Fernleigh v Gokel [2006] NTSC 42

PARTIES: FERNLEIGH, Craig

v

GOKEL, Noel John

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO: JA 4 of 2005 (9923160)

DELIVERED: 24 APRIL 2006

HEARING DATES: 24 APRIL 2006

JUDGMENT OF: MARTIN (BR) CJ

APPEAL FROM: COURT OF SUMMARY JURISDICTION
(9923160) 16 JANUARY 2004

CATCHWORDS:

CRIMINAL LAW
Appeal – justices appeal – appeal against conviction – plea of guilty – appeal based on question of law – room in a larger structure used for residential purposes – s 213 Criminal Code ‘building’ – appeal dismissed.

Criminal Code (NT), s 213

REPRESENTATION:

Counsel:
Appellant: I Rowbottom
Respondent: E Armitage

Solicitors:
Appellant: Withnalls
Respondent: Office of the Director of Public Prosecutions

Judgment category classification: B
Judgment ID Number: Mar0604
Number of pages: 5

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Fernleigh v Gokel [2006] NTSC 42
No. JA4 of 2005 (9923160)

BETWEEN:

CRAIG FERNLEIGH
Appellant

AND:

NOEL JOHN GOKEL
Respondent

CORAM: MARTIN (BR) CJ

REASONS FOR JUDGMENT

(Delivered 24 April 2006)

[1] The appellant was charged with three offences, being, unlawfully entering a building with intent to commit a crime, namely stealing (count 1) stealing (count 2) and obtaining credit by deception (count 3). The offences were alleged to have occurred on 25 and 26 May 1999. There was a considerable delay for reasons which are not relevant to this appeal.

[2] At all times the appellant was legally represented. On 15 October 2003, the appellant pleaded guilty to the three charges. Facts were read to the sentencing Magistrate and were admitted by the appellant through his counsel. On 16 January 2004 the appellant was convicted on each count and sentenced to concurrent periods of three months, one month and one month imprisonment, all of which were suspended immediately upon the appellant entering into home detention.

[3] The appellant seeks an extension of time within which to appeal against his conviction of the first offence of unlawfully entering a building with intent to steal on the basis that his plea of guilty to that offence was entered at a time when he was under a misapprehension as to the true legal position. In substance it is now argued that the appellant was legitimately in the building because he was a lawful occupier of one of the rooms in the building and, therefore, he did not unlawfully enter the building.

[4] The appellant was a member of the armed forces. He resided in a room in a block of rooms at Robertson Barracks. According to facts admitted before the sentencing Magistrate, the appellant decided to break into another room in the barracks occupied by a fellow member of the armed forces and steal cash. Without permission, the appellant opened the unlocked door of the other room and entered the room. Unable to locate cash he stole a mobile telephone and a charger.

[5] The following day the appellant went to Cash Converters where he negotiated a loan of $50 by falsely pretending that he was the lawful owner of the telephone and charger. Subsequently the telephone and charger were recovered during the course of inquiries and returned to the owner.

[6] When interviewed on 11 October 1999 the appellant made full admissions.

[7] Although the wording of the information charged that the appellant unlawfully entered a dwelling house, contrary to s 213 of the Criminal Code, the offence specified in s 213(1) is an offence of unlawfully entering a building with intent to commit an offence therein. Subsection (3) provides that if the entry occurs with intent to commit a crime for which the maximum penalty is not greater than 3 years' imprisonment, the offender is guilty of a crime and liable to imprisonment for 3 years. That subsection further provides that if the building is a dwelling house, the offender is liable to imprisonment for 5 years and, if the dwelling house is occupied at the time of entry, the maximum penalty is 7 years.

[8] As I have said, the offence is unlawfully entering a building with intent to commit a crime. That fundamental fact is not altered by the provision that if the building is a dwelling house the maximum penalty is increased. The definitions of “building” and “dwelling house” are found in s 1 of the Code:

““building” means any structure complete or otherwise, not being a flimsy or insubstantial structure by the standards of the community to which the owner or the occupier of it belongs, that, except in the 3 cases here and after mentioned, is not readily moveable and this is used or intended for the occupation of man or his animals or the storage or the shelter of his goods; it includes a caravan, ship and an erected tent or intended for any such purpose;”
““dwelling house” means any building or part of a building kept by the owner or occupier for his residence or the residence of his family, guests or servants; it is immaterial that from time to time it is uninhabited;”

[9] In essence it is the submission of the appellant that he was the lawful occupier of the building block 643 which contained a number of individual rooms in which the members of the armed forces resided, with adjoining common areas. Counsel submitted that for the purposes of s 213 the word “building” must refer to the entire building and cannot be read as applying to individual rooms within that entire building.

[10] The words of s 213 must be given their ordinary and natural meaning as properly understood in the context of the particular provision and the Code. Plainly s 213 is aimed at protecting members of the community from persons unlawfully entering a building into which they have no right to enter, including those buildings that are constructed or used for residential purposes. Hence the wide definition of building encompassing any “structure” which is “used or intended for the occupation of man or his animals or the storage or shelter of his goods.”

[11] It is not without significance that by the definition of “dwelling house” the legislature recognises that a residence which amounts to a dwelling house may not comprise the entire building. If the appellant's submission is correct, although an individual room used for residential purposes in a barracks, boarding house, hotel or block of flats would amount to a dwelling house because the individual room would be part of a larger structure it would not be a “building” for the purposes of s 213. Hence it would not be an offence of unlawfully entering a building to enter the room, if the offender was lawfully within the overall building because, for example he was a lawful occupier of a room in a barracks, boarding house or hotel or a flat in a block of flats. This would be an absurd result.

[12] In my opinion a room used for residential purposes within a barracks is a “building” for the purposes of s 213. Notwithstanding that it is not free standing and is constructed as part of a larger building, the room is a “structure” for the purposes of the definition of building in the Code. The context and purposes of the provisions and the Code leave room for no other reasonable interpretation.

[13] If the application to extend the time within which to appeal was granted, I would dismiss the appeal. In those circumstances the application for an extension of time within which to appeal is dismissed.

[14] The documentation also contains reference to an appeal against sentence. However counsel for the appellant has indicated that if the appeal against the conviction on count 1 is dismissed, the appellant does not pursue an appeal against the sentence imposed on any count. The application to extend the time within which to appeal against sentence is dismissed.
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