R v Henderson
[1998] VSCA 83
•8 October 1998
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 248 of 1997
THE QUEEN
v
JOHN WILLIAM HENDERSON
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| JUDGES: | WINNEKE, P., BROOKING and BATT, JJ.A. |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 6 October 1998 |
| DATE OF JUDGMENT: | 8 October 1998 |
| MEDIA NEUTRAL CITATION: | [1998] VSCA 83 |
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Criminal Law - Burglary to steal and following theft - Verdicts taken and convictions entered on both counts - No error - Applicant not doubly punished for same crime or act - Three further counts of handling - Verdicts of guilty on first and not guilty on others - Not inconsistent - Whether on first count evidence on which jury entitled to be satisfied applicant not the thief - “Otherwise than in the course of the stealing” - Crimes Act 1958, s.88 (1).
Criminal Law - Sentencing - Handling - Antecedent history poor - Goods of modest value - Imprisonment for two years and three months not manifestly excessive or disproportionate.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. C.J. Ryan | Mr. P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | Mr. P.G. Priest | Aloe Ferraro & Co. Pty. |
WINNEKE, P.:
I will call on Batt, J.A. to deliver the first judgment.
| BATT, J.A.: |
The Court has before it two applications by John William Henderson, who was born on 25 June 1955, for leave to appeal against conviction and one by him for leave to appeal against sentence. They arise in the following way.
On 20 October 1997 the applicant pleaded not guilty on arraignment in the County Court at Melbourne to one count of burglary (the intent alleged being intent to steal) and one count of theft, contained in presentment No.J00589434. Those offences were alleged to have occurred at Ascot Vale on or about 11 March 1996. On 23 October 1997 the jury returned a verdict of guilty in respect of each count and in due course convictions were recorded. The applicant admitted 56 prior convictions from 25 court appearances from October 1972 to August 1992. Of those convictions, 26 were for theft, burglary, handling stolen goods, shop-breaking or like offences, and in respect of all but one of those 26 convictions the applicant had been given a custodial sentence. On 7 November 1997 the judge (whom I shall call "the first judge"), having earlier heard a plea in mitigation of penalty, sentenced the applicant to be imprisoned for two years on each count and ordered that three months of the sentence imposed on the first count be served cumulatively upon the sentence imposed on the second count. The total effective sentence imposed was thus 2 years and 3 months. His Honour fixed a non-parole period of 15 months and declared that a period of 17 days be reckoned as already served under the sentence.
On 20 April 1998 the applicant pleaded not guilty on arraignment in the County Court at Melbourne to three counts of handling stolen goods, contained in presentment J00903341. The goods the subject of count 1 were certain bottles of alcohol, those the subject of count 2 were a vacuum cleaner and those the subject of count 3 an icecream scoop. Those offences were alleged to have occurred between 11 September 1995 and 24 September 1995 (in the case of count 1) and 11 September 1995 and 27 December 1995 (in the case of the other counts). On 23 April 1998 the jury returned verdicts of guilty in respect of count 1 and not guilty in respect of counts 2 and 3. The applicant admitted the previously mentioned prior convictions. The maximum penalty for the offence of handling stolen goods during the period referred to in Count 1 was imprisonment for 10 years. By virtue of s.114(1) of the Sentencing Act 1991 that remained applicable for sentencing purposes, notwithstanding the increase in the maximum in the meantime. On 1 May 1998 the judge (whom I shall call "the second judge"), having earlier heard a plea in mitigation of penalty, sentenced the applicant to be imprisoned for a term of 2 years and 9 months, ordered that 15 months of that term be cumulative upon the term the applicant was then undergoing and fixed a new non-parole period of 18 months. For obvious reasons no declaration as to pre-sentence detention was made.
The offence of which the applicant was convicted at this later trial had been committed earlier than the offences the subject of the first trial. It had in fact been committed while the applicant was on parole in Victoria pursuant to a deemed Victorian sentence arising from his transfer from Queensland under the Prisoners (Interstate Transfer) Act 1983 and its Queensland equivalent.
The applicant has applied for leave to appeal against his convictions at the first and second trials and against the sentence imposed by the second judge.
Before I refer to the grounds of the proposed appeals I shall summarize the facts. I take those relating to the first trial largely from the sentencing remarks of the first judge. In the early hours of Monday 11 March 1996 a burglary was committed by two men at shop and factory premises known as Bras & Pants at 75 Epsom Road, Ascot Vale. At those premises women's undergarments were manufactured and retailed. The burglars acted in a professionally criminal manner by severing the telephone line to the premises which was situated in a pit under the footpath outside the premises and by breaking the lock and disconnecting the bar which locked the front doors and which was held in position by the lock. Once they gained access to the building, the burglars disconnected the burglar alarm by ripping it from its connection and then committed the theft. Garments, being lingerie, to the value of $2,000 at least were removed from their brackets and placed in plastic garbage bags. The attention of police who happened to be in the area was by chance attracted to the premises. As a divisional van approached the shop, the applicant's accomplice ran from the premises and entered the driveway of the house next door. As he ran down the driveway he must have discarded one garbage bag containing some of the stolen lingerie. He made his escape over a fence at the rear of the driveway. At that moment the applicant emerged from the shop and fled with two constables in pursuit. The applicant was finally caught in a nearby street. One garbage bag containing lingerie was found by police in the front garden of the adjoining premises already mentioned. Another was still in the shop.
The facts in evidence in the second trial are, in summary, as follows. On 11 September 1995 Limor's Restaurant at 67 Kooyong Road, North Caulfield, which was owned by Azores Pty. Ltd., was the subject of a burglary and theft. The principal items of property stolen were bottles of alcohol. Other items stolen included cutlery, kitchen utensils, a dining setting, a chrome bottle display device, and some steaks. Amongst the alcohol stolen were bottles of the following: Chivas Regal Whisky (2); Suntory Scotch Whisky (3) (one with a figurine of a violinist); Bailey's Founder Port (1); Hanwood Port (1); Frangelico (1); Cointreau (1); Cognac (1); Smirnoff Vodka (4); Absolut Vodka (1); Martel Cognac (1); Jack Daniel's Whisky (1); Galliano Amoretto (1); and Galliano (1). In 1989 Suntory Australia Pty Ltd, wholesalers and importers of spirits, had imported 90 figurines of a violin and cello player. That company ceased selling to retail outlets in 1993. The alcohol just mentioned was only a small part of the total quantity of alcohol stolen, which included, amongst others, 15 bottles of premium brand champagnes, 14 bottles of Suntory spirits, 14 bottles of Black and Red Label Scotch Whisky, and five bottles of Galliano. Also stolen were a Pulman brand vacuum cleaner that could be strapped to the back, and an icecream scoop. These two items bore no distinguishing marks or features. The scoop did have a blue end, but this was apparently not specific to it.
On 24 September 1995 police from the Special Response Squad executed a search warrant at Unit 3, 34 David Street, Altona, which they found occupied by the applicant, a woman named Penny Warwick, a young man and two or three teenage children. A bunch of keys was found in the main bedroom, but nothing else of significance inside the premises. Parked in the street outside was a blue Nissan E20 van, registration number FKB-227, the sliding door to which was opened with a key from the bunch which had been found. A search of the van revealed a hot water service, an oven range-hood and some bottles of alcohol of the same number and description as the 19 bottles mentioned earlier, together with a bottle of Black Douglas Scotch Whisky. The 20 bottles were contained in a striped shopping bag and a cardboard box. On the same day the police also conducted a search pursuant to the warrant of premises at 84 Hamilton Street, Yarraville, given by the applicant as his address. Nothing relevant was found there that day.
On 27 December 1995 the premises at 84 Hamilton Street were again searched by police pursuant to a search warrant. A silver-coloured back-pack vacuum cleaner was found lying in the lounge/dining area. After speaking to the applicant, the police returned to the David Street address, which was also searched. In the kitchen the police found an icecream scoop.
The applicant was interviewed on 24 September 1995 and again on 5 March 1996. In the first interview he stated that the Nissan van belonged to a friend of his, Sam Watt, and that he was borrowing it. He gave accounts of an innocent purchase by him of all the items found in the van, including the alcohol, which he said was to be used in a forthcoming family wedding. He declined to name the supplier to him of this alcohol. I shall refer in more detail to that interview later.
Christopher Lavery of Chirnside Park gave evidence that between 1993 and March 1997 he was the registered owner of the 1974 Nissan E20 van, registration number FKB-227. He had in July 1995 sold the van for $800, in response to an advertisement in the Trading Post, to a man who presented himself as "Sam Watt" and who attended Lavery's address to examine the car with a 16 to 18 year old youth whom Lavery believed to be the man's son. Lavery had failed to arrange for the transfer of registration, explaining that he had sold the car without a roadworthy certificate, but with the expectation that the purchaser would obtain one and forward him the papers. From a photoboard of 12 males Lavery selected as "Sam Watt" the person labelled No.6. A detective gave evidence that the man whose photograph was so labelled was the applicant. No person by the name of Sam Watt was recorded in the VicRoads licence database. John Winters, who had at the relevant time been a sergeant of the Victoria Police, gave evidence that on 14 July 1995 he had intercepted a blue Nissan E20 van, registered number FKB-227, on the Mt Buller Road for a seatbelt offence. The driver wrote his name as John William Henderson of 21 Loco Street, Seymour, and his age and date of birth as 40 years and 25 June 1955 respectively. He was accompanied by two male children.
When interviewed by police on 24 September 1995 the applicant had given his address as 3/34 David Street, Altona, and said that he was born on 25 June 1955. When asked whom the contents of the van belonged to, the applicant had answered:
"Well, that's a tricky question. I'm in possession of them. The - there is two items there that are to be installed in the house in - in 84 Hamilton Street. There's some alcohol there that is the part of organization for - organization for a wedding of my brother, and the tools - most of the tools are for Mr Tanick. There's a couple of tools there that are mine. ... the welding gear is Mr Tanick's - for Mr Tanick.
...
To my knowledge, there is nothing in that stolen - in that van that is
stolen and I verily believe that there is nothing in the house that's
stolen."He was later asked to state why he had the alcohol in the van or in his possession. He answered that one of his brothers was being married shortly and that he was involved in some of the preparations, of which the alcohol was part. When asked to tell where he obtained the alcohol from, he answered, as I have foreshadowed: "I could, but I am not going to tell you ... because I have had ... bad experiences with police." He did answer that it was a legitimate legal sale of alcohol. He later repeated that "nothing there is stolen" and said that he had obtained the alcohol four or five days previously. When asked why it was still in the van, he answered:
"Well, there's no real reason. It's just there. It was going to go with us when we moved back into Hamilton Street, which is next week hopefully. It was going to be stored there until the wedding arrangements are coming to - closer to completion. There's no real reason for it still to be in the van, except for convenience."
He said that there was nothing amongst the alcohol found "over the $30 mark". He could not say how much he had paid for the van. He denied having obtained the alcohol illegally. At another stage he said:
"I know that nothing you have taken from me is not stolen [sic] ... I
have done nothing wrong."As in the first trial, no evidence was led for the defence in the second trial.
I can now turn to consider the applications. Only one ground was argued in support of the application touching conviction in the first trial. That ground reads:
"4. The trial judge erred in -
(a) taking a verdict on both counts of the presentment; and (b) entering a conviction on both counts."
By s.73(4) of the Crimes Act 1958, which amplifies the basic definition of "theft" in s.72(1), "any assumption by a person of the rights of an owner amounts to an appropriation." The Oxford English Dictionary, 2nd Edition, gives as the third and apposite sense of the verb "appropriate" "to take possession of for one's own ... to take to oneself". Mr Priest, who appeared for the applicant and by whose clear and resourceful argument the court has been much assisted, accepted in the end, correctly in my view, that, even if one disregarded the removal by the accomplice of one garbage bag, the removal of items of lingerie from their brackets and the placing of them in garbage bags preparatory to their removal from the premises and from the immediate surrounds of the premises constituted appropriation for the purpose of the above basic definition. The other elements of the definition being satisfied a theft had occurred.
But, Mr Priest submitted, the burglars clearly had been surprised in the commission of the crime. Although an entry had been effected with an apparent intention to steal, the burglars were still in the process of loading the lingerie when interrupted by the police. Properly characterized, he said, the entry to the premises was the means by which the theft was to be accomplished. The offenders' object was to steal the lingerie. I would accept these propositions. Mr Priest then submitted that, although burglary and theft clearly have different elements, it was artificial to regard the conduct here as other than a single criminal enterprise and that on the face of it the applicant had been doubly punished for a single crime both through the recording of a conviction for theft (referring to s.7 of the Sentencing Act) and through the imposition of a separate sentence of imprisonment (with three months ordered to be served cumulatively). For these propositions Mr Priest cited Pearce v R. (1998) 156 A.L.R. 684 at paras.40-43 and 49 and R. v Sessions [1998] 2 V.R. 304 at 313 and 314. He concluded in his written outline by submitting that the conviction and sentence on count 2 ought to be quashed, though I rather took him in oral argument to make the converse submission, namely that the conviction and sentence on count 1 should be quashed, with the burglary being taken into account for sentencing purposes as a circumstance of the theft.
I would accept that the failure to put to the County Court judge the argument now under consideration is, having regard to its nature, no bar to its success here if it otherwise be good. Further, because the passages from Pearce on which Mr Priest relied related to punishment and sentence, he foreshadowed an oral application for leave to appeal against sentence out of time, which Mr Ryan for the respondent indicated would not be opposed. But that need not be considered further because, in my opinion, for the reasons which follow, the argument is not good.
One may accept that the conduct here constituted a single criminal enterprise, but there is, in my view, a fallacy in the contention as to double punishment, in that there is a logical glide from "single criminal enterprise" to "single crime". For, as Mr Ryan demonstrated in his outline, the enterprise had two components, burglary and theft, just as there are two components in the single enterprise in which a would-be armed robber steals a getaway car with the sole object of using it in the robbery, which he then commits. A separate conviction and a separate sentence are called for with such enterprises. Here, the burglary, whilst admittedly preparatory to the theft, involved a violation of the rights of the owner or occupier of the premises separate from the violation of the rights of the owner of the goods which the theft involved. Indeed, as the President pointed out during argument, there could in a given case be different victims of the two crimes. Pearce and Sessions do not, in my view, assist the applicant. Indeed, Pearce at para.28 shows that it was proper to charge both offences here since each required proof of facts which the other did not. Unlike Sessions, this was, in my view, a case where the charging of the offences was justified, if not required, by the principle applied in R v Newman and Turnbull [1997] 1 V.R. 146, especially as it was not easy to say on the facts which was the more serious offence. The reasons why the appellant in Pearce was held to have been doubly punished for the same act were that the single act of inflicting grievous bodily harm was an element of each of the offences in question there and that the identity of the terms of imprisonment imposed for the two offences and their concurrency enabled the High Court to discern that they were imposed to punish that single act. Here, there is not as a common element in the offences an act which both the sentences imposed could be said to punish. The direction for cumulation puts that beyond argument. Mr Priest informed the court that ground 4 was modelled on Sessions, but that case is clearly distinguishable. For there, as appears from pp.313 and 315, the offender's conduct could not be divided into parts and distributed between the two offences in question. The act for which he was to be sentenced on count 1 was the same act as he was to be sentenced for on count 2. That simply is not so here. Indeed, the burglary was complete before the theft occurred.
Although his written outline asserted that the applicant had been doubly punished for a single crime, Mr Priest in oral argument spoke of double punishment for the same act. What I have said disposes of both assertions, but for completeness I should say explicitly that, in my view, the sentences imposed did not contravene s.51 of the Interpretation of Legislation Act 1984.
For the reasons I have given, I consider that the ground fails and that the application relating to the first trial should be dismissed.
I turn to the application touching conviction in the second trial. Two grounds were argued. The first, alleging inconsistency of the verdicts, reads:
"1. Having regard to -
(a) the way in which the prosecution put its case; and (b)
the manner in which the trial judge left the prosecution case to the jury;
the verdict of guilty on count 1 is inconsistent with the verdicts
of not guilty on counts 2 and 3."
Mr Priest reviewed events in the trial relating to the three counts. Prior to empanelment, the Crown filed a presentment containing three counts of handling in substitution for the original presentment containing a single count. At the end of the Crown case, counsel for the applicant made a submission that there was no case to answer. In essence, the submission was that there was no acceptable evidence that the three sets of goods found were those stolen from the restaurant. In resisting its submission the prosecutor argued:
"Although there is no serial number or other identifying mark on any of them, it is the combination of the three which allows the inference to be drawn, in my submission, that they came from the restaurant. It is an unusual combination. Firstly, alcohol in the 20 bottles that have been taken, the types of bottles, peculiar - not peculiar but a variety of brands, Suntory Whisky, a figurine and the like. Certain things taken from the restaurant like that which are found in the van. An icecream scoop of an industrial type or a commercial type, with a blue end to it, found in a flat which had been occupied or was occupied by the accused, matching the description, and also the vacuum cleaner which, in itself, perhaps not rare, certainly is a particular type, a back-pack type cleaner which in itself, combined with the other unusual qualities of these items, combine to create a clear inference that these goods were, in fact, goods stolen from the restaurant, Your Honour."
He also said:
"So they're not looked at discretely, the counts, the evidence can be used of each item in relation to each count to create the inference. And clearly, once that inference is open on the evidence, which in my submission it is, it is evidence upon which the jury could convict."
In ruling that there was a case to answer the trial judge held that "the combination of goods, variety of same" could be used by the jury as founding the inference that they were stolen.
Further, in his final address, the prosecutor, Mr Priest pointed out, relied on the "coincidence" of the goods as demonstrating that they were stolen. The prosecutor said that if the goods were looked at individually, the jury "may have some doubt" that they were stolen from the restaurant and that the jury might think that "just looking at the alcohol in itself [they] wouldn't be satisfied beyond reasonable doubt that it was stolen". It is necessary, I think, to set out in more detail what the prosecutor said, namely:
"So when looked at individually, you look at an icecream scoop that was found, you may think, well how do I know that came from the restaurant, how do I know it was stolen from the restaurant. If you looked at it individually, you may have some doubt about it, but you don't look at them individually, you look at them together with each other, the three of them. And is it a coincidence, I ask, that found in the possession of the accused, either in his van or in a flat or a house that he had been living in, or had lived in or was connected with some months after this burglary, is it a coincidence that 19 bottles of alcohol which directly match the description of alcohol taken from the Limor's Restaurant in September were found in his possession, and just think about the alcohol. It's not suggested that you can't buy these things elsewhere or get them from other restaurants or retailers or alcohol shops. I mean, they're probably pretty readily available, but just looking at it in itself, 19 bottles, the combination of which Mr Pepdjonovic told you, 'Yeah, we had them and they were taken from the restaurant'. Suntory Whisky, Japanese top shelf stuff literally. That's where they had it, on the top shelf, with a little figurine that fitted over the top of it. The evidence that I read to you from Suntory, no doubt it could have been got somewhere else but in itself it's slightly unusual, isn't it, and coupled with that you've got a bottle of Chivas Regal with a handle which he says was taken. You've got the two Galliano bottles of the same colour described by him as having gone missing from the restaurant and you've got the other general stuff, vodka and ports and cognacs and things like that, reasonably exclusive types of liquor but which match the description, the types of things taken from the restaurant, so you start with that proposition in relation to the alcohol. You've got the bottle of Absolut Vodka and if you have a look at it I think it comes from Sweden. Perhaps it's not something that we'd all be aware of but it was certainly in that restaurant and it certainly went missing and it was certainly found in this man's possession in his van. So the alcohol in itself is a bit unusual but you may think that just looking at the alcohol in itself that you wouldn't be satisfied beyond reasonable doubt that it was stolen. But when you look at the alcohol found on 24 September 1995 in Mr Henderson's van and you know that a couple of months later there is also found a vacuum cleaner in his house at Yarraville, 84 Hamilton Street, and on the same day an icecream scoop with a blue end which matches exactly the type of scoop taken from the restaurant and the vacuum cleaner is exactly the type of vacuum cleaner taken from the restaurant and not your ordinary old-fashioned model but one that you strap onto your back which is a little bit different, what a coincidence. What a coincidence? I mean, it's amazing, isn't it? You put all those three circumstantial pieces of evidence together, there can be only one conclusion, can't there? Yes, they were all stolen from Limor's Restaurant. That can be the only reasonable inference open to you or conclusion open to you once you know those three facts. So that's the way you look at it. You look at count 1 in considering whether the alcohol was stolen and you take into account the fact that other items were stolen or found, sorry. They were found in his possession that match the description from the restaurant and you do it for count 2 and you do it for count 3. At the end of the day you should be satisfied, I suggest to you, beyond reasonable doubt, that each of them have been stolen from Limor's Restaurant. Thus, they are stolen goods."
Mr Priest submitted that when directing the jury the trial judge clearly approved of a process of reasoning by which the jury might infer that the goods were stolen based upon "the unusual combination" or "coincidence" of the goods. What His Honour said in fact is contained in the following three passages:
"Further, [the prosecutor] refers to the unusual combination of such goods, the fact that you have the alcohol and certain types of alcohol taken from Limor's Restaurant - I think he used the term coincidentally - you have exactly the same type of vacuum cleaner taken from Limor's, and thirdly, you have exactly the same type of icecream scoop taken from Limor's, and they are all found in the van as associated with Mr Henderson and the two premises as associated with Mr Henderson."
"[Counsel] for the Crown says in view of the circumstances there is a clear and proper inference to be drawn that these are the stolen goods from Limor's Restaurant. You will recall he related to you what he - as I have used the word, as he used the word, the coincidence that you have the assorted alcohol, you have the vacuum cleaner and you have the icecream scoop in a van or house premises or unit premises occupied or used by the accused man."
"He said you look at the combination of bottles in the situation where their description matches the stolen alcohol. He said that some two months later again you find an unusual vacuum cleaner and an icecream scoop with the same blue end also in a property in which the accused man resides. He said the only reasonable inference you can draw when you put those pieces together is that they are the goods that were stolen from Limor's Restaurant. The restaurant goods that were stolen match by some extraordinary coincidence those that were found. He said you should be satisfied such goods were stolen."
Despite the manner in which, Mr Priest submitted, the Crown put its case and the way in which, he submitted, the trial judge left the case to the jury, the verdicts already mentioned were returned. The verdicts, he submitted, smack of compromise. They are, he said, an affront to logic and common sense. Certainly they are inconsistent with the manner in which the Crown put its case and the way in which the trial judge left it, he said. He supported his submission by citation of MacKenzie v. The Queen (1996) 190 C.L.R. 348 at 366 to 368.
If one puts aside for the moment the question of how the case was put or left to the jury, the verdicts are, in my view, readily explicable on the ground that, whilst the jury were satisfied beyond reasonable doubt that the bottles of alcohol had been stolen from the restaurant, because of the distinctiveness of the brands, types and bottle shapes of the 19 bottles found in the van with the bottle of Black Douglas whisky, which is, after all, a considerable number of bottles, they were not so satisfied in respect of the much less distinctive vacuum cleaner and icecream scoop found much later in the applicant's possession.
But, as already indicated, Mr Priest contends that the Crown put its case solely on the basis that a verdict of guilty on each and thus any, count depended upon the coincidence of the finding of all three categories of goods in the applicant's possession, and that that was the way in which his Honour left the case to the jury. The question turns on what was said to the jury, not on what was said in argument in their absence. I have already set out the relevant passages. In my view, the prosecutor did not concede to the jury that they could not infer that the alcohol came from the restaurant without relying on the finding of the vacuum cleaner and the scoop. He merely accepted that it was possible that they might not otherwise be satisfied beyond reasonable doubt that the alcohol came from the restaurant. Moreover, whilst in his address he relied primarily upon the coincidence of the finding of the three categories of goods in combination, a fair reading of his address shows that he also relied in relation to the alcohol upon the fact that it did "directly match" the description of alcohol taken from the restaurant and upon the alcohol's being "in itself ... a bit unusual." It is true that his Honour did tell the jury three times of what I might call the prosecutor's primary submission and did so in terms which indicated that it was open to the jury, if minded to do so, to adopt its process of reasoning. Critically, however, his Honour did not in terms or in substance direct the jury that in order to convict on any count they must accept that submission or adopt that process of reasoning or, to put it another way, that they could not be satisfied beyond reasonable doubt of guilt on any count unless they accepted the submission. Nor did he direct them that to convict on any count they had to convict on all counts. He did after all give them a standard separate trial direction.
Accordingly, I am of the view that neither the prosecutor nor His Honour confined the Crown case in the way suggested. Thus, neither of the substrata of ground 1, being paras.(a) and (b) of it, is made out. In short, in my view, the different verdicts are consistent with one way in which the Crown put its case and are not internally inconsistent: MacKenzie at 367. It follows that ground 1 fails.
The second ground argued related to the parenthetic expression "otherwise than in the course of the stealing" found in s.88(1) of the Crimes Act. The ground reads:
"2 (a) The trial judge erred -
(i) in refusing permission to counsel for the applicant to submit to the jury that the prosecution had not proved that the applicant acquired the property the subject of the charges 'otherwise than in the course of stealing';
(ii) in failing to direct the jury sufficiently or at all to acquit the applicant unless satisfied that the applicant had acquired the property 'otherwise than in the course of stealing'; and
(iii) in commenting that there was no evidence that the applicant 'was the thief or received the property in the course of stealing'."
(b) The verdict of guilty on count 1 is unsafe and unsatisfactory, and in particular, there was no evidence upon which the jury could be satisfied that the applicant was not the thief of the property the subject of the charges."
Although His Honour after argument following the prosecutor's final address originally ruled at the end of one day's hearing that he would not permit the applicant's counsel to rely on the "defence that the Crown has not proved that the accused handled stolen goods otherwise than in the course of stealing", he reversed that ruling the following morning after further reflection, though he warned defence counsel that he proposed to make a comment about the point. In fact, he read to counsel both his proposed direction and his proposed comment. Then, when dealing with the elements of the offence in his charge, his Honour directed the jury as follows:
"As you are aware, in this case the accused is charged with receiving the property knowing that it was stolen. This charge requires the Crown to prove that the accused received the property otherwise than in the course of the stealing. Unless you are satisfied by the evidence, including if you choose the inference arising from the possession of the property, that the accused dishonestly received the stolen property knowing it was stolen by someone else, your verdict should be not guilty. You cannot convict a person of receiving unless you are satisfied that he or she is not the thief. If you are satisfied beyond reasonable doubt that the property was stolen by another person other than the accused and a number of other matters you can find the accused guilty, but I shall deal with this first aspect of it, the property was stolen by another person other than the accused.
On behalf of the accused the issue has been raised with you and it has been submitted that you cannot be satisfied the accused received the property otherwise than in the course of the stealing. As I have said, and as you have been told, the accused has no obligation to prove a thing."
Because His Honour so directed the jury, it is not necessary for us to consider the by no means easy questions debated before us of whether the parenthetic words need be pleaded and proved by the Crown or constitute a defence to be disproved by the Crown once evidence raised the issue or are a true defence and whether the issue to which they are directed arose on the evidence in this case, as to which R v Koene [1982] V.R.916, R v Bruce [1988] V.R.579, Gibson v The Queen (1991) 172 C.L.R.353, De Bono v Nielsen (1996) 88 A.Crim.R.46 and R v Cash [1985] Q.B.801 would require consideration. For his Honour on all these aspects directed the jury favourably to the applicant.
It is clear from his Honour's reversal of his original ruling, and from the direction that I have just set out, that sub-paragraphs (a) (i) and (ii) of ground 2 are not made out factually.
So far as sub-paragraph (a) (iii) is concerned, his Honour made this comment immediately following the conclusion of the direction set out earlier:
"In this case by way of comment of mine you may well think there is no evidence to establish that the accused was the thief or received the property in the course of the stealing. Here you have some 13 days that have passed since the theft from the Limor's Restaurant in relation to the liquor, and some three or so months in relation to the vacuum cleaner and the icecream scoop. Further, in his record of interview the accused denies stealing any goods. The tape of that record of interview will go into the jury room with you and you will be at liberty to play it as much as you wish. [Counsel] for the Crown submits you should be satisfied on drawing proper inferences from the evidence that the accused was the receiver of the goods."
His Honour very clearly flagged what he said in that passage as being merely a comment. Moreover, he did not say, let alone direct the jury, that there was no evidence to establish that the applicant was the thief or received the property in the course of the stealing. It is immaterial, even if it be the case, that the logic of his Honour's comment was, as Mr Priest submitted, "flawed", for it was only a comment and the jury were, in accordance with his Honour's earlier direction, free to reject it, unlike his directions on the law.
For those reasons I reject the submission that by his comment his Honour effectively withdrew from the jury's consideration the issues on which he had just directed them.
For these reasons part (a) of the ground fails.
As to part (b), Mr Priest, echoing an unsuccessful application by trial counsel after the jury had retired for the case to be taken away from them even then, submitted that there was no evidence on which the jury could be satisfied that the applicant was not the thief. He submitted that the evidence of the finding of the alcohol in the possession of the applicant 13 days after the burglary and of the finding of the other items three months after was "intractably neutral" on the question whether the applicant as possessor was the thief or the receiver. I do not find it necessary to decide whether his criticism of His Honour's comment is justified, since, in my view, as suggested by the President in the course of argument, it was open to the jury to infer beyond reasonable doubt that the applicant was a receiver, not the thief, from the fact that 13 days after the burglary 19 bottles, amongst which the stray bottle of Black Douglas whisky had been placed, were in a van in the street. For to apply the famous test enunciated in Martin v. Osborne (1936) 55 C.L.R. 367 at 375 and repeated in R v Plomp (1963) 110 C.L.R. 234 at 243, according to the common course of human affairs the degree of probability that that proved fact would be accompanied by the fact to be proved, namely that the applicant was not the thief, is so high that the contrary cannot reasonably be supposed. Or, at any rate, it was open to the jury (I should more accurately say) to take that view. Only part of the stolen alcohol was in the van. With it was mixed an extraneous bottle. It was not stored in a refrigerator or cupboard in a home or shop, but was ready 13 days after the burglary, the jury would be justified in inferring, to be disposed of to consumers. It was submitted that the answers in the record of interview are "intractably neutral", but I do not need to consider whether this is so or whether, on the other hand, the record of interview as a whole by itself enables the requisite inference to be drawn, because, for the reasons I have given, I consider that there was evidence on which the jury could draw the inference in question beyond reasonable doubt. In what I have said, I have assumed in favour of the applicant, without needing to decide, that the point raised by the parenthetic words of s.88(1) is not limited by the second definite article to the time when the theft is actually being committed: compare Williams and Weinberg, Property Offices, 2nd Edition, 383-384.
It follows that I do not accept the submission based on the test in M v The Queen (1994) 181 C.L.R. 487 at 493 that on the evidence no reasonable jury properly instructed could have been satisfied beyond reasonable doubt that the applicant had come into possession of the goods otherwise than in the course of stealing. Ground 2, in my opinion, fails and, accordingly, the application for leave to appeal against conviction in respect of the second trial, in my view, fails.
Finally, I come to the application touching sentence in the second trial. The sole ground argued was that the sentence was manifestly excessive. The applicant's appalling record was acknowledged, but it was submitted that, despite that, a sentence of more than one quarter of the then maximum available penalty was manifestly excessive given the modest nature of the goods handled, ($964). It was submitted that the second judge had taken the prior convictions into account in an impermissible way and imposed a sentence that was disproportionate to the gravity of the offence. That submission invoked the statement in a passage in Veen v The Queen [No.2] (1988) 164 C.L.R. 465 at 477 as to the weight which it is impermissible to give to an offender's antecedent criminal history. But the passage goes on to point out that antecedent history is relevant to show whether the instant offence manifests a continuing attitude of disobedience to the law, in which case retribution, deterrence and the protection of the community may indicate that a more severe penalty is warranted, or to show a need to impose a condign punishment to deter the offender and others from committing further like offences. Here, the applicant's antecedent history, which justifies the conclusion that he is a professional criminal, if not a professional receiver or handler of stolen goods, shows a continuing attitude of disobedience to the law, a need for a condign penalty by way of specific deterrence, and a need to protect the community from the applicant. Moreover, the offence was committed when the applicant was serving on parole the balance of a 5-year term of imprisonment imposed for the Queensland equivalent of this very offence. The value of the goods handled, whilst an important factor, is only one of many to be weighed.
My mind has fluctuated on whether the sentence is manifestly excessive, but, after taking into account Mr Priest's submissions, the considerations I have mentioned, and all the factors listed by His Honour in his sentencing remarks, which I do not trouble to rehearse, I have reached the conclusion that neither the sentence as a whole nor any of its component parts is disproportionate to the gravity of the instant offence or outside the range open to His Honour, albeit that it is, I think, right at the upper end of that range.
For the foregoing reasons, I would dismiss all three applications.
WINNEKE, P.:
I agree.
BROOKING, J.A.:
I also agree.
WINNEKE, P.:
The formal order of the Court will be that the applications for leave to appeal against the conviction recorded in both trials be dismissed and the application for leave to appeal against the sentence imposed by His Honour Judge White is also dismissed.
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