//
[2026] NSWSC 100
General information, not legal advice.
Supreme Court of NSW
2026-02-18
Rigg J
Original judgment source is linked above.
Zoe will write a short plain-English brief of this judgment and email it to you: what it was about, what the court decided and why. It can take up to a minute.
General information, not legal advice.
Or create a free account to save it and ask Zoe follow-up questions.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Bradley Reyter v Director of Public Prosecutions (NSW) [2026] NSWSC 100
Hearing dates: 13 February 2026
Date of orders: 13 February 2026
Decision date: 18 February 2026
Jurisdiction: Common Law
Before: Rigg J
Decision: Appeal allowed, order of Magistrate set aside
Catchwords: CRIME – Appeal and review – Appeal from Local Court to Supreme Court – by plaintiff on a ground involving a question of law alone – Magistrate’s decision to reject plaintiff’s guilty pleas – where agreed facts suggested commission of more serious offence to the one charged – possible issues sentencing in accordance with The Queen v De Simoni (1981) 147 CLR 383 – whether Local Court had jurisdiction to sentence plaintiff in such circumstances – factual material disclosing De Simoni issues did not give rise to absence of jurisdiction to determine charges to which the plaintiff endeavoured to plead guilty – matter remitted to Local Court – observations about parties’ formulation of facts for sentence
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)
Criminal Procedure Act 1986 (NSW)
Local Court Act 2007 (NSW)
Cases Cited: GAS v The Queen; SJK v The Queen (2004) 217 CLR 198
The Queen v De Simoni (1981) 147 CLR 383
R v Bartalesi; R v Fragassi (1997) 41 NSWLR 641; (1997) 93 A Crim R 274
Category: Principal judgment
Parties: Bradley Reyter (plaintiff)
Director of Public Prosecutions (NSW) (first defendant)
Local Court of NSW (second defendant)
Representation: Counsel:
Mr S Howell (plaintiff)
Mr M Pulsford (first defendant)
Solicitors:
Kingston Fox Lawyers (plaintiff)
Solicitors for the Director of Public Prosecutions (NSW) (first defendant)
File Number(s): 2025/00425384
By his final amended summons the plaintiff seeks leave to appeal against the decision of a Local Court Magistrate rejecting his guilty pleas to two criminal charges. On 13 February 2026 I allowed the appeal and set aside the order of the Magistrate. These are my reasons for doing so.
The Court Book contains two affidavits of the plaintiff’s solicitor, annexing relevant documents from the Local Court proceedings. The course of events is uncontroversial, and its core aspects will be set out shortly. The second defendant entered a submitting appearance, save as to costs. The first defendant, the Director of Public Prosecutions (NSW) (“the DPP”), supported the plaintiff’s appeal. It was the joint position of the plaintiff and the DPP in the Local Court, and in this Court, that the Magistrate had jurisdiction to sentence the plaintiff.
Although I propose to outline the relevant facts and legal principles, I will not summarise the parties’ submissions. I was assisted by very helpful written submissions prepared by counsel for both parties. They both explained cogently why the appeal should be upheld, although with varying emphasis on different aspects of the case, or analysis of legislation and case law. My determination accords with the central aspects of both sets of submissions, and it is thus needless to refer to the detail of the differences between the respective submissions except to a limited extent.
On 17 October 2025 his Honour rejected the plaintiff’s pleas of guilty to one count of breaking and entering a dwelling house and damaging property in it, contrary to s 112(1)(a) of the Crimes Act 1900 (NSW) (“the s 112(1)(a) offence”), and one count of common assault contrary to s 61 of the Crimes Act. That determination was said to be pursuant to s 97(2) of the Criminal Procedure Act 1986 (NSW); however this provision relates to committal proceedings, and the proceedings in respect of the two charges to which the pleas were indicated were not committal proceedings, but summary proceedings. His Honour provided reasons for rejecting the plea to the s 112(1)(a) offence, and although no reasons were provided for rejecting the plea to the charge of common assault, his Honour seems to have taken the view that the same course should be taken with respect to that charge. His Honour expressed the view that at that stage he had no jurisdiction. His Honour did not however dismiss the proceedings for want of jurisdiction nor permanently stay them as an abuse of process, but rather adjourned the proceedings to 26 November 2025, the plaintiff remaining in custody.
The decision of the Magistrate on 17 October 2025 was an interlocutory order in summary proceedings. By virtue of s 53(3)(b) of the Crimes (Appeal and Review) A**ct 2001 (NSW), a person against whom such an order has been made by the Local Court may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court. Section 54(1) grants the Court power to determine an application for leave to appeal by dismissing the application or by granting leave to appeal. Section 55(3) provides the power to set aside the interlocutory order and make such other order as the Court thinks just.
The plaintiff’s grounds of appeal include one which states:
“The learned magistrate erred in finding the Local Court did not have jurisdiction to accept pleas of guilty to an offence contrary to s 112(1) (which fell within the terms of clause 8 of Table 1 to Schedule 1 of the Criminal Procedure Act 1986) and an offence contrary to s 61 of the Crimes Act 1900, because the facts placed before the Court disclosed an apparent circumstance of aggravation within the meaning of s 105A of the Crimes Act 1900.”
On 14 February 2025 the plaintiff was arrested inside premises at Busby that were not his own. The police obtained evidence that was capable of supporting charges against him in the nature of breaking and entering those premises and committing a number of offences whilst he was in them. He was initially charged with three offences; namely, aggravated break and enter with intent to use violence contrary to s 113(2) of the Crimes Act, using an offensive weapon with intent to commit an indictable offence, and destroying or damaging property. He was refused bail, and his matter came before the Local Court at Liverpool and then Campbelltown on a number of occasions.
By 15 July 2025 the DPP had taken over responsibility for prosecuting the plaintiff. Correspondence was forwarded on that date by a solicitor representing the DPP to the plaintiff’s legal representative, attaching a charge certificate including the original three and two further charges. These were aggravated breaking and entering and committing a serious indictable offence whilst armed contrary to s 112(2) of the Crimes Act, and common assault (the assault founding sequence 5, one of the two charges the plaintiff endeavoured to plead guilty to). As a number of the five initial charges were serious indictable offences not able to be dealt with in the Local Court, the Early Appropriate Guilty Plea scheme procedures in the Criminal Procedure Act were complied with, including the participation in a Case Conference on 26 August 2025.
The sixth charge laid (sequence 6, the other to which the plaintiff endeavoured to plead guilty) was first included in an amended charge certificate, pursuant to s 66(1) of the Criminal Procedure Act, and Court Attendance Notice and statement of agreed facts served on the plaintiff on 9 September 2025, placed before the Local Court on 10 September 2025. This charge alleged a breach of s 112(1)(a) of the Crimes Act of breaking and entering the dwelling house at Busby and, while in it, damaging certain property, to wit the front fence. The charge certificate particularised “a fence” as the property damaged while in the dwelling house. The amended charge certificate stipulated there would be a withdrawal of the first four charges which had been laid against the plaintiff. In relation to the new s 112(1)(a) charge, and the charge of common assault (sequence 5), it was stated on the certificate that the offence would proceed by summary disposal with the DPP to prosecute.
The statement of agreed facts dated 9 September 2025 describes, under the heading for sequence 6, the plaintiff entering the property (at a time when the occupant was absent), the occupant returning home and noticing items had been thrown about and the house to be messy, and the plaintiff pushing past the occupant and pulling drawers out in the kitchen. Next, under the heading for sequence 5, the common assault (perpetrated against the occupant’s relative, who also entered after the plaintiff had broken into the premises) was described, and it was stated that after that occurred, the victim of the assault and the occupant heard noises from inside the house as if items were being moved and broken. Under a third heading for sequence 6 “continued”, the damage to the fence was described, after noting the movement of the three men to a front porch area where the plaintiff stumbled over to the fence before shaking it several times, causing it to fall to the ground. This document states that when police attended the house was observed to be ransacked with property on the ground and numerous drawers opened and upended.
“The Local Court has jurisdiction to deal with offences pursuant to s 61. That is pursuant to a schedule under the Criminal Procedure Act, sch 1, table 2, pt 1.1, and with respect to an offence of break, enter and commit serious indictable offence, under s 112(1)(a), pursuant to s 1, table 1, pt 8 of the Criminal Procedure Act.
Part 8 of that schedule states that the Local Court has jurisdiction to deal with an offence under s 112(1) of the Crimes Act where (a) the serious indictable offence alleged is stealing or intentionally recklessly damaging property. It meets that definition. This is an allegation where the serious indictable offence is intentionally or recklessly damaging property. And the value of the property stolen or destroyed or the value of the damage to the property does not exceed $60,000. It is clear that the allegation on the face of it does not exceed $60,000. There is no monetary value contained within the statement of facts, but there is no basis for me to suggest that it does not meet that criteria.
The Local Court has limited jurisdiction pursuant to sch 1, table 1 and pt 8A of the Criminal Procedure Act to deal with an offence of aggravated break, enter and commit serious indictable offence, pursuant to s 112(2). Of course, the offence averred is not under s 112(2), but pt 8A of table 1 states the following.
The Local Court has jurisdiction to deal with an offence under s 109(2), s 111(2), 112(2) or 113(2) of the Crimes Act where the serious indictable offence alleged is stealing or intentionally/recklessly destroying or damaging property, a situation which is met, and the value of the property stolen or destroyed, or the value of the damage, does not exceed $60,000. Again, that condition is met. And the only circumstance of aggravation is that the alleged offender is in the company of another person or persons. That condition is not met. That is the only aggravating condition or circumstance of aggravation which allows the Local Court to have jurisdiction.”
“The issue with the plea offer, as agreed between the parties, is that it remains the view of this Court that the Local Court does not have jurisdiction to deal with the charges as they are particularised and on the facts that are presented. Section 112 of the Crimes Act states, “A person who breaks and enters any dwelling house or other building and commits a serious indictable offence therein is guilty of an offence and liable to imprisonment for 14 years.” The definition of an aggravated offence under s 112(2) states:
“A person is guilty of an offence under this section if the person commits an offence under subs (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years.”
Given the legislative provision, any offence pursuant to s 112(1)(a) which is committed in a circumstance of aggravation is by its nature and by the elements alone an aggravated offence regardless of how it is averred. The way in which it is averred is not determinative. Where the Court has jurisdiction to deal with the offence if the offence is alleged under s 112(1)(a), whether a factual matter is raised which outline a circumstance of aggravation, it may be a situation where consideration needs to be given whether there is an inconsistency as outlined in R v De Simoni. However, in the Local Court, the question of jurisdiction remains a foundational question.”
His Honour set out the circumstances of aggravation contained in s 105A(1) of the Crimes Act. These include using corporal violence on any person (s 105A(1)(c)) and “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” (s 105A(1)(f)). His Honour noted s 105A(2), which states that as to the matters in paragraphs (c), (d) and (e) of that description of circumstances of aggravation, it did not matter whether the act occurred immediately before, at the time of, or immediately after any of the elements of the offence concerned occurred. His Honour referred to s 105(2A), which provides that for the purposes of s 105A(1)(f), if there was a person in the place in relation to which the 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 had reasonable grounds for believing there was no one in the place.
His Honour found that “The agreed statements of facts outlines facts which, if accepted, could amount to a circumstance of aggravation. In fact, on any reading of the agreed statement of facts, they must amount to a circumstance of aggravation.” Despite earlier expressed concerns in relation to whether the assault amounted to a circumstance aggravating the break and enter offence, his Honour determined that it did not amount to the infliction of actual bodily harm or corporal violence, so that this factor did not cause a problem as to jurisdiction. The problem as his Honour saw it was in the occupant and his relative returning to the property. His Honour’s reasons concluded as follows, before stating that he must reject the plea:
“The second and more compelling issue is a circumstance where the offender knows that there is a person or that there are persons in the place where the offence is alleged to be committed. A machinery provision is provided under s 105A(2A). It provides a presumption where there is a person who is actually present. In the factual circumstances of this case, not only are there persons present, both Mr Hasan and Mr Almesraji, who are in the premises, but they actually interact with the offender and they do so at a time approximate to when the serious indictable offence, that is, the reckless damage, actually occurs. The presumption can be displaced if the offender satisfied the Court that he or she had reasonable grounds believing that there was no one in the place that one would expect. That is an evidential burden on the balance of probabilities.
A typical example may include the break and enter occurring in a large building where persons are present but they are on the far side of the building, they are remote from where the break and enter occurs and they are not seen nor capable of being seen by the offender. In this particular case, there is direct confrontation inside the house which leads to an assault and an exclamation is contained within the facts. “Get the fuck out of my house.” It is abundantly clear from that expression that the person remains inside the premises, not just in the curtilage. It is difficult to see how the presumption could be displaced in these circumstances without a perverse legal fiction. I found no case which supported the proposition that the knowledge must exist at the time of entering.
I am thankful to Madam Crown for providing me with a case, a decision of R v Rice [2004] NSWCCA 384. That was a decision of Justices Hodgson, Hulme and Smart as they then were. In relation to that matter, it does in fact support the proposition as I have indicated that a person who returned to the premises would be included within the statutory definition of a circumstance of aggravation.
In any event, notwithstanding the decision in Rice, the proposition is not supported by the ordinary meaning of the words in s 105A. If it was parliament’s intent that the knowledge needed to occur at the time of either the break or the entering, that could have easily been indicated in the legislative provisions. Instead, s 105A(2A) includes the phrase “at the time it was committed”.
It is noted that subs (2) does not apply to knowing persons are on premises. I infer from this, in the ordinary reading of the provision, that the knowledge must occur at the time of the commission of the offence and not, as it could for either corporal violence or actual bodily harm, immediately before or immediately after any element. It is counterintuitive that parliament would exclude a circumstance where the home owner returns during a break and enter offence, as occurred in this instance, as not being an aggravated or more serious form of the offence. As indicated, that proposition is supported in the decision of R v Rice. The agreed statement of facts discloses a circumstance of aggravation, which, under sch 1, table 1, pt 8 of the Criminal Procedure Act, I do not have jurisdiction to deal with.”
His Honour stated that he would leave it to the parties to discuss the future progress of the matters, suggested to involve either committing the two charges to the District Court and having an argument there about the application of the principle in De Simoni, or committing the plaintiff on a charge pursuant to s 112(2) of the Crimes Act. The matter was adjourned to 26 November 2025.
A further amended charge certificate dated 17 November 2025 removed reference to the fence in describing the s 112(1)(a) offence, referring only to damaging “certain property”. The revised statement of facts dated 17 November 2025 included no reference to the damage to the fence. It stated that when the occupant returned he noticed that items had been thrown about the house and he observed the house to be messy. In describing the common assault and its aftermath, the plaintiff was said to follow the victim out to the front porch and throw a clothesline on the ground, but made no reference to the fence. The clothesline was not said to be damaged. The reference in earlier versions of the agreed facts to the occupant and the victim of the assault hearing noises like items being moved or broken was removed. The document states that police observed the house to be ransacked, with property on the ground and numerous drawers opened and upended. A new paragraph states that “The damage inside the house relied upon for Sequence 6 caused by the offender amounted to a hole in the plasterboard wall in the bedroom.” It was stated that this damage resulted in the occupant being unable to retrieve his rental deposit of $2,800 and a requirement to pay insurance excess of $1,200.
At the mention of the matter on 26 November 2025 his Honour was advised that the parties had reached an alternative resolution of the facts following his Honour’s judgment, and the amended charge certificate and statement of agreed facts were tendered. His Honour was informed by the solicitor representing the DPP that effectively the position was that no one was present at the home during the plaintiff’s entry into it and commission of the serious indictable offence therein – all of the damage had been particularised as happening inside the house prior to the victim returning home, with no damage taking place while others were there. His Honour was advised that an appeal had been lodged against the earlier decision but would be withdrawn if the matter was able to proceed as the parties intended in the Local Court. His Honour read the new material and stated that it did not change his position at all. His Honour adjourned the proceedings to 17 December 2025 to allow for ongoing assessments and for the plaintiff to consider how he would “move forward”. The plaintiff was granted conditional bail on 17 December 2025, and the matter is next before the Local Court for mention on 4 March 2026.
Section 9(c) of the Local Court Act 2007 (NSW) provides that the Local Court’s criminal jurisdiction consists of the jurisdiction conferred on it by or under any Act or law with respect to criminal proceedings.
The Criminal Procedure Act relevantly confers jurisdiction on the Local Court to hear and determine proceedings for summary offences and indictable offences that are being dealt with summarily. A “summary offence” is defined in s 3(1) of the Criminal Procedure Act as “an offence that is not an indictable offence”. An “offence” is defined as “an offence against the laws of the State (including a common law offence)”. An “indictable offence” is defined as "an offence (including a common law offence) that may be prosecuted on indictment". Section 5(1) of the Criminal Procedure Act provides that an offence must be dealt with on indictment unless it is an offence that under the Criminal Procedure Act or any other Act is permitted or required to be dealt with summarily. An offence may be dealt with on indictment if it is an offence that under the Criminal Procedure Act or any other Act is permitted to be dealt with summarily or on indictment: s 5(2).
Section 6(1) of the Criminal Procedure Act identifies certain offences that must be dealt with summarily. Section 6(2) states that “[a]n offence may be dealt with summarily if it is an offence that under this or any other Act is permitted to be dealt with summarily or on indictment.”
Section 7(1) of the Criminal Procedure Act provides that “[a]n offence that is permitted or required to be dealt with summarily is to be dealt with by the Local Court”.
Chapter 5 of the Criminal Procedure Act deals with the “Summary disposal of indictable offences by [the] Local Court”. The object of Chapter 5 is to require the indictable offences listed in Tables 1 and 2 to Schedule 1 to be dealt with summarily in the absence of a relevant election: s 258. The offences listed in Tables 1 and 2 to Schedule 1 are indictable offences, subject to the provisions of Chapter 5: s 259(2). Section 260(1) of the Criminal Procedure Act provides that an indictable offence listed in Table 1 in Schedule 1 is to be dealt with summarily by the Local Court unless the prosecutor or the person charged with the offence elects in accordance with Chapter 5 to have the offence dealt with on indictment. Section 260(2) states that an indictable offence listed in Table 2 is to be dealt with summarily by the Local Court unless the prosecutor elects to have the offence dealt with on indictment. Section 261 of the Criminal Procedure Act provides that if no election is made in accordance with Chapter 5, an indictable offence listed in Table 1 or 2 to Schedule 1 is “to be dealt with summarily in accordance with the relevant provisions of this Act and any other relevant law as if it were a summary offence”.
8 Breaking etc into any house etc and committing serious indictable offence
An offence under section 112 (1) of the Crimes Act 1900 where—
(a) the serious indictable offence alleged is stealing or intentionally or recklessly destroying or damaging property, and
(b) the value of the property stolen or destroyed, or the value of the damage to the property, does not exceed $60,000.
8A Breaking and entering in company
An offence under section 109 (2), 111 (2), 112 (2) or 113 (2) of the Crimes Act 1900 where—
(a) the serious indictable offence alleged is stealing or intentionally or recklessly destroying or damaging property, and
(b) the value of the property stolen or destroyed, or the value of the damage to the property, does not exceed $60,000, and
(c) the only circumstance of aggravation is that the alleged offender is in the company of another person or persons.
An offence under s 61 of the Crimes Act is listed in Table 2 of Schedule 1.
Chapter 4 of the Criminal Procedure Act deals with “Summary procedure”. Chapter 4 applies “to or in respect of proceedings for summary offences, including proceedings for indictable offences that are being dealt with summarily”: s 170(1). Parts 2, 3 and 4 of Chapter 4 apply to proceedings before the Local Court: s 170(2)(a), (2A)(a). In Part 2 of Chapter 4 (ss 172-219), s 172(1) provides that proceedings for an offence are to be commenced in a court by the issue and filing of a court attendance notice. The form of a court attendance notice is addressed by s 175 of the Criminal Procedure Act which relevantly requires that a court attendance notice must “describe the offence”: s 175(3)(a); see to the same effect s 50(3)(a) of the Criminal Procedure Act.
Section 11 of the Criminal Procedure Act provides that the description of any offence in the words of an Act creating the offence, or in similar words, is sufficient in law. Section 12 of the Criminal Procedure Act, which applies to the statement or description of an offence in any court attendance notice, provides that a summary offence, or an indictable offence that may be dealt with summarily, is taken to be sufficiently stated or described if it is stated or described by the use of a short expression that describes the offence in general terms. See also s 175(5) of the Criminal Procedure Act.
Pursuant to s 194(1) of the Criminal Procedure Act, if the court does not accept an accused person's plea, the court must proceed to hear and determine the matter. The court must hear the prosecutor, any witnesses and other evidence of the prosecutor and must hear the accused person and any witnesses and other evidence of the accused person: s 194(2) of the Criminal Procedure Act.
Section 112(2) of the Crimes Act is a separate and distinct offence to the offence under s 112(1)(a) of the Crimes Act, with different elements and maximum penalty. Whereas an offence contrary to s 112(1)(a) requires the Crown to prove beyond a reasonable doubt that the accused broke into a dwelling and committed a serious indictable offence therein, an offence contrary to s 112(2) requires the Crown to prove an additional element, namely that the accused committed the offence under s 112(1)(a) “in circumstances of aggravation”. These are set out in s 105A of the Crimes Act, including as referred to above at [18]. An offence contrary to s 112(2) carries a greater maximum penalty (20 years) than an offence contrary to s 112(1)(a) (14 years).
The object of Chapter 5 of the Criminal Procedure Act is to require an indictable offence listed in Table 1 or Table 2 of Schedule 1 to it to be dealt with summarily in the Local Court unless a relevant election is made by the prosecutor or the person charged under s 258(a) or by the prosecutor under s 258(b). The provisions of Chapter 5 of the Act are directions to the Local Court for the exercise of its jurisdiction over proceedings brought before it: see R v Bartalesi*; R v Fragassi* (1997) 41 NSWLR 641; (1997) 93 A Crim R 274 in relation to similar provisions then in force. If no election is made, an indictable offence listed in Table 1 or 2 is to be dealt with summarily. There is no power to commit such an offence to the District Court of the Local Court’s own motion.
After 9 September 2025 the only offences before the Local Court were alleged contraventions of ss 61 and 112(1)(a) of the Crimes Act, described by sequences 5 and 6. The Local Court had jurisdiction to hear and determine those offences summarily, being offences listed in Table 1 and 2 of Schedule 1 to the Criminal Procedure Act. In the absence of any relevant election, the Local Court was required to deal with the offences as if they were summary offences: s 261 of the Criminal Procedure Act.
After 9 September 2025 there were no proceedings before the Local Court for an offence contrary to s 112(2) of the Crimes Act. Had the s 112(2) charge not been withdrawn, the Local Court would only have had jurisdiction to deal with it summarily if it met the description in cl 8A of Table 1 to Schedule 1 to the Criminal Procedure Act. However cl 8A had no relevance to the present case because after 9 September 2025 the plaintiff was not charged with an offence under s 112(2).
Accordingly, in considering the Local Court’s jurisdiction to deal summarily with an offence listed in cl 8 of Table 1 (such as the s 112(1)(a) offence), his Honour erred in concluding that the way in which the charge was averred was not determinative. Section 112(2) of the Crimes Act does not have the effect that “any offence pursuant to s 112(1)(a) which is committed in a circumstance of aggravation is by its nature and by the elements alone an aggravated offence”, such that the Magistrate was required to consider whether the material before the Local Court disclosed a circumstance of aggravation to determine whether he had jurisdiction.
The question of law alone identified above at [7] should be answered in the negative. The Local Court is not denied jurisdiction to deal summarily with an offence listed in cl 8 of Table 1 to Schedule 1 of the Criminal Procedure Act if the material placed before the Court discloses a circumstance of aggravation within the meaning of s 105A(1) of the Crimes Act.
For the above reasons, I made the following orders on 13 February 2026:
Leave to appeal granted.
Appeal allowed.
Order of Magistrate Thompson rejecting the plaintiff’s pleas of guilty set aside.
The matter is remitted to the Campbelltown Local Court for mention on 4 March 2026.
Plaintiff and first defendant to each pay their own costs.
Reasons are reserved.
**********
Bradley Reyter
Director of Public Prosecutions
(1981) 147 CLR 383
(2004) 217 CLR 198
(1997) 41 NSWLR 641
During the mention of the proceedings on 10 September 2025, the Local Court was informed that the matter was to remain in the Local Court, and assessments for sentencing or diversionary purposes were sought. The Magistrate (being the same Magistrate who later rejected the plea) raised concerns as to jurisdiction and expressed the view that the DPP had taken the wrong course. The legal representative of the plaintiff confirmed instructions to plead guilty to the common assault and s 112(1)(a) offences. The solicitor with carriage of the matter for the DPP was not in Court and the proceedings were adjourned to 17 September 2025. Minor changes to the statement of agreed facts were made following the Court appearance on 10 September 2025.
On 17 September 2025 the Magistrate confirmed that he was not accepting the pleas at this stage because of an issue as to jurisdiction, and that any argument about this would be had on another day. The proceedings were adjourned to 13 October 2025, and written submissions were filed on the plaintiff’s behalf in advance of that appearance.
On 13 October 2025 the legal representative of the DPP confirmed that she agreed with the submissions filed for the plaintiff explaining why the Court had jurisdiction to deal with both offences. It was submitted that if the facts disclosed more serious offending than the charges to which pleas were entered, this was a matter to be addressed at sentencing in accordance with The Queen v De Simoni (1981) 147 CLR 383 (“De S**imoni”). His Honour continued to express the view previously articulated that if the statement of agreed facts made out features which would be aggravating features of a break and enter offence, such as the infliction of corporal violence (Crimes Act, s 105A(1)(c)) or knowledge of people present in the premises (s 105A(1)(f)), this was a matter which deprived the Court of jurisdiction. His Honour raised the prospect of committing the matter himself to the District Court, and stated that the parties would have to resolve the matter.
His Honour raised an additional concern during the course of proceedings on 13 October 2025, which was that the property damaged had not been sufficiently particularised (although this had been sufficiently particularised, in his Honour’s view, by the next occasion). The Magistrate indicated that the damage had not been particularised sufficiently to accept the facts. It was stated that the property damaged was a front fence, which was not within the property, and kitchen drawers, and that bedrooms were ransacked, but what damage was occasioned was not particularised in the Court Attendance Notice or agreed facts. His Honour was informed by the parties that the facts for the reckless damage charge were still being negotiated. A statement of agreed facts dated 16 October 2025 included a new photograph which showed the damaged fence was within the premises. The transcript of the proceedings on 17 October 2025 indicate that the ransacking of bedrooms was additionally relied upon as damage caused by the plaintiff during the course of the break and enter offence, and his Honour indicated that the damage had been sufficiently particularised. His Honour’s judgment of 17 October 2025 states that the charge was by that date particularised as the damage to the fence, kitchen drawers, and the ransacking of the bedrooms.
On 17 October 2025 both parties adhered to their previous submissions that even if the facts supported the prospect of a more serious offence than the plaintiff was pleading to, that was a matter for sentence. After these further brief submissions his Honour gave reasons for judgment. The reasons included the following main aspects. His Honour set out the basis on which jurisdiction is conferred upon the Local Court. His Honour said:
In Table 1 of Schedule 1 of the Criminal Procedure Act, titled “Indictable offences that are to be dealt with summarily unless prosecutor or person charged elects otherwise”, clauses 8 and 8A are as follows:
The statement of agreed facts in existence at the time of the decision on 17 October 2025 was highly problematic, but this went to the sentencing process, not jurisdiction. It is a well-established principle of sentencing that a person cannot be sentenced for offences for which he or she has not been charged and convicted. This includes the prohibition against taking into account circumstances of aggravation that would have warranted a conviction for a more serious offence: De Simoni at 389 (“the De Simoni principle”).
I accept as correct the concession of the first defendant that in circumstances where the plaintiff’s only charge for breaking and entering the house was contrary to s 112(1)(a), the agreed facts and the particulars of sequences 5 and 6 potentially gave rise to a contravention of the De Simoni principle because they referred to damage to property that occurred after the occupant and his relative were present at the place where the offence was alleged to have been committed. As submitted for the first defendant, as at 17 October 2025 “the De Simoni principle required the Local Court to engage in a somewhat artificial sentencing process for the s 112(1)(a) offence. The Court was required to disregard the presence of Mr Hassan and Mr Almesraji at the place where the offence was alleged to be committed prior to the damage to the front fence (being the serious indictable offence) and the s 112(1)(a) offence was complete.”
Although, as Gibbs CJ acknowledged in De Simoni at 392, “a trial judge may be required, in sentencing, to take an artificially restricted view of the facts”, the degree of artificiality required by the statement of agreed facts as at 17 October 2025 placed an unnecessary burden on the Court. The Magistrate would have been required to state the aspects of the facts he was disregarding, or described the facts differently. When, at that stage, damage to the fence was being pressed by the DPP, there should simply have not been reference in the agreed facts to the occupant and his relative returning to the house before describing the damage, nor to them hearing items being apparently damaged. After describing the break and enter, the facts should simply have specified the property damaged while therein, before describing the fact that at some point the occupant returned and his relative arrived, then describing the common assault. Either by statement in the agreed facts, or by statement in Court from the DPP representative, it should have been made clear that the plaintiff was not to be sentenced on the basis that there were people in the house when he damaged property. This is because “where the Crown has charged the offender with, or has accepted a plea of guilty to, an offence less serious than the facts warrant, it cannot ask the judge to rely on the facts that would have rendered the offender liable to a more serious penalty”: De Simoni at 392.
It is apparent from the statements of agreed facts that there were other purposes for including some detail in the facts (which were suggestive of the plaintiff suffering from symptoms of mental confusion during his time in the house). However this is also something that could have been accommodated in the agreed facts without leaving such a difficult sentencing task for the Court.
The problem was substantially resolved by the reformulation of the particulars of charge and agreed facts by 26 November 2025. As submitted on behalf of the first defendant, in relation to sentencing in accordance with those documents, “the De Simoni principle required the Local Court to disregard the possibility that the damage to the bedroom wall occurred after Mr Hassan or Mr Almesraji arrived at the premises i.e. the Local Court should have proceeded to sentence on the basis that the damage to the wall occurred before Mr Hassan returned, as the facts did not establish beyond a reasonable doubt that the damage occurred after Mr Hassan returned home.” This was made sufficiently clear by the terms of the revised agreed facts and the statement of the representative of the DPP in Court on that occasion, referred to above at [22].
The Magistrate was understandably troubled by the spectre of the factual basis of the plea disclosing the commission by the plaintiff of a more serious offence than the one he was endeavouring to plead guilty to – and of which the Court had no jurisdiction to deal with. It was incumbent upon the parties to agree upon a statement of facts that was supported by the available evidence, acceptable to the plaintiff to admit to, and did not contravene the De Simoni principle.
However the De Simoni problems in the facts available at 17 October 2025 did not give rise to an absence of jurisdiction. Whether the material disclosed a circumstance of aggravation within the meaning of s 105A of the Crimes Act was irrelevant to the jurisdiction of the Local Court to hear and determine the s 112(1)(a) charge with which the plaintiff was charged and to which he wished to plead guilty. The only relevance of that material was that it was required to be dealt with by the Local Court in accordance with the De Simoni principle. As submitted for the first defendant, “The De Simoni issue did not constructively place the aggravated offence under s 112(2) before the Local Court such as to deny the Local Court jurisdiction.”
The inability of a Magistrate to reject a guilty plea because of the view that the material indicates that the accused person’s conduct warrants a more serious charge, including one that is outside the Local Court’s summary jurisdiction, is underscored by the obligation in s 194 of the Criminal Procedure Act for the Court to proceed to hear and determine the charge before the Court if the Court does not accept the guilty plea. That obligation is inconsistent with the course here taken of rejecting the plea and leaving it to the parties to reach a resolution acceptable to the Court. The DPP and the plaintiff had already done that which they were each exclusively, respectively, required to do: the DPP to determine the charges to be pressed and the plaintiff to determine how to plead to those charges: GAS v The Queen (2004) 217 CLR 198; SJK v The Queen at [28]-[29].