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Court of Criminal Appeal 25 September 2001

Regina v WILKS

[2001] NSWCCA 383

Theft & property

Citation: Regina v Wilks [2001] NSWCCA 383
Court: NSW Court of Criminal Appeal
Date: 25 September 2001
Judge(s): Powell JA, Sully J, Bell J

Background

The appellant pleaded guilty before the Local Court at Scone to one count of break, enter and steal under s 112(1) of the Crimes Act 1900. He was committed for sentence to the District Court, where he adhered to his plea and was sentenced to three years' imprisonment with a two-year non-parole period.

The facts tendered at sentencing told a materially different story from what the charge required. The agreed statement of facts described the appellant walking through an already-open back door while the occupant was outside mowing the lawn. His own evidence confirmed he entered through an open door and opened no shut door, window, or other fastening to gain access.

On appeal, the single ground was that a miscarriage of justice had occurred because, despite his plea, there was no factual basis for the "breaking" element of the offence to which he had pleaded guilty.

  • Whether, on the facts before the sentencing court, there was any evidence supporting the element of "breaking" required for an offence under s 112(1) of the Crimes Act 1900
  • Whether a conviction entered on a plea of guilty can be set aside where the facts do not support an essential element of the charged offence
  • Whether the Court of Criminal Appeal could substitute a verdict for the lesser offence of stealing in a dwelling (s 148 of the Crimes Act) under s 7(2) of the Criminal Appeal Act 1912
  • Whether, if substitution was unavailable, the appropriate remedy was an order under s 8A(1) of the Criminal Appeal Act 1912 remitting the proceedings to the Local Court

Decision

At common law, a "breaking" requires some interference with the physical security of a building: for example, forcing open a locked door or opening a closed (though unlocked) window or door. Entering through a door that is already standing open does not constitute a breaking. The Crown conceded that the evidence at the sentence hearing, including the appellant's own account and Ms Adams' statement, contained nothing capable of establishing that element.

The Court accepted that a miscarriage of justice had occurred. Although the appellant had pleaded guilty, the plea was to an offence whose elements the facts could not support. The Court confirmed, following its earlier decision in R v Wilkes [2001] NSWCCA 97, that a conviction entered on a guilty plea is not immune from being set aside in such circumstances.

The appellant's counsel proposed that the Court substitute a verdict of guilty of the lesser offence of stealing in a dwelling under s 148 of the Act, relying on s 7(2) of the Criminal Appeal Act 1912. Bell J rejected that course. Section 7(2) refers specifically to substituting a verdict where a jury could have found the appellant guilty of another offence. Because the appellant had pleaded guilty rather than been tried by jury, and because the deemed conviction on indictment under s 51A(7) of the Justices Act 1902 did not, in the Court's view, bring the matter within s 7(2), that power was unavailable.

The appropriate remedy was found in s 8A(1) of the Criminal Appeal Act 1912, which empowers the Court to remit proceedings to the Local Court where a miscarriage of justice has occurred and that course best remedies the injustice. The Court considered this a more adequate remedy than any other available order, and directed the proceedings to continue before the Local Court at Scone.

Orders Made

  • Time for giving notice of appeal extended under s 10(3) of the Criminal Appeal Act 1912
  • Appeal against conviction allowed
  • Conviction recorded in the District Court quashed
  • Proceedings to be continued before the Local Court at Scone on the first date available and convenient to the Court and the parties

Key Takeaways

  • A conviction for break, enter and steal under s 112(1) of the Crimes Act 1900 requires proof of an actual "breaking," which is not established where a defendant enters through an already-open door without disturbing any fastening or shut barrier.
  • A guilty plea does not preclude the Court of Criminal Appeal from setting aside a conviction where the facts tendered at sentencing are incapable of supporting an essential element of the charged offence.
  • The power under s 7(2) of the Criminal Appeal Act 1912 to substitute a verdict for a lesser offence is confined to cases tried before a jury; it does not extend to deemed convictions on indictment arising from a guilty plea under s 51A(7) of the Justices Act 1902, even where the appellant admits the elements of a lesser offence.
  • Where that substitution power is unavailable, s 8A(1) of the Criminal Appeal Act 1912 provides an alternative remedy: remitting the proceedings to the Local Court to continue from the point of the original plea.
  • The Court of Criminal Appeal acknowledged the result may appear anomalous (a defendant who always admitted the lesser offence cannot simply be sentenced for it on appeal) but held that the statutory text left no room for a different construction.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(1), 148
- Criminal Appeal Act 1912 (NSW), ss 7(2), 8A(1), 10(3)
- Justices Act 1902 (NSW), ss 51A(1), 51A(7)

Cases:
- R v Wilkes [2001] NSWCCA 97