Gogani v R

9Jonne Sofrenic, a Senior Intelligence Analyst with the Police Department, prepared ex C1, C2 and C3. Ex C1 is a UBD street map of Parramatta, Oatlands, Camellia and Harris Park. Ex C2 and C3 are aerial maps, with ex C3 being a zoomed in view of the relevant areas around the Perfume Network. 10Detective Senior Constable Wolsely, who took 8 photographs (ex A) of the Perfume Network on 3 May 2012, gave evidence. Detective Wolsely, took the photograph (ex A3) standing in front of the car spot where the black Suzuki Swift was, parked facing the Perfume Network. He stated (T9 24-27): "You can see the perfume warehouse there, which is the building on the left. You can see the start of the word "Wholesale", W-H, and P-E-R underneath, which is "Wholesale Perfumes." That's a view that would have been seen by the occupants in the black Suzuki." 11When asked about the distance between the location of the abandoned Isuzu truck (ex C3 4), Detective Wolsely agreed that the distance of the drive to the Perfume Network in the Rosehill Business Park (ex C3 1) would be approximately 350 metres (T380 46-48). 12Detective Senior Constable Benjamin Morgan, who took photographs of the Perfume Network on 6 May 2013, described what was depicted in the photographs (ex F). In cross-examination, Detective Morgan agreed that the Perfume Network is contained within an industrial or commercial complex on James Ruse Drive with a number of other businesses. He said that it is not possible to see the premises of the Perfume Network from a carpark directly across from James Ruse Drive. When asked about the number of lanes and how busy James Ruse Drive is, he replied (T53 23-24): "Not exactly sure on how many lanes it is, but it's a busy road, yes. There's a number - there's more than one lane each way, yes." 13Jamil El Helweh gave evidence that in March 2011, he was the owner of a white Pantec Isuzu truck registration number BB58UH. Mr El Helweh said that he had an online store and was selling homewares that were basically high end kitchenware. He used the truck for storage of the high end kitchenware and had only driven the truck around five times during the entire time that he owned it. When the truck was not being used, Mr El Helweh parked it about 15 to 20 metres from the entrance to his home address in Parramatta. The truck was an old truck with a separate door and ignition keys and a further key for the padlock on the back of the truck. Mr El Helweh had only one set of keys for each of the three locks to the truck and no-one else had copies of the keys. 14Mr El Helwah last saw the truck on Saturday 19 March 2011 when he parked it in the usual spot. When asked whether it was locked or not, Mr El Helweh replied (T245 3-4): "I've always kept it locked because I stored quite expensive stuff in it. Usually I wouldn't keep it open. I would have had it locked." 15Early on Monday 21 March 2011, Mr El Helweh was informed by police that his truck was located on Arthur Street, North Parramatta. When he attended at Arthur Street, he saw his truck with the right hand side door slightly open and the back doors open about 30 centimetres. The truck's ignition had been pulled apart with wires hanging down. He said that the shelving units on each side that he had used for storage had fallen down and the stock that had been on the shelving was on the floor. 16Mr El Helweh marked ex M, an aerial map, with an X to indicate the location where his truck was found. In cross-examination, he disagreed that it was difficult for him to be precise about where the truck was found on Arthur Street because of the time that had elapsed. He agreed that he told police that he didn't notice anything missing from the back of the truck. 17The Crown called Manish Aggarwal, a self-employed businessman who operated the Perfume Network, a business which imported designer perfumes. The business operated from premises located in Unit 1, 142 James Ruse Drive Parramatta, which was part of the Rosehill Business Park. Access to the Business Park was via River Road West. 18The business had a showroom at the front for wholesale and retail customers with an office area and warehouse at the back. The majority of the stock was kept in the warehouse in boxes stored on pallets. There were 4 rows of about 25 metres long and 2 aisles of pallets. The average weight of a pallet was between 100 and 500 kilograms. The pallets were loaded and unloaded with a forklift, with the highest pallet sitting about 4.4 metres high. Mr Aggarwal's warehouse was approximately 90% full at March 2011. At that time, the total value of the stock kept on premises was just over $4 million. 19Mr Aggarwal identified ex F1 as a photograph of the warehouse. The rear entrance to the warehouse consisted of a gate that opened up followed by a roller door. In front of the gate, there were three bollards and another four at the back of the gate. He identified two sirens that made noise if the warehouse was broken into. He said (T261 5-7): "At any break-in, through the front door, to the back door, if anyone forces entry into the warehouse, the sensors will pick that up and the sirens will go off." 20There was also a CCTV camera. A back to base alarm system, activated by sensors and monitored by an alarm company was operational in the warehouse before March 2011. On top of the warehouse gate was a sensor, which was activated when the gates opened. Two white sirens were connected to the alarm. To the right of the roller door was a further small door, which opened the warehouse. The door had mesh and a single bollard on the inside. This door was also fitted with an alarm sensor and was unchanged since March 2011. 21In cross-examination, Mr Aggarwal agreed that he had been in the business complex since January 2005. In March 2011, he said there were roughly 10 businesses in the complex. His attention was drawn to the northern entrance of the Rosehill Business Park on ex C3, near where the words "River Road West" appear. He agreed that is where his stock came in. His business was open for retail between 9:00am and 5:30pm and was a busy business. 22When asked about the other businesses in the complex, he knew that unit 3 opened at about 7:30am. He identified unit 3 on ex C3. 23In her closing address, the Crown told the jury that the Crown relied upon "a consideration of the totality of the calls, what is said in those calls by the [applicant] and others, together with the surveillance evidence, their visit to Bunnings on 8 March, which shows that the [applicant] must have had this agreement with these other persons to break and enter the Perfume Network for the purpose of stealing and that he intended that was to happen." (T3 36-42) 24The Crown suggested to the members of the jury that they considered "what the [applicant] really meant when he was talking in those calls, what others were saying to him and what he says himself that he is doing and going to do, and you compare that to what he was doing and going to do as seen by surveillance officers and the locations where he was" (T18 27-34). The Crown submitted that the evidence showed beyond reasonable doubt that the applicant conspired with Mr Pettersen, Mr Faumuina and the others to commit the break and enter offence for the purpose of stealing in the circumstances where those others were to be present. The applicant's case at trial 25The applicant did not give or call evidence during the trial. The applicant did not dispute that the inference was reasonably available that he and Mr Pettersen were planning a nefarious activity, which quite possibly included criminal activity, across the indictment period. 26The arguments made to the jury by the applicant's counsel included the following: "The concession must readily be made the Crown case is reasonably convincing on the chain of reasoning that Gogani, Faumuina and Pettersen are talking in code. They're planning an event by talking in code, in part, leading to the conclusion that the event is highly likely to be the commission of a crime. But when it comes to proving that that asserted crime is a break enter and steal, aggravated by being in company and nothing else, I submit to you the Crown case becomes considerably less compelling" (T11 6-13). In the early morning of 21 March 2011, the Isuzu truck was recovered with high end cookware still in the back from storage from Mr El Helwah's business. Ex C3 shows that the truck was abandoned on Arthur Street near the corner of Tramway Avenue, Parramatta. The truck location is at a point inconvenient for loading up with stolen goods from the Perfume Network; The fact that a truck was used instead of a car, allows an inference to be made that it was to be used to load up stolen goods. However, it would not be suitable for that purpose, with high-end cookware throughout the storage area of the truck. The applicant and his associates would need to dump that somewhere, whether it's on Arthur Street or elsewhere, hot wire to start it, drive it through the adjoining streets of a grand total distance (which Detective Constable Wolsely agreed), was approximately 350 metres, including turning off River Road West into the Rosehill Business Park before parking it near the rear of unit 1 where the Perfume Network is located; and The sun would have been well and truly up at 7:30am on 21 March 2011, the alleged time of the break and enter. 27It was the defence case that the Crown had not disproved any of the following hypotheses consistent with an acquittal on the indictment, namely (AWS 8): (a)"That across the indictment period the applicant and Mr Pettersen had planned to commit a different offence or offences, an unknown offence of offences, or had commenced negotiations on poorly-defined plans to commit offences (falling in short of reaching a concluded agreement) - or some combination of these possibilities; (b)That the plan as alleged was not shown to require the applicant's actual presence at the scene during the commission of the break, enter and steal (on the hypothesis that the jury accepted that the plan was to commit a break, enter and steal), having the effect that he did not conspire to commit the particular offence alleged, as that offence required the applicant to be in the company with his co-offenders; and (c)That the target premises was not the Perfume Network at James Ruse Drive, Rosehill." Ground 1: The verdict is unreasonable and cannot be supported by the evidence 28Section 6(1) of the Criminal Appeal Act provides relevantly as follows: "6 Determination of appeals in ordinary cases (1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence..." 29The correct approach to determining a ground of appeal which asserts that verdicts are unreasonable, or cannot be supported, was considered by the High Court in SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400. The majority summarised the relevant principles as follows: "The task of the Court of Criminal Appeal [11] It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ: 'Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty'. [12] This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to 'unsafe or unsatisfactory' in M is to be taken as 'equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'.' [13] The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say: 'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.' Save as to the issue whether the Court of Criminal Appeal erred in not viewing a videotape of the complainant's police interview, to which reference will be made later in these reasons, this qualification is not relevant to the present matter. [14] In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make 'an independent assessment of the evidence, both as to its sufficiency and its quality'. In M, Mason CJ, Deane, Dawson and Toohey JJ stated: 'In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'." Argument 30Mr Game SC submitted the inference was reasonably available that the applicant and Mr Pettersen were planning a nefarious activity, which quite possibly included criminal activity, somewhere near the general vicinity of the Rosehill Business Park. However, he contended there was no evidence that the break and enter was going to occur at the Perfume Network. He pointed out that there was only one direct reference made to the Perfume Network, namely, the telephone call by Mr Pettersen on 7 March 2011. He argued that it could not be excluded that another business or premises was the real target of what was planned by the applicant and his associates. 31A further submission was that there was nothing in the surveillance evidence to exclude the businesses along James Ruse Drive, Rosehill, including the nine other businesses located in the same industrial complex as the Perfume Network, as the asserted target of any conspiracy, or even to indicate that the Perfume Network was a more likely target. He submitted that the surveillance evidence went no higher than that the applicant and his associates were observed in the general area of the Perfume Network premises on 1 February 2011. 32Mr Game contended that the surveillance evidence of 1 February 2011, has limited probative value because the surveillance operatives did not describe any of the three occupants of the vehicle walking from the business complex onto the eastern footpath of James Ruse Drive, peering or pointing across James Ruse Drive, or doing anything else to suggest that their attention was on the Perfume Network. He acknowledged that there was no dispute that the applicant was involved in the majority of the intercepted telephone calls. However, he submitted that the contents of the telephone calls, particularly those closest to the alleged conspiracy were at best for the Crown, equivocal on the issue of whether the applicant was personally going to be present to a degree where he was "in company." 33Another submission was that the telephone conversation on 5 March 2011, where the applicant states "and find out about that other thing for me" is suggestive of a reference to another job. He argued that it would be very difficult to infer that this telephone call was a reference to a job that was being planned for the 20-21 March 2011. 34Mr Game stated that it seemed far-fetched to suggest that a bolt cutter, an axe and gardening gloves would suffice to break into the Perfume Network's comprehensive security system and that any such entry and theft could be accomplished without detection. He argued that despite the fact that the applicant and Mr Pettersen were under police surveillance on 20-21 March 2011, when the plan was alleged to have come to a head, neither of them were seen that night with any of the equipment purchased at Bunnings; nor were any of those items found in the Isuzu truck when the police recovered it in the early morning of 21 March 2011. He argued that nothing in the evidence clearly pointed towards a conspiracy to commit a break and enter and it was therefore not open to the jury to find beyond reasonable doubt the applicant's guilt of count 1. He stated that it was not open to the jury to conclude that the applicant planned with his associates to commit break, enter and steal (and no other offence); that the plan included his presence while the offence was being committed; nor that the target premises was the Perfume Network. Mr Game submitted that the verdict is unreasonable and cannot be supported by the evidence. 35The submissions made by the Crown as to particular items of evidence have been summarised in the chronology at [8] above. Mr Adams for the Crown contended that the applicant's submissions focused on inferences that could not be drawn from individual pieces of evidence, rather than the inferences that were available from the entire circumstantial matrix. He argued that the three elements in contention could be proved by inferring their existence from the evidence tendered in Court. 36Mr Adams submitted that the Perfume Network was the target premises. He pointed out that persons, who are intending to commit a burglary, speak in code about their intentions and preparations and are cautious not to name the target premises. He contended that the jury were entitled to have regard not only to the contents of the telephone conversations, but also to the proximity of conversations and events with one another. He argued that the telephone conversation of the 31 January 2011, in which the applicant (who was driving at the time), is conversing with Mr Pettersen in a manner that is consistent, (when considered in combination with the surveillance evidence, various telephone calls, particularly those of 28 January 2011 and 7 March 2011) with him being directed to the Perfume Network, as opposed to the general vicinity of the Rosehill Business Park. He pointed out that the telephone conversation on 31 January 2011 occurred the day before the applicant, Mr Pettersen and Mr Faumuina are observed in the carpark across the road from the Perfume Network by surveillance operatives. 37Another submission was that the telephone conversation of the 5 March 2011, containing the assertion "...I'm going to be eating as well" shows a declared intention on the part of the applicant to be present when the offence is committed. 38Mr Adams contended that the applicant's visit to Bunnings Warehouse Artarmon on 8 March 2011 in company with Mr Pettersen, to purchase a bolt cutter, an axe and gardening gloves was clearly evidence of the conspirators arming themselves with tools to effect forced entry into the Perfume Network. He submitted that even though the items were not seen in the possession of the conspirators on the evening of the 20 March 2011, the surveillance police at Brickfield Street, North Parramatta observed the applicant reach into the window of the Mazda and withdraw his hand. 39Another submission was that the stealing of the Isuzu truck on 20 March 2011, was a final preparatory step to the commission of the aggravated break, enter and steal which was to be committed shortly after 7:30am on 21 March 2011. Mr Adams argued that the stolen truck being parked in Arthur Street at midnight gave the conspirators the ability to drive straight up into River Road at 7.30am and a commercial vehicle had been chosen so as not to arouse suspicion. He said whether the conspirators intended to take pallets of perfume was unknown. He submitted that "the modus operandi" was not something the Crown had to prove. Mr Adams pointed out that the text message sent by the applicant at 1:57am on 21 March 2011 showed that the applicant was aware that whatever he and Mr Pettersen were doing had been compromised. 40Mr Adams urged the Court to consider the evidence in combination, whereby the totality of the telephone intercept material, surveillance reports, attendance of the applicant at Bunnings Warehouse Artarmon, establish that the planned offence was a break, enter and steal at the Perfume Network. He submitted that the appeal should be dismissed. Consideration 41In a circumstantial case, the evidence must be considered as a whole and not by a piecemeal approach to each particular circumstance: Chamberlain v R [No 2] [1984] HCA 7; (1984) 153 CLR 521. As was said by the majority (Gummow, Hayne and Crennan JJ) in R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at [46]: "It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. It is of critical importance to recognise, however, that in considering a circumstantial case, all the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence." 42Because of the particulars in the indictment, in order to establish that the applicant was guilty of count 1, the Crown was obliged to satisfy the jury beyond reasonable doubt that there was an agreement reached between the applicant, Mr Pettersen, Mr Faumuina and others whereby: (i) They were to commit a break, enter and steal offence; (ii) The targeted premises was the Perfume Network; and (iii) The applicant and others were to be physically present at the time of the commission of the planned offence. 43The applicant accepted both at trial and upon appeal that it was reasonably open to the jury to find that he, Mr Pettersen and Mr Faumuina were speaking in code and were planning to commit a crime. The principal submission, however, was that it was not open to the jury to conclude beyond reasonable doubt that the targeted premises was the Perfume Network and the applicant was to be physically present during the commission of the break, enter and steal. 44The circumstantial evidence to be considered as a whole and in combination includes: (a) The telephone conversation of 31 January 2011 between the applicant and Mr Pettersen whereby Mr Pettersen provides directions to him. This evidence is to be considered with ex C1 and ex G to indicate that the Perfume Network is in a location consistent with "down on your right" to which Mr Pettersen makes reference in the call; (b) On 1 February 2011, the applicant, Mr Pettersen and Mr Faumuina were observed by the police undercover operatives driving together in a car into the carpark in an industrial complex on the north east corner of Grand Avenue North and James Ruse Drive, Camellia at 5.02pm. The car was parked so that it was facing west. The men exited and re-entered the car on a number of occasions before driving off at 5.35pm. This carpark was over the other side of James Ruse Drive from the Perfume Network premises and the industrial complex in which these premises were located; (c) The telephone conversation between the applicant and Mr Faumuina on 5 March 2011 during which the applicant said: "But I don't need too many people to come to dinner just one or two because I'm going to be eating as well"; (d) Mr Pettersen's telephone call on 7 March 2011 to the Perfume Network asking for its opening and closing times; (e) The applicant's attendance with Mr Pettersen at Bunning's Warehouse Artarmon on 8 March 2011 when a bolt cutter, garden gloves and axe were purchased; (f) The stealing of the Isuzu truck on 20 March 2011; (g) The telephone call on 20 March 2011 with Mr Pettersen during which the applicant asked "...and what time should I say to make, um, the booking is in the morning? Seven-thirty?"; (h) The surveillance report of the applicant and Mr Pettersen getting out of the Mazda at 11.22pm on 20 March 2011 and walking out of sight. At 11.33pm they walked back to the vehicle. The applicant reached in through the driver's door window. He then walked around the back of the car to where Mr Pettersen was standing. The two of them crouched down, then stood up and walked north on Brickfield Street until they were out of sight; (i) The surveillance report of the two men a few minutes later standing next to the stolen truck. Mr Pettersen then drove the truck with the applicant following in the Mazda. At 11.52pm, the truck was parked on the eastern kerb of Arthur Street in Parramatta, 50 metres north of Hassall Street and the Mazda was parked behind it. At midnight, the Mazda was driven away from Arthur Street by the applicant with Mr Pettersen sitting in the passenger seat; and (j) The SMS message sent at 1.57am on 21 March 2011 from the applicant to Mr Faumuina "from the wog cancel cancel never ever don't write back to this!!" 45The requirement to consider the evidence as a whole does not mean that the Crown case must be considered at its highest in favour of the Crown and that evidence unfavourable to the Crown is to be disregarded. 46The telephone call between Mr Pettersen and the applicant providing directions on 31 January 2011 did not result in the applicant driving into the premises of the Perfume Network. However, he was seen with Mr Pettersen and Mr Faumuina the next day in the carpark of the industrial business complex that was separated by James Ruse Drive from the Perfume Network. The surveillance evidence of the carpark was confined to the men exiting and re-entering the car that was facing west on a number of occasions. As the applicant submitted, none of the men were described as peering or pointing across James Ruse Drive or crossing the road or doing anything else to suggest that their attention was on the Perfume Network. 47The evidence adduced by the Crown as to what could be seen from the carpark was inconsistent. According to Detective Senior Constable Wolsely the start of the word "Wholesale" on the Perfume Warehouse building could be seen, whereas Detective Senior Constable Morgan said that it was not possible to see the Perfume Network premises from the carpark. In any event, it is evident that a detailed study of the Perfume Network premises could not be undertaken from this carpark. There were some 10 other businesses within the Rosehill Business Park complex. 48The Perfume Network premises was protected by a security system. The purchase of a bolt cutter, garden gloves and axe does not point to a planned break in of a warehouse that had monitored sensors and sirens that would go off when forced entry was made, CCTV cameras, a roller door that closed electronically and a collar sitting inside an adjacent bollard so that the roller door could not be opened unless the bollard was removed. 49Although the bolt cutter, garden gloves and axe were purchased on 8 March 2011, these items were not seen again despite continuing police surveillance. The Crown's submission that the applicant might have been reaching through the window of the Mazda on 20 March 2011 for these items could amount to no more than speculation even when the circumstantial case is considered in combination. 50The size, weight and method of storage of the goods in the Perfume Network Warehouse does not support the Crown case that it was the intended targeted premises. The majority of the stock was kept in boxes and stored on pallets. The average weight of a pallet was between 100 and 500 kilograms. The pallets were loaded and unloaded with a forklift, with the highest pallet sitting about 4.4 metres high. 51Should the purpose of stealing the Isuzu truck have been the loading into it of stolen goods from the Perfume Network Warehouse, the shelving units and the high-end kitchenware stored in the truck would have diminished the truck's ability to store stolen pallets. There is no evidence that the applicant or his co-conspirators had given any thought to the use of a forklift that would have been required to load the pallets onto the truck. Whilst the Isuzu truck was parked in Arthur Street approximately 350 metres from the premises of the Perfume Network, it appears from ex C3 that there were other businesses in the nearby vicinity. 52The sole direct reference to the Perfume Network is Mr Petterson's telephone call of 7 March 2011. In oral argument in this Court, the Crown accepted RA Hulme J's proposition that to sustain a conviction the Crown would have to exclude the possibility that the enquiry about the opening hours of the Perfume Network might have been relevant to an enterprise to rob some other premises in the vicinity so as to obtain knowledge of when people might be about. 53As to the third essential element of the offence that the Crown was obliged to prove, the conversation on 5 March 2011 that the Crown relies upon as demonstrating the applicant's intention to be present during the commission of the break and enter is open to reasonable interpretations other than that contended by the Crown. Furthermore, it appears clear from further intercepted telephone calls that there was at least one postponement of the intended crime. 54The phone calls after 5 March 2011 do not plainly suggest that the applicant intended to be present at the time of the planned offence. During the telephone call between the applicant and Mr Faumuina on 11 March 2011, the applicant explained that plans for breakfast over the weekend had been cancelled and that "it all came down to safety." The applicant told Mr Faumuina "I've got nothing but love for you... I'm not going to fuck you up... I'd rather you kick back for another week than get fucked over ...[b]ecause straight up, nigger, I'm not visiting you." This conversation is open to the reasonable interpretation that the applicant was concerned about Mr Faumuina being arrested and not himself personally. 55Another telephone call that is open to a similar interpretation is that between the applicant and Mr Faumuina on 14 March 2011. This call includes the applicant saying "don't stress out: we will be having breakfast for all of us this week." The applicant, however, goes on to explain why breakfast was called off "...the thing is, like, it'd be you that catches the disease and I wouldn't fuckin forgive myself" and "...I would have been sending you in there blind to the restaurant and, fuck, you don't want to go in blind." 56Weighing all of the circumstances of the case in combination, although I am satisfied that it was open to the jury to conclude that the agreed offence was to commit a break and enter, I am of the opinion that it was not open to the jury to be satisfied beyond reasonable doubt that the applicant with Mr Pettersen and Mr Faumuina had agreed to break into and enter the premises of the Perfume Network. The Crown did not exclude the reasonable possibility that the intended target of the break and enter was one of the other businesses within the Rosehill Business Park complex. Furthermore, it was not open to the jury to conclude beyond reasonable doubt that the applicant was to be physically present at the time of the commission of the offence. In my view, the jury acting reasonably must have entertained a reasonable doubt as to the guilt of the applicant as charged on the indictment for count 1. 57This is not a case where the jury's advantage in seeing and hearing the evidence has an impact upon the conclusion that I have reached. 58I would uphold Ground 1 of the appeal and quash the conviction on count 1. Re-Sentence? 59Section 7(1) of the Criminal Appeal Act 1912 (NSW) is as follows: "7 Powers of court in special cases (1) If it appears to the court that an appellant on an appeal under section 5 (1), though not properly convicted on some count or part of the indictment, has been properly convicted on some other count or part of the indictment, the court may either affirm the sentence passed at the trial or pass such sentence whether more or less severe in substitution therefor as it thinks proper, and as may be warranted in law by the conviction on the count or part of the indictment on which it considers the appellant has been properly convicted." 60As the conviction for count 1 has been set aside, this Court may either affirm the sentence imposed for count 2 or pass a sentence for that offence whether more or less severe in substitution for the sentence imposed by the trial judge. 61The applicant concedes and submits that an 18 month 'head sentence' for the offence of 'take and drive conveyance' (count 2) imposed by the trial judge is appropriate. However, the applicant submits that if the sentence for count 2 is the applicant's only detainer, then a fixed term sentence for that offence becomes inappropriate. The applicant contends that the Court should structure a duration of non-parole period that allows the applicant's release to parole forthwith, while retaining the subsisting expiration date of the sentence at 6 February 2015. 62The question for this Court, the applicant argues is whether an 18 month fixed term for count 2 to be served fully cumulatively on a 14 month non-parole period for another offence is an "anomalous" result once the conviction for the conspiracy is quashed. 63The applicant referred to the submissions made in the appeal against sentence for count 1 concerning an asserted error made by the trial judge in the application of the totality principle when the proper sentence is being considered for count 2. The applicant contended that this Court "applying the totality principle, would consider the net impact of its sentence for the 'take and drive conveyance' offence in the context of the [applicant] already having served a non-parole period of 14 months (from 7 June 2012 - 6 August 2013) pursuant to another sentence imposed at Sydney District Court in a separate sentencing exercise for the offence of enter dwelling with intent to commit a serious indictable offence (namely intimidation)" (ASWS7 17). 64The applicant's final submission was that even if the Court concluded that the trial judge intended the 18 months imprisonment for count 2 to be only the non-parole period for the offence and that an increase in the head sentence is warranted, the Court would impose a sentence that would allow the applicant's immediate release to parole. 65On the question of re-sentence, the Crown submitted that the removal of the conspiracy offence does nothing to raise the totality principle to greater prominence. The Crown argued that when considering the objective seriousness of the offence and matters personal to the applicant, the length of the sentence (subject to the Crown's further argument on a fixed term or non-parole period) and the degree of accumulation are both appropriate. The Crown referred to various matters which militated in favour of the overall sentence being increased by imposing an additional term during which the applicant would have had the benefit of supervision in the community. 66The Crown's final submission was that this Court should impose an additional term of sufficient duration to enable supervision of the applicant aimed at addressing his drug problems and antisocial behaviour to enhance his prospects of rehabilitation. Consideration 67I propose to affirm the sentence "passed at the trial" for count 2 for the following reasons: (i) The conclusion that the conviction on count 1 should be quashed does not mitigate the objective seriousness of the offence of stealing the truck. The truck was stolen to assist the applicant and his co-conspirators in the commission of an offence of break, enter and steal of one of the businesses within the Rosehill Business Park. The contents of the truck included Mr El Helweh's high-end kitchenware. As the Crown submitted, the quashing of the conviction on count 1 was brought about as a result of the over-particularisation of the Crown case at trial. (ii) As the trial judge observed in his remarks on sentence, the applicant was on parole at the time this offence was committed (ROS 10). He had been sentenced in the Sydney District Court on 6 March 2009 for an offence of break and enter with intent to steal to imprisonment consisting of a non-parole period of 1 year 10 months to date from 10 February 2009 and to expire on 9 December 2010 with an additional term of 1 year 2 months. He was to be released subject to supervision. This is an aggravating factor: s 21A(2)(j) Crimes (Sentencing Procedure) Act 1999 (NSW). (iii) The applicant's previous criminal history which the trial judge detailed in his sentencing remarks is significant (ROS 9-10). His prior convictions include offences of break and enter, being armed with intent to commit a serious indictable offence and take and drive a conveyance. Greater weight is to be placed on personal deterrence and protection of society: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566. (iv) The Probation and Parole report that was tendered during the proceedings on sentence described the applicant's drug dependency as "unresolved" (ROS 13). The applicant has a long history of drug dependency which the Probation and Parole Service reported that he had little success in addressing. (v) In considering the applicant's prospects of rehabilitation, the trial judge took into account that when the applicant was on bail for counts 1 and 2, he committed an offence of aggravated enter a dwelling with intent to commit a serious indictable offence, namely intimidation. His Honour was unable to conclude that the applicant "has good or reasonable prospects of rehabilitation or that he is not likely to re-offend in the future" (ROS 22). (vi) The trial judge plainly considered the principle of totality when sentencing the applicant. He determined that the sentences for counts 1 and 2 were to be served concurrently but should commence after the expiration of the non-parole period for the aggravated break and enter on 7 August 2013. Whilst his Honour may have applied the totality principle to the non-parole period that had expired three days prior to the time that the applicant was sentenced, he was not obliged to do so. (vii) Although the applicant will serve a total term of 2 years 8 months for the offence of aggravated break and enter and count 2, I am of the view that a fixed term of 18 months imprisonment is the minimum period of custody that reflects the objective seriousness of count 2. 68I do not propose to accede to the Crown's request to extend the term of imprisonment by imposing an additional term. Orders 69Accordingly, I propose the following orders: (i) Appeal upheld and the conviction on count 1 is quashed. (ii) Order the entry of a verdict of acquittal on count 1. (iii) Confirm the sentence imposed by the trial judge for count 2. 70McCallum J: I agree with Price J that the conviction for count 1 should be quashed, for the reasons his Honour's has stated. On the strength of my analysis of the evidence at the trial, I agree with his Honour that the jury ought to have entertained a reasonable doubt as to the applicant's guilt of the offence in count 1 as particularised by the Crown and that it was accordingly not open to the jury to convict the applicant on that count. 71As to the sentence for the remaining count, I agree with R A Hulme J that there is nothing to indicate that the sentencing judge set the fixed term of 18 months at the level of what might otherwise have been a non-parole period. Accordingly, I agree with the first two orders proposed by Price J (which deal with count 1) and the orders proposed by R A Hulme J as to count 2. 72RA Hulme J: I agree with Price J that the conviction for count 1 should be quashed for the reasons his Honour has provided. 73I regret that I am unable to agree that the sentence for count 2 should be confirmed. 74There is nothing to indicate that Norrish QC DCJ set the fixed term of 18 months at the level of what might otherwise have been a non-parole period. If that offence is all for which the appellant stood to be sentenced it would have had a non-parole period set and it would have been either the usual three-quarters of the total term, or something less to take into account the prior sentence. 75The further submissions for the appellant suggest that there is little to be achieved by trying to replicate what might have been done in terms of the length of the non-parole period when regard is had to the prior sentence. It is submitted that the Court should take a practical approach and set a non-parole period that achieves an immediate release to parole. I agree. 76I propose the following orders:

1. Pursuant to s 7(1) of the Criminal Appeal Act 1912 (NSW), quash the sentence imposed on count 2.
2. In lieu, sentence the appellant to imprisonment comprising a non-parole period commencing 7 August 2013 and expiring on 17 December 2014. The balance of the term of the sentence will expire on 6 February 2015.
3. Direct the appellant's release to parole forthwith.

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