R v Gittani

[2002] NSWCCA 139

CITATION:	Regina v Elie Gittani [2002] NSWCCA 139
FILE NUMBER(S):	CCA 60042/02
HEARING DATE(S):	12 April 2002
JUDGMENT DATE:	19 April 2002
PARTIES :	Regina Elie Gittani
JUDGMENT OF:	Ipp AJA at 1; Sully J at 2; Bell J at 25

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/11/0908
LOWER COURT JUDICIAL OFFICER :	Kinchington DCJ

COUNSEL :	M. G. Allnutt - Crown G. A. Brady - Appellant
SOLICITORS:	Commonwealth DPP - Crown Tab Law - Appellant
LEGISLATION CITED:	Crimes (Currency) Act 1981 (C'th) Crimes Act 1914 (C'th)
CASES CITED:	Reg v Simpson [2001] NSWCCA 534 The Queen v De Simoni [1981] 147 CLR 383 Anthony Frank Howard [1985] 82 CrAppR 262
DECISION:	Leave to appeal against sentence granted; appeal dismissed

60042/02

IPP AJA
SULLY J
BELL J

Friday 19 April 2002

REGINA v ELIE GITTANI

Judgment

1 IPP AJA: I agree with Sully J.

2 SULLY J: On 10 December 2001 Mr. Elie Gittani, the present applicant, was presented for trial in the District Court at Sydney before Kinchington DCJ. He was so presented upon an indictment charging that on 6 April 2001 he did, without lawful authority or reasonable excuse, have in his possession counterfeit money, namely ninety-one counterfeit Australian $50 notes knowing it to be counterfeit money. Such a charge contravenes section 9(1)(a) of the Crimes (Currency) Act 1981 (C’th), and attracts upon conviction a statutory maximum penalty of imprisonment for 10 years and/or a maximum fine of $66,000.

3 The applicant pleaded not guilty, and he stood trial accordingly before his Honour and a jury. The jury found the applicant guilty as charged. Thereafter, and on 1 February 2002, the applicant stood for sentence before Kinchington DCJ. He was convicted and sentenced to imprisonment for 2 years to date from 1 February 2002. An order was made for his release after serving 6 months of that period of imprisonment; such release being conditioned upon his entering a recognisance, himself in the sum of $1,000, to be of good behaviour for the remainder of the said period of his sentence.

4 The applicant seeks leave to appeal against that sentence of imprisonment. His grounds of appeal, as formally notified, are:

“1. The sentence imposed was, in all the circumstances, unduly harsh and severe.
2. The sentencing judge erred in imposing a custodial sentence.
3. The sentencing judge erred in failing to wholly suspend the custodial sentence.
4. The sentencing judge erred in:
(a) failing to find hardship;
(b) failing to give sufficient weight to the appellant’s good character;
(c) finding as a matter adverse to the appellant that he did not show any remorse or contrition;
(d) finding as a matter adverse to the appellant an intention to commit another more serious offence;
(e) placing undue weight on the principle of general deterrence;
(f) asserting as a matter of principle that any person convicted of the offence of knowingly having in his possession without lawful excuse such notes must ordinarily expect to go to gaol.”

5 The relevant facts are stated sufficiently for present purposes in the following passages extracted from the Remarks on Sentence of Kinchington DCJ:

“Shortly after 1 pm on the 8th of April 2001, you were apprehended by Security officers employed by the Flemington Market Authority after a short chase and struggle outside the First Aid Centre of the market. At the time of your apprehension you were wearing around your waist a “bum bag”. During the struggle which ensured immediately after you were stopped, you undid the belt to which the “bum bag” was attached and pushed it behind you and said words to the effect “it’s not my bum bag, it wasn’t me”. A short time later two police officers arrived and arrested you and took possession of the bum bag which contained what appeared to be a quantity of Australian paper currency of which 91 notes were subsequently found to be counterfeit fifty dollar notes. Eighty-nine of those notes were recovered from one section of the bum bag while the other two notes together with $490.10 in genuine currency were recovered from another section of that bag. In addition, in another pocket of the bum bag there was found a “K Mart receipt” in the name of the offender’s wife and with her address printed thereupon.
Following the offender’s arrest he exercised his right not to be interviewed but at his trial he gave evidence and told the Jury that on the 8th April 2001 he went to Flemington Markets with his brother-in-law parked his car on the top floor of that multi-floor car park and he then walked down the car park stairs where he saw the bum bag and after picking it up saw it contained what appeared to be a large quantity of Australian currency whereupon he secured it around his waist until he decided what to do with it and then continued on into the markets where he said he purchased a dress for his daughter and a pair of socks for his son with money from his pocket before he and his brother-in-law were chased by the security officer from the markets and he was apprehended. When asked why he ran he told the jury that he did so because he had in his possession someone else’s bum bag which appeared to have in it a lot of money. Finally in effect, he denied that the bum bag belonged to him or anyone in his family and reiterated that he had picked it up or near the car park stairs as he entered the markets. However he could not explain how the K Mart receipt in his wife’s name and with his address thereon came to be in his bum bag. Finally whilst he did not deny being in possession of the bum bag and its contents at the time of his apprehension, he denied firstly that the counterfeit money and genuine money therein were his, and secondly that he knew of the existence of the counterfeit notes therein. The jury, by its verdict of guilty, obviously rejected the offender’s evidence as to how he came to have the bum bag and its contents in his possession and were satisfied not only that he had in his possession the 91 counterfeit notes but also that he knew that they were counterfeit notes as well as the other essential element that go to constitute the charge in the indictment.”

6 Having regard to the way in which the present application was argued, I take leave to repeat the following observations which I made in connection with the recent decision of a specially constituted Bench of this Court in Reg v Simpson [2001] NSWCCA 534:

“Whenever an applicant for leave to appeal against sentence submits that there is cause to show why this Court should intervene and reduce the primary sentence, it is, as I think, obvious that the first thing to be established by the applicant is that the primary sentencing discretion has miscarried, by reason of some error of fact or of law; or because of the cumulative effect of errors of both fact and law. The errors, whether of fact or of law, may be either latent or patent; but whether latent or patent, some error must be demonstrated before this Court becomes entitled at all to consider interfering with the sentence passed at first instance: Vachalec [1981] 1 NSWLR 351 at 353F; Visconti [1982] 2 NSWLR 104 at 108G.
Error once demonstrated, it does not follow automatically that this Court will, without more, intervene in fact and re-sentence. Before that can happen properly in law, the condition specified in s.6(3) of the Criminal Appeal Act 1912 (NSW) must be satisfied: that is to say, this Court must be persuaded, not only that error has been shown in the process of reasoning of the primary sentencing Court, but that some other sentence is ‘warranted in law’. I agree with the observations made in this connection by Lee AJ in Astill (No. 2) [1992] 64 A Crim R 289 at 303, 304.”

7 When the learned sentencing Judge came to deal with the applicant, his Honour was constrained, initially, by the requirements of section 16A of the Crimes Act 1914 (C’th). By reason of section 16A(1) his Honour was required to “impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence”. By section 16A(2) his Honour was required to take account “in addition to any other matters” of a number of particular matters itemised in paragraphs (a) to and including (p) of section 16A(2).

8 The submissions now put for the applicant contend that, in some particular respects at least, the learned sentencing Judge did not advert to various of the matters thus prescribed by section 16A(2). In so far as that submission is to be understood as entailing that a sentencing Judge, who is dealing with an offence to which section 16A(2) applies at all, is required to treat the provisions of paragraphs (a) to and including (p) as a statutory check-list, each one of which must be, so to speak, explicitly ticked off, then, in my opinion, the submission should be firmly rejected. To do otherwise would be to encourage, in my opinion, the artificial forensic manipulation of section 16A(2) rather than its substantive judicial application.

9 The remarks on sentence are, with respect, completely clear. They note as follows the submissions that were put to, and considered by, the learned sentencing Judge:

[1] The conviction was a conviction on a charge of possession and not on a charge of uttering in fact the relevant counterfeit notes.

[2] There was strong subjective material contained in a number of documentary references grouped together as Exhibit 1 in the proceedings on sentence. As to these, it is sufficient to note that they include a letter from applicant’s wife. That letter speaks briefly but clearly of the hardship to the wife herself and to the two children of the marriage, likely to result from the imprisonment of the applicant. The letter from the applicant’s wife also points out, briefly but clearly, the nature and extent of her own current medical condition.

[3] Such previous convictions as then stood on the applicant’s record were relatively minor matters which should play little or no part in connection with the applicant’s sentencing.

[4] The applicant had never previously been in gaol.

[5] The applicant’s prospects of rehabilitation were so good that he was not seen as requiring currently the supervision of the Probation and Parole Service.

[6] It was a reasonable inference from the known facts that the applicant was unlikely to re-offend.

10 The remarks on sentence note, also, the essence of the submissions put for the Crown in respect of sentence. Those submissions are, in brief summary:

[1] That the offence of being knowingly in possession of counterfeit money ought, in the absence of the most exceptional circumstances, attract a full-time custodial sentence of some kind.

[2] That there was no evidence sufficient to justify a conclusion that the case of the applicant was such an exceptional case.

[3] That the evidence in hand established of the applicant “not only that he knew of the existence of the counterfeit notes ……………….. but also that he brought the notes to the markets with the intention of trying to pass them or some of them off to the stall holders who were legitimately conducting their businesses at the market on this day” .

11 As to the Crown submission numbered [3] above, the learned sentencing Judge says in the remarks on sentence:

“I agree with this contention and am satisfied beyond reasonable doubt from the whole of the evidence herein that on this day the offender went to the markets with such an intention.”

12 It was, in my opinion, open to the learned sentencing Judge to come to that conclusion of fact. The contrary was not contended at the hearing of the present application.

13 What was contended at the hearing of the present application was that his Honour had translated that finding of fact into a sentence which punished the applicant, in fact, for an offence different from and more serious than the actual offence of which the verdict of the jury found him guilty.

14 The relevant principles of law are not in doubt. They are stated authoritatively by the decision of the High Court of Australia in The Queen v De Simoni [1981] 147 CLR 383. It is sufficient to quote the following brief excerpt from the judgment of Gibbs CJ, speaking for the majority Justices.

“It is not only in cases in which the offence has been accompanied by circumstances of aggravation that a trial judge may be required, in sentencing, to take an artificially restricted view of the facts. This will be so also in cases where the jury’s verdict is inconsistent with the view of the facts that the judge himself has formed, for the judge cannot act on a view of the facts which conflicts with the jury’s verdict. However, where the Crown has charged the offender with, or has accepted a plea of guilty to, an offence less serious than the facts warrant, it cannot rely, or ask the judge to rely, on the facts that would have rendered the offender liable to a more serious penalty.”

15 I do not see how the approach adopted in fact by the learned sentencing Judge in the present case could be thought reasonably to have contravened these principles. His Honour was required by section 17A of the Crimes Act 1914 (C’th) to consider whether no other sentence than a sentence of imprisonment was appropriate to the particular facts and circumstances of the applicant’s individual case. His Honour, if of the view that the case before him called for a sentence of imprisonment, was thereupon required to fix properly according to law the point at which that sentence should be set on a scale ranging to a statutory maximum of imprisonment for 10 years. In connection with each of those two considerations, it was in my opinion necessary for the learned sentencing Judge to come to a view, in so far as the available evidence enabled that to be done, concerning the intent with which the applicant had been, in the relevant circumstances established by the evidence, knowingly in possession of a not inconsiderable sum of counterfeit bank notes. His Honour does not seem to me to have gone beyond the point of finding, correctly on the available evidence, that the intent with which the applicant was in knowing possession of the counterfeit bank notes rendered the applicant’s offence of such knowing possession more, rather than less, serious in connection with the fixing of a proper penalty.

16 It was submitted for the applicant that the learned sentencing Judge erred in law by accepting the proposition that, as his Honour put the point:

“In these circumstances and bearing in mind that counterfeit notes cannot be redeemed so that any person who innocently accepts such a note in the course of his business must bear the loss ……….(resulting from)………… acceptance of the note, it seems to me that any person who is convicted of the offence of knowingly having in his possession, without lawful excuse such notes, must, bearing in mind the provisions of Sections 16A and 17A of the Crimes Act, ordinarily expect to go to gaol.”

17 In my opinion there is no error disclosed by that approach. The knowing possession, without lawful excuse, of counterfeit bank notes is in any circumstances a serious offence. A worst case of the particular kind attracts a statutory maximum penalty of, relevantly, imprisonment for 10 years. The clear legislative purpose in having established the offence at all is, in my opinion, the resolute protection of the integrity of the national currency. In connection with a matter of such importance, it does not seem to me to be in any way erroneous in principle to hold that knowing possession without lawful excuse of counterfeit bank notes should attract, in the absence of cogent and compelling circumstances, some form of full-time custodial penalty.

18 Present complaint is made, further, of the following portions of the remarks on sentence:

“I have come to this conclusion because in my opinion the criminality displayed by the offender in this case and his lack of remorse even at this time requires the imposition of such a sentence and also because a sentence not involving an element of full-time custody would, in my opinion, send the wrong message to others in our community who might be tempted to act as the offender did on this occasion. To my mind in this type of case the concept of general deterrence is a most important concept for me to bear in mind, particularly because modern technology now makes it so much easier for forgers to create counterfeit notes of high quality which, if they find their way into circulation, tend to undermine the confidence that ordinary people have in the veracity of our currency.”

19 Complaint is made that the foregoing remarks, in so far as they touch upon the matter of remorse, show that the learned sentencing Judge erroneously increased, on account of the perceived absence of remorse, what would otherwise have been an appropriate sentence.

20 I do not accept that submission. The fact is that the applicant did not show any remorse, but continued to maintain, even after his conviction upon the verdict of the jury at trial, that he was not guilty of the offence charged. It seems to me that the learned sentencing Judge was doing no more than noting that absence of remorse; and observing that the absence of remorse was a factor, among others, justifying the imposition of some full-time custodial penalty rather than a more lenient and non-custodial penalty.

21 Generally as to the merits of the present application, there is useful assistance to be had, in my opinion, from the judgment of the U.K. Court of Appeal in the matter of Anthony Frank Howard [1985] 82 CrAppR 262.

22 That offender was convicted of having custody of counterfeit currency, and of having tendered a counterfeit bank note. He was sentenced to imprisonment for 2 years on each count, the sentences to run concurrently. There were substantial subjective features to the offender’s particular case. An appeal against the sentences was dismissed. The Lord Chief Justice, delivering the judgment of the Court, made the following observations:

“Perhaps the most important consideration in this type of case is the quantity of the counterfeit notes which are found in the appellant’s possession, because that will demonstrate, with some degree of accuracy at least, the proximity to, or the distance from, the source of the notes which the appellant’s position occupied. Quite plainly, from the quantity of notes in the possession of this man, he was somewhere near the source of the notes. It is a trite observation made in these cases, but nevertheless correct, that the issue of counterfeit notes undermines the whole economy of the country and is likely to result in great loss being sustained by innocent people who find themselves in possession of these notes only to discover that they are worthless.
It follows therefore that this type of offence is one which in nearly every case will require a custodial sentence ………………….. . The reason for the custodial sentence is first of all to punish the wrongdoer. The secondary reasons are to deter the wrongdoer himself from committing the same sort of offence in the future – that perhaps does not figure very largely in this case because it is very unlikely that this man will offend again – but much more important, it is to indicate to others who are minded to make cheap and easy profit by the acceptance of counterfeit notes, that it simply is not worth the candle. If they do choose to have counterfeit notes, and particularly large quantities of them, they are going to get some considerable punishment.”

23 That reasoning is, as I respectfully think, both plainly correct in principle and plainly applicable in fact, in the circumstances of the present particular case. It is not necessary, in my opinion, to deal in any further particular detail with the individual grounds of appeal as formally notified. It suffices to say that in my opinion there is no substance to any one of them.

24 In my opinion, and for the whole of the foregoing reasons, the Court should order:

1. that the application for leave to appeal against sentence be granted;

2. that the substantive appeal against sentence be dismissed.

25 BELL J: I agree with Sully J.