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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Case Title: Saipani v The Queen

Citation: [2021] ACTCA 5

Hearing Date: 19 February 2021

Decision Date: 19 February 2021

Reasons Date: 12 March 2021

Before: Burns, Loukas-Karlsson and Charlesworth JJ

Decision: See [7]

Catchwords: COURT OF APPEAL – APPEAL AGAINST CONVICTION – Multiple co-offenders – joint commission of aggravated burglary – consideration of nature of agreement – consideration of meaning of trespass – whether appellant required to be present for every physical element of joint offence – appeal refused COURT OF APPEAL – APPEAL AGAINST SENTENCE – Multiple co-offenders – whether sentence manifestly excessive – application of parity principle where appellant came to be sentenced on a more serious charge than those to which his co-offenders pleaded guilty – whether disparity engenders justifiable sense of grievance or injustice to objective bystander – consideration of parity principle and prosecutorial discretion – appeal granted

Legislation Cited: Crimes (Amendment) Act (No 4) 1985 (ACT) Crimes Act 1900 (ACT) Crimes Act 1958 (Vic) Criminal Code 2002 (ACT) ss 45A, 311 and 312 Criminal Code (Theft, Fraud, Bribery and Related Offences) Amendment Act 2004 (ACT) Supreme Court Act 1933 (ACT) s 37O Cases Cited: Barker v The Queen (1983) 153 CLR 338 Filippou v The Queen [2015] HCA 29; 256 CLR 47 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Hiron v The Queen [2018] NSWCCA 10 Ivory v The Queen [2014] NSWCCA 181 Libke v The Queen [2007] HCA 30; 230 CLR 559 Lowe v The Queen (1984) 154 CLR 606 M v The Queen (1994) 181 CLR 487 Newington v Windeyer (1985) 3 NSWLR 555 Pell v The Queen [2020] HCA 12; 94 ALJR 394 Texts Cited: Explanatory Statement, Crimes Amendment Ordinance (No 4) 1985 (ACT) Explanatory Statement, Criminal Code (Theft, Fraud, Bribery and Related Offences) Amendment Bill 2003 Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, ‘Chapter 3: Theft, Fraud, Bribery and Related Offences’ (December, 1995) Parties: Javarne Saipani (Appellant) The Queen (Respondent)

Representation: Counsel J Purnell SC (Appellant) R Christensen (Respondent)

Solicitors JDR Law (Appellant) ACT Director of Public Prosecutions (Respondent)

File Number: ACTCA 26 of 2020

Decisions under appeal: Court: Supreme Court of the ACT Before: Murrell CJ Date of Decision: 15 July 2020 Case Title: R v Saipani Citation: [2020] ACTSC 191 Court: Supreme Court of the ACT Before: Murrell CJ Date of Decision: 18 August 2020 Case Title: R v Saipani (No 2) Citation: [2020] ACTSC 228

THE COURT

1. The appellant, Javarne Saipani, was jointly charged with Ibrahim Kaddour and Kyle Butkovic (the co-offenders) on an indictment dated 11 June 2019 with one count alleging that on or about 5 November 2018 they entered or remained in a building, namely a unit in Lyneham (the unit), as trespassers with intent to commit an offence that involved causing harm, or threatening to cause harm, to anyone in the building, and at the time they were in company with each other and had an offensive weapon with them. To this charge the appellant and his two co-offenders entered pleas of not guilty.

2. The charge against the appellant and the co-offenders is referred to as a charge of aggravated burglary, and is an offence contrary to s 312 of the Criminal Code 2002 (ACT) (the Code). It carries a maximum penalty of 20 years’ imprisonment. As the name suggests, it is an aggravated form of the offence of burglary set out in s 311 of the Code. Those sections provide:

311 Burglary (1) A person commits an offence (burglary) if the person enters or remains in a building as a trespasser with intent— (a) to commit theft of any property in the building; or (b) to commit an offence that involves causing harm, or threatening to cause harm, to anyone in the building; or (c) to commit an offence in the building that— (i) involves causing damage to property; and (ii) is punishable by imprisonment for 5 years or longer. … (2) In subsection (1) (b) and (c), offence includes an offence against a Commonwealth law. (3) Absolute liability applies to subsection (1) (c) (ii). (4) For this section, a person is not a trespasser only because the person is permitted to enter or remain in the building— (a) for a purpose that is not the person’s intended purpose; or (b) because of fraud, misrepresentation or someone else’s mistake. (5) In this section: building includes the following: (a) a part of any building; (b) a mobile home or caravan; (c) a structure (whether or not moveable), vehicle, or vessel, that is used, designed or adapted for residential purposes. 312 Aggravated burglary A person commits an offence (aggravated burglary) if the person— (a) commits burglary in company with 1 or more people; or (b) commits burglary and, at the time of the burglary, has an offensive weapon with him or her.

3. The appellant and his co-offenders were jointly charged by virtue of s 45A of the Code, which provides:

45A Joint commission (1) A person is taken to have committed an offence if— (a) the person and at least 1 other person enter into an agreement to commit an offence; and (b) either— (i) an offence is committed in accordance with the agreement; or (ii) an offence is committed in the course of carrying out the agreement. (2) For subsection (1) (b) (i), an offence is committed in accordance with an agreement if— (a) the conduct of 1 or more parties in accordance with the agreement makes up the physical elements consisting of conduct of an offence (the joint offence) of the same type as the offence agreed to; and (b) to the extent that a physical element of the joint offence consists of a result of conduct—the result arises from the conduct engaged in; and (c) to the extent that a physical element of the joint offence consists of a circumstance—the conduct engaged in, or a result of the conduct engaged in, happens in the circumstance. (3) For subsection (1) (b) (ii), an offence is committed in the course of carrying out an agreement if a person is reckless about the commission of an offence (the joint offence) that another person in fact commits in the course of carrying out the agreement. (4) A person commits an offence because of this section only if the person and at least 1 other party to the agreement intend that an offence will be committed under the agreement. (5) An agreement— (a) may consist of a non-verbal understanding; and (b) may be entered into before, or at the same time as, the conduct making up any of the physical elements of the joint offence was engaged in. (6) A person must not be found guilty of an offence because of this section if, before the conduct making up any of the physical elements of the joint offence concerned was engaged in, the person— (a) ended the person’s involvement; and (b) took all reasonable steps to prevent the conduct from being engaged in. (7) A person may be found guilty of an offence because of this section even if— (a) another party to the agreement is not prosecuted or found guilty; or (b) the person was not present when any of the conduct making up the physical elements of the joint offence was engaged in. (8) Any special liability provisions that apply to the joint offence apply also for the purposes of deciding whether a person commits the offence because of the operation of this section. (9) To remove any doubt, if a person is taken to have committed an offence because of this section, the offence is punishable as if, apart from the operation of this section, the person had committed the offence.

4. The appellant and his co-offenders were scheduled to be tried in front of a jury in November 2019. Regrettably the appellant did not attend the trial as he was required to do. It is said that he travelled to New Zealand to attend the funeral of a close relative. Whatever the reason, the appellant did not attend and the trial of his co-offenders proceeded in his absence. The jury was not required to return verdicts on the charge of aggravated burglary because on the fourth day of the trial the Crown offered to accept pleas of guilty to lesser charges, being one charge of assault and one charge of possessing an offensive weapon with intent. The charge of assault carries a maximum penalty of two years’ imprisonment and that of possessing an offensive weapon with intent carries a maximum penalty of 12 months’ imprisonment. We were advised without demur by Senior Counsel for the appellant that the quality of the evidence in the trial was poor, such that it was considered forensically preferable by the Crown to accept pleas to the lesser charges than to risk the complete acquittal of the co-offenders. The co-offenders entered pleas of guilty to the lesser charges, were convicted and Good Behaviour Orders were imposed.

5. The Crown persisted with the charge of aggravated burglary against the appellant when he returned to the ACT. At the election of the appellant, the charge proceeded to trial before the primary judge without a jury. The primary judge convicted the appellant of aggravated burglary and sentenced him to two years and four months’ imprisonment, with a non-parole period of one year and two months.

6. The appellant appealed from his conviction and the sentence imposed, on the following grounds, as summarised from the Amended Notice of Appeal:

A) Conviction: (a) the verdict was unreasonable;

(b) the verdict cannot be supported by having regard to the evidence;

(c) the primary judge failed to take into account relevant matters;

(d) the primary judge took into account irrelevant matters;

(e) there was a miscarriage of justice as the evidence established:

(i) the appellant was not a trespasser;

(ii) he was not part of an agreement with Mr Butkovic or Mr Kaddour;

(iii) he apologised for being at the apartment;

(iv) he tried to prevent the complainant KM from being assaulted;

(v) he was not present when MC asked Mr Butkovic and Mr Kaddour to leave the premises;

(vi) he was invited to enter the premises by MC to smoke cannabis;

(vii) the appellant spent 90 per cent of the time whilst in the premises in the bedroom of the occupant DX with the door closed; and

(viii) the evidence was such that the primary judge should have entertained a reasonable doubt as to the appellant’s guilt.

B) Sentence:

(a) the sentence imposed was manifestly excessive and the primary judge failed to adequately apply the parity principle.

7. Shortly after hearing the appeal, we announced our decision that the appeal against conviction was refused, but that against sentence was upheld. We indicated that we would publish reasons at a later date. These are those reasons.

The conviction appeal – relevant principles

8. The appellant did not address each of the grounds of appeal separately. In his written submissions, Senior Counsel for the appellant identified the issue for determination on the conviction appeal as whether the verdict of the primary judge was unreasonable or cannot be supported having regard to the evidence, or whether the verdict invited a miscarriage of justice.

9. Pursuant to s 37O(2)(a) of the Supreme Court Act 1933 (ACT) this Court must allow an appeal against conviction if we consider that:

(i) the verdict of the [primary judge] should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence; or

(ii) the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law; or

(iii) on any other ground there was a miscarriage of justice.

10. This Court, however, retains a discretion pursuant to s 37O(3) to dismiss an appeal against conviction if we consider that: (a) the point raised by the appeal might be decided in favour of the appellant; but

(b) no substantial miscarriage of justice has actually occurred.

11. In an appeal from a conviction where it is asserted that a jury verdict is unsafe or unsatisfactory, the relevant test to be applied by an appellate court was authoritatively stated in M v The Queen (1994) 181 CLR 487 (M), where the majority (Mason CJ, Deane, Dawson and Toohey JJ) said, at 493:

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. (Footnotes omitted).

12. Later, at 494, the majority continued:

[I]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even when making full allowance for the advantages enjoyed by the jury, there is significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. (Footnotes omitted).

13. In separate judgments, Brennan and McHugh JJ preferred a formulation that an appeal court should only set aside a conviction on the basis that it is unsafe or unsatisfactory where a reasonable jury must have had a reasonable doubt about the accused’s guilt.

14. Subsequently, in Libke v The Queen [2007] HCA 30; 230 CLR 559, Hayne J (with whom Gleeson CJ and Heydon J agreed) said with regard to this test, at [113]:

[B]ut the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. (Footnotes omitted; emphasis in original).

15. These principles were recently reiterated in Pell v The Queen [2020] HCA 12; 94 ALJR 394, [44]. These principles also apply to an appeal from a verdict of guilty rendered by a judge sitting without a jury: Filippou v The Queen [2015] HCA 29; 256 CLR 47 (Filippou), [12].

16. In undertaking its task, an appellate court must conduct its own review of the evidence: M at 492. Gageler J held in Filippou at [83] that where no complaint is made about the finding of the trial judge:

[a]nd having arrived at its own conclusion on the evidence to the extent necessary to engage with the particular argument, the question for the Court of Criminal Appeal … will remain whether or not the Court of Criminal Appeal has a reasonable doubt about the ultimate finding of guilt which cannot be resolved by taking into account the trial judge’s advantage in seeing and hearing the evidence.

The primary judge’s findings

17. The primary judge’s findings of fact were not challenged by the appellant, with a few exceptions to which we will return. What was challenged were the conclusions drawn by the primary judge from the ascertained facts. The unit was a two bedroom unit in Lyneham, ACT. It was leased by MC, and she lived there with her partner, TE. Another male, DX, also lived there, sleeping in the second bedroom. He paid “rent” to MC. On the afternoon of 4 November 2018, an unsuccessful attempt was made by unknown persons to force entry to the unit through its front door, causing damage to the door such that it would not open. It is not alleged that the appellant or his co-offenders were involved. MC was alerted to this fact by police, and she subsequently telephoned a locksmith. While she was waiting for the locksmith, DX returned to the unit in the company of KM and FJ. KM was a friend of MC, and TE was an acquaintance of DX. FJ was a female that DX had met at a party a few days before 4 November 2018. The primary judge found that KM was “a drug user who enjoyed a reputation as a drug supplier”. When they arrived at the unit DX forced open the front door. FJ apparently went to DX’s bedroom and fell asleep. She was not called to give evidence at the appellant’s trial.

18. On the evening of 4 November 2018, the appellant was with his friends, the co-offenders. At some point during the evening, KM telephoned the appellant and told him he was at the unit, and gave the appellant the address. KM was apparently acquainted with the appellant, Mr Butkovic and Mr Kaddour, and the primary judge was satisfied that KM owed one or more of them money, although KM denied this.

19. The appellant and the co-offenders went to the unit to find KM. When they arrived at the unit, one of them knocked on the door. This was described as a “regular” knock. They brought with them two knives, a distinctive gold taser/baton and a blue strobe torch. The baton was in the possession of Mr Butkovic. The primary judge was unable to be satisfied to the requisite degree that the appellant was in possession of a weapon or that he knew that his co-offenders were armed with weapons.

20. MC and DX went to the front door, expecting to see the locksmith. One of the three co-offenders then shone an intense blue strobe light into their faces, temporarily blinding and frightening them. DX was pushed or stepped back into MC, injuring her ankle. MC did not invite the men into the unit, however when DX recovered from the effects of the strobe light, he recognised (or thought he recognised) the appellant, and said something like “hello, come in, let’s talk”. DX also said something like “I haven’t seen you for ages”. The primary judge concluded that it was likely that this invitation was issued before the appellant and his co-offenders entered the unit.

21. When they entered the unit, Mr Kaddour and Mr Butkovic immediately approached KM, who was intoxicated and asleep on a couch. They attempted to rouse him, yelling something like “where’s the money?” Mr Butkovic threatened KM with the gold baton/taser and swung it at DX. Either Mr Butkovic or Mr Kaddour punched DX to the side of his head causing significant swelling. The primary judge thought it was probably Mr Kaddour. The appellant was present when the co-accused demanded money from KM and when DX was assaulted.

(a) The appellant and the co-offenders entered into an agreement to enter the unit as trespassers with intent to harm or threaten harm to KM.

(b) The appellant and the co-offenders intended that an offence would be committed under the agreement.

(c) An offence of aggravated burglary was committed in accordance with the agreement in that:

(i) the conduct of one or more of the men involved entering the unit as a trespasser with intent to harm or threaten harm to KM; and

(ii) the conduct of one or more of the men involved being in company with one or more others while entering the unit; or

(iii) the conduct of one or more of the men involved having an offensive weapon with them while committing burglary (entering as a trespasser with intent); and

(iv) the conduct of one or more of the men was of the same type as the agreed offence.

27. The second pathway was expressed follows, at [13]:

(a) At the unit, the appellant and the co-offenders entered into an agreement to remain there as trespassers with intent to harm or threaten harm to KM. (b) The accused and the co-offenders intended that an offence would be committed under the agreement.

(c) An offence of aggravated burglary was committed in accordance with the agreement in that:

(i) the conduct of one or more of the men involved remaining in the unit as a trespasser with intent to harm or threaten harm to KM; and

(ii) the conduct of one or more of the men involved being in company with one or more others while remaining in the unit; or

(iii) the conduct of one or more of the men involved having an offensive weapon with them while committing burglary (remaining as a trespasser with intent); and

(iv) the conduct of one or more of the men was of the same type as the agreed offence.

28. In finding the appellant guilty of aggravated burglary, the primary judge adopted both the first and second pathways. The essential difference between the two pathways is that the first relies upon a finding that the offenders were party to an agreement to enter the unit as trespassers, while the second relies on a finding that the offenders were party to an agreement to remain in the unit as trespassers.

29. The primary judge made findings of relevance to both pathways. Her Honour was satisfied that the appellant and the co-offenders agreed to go together to the unit. That is not the subject of dispute on appeal. Her Honour was also satisfied that the appellant and the co-offenders went to the unit for the purpose of recovering money that KM owed to one or more of them. The primary judge was satisfied that it was part of the agreement that, if necessary, threats and/or force would be used to extract the money. Further, she concluded, it was “an implied part of the agreement that they would enter the premises and would remain there for as long as was necessary to extract the money from KM”.

30. With regard to the appellant’s involvement in the agreement, her Honour said at [282]:

I am satisfied that the [appellant] was party to the agreement. There was no legitimate reason for him to attend the premises in the company of the co-offenders. He was present when DX and MC were “blinded”. Immediately after the group entered, he witnessed the threats made to KM and the assault on DX and saw the baton/taser that was wielded by Mr Butkovic. Yet, he remained at the premises, never questioning what was occurring, and only later asking the co-offenders to “calm down”.

31. The primary judge was satisfied that an offence of aggravated burglary was committed in accordance with the identified agreement via the first pathway, as all three men entered the unit as trespassers “in that they did not have MC’s permission to enter”. Alternatively, her Honour said, if the three men had DX’s permission to enter and talk, “they did not have his permission to enter for the purpose of threatening and assaulting persons within the unit”. Her Honour then went on to say: “[f]urther, at least Mr Butkovic and Mr Kaddour remained in the unit as trespassers” because MC never gave them permission to remain on the premises. The primary judge concluded at [291]-[293]:

The circumstances permit no conclusion other than that, at the time of entry and while they continued to threaten and assault KM, Mr Butkovic and Mr Kaddour remained on the premises as trespasses with intent to harm or threaten harm to KM. In this endeavour, Mr Butkovic and Mr Kaddour were in the company of each other. In addition, each possessed an offensive weapon. Mr Butkovic possessed the baton/taser and Mr Kaddour possessed the knife, which he later offered to surrender to MC. The conduct of Mr Butkovic and Mr Kaddour constituted an aggravated robbery; it was conduct of the same type as the agreed offence. Verdict: The accused is guilty on the offence that, on 5 November 2018 with Kyle Butkovic and Ibrahim Kaddour, he entered or remained in a building, the unit, as a trespasser with intent to commit an offence that involved causing harm, or threatening to cause harm to someone in the building (KM), and at the time he was in company. (Emphasis added).

32. From the above, it emerges that the primary judge was satisfied beyond reasonable doubt that:

(a) the appellant was party to an agreement to enter the unit for the purpose of harming or threatening harm to someone in that building, being KM; and

(b) the appellant knew that he was in company with the co-offenders; and

(c) the appellant and co-offenders entered as trespassers because they did not have the permission of MC, the leaseholder, to enter. Alternatively, if they had the permission of DX to enter the unit, the appellant and the co-offenders did not have his permission to enter for the purpose they intended, being to harm or threaten harm to KM; or

(d) in the alternative to the above, it was part of the agreement between the appellant and the co-offenders that they would remain in the unit for as long as necessary to attain money from KM; and

(e) in furtherance of that agreement the co-offenders remained in the unit as trespassers because they did not have the permission of MC to remain on the premises (in fact, she had directed them to leave); and

(f) the conduct of the co-offenders while they remained in the unit as trespassers constituted an offence of aggravated robbery, which was conduct of an offence of the same type as the offence agreed to for the purposes of s 45A(2)(a) of the Code.

33. The appellant’s principal submission advanced on the hearing of the appeal was that the appellant and the co-offenders had not entered the unit as trespassers, and that the appellant, at least, had not remained in that unit as a trespasser as he was not present at the time MC directed Mr Butkovic and Mr Kaddour to leave. As part of this submission, the appellant argued that the evidence did not support the finding of the primary judge that the appellant had been party to an agreement to enter or remain in the unit as a trespasser. We will initially consider this second submission.

The alleged agreement

34. The appellant challenged the primary judge’s finding that he was party to an agreement to enter and remain upon the unit as trespassers with the intent required by the charge. The appellant challenged the reasons given by the primary judge for coming to this conclusion. He submitted that there was no evidence of most of the matters referred to by the primary judge, and that the primary judge had failed to consider some matters bearing upon this conclusion.

35. The appellant submitted that there was no evidence that he was with the co-offenders when one of them shone the strobe light into the eyes of MC and DX. It is true that because of the use of the strobe light immediately after the door was opened neither MC nor DX were able to say how many people were outside the front door when it was opened. There were, however, circumstances which would allow the inference to be drawn that the appellant was with the co-offenders when they knocked on the front door. First, it was not disputed that the appellant travelled with the co-offenders to the unit. Secondly, very shortly after the strobe light was used to blind MC and DX, the appellant entered the unit in the company of the co-offenders.

36. It was further submitted that there was no evidence that the appellant was present when his co-offenders assaulted DX and made threats to KM upon entering the unit. We do not accept this submission. On the evidence of Mr Butkovic, who gave evidence on behalf of the Crown at the appellant’s trial, and whose evidence was described by the primary judge as aligned with the appellant, all three men, being himself, Mr Kaddour and the appellant, were present at the front door. It was inherent in the appellant’s case at trial and in this appeal that he had not entered the unit as a trespasser because he was invited into the unit by DX while he, the appellant, was outside the front door. There was evidence that the appellant entered the unit with the co-offenders, and that the co-offenders went straight to KM and threatened him and that Mr Kaddour assaulted DX before DX went to his bedroom with the appellant. There was ample evidence upon which the primary judge could find that the appellant was present when these events occurred and must have witnessed them.

37. There was no evidence that the appellant expressed surprise or took exception to the actions of the co-offenders when they entered the premises. The admonition to the co-offenders by the appellant to “calm down” came later, and we would attach little weight to that in determining whether the appellant was party to an agreement of the nature found by the primary judge. To the extent that the appellant complains that the primary judge failed to take into account an apology directed towards MC by him, and his action in stopping the co-offenders further assaulting KM, these also occurred later in the evening and should be given little weight. There can be no doubt that all of the witnesses who were in the unit at the time of this incident were to some extent intoxicated by drugs or alcohol. This affected the quality of their recollection. There was sufficient consistency, however, to enable the primary judge to draw the conclusions that she did. Having reviewed the evidence we are satisfied that the reasons given by the primary judge for finding that the appellant was party to an agreement of the nature found by her Honour were both sound and cogent.

Were the appellant and/or the co-offenders trespassers when they entered the unit?

38. The concept of trespass, for the purpose of the offences of burglary and aggravated burglary, is not defined in the Code, which effectively picks up, and to some extent modifies, the law relating to the tort of trespass to land. Prior to the passing of the Crimes (Amendment) Act (No 4) 1985 (ACT) (the amending Act), crimes relating to unlawful entry of premises to commit an offence required proof of “breaking” and “entering”. As the Explanatory Statement to the amending Act noted, the concept of “breaking” was “a highly technical one”. The amending Act replaced these earlier offences with an offence of burglary, essentially in the same form as it is found in the present s 311(1) of the Code. The essence of the offence then, as now, was trespass by an offender with intent to commit an offence. The offence as inserted into the Crimes Act 1900 (ACT) (the Crimes Act) by the amending Act did not have an equivalent to sub-section (4) of the present s 311 of the Code.

39. While the law regarding the concept of “breaking” may have been technical, the law of trespass was also not without its difficulties. In Barker v The Queen (1983) 153 CLR 338 (Barker) some of these difficulties were exposed. In that case the appellant had been entrusted by his neighbour with a key to the neighbour’s house for the purpose of looking after the house while the neighbour was absent on holiday. While the neighbour was away the appellant entered the house and removed a number of items. The appellant was convicted of an offence of entering a building as a trespasser with intent to steal, contrary to s 76(1) of the Crimes Act 1958 (Vic). On appeal it was argued that he had not entered as a trespasser because he had the owner’s permission to enter the building. The majority (Mason, Brennan, Deane and Dawson JJ) held that the words “enters…as a trespasser” have their ordinary meaning at common law, with the consequence that an entry by the appellant for a purpose different from the terms of the licence given to him by the owner was a trespass. At 341–342 Mason J said:

[T]he essence of trespass by wrongful entry consists in an entry without right or authority by one person on to the land of another who is in possession … If the right or authority to enter is limited in scope then an entry which is unrelated to the right or authority will amount to a trespass…

40. Later, at 347–348, Mason J spoke of the need to closely analyse any invitation, or implied invitation, to enter the premises and the belief of any accused as to their right to enter the premises.

41. Similar statements were made by Brennan and Deane JJ in a joint judgment and by Dawson J. The appellant in Barker was therefore unsuccessful because his authority to enter his neighbour’s premises was not at large, but was for a specific purpose unconnected with the purpose for which he entered.

42. In a dissenting judgment, Murphy J expressed the view that the introduction into the criminal law of concepts of general or limited licences to enter premises was too metaphysical and had the potential to turn pilfering by cleaners, employees and shoplifters into burglary. In his judgment dismissing the appeal, Dawson J referred to the desirability of reforming the law at 372:

[T]respass is concerned with the physical violation of possessory rights and it would seem to do no harm to principle to say that there is no violation of possessory rights where the act which would otherwise constitute the violation is permitted even if it is done for a purpose other than the purpose for which the permission was granted…

43. In 2004, the offences of burglary and aggravated burglary were removed from the Crimes Act and placed in the Code by operation of the Criminal Code (Theft, Fraud, Bribery and Related Offences) Amendment Act 2004 (ACT). The new s 311 of the Criminal Code included sub-section (4). The reason for the inclusion of sub-section (4) is set out at length in the Explanatory Statement, Criminal Code (Theft, Fraud, Bribery and Related Offences) Amendment Bill 2003 (ACT) (the Explanatory Statement). The Explanatory Statement quotes with approval an extract from the 1995 report of the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General entitled “Theft, Fraud, Bribery and Related Offences” referring to the dissenting judgment of Murphy J in Barker and the comments of Dawson J quoted above at [42], before saying, at 23:

The Committee respectfully agrees with this view. In a case like Barker, it cannot be said that there has been a physical violation of the victim’s possessory rights to restrict entry: he agreed to the defendant being on his premises, though not for the purpose of theft. The sort of violation involved in entry without any permission – the essence of burglary – is lacking. This is even more true in the case of shop-lifting. To include such cases in burglary – a significantly more serious offence than theft – erodes the basis for the distinction between theft and burglary. Although at some point the law of theft has to resort to the refinements of the civil law, this should be minimised. Hence [subclause 311(4)] provides that if the defendant is permitted to enter a building for one purpose, the fact that he or she enters the premises for another purpose does not make him or her a trespasser. In these circumstances, the defendant will not be guilty of burglary but will be liable for any other offence committed (eg theft). This will not completely remove the need to go into the terms of a permission to enter in some cases. For instance, take the example of a cleaner who has permission to enter the premises on Mondays during the day to clean. If the cleaner entered on a Monday during the day but on this day intended to steal, by virtue of [subclause 311(4)] he or she would not be a trespasser. The offence would be theft, not burglary. On the other hand, if the entry was on Saturday, or on Monday at 11pm, he or she would be outside the terms of the permission to enter, would be a trespasser and would be guilty of burglary…

44. The effect of s 311(4) of the Code is to make irrelevant any divergence or lack of identity between the purpose for which an occupant permits entry and the purpose of the entrant for entering, namely, a purpose of committing the offences of burglary and aggravated burglary. The question for resolution becomes much simpler: was the entry the subject of an invitation or implied invitation by an occupant? Regrettably it appears that the primary judge’s attention was not drawn to the provisions of s 311(4), nor the material to which we have referred above.

45. To the extent that the primary judge found the offence proved on the basis that the appellant and the co-offenders had permission from DX, limited by purpose to talking with himself and/or other occupants but not to threaten or assault them, this was an error. The provisions of s 311(4) makes irrelevant the fact that the appellant and his co-offenders’ purpose for entering the unit differed from the purpose, even the express purpose, of DX when inviting them to enter.

46. The other basis expressed by the primary judge for concluding that the appellant and the co-offenders entered the unit as trespassers was that they had not been invited to enter by MC, the leaseholder. The suggestion inherent in that conclusion is that DX did not have the authority to issue the invitation to enter which the primary judge found that he did. We also consider this to be an error.

47. As Dawson J observed in Barker (see [42] above), trespass is concerned with the violation of possessory rights. For this reason, the owner of land may be liable in trespass to a tenant where possession of the land has passed to the tenant by lease. Possession does not require ownership: Newington v Windeyer (1985) 3 NSWLR 555. If trespass is concerned with possession or occupation of premises, it follows that there can be no trespass where a person in possession or occupation of the premises issues an invitation to enter. This must be so whether the inviter is entitled to sole possession of the premises or is a joint occupant or in joint possession.

48. In the present case, DX was in joint occupation of possession of the unit, or at least those parts of the unit which did not include the bedroom occupied by MC and TE. DX paid an occupation fee to MC, referred to by MC as “rent”, by virtue of which he was given a right to occupy the second bedroom and, inferentially, the common areas such as the kitchen and lounge. There was no suggestion that DX’s right of occupation was limited to preclude him issuing invitations to others to enter and be upon the unit. To the extent that the evidence before the primary judge was scant regarding the terms of DX’s occupation of the unit, this was a problem for the respondent. The onus was on the respondent to establish that the appellant entered the unit as a trespasser and in the circumstances of the evidence before the primary judge this required the respondent to establish, as a minimum, that the offenders had not been invited to enter the unit by someone occupying the unit.

The appeal against sentence

55. The sole ground of appeal against sentence pursued by the appellant was that the sentence imposed was manifestly excessive. It was part of this submission that the primary judge had misapplied the parity principle in sentencing the appellant.

56. The “parity principle” is a manifestation of the fundamental principle of equality before the law. As Gibbs CJ said in Lowe v The Queen (1984) 154 CLR 606 at 609 (Lowe): “[I]t is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence…”. As his Honour observed, however, other things are not always equal. There may, for example, be differences in degree of involvement of offenders in a joint offence, differences in their antecedents, and differences in the charges brought against them. The present case is primarily concerned with the application of the parity principle in circumstances where the appellant came to be sentenced on a more serious charge than those to which his co-offenders entered pleas of guilty.

57. In Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 (Green), the majority of the High Court (French CJ, Crennan and Kiefel JJ) said, at [28]:

“Equal justice” embodies the norm expressed in the term “equality before the law”. It is an aspect of the rule of law. It was characterised by Kelsen as “the principle of legality, of lawfulness, which is immanent in every legal order”. It has been called “the starting point of all other liberties”. It applies to the interpretation of statutes and thereby to the exercise of statutory powers. It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen: “Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant aspect. (Emphasis in original.) Consistency in the punishment of offences against the criminal law is “a reflection of the notion of equal justice” and “is a fundamental element in any rational and fair system of criminal justice”. It finds expression in the “parity principle” which requires that like offenders should be treated in a like manner. As with the norm of “equal justice”, which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances. (Footnotes omitted).

58. Later, at [30], and of particular relevance to this appeal, the majority said:

In Lowe v The Queen and in Postiglione v The Queen, this Court was concerned with the application of the parity principle to persons charged with the same offences arising out of the same criminal conduct or enterprise. Those decisions are not authority for the proposition that the principle applies only to persons so charged. The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application. Nevertheless, as Campbell JA recognised in Jimmy v The Queen, there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions. Those practical difficulties and limitations, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged. (Footnotes omitted).

59. In sentencing the appellant, the primary judge was cognisant of the need to consider parity between any sentence her Honour imposed on the appellant and those previously imposed on the co-offenders. Her Honour noted that the co-offenders were sentenced for lesser offences and on the basis of agreed facts suggesting a significantly lesser involvement by the co-offenders than the facts found by her Honour. Her Honour said at [50]:

[T]hey were sentenced for discrete and relatively minor acts, and on the basis of substantially less serious general facts. On the other hand, on the facts established at the trial, the offender’s role was less than that of his co-offenders, who used weapons and committed acts of violence. The subjective circumstances of the co-offenders were similar to those of the offender, except that Mr Kaddour was on conditional liberty in the community, an aggravating feature.

60. After referring to Green, the primary judge made reference to the decision of the New South Wales Court of Criminal Appeal in Hiron v The Queen [2018] NSWCCA 10 (Hiron), where an appeal against sentence on parity grounds was dismissed because the Court considered the disparity between the sentence imposed on the appellant Hiron and that imposed on his co-offender was explicable on the basis of “differences between the offences for which each of them was to be sentenced, their objective roles and their subjective circumstances”: [54].

61. The primary judge concluded, at [56]:

Taking into account the above considerations relating to the parity principle, I will impose a sentence and non-parole period that I consider to be appropriate to the objective criminality of the offence of aggravated burglary and the offender’s subjective circumstances, but which is slightly lower than that which I would have imposed, but for considerations of parity.

62. No exception can be stated to the primary judge’s recitation of the relevant principles. We observe in passing, however, that the decision in Hiron is of little assistance because of the difference in factual circumstances between it and the appellant’s case. Hiron was sentenced to a significantly more severe sentence than his co-offender, but in circumstances where Hiron was the principal offender and had brought the knife to the scene of the offence. It is apparent from the facts outlined by the Court of Criminal Appeal that the involvement of the co-offender was such that he could not be charged with the same offence as Hiron.

63. In the present case, the appellant and the co-offenders were initially all charged with the same offence. When the case against the co-offenders appeared to be unravelling at trial, the Crown accepted pleas to lesser charges and did not oppose the imposition of Good Behaviour Orders. No criticism of the Crown can be made for those decisions, but it is clear from the way in which the appellant’s trial was conducted that the Crown had not deviated from its position that the conduct of the co-offenders was such as to constitute the offence of aggravated burglary. In other words, the Crown’s acceptance of pleas by the co-offenders to lesser charges was not based upon a determination by the Crown that the co-offender’s conduct did not support the original charge, or that they were involved to a lesser extent than the appellant.

64. The test to be applied in determining a ground of appeal alleging impermissible disparity between sentences imposed on co-offenders is whether, objectively, the offender has a justifiable sense of grievance because of the disparity in sentencing: Lowe at 610 per Gibbs CJ and 613 – 614 per Mason J. The question is not whether the appellant feels a sense of grievance because of the disparity, but whether it would engender a justifiable sense of grievance or injustice to “that impassive representative of the community, the objective bystander”: 613 per Mason J.

65. In the present appeal, the Court has not been invited to examine the exercise of prosecutorial discretion to determine which charges to lay against co-offenders, as in Ivory v The Queen [2014] NSWCCA 181. We accept that it is a matter entirely for the Director of Public Prosecutions to determine what charge or charges will be laid against an individual co-offender. If it is accepted, however, that the parity principle applies where co-offenders are charged with different offences of varying degrees of seriousness arising out of the one incident, it follows that in applying the principle a court must, to some extent, have regard to the relative culpability of the co-offenders as asserted by the Crown in the proceeding in which the principle has application. That is not to say that any difference in the seriousness of the respective charges is to be ignored, simply that the relative culpability of the offenders as asserted by the Crown, or found by the sentencing judge, is a relevant factor in applying the parity principle. Where an offender is convicted of a more serious offence than their co-offenders, this will usually warrant the imposition of a more severe punishment. Consideration of the relative culpability of the offenders as asserted by the Crown or found by the sentencing judge is a factor in determining the extent to which the punishment should be more severe.

I certify that the preceding sixty-eight [68] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Burns and their Honours Justice Loukas-Karlsson and Justice Charlesworth.

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