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Court of Criminal Appeal 4 December 2001

Regina v Cooper

[2001] NSWCCA 542

Theft & property
CRIMINAL LAW AND PROCEDURE OFFENCE AGAINST PROPERTY AGGRAVATED BREAK ENTER AND STEAL ELEMENTS OF THE OFFENCE ONUS OF PROOF.

Citation: Regina v Cooper [2001] NSWCCA 542
Court: New South Wales Court of Criminal Appeal
Date: 4 December 2001
Judge(s): Stein JA, Hidden J, Howie J

Background

The applicant pleaded guilty in the Local Court to two offences: aggravated break, enter and steal contrary to s 112(2) of the Crimes Act 1900, and larceny contrary to s 117. He was committed to the District Court for sentence, where Judge Coleman DCJ imposed a fixed term of 4.5 months for the larceny and, for the aggravated break, enter and steal offence, a three-year term of imprisonment with a non-parole period of two years.

The aggravated break, enter and steal charge arose from an incident in which the applicant entered the home of a motel manager in the early hours of the morning, carrying a butter knife he had found outside. The manager's wife was awake and alerted her husband, who found the applicant in the kitchen holding a mobile phone and the knife. The applicant offered no resistance and was arrested when police arrived.

The applicant sought leave to appeal against the sentence. He appeared without legal representation, having been refused legal aid. His grounds touched on both the appropriateness of his guilty plea to the aggravated charge and the severity of the sentence imposed.

  • Whether the applicant had properly understood the mental element required for a conviction under s 112(2) of the Crimes Act 1900, specifically awareness that persons were likely to be present in the premises at the time of entry.
  • Whether the guilty plea to the aggravated charge had been properly entered, given the applicant's claims that he was unaware of the applicable mental element and denied instructing his solicitor accordingly.
  • Whether the sentencing judge had made a mathematical error in fixing the non-parole period, having regard to the partly cumulative nature of the sentences.

Decision

The Court of Criminal Appeal found that the primary challenge to the guilty plea itself could not succeed. The applicant's solicitor had communicated that the applicant was aware the premises were the manager's residence and therefore knew the manager and his wife were likely to be inside. The Court accepted that the plea was properly entered on that basis, notwithstanding the applicant's denials.

The Court's attention then turned to the mechanics of the sentencing structure. Judge Coleman DCJ had found special circumstances justifying an extended parole period, but the Court concluded that his Honour had made a mathematical error in setting the non-parole period. Because the aggravated break, enter and steal sentence was to run partly cumulative on the larceny sentence, the calculation of the resulting parole period had gone wrong, and the benefit of the special circumstances finding had been largely lost.

On the question of the parole mechanism, the Court also clarified that because the sentence was for three years, the applicant was entitled by operation of the relevant legislation to be released at the end of the non-parole period, rather than merely being "considered" for release as the sentencing judge had stated. The Court took into account evidence the applicant placed before it regarding his rehabilitation efforts and intentions upon release.

Accordingly, the Court allowed the appeal to the limited extent of reducing the non-parole period from two years to 18 months, with release to parole at the expiry of that period subject to supervision conditions.

Orders Made

  • Leave to appeal granted.
  • The non-parole period for the aggravated break, enter and steal offence was quashed.
  • In lieu, a non-parole period of 18 months was specified, commencing 22 February 2001 and expiring 21 August 2002.
  • The applicant is to be released to parole on 21 August 2002.
  • A condition of parole requires the applicant to submit to supervision by the Probation and Parole Service, with the relevant Regulations applying to the parole order.

Key Takeaways

  • A guilty plea to an offence under s 112(2) of the Crimes Act 1900 (aggravated break, enter and steal) requires that the accused was aware of the likelihood that persons were present in the dwelling at the time of entry; this awareness is the mental element that triggers the aggravated form of the offence.
  • Where a solicitor has recorded instructions confirming the accused's awareness of the relevant mental element, and the accused later disputes those instructions without corroborating evidence, the Court of Criminal Appeal is unlikely to set aside the plea on that basis alone.
  • A mathematical error in calculating the non-parole period, particularly where cumulative sentencing affects the arithmetic, may provide independent grounds for appellate correction even where the substantive challenge to the conviction fails.
  • Under the applicable legislation, a sentence of three years carries an entitlement to release at the end of the non-parole period; a direction that the offender be merely "considered for release" does not accurately reflect that entitlement.
  • The Court of Criminal Appeal took into account post-sentencing evidence of rehabilitation when determining the appropriate length of the substitute non-parole period.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 105A, 112(1), 112(2), 117, 428A, 428B(1), 428B(2), 428D
- Justices Act 1902 (NSW), s 51A

Cases:
- R v Lars aka Larsson (1994) 73 A Crim R 91