Kobeissi v The Queen
[2000] WASCA 44
•1 MARCH 2000
KOBEISSI -v- THE QUEEN [2000] WASCA 44
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 44 | |
| COURT OF CRIMINAL APPEAL | 01/03/2000 | ||
| Case No: | CCA:240/1999 | 11 FEBRUARY 2000 | |
| Coram: | KENNEDY J WALLWORK J MURRAY J | 11/02/00 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal against conviction granted Appeal against conviction dismissed Application for leave to appeal against sentence refused | ||
| PDF Version |
| Parties: | ALAN ALI KOBEISSI THE QUEEN |
Catchwords: | Criminal law and procedure Receiving Sufficiency of evidence Crown case circumstantial Doctrine of recent possession Absence of reasonable explanation Criminal law and procedure Sentencing Receiving One offence of receiving property to the value of $20,000 Apparent commercial purpose Sentence of 18 months imprisonment upheld |
Legislation: | Criminal Code (WA) s 414 |
Case References: | Bruce v The Queen (1987) 61 ALJR 603 Jones v The Queen (1997) 191 CLR 439 M v The Queen (1994) 181 CLR 487 McCarthy v The Queen [1985] WAR 84 R v Connolly (No 2) [1991] 2 Qd R 661 Trainer v The King (1906) 4 CLR 126 Weissensteiner v The Queen (1993) 178 CLR 217 Australian Coal and Shale Employees' Federation v Commonwealth (1953) 94 CLR 621 Eastough v The Queen, unreported; SCt of WA; Library No 980108; 12 March 1998 Flintoff v The Queen, unreported; CCA SCt of WA; Library No 980388; 2 June 1998 Harwood v The Queen, unreported; CCA SCt of WA; Library No 950372; 27 July 1995 Heferen v The Queen [1999] WASCA 81 Hogermeer v The Queen, unreported; CCA SCt of WA; Library No 970657; 2 December 1997 House v The King (1936) 55 CLR 499 K v The Queen, unreported; CCA SCt of WA; Library No 980276; 22 May 1998 Negri v The Queen, unreported; CCA SCt of WA; Library No 980649; 18 September 1998 Owens v The Queen, unreported; CCA SCt of WA; Library No 980326; 17 June 1998 Palmer v The Queen, unreported; CCA SCt of WA; Library No 970263; 21 May 1997 Pedretti v The Queen, unreported; CCA SCt of WA; Library No 970714; 12 December 1997 Quina v The Queen, unreported; CCA SCt of WA; Library No 930709; 10 December 1993 R v Calabria (1982) 7 A Crim R 207 R v Causby (1984) 17 A Crim R 461 R v Dickson, unreported; CCA SCt of WA; Library No 990203; 23 April 1999 R v Dinsdale, unreported; CCA SCt of WA; Library No 990021; 2 February 1999 R v Ford (1998) 103 A Crim R 501 R v GP (1997) 18 WAR 196 R v Hicks (1987) 27 A Crim R 401 R v Lee (1950) 82 CLR 133 R v Liddington (1997) 18 WAR 394 R v P (1992) 64 A Crim R 381 R v Percy [1975] Tas SAR 62 R v Weng Keong Chan (1989) 38 A Crim R 337 Russon v The Queen, unreported; CCA SCt of WA; Library No 950725; 21 December 1995 Steuart v The Queen, unreported; CCA SCt of WA; Library No 950486; 15 September 1995 Vassiliou v The Queen [1999] WASCA 140 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : KOBEISSI -v- THE QUEEN [2000] WASCA 44 CORAM : KENNEDY J
- WALLWORK J
MURRAY J
- CCA 242 of 1999
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Receiving - Sufficiency of evidence - Crown case circumstantial - Doctrine of recent possession - Absence of reasonable explanation
Criminal law and procedure - Sentencing - Receiving - One offence of receiving property to the value of $20,000 - Apparent commercial purpose - Sentence of 18 months imprisonment upheld
(Page 2)
Legislation:
Criminal Code (WA) s 414
Result:
Application for leave to appeal against conviction granted
Appeal against conviction dismissed
Application for leave to appeal against sentence refused
Representation:
Counsel:
Applicant : Mr D P A Moen
Respondent : Mr R E Cock QC
Solicitors:
Applicant : Andree Horrigan
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Bruce v The Queen (1987) 61 ALJR 603
Jones v The Queen (1997) 191 CLR 439
M v The Queen (1994) 181 CLR 487
McCarthy v The Queen [1985] WAR 84
R v Connolly (No 2) [1991] 2 Qd R 661
Trainer v The King (1906) 4 CLR 126
Weissensteiner v The Queen (1993) 178 CLR 217
Case(s) also cited:
Australian Coal and Shale Employees' Federation v Commonwealth (1953) 94 CLR 621
Eastough v The Queen, unreported; SCt of WA; Library No 980108; 12 March 1998
Flintoff v The Queen, unreported; CCA SCt of WA; Library No 980388; 2 June 1998
(Page 3)
Harwood v The Queen, unreported; CCA SCt of WA; Library No 950372; 27 July 1995
Heferen v The Queen [1999] WASCA 81
Hogermeer v The Queen, unreported; CCA SCt of WA; Library No 970657; 2 December 1997
House v The King (1936) 55 CLR 499
K v The Queen, unreported; CCA SCt of WA; Library No 980276; 22 May 1998
Negri v The Queen, unreported; CCA SCt of WA; Library No 980649; 18 September 1998
Owens v The Queen, unreported; CCA SCt of WA; Library No 980326; 17 June 1998
Palmer v The Queen, unreported; CCA SCt of WA; Library No 970263; 21 May 1997
Pedretti v The Queen, unreported; CCA SCt of WA; Library No 970714; 12 December 1997
Quina v The Queen, unreported; CCA SCt of WA; Library No 930709; 10 December 1993
R v Calabria (1982) 7 A Crim R 207
R v Causby (1984) 17 A Crim R 461
R v Dickson, unreported; CCA SCt of WA; Library No 990203; 23 April 1999
R v Dinsdale, unreported; CCA SCt of WA; Library No 990021; 2 February 1999
R v Ford (1998) 103 A Crim R 501
R v GP (1997) 18 WAR 196
R v Hicks (1987) 27 A Crim R 401
R v Lee (1950) 82 CLR 133
R v Liddington (1997) 18 WAR 394
R v P (1992) 64 A Crim R 381
R v Percy [1975] Tas SAR 62
R v Weng Keong Chan (1989) 38 A Crim R 337
Russon v The Queen, unreported; CCA SCt of WA; Library No 950725; 21 December 1995
Steuart v The Queen, unreported; CCA SCt of WA; Library No 950486; 15 September 1995
Vassiliou v The Queen [1999] WASCA 140
(Page 4)
1 JUDGMENT OF THE COURT: The applicant was presented in the District Court for trial before Macknay DCJ and a jury upon an indictment charging him with two offences in the alternative. He was first charged with an offence of breaking and entering a pharmacy in the Floreat Forum Shopping Centre on 23 March 1998. It was alleged that he committed the offence of stealing therein. The alternative charge was of an offence of receiving, said to be committed at his home in Yokine on the same date, the property in question being alleged to be a quantity of assorted perfumes, the property of the pharmacy. The form of indictment is authorised by the Criminal Code (WA) s 586(4a). The jury ultimately acquitted the applicant of the charge of burglary, but convicted him of the offence of receiving.
2 In accordance with the law and his Honour's charge to the jury, it is therefore apparent that they were not persuaded beyond a reasonable doubt that the applicant broke and entered the pharmacy and stole the perfumes, but they were satisfied to the required standard that the applicant at his home took possession of the stolen perfumes (or more strictly, a portion of them) knowing them to have been stolen. In truth, so far as the receiving charge was concerned, at trial there was no issue that the property in question was a quantity of perfumes owned by, and stolen from, the pharmacy when the shop was burgled that night and that they were in the possession of the applicant. The issue at trial was whether upon his receipt of the property the applicant knew it to be stolen.
3 As to that the primary facts were undisputed. They were that on 22 March the Floreat Forum Shopping Centre was broken into and an alarm was triggered. A security officer, a Mr McCormick, attended and surprised two male persons, one of whom was wearing a balaclava. They fled. Neither of those persons was identified by Mr McCormick as the applicant. One of the shops in the forum, a pharmacy, had been entered and some petty cash had been stolen.
4 In the early hours of the following morning, 23 March 1998, there was again a break-in to the Shopping Centre and specifically to the pharmacy, which had been entered through a hole cut in the roof, bypassing the security alarm. On this occasion a large quantity of perfumes and other toiletries had been stolen. The security officer attended this time at about 5.00 am. On the evidence the jury would be entitled to conclude that the burglary was a professional operation targeting valuable property which had been stolen in considerable quantity, about 350 items of perfume and other toiletries. Some drugs were taken. The retail value of the property stolen was about $30,000.
(Page 5)
- Further, the jury would have been entitled to conclude that this burglary occurred shortly before Mr McCormick's attendance at 5.00 am.
5 On the same morning, at about 7.15 am, customs officers and police officers executed a search warrant at the applicant's home in Yokine. The reason for the issue of the search warrant was apparently entirely unrelated to the burglary of the pharmacy at the Floreat Forum. However, in the loungeroom, a number of large plastic bags were found. They were not concealed. They contained a large quantity of perfumes and other toiletries which were readily identifiable as having come from the burgled pharmacy. In the master bedroom of the unit the officers found a further small plastic bag containing 11 items of perfume, also identifiable as having come from the pharmacy. These were found in the wardrobe with female clothing.
6 When asked about the perfume the applicant said that it had been left on his doorstep on the previous day (in fact, probably before it had been stolen) with a note which simply said, "From Dave". The applicant said that it commenced to rain and he brought the perfume inside to protect it from the weather. He was waiting to see to whom it belonged. When later he was again interviewed on video, the applicant repeated that story and added that although some items had been separated out for his wife, he had told her not to do anything with them until he found out from where the perfumes had come and whose property they were. The value of the perfumes seized from the applicant's home was approximately $20,000.
7 In those circumstances it was readily understandable that in opening the Crown case, the learned prosecutor relied upon what he told the jury was the doctrine of recent possession which he correctly described as the proposition that if a person was discovered in possession of recently stolen goods and failed to give a credible explanation for that possession in circumstances where it was to be expected that he or she would have done so, the jury would be entitled to infer that the person was either the thief (in this case one of the burglars), or had received the goods knowing them to have been stolen: Trainer v The King (1906) 4 CLR 126, 132; R v Connolly (No 2) [1991] 2 Qd R 661.
8 In Bruce v The Queen (1987) 61 ALJR 603, at 603, the High Court, in a joint judgment (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ), said:
(Page 6)
- "Where an accused person is in possession of property which is recently stolen, the jury is entitled to infer as a matter of fact, in the absence of any reasonable explanation, guilty knowledge on the part of the accused. Such an inference will be drawn from the unexplained fact of possession of such property and not from any admission of guilt arising from the failure to proffer an explanation. It is the possession of recently stolen property in the absence of explanation or explanatory circumstances, which enables the inference to be drawn. Thus the absence of any reasonable explanation must not itself be explicable in a manner consistent with innocence.
The accused must have had an opportunity to give an explanation in circumstances where, if he is innocent, an explanation might reasonably be expected. Those circumstances do not encompass the situation where an accused, having been duly cautioned, declines to answer questions by the police in the exercise of his right to do so. On the other hand, the fact that the caution was given or that the right to silence was asserted or exercised does not itself provide an explanation of the recently stolen goods or necessarily negate the existence of circumstances of unexplained possession of such goods where such circumstances otherwise exist."
- See also Wigmore on Evidence (Tiller's Revision, 1987) par 152, 155 and 9 Wigmore on Evidence (3rd ed, 1940) par 2513.
9 In this case the applicant gave no evidence, relying upon the story told to the investigating police officers. Of course he had no obligation to give evidence and the onus remained upon the Crown to prove his guilt beyond reasonable doubt. It followed, as the jury were told by the learned trial Judge in his direction to them, that if the jury were left in doubt as to whether the explanation given was true, they must acquit because the explanation was of the receipt of the goods with no reason to suppose that they were stolen: McCarthy v The Queen [1985] WAR 84. It was only if the jury rejected the applicant's explanation and were otherwise persuaded beyond reasonable doubt, having regard to the doctrine of recent possession, that the applicant stole the property or received it knowing that it was stolen, that they would be entitled to convict him of either offence charged in the indictment.
10 There appears to have been no suggestion that his Honour might have directed the jury that if they rejected as untruthful the applicant's explanation as told to the police, they might also have regard to his failure
(Page 7)
- to give evidence when considering his state of mind at the time of his receipt of the stolen goods. The jury might have been told that they might more safely infer the applicant's guilty knowledge from the proved facts by reason of the failure of the accused to give evidence of his state of mind, uniquely within his knowledge: Weissensteiner v The Queen (1993) 178 CLR 217. No doubt the ground was thought to be substantially covered by the directions as to the doctrine of recent possession. It is against that background that the application for leave to appeal against conviction was to be considered.
11 It proceeded on one ground; that the conviction was unsafe or unsatisfactory because on the evidence a reasonable jury must have had a doubt as to the guilt of the accused and indeed, they apparently did so, so it was argued, having regard to their acquittal of the applicant of the offence of burglary. Following argument, the Court was unanimously of the view that although leave to appeal against conviction should be granted, the appeal should be dismissed.
12 The appeal against conviction was to be decided by the Court asking itself whether upon the whole of the evidence it was open to the jury to be satisfied of guilt of the receiving offence beyond reasonable doubt. In posing that question to itself, the Court was not to overlook the fact that it was to the jury that the responsibility of deciding upon the guilt or innocence of the applicant was entrusted: M v The Queen (1994) 181 CLR 487. In this case therefore, the question to be asked was whether the circumstantial evidence was capable of supporting an inference of guilty knowledge beyond reasonable doubt.
13 In our opinion that was clearly so. Indeed, the Crown case seemed to us to be quite strong. The burglary upon the pharmacy was clearly of a professional kind, having regard to the mode of entry and the bypassing of the security alarm. Property to a considerable value was stolen. The perfumes and other cosmetics were obviously taken because of their value and the supposed ease of disposing of them.
14 Within a relatively short space of time the bulk, but not all of the property, was in the possession of the applicant at his home. The jury was entitled to disbelieve the explanation given by the applicant as to the circumstances in which he came into possession of the property. It was an explanation of an incredible kind. They therefore had no explanation, the applicant not having given evidence which was consistent with his innocent possession of the goods. His behaviour at the time, however, was consistent with him having made a decision to keep and give to his
(Page 8)
- wife a small portion of the perfumes, retaining the rest to be disposed of for gain.
15 The applicant relied upon the proposition that the conviction of the receiving offence was inconsistent with the acquittal of the burglary in the sense discussed in Jones v The Queen (1997) 191 CLR 439. However, in our opinion, there was no relevant inconsistency between the two verdicts. The jury were entitled, unless they were generally unpersuaded of the guilt of the applicant to the required standard, to choose between the two offences. Apart from the doctrine of recent possession, there was little in the evidence before them to justify the conclusion that the applicant was implicated in the burglary, but as to the receiving offence there was, of course, direct evidence of the applicant's possession of the property, direct evidence that it was stolen property and, as we have already said, much to support the conclusion beyond reasonable doubt that the applicant knew the property was stolen.
16 Following his conviction the applicant was sentenced by Macknay DCJ to 18 months imprisonment with eligibility for parole. The applicant applied for leave to appeal against that sentence and after hearing argument, that application was refused by this Court. The application was pursued on the general ground that the sentence imposed was manifestly excessive. More particularly, it was asserted that the learned sentencing Judge placed insufficient weight upon the applicant's personal circumstances, his age, his antecedents and his lack of a significant criminal record. Finally, it was contended that the applicant was sentenced more severely because, as the ground has it, he exercised his right of silence and did not give evidence during the trial.
17 In cases of this kind reference to other decided cases is of little assistance because of the infinite variation in the particular circumstances of different cases. A number of other cases were discussed during argument, but in our view they did not assist the Court to the conclusion that the exercise of discretion by the trial Judge in any way miscarried having regard to the sentences imposed in other cases. When regard is had to the value of the property stolen and received by the applicant, and its nature as property capable of being disposed of for a profit, a sentence of 18 months imprisonment is well within the range and indeed to the lower end, given that the offence was punishable by 14 years imprisonment in the circumstances of this case. No doubt it is right to say that the evidence did not support the conclusion that the applicant was a professional "fence", but the receiving offence committed was nonetheless of a substantial kind. That was the view of the offence which
(Page 9)
- Macknay DCJ adopted when he concluded, after reviewing the facts, that "the property was in [the applicant's] possession for a commercial reason, albeit an illegal one."
18 His Honour did not overlook the applicant's personal circumstances. In his sentencing remarks he noted that the applicant was aged 26 with a good work record and qualifications in mechanical engineering. He had a record of previous convictions, principally for traffic offences and drug offences, but with no previous offences of dishonesty. His Honour summed up his view of such matters by saying:
"I will take into account the fact that you have not committed an offence of this kind before and I will take into account your personal circumstances to that extent and moderate the sentence which I would otherwise impose on you."
- We could see nothing in the way this aspect of the sentencing process proceeded to suggest that his Honour's discretion miscarried.
19 Finally, the suggestion that the application was more severely dealt with because of his failure to give evidence at the trial is unsupportable. Macknay DCJ did say that his view of the facts of the case was coloured by the fact that the explanation given by the applicant for his possession of the goods "was scarcely a credible one" and that, although the applicant was the only person able to provide an explanation which would enable the offence to be viewed less seriously, he had not done so. With respect, that observation was clearly appropriate and supportable, having a relevance to the sentencing process.
20 His Honour later touched on the same matter in connection with his decision (in our view rightly made) not to suspend the sentence his Honour proposed to impose. His Honour said that the applicant's silence upon the question why he was in possession of the property prevented the Court from concluding that suspended imprisonment would be an appropriate disposition, particularly having regard for the need for a deterrent sentence, both generally and particularly to deter the applicant from offending in like manner again. In our view this reasoning exposes no error and for all those reasons we concluded that the application for leave to appeal against the sentence should be refused.
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