22 This Court does not have the advantage of a transcript of the submissions by counsel. However, immediately counsel completed their submissions, his Honour delivered judgment and proceeded to sentence the applicant.
23 The transcript of his Honour's remarks on sentence discloses that he resolved the dispute as to whether the jewellery was or was not stolen as follows: -
"The case that what was stolen was the jewellery is a circumstantial case. It is a strong circumstantial case, because of the finding of the fingerprint on the ammunition box. But nevertheless, if there is an alternative hypothesis consistent with the innocence of the accused, then I cannot find those facts beyond reasonable doubt. I certainly have a reasonable suspicion that was the case, but I cannot find those facts proved to that standard. So for that reason the sentence I impose, although it will be a long one, is not as long as it would be if I had found as a fact that Mr Radic had stolen the jewellery.
It is clear from Mr Biyik's evidence that there was a period of about a week during which the jewellery could have been stolen, and it is not impossible that someone else could have broken in. The evidence about the way in which the lock had been removed and replaced which Mr Biyik gave is not consistent with that given by Mr Radic, and I think I would have to prefer Mr Biyik's evidence.
However, the evidence of Mr Radic's sister that he borrowed money to go to Melbourne, the fact that he was only in Melbourne for two days because his mother saw him on the Tuesday, suggests to me that he did not have the jewellery with him and that he would not have borrowed money had he stolen the jewellery and disposed of it." [My emphasis]
24 His Honour then proceeded to sentence the applicant as follows:
"However, he has pleaded guilty to the offence, and for that he will be sentenced to imprisonment for a term of three years and four months with a non-parole period of two years and six months. The sentence will commence on 27 April of this year and expire on 26 August 2003. The non-parole period will expire on 25 October 2002, and on that date he will be eligible for release on parole. There are no special circumstances." [My emphasis].
25 Interestingly, his Honour does not state that he was satisfied beyond reasonable doubt that it was a drill which had been stolen by the applicant. Of course, it does not follow that because his Honour was not satisfied beyond reasonable doubt that the jewellery was stolen that it necessarily followed that his Honour was satisfied beyond reasonable doubt that the drill had been stolen. This simple proposition demonstrates the dilemma with which his Honour was faced.
26 Prior to sentencing the applicant his Honour did not give the parties the opportunity of making submissions as to the consequences which flowed from his rejection of the Crown case that the applicant had stolen the jewellery alleged. Although the assumption is an unsatisfactory one, this Court is left with no option but to assume that his Honour sentenced on the basis that a drill was stolen.
27 The written submissions on behalf of the applicant, dated 6 April 2001, were based upon two fundamental contentions, firstly, that the sentencing Judge erroneously believed that at the time of the offence the applicant was on parole, and secondly, that the sentence was manifestly excessive in the circumstances. One circumstance that was particularly relied upon was that as the drill was obviously of small value, the matter was appropriately one for the Local Court.
28 The written submissions by the Crown, dated 1 May 2001, focused solely upon the points raised in the applicant's written submissions. When this matter originally came before Badgery-Parker AJ and myself sitting as a two Judge Bench, on 7 May 2001, the Court drew the parties' attention to the concern that there was an apparent irregularity in the manner in which these proceedings had been conducted, and seeking submissions as to the consequences of such irregularity insofar as this Court was concerned. The matter was then stood over until 18May 2001 to enable the parties to give consideration to the matters raised by the Court. For this purpose a three Judge Bench was constituted, presided over by Hidden J. Having received further submissions from the parties and taken fresh evidence, the Court reserved its decision. Specifically, it should be noted that the applicant did not seek leave to appeal against the conviction.
29 The circumstances under which this matter was dealt with at first instance raise important questions for the due administration of the criminal justice system of this State, and therefore are required to be addressed. The focal point for consideration is s 51A which deals with the effect of a plea of guilty in committal proceedings. Section 51A was added to the Justices Act by the Crimes (Amendment) Act 1955, to enable an accused person to enter a plea of guilty before the Magistrate to an indictable offence whereas previously such a plea could only be entered after arraignment before the Central Criminal Court or the Court of Quarter Sessions (now the District Court Criminal Jurisdiction): see R v Paauwe [1970] 3 N.S.W.R. 131 at 133.
30 It is important to remember that a plea of guilty is a solemn matter; it has two effects: first of all it is a confession of fact; secondly, it is such a confession that without further evidence the Court is entitled to, and indeed in all proper circumstances will so act upon it, that it results in a conviction: see R v Bamford (1972) 2 NSWLR 261 at 263. Thus the plea admits those matters which are of the essence of the charge. A plea of guilty does not, however, admit non-essential ingredients of the offence: see R v O'Neill (1979) 2 NSWLR 582 at 588.
31 The question must be asked then, as to the effect of the guilty plea by the present applicant before the learned Magistrate.
32 There can be no doubt that a charge under s 112(1) of the Crimes Act, which relies upon stealing as the indictable offence, must identify specific property which is alleged to have been stolen. The importance of this requirement is evident from a number of cases, discussed in Archbold, Criminal Evidence and Practice [2001] at para 21-56. Reference may be made to Lacis v Cashmarts [1969] 2 QB 400; R v Tideswell [1905] 2 KB 273 and Pilgram v Rice-Smith 65 Cr. App. R 142.
33 A helpful statement of general principle is to be found in R v VHP (Unreported NSWCCA 7 July 1997) where this Court was concerned with whether the Crown had made the date of the alleged offence in a charge of sexual assault of the essence, or to put it another way, an essential ingredient of the offence. Gleeson CJ (with whom Handley JA and Studdert J agreed) stated: -
"As a general rule, what the Crown needs to establish in order to obtain a conviction are the essential facts alleged in the indictment, and if the Crown fails to establish an inessential fact, or a particular which has been provided before the trial, or which emerged from the evidence of Crown witnesses, that is not fatal. However, that generalisation may, in any given case, need to be qualified. Two examples of possible qualifications are of present relevance. First, in some circumstances the requirements of procedural or substantive fairness may restrict the capacity of the Crown to depart from particulars. Second, the evidence in a case may be such that it would not be open to a jury, acting reasonably, to treat one part of the Crown case as reliable, and another part as unreliable.
The general rule was stated by Atkin J in Reg v Dossi (1918) 13 Cr App R 158 at 159-160 in the following terms:
From time immemorial a date specified in an indictment has never been a material matter unless it is actually an essential part of the alleged offence…Thus, though the date of the offence should be alleged in the indictment, it has never been necessary that it should be laid according to truth unless time is of the essence of the offence.
There are, however, many examples of cases in which it has been held that time has been made of the essence of the offence, or, to use another expression adopted by judges, has been made vital, by reason of circumstances which give rise to qualifications of the kind mentioned above. (e.g. The King v Dean [1932} NZLR 753, R v Kringle [1953] Tas SR 52, R v Pfitzner (1976) 15 SASR 171, R v Macdonald (1996) 84 A Crim R 508, R v Westerman (1991) 55 A Crim R 353)."
34 In the light of the authorities, the particularisation of the jewellery allegedly stolen by the present applicant was of the essence of the offence. This did not mean that if the matter went to trial the Crown would be required to prove that each item in the particulars was stolen; it would be sufficient for the Crown to prove that at least one item was stolen: See R v Hancock [1996] 2 Crim App R 554. Such particulars contained no reference to a drill and, indeed, the evidence available to the Crown, and led by the Crown, was that there was no drill present in the storeroom when it was broken into by the applicant.
35 It is necessary then to consider with care the provisions of s 51A of the Justices Act. It is not to be thought that these provisions are merely of a procedural nature. They provide the accused person with substantive rights and invest Justices and Judges with significant obligations and discretions directed towards the due administration of the criminal law and the protection of the accused person. In the instant case the learned Magistrate committed the applicant for sentence pursuant to para (d) of ss (1).
36 There is no provision in s 51A for the accused to be asked when he or she appears in the District Court or in the Supreme Court whether he or she adheres to the plea of guilty. However, this Court has noted that it is common practice and, indeed, it is a desirable practice, that when the matter comes before a Judge, the accused should be asked whether he or she adheres to the plea, thereby affording him or her an opportunity of exercising the right to change it: see R v Anthony Lawrence Gibson (Unreported, NSWCCA 19 March 1987).
37 In the present case the judge appropriately inquired whether the applicant adhered to his plea of guilty and received a reply in the affirmative. However a clear difficulty arose when the applicant's counsel indicated that he denied stealing the property particularized in the charge.
38 A number of alternatives were available once the applicant had indicated that he denied stealing the property particularized in the charge. The Crown prosecutor may have requested the Judge to remit the matter to the committing Justice. The Judge, of his own motion, may have ordered that the matter be remitted: see subpara (i) of para (d). Alternatively, under sub para (ii) the Judge may have refused to accept the plea, directed that a plea of not guilty be entered, and that the matter proceed to trial. Regrettably, however, his Honour and the parties adopted a course which was not authorized by s 51A, which section exhaustively set out the courses which were available to the Court in the circumstances. This irregularity created difficulties for the sentencing Judge with consequent difficulties for this Court. One significant criticism of the course which was adopted was that it effectively took the conduct of the prosecution out of the hands of the Crown. It was for the Crown, and not the applicant, to nominate the goods which were alleged to be stolen from the subject premises.
39 Although (somewhat surprisingly) the applicant received a favourable finding in relation to the property allegedly stolen, he nevertheless complains that the sentence which he received was excessive. He complains (inter alia) that it was excessive in light of the property which he contends was stolen from the subject premises, namely one drill. The applicant declines to appeal against the conviction. Thus the conviction must stand. This Court has no power to set it aside of its own motion, even if it were minded to do so: see R v Burns (1920) 20 SR 351, which emphasises the restricted jurisdiction of this Court. See also R v Saxon (Unreported, NSWCCA 21 April 1998).
40 I turn then to the question whether the applicant has satisfied this Court that it should intervene on the issue of sentence. The applicant was born on 7 January 1975, and was accordingly 25 years old at the time of the commission of the offence.
41 He is addicted to heroin and has a criminal record embracing a variety of offences dating back to February 1994, when he was 19 years of age. He has prior convictions for the offence of break, enter and steal.
42 Certain aspects of the prior criminal record require attention. On 14 July 1999, the applicant was sentenced by the Wollongong Local Court, in relation to the offence of break, enter and steal, to a minimum term of 9 months imprisonment commencing on 14 July 1999 and expiring on 13 April 2000, with an additional term of 3 months. The record before his Honour states that such sentence was "appealed".
43 On 27 August 1999, at the Wagga Wagga Local Court, the applicant was sentenced in relation to the offence of break, enter and steal, to a minimum term of 12 months imprisonment commencing on 28 May 1999, and expiring on 27 May 2000, with an additional term of 4 months. Again, the record contains the notation "appealed".
44 During the course of his Honour's remarks on sentence, the following exchange took place: -
"HIS HONOUR: Mr Radic has had a problem with heroin for some time and he has a lengthy record, including a number of break, enter and steal offences. He was in fact on parole for a similar offence when this offence was committed. Am I correct, Mr --
DIGGINS: I understand he's on bail on appeal to the District Court.
HIS HONOUR: I think he is also on parole . How long has he been in custody?
DIGGINS: 27 April.
ROGERS: That's my understanding as well, your Honour.
HIS HONOUR: Yes. I am just looking at the record and I see that there are a number of offences, but they include offences of violence, a breach of recognisance, breach of Community Service Order, malicious damage, dispose of stolen property, goods in custody on a number of occasions and I think three previous break, enter and steal offences." [My emphasis].