Regina v Swain [2003] NSWCCA 364

New South Wales Court of Criminal Appeal

CITATION : Regina v Swain [2003] NSWCCA 364 HEARING DATE(S) : Thursday 13 November 2003 JUDGMENT DATE : 10 December 2003

JUDGMENT OF : Hodgson JA at 1; Grove J at 2; Howie J at 42 DECISION : APPEAL DISMISSED

CATCHWORDS : CRIMINAL LAW AND PRACTICE - BREAKING ENTERING AND STEALING - JOINT CRIMINAL ENTERPRISE - SUFFICIENCY OF EVIDENCE OF BREAKING - DIRECTIONS TO JURY ON LIES TOLD BY OFFENDER - REQUEST FOR FURTHER DIRECTION - ONE REFERENCE TO STEALING AS DISTINCT FROM BREAKING ENTERING AND STEALING - NO MISCARRIAGE AND PROVISO APPLIED - SENTENCE - NOT EXCESSIVE Doney v The Queen 1990 171 CLR 207 CASES CITED : Edwards v The Queen 1997 178 CLR 193 Wilde v The Queen 1988 164 CLR 356 Zoneff v The Queen 2000 200 CLR 234 PARTIES : Regina v Peter William Swain FILE NUMBER(S) : CCA 60250/03 COUNSEL : D. Arnott (Crown) P. Hamill with C. Smith (Applicant) SOLICITORS : C.K. Smith (Crown) B. Duchen (Applicant)

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0788 FILE NUMBER(S) : LOWER COURT Dodd DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60250/03

HODGSON JA GROVE J HOWIE J

Wednesday 10 December 2003 REGINA v PETER WILLIAM SWAIN

Judgment

1 HODGSON JA: I agree with Grove J. 2 GROVE J: The appellant was convicted upon a single count of aggravated breaking entering and stealing after a trial at Sydney District Court before Dodd DCJ and a jury. The circumstance of aggravation was that the appellant was in company of Ashleigh C, a juvenile, when the offence occurred. He was sentenced to four years imprisonment with a non parole period of two years. The latter will expire on 9 February 2005. 3 Five grounds of appeal against conviction are advanced, ground 4 originally containing two parts, the first of which is not now pressed.