Aliano v Ashwood
[2018] TASSC 44
•24 September 2018
[2018] TASSC 44
COURT: SUPREME COURT OF TASMANIA
CITATION: Aliano v Ashwood [2018] TASSC 44
PARTIES: ALIANO, Thomas James
v
ASHWOOD, Michael (Sergeant)
FILE NO: 1872/2018
DELIVERED ON: 24 September 2018
DELIVERED AT: Hobart
HEARING DATE: 17 September 2018
JUDGMENT OF: Brett J
CATCHWORDS:
Magistrates – Hearing – Evidence – Other matters – Matters relating to decision – Applicant's fingerprints were found on counterfeited notes and related manufacturing material – Reasonably open to magistrate to reach a conclusion of guilt in respect of each charge.
Phillips v Arnold [2009] TASSC 43, 19 Tas R 21, referred to.
Aust Dig Magistrates [1153].
Magistrates – Orders and convictions – Sentence – Custodial orders – Limitations on consecutive or cumulative sentences – Magistrate imposed State and federal sentence of imprisonment, with federal sentence commencing on the date the State sentence was to end – Applicant argued not making the sentence cumulative was an error because it denied him the right to be considered for a remission on the State sentence – Magistrate required to fix a specific date for commencement of the federal sentence.
Crimes Act 1914 (Cth), s 19.
Mercanti v The Queen [2011] WASCA 120, applied.
Aust Dig Magistrates [1218]
REPRESENTATION:
Counsel:
Applicant: In person
Respondent: J Nunn
Solicitors:
Respondent: Director of Public Prosecutions (Commonwealth)
Judgment Number: [2018] TASSC 44
Number of paragraphs: 27
Serial No 44/2018
File No 1872/2018
THOMAS JAMES ALIANO v SERGEANT MICHAEL ASHWOOD
REASONS FOR JUDGMENT BRETT J
24 September 2018
On 10 March 2017, during a search of premises pursuant to a search warrant, police found the applicant in the sole bedroom of a unit. Police also located in the bedroom a quantity of counterfeit $50 notes, together with other material consistent with the manufacture of counterfeit currency, and a computer which, when examined, revealed that someone had made a number of Google searches in relation to the manufacture of counterfeit $50 notes. Subsequent forensic investigation revealed the applicant's fingerprints on the counterfeit notes, the computer and the container in which the counterfeit money had been found. DNA with a high probability match to the applicant was also located on the container.
The applicant was charged with the following offences which were contrary to the Crimes Currency Act 1981 (Cth) (the Act):
(a)Possession of counterfeit money contrary to s 9(1)(a) of the Act;
(b)Making counterfeit money contrary to s 6 of the Act; and
(c)Possession of material used for counterfeiting contrary to s 11(2)(b) of the Act.
The applicant pleaded not guilty to all three charges. On 6 March 2018, after a hearing, Magistrate S Cure found each charged proved. Her Honour published written reasons. On 22 May 2018, her Honour sentenced the applicant in respect of the said offences, and imposed a separate sentence in relation to State offences to which the applicant had pleaded guilty. The sentences imposed were as follows:
(b)In respect of the State offences, a global sentence of six months' imprisonment which was backdated to 6 June 2017, the date upon which the applicant had been taken into custody;
(b)For the Commonwealth offences, a global sentence of 20 months' imprisonment, commencing on 6 December 2017, with a recognizance release order that would permit the applicant to be released on recognizance after serving 10 months of that sentence.
The applicant now seeks a review of both conviction and sentence. Although the applicant was represented at the hearing, he was not legally represented in respect of this review. The notice to review had been prepared by the applicant, and did not clearly set out the grounds of review. At a directions hearing, I assisted the applicant to refine the grounds, and as a result, the notice was amended. The grounds, as amended, are:
"a no reasonable magistrate could have concluded that the guilt of the Applicant had been made out beyond reasonable doubt in respect of counts 1, 2 and 3 of Complaint 17/91052;
b the sentence imposed was in all the circumstances manifestly excessive;
c the magistrate erred in law in refusing to admit into evidence the evidence of the occupant of the unit; and
d the magistrate erred in law by failing to backdate the sentence to 6 June 2017."
Conviction – grounds 1 and 3
Ground 1 is a general ground which asserts that it was not open to the magistrate to find guilt proved in respect of any of the charges. The test in respect of such a ground is well known. It is "whether upon the evidence the magistrate might, as a reasonable person have come to a conclusion which he or she did": Phillips v Arnold [2009] TASSC 43, 19 Tas R 21, and cases cited therein.
In thoughtful submissions, the applicant conceded that the evidence was sufficient to entitle the magistrate to find that he had been in possession of the counterfeit money and, hence, was guilty of that charge. However, he argued that no reasonable magistrate could have been satisfied beyond reasonable doubt that he was responsible for making the counterfeit money, or that he had possessed the various items which related to count 3, knowing that those items were material which had been used in, or in connection with, the making of counterfeit money. In relation to ground 3, the applicant clarified that the argument was not that the magistrate had refused to admit the evidence in question, but rather that she had not properly considered evidence relating to the occupier of the unit (Mr Neitz) and, in particular, that it was not possible for her, as a reasonable magistrate, to reject as a reasonable possibility, that it was in fact Mr Neitz who was responsible for the manufacture of the counterfeit money. Accordingly, having regard to the argument put forward by the applicant, the issue raised in respect of this ground is subsumed within ground 1.
The evidence was in reasonably short compass. Three police officers gave virtually unchallenged evidence concerning the search. A significant part of the prosecution case was established by agreed facts and other material admitted by consent. This included the expert evidence relevant to fingerprints, DNA, and establishing that the notes in question were counterfeit.
The prosecution evidence can be summarised as follows. Police attended the relevant premises, a one-bedroom unit, on the morning of 10 March 2017. They attended because of a report that a man had uttered a counterfeit $50 note at a retail business. The man in question was the occupant of the premises, Mr Neitz. He and his female partner were present at the unit when police arrived. Police found the applicant lying on a bed in the only bedroom in the apartment. He appeared to be asleep. Police also located within the bedroom, and seized, the following items of property:
"a A plastic container, located on a table next to the bed, containing:
i Eleven (11) counterfeit $50 notes with serial number AF09117688.
ii Forty-seven (47) counterfeit $50 notes with serial number HH13863456.
iii Four (4) sheets of paper with stencils of the stars of the Southern Cross, the same shape as in a $50 note.
iv A sheet of paper with a number of patterns the same shape as the window section of a $50 note.
v Blank paper.
b A backpack, located at the foot of the bed, containing:
i An Acer aspire laptop.
ii A can of white enamel.
iii A can of clear enamel.
iv Spray paint gun and attachments.
v Scissors.
vi A glue stick.
vii Cutting tools with razor blades.
viii A Stanley knife.
ix Sticky tape.
x Two (2) bottles of liquid paper.
xi Tweezers.
xii Soap.
xiii A section of plastic with a shape cut out resembling the window section of a $50 note.
xiv A piece of aluminium in the shape of a window section of a $50 note."
It was an agreed fact that the applicant's fingerprints had been located in the following locations:
(a)three separate fingerprints inside the lid of the plastic box;
(b)a thumb print on the computer screen;
(c)13 separate prints on the papers and stencils found with the counterfeit $50 notes;
(d)10 separate fingerprints on various partially completed counterfeit $50 notes.
A number of other fingerprints were found but there was insufficient information to enable a positive identification. Only one fingerprint was found on the above material which was identified as belonging to a person other than the applicant.
An analysis of swabs taken from the laptop computer and the clips on the plastic container revealed the presence of DNA. Each sample contained a mixed profile, and, in each case, there was an extremely high probability that the applicant was a contributor to the profile.
A number of Google searches were located on the computer. These searches were of websites which related to $50 notes. They are consistent with research being conducted into notes of that type. Not all of the searches are dated, but those that are, were made on 12 February 2017.
A statutory declaration of a person with appropriate qualifications from the Reserve Bank was admitted in evidence by consent. This evidence established that the notes in question were counterfeit, and had been produced by an ink-jet printer, on paper which is not consistent with genuine currency. A hole had been cut in the paper and a piece of clear adhesive film adhered over each side of the hole to simulate a genuine window. This was consistent with the material found in the container and the backpack. Other aspects of the production were consistent with some sophistication being used in relation to the production of the counterfeit notes.
The applicant gave evidence. There was no other evidence adduced by the defence. The applicant's evidence was that he had been staying at the unit for about two days before the police search. He was homeless and ill, and staying at this unit had been a last resort. After the first night, he decided to move into the bedroom. I infer that Mr Neitz and his partner slept elsewhere in the unit. The bedroom was cluttered and in order to sleep on the bed, he needed to move a lot of items. He put items that "looked dodgy" and which included $50 note stencils, into the plastic container. He had asked Mr Neitz to remove the items from the bedroom. He denied knowledge of the ownership of the backpack. He agreed that he had opened the laptop computer and had seen that "there was dodgy stuff on it". He denied ownership of the counterfeit money or any of the items contained in the backpack, and that he had made counterfeit currency.
In order to establish count 2, it was necessary for the magistrate to be satisfied beyond reasonable doubt that the applicant had made, or had begun to make, counterfeit money. In respect of count 3, the prosecution was required to prove that the paper, enamel, cutting tools and other material recovered by the police from the container and the backpack had been used, to the knowledge of the applicant, in connection with the making of counterfeit money. Having regard to the location of the various material, and its nature, an inference was available that the same person was responsible for both offences. The sole issue of substance was the identity of the perpetrator. The prosecution case in respect of this issue was entirely circumstantial. It was based upon evidence that was uncontested. Her Honour regarded the fingerprint evidence, and the evidence of the Google searches as significant. She rejected the applicant's version as "far fetched and implausible". Although her Honour was primarily concerned in her reasons with the aspect of possession, she did conclude, particularly having regard to the fingerprint evidence, that not only was the applicant in possession of the counterfeit money and the property, but "that he has handled them in a manner other than merely gathering them up and putting them in a box". Her Honour was satisfied that the applicant "was engaged in the making of the notes at some point in time before their location".
I am satisfied that it was open to the learned magistrate, on the evidence before her, to find each of the charges proved. The fingerprint evidence, in particular, was telling. It was consistent with the applicant being the only person associated with the counterfeit money and the other relevant property, in and around the period in which it had been located by the police. It was open to the magistrate to reject the applicant's explanation as implausible.
In argument, the applicant emphasised that an alternative hypothesis consistent with innocence, which could not be excluded on the evidence, was that Mr Neitz was responsible for making the counterfeit money and its presence, along with the other property in the unit. Mr Neitz did not give evidence. The applicant's argument was based on the evidence that police had been alerted to the potential existence of counterfeit money when Mr Neitz had attempted to use a single $50 note at a retail outlet. He had been interviewed, but the contents of the interview was not submitted in evidence. The applicant's counsel did, however, question Detective Bolton about that interview. It was put to the police officer that Mr Neitz had taken responsibility for the counterfeit money and the property. The officer agreed that Mr Neitz had said that he was going to take responsibility for what was found, but had also said that he was doing so because he was "scared of the defendant". The applicant's argument is that this evidence established, at least as a reasonable possibility, that Mr Neitz was responsible for the counterfeit money, and that this possibility is consistent with the innocence of the applicant, at least in respect of counts 2 and 3.
This explanation was an inherent aspect of the applicant's testimony as to how the counterfeit notes and other paraphernalia came to be in the bedroom occupied by him. It was this aspect that was considered in some depth, and then rejected as far-fetched and implausible by the magistrate. In arriving at that conclusion, her Honour took into account the presence of the palm prints and fingerprints, which she considered to be inconsistent with the applicant's version of his handling of the relevant property. She also noted that he had retained the property in his bedroom with the capacity for close supervision and control, notwithstanding that his explanation for handling the property in the first place was to place it in a box and the bag because he considered the items "dodgy" and did not want to be associated with them. Her Honour correctly directed herself with respect to the onus of proof within the context of a circumstantial case, and considered the combined effect of all of the circumstantial evidence. Comments made by her Honour during the course of submissions clearly reveal an understanding that the effect of the applicant's version was that Mr Neitz was responsible for the money, not the applicant.
It was clearly open to her Honour, as a reasonable magistrate, to reach a conclusion of guilt in respect of all three charges, particularly having regard to the fingerprint evidence, and the location of the property in the bedroom. The fact that Mr Neitz was also in possession of one counterfeit note was not inconsistent with, nor tended to detract from the inference of guilt that was available on the evidence against the applicant. Mr Neitz's culpability in respect of that note was not in issue and, in any event, was not inconsistent with the applicant's guilt. Grounds 1 and 3 have not been made out.
The sentence
At the hearing, the applicant, again quite sensibly and properly, in my view, did not assert that the sentence was manifestly excessive, if there was a finding of guilt against him in respect of the three charges. His sole point was that he ought not to have been found guilty of counts 2 and 3, and in that case, the sentence would be manifestly excessive. Clearly, if he had been successful on ground 1, it would follow that it would be necessary to reconsider the sentence in respect of count 1.
I am satisfied, having reviewed the material, that the applicant's concession is appropriate. The offences were serious and the applicant's culpability was high. There was a need to emphasise general deterrence. The applicant's lengthy record of offending, and absence of contrition, justified some emphasis on the question of personal deterrence. The sentence was well within a proper exercise of discretion by the learned magistrate.
Backdating the sentence – ground 4
As already noted, the learned magistrate, as she was required to do, imposed separate sentences in respect of the State and federal offences. In those circumstances, s 19(3) of the Crimes Act 1914 (Cth) required the magistrate to "direct when each federal sentence commences", but so that it did not commence later than the end of the State sentences. The magistrate directed, accordingly, that the federal sentence commence on 6 December 2017, which is six months from the commencement of the State sentence, in other words, the entire length of the sentence. The magistrate did not fix a non-parole period in respect of the State sentence. If she had done so, then s 19(3) would have required her to fix the commencement of the Commonwealth sentence not later than the end of the non-parole period.
The purpose of the provisions in s 19, concerning the commencement of a federal sentence and its interaction with a State sentence either being served or imposed at the time that the federal sentence is imposed, is to ensure, particularly in circumstances where a non-parole period has been fixed, that there is no hiatus between the end of the custodial portion of a State sentence and the commencement of the custodial period of a federal sentence. See Mercanti v The Queen [2011] WASCA 120. However, in this case, the applicant argues that by fixing the commencement of the sentence as a specific date, rather than simply specifying that the sentence was cumulative upon the State sentence, or alternatively commenced on the day that he was eligible for release in respect of the State sentence, such a hiatus has arisen or, alternatively, he has been deprived of his right to be considered for a remission of part of the State sentence. Provision for the remission of a sentence arises under s 86 of the Corrections Act and reg 22 of the Corrections Regulations 2008. See also Evans v Job [2018] TASFC 3.
I understand the practical point raised by the applicant. Although he does not seem to be entitled to remissions in respect of the pre-release period of the Commonwealth sentence (Crimes Act, s 19AA(1A)), he may have been entitled to, at least, a consideration of remission of the State sentence. There is some uncertainty about this because the State sentence was not imposed until well after its expiration. I will assume for the purposes of this consideration, that the Director was empowered to grant a remission retrospectively although, having regard to my ultimate conclusion, it is not necessary to determine this question.
If the applicant has or is granted a retrospective remission in respect of the State sentence, and the federal sentence was cumulative to it, then the federal sentence will be taken to have commenced at the conclusion of the reduced State sentence. However, because the magistrate has fixed a specific date, the federal sentence is calculated from that date, 6 December 2017. This effectively removes the practical capacity of the Director to grant a remission in circumstances such as this, because the sentence has actually been served. It will also cause difficulty in the case of a prospective sentence because, even if a grant of remission is made, the fixed date commencement of the federal sentence will result in a hiatus between the sentences. The unfortunate effect of a remission would be that the prisoner would be released at the conclusion of the remitted State sentence, but would have to return to custody on the fixed date to serve the federal sentence.
Although I acknowledge the practical difficulties and potential unfairness arising from the setting of a fixed commencement date, the West Australian Court of Appeal in Mercanti held that under the cognate provision in s 19(1), it is necessary to set a specific date and "an order that a sentence be served cumulatively does not achieve this", per Hall J, with whom McClure P and Buss JA agreed at [28]. As this interpretation of Federal legislation has been determined by an intermediate appellate court in another Australian jurisdiction, I should not depart from it unless I am convinced that that interpretation is plainly wrong: Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485. Although I have some reservations concerning the intention of the legislation in cases such as this, I am not convinced that the interpretation is plainly wrong, and, accordingly, will give effect to it. It follows that, in these circumstances, the learned magistrate had no alternative other than to fix a specific date for the commencement of the federal sentence. It was not necessary that this date be the end of the full period of the sentence, but, in the circumstances of this case, her failure to backdate the federal sentence to an earlier date does not constitute error. This was a matter entirely within her Honour's sentencing discretion.
It follows that none of the grounds of appeal have been made out. The review is dismissed.
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