R v Stewart

The applicant made no reply and was arrested and thereafter remained in custody. 12 It should also be pointed out that the issue of the term of imprisonment for the breach of s.527C was a matter that was raised in evidence during the sentencing hearing but was not the subject of submission by Counsel for the defence and was not a factor taken into account by his Honour in sentencing. 13 That evidence was in the following terms: "Q: Now the first offence, which was the January 2003 offence, that place owned by [the first victim], you went there with another person who knew the contents? A: Yes. Q: I think he was related to [the first victim], is that right? A: Yes. Q: And you assisted him, is that right? A: Yes. Q: You were charged later with goods in custody in respect of some of the items that were found on you, I think some watches? A: Yes. Q: Is that all you got out of it? A: Yes. Q: So from the long list that was stolen, what did you actually acquire as a result of that break and enter? A: What the police officers caught me with, what I got charged for, goods in custody. Q: Which was watches? A: Yeah. Q: And what did you plan to use that for, those watches? A: I got them to go and swap heroin for them." 14 Section 112(1) of the Crimes Act 1900 relevantly provides: "(1) Whosoever: … breaks and enters any dwelling house … and commits any serious indictable offence therein … shall be liable to imprisonment for 14 years." 15 Section 527C(1)(a) of the Crimes Act 1900 provides, relevantly: "(1) Any person who: (a) has any thing in his or her custody … which thing may be reasonably suspected of being stolen or otherwise unlawfully obtained, is liable on conviction before a Local Court … to imprisonment for 6 months, or to a fine of 5 penalty units, or both." 16 While hypothetically it may be possible to commit a break enter and steal and not have goods in custody shortly thereafter, it is invariably the case that any person that is guilty of a break and enter and steal will at least for some short time have goods in custody: cf R v Carter (Court of Criminal Appeal, 9 March 1978) 4 Petty Sessions Review 1859 in which this Court discusses whether the Crown can be forced to charge for the more serious offence instead of the less serious one. The applicant was arrested on the day of the break, enter and steal offence and charged, convicted and sentenced for the offence under s.527C. The applicant spent, as already outlined, 3 months in gaol for that offence. 17 A complicating factor in the assessment of the circumstances of the applicant is that the sentence imposed for the contravention of s.527C was served concurrently with other offences. 18 The issue raised on appeal is that by not taking account of the three months served for goods in custody in the sentence imposed for the break enter and steal, the sentencing judge has effectively punished the applicant twice for the same offence or, more accurately, for overlapping criminal conduct. 19 In Pearce v The Queen (1998) 194 CLR 610 at 614, McHugh, Hayne and Callinan JJ said: "[11] First, as the range of crimes and punishments for crime has expanded, it has become apparent that a single series of events can give rise to several different criminal offences to which different penalties attach. [12] Secondly, it has been recognised that an offender should be punished only for the offence with which he or she was charged, and not for some offence or version of the offence not charged. [13] Thirdly, and as a corollary to the second matter we have mentioned, prosecuting authorities have sought to frame charges against an accused that will reflect all of that accused's criminal conduct and thus enable the imposition of punishment that will truly reflect the criminality of the conduct." 20 Their Honours thereafter considered the different stages in the process of criminal justice at which issues of double jeopardy arise. They were broadly categorised as double prosecution and double punishment. In relation to a double prosecution the High Court discussed the availability of a plea in bar and of a stay of proceedings. 21 It is not suggested, in this appeal, that because of the conviction and sentencing for goods in custody, it was impermissible for the applicant to have been charged and convicted with the break enter and steal which gave rise to his possession of the goods. However, if the charges had been heard together, or the charge for break enter and steal had been processed before the charge for goods in custody, there may well have been an arguable case that the charge for goods in custody could not proceed because all of the criminality associated with the possession of the goods was encompassed within the criminality associated with the break enter and steal. It is unnecessary for the Court to deal with whether or not there would or could be a successful stay, or a remedy based upon autrefois convict or a plea in bar. 22 The joint judgment in Pearce, supra, said: "[40] To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way which means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history rather than according to their just deserts. [41] In the present case we need not decide whether this result is properly to be characterised as good sentencing practice or as a positive rule of law. There is nothing … which suggests that Parliament intended that an offender such as the appellant should be twice punished for [common elements of two offences]. … [42] … The identification of a single act as common to two offences may not always be … straightforward. It should, however, be emphasised that the inquiry is not to be attended by 'excessive subtleties and refinements'. It should be approached as a matter of common sense, not as a matter of semantics." 23 The Crown seeks to rely on two bases, in its written submissions, to avoid the consequences of the application of the above principles to the situation of the applicant. Those two bases are firstly, that it would have been possible to define the charges in a way which confined the break enter and steal to jewellery, other than the watches that were found in the possession of the applicant and gave rise to the goods in custody charge. The second basis was the application of the principles in s.6(3) of the Criminal Appeal Act 1912. 24 The short answer to the first basis raised by the Crown is that, in fact, the charges were not so framed. The watches in the possession of the applicant which form the basis of the charge of goods in custody were also included in the charge for break enter and steal. Moreover, even if the prosecution proceeded in the manner suggested by the Crown as a possibility, the principles in Pearce are not so easily overcome. 25 As to the second basis relied upon by the Crown, it relies upon this Court coming to a view that the sentence imposed below was not incorrect. The Crown relies upon a passage from R v Boulghourgian (2001) 125 A Crim R 540 in which Spigelman CJ said at [34]: "Even though there is error detected in the reasoning process of a trial judge, s.6(3) does not enable this Court, much less require it, to interfere with a sentence unless it is of the view that a more lenient sentence should have been passed."