Citation: Singh v R [2019] NSWCCA 110
Court: NSW Court of Criminal Appeal
Date: 3 June 2019
Judges: Payne JA (leading judgment); Harrison J and R A Hulme J (both agreeing)
Background
The applicant pleaded guilty to aggravated break and enter and commit a serious indictable offence (robbery in company) under s 112(2) of the Crimes Act 1900 (NSW). The offence arose from events on 19 July 2017, when the applicant and two co-offenders followed an elderly victim from The Star casino to his granny flat in North Strathfield after observing him carrying a large sum of cash. The offenders had lost heavily gambling that evening.
One of the offenders knocked on the victim's door. When the 95-year-old victim opened it, the group pushed him back into his home, forced him onto a milk crate, covered his mouth, and stole $6,250 in cash described as all of his savings. The offenders then returned to the casino and gambled the stolen money.
The applicant was arrested in Victoria and extradited to New South Wales. He was sentenced by Herbert DCJ in the District Court to a total term of 4 years and 6 months, with a non-parole period of 3 years commencing 31 August 2017. He appealed against both conviction and sentence.
Legal Issues
- Whether the agreed facts supported the charge of aggravated break and enter, given that entry was gained by knocking and the door being opened rather than by physical force against the door itself
- Specifically, whether knocking on a door with intent to rob the occupant, and rushing inside when the door is opened, constitutes a "constructive breaking" within the meaning of s 112 of the Crimes Act 1900
- Whether the sentencing judge failed to treat the applicant's gambling disorder and substance use disorder as mitigating factors
- Whether the sentence of 4 years and 6 months was manifestly excessive, including whether the guideline judgment in R v Henry ought to have been applied
Decision
Conviction ground (constructive breaking): Although the applicant's counsel ultimately withdrew this ground during argument, the Court addressed it on its merits. The Court held that s 112 of the Crimes Act uses the word "break" in the same sense as at common law. At common law, knocking at a door with intent to rob the occupants and, upon the door being opened, rushing inside constitutes a "constructive breaking." The agreed facts therefore supported the charge, and no arguable miscarriage of justice arose from the guilty plea. The Court applied R v Stanford, Ghamrawi v R, and Ritchie v R.
Gambling and substance use disorders: The Court granted leave to appeal on this ground but dismissed it. The sentencing judge had properly considered these disorders. Her Honour was entitled to treat the gambling addiction as an explanation for the offending rather than a mitigating factor, and there was no error in declining to reduce the weight given to general deterrence and retribution on the basis of the disorders. The Court applied Johnston v R, R v Jafari, DPP (Cth) v De La Rosa, and Aslan v R.
Manifest excess: The Court also granted leave but dismissed this ground. The applicant's core submission, that the offence should be characterised as robbery in company rather than aggravated break and enter, was not established. The applicant's counsel accepted in oral argument that the sentence was within the permissible range and that the manifest excess ground depended entirely on the gambling disorder error being established. Because no error in that regard was found, this ground also failed.
The R v Henry guideline: The Court noted that the applicant's trial counsel had not invited the sentencing judge to apply the guideline judgment in R v Henry (which addresses robbery offences) either in writing or orally. In any event, the Court found that even if R v Henry had been applied, a starting point exceeding five years was open on the facts, given the degree of planning, the extreme vulnerability of the 95-year-old victim, the amount stolen, and the physical contact involved. The guideline was not designed to confine sentencing discretion in the manner the applicant submitted.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- Under s 112 of the Crimes Act 1900 (NSW), the term "break" carries the same meaning as at common law, including the doctrine of "constructive breaking": knocking on a door with intent to rob the occupants and rushing inside when the door is opened satisfies the element.
- A sentencing court is not required to treat a gambling addiction as a mitigating factor simply because it provides an explanation for the offending; characterising it as context rather than mitigation is an available and open finding.
- Where a ground of manifest excess depends entirely on the establishment of a discrete sentencing error, failure to make out that error will ordinarily be fatal to the manifest excess ground as well.
- The Court of Criminal Appeal confirmed that the R v Henry guideline judgment does not confine sentencing discretion in a rigid way, and its non-application at first instance is less likely to constitute error where counsel did not raise it before the sentencing judge.
- Factors including extreme victim vulnerability, a degree of planning, the location of the offence in the victim's home, and the significance of the stolen sum to the victim all remained available to sustain a mid-to-upper sentencing outcome even on the robbery guideline analysis.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 97, 105A, 112
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Cases:
- R v Stanford (2007) 70 NSWLR 474; [2007] NSWCCA 370
- Ghamrawi v R (2017) 95 NSWLR 405; [2017] NSWCCA 195
- Ritchie v R [2017] NSWCCA 21
- Johnston v R [2017] NSWCCA 53
- R v Jafari [2017] NSWCCA 152
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Aslan v R [2014] NSWCCA 114
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- Hughes v R [2018] NSWCCA 2