AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 17 November 2015

Nassr v R

[2015] NSWCCA 284

Assault & violenceTheft & property
CRIMINAL LAW CONVICTION LEAVE TO APPEAL OUT OF TIME MISCARRIAGE OF JUSTICE HOUSE ERROR CONCEDED BY CROWN

Citation: Nassr v R [2015] NSWCCA 284
Court: Court of Criminal Appeal
Date: 17 November 2015
Judges: Meagher JA; Rothman J; Bellew J

Background

The appellant pleaded guilty in the Local Court to two charges of breaking and entering and committing a serious indictable offence, contrary to s 112 of the Crimes Act 1900 (NSW). The first charge alleged that, on 2 August 2013, he broke into a dwelling-house and committed an assault occasioning actual bodily harm on the occupant inside that dwelling-house.

The facts agreed for the purpose of the guilty plea described the appellant breaking into the premises and rummaging through furniture boxes inside. The occupant arrived home with his young son and interrupted the appellant, who had not managed to steal anything. The assault on the occupant then took place outside the dwelling-house as the appellant attempted to flee.

The appellant was committed to the District Court for sentence, where he received an aggregate sentence of 8 years imprisonment with a non-parole period of 4 years and 6 months across both offences. He subsequently sought leave to appeal out of time against his conviction on the first count, arguing the agreed facts could not in law support that conviction.

  • Whether leave to appeal out of time against the conviction on count 1 should be granted.
  • Whether the agreed facts supported a conviction under s 112(2) of the Crimes Act 1900 (NSW), given that the serious indictable offence (the assault) occurred outside the dwelling-house rather than within it.
  • Whether the aggregate sentence could stand once the conviction on count 1 was quashed.
  • Whether a verdict of acquittal was required upon quashing the conviction, or whether a retrial should be ordered.

Decision

The Court granted leave to appeal out of time. The Crown did not oppose that leave and conceded, correctly in the Court's view, that a miscarriage of justice had occurred. Under the principles from R v Liberti (1991), a miscarriage of justice arises where, on the admitted or uncontroversial facts, an accused could not in law have been convicted of the offence charged.

The critical element of the s 112(2) offence was that the serious indictable offence must have been committed in the dwelling-house. Section 4 of the Crimes Act defines "dwelling-house" in terms that include the building and structures within the same curtilage but expressly exclude the front or side yard of the property. The agreed facts did not specify where the assault occurred, but the sentencing evidence made clear it took place outside the dwelling-house as the appellant tried to escape. That element of the offence was therefore not established.

Because none of the special provisions in ss 6A, 7 or 8 of the Criminal Appeal Act 1912 (NSW) applied, s 6(2) required the Court to quash the conviction and direct a verdict of acquittal. A retrial was not ordered, as the uncontroversial evidence did not support prosecution of the charge. Following R v Pedrana [2001] NSWCCA 66, the Court amended its earlier order to formally enter a judgment of acquittal.

The quashing of count 1 also meant the aggregate sentence could not stand, since such a sentence is only available where a court sentences an offender for more than one offence (s 53A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW)). The matter was remitted to the District Court for re-sentencing on the remaining, unappelled conviction.

Orders Made

  • Leave granted to appeal against conviction on count 1 out of time.
  • Appeal on count 1 allowed; conviction quashed and a judgment of acquittal entered in relation to that count.
  • Aggregate sentence set aside.
  • Matter remitted to the District Court for determination of sentence on the second count.
  • Order 3 of the 4 November 2015 orders (granting leave to appeal against severity of the aggregate sentence) revoked as unnecessary.
  • Leave granted to the parties to apply to set aside or vary the amending order within seven days.

Key Takeaways

  • An element of the offence under s 112(2) of the Crimes Act 1900 (NSW) is that the serious indictable offence must have been committed "in" the dwelling-house; conduct occurring outside the dwelling-house, including in the front or side yard, does not satisfy that element.
  • Under s 4 of the Crimes Act, the definition of "dwelling-house" does not extend to the front or side yard of the property on which the relevant building is erected.
  • Where an accused could not in law have been convicted of the offence charged on the agreed or uncontroversial facts, a miscarriage of justice has occurred and the conviction must be quashed: R v Liberti (1991) 55 A Crim R 120.
  • Upon quashing a conviction under s 5(1) of the Criminal Appeal Act 1912 (NSW), s 6(2) requires the Court of Criminal Appeal to direct a verdict of acquittal unless one of the specific statutory exceptions (ss 6A, 7 or 8) applies.
  • An aggregate sentence under s 53A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) cannot survive the quashing of one of the underlying convictions, because the power to impose such a sentence depends on sentencing for more than one offence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 4, 112
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6, 12(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A(1)

Cases
- R v Liberti (1991) 55 A Crim R 120
- R v Pedrana [2001] NSWCCA 66; 123 A Crim R 1