Hughes v Regina [2007] NSWCCA 256

Reported Decision: 181 A Crim R 344

New South Wales Court of Criminal Appeal

CITATION: Hughes v Regina [2007] NSWCCA 256

HEARING DATE(S): 8 August 2007

JUDGMENT DATE: 30 August 2007

JUDGMENT OF: McClellan CJ at CL at 1; Howie J at 2; Harrison J at 3

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW – leave to appeal against sentence – accessory after the fact to offence of aggravated break, enter and steal – submission that applicant sentenced for offence for which he had not been convicted – whether features of aggravation in principal offence relevant to applicant's crime

LEGISLATION CITED: Crimes Act 1900 - ss 112(2), 347, 350

R v Olbrich (1999) 199 CLR 270 CASES CITED: R v Palu (2002) 134 A Crim R 174 R v White (1977) 16 SASR 571

PARTIES: Craig Andrew Hughes (Applicant) Regina (Respondent)

FILE NUMBER(S): CCA 2007/3315 (formerly 2007/995)

COUNSEL: A P Cook (Applicant) N Adams (Respondent)

SOLICITORS: S O'Connor, Legal Aid Commission of New South Wales (Applicant) S Kavanagh, Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/31/094

LOWER COURT JUDICIAL OFFICER: Taylor DCJ

LOWER COURT DATE OF DECISION: 26 October 2006 (date of sentence)

IN THE COURT OF CRIMINAL APPEAL 2007/3315 (formerly 2007/995)

McCLELLAN CJ at CL HOWIE J HARRISON J

30 August 2007 Craig Andrew Hughes v Regina Judgment 1 McCLELLAN CJ at CL: I agree with Harrison J. 2 HOWIE J: I agree with Harrison J. 3 HARRISON J: The applicant was arraigned at the District Court of New South Wales at Newcastle on a single count of being an accessory after the fact to an aggravated break, enter and steal offence committed on 15 January 2006. The applicant pleaded guilty on 24 October 2006. He came before his Honour Taylor DCJ on 26 October 2006 and was sentenced to a non-parole period of imprisonment of 18 months to date from 26 August 2006 and to expire on 25 February 2008 with a balance of term of 6 months to commence at the expiration of the non-parole period and to expire on 25 August 2008. 4 The principal offence was an offence against s 112 (2) of the Crimes Act 1900 ("the Act") and carried a maximum penalty of 20 years imprisonment. The offence to which the applicant pleaded guilty was a combination of the contravention of ss 347, 350 and 112(2) of the Act. Background 5 The brief facts before his Honour were agreed as follows. 6 The principal offence was committed at premises located in Teralba. The premises are a single storey brick dwelling house. The property has a large garage at the rear that houses the workroom. The workroom is separated from the main garage by a roller door. Two digital security video surveillance cameras monitor the property. Both the house and rear garage are also protected by a security alarm system. The garage has a sensor light that operates by a beam running along its front entrance. 7 A father and son occupied the property. Neither was home on the date the offence was committed. Prior to leaving home the alarm system had been activated. The sliding door at the rear of the house was closed but not locked. 8 At about 9.50am on Sunday 15 January 2006 Paul Tegelaar and Mitchell Coggan drove a motor vehicle to the premises and removed property from inside the house and loaded it onto the vehicle. About 10.45am on the same day the vehicle returned to the premises. Mr Tegelaar entered the garage whilst the vehicle was being repositioned. He came back from the garage pulling a trolley. 9 Three young boys from the next-door property arrived at the premises on their bikes to go for a swim in the pool. They witnessed the return of the vehicle. The applicant approached the boys and had a brief conversation with them. Video images captured by the security camera depict the applicant sitting in the passenger seat of the vehicle. Mr Coggan was driving. Mr Coggan and Mr Tegelaar then entered the house and came back shortly afterwards with a large safe loaded onto the trolley. The applicant assisted Mr Coggan and Mr Tegelaar to load the safe and the trolley into the back of the vehicle. All three men then got into the vehicle and drove away. The applicant was in the back of the vehicle holding the safe in place. 10 On 17 March 2006 the applicant was arrested by police in relation to this matter. He was taken to the Waratah Police Station and given the opportunity to participate in an interview. He declined to do so. Grounds of appeal 11 The applicant sought leave to appeal to this Court on two grounds. They are as follows: - 11.1 The learned sentencing judge erred in sentencing the applicant on the basis that he was guilty of an offence for which he was not standing for sentence.