Franke v The Queen
[2002] TASSC 96
•13 November 2002
[2002] TASSC 96
CITATION: Franke v R [2002] TASSC 96
PARTIES: FRANKE, Anna
v
R
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 76/2002
DELIVERED ON: 13 November 2002
DELIVERED AT: Hobart
HEARING DATES: 5 November 2002
JUDGMENT OF: Underwood, Slicer and Evans JJ
CATCHWORDS
Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Particular grounds - Unreasonable or insupportable verdict - Where appeal dismissed - Whether unsafe and unsatisfactory.
M v R (1994) 181 CLR 487; Kelly v O’Sullivan (1994) 4 Tas R 446, followed.
Aust Dig Criminal Law [969]
Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Appeal by convicted persons - Applications to reduce sentence - Property offences - Receiving - Whether sentence manifestly excessive.
Aust Dig Criminal Law[1012]
REPRESENTATION:
Counsel:
Appellant: In person
Respondent: J Ransom
Solicitors:
Respondent: Director of Public Prosecutions
Judgment Number: [2002] TASSC 96
Number of Paragraphs: 33
Serial No 96/2002
File No CCA 76/2002
ANNA FRANKE v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD J
SLICER J
EVANS J
13 November 2002
Order of the Court
Appeal against conviction dismissed.
Application to extend time to appeal against sentence dismissed.
Serial No 96/2002
File No CCA 76/2002
ANNA FRANKE v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD J
SLICER J
EVANS J
13 November 2002
The appellant was sentenced to a term of imprisonment for a period of nine months following her conviction of the crime of receiving stolen property, contrary to the Criminal Code, s258(1). Her appeal against conviction is on the ground that:
"The conviction is unsafe and unsatisfactory in all the circumstances".
Prosecution case
On 29 August 2001, police went to the appellant's home in Launceston and found a number of woodheaters inside the premises. At the time of attendance, the appellant was in the process of cleaning one of the heaters which were located in the carport. An officer of Housing Tasmania was called to the home and identified, by serial numbers, two of the heaters as having come from Housing Tasmania.
Between April and August 2001, a number of woodheaters had been stolen from unoccupied homes belonging to Housing Tasmania, the period corresponding with the dates stated in the indictment.
The records of Housing Tasmania indicated that during the period April 2000 until August 2001, 17 woodheaters had been stolen from various homes owned by the Department in the Launceston area. Two of the heaters found at the appellant's home matched (by reference to serial numbers) ones stolen and the remaining three were not checked since the investigating officer advised that there was no need to so do.
The heaters were stolen by Mr Ricky Burns, who gave evidence at trial. He told the jury that he had stolen some 18 heaters from Housing Tasmania homes in the Rocherlea and Ravenswood areas of Launceston during a 12 month period. He had been charged with 18 counts of theft of the heaters and pleaded guilty to each, receiving a sentence of imprisonment for those crimes. Mr Burns stated that each heater had been taken to the appellant's home and sold to her. Different prices were paid by her, varying between $250 and $300, although after a short period of time, a standard price of $250 was agreed. He did not resile from his evidence during the course of cross-examination. (The learned trial judge gave the appropriate accomplice direction in relation to his evidence.)
The daughter of the appellant, in her evidence, stated that while she was living with her mother, she recalled woodheaters being delivered to her mother's home by "Rick" and others. She was aware that the appellant was advertising the heaters in a daily newspaper and selling them from her residence. Her account that the heaters were delivered at night was challenged in cross-examination.
A person who had purchased a woodheater from the appellant testified that she had paid $600 for the item.
Purchase from Burns and possession by the appellant were not an issue. The appellant told police, in a recorded interview, that she had purchased a number of woodheaters from a man named Ricky for a price of $250 and had regularly advertised their proposed sale in the "Examiner" for a price of between $600 - $850. She denied selling 18 units and claimed that only 6 or 7 of the items were sold. She acknowledged that the last advertisement had been advertised some three days prior to the interview and agreed that the woodheaters recovered from her home had been purchased from "Ricky".
Issues at trial
The only issues at trial were the number of units possessed and the knowledge of the appellant. She elected not to give evidence and relied on the account which she had given to police. A neighbour had told the jury that she recalled some 20 - 30 heaters being delivered to the appellant's home during the course of a year, and the jury were entitled to use her evidence as corroboration of the version given by the accomplice Burns. No complaint is made as to the form and nature of the direction given to the jury by the learned trial judge in relation to the requirement of knowledge. In view of the general nature of the ground of appeal, the Court has considered whether the issue of "knowledge" was adequately put to the jury. The relevant direction was given in the following terms:
"… before you could find her guilty you have to be satisfied beyond reasonable doubt that she received or had in her possession wood heaters. You have to be satisfied beyond reasonable doubt that they were in fact stolen wood heaters. I don't think you'll have any trouble with that. That's a matter for you but you have to also be satisfied beyond reasonable doubt that at the time she received some of them, or at the time she had possession of some of them, she knew that they were stolen. Now belief the property is stolen amounts to knowledge that they are stolen. It need not be knowledge to the point of certainty it is sufficient if there is a real belief held by her that the heaters were stolen, but to know something is, to know something involves a belief to the exclusion of all other propositions. So thinking that it was probably stolen is not enough, suspecting that it is stolen is not enough to find her guilty. The way this crime is defined is receiving or having possession of stolen property knowing it to be stolen, knowing it to be stolen, you must know it not suspect it, not think that oh perhaps it is, but know it. It is not a crime until you have got it and you know it is stolen, and it is in fact stolen of course."
The direction was appropriate for the circumstances of the case.
The appellant had denied knowledge that the items had been stolen, during her interview with police. Her answers on a number of matters, including the number of items received, knowledge of identity, including Burn's telephone number and a conversation with her daughter, were, at times, vague and inconsistent and could have been regarded by the jury as being evasive.
The evidence as to knowledge was compelling.
Burns said he had initially telephoned the appellant as a result of a suggestion from another person. Following the initial conversation, he went to her residence and, "I went and knocked on the door and Mrs Franke come out and said - looked at the heater and bought the heater".
He said that he had told her several times where the heaters had come from, in the following terms:
"… well she asked where they come from and I told her House[sic] Department houses."
The following exchanges between Burns and counsel during evidence-in-chief indicate the extent of knowledge:
"… Well did you say how you'd got them from Housing Department houses? ... Just pulled them out of the houses, yeah.
Well, more specifically, did you tell her that they were stolen? ... Yes.
How many times do you think you told her that whilst you were giving her these 18 woodheaters? ... Oh a couple of times.
In person? ... Yes.
Did she ever say anything to you about that? ... No, she just told me not to get caught.
Okay. And in so far as the period covered by you giving her, taking up these woodheaters to her, who was really on the front foot so far as this arrangement was concerned. Were you ringing her saying, for instance, I've got some more woodheaters, or was she ringing you? ... She was ringing me and I was ringing her.
Right. So, it was pretty mutual? ... Yes.
Okay. Was there any agreement as to a type of woodheater? ... No, she wanted freestanding or inbuilt.
Right. Didn't matter? ... Had to be black.
Had to be black? ... Yeah.
Right. Did you have any other conversations over this period, Ricky, with Mrs Franke about woodheaters and stealing them etcetera that you recall? ... Yeah.
Well can you‑? ... She - actually she wanted a bigger woodheater for her actual home and she wanted me to go to a shop and get one out, out of a shop."
That evidence supported the prosecution case that on occasions the appellant was ordering as if by consignment, a matter raised by police during the interview, and which was corroborated by the appellant's daughter when she told the jury:
"Well, my mother would mainly phone in the evening. She phoned Rick and asked him to bring over a wood heater or a few."
She also said in evidence that during one of the deliveries of the heaters:
"I did want to speak to the boys outside one night, but my mother said, 'get inside, I don't want you to have anything to do with them'."
and further that:
"Well, mostly heaters were delivered between 8pm and 11pm and, as I said before, Mum used to stay up sometimes to wait for a delivery, but usually Mum is an early riser and she goes early to bed."
A person who had purchased a heater from the appellant said that in response to an enquiry of the origin of the unit that:
"She [the appellant] said that she had previously sold her own wood heater and she had friends who had wood heaters to sell because they were changing over to either electric or gas heating and that she'd agreed to sell them on behalf of the people."
The appellant told police, in general terms, of how she arranged for the delivery of the heaters, in the following exchange:
"WF… When he rang you for these heaters, alright, for a woodheater, right, what would he say over the phone to you
AFWell, I have a woodheater here, either free stander or Saxon
WFRight
AFA free-stand or, or in-built
WFWe, what I'm saying is, I don't know if you understand me. When Ricky rings you up
AFMmm
WFThis is Ricky, right, what does he say to you over the telephone
AFI have one in-built-in heater or 1 free-stand one, and that's you know
WFAnd what do you say to that
AFWell, either I, I said, bring one or don't, see if I haven't sold it
WFAlright
AFSee
WFAnd if you run out of heaters, say you sell them
AFYeah
WFRight. Do you, have you ever rung Ricky and said can you get me some more heaters
AFYes I did, yes
WFRight. How many times have you done that
AFI don't know really, but I never, I never was really short of them. I never run out of them because ah, as I said to you before, ah I advertise them many times but that does not mean I sold them, see. I was never, I never ever got rid all of them, never "
She said that she did not question "Ricky" as to the provenance of the units and had not been wary of their origin. She said:
"AFI was not really suspicious, but I was wondering, I said, that's funny how, because
WF ???
AF Yeah, hmm
WFHang on. What's the difference between wondering where they came from and being suspicious of where they've come from
AFAh, I was not really, see, because I didn't ask many questions and I didn't really bother because they said they were destroying them and, and smashing them up and that was it see."
She was not suspicious because:
"AF… because if I would be ??? suspicious that would mean there's something wrong somewhere, but they told me … I didn't question it actually, because they told me they're smashing them up and it's a pity to waste them and I settled on that"
She confirmed that she had made no enquiry of any other person and concluded her account to police with the statement:
"AFI mean had I known, had I known that these things were, it was some sort of crook job I wouldn't have, my god, you know, I wouldn't have, wouldn’t have never had anything to do with it. How would I know, I mean I was never in this situation before"
The jury were entitled to accept the corroborated evidence of the accomplice and other witnesses called on the trial and reject the claim made by the appellant to police.
Shortly before the hearing of this appeal, the appellant sought leave to extend time so as to enable her to appeal on sentence. In the accompanying affidavit, the appellant deposed that:
"This notice of appeal is late because 1st Nov was earliest that legal advice came through re grounds for appeal should be against sentence because:
1Compassion re age (69 in Dec) and ill health not emphasized enough.
2Emotional distress caused by depriving contact between mother & child.
3Previous convictions - jury not informed how these all related directly to atrocities suffered during early life in war & cruelty in marriage.
4No criminal intent or danger to public not emphasized sufficiently.
5Psychological state of mind requires real professional help not more incarceration from this country too.
6Financial gain from heater sales totally eclipsed by financial stresses prior to and now after imprisonment which make situation dramatically worse.
7Unbalanced representation in court rendered jury unable to properly determine decision on balance of probabilities (their perception of facts unbalanced because Mr Burns had his say on the stand, but I did not, so his testimony did not get contradicted by me)."
Paragraph 7 will be treated as a particular of the ground of appeal against conviction. It is correct that the appellant, who was represented at trial by experienced counsel, neither gave nor adduced evidence. However, in her interview with police, the appellant contested the number of units said to have been received, unequivocally denied knowledge and told the interviewing officers that she had been told by Burns, whom she believed, that the heaters had been obtained in the breaking up of or planned removal from Housing Department premises. Her version of events had been put before the jury on the trial. The defence case accorded with the statements made during the course of the interview and was fully put to the jury during the course of the summing up. One can well understand the tactical decision taken in relying on the existing material and not exposing the accused to cross-examination. She had fully explained her version of events.
The fact that the appellant, properly advised, did not give evidence, does not, in the circumstances here, render the verdict either unsafe or unsatisfactory.
There were other matters relevant to the issue of knowledge or belief which include:
(1)the number of units delivered and the time and frequency of their delivery;
(2)the condition of the units and the price disparity between amount of purchase and sale;
(3)the terms and frequency of advertisements place by the appellant;
(4)the reasonableness of the claimed belief that the units were either discarded or being "broken up".
The test of a verdict said to be "unsafe and unsatisfactory" has been stated on many occasions (M v R (1994) 181 CLR 487; Kelly v O'Sullivan (1994) 4 Tas R 446) and does not require further consideration in this case.
In our opinion, the ground cannot be sustained and the appeal against conviction ought be dismissed.
Appeal against sentence
The appellant was sentenced to a term of imprisonment for a period of nine months. The learned sentencing judge took into account the age of the offender and regarded a previous conviction for the crime of manslaughter as not "being particularly relevant".
The appellant had three previous convictions for stealing between 1975 and 1979, and one for unlawful possession in 1978. She had previously been to prison and had committed a breach of a suspended sentence.
His Honour regarded the crime to be of such seriousness that it warranted a term of imprisonment. He found:
"The amount of stolen property in which you were dealing exceeded $20,000. By providing a market you encouraged the thief to continue to break into public property and to steal heaters. You did this for your own profit. You may well have been short of money, I can understand that, but you must have been well aware of the consequences or the likely consequences if you were detected.
I am aware that you have the care of an 11-year-old grandchild, but of course you committed this crime when you had that care. I am not persuaded that it should have some mitigatory effect so that imprisonment should not result."
The acts of receiving were systemic and occurred over a lengthy period. They were for financial gain and involved a considerable gain to the offender. The finding on the part of the learned sentencing judge as to the value of the property involved was in accordance with the verdict.
The sentence was within the permitted range (Catto v R A72/1996; Pappas v R 50/1966, Carnicelli v R 52/1963; Bowerman v R 55/1983).
The length of the sentence does not demonstrate error.
Given that the appeal against sentence could not succeed, the appropriate order is that the application to extend time ought be refused.
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