R v Bartorillo & Anor [1996] QCA 381

Court of Appeal (Qld)|1996-10-11|Before: Pincus J, Davies J, Ambrose J

Having been convicted of four offences of unlawful possession of a motor vehicle and four related charges of false pretences, the appellants John Norman Bartorillo (John) and Cherylynn Joy Bartorillo (Cher), who are husband and wife, appeal against those convictions and also seek leave to appeal against sentence.

The Crown case was that four motor vehicles, a Calais sedan, a Commodore sedan, a Commodore wagon and a Holden sedan were stolen on various dates in July and August 1994 and came into the possession of the appellants, motor dealers trading in partnership, who subsequently sold them. It is not in issue that the vehicles were all stolen; that was proved by tendering a certificate relating to convictions of one George William Lynde, further mentioned below, and by calling direct evidence of the thefts. Nor is it contended that the convictions were unsafe; for that reason it seems unnecessary to set out further details of the Crown case against the appellants. It was an entirely circumstantial one, but the circumstances pointed strongly towards the conclusions that the appellants must have known that the vehicles they acquired had been stolen, and the evidence led in an attempt to dissuade the jury from drawing the inference which seemed naturally to follow from the circumstances was not strong.; it consisted principally of evidence from John, Cher not being called. A perusal of John's evidence, which included admissions of having told lies on significant points, engenders confidence that the jury was right to reject his assertions to the effect that the impugned transactions were innocent.

Five grounds of appeal were argued and they fall into three groups.

The first ground of appeal asserted that the judge wrongly ruled that there was independent evidence to establish an unlawful common purpose of committing the offences in question. The judge's ruling of which complaint is made was delivered before the calling of any evidence. On the Crown opening, after the deletion of Lynde's evidence (referred to below), the judge held that there was "a reasonable body of independent evidence . . . that the accused were engaged in an unlawful common purpose". This ruling was made, the record shows, in response to submissions on behalf of the defence to the effect that nothing done or said by one accused could be used in the case of the other.

In his written outline, Mr M Griffin for the appellants also complained of the summing-up on this point, in which the jury were told in effect that if they found beyond a reasonable doubt that there was an illegal combination to commit the offences, then evidence of acts or words of one in furtherance of the common purpose was admissible against the other. This passage, in substance, removed any ground for complaint about the ruling made before evidence was called; for if it was necessary for the jury to be satisfied that there was an unlawful combination to commit the offences before they could use evidence concerning one accused against the other, the use of evidence in that way would become an academic point. As Mr Griffin accurately said in argument, the issue in the case was the knowledge - i.e. knowledge that the vehicles the appellants acquired had not been lawfully obtained. The jury could hardly have been satisfied that there was an unlawful combination unless satisfied that the acquisition of the vehicles by the appellants was other than innocent.

It therefore seems to me that the ruling of which complaint is made in ground 1 was of no consequence; in the end the jury were not asked by the judge to consider the matter on the basis of that ruling. But Mr Griffin contended that the Crown had presented its case on an erroneous footing, that the acts and statements of one of the parties could be used in the case of the other. If that were so, then a question would arise whether the judge's ruling was correct. His Honour referred to the decision of this Court in Garrett (unreported, C.A. No. 71 of 1992, 15 February 1993). It was there held that certain evidence of what was done by a participant or participants in a robbery was admissible against other participants; that was held on the basis that there was reasonable independent evidence of an illegal combination. I do not understand Mr Griffin to challenge the principle underlying the judge's decision; he says that there was insufficient evidence to bring it into operation.

In Tripodi [1961] HCA 22; (1961) 104 C.L.R. 1, the factual problem dealt with had some resemblance to that which the judge had to consider here. Tripodi was convicted on two counts of larceny of motor vehicles, the appellant being convicted on the basis that he was one of a number of people who acted in concert. The evidence to which the High Court referred in holding that certain things done and said out of the appellant's presence were admissible against him seems to have consisted in the evidence of an accomplice, one Tayler, and that of Tayler's wife, corroborating his story (5, 6). Mr Griffin in his outline pointed out that in Ahern [1988] HCA 39; (1988) 165 C.L.R. 87, which considered Tripodi, it was said that the trial judge "ought to have decided for himself the question whether there was independent evidence of the participation of the accused in the illegal combination . . . ", (emphasis added) (105). What Mr Griffin complains of, as I understand it, is that there was no sufficient independent evidence to show a combination between the two appellants to commit these offences and that to reach a conclusion that there was reasonable evidence of a combination consisting in John and Cher, the judge must have impermissibly used some evidence of what one did in the absence of the other; Mr Griffin said the argument was circular and this is reminiscent of certain criticisms advanced by the High Court in Ahern (97), dealing with Finn and Niblock [1985] 1 Qd.R. 212 at 215, 216.

One difficulty about the argument is that, as was recognised in Tripodi, even where there is no combination, "directions, instructions and the like although spoken in the absence of the prisoner may, according to the circumstances of the case, be admissible as res gestae or relevant facts" (7); cf. Italiano v. Barbaro [1993] FCA 241; (1993) 40 F.C.R. 303 at 320. Mr Griffin did not venture upon an exhaustive analysis of the evidence in an attempt to identify just what evidence was able to be used by the trial judge as "reasonable evidence of the pre-concert". As Mr Griffin pointed out, the fact that the two persons said to be in pre-concert were connected with all these dealings as partners was not enough in itself to constitute reasonable evidence of an unlawful combination. But there were other circumstances, which it is necessary to mention only in summary, to be added to that. The appellants kept a book in which details of cars dealt in were supposed to be recorded; but, although it included vehicles not the subject of the charges, three of the four vehicles in question were omitted from the book; then there was evidence on which the jury could be satisfied that Lynde stole or was a party to the theft of the vehicles and that he had a business association with Cher; both Cher and John gave evidence of the involvement of each of them in the dealing with the vehicle the subject of count 1; John gave evidence of their connection with the dealings with the vehicles in counts 5 and 7; there were suspicious circumstances which the judge could reasonably regard as affecting both the proprietors of the business, such as the (presumably non-existent) vendor of the vehicle in count 1 having an address which seems to have been a mis-spelling of Lynde's; that police inquiries were not made relating to the vehicle registration numbers, although Cher told the police that she made such inquiries; and that the appellants' records of the transactions were exiguous; there was, as Mrs Clare pointed out for the Crown, an almost complete absence of documents in the appellants' possession relating to the impugned purchases.

My conclusion then, as to this ground, is that the judge's ruling which was complained of was not reflected in his Honour's summing-up and there is nothing in the record to show that it was likely to have influenced the jury's consideration of the case; but in any event, the ruling was correct.

Grounds 2, 3 and 4 in the notice of appeal are to the effect that evidence of association between Lynde and Cher should not have been admitted, that the judge should have stayed the indictment on a ground related to Lynde, and that the defence was deprived of the opportunity of cross-examining Lynde.

It was not, with respect, made perfectly clear what was the essential complaint about Lynde. Undoubtedly, the Crown was entitled to tender, as it did, certificates of conviction of Lynde going towards proof that the relevant vehicles were stolen at relevant times. As to the connection between Lynde and Cher, having read the relevant evidence, I think it is plain that the prosecution was entitled to have that in. The evidence from R M Muir was to the effect that in August 1994, Cher approached him with a business proposition which resulted in his being owed money by her; he discussed that debt with her on a number of occasions. About two or three weeks after the proposal had been made to Muir she came to his shop with a man whom Muir later identified from photographs as Lynde. Muir said a conversation ensued in which "they" offered to sell a vehicle so that he could get his money. He said there was an angry discussion and "unpleasant words" were said by the man he had identified as Lynde; he said that man took him by the arm and threatened him. This evidence, if accepted, should have made the jury more willing to accept that Lynde was a person with whom Cher was, about the relevant time, likely to be involved in the way of business and, indeed, motor vehicle business. The submission that it should have been excluded has no substance.

Then, it was contended that because Lynde gave no evidence before the jury the defence was unfairly denied the opportunity to cross-examine him. The prosecution initially proposed to call Lynde, who was, it appears, thought to be prepared to give evidence incriminating the appellants. Mr Griffin asked the judge to exclude the evidence of Lynde on the ground that his evidence was very unreliable and that application was supported by Mr Shanahan, who appeared for Cher below. It was also argued on behalf of the defence below that if called, Lynde should be warned that if he gave evidence he might be shown to be guilty of an offence of attempting to pervert the course of justice by providing a false statement to the police.

After a lengthy argument in which these views were pressed on the judge, his Honour declined to exclude Lynde's evidence and expressed the view that there was no need to warn Lynde about the danger of self-incrimination. A voir dire was held in the course of which Lynde said he wished to "claim privilege". When an inquiry was made by the judge as to the ground of the claim, both counsel for the defence objected and the matter was taken no further.

A little later, counsel for the defence argued that the indictment should be stayed, substantially on the ground that reference was going to be made in evidence to Lynde, but the defence would have no opportunity to cross-examine him. That was refused.

The history of the matter, then, is that Lynde having claimed privilege, the judge allowed the claim and so he gave no evidence, the defence urging the judge not to ask any questions about the basis of the claim. This produced precisely the same situation as would have come about if the defence application to have Lynde's evidence excluded had succeeded. But, rather oddly, Mr Griffin now complains of the absence of evidence from Lynde and says this resulted in an unfair trial. The judge thought otherwise. Assessing the effect of an absence of evidence from a witness is always speculative to some degree, but it is reasonable to assume that, since there was a deal of forensic experience on the defence side, the decision to try to keep Lynde's evidence out was a sensible one. The defence must have assessed his likely impact as unfavourable to the appellants' prospects of acquittal. In these circumstances, to hold that the trial miscarried because Lynde did not give evidence would be perverse.

It was argued by Mr Griffin that relevant evidence whose existence was known to the prosecution was not disclosed to the defence. This ground of appeal was supported by an affidavit by M E Ettridge, a woman presently in prison. The affidavit says that Mc Ettridge gave a statement to a person from the Legal Aid Office on 29 April 1996; the appellants' trial concluded on 3 April. In her statement Ms Ettridge says that about two weeks before 11 April 1996 she was visited by Detective Callander, apparently at the prison, and she told Callander that she used to live with Jamie Cowan at 10 Exley Street, Kedron, an address where, she said, George Lynde lived with his wife Susie Cowan, for about 5 months. The statement says that Ms Ettridge was facing charges in relation to unlawful possession of motor vehicles and that these vehicles had been stolen by Lynde. Ms Ettridge adds in her statement an explanation of Lynde's work on stolen cars, which used be brought to 10 Exley Street, Kedron; he would change the engine numbers by use of a grinder, restamp the engines, paint over the stamping and affix stolen compliance plates. The cars would also be resprayed; all this work was done by Lynde with the assistance of persons whom Ettridge named. It is also said that Lynde told Ms Ettridge that "they were selling the cars through the Bartorillos", but that she told the detective that the Bartorillos did not know they were stolen. She adds some other details which do not require mention, but does not explain how it is that she is able to say that the Bartorillos did not know the vehicles were stolen; on the face of the statement, it would seem unlikely that the Bartorillos would not become aware that the vehicles they were, apparently routinely, taking from Lynde, with identities altered, had been dishonestly acquired.

The interview Callander had with Ms Ettridge was tape recorded, but unfortunately, it appears that it was not properly recorded; we have been provided with what is said to be a transcript, which contains much reference to unintelligible material. Further, it has to be said that the interview was a poorly conducted one. Despite these limitations, the transcript contains enough to show that the evidence of Ms Ettridge would not necessarily have assisted the appellants. When asked whether, to Ms Ettridge's knowledge, the appellants had any knowledge that "the vehicle was stolen", Ms Ettridge said, according to the transcript, "Yes, they did". To a subsequent similar question Ms Ettridge answered "Ah, they mightn't have known, but I just - I think they did". And to another, she said "I think they were told. George did tell them . . . I think George did tell them that they were stolen". It appears that the person referred to as "George" is Lynde.

Mr Griffin argued in effect that, since statements made by Ms Ettridge to the effect that the appellants knew the vehicles supplied by Lynde were stolen were not supported by any admissible evidence which Ms Ettridge could give, that opinion held by Ms Ettridge should be ignored for the purpose of determining whether her evidence was likely to help the appellants. But if competently questioned about the point, Ms Ettridge might have been able to back up her statement concerning the appellants' knowledge with evidence of observations of an admissible kind. Whether or not the evidence which Ms Ettridge was likely to give was thought of assistance to the appellants, it appears that the prosecution should have told the defence that Ms Ettridge appeared to have some, or at least claimed to have some, knowledge relevant to the issue being tried. In Lawless [1979] HCA 49; (1979) 142 C.L.R. 659 at 667, Barwick C.J. described it as "good practice" for the prosecution to tell the defence of the identity of any witness from whom a statement had been obtained. In R v. Leyland Justices; ex parte Hawthorn [1979] Q.B. 283, a conviction was quashed because of the prosecutor's failure to supply to the defence the names of relevant witnesses. In Clarkson [1990] VicRp 64; [1990] V.R. 738, it was held in the Supreme Court of Victoria, Appeal Division, that withholding by the prosecution of material which would tend to assist the defence case could constitute a miscarriage of justice.

It is my opinion that, in general, the prosecution should tell the defence before trial of the existence of any witness who appears to be likely to be able to give relevant evidence, whether or not the witness is to be called at trial; this should be done even if (as here) one would perhaps expect the accused to know of the witness' relevance.

It should be added that Mr Griffin disclaimed any attack upon the propriety of prosecuting counsel's personal conduct; that is not in issue and my view that it would have been at least prudent to have let the defence know that Ms Ettridge might be a relevant witness does not imply any criticism of counsel.

The question is whether the circumstance I have mentioned produced a miscarriage of justice; in my opinion it did not. As Mr Griffin stressed, the real issue in the case was knowledge: what did the appellants know of these vehicles which they purchased? On that point, Ms Ettridge could hardly have helped; at best for the defence, the addition to the store of information available to the jury of what Ms Ettridge claimed to know would in my opinion have assisted neither side. This ground of appeal fails.

Mr Griffin argued that the sentence imposed on John was excessive, particularly by comparison with that imposed on his wife. Each of the appellants was sentenced to 3 years imprisonment in respect of each of the unlawful possession offences and to 18 months imprisonment in respect of each of the false pretences offences. The sentences imposed on Cher was ordered to be suspended after serving 6 months of the 3 year sentence.

John is aged 37 years and has no convictions in his record. Counsel for both appellants relied below on the circumstance that the couple have four children aged between 11 and 15. Counsel for John said that Cher had been a heavy gambler and this caused disharmony in the marriage. Counsel for Cher said that two of the children, twins aged 11, had serious behavioural problems, which he detailed, and that Cher was the person who cared for the children. After discussion between the judge and counsel it was contended on behalf of the prosecution that if leniency was to be extended on the basis that the couple had children, "it should be extended to the parent who can most contribute to the welfare of the child"; the judge and prosecuting counsel then appeared to agree that "that normally would be the mother".

The discrepancy between the sentence imposed on John and that imposed on Cher creates a problem, particularly since Cher had a number of convictions for dishonesty, in 1983, 1986 and 1993. The judge referred to authority for the view that the practice in Queensland is "to give consideration, when appropriate, to the effect of a sentence on an offender's young children". This is not done routinely, but particular circumstances may sometimes enable an offender to obtain a mitigation of sentence on the ground of a necessity to care for children. Here, the principal problem was, on the information placed before the judge, the behavioural difficulties of the twin boys aged 11, to which I have referred. The judge appears to have taken the view that this warranted a substantial reduction in what would otherwise have been the sentence imposed on Cher and the Crown does not challenge that. John derived no advantage from his responsibilities for the children. Although this was apparently done on the assumption that care by the mother was the critical factor, it would seem to me likely that absence of paternal care (assuming the father would attempt properly to care for the children) could also be a disadvantage for these two boys.

Mr Griffin argues that in the whole of the circumstances the sentence imposed on John is disproportionate when one has regard to the treatment accorded to Cher; I accept that submission and would reduce John's sentence to 18 months.

2. Application for leave to appeal against sentence by John Norman Bartorillo granted; appeal allowed; the 3 year sentences imposed on John Norman Bartorillo reduced to 18 months.

I agree with Pincus J.A., for the reasons which he gives, that the appeals against conviction should be dismissed.

As to the application by John to appeal against his sentence, I agree with Ambrose J. that the sentence of three years imprisonment imposed on each appellant was commensurate with the seriousness of the criminal conduct of each. Although I agree with both Pincus J.A. and Ambrose J. that, for reasons which both give, the sentence imposed by John was disproportionate to that imposed on Cher because of the partial suspension of Cher's sentence, like Ambrose J. I do not think that that disproportionality should be corrected by reducing the head sentence of three years imposed on John. Given that the only reason for reducing the sentence imposed on Cher in this way was the special need for parental care of their 11 year twins and that a term of three years was appropriate to reflect the seriousness of the criminal conduct of each, I think that, to the extent that any reduction in John's sentence should also be made for this reason, it should be reflected in some way other than by reducing his head sentence.

This leaves either, as Ambrose J. has proposed, suspending part of John's sentence also or in his case making a recommendation for eligibility for early parole. Whilst there are some advantages of the latter course, I am content to agree with the approach adopted and the conclusion reached by Ambrose J. given that he will be also eligible for parole on the 18 months sentence after serving nine months of it. I would add, however, that I would not have been prepared to make any such reduction in John's sentence had it not been for the need to ensure that there was no unreasonable disparity between it and that imposed on Cher.

I have had the advantage of reading the draft reasons for judgment of Pincus JA. I agree that the appeals against conviction ought be dismissed for the reasons he has given.

I also agree that there is a sufficient disparity between the sentence imposed upon the applicant John Norman Bartorillo and that upon his wife Cherylynn Joy Bartorillo to justify granting the applicant John Bartorillo leave to appeal against the sentence imposed upon him to make it more commensurate with that imposed upon his wife.

In my view the head sentence imposed upon each of the appellants was within the appropriate range. Each of them carried on the same business dealing in used cars. In the course of that business they committed the offences of unlawful possession and false pretences in respect of four different cars. They took possession of the cars directly from the thief who systematically altered identifying features of the stolen cars to disguise the fact that they had been stolen before they were received by the appellants for disposal on the used car market.

In my view deterrence was an important consideration in the imposition of the sentences and the head sentence of three years imposed upon each of the appellants was appropriate.

The sentencing judge was persuaded to suspend the sentence imposed upon Cherylynn Bartorillo after service of six months of that sentence. The suspension was given an operational period of two years and six months. The Crown makes no complaint that the sentencing judge was unduly lenient in suspending the sentence passed upon her accepting that it was desirable in the interests of two children aged 11 that they have available to them her parental control and supervision.

It is not immediately apparent to me why it would not have been equally if not more to the advantage of the children were their father to have a similar opportunity to give them his care and attention.

Having regard to the criminal antecedents of the mother of the children and indeed to the problems which she obviously had with gambling, instead of imposing a partly suspended sentence, it may well have been appropriate to make an early recommendation of eligibility for parole after serving six months imprisonment so that she might receive the advantage of counselling, assistance etc which her background suggests might have been of benefit to her. Perhaps an explanation for the use of the suspended sentence option was the unpredictability of the grant of parole to the mother upon any application she might make when she became eligible to do so.

However that may be it is my view that upon the facts outlined in the reasons of Pincus JA, the sentences imposed upon the applicants upon their conviction as joint offenders in respect of some 8 offences which result in one being released from custody after serving six months of a three year sentence while the other does not become eligible for parole until having served 18 months of a three year sentence is disproportionate to such an extent that the heavier penalty imposed upon the male offender ought be altered.

The view I take however is that the head sentence imposed upon each of the applicants was within range and was appropriate. It has not been challenged that for reasons personal to Cherylynn Bartorillo - i.e. that she was the mother of two 11 year old children who might be adversely affected to a significant extent if they were deprived for more than 6 months of her care and attention that sentence was properly suspended after six months.

In my view the head sentence of three years imprisonment imposed upon John Bartorillo should stand but an order should be made which will have the effect of making it more commensurate with the penalty actually imposed upon Cherylynn Bartorillo.

If the making of a recommendation for early parole would lead to the release of John Bartorillo when he became eligible for parole that would be the most desirable way to overcome the unacceptable disparity in sentences imposed on the applicants. The advantage of such a sentence would be that upon release upon parole the applicant would be required to comply with his parole conditions and receive such counselling etc as might be thought appropriate by his community correctional officer. Again however it might well be the position that he would not be released upon parole upon his becoming eligible to apply for it.

The sentence imposed upon John Bartorillo has the effect that he will become eligible for parole after serving 18 months of the sentence imposed. It cannot be said whether or not he will be granted parole at that time.

The sentence proposed by Pincus JA of 18 months imprisonment would make him eligible for parole after serving nine months.

The suspension of Cherylynn's sentence of imprisonment for three years after her serving six months of that sentence was based upon the fact that it was thought that her availability to take care of the two 11 year old children would be of more advantage to them than that of their father. Why this attitude was adopted is not entirely clear; however that seems to have been the basis upon which her sentence was constructed. That approach was not challenged or debated upon these applications.

In my view to make the sentences imposed upon each of the applicants commensurate one with the other, it would be appropriate to make an order partly suspending service of the term of three years imprisonment imposed upon John Bartorillo making due allowance for the fact that the sentence imposed upon his wife was based upon the apparently uncontested assumption that her release from custody would be of more advantage to the children than his. I must say consideration does not seem to have been given to the question whether the release of both parents would be of more advantage to the children than the release of one only. However that may be I proceed on the basis that in imposing sentences on each of the applicants, the learned sentencing judge must have proceeded on the basis that it would be to the very significant advantage of the children if at least their mother were available to care for them after she had served six months of the sentence imposed upon her. I would proceed however on the basis that it might also be to the advantage of the children being boys with behavioural problems if, as well as their mother, their father were available before the expiration of 18 months or perhaps even longer after the sentence of imprisonment imposed upon him commenced.

In the circumstances in my view the head sentence of imprisonment for three years with no recommendation for parole imposed upon John Bartorillo ought be set aside on the ground of disparity and in lieu the sentences imposed by the learned sentencing judge ought be reimposed with an order however that the three year sentence be suspended after serving nine months in custody.

I would only observe that orders for suspension of part of the imprisonment imposed upon each applicant ought be viewed in the light of the special behavioural problems of their children of tender age which makes it desirable in the interests of those children to make those orders.

I would therefore dismiss the application by Cherylynn Joy Bartorillo for leave to appeal against sentence.

Upon the basis only of disparity of sentence, I would allow the application of John Norman Bartorillo for leave to appeal against sentence. I would set aside his sentences and in lieu impose upon him a sentence of three years imprisonment with respect to each of the unlawful possession offences and 18 months imprisonment in respect of each of the false pretence offences all to be served concurrently and order that the three year sentences be suspended after serving nine months. I would order that such sentences commence on the day when the applicant was sentenced on 4 April 1996 and that the operational period of the suspension during which he must not commit another offence punishable by imprisonment be a period of two years and three months commencing on 4 January 1997.

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Judgment (48 paragraphs)

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