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Court of Criminal Appeal 10 November 2004

Regina v Rice

[2004] NSWCCA 384

Also reported as 150 A Crim R 37
DrugsTheft & property
DOES IT INCLUDE CURTILAGE PAROLE PERIOD ON INITIAL SENTENCE INITIAL SENTENCES MANIFESTLY INADEQUATE MATTERS REMITTED TO DRUG COURT FOR RE SENTENCING.

Citation: Regina v Rice [2004] NSWCCA 384
Court: NSW Court of Criminal Appeal
Date: 10 November 2004
Judge(s): Hodgson JA; Hulme J; Smart AJ

Background

The appellant, Colin Ray Rice, pleaded guilty in the Drug Court to multiple counts of breaking and entering and related offences, including counts under ss 112 and 113 of the Crimes Act 1900 (NSW). His pleas were entered with legal advice and with the deliberate purpose of accessing the Drug Court's rehabilitation program. He later sought to withdraw those pleas on the basis that the agreed facts may not have supported the aggravated form of the charges.

The Drug Court imposed initial sentences of four years' imprisonment on three of the counts, making them wholly concurrent and fixing what it termed a non-parole period as part of the initial sentencing process. The Director of Public Prosecutions appealed those initial sentences, arguing they were manifestly inadequate and that the Drug Court had followed a legally impermissible sentencing procedure.

The Court of Criminal Appeal was therefore required to address three broad areas: whether the appellant could withdraw his guilty pleas, whether a Crown appeal lay from Drug Court initial sentences, and whether the Drug Court's sentencing procedure complied with the applicable statutory regime.

  • Whether the appellant should be permitted to withdraw his guilty pleas to the aggravated form of the offences
  • Whether the Crown could appeal to the Court of Criminal Appeal from initial sentences imposed by the Drug Court under s 7 of the Drug Court Act 1998
  • Whether "sentence" in s 2 of the Criminal Appeal Act 1912 extended to Drug Court initial sentences
  • Whether "dwelling house" in ss 112 and 113 of the Crimes Act 1900 includes the curtilage of the dwelling
  • Whether a victim on the patio or in the yard of a dwelling house satisfies the "in the place where the offence is alleged to have been committed" requirement under s 105A(1)(f)
  • Whether the Drug Court's procedure of fixing a non-parole period as part of the initial sentence, and making sentences wholly concurrent, was lawful
  • Whether the initial sentences were manifestly inadequate

Decision

Withdrawal of guilty pleas: The Court refused leave to withdraw the pleas. The pleas were entered on legal advice with the specific aim of obtaining the benefit of the Drug Court procedure, and that benefit was achieved. No evidence was offered from the legal advisers who provided that advice, and no sufficient basis was established to justify withdrawal.

Meaning of "dwelling house" and curtilage: The judges divided on whether a "dwelling house" includes its curtilage for the purposes of the aggravating circumstance in s 105A(1)(f). Hulme J held that the presence of a person on a patio or in the yard of a dwelling house was not sufficient to satisfy the location requirement, and that the expression "dwelling house" did not ordinarily include the curtilage in the context of the Crimes Act. Hodgson JA took a different view, finding that the place where a breaking and entering offence is committed must extend at least to the immediate exterior area from which the breaking is effected, and that whether a person in the curtilage is "in the place" could be a matter of fact and degree. Smart AJ also found that the agreed facts did not exclude a finding that the victim was in the relevant place. Despite the difference in reasoning, the Court agreed that the appellant should not be permitted to withdraw his pleas, so the point was not ultimately determinative.

Crown appeal jurisdiction: The Court accepted that an appeal by the Crown lay to the Court of Criminal Appeal from initial sentences imposed by the Drug Court. The term "sentence" in s 2 of the Criminal Appeal Act 1912 was broad enough to capture the initial sentences imposed under s 7 of the Drug Court Act 1998.

Drug Court sentencing procedure: The Court found that the Drug Court had followed an impermissible procedure. It had failed to sentence in accordance with the Crimes (Sentencing Procedure) Act 1999 and had incorrectly fixed a non-parole period at the initial sentencing stage rather than following the correct statutory sequence. The Court also observed that making all sentences on the five counts wholly concurrent failed to reflect the total criminality involved. The initial sentences were found to be manifestly inadequate, and the matters were remitted to the Drug Court for re-sentencing, with the offender to be given the opportunity to adduce further subjective evidence.

Orders Made

  • The appellant's appeal against conviction on counts 1, 2 and 3 was dismissed.
  • The appellant abandoned his appeal against conviction on counts 4 and 5 (noted).
  • The Director of Public Prosecutions abandoned his appeal against sentence on counts 1 and 2 (noted).
  • The Director's appeal against the 12-month sentence for breach of bond was dismissed.
  • The Director's appeal against the initial sentences of 4 years' imprisonment on each of counts 3, 4 and 5 (commencing 13 April 2004) was allowed, and those sentences were quashed.
  • The sentencing of Colin Ray Rice on counts 3, 4 and 5 was remitted to the Drug Court for re-sentencing in accordance with law and consistently with the Court's reasons.

Key Takeaways

  • A guilty plea will not readily be set aside where it was entered on legal advice for the purpose of obtaining a specific procedural advantage (here, access to the Drug Court), and where no evidence is led from the legal advisers who gave that advice.
  • The Court of Criminal Appeal confirmed that a Crown appeal lies from initial sentences imposed by the Drug Court under s 7 of the Drug Court Act 1998, with "sentence" in the Criminal Appeal Act 1912 extending to those initial determinations.
  • Whether "dwelling house" in ss 112 and 113 of the Crimes Act 1900 includes the curtilage remained the subject of differing judicial views on this Court; Hulme J held it does not, while Hodgson JA considered the place of the offence to extend at least to the immediate exterior area from which a breaking is effected.
  • Drug Court judges are bound by the Crimes (Sentencing Procedure) Act 1999 when imposing initial sentences, including the requirement to fix a non-parole period before arriving at the head sentence, and the Court confirmed that departing from that statutory regime is impermissible.
  • In remitting for re-sentencing, the Court indicated that making sentences on five separate counts wholly concurrent would ordinarily fail to reflect total criminality, and drew attention to the discussion in Johnson v The Queen (2004) 78 ALJR 616 on accumulation principles.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 105A, 106, 109, 110, 111, 112, 113, 114, 115, 115A
- Criminal Appeal Act 1912 (NSW), s 2
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Drug Court Act 1998 (NSW), s 7
- Mental Health (Criminal Procedure) Act 1990 (NSW)
- Victims Compensation Act 1996 (NSW)
- Criminal Legislation Amendment Bill (NSW)

Cases:
- Johnson v The Queen [2004] 78 ALJR 616
- Meissner v The Queen (1994-5) 184 CLR 132
- R v Mill (1988) 166 CLR 59
- R v Inns (1974) 60 Cr App R 231
- R v Pearce (1998) 194 CLR 610
- R v Tolley [2004] CCA 165
- R v Trindall (2002) 133 A Crim R 119
- R v Toman [2004] NSWCCA 31
- R v Uyrun [2004] NSWCCA 103
- R v Way [2004] NSWCCA 131
- Wright v Wallasey Local Board (1887) 18 QBD 783