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[2008] WASC 28
respondent. Appeals against conviction and sentence dismissed; order that appellants pay respondent's costs, to be taxed if not agreed (supplementary reasons confirm costs order).
Two pensioners were convicted in the Magistrates Court of possession of items reasonably suspected to be stolen after police seized many items from a unit; some complainants identified jewellery as theirs. The Supreme Court (Templeman J) dismissed appeals against conviction and sentence. The Court held the magistrate properly applied the objective test of 'reasonable suspicion' under s 428(1), correctly applied s 428(2)'s burden on the accused to prove absence of reasonable grounds on the balance of probabilities, and did not err in imposing a global fine of $15,000 each, which was not manifestly excessive or in breach of the totality principle. Costs were ordered against the appellants.
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On 15 June 2005 police executed a search warrant at unit 5/8 Glendale Mews, Ballajura, a Homeswest property nominally tenanted by Mrs Hoskins but occupied by her adult son, Zane Hoskins. Police seized some 426 items at that unit, including numerous pieces of jewellery, household goods, beauty products and a laptop ([5]-[6]). Concurrently the police attended the appellants' rented residence at 47 Morgan Way, Girrawheen, but seized no property there ([7]-[8]).
1 cited instrument linked from this judgment.
Following publicity (advertisements placed by police), members of the public inspected the seized items and several claimed property had been stolen from them in separate burglaries. That led to 22 charges initially being brought against each appellant under s 428 of the Criminal Code (possession of goods reasonably suspected to be stolen), of which the magistrate ultimately convicted each appellant on 13 counts and acquitted them on the remainder ([9], [11], [72]-[74]). The magistrate imposed a global fine of $15,000 on each appellant ([87]).
The appellants appealed against conviction and sentence to the Supreme Court, where Templeman J heard argument and dismissed both appeals. A supplemental decision three months later upheld the costs order that the appellants pay the respondent's costs ([1]; Supplementary [1]-[17]).
Two principal legal questions drove the appeal.
First, the correct legal meaning and test under s 428(1): did the magistrate require too high a standard (certainty) to find that an item was reasonably suspected of being stolen? Templeman J affirmed that the correct legal test is an objective one: the court must conclude from the evidence whether the goods might reasonably be suspected of being stolen or unlawfully obtained. That reasonable suspicion falls short of certainty and the statutory change that introduced s 428 was intended to relieve the prosecution of proving actual theft or strict identification ([14], [31]). The magistrate had cited appropriate authorities (Ryan v Dimitrovski, McLennan v Campbell and others) and applied the objective test. While the magistrate expressed doubt about two items where the complainant could not be 100 per cent certain, Templeman J held that even if the magistrate had applied too high a standard in relation to those specific charges, such an error would have favoured the appellants and thus did not amount to a miscarriage of justice affecting them ([14], [31], [34]).
Second, the statutory defence under s 428(2): what burden and standard apply to the accused? The judge confirmed the correct formulation: once the prosecution proves the elements in s 428(1), the onus shifts to the accused to prove, on the balance of probabilities, that at the time they had no reasonable grounds for suspecting the item was stolen or unlawfully obtained. The magistrate stated and applied this principle precisely, accepting some defence explanations (leading to acquittals on some charges) and rejecting others on credibility grounds, which is a matter for the trier of fact ([68]-[76]).
On sentencing, Templeman J confirmed the totality principle applies to fines as it does to custodial sentences and restated the high threshold for appellate intervention: interference is warranted only where there is an error in the exercise of discretion or the sentence is outside the permissible range. Considering the statutory maxima (each count attracted a fine up to $24,000), the number of counts (13 each), the magistrate's account of the appellants' assets and gambling winnings, and the sentence's scale relative to the maximum, the appellate judge found the global fines were not manifestly excessive and the totality principle had not been misapplied ([92]-[99]).
Before these appeals, the relevant law about s 428 was articulated in lower-court authorities, notably Ryan v Dimitrovski and McLennan v Campbell, that the test is objective and concerns reasonable suspicion rather than proof of theft. Templeman J reaffirmed that position and clarified its practical application in the context of identification evidence and surrounding circumstances. He emphasised that reasonable suspicion must be determined from the evidence available to the court at trial and that it is a lesser standard than proof beyond reasonable doubt of actual theft ([14], [31], [63]).
On sentencing, the decision reiterates established appellate principles: the totality principle applies to fines (citing Sgroi) and an appellate court should not interfere with sentencing unless there is an error in exercise of discretion or the sentence is plainly unreasonable (citing Lowndes) ([92], [98]). The case therefore confirms, rather than alters, the state of the law: it endorses existing authorities and applies them to the facts.
"This element requires the Court to reach an objective conclusion from the evidence led as to whether or not the goods might reasonably be suspected of being stolen or unlawfully obtained" ([14]).
"a reasonable suspicion that something has been stolen must fall short of certainty" ([31]).
"It is clear from the video of the search that the bag of jewellery was located under the washing machine... the location of it alone in my view raises a reasonable suspicion that it was stolen or unlawfully obtained" ([49]).
"the onus of proof shifts to the two accused to prove on the balance of probabilities that they had no reasonable grounds to suspect" ([68]).
"A fine of $15,000 must therefore be regarded as relatively low... equates to approximately $1,154 for each offence" ([89]).
This decision is instructive for fact patterns involving:
Possession of multiple items, many not uniquely identifiable (e.g. mass-produced jewellery), where complainant identification evidence varies in certainty. The decision explains how a trier of fact should treat identification evidence and surrounding circumstances (e.g. hiding, quantity, location) in assessing reasonable suspicion ([29]-[39], [41]-[52]).
Situations where some items are identified with high confidence and others not; the court may convict on some items and acquit on others depending on the strength of identification and circumstantial evidence, and such mixed outcomes will not, of themselves, indicate miscarriage ([35]-[40], [78]-[80]).
Cases where defence relies on s 428(2) explanations (e.g. items received from third parties or previously police-cleared property). The decision shows courts will accept such explanations where the accused establishes, on the balance of probabilities, lack of reasonable grounds to suspect ([55]-[59], [72]).
Sentencing disputes where multiple counts give rise to global fines. The decision confirms that aggregate sentences must respect totality but that a global fine well below aggregate maximums will often be within the permissible range ([87]-[96]).
This deep dive covers a single decision by Templeman J. The judgment itself cites and applies established authorities rather than establishing a novel rule. Where the court drew on precedent (Ryan, McLennan) it did so to reaffirm the objective nature of the reasonable suspicion test and to apply it factually. On sentencing, the court applied Sgroi and Lowndes to reassert established appellate restraint. Practitioners should treat Hoskins v Ramsden as a confirmation of the approach to s 428 prosecutions: courts will evaluate identification and circumstantial evidence holistically and will accept that hiding or unusual placement of goods, matching serial numbers, and credible identifications can sustain reasonable suspicion beyond reasonable doubt. Future courts confronted with similar evidentiary mixes will likely apply this decision as illustrating how objective suspicion may be made out without unique identifying marks, particularly when coupled with suspicious circumstances ([14], [49], [61], [63]-[64], [89]-[99]).
Identification standards for mass-produced items: While Templeman J accepted that certain identifications were weak (and acquitted in some instances), the decision does not lay down a quantitative threshold for when identification of non-unique items suffices; trial courts remain dependent on demeanour and contextual factors ([29]-[36], [33]). Practitioners will still need to argue carefully about what surrounding circumstances justify an objective reasonable suspicion.
Weight to be given to discovery location versus identification evidence: The decision treats hiding (bag under washing machine) as strongly indicative of suspicion; the precise boundary where location alone suffices for conviction remains fact-specific ([49]-[52]).
Interaction with police conduct and chain of possession: The case involved contested accounts about witnesses' statements and whether an item had been police-cleared and returned (the laptop). The judgment accepts that issues such as prior police handling and stickers may be matters for trial credibility determinations; appellate courts will be cautious to substitute their views for those findings ([54]-[61]).
Sentencing parity and totality in multi-count fines: Although this decision confirms the totality principle applies to fines, it leaves open detailed guidance on how to calibrate global fines in high-count but lower-value aggregate offending, particularly where asset evidence is limited or contested ([92]-[99]).
Use of video evidence for establishing circumstances: The magistrate relied on a video of the search in assessing the bag under the washing machine. Further cases may develop standards for reliance on contemporaneous audiovisual material in establishing suspicious actions or admissions.
Overall, Hoskins v Ramsden is a practical application of established principles on s 428 prosecutions and sentencing. It demonstrates that courts will assess reasonable suspicion objectively, relying on identification evidence and contextual facts, will uphold the prescribed burden-shifting under s 428(2), and will defer to sentencing discretions unless an error or manifest excess is shown.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : HOSKINS -v- RAMSDEN [2008] WASC 28
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
File No : MI 9419 - 9440 of 2005, MI 9395 - 9416 of 2005
Criminal law - Appeals against conviction and sentence - Possession of thing reasonably suspected of being stolen - Whether complainants must be certain of identity of stolen material - Whether totality principle applied in sentencing
1 TEMPLEMAN J: The appellants, Helen Lorraine Hoskins and Denice Betty Pearson, appeal against their convictions by a magistrate on thirteen charges brought against each of them under s 428 of the Criminal Code (WA).
2 The appellants were acquitted of a further nine charges.
3 Should these appeals be unsuccessful, the appellants appeal against the sentences imposed on them in respect of those convictions. Each appellant was ordered to pay a fine of $15,000.
(1) A person who is in possession of any thing capable of being stolen that is reasonably suspected to be stolen or otherwise unlawfully obtained is guilty of an offence and is liable to imprisonment for 2 years and a fine of $24 000.
(2) It is a defence to a charge of an offence under subsection (1) to prove that at the time the accused was allegedly in possession of the thing, the accused had no reasonable grounds for suspecting that the thing was stolen or unlawfully obtained.
5 Eleven of the thirteen charges brought under this section related to items of jewellery seized on 15 June 2005, when police executed a search warrant at unit 5/8 Glendale Mews, Ballajura. That was a Homeswest property of which Mrs Hoskins was the named tenant. Mrs Hoskins' adult son, Zane Hoskins, was living at the unit and was present during the search.
6 Some 426 items were seized from the Glendale Mews unit. These included items of jewellery, household items, manchester, perfume and beauty products, DVDs, games and a laptop computer.
7 Although Mrs Hoskins was the tenant of the Glendale Mews unit, that was not her normal place of residence. I was told by the appellants' counsel that since November 2004, both appellants had lived at 47 Morgan Way, Girrawheen.
8 The police executed a search warrant at Morgan Way simultaneously with their attendance at Glendale Mews. However, no property was seized from the Morgan Way premises.
9 Following the seizure of the property referred to above, advertisements were placed in the media to the effect that items of jewellery were available for inspection by the public. As a result of those advertisements, several people identified items of jewellery which they claimed to have been stolen from them in the course of home burglaries. This led to 22 charges being brought against the appellants in November 2005.
10 The trial was listed in the Midland Magistrates Court on 30 June 2006, despite the fact that the defence view was that one day would be insufficient to dispose of the matter. That view proved to be correct. In the event, five days were required which, because of the learned magistrate's other commitments, were spread over some 11 months. The final sitting day was 17 May 2007 when the magistrate reserved her decision. Her Honour handed down a written decision on 10 August 2007.
11 In her reasons for decision, the magistrate first set out some introductory and background matters: [1] - [8].
12 Then, under the heading 'BURDEN, STANDARD OF PROOF AND ELEMENTS', her Honour said:
(c) That was reasonably suspected to be stolen or unlawfully obtained.
13 There is no complaint about the way in which the magistrate dealt with 'possession' and 'any thing capable of being stolen'. Her Honour was satisfied beyond reasonable doubt that those elements had been proved in respect of each charge. Indeed, that was not in dispute at the trial: nor is it in dispute now.
14 The magistrate then turned to the question whether the 'things' the subject of the charges were reasonably suspected of being stolen or otherwise unlawfully obtained. In relation to that matter, her Honour said:
This element requires the Court to reach an objective conclusion from the evidence led as to whether or not the goods might reasonably be suspected of being stolen or unlawfully obtained (see Ryan v Dimitrovski (1996) 16 WAR 457 and McLennan v Campbell [2003] WASCA 145). It is not whether the police at the time of the seizure of the goods had the relevant suspicion.
15 Her Honour then referred to three further authorities: R v Tween [1965] VicRp 89; [1965] VR 687, R v Chan (1992) 28 NSWLR 421 and R v Grace (1930) 30 SR (NSW) 158. Having done so, her Honour said:
Thus, in order to reach a conclusion on this element of the offence, I must be satisfied beyond reasonable doubt that one reasonable suspicion open on the evidence is that the things in question in each charge might have been stolen or unlawfully obtained. To do that, all the surrounding circumstances as well as the particular circumstances, if any, which relate to any of the charges, need to be considered.
16 In my view, that is an entirely correct statement of the law and of the way in which the application of the law should be applied to the facts, as the magistrate found them to be. Counsel for the appellants rightly accepted that to be so (ts 11 - 12).
17 Despite that, the appellants' first ground of appeal is in the following terms:
There was a miscarriage of justice in that the Magistrate misdirected and misapplied the correct test of the law under Criminal Code s 428(1).
18 The appellants base that ground on the approach taken by the magistrate in relation to charges 9401/05 and 9425/05.
19 The prosecution witness in relation to those charges was a Mrs Maclean. Her evidence was that on 4 April 2003, there had been a burglary at her residence in Mandurah. She said that a number of items had been lost in the burglary, not all of which were in the court. They included a strand of pearls, 'quite a few pieces of antique jewellery, heirlooms'.
20 Mrs Maclean said that when she attended at the police station she was able to identify a pair of pearl earrings on a shank. When the earrings were shown to her she said:
When asked how she had come to the conclusion that they were her earrings, Mrs Maclean said:
Well, I'd had ear shanks put on them and they were that size and they look the same ...
21 Mrs Maclean went on to say that she had had the earrings for probably about three years before they had been stolen.
22 Under cross-examination, it was put to Mrs Maclean that she had said to the police 'I'm sure these earrings are mine but cannot be 100 percent certain'.
I was 99 percent sure, because earrings are earrings, aren't they.
24 When asked what she had meant by that statement, Mrs Maclean said that it was hard to identify a pair of pearl earrings. The earrings looked like hers and she believed that they were. When asked whether she had 'left the opening for a possibility that they could be somebody else's, Mrs Maclean said:
25 Mrs Maclean's witness statement of 5 July 2005 was then put to her. She had there said:
I'm sure these earrings are mine but cannot be 100 percent certain (AB 47 - 50).
26 In dealing with those charges, the magistrate referred to Mrs Maclean's evidence in cross-examination that she could not be 100% certain that the earrings were hers and that she had said 'earrings are earrings'.
On this evidence I find I cannot be persuaded that the earrings are those of Mrs Maclean and therefore stolen from her home. I am therefore unable to have a reasonable suspicion that they are stolen or unlawfully obtained [29].
28 Counsel for the appellants submits that the magistrate was correct in approaching the issue of reasonable suspicion in this way.
29 Counsel submits that the jewellery in question was:
It is by no means clear that the evidence supports these contentions. However, I will accept them as correct for the purposes of the argument.
30 The essence of counsel's submission is that where jewellery falls into this category, a very high degree of persuasion should be required before the court could be satisfied beyond a reasonable doubt that the item in question could be reasonably suspected to be stolen or otherwise unlawfully obtained. Counsel therefore submits that the test 'formulated' by the magistrate for determining that issue in relation to charges 9401/05 and 9425/05 was correct. Counsel submits:
It follows that the test Her Honour devised for measuring a reasonable suspicion in regard to mass produced jewellery was that the complainant witnesses be 100% certain in their identification.
31 I am quite unable to accept this submission. It runs counter to s 428(1) of the Criminal Code because a reasonable suspicion that something has been stolen must fall short of certainty. Put another way, if the test required the court to be certain that an item had been stolen, s 428 would have been unnecessary. However, the justification for the amendment of the Criminal Code in 2004 to insert s 428 was that it would relieve the prosecuting authority of the requirement to prove that items had been stolen: see the Second Reading Speech of the Criminal Law Amendment (Simple Offences) Bill 2004 reported in Hansard, 23 September 2004, page 6533.
32 To return to the magistrate's reasons for decision: it should be noted that in relation to charges 9401/05 and 9425/05, her Honour did not conclude that she was unable to have a reasonable suspicion that the earrings had been stolen or unlawfully obtained, only on the basis of Mrs Maclean saying that she could not be 100% certain that the earrings were hers. It was also Mrs Maclean's evidence that 'earrings are earrings'.
33 Of course, the magistrate's decision must have been based not only on what the witness said, but on her general demeanour: the impression she made on the magistrate when she gave her evidence.
34 I do not think that the magistrate should be taken to have decided those charges simply on the basis that a less than 100% certainty was insufficient. That was not the approach her Honour took in relation to the other charges on which she convicted. If, however, that was her Honour's approach, then, with respect, she made an error which favoured the appellants.
35 I have considered the evidence given by each of the prosecution witnesses in support of the 11 charges relating to individual pieces of jewellery. In each case, the witness gave evidence that jewellery had been stolen from her and identified the jewellery with varying degrees of certainty. For example, in relation to charges 9408/05 and 9432/05, a Mrs Jones said she was quite sure that the bracelet she had identified was hers (AB 21). Mrs Jones maintained that position through a lengthy cross-examination in which she said, for example:
I felt that it was mine as soon as I saw it (AB 27).
36 A witness who was perhaps less confident was a Mrs Yannakis who was the victim of a burglary in 2003 when 'possibly up to five' items of jewellery had been stolen from her. Mrs Yannakis identified a freshwater pearl necklace with a gold clasp as an item which had been stolen from her:
Because it looks like the one that I had previously (AB 55).
37 In cross-examination, Mrs Yannakis said that it was only the gold clasp on the necklace which led her to believe that it was hers. However, she did not know how many of those types of clasps were available on the market. She conceded that her evidence that the necklace looked like the one that she had previously was 'as strong as you can make your evidence on oath here today' (AB 56).
38 In both cases, the magistrate was satisfied beyond a reasonable doubt that there was a reasonable suspicion that the relevant items of jewellery had been stolen from the witnesses.
39 Her Honour came to the same conclusion in relation to the other charges involving individual items of jewellery, on evidence of a similar kind.
40 Of course, I have not had the advantage of seeing and hearing the witnesses give their evidence. However, there can be no doubt that it was open to the magistrate, on the evidence of the prosecution witnesses, to reach the conclusions she did in relation to each of the charges relating to individual items of jewellery.
41 Charges 9414/05 and 9438/05 related to a bag of jewellery.
42 The evidence was that a bag containing jewellery had been found under a washing machine at the Glendale Mews unit during the course of the search. It will be recalled that Zane Hoskins, Mrs Hoskins' son, was then residing at that unit.
43 A video recording was made of the search as it progressed. In the video, which was played to the court, Mr Hoskins said he thought the bag of jewellery was suspicious as there was a lot of it. He said also that he hid the bag underneath the washing machine because he thought it was suspicious. He said the bag had been brought to the unit by his mother.
44 Mr Hoskins had given a statement to the police and was called as a prosecution witness. In the course of his evidence in chief, it became apparent that his evidence did not accord with his statement. The prosecutor therefore sought to have him declared a hostile witness so that he could be cross-examined.
45 The magistrate did not rule on the application but, in essence, directed that Mr Hoskins' statement be shown to him in case his memory might thereby be refreshed (AB 213 - 215).
46 Having read his statement, Mr Hoskins did not agree that it was correct. However, he maintained that he had not lied deliberately.
47 Despite the magistrate not declaring Mr Hoskins a hostile witness, the prosecutor did, in effect, proceed to cross-examine him. The prosecutor put to Mr Hoskins that in relation to what I understand to be the bag of jewellery, he had said in his statement:
I placed it under the washing machine so it was out of the way.
Mr Hoskins said that he could not now remember, and that he had signed the statement, which had been prepared for him, without reading it. However, Mr Hoskins admitted that he had said in the laundry:
I was suspicious of this package because it was jewellery, and if it was legitimate she [his mother] would have kept it at her house.
48 Mr Hoskins went on to say that he had made that statement 'with the camera in my face' and that he had taken it back in another interview (AB 216 - 217).
49 In her reasons, the magistrate referred to statements made by Mr Hoskins on the video recording made during the course of the search. Her Honour also referred to Mr Hoskins' evidence that he had retracted what he said on the video. Her Honour went on to say:
It is clear from the video of the search that the bag of jewellery was located under the washing machine, irrespective of what Mr Hoskins had to say about it then or later and his opinion as to whether it was suspicious to him or not. There is no doubt in my mind that the jewellery was delivered to Mr Hoskins by his mother. The circumstances of the finding, that is under the washing machine wrapped up in a plastic bag, is most unusual to say the least. It appears to me to be a clear attempt to hide it. This is consistent with Mr Hoskins saying that it was put under the washing machine to hide it. It appears suspicious to hide jewellery in that manner and despite any evidence from any person identifying the jewellery, the location of it alone in my view raises a reasonable suspicion that it was stolen or unlawfully obtained [52].
50 Despite Mr Hoskins' denial that what he had said during the course of the search, or in his statement, were true, the magistrate was entitled to have regard to that evidence.
51 I was informed by counsel for the appellants that the bag of jewellery was not in evidence at the trial which therefore proceeded, in effect, on the basis that the appellants admitted that the bag found underneath the washing machine contained jewellery, although the quantity and quality of that jewellery was not established (ts 36).
52 Viewed objectively, I consider that it was open to the magistrate, on the evidence to which her Honour referred, to be satisfied beyond a reasonable doubt that there was a reasonable suspicion that the contents of the bag had been stolen or obtained unlawfully.
Where the bag of jewellery was left at the unit by the appellants and whether it was hidden by Zane Hoskins on his own accord or under instructions ... does not discharge the prosecution burden. To simply have something lying under a washing machine cannot be prima facie reasonably suspicious.
I accept the proposition in the last sentence quoted above. However, this was not a case in which, on the findings made by the magistrate, the bag of jewellery was 'simply ... lying under a washing machine'.
54 Charges 9397/05 and 9421/05 were concerned with a laptop computer. Evidence was given by the manager/owner of a Retravision store in Mandurah that he had reported a burglary offence committed at his store on 8 April 2002. One of the items stolen was an Acer laptop computer. The serial number on that computer was the same as the serial number on the computer found during the execution of the search warrant at the Glendale Mews unit.
55 Evidence was given for the defence by one Michael Blay who was then a serving prisoner. Mr Blay said that in early 2002, organised crime detectives had been to his house and confiscated some property including a laptop computer. That computer had been given to Mr Blay, he said, by a friend as a late birthday gift.
56 Mr Blay said also, that in mid 2004 when he was signing his bail at the Perth Watchhouse, organised crime detectives asked him to sign for some property which was to be given back to him. One of the items of property was the laptop computer which had been taken from him two years previously. Mr Blay said the computer had a sticker on it showing that it was property which had been cleared by the police.
57 Mr Blay said that about two weeks after the computer had been returned to him, he was at the appellants' house in Girrawheen and had offered the computer to them for use by their grandchildren because he had bought a new computer and he was 'going to jail in the near future' (AB 205 - 207).
58 Mr Blay went on to say that when he had offered the computer to Mrs Hoskins who had been 'a bit sceptical' she had asked him 'numerous times' if it had been stolen.
59 The prosecution called Andrew John Ramsden, a police constable who was present at Glendale Mews on 15 June 2005, when the search warrant was being executed.
60 In cross-examination, it was put to Constable Ramsden that the computer had been returned to Mr Blay with a police clearance sticker on it. Constable Ramsden said it had not had such a sticker when it was seized. He went on to say that all the serial numbers had been removed from the computer, other than one which was found underneath the battery compartment (AB 129 - 130).
61 In the magistrate's reasons, her Honour summarised the evidence to which I have referred above and concluded that it was reasonable to suspect that the Acer laptop computer seized from the Glendale Mews unit was the same computer as that stolen from the Retravision store in Mandurah ([33] - [39]).
62 Clearly, that finding was open on the relevant evidence.
63 For the reasons set out above, I am satisfied that:
64 In these circumstances, I conclude that the first ground of appeal has not been made out.
65 The second ground of appeal is in the following terms:
In the alternative, there was a miscarriage of justice in that the Magistrate misdirected herself on the correct test of the law under Criminal Code s 428(2).
66 In his submissions, counsel for the appellants said:
Under s 428(2) it is a defence to a charge under s 428(1) for an accused to show that there was no reasonable grounds for suspecting that goods were stolen or unlawfully obtained. The burden is on the accused to demonstrate this upon the balance of probability. The Court does not need to be convinced by the accused's account, only that it is acceptable on the balance of probabilities: Ryan v Dimitrovski (1996) 16 WAR 457; Ricciardelo v Van Aken (1996) 23 WALR 34.
Her Honour misdirected herself on the nature of the test under s 428(2), requiring that the appellants provide an account that is convincing in comparison to the prosecution account rather than that they provide an account that is acceptable on the balance of probabilities.
67 The first of the paragraphs set out above is clearly correct. However, the submission that her Honour misdirected herself on the nature of the test under s 428(2) is entirely unjustified.
68 Her Honour dealt with this matter in [76] of her reasons in which she said:
In regard to the charges in which I am satisfied there is a reasonable suspicion that the items particularised have been stolen or unlawfully obtained, the onus of proof shifts to the two accused to prove on the balance of probabilities that they had no reasonable grounds to suspect that the items were stolen or unlawfully obtained.
69 That is clearly a correct statement of the law. Further, it is clear that her Honour applied the test correctly in considering whether the appellants had made out a defence to each of the charges on which they were subsequently convicted.
70 Throughout that part of her Honour's reasons, there are repeated statements to the effect that the appellants had failed to persuade her Honour 'on the balance of probabilities' that the relevant item was not stolen or unlawfully obtained.
71 In essence, in relation to each charge in which the magistrate found that the item in question was reasonably suspected of being stolen or otherwise unlawfully obtained, the appellants gave evidence in which they claimed (for various reasons) that they had no reasonable grounds for suspecting that the item was stolen or unlawfully obtained.
72 In some cases, the magistrate accepted that evidence as discharging the burden of proof arising under s 428(2). In those cases, the magistrate dismissed the charges. They were charges relating to manchester items, perfume and beauty products, DVDs and household items.
73 The remaining charges were dismissed because the prosecution adduced no evidence on which findings could have been made under s 428(1).
74 The appellants were convicted of the remaining thirteen charges because the magistrate did not accept the explanations proffered by the appellants.
75 As counsel for the appellants accepted in the course of his submissions, the appellants' credibility was entirely a matter for the magistrate. Counsel did not submit that it was open to me to accept evidence proffered by the appellants which the magistrate had disbelieved. Indeed, as counsel accepted, he could not say that the magistrate should have believed the appellants (ts 31). Counsel accepted further that because the magistrate was not persuaded by the appellants' evidence, the issue raised by ground 2 was closed (ts 34).
76 It follows from the reasons given above that ground 2 is without foundation and must therefore fail.
77 The third ground of appeal is in the following terms:
The result of the miscarriage of justice was that the Magistrate convicted the appellant:
78 In this ground, the appellants effectively reiterate the point that the magistrate had 'devised a test' in relation to s 428(1) which required a witness to identify an item as being stolen with '100 percent certainty'. As I have said in relation to ground 1, the magistrate did not formulate the test in these terms, nor did her Honour apply such a test except, possibly, in relation to two of the charges to which I have referred above.
79 I repeat that if her Honour's reasons in relation to those charges are to be interpreted in this way, there was an error. Any inconsistency arising from that error favours the appellants.
80 Ground 3 must also fail, with the result that the appeals against conviction should be dismissed.
81 There are two grounds of appeal in relation to the sentences imposed by the magistrate on each of the accused, being a global fine of $15,000.
83 The appellants were sentenced on 16 August 2007, immediately after the magistrate had handed down her decision. The magistrate asked the appellants' counsel whether he wanted to read the decision before making his pleas. Counsel said:
Not at this stage. I think you've had the opportunity of hearing from each of the defendants, and to that - I think my submission at the end of the day would be a request to consider a pecuniary penalty; a fine in respect to these matters in a global sense, with - bearing in mind totality principles of concurrency and so forth in respect of this sort of offending (AB 372).
84 The magistrate then asked the prosecutor whether there were any records. The prosecutor replied that there were, but that the records did not indicate that 'imprisonment is likely on these offences'.
85 After some discussion about costs, the magistrate asked the appellants' counsel whether he had anything to say about the capacity of the appellants to pay fines.
SKLARZ, MR: Both ladies do have assets, and as you've heard there's real estate assets and also personal belongings, which would be quite sufficient to pay a reasonable fine in respect to a penalty that one may consider appropriate in these types of conditions (?).
HER HONOUR: So you said 'real estate assets'?
SKLARZ, MR: Yes. I'm sorry, they're both renting. Yes. My apologies. They do have substantial personal assets over the years, and I think we've heard quite significant evidence in respect to the personal assets that each have. They do indicate in any event to me that they're well capable of paying a fine.
I think, bearing in mind their age and the previous convictions, particularly the late date of the convictions, I would suggest that a fine rather than any community-based order be appropriate.
HER HONOUR: Oh, look, I don't think a community-based order is - - -
SKLARZ, MR: Would be appropriate.
HER HONOUR: - - - appropriate for either of the two accused.
SKLARZ, MR: No. Yes. Yes.
87 After dealing with matters of costs, the magistrate proceeded to sentence. Her Honour said:
You've each been convicted of 13 counts of being in possession of property reasonably suspected to be stolen or unlawfully obtained.
It has been submitted to me on behalf - on your behalf by Mr Sklarz that a financial penalty ought to be imposed. That has not been opposed by the prosecution.
I have had the benefit of records tendered to me by the prosecution in regard to each of you, and I note that certainly in the recent past neither of you have been convicted or anything similar.
Despite the number of charges and the property involved, I accede to the suggestion that there be a financial penalty, and - but it must be a penalty which should reflect the gravity of your offending; that is the number of charges that have been proven and the property involved, and I'm told that you have assets which you can use to pay a financial penalty.
So I therefore decide that it is appropriate that I deal with you in that way.
So in regard to each of you there will be a fine - a global fine of $15,000 for each of you (AB 377 - 378).
88 In relation to the first of the grounds of appeal against sentence, counsel for the appellants submits that the total estimated value of the items in question was about $5,000. However, that estimate is taken from the statement of material facts relating to each of the charges, which were not in evidence. No evidence of value was tendered either by the prosecution or the defence.
89 Counsel's submission that the global fine was manifestly excessive is based on the proposition that the fine is at 'the high end of the spectrum'. I do not accept that submission. It will be recalled that the statutory penalty provided by s 428 of the Criminal Code is imprisonment for two years and a fine of $24,000. In the present case, each of the appellants was convicted of 13 offences. That being so, the maximum fine was $312,000. A fine of $15,000 must therefore be regarded as relatively low. Put another way, the fine equates to approximately $1,154 for each offence.
90 Although counsel for the appellants asked the magistrate to have regard to 'principles of concurrency', he did not address any argument to the magistrate to the effect that concurrent sentences should be imposed. No doubt, counsel considered it inappropriate to do so, there being no basis on which it could be suggested that what were apparently quite separate offences, should be dealt with as one.
91 So far as the appellants' antecedents were concerned, it appears that the magistrate knew no more than conveyed by the prosecutor's statement that 'there are records'. Neither the prosecutor nor the appellants' counsel sought to tender those records. They have been provided to me. They are not trivial, but they do not disclose any offences of the kind in issue in this appeal.
92 I accept that the totality principle applies to the imposition of fines as it does to the imposition of a custodial sentence: Sgroi v The Queen (1989) 40 A Crim R 197, 203, 204; Sentencing Act 1995 (WA), s 6(3)(b).
The purpose of a fine is primarily to punish the offender. Consequently, the amount of the fine must be such as will constitute an appropriate punishment having regard to the offender's capacity to pay. Thus, the amount and method of payment of the fine will need to take into account, as far as practicable, the financial resources and income of the offender and the nature of the burden that its payment will impose (200).
94 Counsel submitted that the appellants would be 'financially crippled' by the imposition of what was effectively a $30,000 fine on their household. Counsel submitted that the magistrate failed to turn her mind to this when considering the totality principle.
95 When I asked counsel for the basis on which he made the assertion that the appellants would be 'financially crippled', he effectively withdrew that proposition. He was right to do so, because there is no evidence to support it. Rather, the evidence of the appellants themselves, that they had amassed 'substantial personal assets over the years' and that they were 'well capable of paying a fine' is entirely contrary to that submission.
96 The magistrate referred in her reasons to the substantial sums of money which the appellants, between them, had won at the casino and from the WA Turf Club. These amounts exceed $250,000 ([83] - [84]).
97 It is well established that an appellate court should not interfere with a sentence imposed by the trial court, merely because the appellate court would have exercised the sentencing discretion in a different manner.
98 The appellate court will only interfere with the sentencing discretion if satisfied that there has been an error in the way in which that discretion was exercised: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671 - 672. One of the ways in which it may be shown that the sentencing discretion has miscarried is by demonstrating that the sentence falls outside the range of a sound exercise of that discretion.
99 Having regard to the number of convictions and the seriousness of the offences, as reflected in the maximum penalty prescribed by s 428 of the Criminal Code, I am not persuaded that the sentences imposed on the appellants were manifestly excessive, either as a result of a failure by the magistrate to apply the totality principle, or at all.
100 For these reasons, the appeals against sentence should be dismissed.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : HOSKINS -v- RAMSDEN [2008] WASC 28 (S)
HEARD : 6 FEBRUARY 2008 & ON THE PAPERS (SUBMISSIONS FILED 12 MARCH 2008)
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
File No : MI 9419 - 9440 of 2005, MI 9395 - 9416 of 2005
Costs - Unsuccessful appeals against conviction and sentence - No reason to depart from rule that costs follow the event
1 TEMPLEMAN J: On 7 March 2008, I made orders dismissing the appellants' appeals against conviction and sentence. I considered that the appropriate order in relation to costs would be that the appellants should pay the respondent's costs, to be taxed if not agreed. I made an order to that effect, but suspended its operation for a short period at the request of the appellants' counsel who wanted to consider my reasons and to make such submissions as he thought fit in support of costs orders which would be more favourable to his clients.
2 On 12 March 2008, I received a written submission from counsel in which he seeks an order that each party bear its own costs. The order is sought under s 14(1)(h) of the Criminal Appeals Act 2004 (WA) which gives the court a wide discretion in relation to costs orders in appeals and in the proceedings giving rise to those appeals.
3 I accept that the court has a wide discretion, although, of course, that discretion must be exercised judicially.
4 In the present case, counsel for the appellants based his submission on four grounds. I deal with each in turn.
5 Counsel submits that the appellants have limited resources, such that an order to pay the respondent's costs, in addition to the fine of $30,000, would be oppressive.
6 Counsel raised the appellants' financial position in the appeal against sentence. As I noted in [94] of my reasons, counsel submitted that the appellants would be 'financially crippled' by the imposition of a $30,000 fine on their household. However, when I asked counsel for the basis on which he made the assertion that the appellants would be 'financially crippled', he effectively withdrew that proposition. As I then noted, counsel was right to do so because there was no evidence to support it. As I noted further, the evidence was to the contrary. It was that the appellants had amassed 'substantial personal assets over the years' and that they were 'well capable of paying a fine'. The learned magistrate in her reasons for imposing the fines she did said that the appellants had between them won sums in excess of $250,000 at the casino and from the WA Turf Club.
7 In these circumstances, it is not open to me to find that the payment of costs of the appeal would be a hardship to the appellants.
8 Counsel submits that the appellants are pensioners with 'a minimal criminal record'.
9 I accept that the appellants are pensioners. However, that is not, of itself, an indication of their financial circumstances. I do not think it necessary to comment on the assertion that the appellants have a minimal criminal record. The nature and extent of their respective records is not relevant to the question of liability for costs.
10 Counsel noted that the appeal related to 13 separate charges being brought against each of the appellants under s 428 of the Criminal Code (WA).
11 Counsel submitted that the defence against the charges 'required complex considerations of law and fact', such that the appellants were put to considerable expense in their defence.
12 I accept that the appellants' counsel carried out a considerable amount of work in analysing the evidence relating to the charges and preparing a series of summaries to facilitate the presentation of his case. However, I do not accept that factual considerations were complex. In essence, it was necessary only to consider the evidence of identification of various pieces of jewellery and other items which were the subject of the charges.
13 Nor do I accept that the appeal raised complex considerations of law. The law relating to s 428 of the Criminal Code is clear. It was stated by the magistrate (who referred to the relevant authorities) in a way which, as I noted in [16] of my reasons, counsel for the appellants accepted as being correct.
14 Counsel submits that 'the appellants and the public at large were entitled to explanation and clarification' as to the law relating to s 428 of the Criminal Code.
15 For the reasons given above, I do not think that there was any doubt about the law, either at the trial or as a result of the magistrate's reasons.
16 In their grounds of appeal against conviction, the appellants contended that there had been a miscarriage of justice in that 'the magistrate misdirected and misapplied the correct test of the law' under s 428(1) of the Criminal Code. I held, at [34] of my reasons, that if the magistrate had misapplied the law in relation to one of the charges, the result was to favour the appellants. However, even if the magistrate did misapply the law, it does not follow that there was a need for the law to be explained or clarified.
17 For the reasons set out above, I am not persuaded that there is any basis for departing from the usual rule that costs follow the event. I therefore confirm the order made provisionally on 7 March 2008, that the appellants should pay the respondent's costs of the appeal, to be taxed if not agreed.
(1996) 16 WAR 457
(1992) 28 NSWLR 421
(1999) 195 CLR 665
Appeals against conviction and sentence dismissed; order that appellants pay respondent's costs, to be taxed if not agreed (supplementary reasons confirm costs order).