By Thomas Spohr -
Key decisions
- Singh v R [2019] NSWCCA 110
- Roads and Maritime Services v Farrell; Roads and Maritime Services v Northcott; Roads and Maritime Services v Le Thorn; Roads and Maritime Services v Touba; Roads and Maritime Services v Culpan; Roads and Maritime Services v Hooper [2019] NSWSC 552
Singh v R [2019] NSWCCA 110
What constitutes ‘breaking’ – constructive break – where entry is not obtained by force or a trick
In this decision which revisits a very old hangover of the common law, the Court of Criminal Appeal (‘CCA’) has determined that there can still be a constructive ‘breaking’ into a property even where the door was opened voluntarily (but without a trick, and with no force used), because the offenders knocked on the door with the intention of robbing the occupant.
The applicant pleaded guilty to one count of aggravated break, enter and commit serious indictable offence (being robbery in company): he and his co-offender gambled at The Star and lost heavily. The victim was a 95-year-old man who had also been gambling there and had ‘all of his savings’ (apparently about $6,250) in an inside jacket pocket. One of the offenders spotted him accessing the cash in his pocket and they decided to follow him home. Immediately after the victim got home, he heard a knock at his door. Importantly, for present purposes, he voluntarily opened the door. The offenders immediately pushed him out of the way and entered the flat. One of them covered his mouth and one of them reached in and took the cash from the jacket pocket. Then one of them returned a $100 bill to the victim, at which point they left, went back to The Star, and gambled the proceeds of their crime (they lost again).
The offender was sentenced in the District Court to imprisonment for four years and six months with a non-parole period of three years. He appealed and one of the filed grounds – the only one this summary deals with – was to the effect that there was no ‘break’ for the purposes of the offence (that is, that the facts didn’t make out the offence), and for that reason there was a miscarriage of justice and the conviction ought to be overturned notwithstanding his plea of guilty. The ground of appeal was actually withdrawn in the course of arguing the appeal but, a little unusually, the Court still saw fit to give it some careful consideration. It does follow, however, that this analysis was obiter – albeit carefully considered obiter, meaning inferior courts are obliged to follow it.
Payne JA (with whom Harrison and RA Hulme JJ agreed) set out a history of what has, and has not, been classified as ‘breaking’. Here, on any view there was no actual breaking – the question was whether there was a ‘constructive’ break. That question was relatively recently considered in the decision of Ghamrawi v R (2017) 95 NSWLR 405 (which includes what was here described, a little hyperbolically, as a ‘magisterial’ survey of the history of breaking). In that earlier decision, at [97], the Court had set out some conclusions about the law of ‘constructive breaking’ (it is also extracted in this decision, at [29]). The conclusions dealt with scenarios including obtaining permission to enter through a trick (which is a constructive breaking), or getting permission without a trick and without force (which is not a constructive breaking). What was not explicitly dealt with in that earlier decision was the scenario here, where there was no trick (just a knocking on the door), but there was force used.
Ultimately, the Court here determined that the most ‘venerable sources of the common law’ on this question demonstrate that to knock on a door with intent to rob, and then to rush into the house is, in fact, a constructive breaking. That is because, although there was no actual breaking, the law will not suffer itself to be trifled with (conclusion at [31] – the ‘venerable sources’ referred to are quoted at [32]-[35]).
The Court also rather pointedly expressed its view that there should be an abolition of the fine distinctions between breaking, entering and committing a serious indictable offence on the one hand, and merely taking advantage of a partly ajar door or window to commit a serious indictable offence, on the other. The Court explicitly indicated its view that the two scenarios should be subject to the same criminal sanctions, inviting law reform on the topic (at [39]).
