"Mr Crown, the indictment charges the accused, with knowing that there was a person or persons inside, did break and enter the dwelling house. What evidence is there of that? "
13 An exchange then followed between the Judge and the Crown concerning the statutory presumption of knowledge found in s 105A(2A) Crimes Act.
14 During his summing up, the Judge directed the jury that the Crown was required to establish that the applicant knew that there was a person or persons inside the premises and further directed them in terms of the statutory presumption.
15 The applicant had originally been indicted in the District Court with the more serious charge under s 112(2) Crimes Act and that indictment had remained on the court file. It seems that the Judge, because of the Crown opening, misapprehended that the trial was proceeding on the original indictment. Regrettably, nothing was said by the applicant's counsel to the Judge or to the Crown that the charge to which the applicant had pleaded was the less serious charge under s 112(1).
16 This appeal emphasises, notwithstanding the heavy caseload for those involved in the criminal trial work of the District Court, the need to pay careful attention to the terms of the indictment upon which an offender stands for trial.
17 The jury returned a verdict of guilty which the Judge understood was a finding of guilt to a charge of aggravated break and enter. In his remarks on sentence, the Judge said (ROS at 1):
"The offender comes before me for sentence, he having been found guilty by a jury on a charge of break, enter and steal knowing that there were persons inside the premises. That crime attracts a maximum penalty of twenty years imprisonment. Attached to it [is] a standard non-parole of five years."
18 The Judge sentenced the applicant to imprisonment with a non-parole period of 2 years 6 months commencing 3 April 2009 and expiring on 2 October 2011. A parole period of 1 year 6 months was fixed. The total term of the sentence is 4 years.
19 The notice of appeal identifies two grounds:
Ground 1: His Honour erred in having regard to a higher maximum penalty.
Ground 2: His Honour erred in having regard to a standard non-parole period that did not apply.
20 The Crown properly concedes the two grounds of appeal as the applicant was sentenced for an offence more serious than the offence on the indictment. The Crown, however, submits the sentence is not manifestly excessive and no lesser sentence is warranted in law: s 6(3) Criminal Appeal Act 1912. The Crown cited R v Harris [2007] NSWCCA 130 in which this Court emphasised that heavy sentences should generally be imposed for break, enter and steal offences committed by repeat offenders on domestic premises, whether or not they were aggravated forms of the offence. The Crown also brought to our attention the helpful review by RA Hulme J of sentences imposed for single counts of break, enter and steal against s 112(1) Crimes Act in Morrison v R [2009] NSWCCA 211 at [53]-[62]. The Crown submitted that when consideration was given to all of the cases referred to in Morrison (many of which were pleas of guilty) it could not be said that the sentence was manifestly excessive.
21 The applicant submits on the other hand that a less severe sentence is warranted in law and statistical material from the Judicial Commission was provided.
22 Although error has been demonstrated, the question for this Court is whether some other sentence is warranted in law: Baxter v The Queen [2007] NSWCCA 237.