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District Court 16 November 2018

R v KAYIRICI

[2018] NSWDC 456

Theft & propertyTraffic & drivingPublic order & justice offences
CRIMINAL SENTENCE PROPERTY OFFENCES BREAK, ENTER HOUSE, STEAL RECEIVE STOLEN GOODS THEFT

Citation: R v Kayirici [2018] NSWDC 456
Court: District Court of New South Wales
Date: 16 November 2018
Judge: King SC DCJ

Background

The offender faced three counts on an indictment arising from events on 25 June 2016. The first two counts concerned a residential burglary at a home in Vaucluse: count one alleged break, enter and steal; count two was an alternative charge of receiving stolen goods knowing them to have been stolen. The third count alleged a police pursuit offence, in which the offender failed to stop for police and drove dangerously in the Bondi area. A separate charge of resisting arrest also fell for determination at sentencing.

The jury was unable to decide whether the offender had committed the break and enter or merely received the stolen property. It returned a "special verdict" under s 121 of the Crimes Act 1900, which applies where a jury finds that an accused either stole or unlawfully received property but cannot determine which offence occurred. The jury also returned a straightforward guilty verdict on the police pursuit count.

The offender had refused to enter pleas at arraignment, giving non-responsive answers on each occasion. The court treated him as having pleaded not guilty to all counts. His Honour also determined the resist arrest charge on the material already before the court at the sentencing hearing.

  • What sentence was available under s 121 of the Crimes Act 1900 following a special verdict, and how should the sentencing court approach findings of fact in those circumstances?
  • How should the court treat the police pursuit offence as a second offence under s 51B(1) of the Crimes Act 1900?
  • Whether the offender's non-responsive conduct at arraignment was properly treated as a not-guilty plea.
  • How the resist arrest charge should be dealt with procedurally and substantively.

Decision

On the special verdict counts, His Honour expressed a firm personal view that, on the evidence, the offender had in fact committed the break and enter. The Crown case was described as very strong, and the offender's account of having purchased the stolen items from an unidentified man in Redfern for $100 to $200 was characterised as entirely implausible, particularly in light of cell phone records placing the offender in the Eastern Suburbs at the relevant time. However, because the jury returned a special verdict rather than a guilty verdict on count one, s 121 constrained sentencing to the maximum available for the lesser offence of receiving stolen goods under s 188(1), being ten years' imprisonment. His Honour also noted that some accommodation was required for the jury's inability to resolve which offence had been committed.

On the police pursuit count, the offender had driven a silver Ford Mondeo on Bondi Road after failing to stop for police. The pursuit arose in the context of a separate investigation into alleged sexual assaults. The offender was aware police were looking for him before the pursuit commenced. Because this was a second police pursuit offence under s 51B(1), the maximum penalty was five years' imprisonment, and an automatic five-year licence disqualification applied.

Regarding the offender's refusal to plead, the court applied the established approach: non-responsive answers at arraignment are treated as a not-guilty plea, permitting the trial to proceed. No irregularity arose from this procedure.

On the resist arrest charge, His Honour rejected the submission that the matter should be remitted to the Local Court, noting that all evidence had already been received. The court found the offender guilty on the evidence of the police officers. Given the circumstances and the surrounding sentence, a conviction under s 10A of the Crimes (Sentencing Procedure) Act 1999 was recorded with no further penalty imposed.

Orders Made

• Convicted of drive while disqualified; no further penalty imposed; automatic disqualification period imposed, concurrent with five-year disqualification for drive offence

• Convicted of resist arrest; conviction recorded under s 10A; no other penalty imposed; to run concurrent with the police pursuit sentence

Key Takeaways

  • Under s 121 of the Crimes Act 1900, where a jury cannot determine whether an accused stole property or received it knowing it to be stolen, sentencing is capped at the maximum for the lesser offence (receiving stolen goods), even if the sentencing judge is personally satisfied the more serious offence was committed.
  • A sentencing court applying s 121 must make some accommodation in its fact-finding for the jury's uncertainty, notwithstanding the judge's own view of the evidence.
  • Where an accused gives non-responsive answers at arraignment rather than entering a formal plea, the court treats those answers as a plea of not guilty, allowing the trial to proceed without irregularity.
  • The District Court declined to remit a related summary charge (resist arrest) to the Local Court where all evidence was already before it at the sentencing hearing, resolving the matter itself.
  • A conviction under s 10A of the Crimes (Sentencing Procedure) Act 1999 records a finding of guilt without imposing any additional penalty, and may be appropriate where the factual circumstances closely overlap with conduct already reflected in a concurrent sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 51B(1), 112(1)(a), 121, 188(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW): s 10A

Cases
- Callaghan v R [2006] NSWCCA 58
- R v Richards (1981) 2 NSWLR 464