R v Henderson - [1998] VSCA 83

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 248 of 1997

THE QUEEN

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Henderson

Details

AGLC: R v Henderson [1998] VSCA 83
Case: [1998] VSCA 83
Decision Date: 8 October 1998

CaseChat Overview and Summary

In the matter of R v Henderson, the respondent was charged with various criminal offences, including burglary to steal, handling stolen goods, and theft. The case was heard and determined in the court. The respondent was found guilty of the burglary to steal and the theft, with the jury returning verdicts on both counts. On the handling charges, the jury returned a guilty verdict on the first count but acquitted the respondent on the remaining three counts. The respondent appealed the convictions and sentence, arguing that the verdicts were inconsistent and that the sentence was excessive.

The court considered whether the respondent could be convicted of both burglary to steal and theft, and if the handling convictions were properly entered. The court found that the convictions on both counts were lawful as they were not for the same crime or act. Regarding the handling convictions, the court held that the evidence supported a guilty verdict on the first count, while the other acquittals did not render the verdicts inconsistent. The court also examined the application of section 88(1) of the Crimes Act 1958, concluding that the evidence was sufficient for the jury to be satisfied that the respondent was not the thief on the first handling count.

The court further assessed the sentencing for the handling conviction, considering the respondent's antecedent history and the value of the goods involved. The court found that the two-year and three-month imprisonment term was not manifestly excessive or disproportionate to the offence committed. Consequently, the appeal was dismissed, and the convictions and sentence were upheld.

The court made no orders for the appeal to be remitted, and the respondent's convictions and sentence remained unchanged.

Orders