STANFORD, Andrew James v R

R v Boyce (1954) 38 Crim App R 111 R v Brown (1799) 2 East PC 487 R v Chandler [1913] 1 KB 125 R v Galea (1989) 46 A Crim R 158 R v Hyams (1836) 7 C & P 441 CASES CITED: R v Johnson and Jones (1841) Car & M 218 R v Lackey [1954] Crim LR 57 R v Russell (1833) 1 Mood CC 377 R v Sing [2002] NSWCCA 20; 54 NSWLR 31 R v Smith (1827) 1 Mood 178 R v Walker (1978) 19 SASR 532

PARTIES: Andrew James Stanford (Applicant) Regina (Respondent)

COUNSEL: H Dhanji (Applicant) T Thorpe (Respondent)

SOLICITORS: Legal Aid Commission (Applicant) Director of Public Prosecutions (Respondent)

IN THE COURT OF CRIMINAL APPEAL 2006/5102

GROVE J HULME J SIMPSON J

20 DECEMBER 2007 Andrew James STANFORD v R Judgment 1 GROVE J: I agree with the orders proposed by Simpson J for the reasons which she has given. 2 HULME J: I agree with Simpson J. 3 SIMPSON J: On 23 February 2006, in the Coffs Harbour District Court, the appellant was arraigned on an indictment that contained two counts, presented in the alternative. It is necessary to set out in full the terms of the indictment. They were that the appellant: "1A On 1 November 2004 at Sawtell in the State of New South Wales did break and enter a pavilion, namely Sawtell Bowling and Recreation Club, Sawtell, and did commit a serious indictable offence therein namely stealing, at the time being in company with Dudley Ian Shaw, being armed with an offensive weapon and inflicting grievous bodily harm upon Wayne Richard Dennett.

1B On 1 November 2004 at Sawtell in the State of New South Wales did break and enter a pavilion, namely Sawtell Bowling and Recreation Club, Sawtell, and did commit a serious indictable offence therein namely stealing, at the time being in company with Dudley Ian Shaw." 4 On 7 March 2006, after the close of the Crown case, and with the consent of the then counsel for the appellant, the trial judge (McLoughlin DCJ) granted leave to amend each count in the indictment by substituting the words "on or about" for the word "on", thus broadening the allegation as to the date of the offence. 5 The appellant entered a plea of not guilty to each count. On 10 March the jury returned a verdict of guilty on the first count. The appellant was sentenced to imprisonment for 10 years with a non-parole period of 6 years to commence on 26 February 2006. He now appeals against the conviction and seeks leave to appeal against the sentence. 6 The Crown concedes that, at least in part, the appeal against conviction must succeed, and, accordingly, that leave to appeal against sentence ought to be granted, and that appeal also ought to be allowed. It will be necessary to explain the basis for this concession. It will also be necessary to deal with other grounds of appeal which, if made good, would result in a greater degree of success to the appellant than the Crown concedes.

The Crown case 7 It is convenient to begin with an outline of the Crown case. Because of the limited area of the grounds of appeal that can be done relatively succinctly, although it will be necessary in due course to examine more closely some of the evidence in the Crown case. For present purposes it is sufficient to say the following. The Crown case was that, sometime prior to 1 November 2004, the appellant and Dudley Shaw reached an agreement unlawfully to enter the Sawtell Bowling and Recreation Club (to which I will refer simply as "the Club") and steal money, either by stealing an Automatic Teller Machine, or its contents, and money from poker machines and a safe. Sometime earlier they had, in fact, investigated the possibility of obtaining access to the ATM from underneath the Club floor but had been unable to achieve this. 8 They therefore agreed that, on a Sunday evening (the timing selected in order to maximise the potential gain) they would enter the Club and either remove the ATM or obtain the money it contained, and also to remove money from poker machines and a safe. They proposed to do this at a time when they knew a cleaner would be present in the Club. Their intention was to disable him by tying him up. An important part of the arrangement was that access would be gained through a window which would, prior to their entry, have been left partly opened. Sunday, 31 October was chosen for the enterprise. On that evening the two men, in company with another (Shane Whitehouse) travelled to the Club and waited for the arrival of the cleaner. When he arrived, Shaw gained access to the Club through a window. He was carrying a crowbar. He entered the bar area and noticed that the cleaner had placed his wallet on the bar. He extracted $30 from it. The cleaner walked past him. Mr Shaw jumped up and swung the crowbar at him causing injuries so severe as to result in the loss of an eye. 9 Shaw left the Club and joined the appellant, who had remained outside. The only proceeds of the exercise was the $30 stolen from the cleaner's wallet. 10 It can be seen from the above that the Crown did not allege that the appellant was the actual perpetrator of the breaking, entering, and stealing, or the infliction of grievous bodily harm upon the victim, Mr Dennett. Nor did it allege that he was personally armed with "an offensive weapon". In order to fix the appellant with liability for these acts, all of which it attributed to Shaw, it relied upon the principle of joint criminal enterprise.

Grounds of appeal 11 The grounds of appeal are framed as follows: "1. The conviction is unreasonable and cannot be supported having regard to the evidence.

2. The learned trial judge erred in failing to direct the jury to return a verdict of not guilty with respect to both counts in the indictment in accordance with the application of the appellant made at the close of the Crown case.

3. A miscarriage of justice was occasioned as a result of the trial judge's directions with respect to joint criminal enterprise in that: (a) the trial judge directed the jury to the effect that the appellant was liable for acts committed by the co-offender which were not contemplated by the appellant; and

(b) the trial judge failed to direct the jury that the appellant must have contemplated that the co-offender would inflict grievous bodily harm on the victim with the requisite intent.

4. The learned sentencing judge erred in sentencing the appellant on the basis that he had been convicted of the offence of specially aggravated break, enter and steal contrary to s 112(3), Crimes Act, 1900.

5. The learned sentencing judge failed to give effect to the mitigatory circumstances relevant to the sentence to be imposed on the appellant."

The Crown concession 12 The Crown concession is not directly related to any of the grounds of appeal against conviction. I will therefore deal with it as a separate issue. The back of the indictment contains the following note: "INDICTMENT for

Specially aggravated break, enter and commit serious indictable offence

Aggravated break, enter and commit serious indictable office

…" 13 That is, the first count on the indictment purported to have been brought under s 112(3) of the Crimes Act 1900; a second, alternative, count was brought under s 112(2) of the Crimes Act 1900. Section 112 of the Crimes Act is relevantly in the following terms: " 112 Breaking etc into any house etc and committing serious indictable offence (1) Whosoever: breaks and enters any … pavilion … and commits any serious indictable offence therein … shall be liable to imprisonment for fourteen years. (2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years. (3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (2) in circumstances of special aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 25 years." 14 "Circumstances of aggravation" and "circumstances of special aggravation" are defined in s 105A of the Crimes Act, relevantly as follows: "105A(1) …

' circumstances of aggravation ' means circumstances involving any one or more of the following:

(a) the alleged offender is armed with an offensive weapon, or instrument;

(b) the alleged offender is in the company of another person or persons;

(c) the alleged offender uses corporal violence on any person;

(d) the alleged offender maliciously inflicts actual bodily harm on any person;

(e) the alleged offender deprives any person of his or her liberty;

(f) 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.

' circumstances of special aggravation ' means circumstances involving either or both of the following:

(a) the alleged offender wounds or maliciously inflicts grievous bodily harm on any person;

(b) the alleged offender is armed with a dangerous weapon." 15 A "serious indictable offence" is defined in s 4 as an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more; by s 117 the offence of larceny (stealing) is punishable by imprisonment for 5 years. It is therefore a "serious indictable offence". A "dangerous weapon" is defined in s 4 as: "(a) a firearm (within the meaning of the Firearms Act 1996 ), or (b) a prohibited weapon within the meaning of the Weapons Prohibition Act 1998 , or (c) a spear gun." 16 An "offensive weapon or instrument" is defined as: "(a) a dangerous weapon, or (b) any thing that is made or adapted for offensive purposes, or (c) any thing that, in the circumstances, is used, intended for use or threatened to be used for offensive purposes, whether or not it is ordinarily used for offensive purposes or is capable of causing harm." 17 The trial proceeded on the basis that count 1A was an allegation of the specially aggravated offence. This is apparent, if from nothing else, from the opening remarks on sentence of the judge, in which he stated that the maximum penalty applicable to that offence was imprisonment for 25 years. 18 However, in two respects the allegation in the indictment was deficient to allege that offence. Firstly, it contained no allegation that the grievous bodily harm (which was undoubtedly inflicted upon Mr Dennett by Shaw) was inflicted "maliciously"; and it contained an allegation that Shaw was armed with "an offensive weapon" rather than a "dangerous weapon" as is required in order for the offence to qualify as a "specially aggravated" instance of the s 112 offence. 19 Moreover, the crowbar with which Shaw was armed and with which he injured Mr Dennett could not, on the evidence, come within the definition of "dangerous weapon" even if that had been properly pleaded; and no directions were given or sought as to the meaning of the word "maliciously". 20 It is for these reasons that the Crown concedes that the conviction for the specially aggravated offence cannot stand. 21 However, the Crown contends that it is open to this Court to substitute a verdict of guilty of the alternative offence which, by reason of the allegation that the appellant was in company, is an allegation of the aggravated offence carrying a maximum penalty of imprisonment for 20 years. 22 Before proceeding further with this aspect of the matter, it is appropriate to return to the first of the grounds of appeal advanced on behalf of the appellant. That is because, if the first and/or second ground is or are successful, the appellant would be entitled to an acquittal, and there would be no basis for substituting a verdict of guilty on the alternative count, since the defect alleged applies equally to that count. If both grounds fail, but the third grounds succeeds, the appellant will be entitled to an order for a new trial.

Grounds 1 and 2 23 Both of the parties argued these grounds together, and, since they involve essentially the same issues, I will also deal with them that way. 24 The point taken is a relatively simple one, but involves legal principles dating back at least to 1827 - and never, so far as appears, doubted. It is that the Crown was unable to produce any evidence of "breaking" such as to fix either Shaw or the appellant with guilt of the offence of break, enter and commit a serious indictable offence. 25 The Crimes Act contains no definition of the word "break". Examination of the case law shows that fine distinctions have been drawn between what does, and what does not, constitute "breaking" for the purposes of the section. The list may be illustrated by reference to Mr Peter Gillies' 1985 text "Criminal Law" published by the Law Book Company Ltd in 1985. Mr Gillies states (at p 403) the following propositions: "An actual breaking requires, broadly, that [the accused] interfere with the building's physical security, in a recognised way." 26 The learned author then proceeds to illustrate the circumstances in which "breaking" is, or is not, established. These are:

"To obtain entry by prising open a locked door or window (or indeed to cut through a wall, or otherwise destroy part of it) constitutes a breaking."

"… to open a shut, but not locked door, or window is a breaking."

"To fully open a partly opened window which is secured by a fastening device, as in the instance of a casement window, is a breaking."

"To further open an already open window not so secured, or a door which is ajar, is not a breaking." (italics added)

"Where [an accused] obtains entry into premises by a trick on a person within, or intimidation of that person, [the accused] is deemed by the law to have committed a breaking, which concept may be referred to as constructive breaking."

"It has been held that where, for the purposes of entrapment, a person in possession of premises opens the door so as to permit [the accused] to enter, [the accused] does not break and enter within the meaning of the criminal law."

"Where, … [an accused is given a key to premises by the servant of the owner, who is] acting for the purposes of entrapping [the accused], and [the accused] uses this key to enter, is has been held that [the accused] does break and enter, on the basis that [the accused] opening of the door and entry through it is not done with the consent of the owner." 27 Authorities for these propositions are, respectively:

2. R v Brown (1799) 2 East PC 487; R v Russell (1833) 1 Mood CC 377; R v Hyams (1836) 7 C & P 441;

3. R v Lackey [1954] Crim LR 57; R v Walker (1978) 19 SASR 532;

4. R v Smith (1827) 1 Mood 178; R v Walker (above);

7. R v Chandler [1913] 1 KB 125. 28 A more venerable text, Hamilton & Addison: Criminal Law and Procedure NSW (6th ed, 1956, edited by C E Weigall QC and R J McKay, BA, LLB) makes reference largely to the same authorities, and states the relevant propositions similarly. In notes to what was then s 108 of the Crimes Act (making an offence of burglary) the following appears: "The breaking may be actual or constructive. There is an actual breaking if the fastenings of the house are displaced. It is not necessary that anything should be actually broken. There must be a breaking of some actual part of the house ( R v Davis , R & R 322) not merely of an outer wall. To pick a lock, or lift a latch ( R v Jordan , 7 C & P 432), or turn a key is sufficient. To open a closed window by raising the sash, is a breaking: R v Haines , R & R 451; or raising a window which is shut down close but not fastened: R v Hyams , 7 C & P 441. But if a window or door be already partly open, it will not be a breaking to open it further to gain entry : R v Smith , 1 Mood 178. Obtaining admission through a chimney is burglary: R v Brice , R & R 450; R v Brierley , 18 CAR 136; but an entry through a hole in the roof left for the purpose of light is not burglary: R v Spriggs , 1 M & R 357. Lifting the flap of a cellar held down only by its own weight was held to be a breaking in: R v Russell , 1 Mood 377; but in R v Callan , R & R 157 the court was equally divided upon this question …" (italics added) 29 On behalf of the appellant heavy reliance was placed upon the decision in Smith, to which reference has already been made. That was a case decided in 1827. That appellant had been convicted of breaking, entering and stealing, an offence which was then a capital felony. On appeal, it was held: "The house breaking (if there was one by the prisoner) was by pushing up or raising the lower lash of the parlour window, which was proved to have been at about 8 or 9 o'clock in the morning, in a close (sic) state and shut quite down, but to have been also seen about 12 o'clock at noon of the same day in an open state or raised about a couple of inches, with the prisoner very near it; but yet only so open and raised as that there was not room enough for a person to enter the house through that opening, and permit the larceny. On the evidence it was clear, that the prisoner immediately afterwards threw the sash quite up, and then having thus removed the obstruction to his entrance, entered through the enlarged aperture thus made, and committed the felony; but the jury declared their opinion to be, that the prisoner did not open the window all the way, but only raised the sash the second time.

The question to the opinion of the Judge was, whether the prisoner was properly convicted of the house breaking, or whether he should have been convicted of larceny only?

… The Judges met, and all thought there was no decision under which this could be held to be a breaking …and that the conviction for house breaking was, therefore, wrong." 30 Reliance was also placed upon the decision in Johnson and Jones, to which reference has also already been made, and which was decided in 1841. That was a case in which a servant, aware of the intention of two accused to steal from his master, arranged to allow them entry to the premises during the master's absence, but promptly alerted police to the intention; he allowed them entry in order to facilitate their arrest. The court held that the prisoners entered a door which was lawfully open and there was therefore no such breaking as to constitute the crime of burglary. 31 These cases are of longstanding authority and this court has not been directed to any decision which has doubted their correctness, notwithstanding what I have described as the fine distinctions which have emerged. Having stated the relevant legal principles, it is necessary now to examine the evidence relevant to the issue of "breaking". 32 The evidence relevant to this issue was principally that of Shaw who had pleaded guilty. In the circumstances I consider it appropriate to extract, from the transcript, all relevant portions of the evidence. 33 When asked how the arrangement was developed, Shaw said: "There was Andrew [the appellant] and I discussing it and he said that the two barmen in the club were cleaners, did so many days each, that they had keys to the safe and that and he said he could leave a window open and we could get in, get the cleaner, get the keys, get the safe, get the poker machine money and all that." (AB 471)

When asked again how it was intended that he would gain entry to the Club, he said: "Through a window that had been left open."

And when asked how he knew the window had been left open, he said: "Andrew had told me he'd made sure it was open." (AB 481)

And when asked specifically if the appellant had said anything during the course of that evening about whether or not the window was in fact open, he said: "He said he'd checked and it was open, unlocked." (AB 482) 34 I now extract some questions and answers: "Q. And what did getting through the window entail? A. Getting up on the gas cylinders that were just underneath it, sliding the window open and climbing through on top of some lockers.

Q. And in due course is that what you did? A. Yes.

Q. From … a position standing on the gas cylinders were you then able to reach the window? A. Yes.

Q. And once you got to that position standing on the gas cylinders did you observe anything about whether the window was open or closed? A. It looked like it was closed but as soon as I put my hand on it and slid it it just slid straight open.

Q. It appeared to be predominantly closed but wasn't in fact locked closed, is that the position? A. Yes, yep. (AB 485)

… Is it the position that when you made a statement to the police about the matter you said it - you dealt with it in these terms, that the window was slightly ajar and unlocked and you then climbed through that window? A. Yes.

Q. And is that your recollection? A. Yes.

Q. Slightly ajar and unlocked. Did you need to or did you use the crowbar in any way to force the window? A. No.

Q. And I think at another point you said this to the police when being asked about it it was put to you 'the window was already open was it?' and you said 'yes, it was open a little bit and I just slid it open and I climbed in.'? A. Yes.

Q. And again you agree that that's the truth? A. Yep." (AB 502) (italics added) 35 At the conclusion of the Crown case trial counsel for the appellant sought a verdict of not guilty by direction (in respect of both counts) by reason of the deficiencies in the Crown proof of a breaking. Particularly from the italicised passages (elicited by the Crown in a leading fashion) it was clear that Shaw had done no more than further open a window that was already partly open - precisely the circumstance that, it was held in Smith, does not constitute a breaking. 36 After considerable discussion, leave was granted to the Crown, unopposed, to amend each count by substituting the words "on or about 1 November" for the words "on 1 November". This was because all involved appeared to be of the view that there was evidence that it was in fact the appellant who had opened the window on the previous evening. The argument that took place was as to whether this was sufficient to constitute a "breaking" for the purposes of the offence prescribed by the section; counsel for the appellant argued strongly that the section required a greater degree of temporal propinquity in order to qualify as a "breaking" in association with the "entering and stealing". 37 Closer examination of the passages extracted above however, shows that the evidence of Shaw was not capable of establishing that it was he who had opened the window. At most, Shaw said that the appellant told him that he "would make sure that it was open". There was no evidence that it was the appellant who had actually opened it. The argument about remoteness in time was therefore misconceived or involvement. It is because of the absence of identification of the individual who opened the window that the decision in Johnson and Jones become relevant. In the evidence, it may have been opened by somebody with lawful authority to do so - whether or not to facilitate a criminal endeavour. 38 The appeal must be decided on the basis that Shaw further opened an already partly opened window; if Smith is good law for 21st century NSW, the appeal must be allowed. 39 Strictly speaking, Smith may not be binding on this Court. The Court was not, initially, referred to any other binding authority in this jurisdiction which adopts Smith. Accordingly, the Court requested the further assistance of counsel. The best that could be provided was a decision of this Court in R v Sing [2002] NSWCCA 20; 54 NSWLR 31. There Hodgson JA, with whom Levine and Howie JJ agreed, dealt with a submission that an actual or constructive breaking is only demonstrated: "… where the security of a house is infringed, and that it was not a breaking to further open a door or window which was partly open …" 40 Counsel in that case therefore criticised a direction that: "… any unlawful entry will constitute a breaking and entering." 41 This Court did not directly deal with the submission, although it did appear to accept the proposition. Hodgson JA said: "Had a direction to that effect been sought below, there is no reason to suppose that a correct direction would not have been given." 42 The Court then proceeded to dispose of that ground of appeal on the basis that, even had a correct direction been given, it was unlikely that the result would not have been any different. 43 Smith was not cited as authority in Sing. A Western Australian decision in R v Galea (1989) 46 A Crim R 158 was cited. In that case criticism was made of a trial judge who failed to direct a jury that breaking would not be established if they accepted that defendant's evidence that the door of the dwelling house was ajar and that he merely opened it further. The Western Australian Court of Criminal Appeal accepted that argument. 44 Whether or not Smith binds the Court, however, the distinctions outlined above, and the authorities, including Smith, have been taught to generations of law students in NSW as representing the law to be applied in this State and have appeared in criminal law textbooks as having established legal principle; no doubt has, so far as the researches of counsel show, ever been cast upon them. I consider it inappropriate for this Court to depart from the application of such longstanding and accepted authority. 45 Accordingly, on the evidence, the appellant could not have been convicted of an offence which incorporated the element of "breaking". 46 The result is that the verdict of guilty must be quashed and a verdict of acquittal entered. The appellant could not be convicted of the alternative charge because it includes the same element. 47 I would add, however, that I see no useful purpose to be served by perpetuation of the fine distinctions which have been set out above. It hardly accords with the modern approach to criminal law to regard a breaking (as identified in the authorities) as criminal, while taking advantage of a partly ajar door or window does not constitute a breaking. Any entry to domestic or business premises for the purpose of committing criminal offences ought to be subject to the same criminal sanctions. Perhaps it is time s 112 attracted the attention of law reformers. In that context I would add this. Both charges were brought under s 112. I will set out the relevant parts of that section: " 112 Breaking etc into any house etc and committing serious indictable offence (1) Whosoever: breaks and enters any dwelling-house, or any building within the curtilage of any dwelling-house and occupied therewith but not being part thereof, or any school-house, shop, warehouse, or counting-house, office, store, garage, pavilion, factory, or workshop, or any building belonging to His Majesty or to any Government department, or to any municipal or other public authority, and commits any serious indictable offence therein … shall be liable to imprisonment for fourteen years." 48 From the catalogue of buildings the breaking and entering of which is forbidden by s 112, the prosecution chose to identify, as the subject of the offence charged against the appellant, a "pavilion". This, it appears, is what the prosecution perceived as the nearest of that catalogue to a recreational club. If the Sawtell Bowling and Recreation Club was not a pavilion, then breaking and entering it was, whatever else it might have been, not an offence against s 112. I have serious doubts whether it could properly be regarded as a "pavilion". 49 It appears that no club, or perhaps hotel, or perhaps many other kinds of building which do not presently spring to mind can rely upon the criminal offence created by s 112. This is another matter that might attract the attention of law reform authorities. 50 The orders I propose are:

(3) Verdict of acquittal entered. **********

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