Willoughby v Trenerry
21 March 2001 - Angel, Thomas and Bailey JJ

The appellant pleaded guilty in the Court of Summary Jurisdiction to one count of stealing. Stealing is a property offence which attracts the mandatory minimum sentencing regime provided for in the Sentencing Act except where the offence occurred at premises, or a place, where goods are sold and the offender was lawfully in the premises or at the place at the time of the offence.

The appellant, having been evicted from the Victoria Hotel because he was intoxicated, re-entered the hotel through a staff entrance at the rear which was not open for use of the public. He then entered a non-operating coldroom which was being used as a storeroom and took and drank a bottle of alcohol. On again being discovered he was evicted for the second time, staff at the time being unaware that he had drunk the alcohol. He was later apprehended by police.

The court found that the appellant was a trespasser on the basis that having been evicted, his implied licence as an invitee to enter the hotel had been withdrawn. The court found that, as the appellant was a trespasser, he was not lawfully on the premises. Accordingly he did not fall within the exception to the imposition of mandatory sentencing set out in Schedule 1 of the Sentencing Act. The court sentenced the appellant to the mandatory minimum 14 days imprisonment.

The appellant then appealed to the Supreme Court. That appeal was dismissed. The Supreme Court decided that the implied licence to enter premises such as the Victoria Hotel is limited to the public areas of the premises, and that the coldroom was not a place open to members of the public pursuant to an implied right to enter the hotel. The appellant was therefore a trespasser and not lawfully on the premises.

The appellant then appealed to the Court of Appeal.

The Court of Appeal unanimously dismissed the appeal. The court held that a person was a trespasser if, on entering premises in accordance with an implied licence, he acted in a way that was alien to the invitation. The appellant's theft of the alcohol was alien to the invitation. The court went on to say that in any event, having been evicted from the premises that night, the appellant entered as a trespasser when he returned to the premises.

The respondent was not called upon to make oral submissions.