order that the proceedings be continued than by any other order which the Court is empowered to make. 24 I am of the view that a miscarriage of justice has occurred in this case for the reasons I have given and that in all the circumstances it can more adequately be remedied by an order pursuant to s 8A(1) of the CAA than by any other order that the Court is empowered to make. 25 Accordingly, the orders I would propose are as follows: (i) That the time for giving notice of his appeal be extended pursuant to s 10(3) of the CAA. (ii) The appeal against conviction be allowed, (iii) The conviction recorded in the District Court be quashed, (iv) The proceedings be continued before the Local Court at Scone on the first date available that is convenient both to the Court and to the parties. 26 POWELL JA: I agree and I would not wish to add anything further. 27 SULLY J: I too agree. 28 POWELL JA: The orders of the Court are thus those which have been proposed by Bell J. ********** 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.