R v Mahoney

[2000] NSWCCA 256

Reported Decision: 114 A Crim R 130

New South Wales

Court of Criminal Appeal

CITATION:	R v Mahoney [2000] NSWCCA 256
FILE NUMBER(S):	CCA 60383/99
HEARING DATE(S):	13 April 2000
JUDGMENT DATE:	14 July 2000
PARTIES :	Michael Mahoney (Appellant) Crown (Respondent)
JUDGMENT OF:	Stein JA at 1; Dunford J at 2; Sperling J at 40

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	96/11/0366
LOWER COURT JUDICIAL OFFICER :	Ainslie-Wallace DCJ

COUNSEL :	MC Ramage QC (Appellant) DC Frearson (Crown)
SOLICITORS:	Brezniak Neil-Smith (Appellant) SE O'Connor (Crown)
CATCHWORDS:	CRIMINAL LAW - offences - larceny - receiving - recent possession - CRIMINAL LAW - appeals - summing up - objections not taken at trial - matters of detail or clarification - rule 4 - CRIMINAL LAW - sentencing - larceny & receiving - rebirthing of motor vehicles
LEGISLATION CITED:	Criminal Appeal Act 1912, s 6(1)
CASES CITED:	Fleming v The Queen (1998) 197 CLR 250 R v Giam [1999] NSWCCA 53, 104 A Crim R 416 R v Fordham (CCA - 2 December 1997) R v Abusafiah (1991) 24 NSWLR 531 R v Sanderson (CCA - 18 July 1994) R v Thomas (1956) 77 WN (NSW) 77 R v Zorad (1993) 29 NSWLR 672 R v Smale (CCA - 15 August 1986)
DECISION:	Appeal against convictions dismissed; Leave to appeal against sentence granted; Appeal against sentence dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60383/99

STEIN JA
DUNFORD J
SPERLING J

Friday, 14 JULY 2000

R v Michael MAHONEY
JUDGMENT

1    STEIN JA: I agree with Dunford J. 2    DUNFORD J: This is an appeal by Michael Mahoney against his conviction on two counts of receiving and one of larceny, following his trial before her Honour Judge Ainslee-Wallace in the District Court at Sydney, and an application for leave to appeal against the sentences imposed by her Honour following such convictions. 3    The charges arose out of what was alleged by the Crown to be the "re-birthing" of motor vehicles and they related to three separate vehicles, which may conveniently be referred to as the Honda, the Rodeo and the Lancer. 4    In respect of both the Honda and the Rodeo, the appellant was charged with larceny of the vehicles, and in the alternative with receiving. The case for the Crown was that he purchased at auction two cars which had been extensively damaged and which had been written off by the insurer. Within a few weeks of his purchasing the cars, a car identical in make, model and colour was stolen and the appellant sometime later offered for sale a car registered in his name which was ostensibly the wrecked vehicle purchased by him and repaired, but when the vehicles were impounded by police, inspection revealed them to be the stolen cars on which the engine identification numbers from the wrecked vehicles had been substituted. In respect of these two vehicles, the jury found the appellant not guilty of larceny but guilty of receiving. 5    In respect of the third motor vehicle, the Lancer, the Crown case was that the appellant sold a car which he asserted had been a wreck purchased by him and repaired. After the sale, the appellant contacted the purchaser (Mr Mason), apparently in relation to a speeding fine which had been incurred by the purchaser, but because he had not effected a transfer of the registration, the notice had been sent to the appellant. The appellant attended at the purchaser's place of work but did not bring the speeding ticket. Whilst there he told the purchaser that the car may be impounded by police as there was a question about repairs, and some of the parts used in the repairs were questionable; and he asked him whether he had been spoken to by police and whether he had insurance. 6    Later he visited the purchaser on two further occasions and asked him whether he had been contacted by police. Eventually the purchaser attended the police station to make a statement that he was the driver at the relevant time, and whilst he was there, the car was stolen from his driveway. On that day, the appellant was seen on five occasions driving a van owned by him into the street on which the purchaser of the car lived prior to the car being driven away by a person whom a witness did not recognise, but who was not the purchaser of the car. On the last occasion on which the appellant drove onto the street, the witness (Mrs Cacciola) said there were two persons in the car, the appellant and another person, and it was alleged that the appellant either drove the van and had an accomplice steal the car, or had an accomplice drive the van while he stole the car. That car has not subsequently been recovered. 7    On the charge of receiving the Honda, the appellant was sentenced to penal servitude for a minimum term of 18 months with an additional term of 18 months; on the charge of receiving the Rodeo, he was sentenced to a fixed term of 18 months penal servitude and on the charge of stealing the Lancer, to a fixed term of 9 months, all the sentences to commence the 2nd of June 1999 and the appellant to be released on parole on 1 December 2000. 8    A number of grounds of appeal were relied on. Ground 1 was that the trial miscarried but nothing was relied on under this ground which was not also relied on in relation to the other grounds, ground 2 was that the verdict for larceny of the Lancer was "unsafe and unsatisfactory", ground 3 related to alleged deficiencies in the summing up, and ground 4 to the application for leave to appeal against sentence. 9    The thrust of the submission that the verdict on the count for larceny of the Lancer was "unsafe and unsatisfactory", or to use the words of the Criminal Appeal Act 1912, s 6(1) "unreasonable having regard to the evidence": Fleming v The Queen (1998) 197 CLR 250, R v Giam [1999] NSWCCA 53, 104 A Crim R 416, seemed to be directed firstly to the evidence concerning another Lancer which had been stolen from a Mr Finsten on 11 August 1994. This car was alleged to be similar to that sold to and subsequently stolen from Mr Mason on 1 November 1995, and the Crown did lead some evidence which tended to suggest that parts of Mr Finsten's vehicle had been incorporated into a stolen vehicle before it was re-registered in the name of the appellant and subsequently sold to Mr Mason; but there was no evidence that the appellant was involved in stealing Mr Finsten's vehicle and the evidence did not establish that it was Mr Finsten's vehicle that had been reconstituted and subsequently re-registered and sold to Mr Mason. In any event, the appellant was never charged with stealing or receiving Mr Finsten's vehicle. 10 The case in relation to Mr Mason's Lancer was much more simple. Irrespective of the origins of the vehicle, a vehicle had been registered by the appellant in his name with registration plates ACJ 49T, and this had been sold to Mr Mason on 29 August 1995. This vehicle was subsequently stolen from Mr Mason's premises on 1 November 1995 and the only issue was who stole it. It did not matter to the Crown case, nor to the appellant's case, whether the vehicle stolen from Mr Mason was the vehicle stolen from Mr Finsten on 11 August 1994 or any part of it, and so the uncertainties of Mr Finsten's identification of Mr Mason's vehicle, particularly with respect to colour difference, did not matter. Ultimately I have come to the conclusion that the evidence about the stealing and the identity of Mr Finsten's vehicle was totally irrelevant in the context of this case, and it appears that no one, neither the Crown Prosecutor, the appellant's counsel nor her Honour directed their minds to what, if any, significance this evidence had, whether it was relevant and whether it was admissible. The evidence was led without objection at the trial, and no application was made for it to be withdrawn from the jury. 11 It was also submitted that it was not open to the jury to make a finding that it was the appellant who took the vehicle from Mr Mason's premises on 1 November 1995. Mrs Cacciola did assert that she had seen two people in a van, one of whom fitted the description of the appellant, and the appellant conceded in his evidence that he had been in Mr Mason's street a number of times that day. No questions of the appellant being assisted by others as part of a common criminal enterprise were raised or argued. Although it was common ground that the appellant was an occupant of the vehicle sighted by Mrs Cacciola on the day of the theft of the Lancer, the appellant said that he was alone in the van at all times, but Mrs Cacciola said that on her final sighting of the appellant's vehicle it had two occupants. 12 Mr Mason agreed to make a statutory declaration that he had the vehicle at the relevant time, but the appellant apparently never produced the speeding ticket and asked the appellant a number of times whether the police had been asking questions or had been around to check on his vehicle. The appellant also, according to his own evidence, told Mr Mason that in this context a number of cars previously owned by him had been impounded by the police and that there might be some problem with the parts used to repair the vehicle. Those circumstances, and the fact that he was in Mr Mason's street five times on the day that the vehicle was taken, together with the evidence of Mrs Cacciola, was in my view evidence of such circumstances that it was open to the jury to be satisfied beyond reasonable doubt that it was the appellant or someone acting jointly with him who took the car. 13 It was further submitted that the verdict on this count was inevitably compromised or tainted by being heard with the other counts and the way in which all the counts were dealt with in summing up the evidence. I will refer to this in more detail when dealing with ground 3, but I am satisfied that her Honour gave adequate directions as to separate consideration of the different counts and she summarised the evidence relating to this count quite separately. This ground fails. 14 Ground 3 makes a number of complaints about the summing up and is as follows:

The learned judge erred in:
(a) failing to direct the jury in her summing up that it was essential that they consider the evidence separately in respect of each count in the indictment;
(b) failing in her summing up to distinguish or sufficiently distinguish the evidence admissible on each separate count;
(c) permitting the evidence not tendered as coincidence evidence to be used and addressed as such evidence;
(d) the learned trial judge erred in directing the jury "if you think the facts known to him would have put a reasonable man on inquiry that would be a relevant matter for you when you are considering whether the accused did or did not know it";
(e) the learned judge erred in her directions to the jury in respect of recent possession.

15    This is a classic example of what has been described as an "armchair appeal", where after the trial, counsel not involved in the trial has sat down and gone through the whole of the transcript and summing up looking for error, without reference to the manner in which the trial was conducted: R v Fordham (CCA - 2 December 1997) noted 72 ALJ 284, and as none of the grounds sought to be relied on were the subject of objection at the trial, they all require leave because of the operation of Rule 4 of the Criminal Appeal Rules. 16 In this regard it is timely to repeat what was said by Hunt CJ at CL in R v Abusafiah (1991) 24 NSWLR 531 at 536:

"The requirements of r 4 of the Criminal Appeal Rules do not constitute some mere technicality which may simply be brushed aside. One purpose of the requirement that no misdirection or non direction may, without leave, be allowed as a ground of appeal unless objection was taken at the trial is to ensure that the trial judge receives the assistance from counsel to which he or she is entitled in the task of giving appropriate directions to the jury. If a summing-up contains some error which could easily have been cured once the judge's attention had been drawn to it, and if counsel for the accused to whose detriment the error operates fails to comply with his or her duty to draw the judge's attention to that error ( R v Knight (Court of Criminal Appeal, 18 December 1990, unreported at 46), any suggestion that such detriment automatically entitles the accused to a new trial does not strike a sympathetic chord in the hearts of those who see the right to a fair trial as operating in favour not only of the accused but also of the Crown, which prosecutes on behalf of the whole community. The Criminal Appeal Act 1912 does not exist to enable an accused who has been convicted under one set of issues to have a new trial under a new set of issues which he could and should have raised at the first trial.
There are, of course, cases in which the error made is of such a nature that, notwithstanding the failure of counsel for the accused to comply with that duty, leave will be granted to avoid a miscarriage of justice."

and in R v Sanderson (CCA - 18 July 1994) at pp 7-8 Gleeson CJ said:
"This case provides a striking and clear illustration of the reason for the presence in the Criminal Appeal Rules of rule 4. If trial counsel had apprehended that there was any significant risk that the jury might have misunderstood the true nature of their function in relation to this matter of corroboration, then the point was available to be taken by trial counsel. If the point had been taken, and if there really had been a problem, it was a problem that was capable of simple correction. It would ordinarily be quite inappropriate to permit appellants, in such circumstances, to come to the Court of Criminal Appeal and complain that a miscarriage of justice has occurred."

See also R v Tripodina (1988) 35 A Crim R 183, R v PAH (CCA - 18 December 1989), R v Cook (CCA - 24 August 1998).

17 As appears from the transcript, there was discussion at the close of the evidence concerning what her Honour should say in her summing up, but the terms of the discussion are not recorded. After the summing up, no objection was taken by either counsel, and this Court may therefore infer that the summing up was in accordance with the conclusions reached at the end of the discussion. That does not necessarily mean that those pre-summing up conclusions were all to the satisfaction of defence counsel, but if they were not, it was the duty of defence counsel to have them noted either before or after the summing up. As this was not done, this Court should infer that in the context of this particular trial defence counsel was satisfied with the terms of the summing up. We were informed from the bar table that counsel who appeared at the trial, who was not counsel who appeared on the appeal, is now unable to recall what matters were discussed prior to the summing up. 18 As appears from the passages cited above, Rule 4 will not be strictly applied and leave will be given if the points raised were fundamental to a fair trial according to law or there has been a miscarriage of justice. None of the errors or omissions alleged in the present case are of that nature, but are all matters of clarification or detail, or matters which could have been expressed more fully. If further directions in conformity with the grounds of appeal had been sought at the end of the summing up, they could easily have been given by the trial judge, and almost certainly would have been. Accordingly I would refuse leave to raise the grounds in the face of Rule 4, but to demonstrate that the complaints being merely matters of detail, clarification or matters which could have been expressed more fully, it is desirable that I refer to them briefly. 19 The first complaint is that her Honour failed to direct the jury in her summing up that it was essential that they consider the evidence separately in respect of each count in the indictment. But after first giving the jury general directions relating to such matters as the separate functions of judge and jury, assessment of witnesses, the desirability of all members of the jury taking part in the deliberation and the onus of proof, her Honour came to the particular charges and said (at p 6):

"When you are considering the charges against the accused you must consider them individually and decide whether he is guilty or not guilty of the charges individually . It is not a matter of one in all in or one out all out. Your role is to consider the charges separately . You must not be prejudiced against the accused because he is charged with a number of offences." (my italics)

20    She then (at pp 9-11) gave directions as to the essential ingredients of the offence of larceny and, after a general direction on circumstantial evidence, then dealt with the evidence relating to the Honda the subject of the first and second counts, prefacing such remarks as follows (p 12):

"Now I will just deal briefly with the circumstantial evidence that the Crown relies on to ask you to draw the conclusion that it was the accused who stole the Honda Civic belonging to Persephane Rougellis."

She then went through the evidence relating to that vehicle, and said (p 15):
"Now it is from this evidence that the Crown asks you to conclude that it was the accused who stole the Honda Civic from Miss Rougellis. You will remember that you must only draw this conclusion if you are satisfied beyond reasonable doubt that it is the only rational conclusion available on the evidence . If at the end of the day you have before you two or more competing inferences which reasonable (sic) arise from that evidence then you cannot convict the accused."

21    Her Honour then dealt with the elements of the offence of receiving and said that on this charge the Crown relied on the same evidence as it did for the charge of stealing, and she did not propose to repeat it. She then summarised the appellant's case relating to the Honda. 22    Then at p 19 of the summing up, her Honour turned to the evidence relating to the Rodeo, the subject of the third and fourth counts, and after doing so, said at p 23:

"It is from this evidence that the Crown asks you to conclude or infer that it was the accused that stole the Holden Rodeo." (my italics)

23    And after dealing with other evidence, including the evidence for the appellant relating to the Rodeo, her Honour referred to the process of reasoning, commonly known as "recent possession" to which I shall return, and at p 28, said:

"I am coming now to the third charge which related to the Lancer owned by Mr Mason . . . The evidence on which the Crown relies to ask you to draw the conclusion is . . ."

and she then dealt with the evidence relating to the Lancer.

24    Whilst it might have been preferable to tell the jury that the evidence in respect of one vehicle could not be used to support charges in respect of either of the other vehicles: R v Thomas (1956) 77 WN (NSW) 77, they were told a number of times to consider the charges separately and the evidence in respect of each charge was summarised separately with a comment that such evidence was the evidence relied on in respect of the relevant counts. In particular, the evidence of Constable Young, who gave evidence of the comparison of compliance plates and engine numbers was not summarised as a whole, but was summarised in three separate parts dealing with the different vehicles when the other evidence relating to those particular vehicles was summarised. In my view the jury could have been left in no doubt that in considering the evidence relating to each of the cars (in relation to the Honda and the Rodeo the alternative counts, and in relation to the Lancer, the single larceny count) they were to have regard only to the evidence relating to those vehicles as compartmentalised by her Honour. 25 This also disposes of the second complaint, namely that her Honour failed to distinguish or sufficiently distinguish for the jury the evidence admissible on each separate count. As I have indicated her Honour summed up the facts separately in respect of each of the vehicles. There was a specific complaint that in dealing with recent possession, her Honour referred to the timing of the stealing of both the Honda and the Rodeo as part of the circumstantial case the Crown relied on in relation to the two receiving counts; but in the context of the whole of the summing up and in particular having regard to its structure where the rest of the evidence in relation to each car was dealt with separately, I do not see that the jury could have been misled in any way. 26 The further complaint is that her Honour erred in permitting evidence not tendered as coincidence evidence to be used and addressed on as such. There is nothing in the summing up that suggests to me that any of the evidence could be used as coincidence evidence, and there is certainly no evidence that it was in fact addressed on as such because the addresses have not been transcribed and are not before us. 27 The next complaint is that when dealing with the requirement that the accused knew at the time he received the goods that such goods were stolen, her Honour erred in directing the jury:

"If you think the facts known to him would have put a reasonable man on inquiry it would be a relevant matter for you when you are considering whether the accused did or did not know it",

and the objection is taken that in that passage her Honour failed to specify that the relevant time to put the accused on inquiry was at the time he came into possession of the goods; but immediately before the passage complained of, her Honour had said:
"But if a person believed the goods to be stolen at the time when he received them , that is sufficient to constitute the requisite guilty knowledge . . . In order to prove requisite knowledge of the accused it is sufficient if you, as judges of the facts, think that the circumstances accompanying the receipt of the Holden Civic by the accused was such as to make the accused believe the car was stolen." (my italics)

These earlier references to the time that the accused received the goods made it clear that that was the relevant time and it was quite unnecessary to make the point again.

28    Similarly I do not consider that in the context of this case it was necessary for the judge to go into another discussion as to the separate facts of each case relating to the matters alleged to be within the appellant's knowledge or perception at the time of the receipt of each of the goods. In particular, her Honour drew attention to the fact that the issue for them to determine and for the Crown to prove beyond reasonable doubt was what did the accused believe and not what would an ordinary person believe. 29    Reference was made in the written submissions to R v Zorad (1993) 29 NSWLR 672 about the failure to relate the direction to the relevant facts, but that dealt with the necessity to relate facts to an ingredient of a charge in the context of a complicated drug matter. In this case where the evidence in relation to each charge had been summed up separately, the jury could have been in no doubt as to the facts they were to take into account in determining whether the accused had the relevant knowledge at the time he came into possession of the relevant vehicles. 30 The other complaint is in relation to the directions given to the jury on "recent possession". The direction given was as follows (p 26):

"If an accused person is found with property in his possession which has recently been stolen and the accused gives an explanation which you are satisfied could not reasonably be true, then you are entitled to, but you need not, draw against him an inference either that he stole it or that he received it knowing that it was stolen. You do not have to draw these inferences and whether you do is a matter for you to determine.
Now I refer to an explanation by the accused for his possession of the stolen property. The explanation includes everything which the accused said about his connection with the property, and you look at the whole of his explanation or explanations. Before you embark on this approach to the evidence you must first be satisfied beyond reasonable doubt that the accused was in possession of the property and that it had been recently stolen ." (my italics)

Her Honour referred to the evidence in relation to whether the accused had been in possession of each of the vehicles and went on:
"Now if you are satisfied of these two issues you should then proceed to ask yourselves whether the circumstances called for some explanation from the accused as a matter of common sense.
If you consider that no explanation was called for you can forget about all this issue of having recent possession as stolen property. If however you consider that the circumstances did call for an explanation then you proceed to consider his explanation. If you consider that his explanation could be true then that would bring an end to the matter as far as recent possession is concerned. You do not have to believe his explanation before rejecting the Crown's argument based on his possession of these stolen cars if you are satisfied beyond reasonable doubt in relation to the Rodeo . . ."

31    It is said that no direction should have been given because the Crown could not establish sufficient proximity between the dates the vehicles, were stolen and possession by the accused to satisfy "recent possession". However, the notion of recency in this context is not one which has any absolute connotation so far as time relationship is concerned, but is an elastic concept depending on the nature of the property. In cases, such as motor vehicles, where the property is of such a nature that an accused would be expected to be able to account for his possession, the degree of recency need not be nearly as close to the theft as in the case of more common items such as bank notes, and it does not necessarily mean "very recently" except where the nature of the property requires it: R v Smale (CCA - 15 August 1986). 32    On the Crown case, the Honda was stolen on 29 June 1993 and advertised for sale by the appellant on 17 August 1993, whilst the Rodeo was stolen on 27 March 1994 and advertised for sale by the appellant on 24 June 1994, and it was open to the jury to find in respect of each vehicle that it had, at the relevant time, recently been stolen; and her Honour expressly told the jury that one of the matters on which they had to be satisfied was "that it had been recently stolen". We do not know whether the recency of the possession was ever an issue in the trial, and for all we know it may have been accepted on both sides that the possession was recent. The jury were told that it was a matter of which they had to be satisfied, they had the assistance of a flow chart in respect of each vehicle, they sought no help, and no further directions were asked for. 33    It was also objected that her Honour failed to direct the jury that if they thought that the accused's explanation might reasonably be true it was not open to them to convict merely on the basis of possession of stolen property and R v Bellamy (1981) 3 A Crim R 432 at 437 was referred to. As I read the summing up, that is effectively what her Honour told the jury. 34 Finally by ground 4 the appellant seeks leave to appeal against the sentences imposed. In this regard it was submitted that a full time custodial sentence was not necessary having regard to the appellant's prior good record, his only previous convictions being for fraudulent use of number plates, drink driving and other traffic offences. The fraudulent use of number plates was a matter of some concern, although an explanation as to what was said to be the minor nature of the offence was given from the bar table. But in any event, the stealing of motor vehicles or receiving of them for the purposes of fraudulently reconstituting those cars using false compliance plates and false engine numbers is a serious offence and considerations of retribution, general and personal deterrence are important in imposing sentences for such matters. 35 A strong message needs to be clearly sent to anyone else who may be tempted to indulge in such activities that if they do so and are convicted, they will receive a significant sentence of full time custody. It is true the appellant had a rather clear record and nothing of this nature, that he had a stable domestic relationship and a good work record and that his former employer and others thought highly of him. 36 In particular, it was submitted that the sentence imposed on the larceny count was affected by the sentences imposed on the receiving counts, that the sentences were affected by the judge wrongly finding that the offences were part of a continuous course of criminal conduct that the appellant was involved in the receiving of stolen cars and rebirthing them to be later sold, that she failed to mitigate the penalty on account of the delay in sentencing since the commission of the offences and that she confused the issue of rehabilitation with lack of contrition and that insufficient weight was given to subjective features concerning the appellant. 37 I consider these criticisms unfounded. The sentences were all made concurrent and, in my view, correctly reflect the overall criminality involved. Her Honour was justified in finding that the offences were part of a continuous course of criminal conduct having regard to the fact that the relevant activities extended from about mid 1993 until November 1995 and were correctly described by her Honour as "sophisticated". Her Honour noted the delay between offending and sentencing in the context of subjective features favourable to the applicant, and made express reference to the prospects of rehabilitation based on the letter which had been written by the appellant, although he had not given evidence in the sentencing process. 38 Her Honour took into account all relevant objective and subjective features and, although the sentences might at first glance appear severe, I consider that in all the circumstances, and particularly having regard to the serious nature of the offences, they were within the range of a proper sentencing discretion. I would therefore grant leave to appeal against sentence, but dismiss the appeal. 39 I propose the following orders:-

(a) Appeal against convictions dismissed;
(b) Grant leave to appeal against sentence, but dismiss the appeal.

40    SPERLING J: I agree with the orders proposed by Dunford J and with his reasons.

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