AN ARMED intruder, who broke into a Coffs Harbour apartment and stood over a young child with a knife, has failed in his appeal against his conviction.
Thomas Earl Gietz was jailed for a minimum of two years after a jury found him guilty of aggravated break and enter and larceny last June.
The NSW District Court heard that Gietz was armed with a knife when he broke into the manager's unit at the Calypso Apartments and stole the keys to two units along with an American Express credit card in October, 2011.
A 13-year-old girl told the court that she was sitting up and watching television when saw "the door handle moving".
After going to her parents room and saying someone was "trying to get in", she saw a man standing in the lounge room "leaning over the couch looking at my baby sister with a knife".
When she called out "someone's in the house", the man ran out of the unit.
Her father rang police and described the intruder as a "skinny white male with grey spiky hair, in his mid to late 40s".
Police arrested Gietz a short distance from the apartments and siezed a credit card and two sets of keys.
The Crown relied on circumstantial evidence - his similarity in appearance to the description of the intruder, his possession of the credit card and unit keys and his presence in the same area where the offences had been committed less than 30minutes beforehand.
Defence lawyers claimed Gietz had been walking by the apartments when he saw the credit card and keys lying on the path and that he picked them up with the intention that he or his partner would hand them into police the next day.
They appealed the conviction on the grounds the trial judge had erred in failing to leave the jury an alternative offence of receiving stolen property and that the verdict was unreasonable having regard to the evidence.
But a panel of judges this week found that it was open for the jury to find "beyond reasonable doubt" that Gietz was the intruder and that he was guilty of both the aggravated break-in and the larceny offences and dismissed the appeal.
Gietz will be eligible for parole in June next year.
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