R v Henderson [1998] VSCA 83

[1998] VSCA 83

Court of Appeal (Vic)|1998-10-08|Before: WINNEKE, P., BROOKING and BATT, JJ.A.

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Source facts

Court

Court of Appeal (Vic)

Decision date

1998-10-08

Before

WINNEKE, P., BROOKING and BATT, JJ.A.

Source

Original judgment source is linked above.

Judgment (53 paragraphs)

[1]

The applicant has applied for leave to appeal against his convictions at the first and second trials and against the sentence imposed by the second judge.

[2]

Before I refer to the grounds of the proposed appeals I shall summarize the facts. I take those relating to the first trial largely from the sentencing remarks of the first judge. In the early hours of Monday 11 March 1996 a burglary was committed by two men at shop and factory premises known as Bras & Pants at 75 Epsom Road, Ascot Vale. At those premises women's undergarments were manufactured and retailed. The burglars acted in a professionally criminal manner by severing the telephone line to the premises which was situated in a pit under the footpath outside the premises and by breaking the lock and disconnecting the bar which locked the front doors and which was held in position by the lock. Once they gained access to the building, the burglars disconnected the burglar alarm by ripping it from its connection and then committed the theft. Garments, being lingerie, to the value of $2,000 at least were removed from their brackets and placed in plastic garbage bags. The attention of police who happened to be in the area was by chance attracted to the premises. As a divisional van approached the shop, the applicant's accomplice ran from the premises and entered the driveway of the house next door. As he ran down the driveway he must have discarded one garbage bag containing some of the stolen lingerie. He made his escape over a fence at the rear of the driveway. At that moment the applicant emerged from the shop and fled with two constables in pursuit. The applicant was finally caught in a nearby street. One garbage bag containing lingerie was found by police in the front garden of the adjoining premises already mentioned. Another was still in the shop.

[20]

One may accept that the conduct here constituted a single criminal enterprise, but there is, in my view, a fallacy in the contention as to double punishment, in that there is a logical glide from "single criminal enterprise" to "single crime". For, as Mr Ryan demonstrated in his outline, the enterprise had two components, burglary and theft, just as there are two components in the single enterprise in which a would-be armed robber steals a getaway car with the sole object of using it in the robbery, which he then commits. A separate conviction and a separate sentence are called for with such enterprises. Here, the burglary, whilst admittedly preparatory to the theft, involved a violation of the rights of the owner or occupier of the premises separate from the violation of the rights of the owner of the goods which the theft involved. Indeed, as the President pointed out during argument, there could in a given case be different victims of the two crimes. Pearce and Sessions do not, in my view, assist the applicant. Indeed, Pearce at para.28 shows that it was proper to charge both offences here since each required proof of facts which the other did not. Unlike Sessions, this was, in my view, a case where the charging of the offences was justified, if not required, by the principle applied in R v Newman and Turnbull [1997] 1 V.R. 146, especially as it was not easy to say on the facts which was the more serious offence. The reasons why the appellant in Pearce was held to have been doubly punished for the same act were that the single act of inflicting grievous bodily harm was an element of each of the offences in question there and that the identity of the terms of imprisonment imposed for the two offences and their concurrency enabled the High Court to discern that they were imposed to punish that single act. Here, there is not as a common element in the offences an act which both the sentences imposed could be said to punish. The direction for cumulation puts that beyond argument. Mr Priest informed the court that ground 4 was modelled on Sessions, but that case is clearly distinguishable. For there, as appears from pp.313 and 315, the offender's conduct could not be divided into parts and distributed between the two offences in question. The act for which he was to be sentenced on count 1 was the same act as he was to be sentenced for on count 2. That simply is not so here. Indeed, the burglary was complete before the theft occurred.

[30]

"So when looked at individually, you look at an icecream scoop that was found, you may think, well how do I know that came from the restaurant, how do I know it was stolen from the restaurant. If you looked at it individually, you may have some doubt about it, but you don't look at them individually, you look at them together with each other, the three of them. And is it a coincidence, I ask, that found in the possession of the accused, either in his van or in a flat or a house that he had been living in, or had lived in or was connected with some months after this burglary, is it a coincidence that 19 bottles of alcohol which directly match the description of alcohol taken from the Limor's Restaurant in September were found in his possession, and just think about the alcohol. It's not suggested that you can't buy these things elsewhere or get them from other restaurants or retailers or alcohol shops. I mean, they're probably pretty readily available, but just looking at it in itself, 19 bottles, the combination of which Mr Pepdjonovic told you, 'Yeah, we had them and they were taken from the restaurant'. Suntory Whisky, Japanese top shelf stuff literally. That's where they had it, on the top shelf, with a little figurine that fitted over the top of it. The evidence that I read to you from Suntory, no doubt it could have been got somewhere else but in itself it's slightly unusual, isn't it, and coupled with that you've got a bottle of Chivas Regal with a handle which he says was taken. You've got the two Galliano bottles of the same colour described by him as having gone missing from the restaurant and you've got the other general stuff, vodka and ports and cognacs and things like that, reasonably exclusive types of liquor but which match the description, the types of things taken from the restaurant, so you start with that proposition in relation to the alcohol. You've got the bottle of Absolut Vodka and if you have a look at it I think it comes from Sweden. Perhaps it's not something that we'd all be aware of but it was certainly in that restaurant and it certainly went missing and it was certainly found in this man's possession in his van. So the alcohol in itself is a bit unusual but you may think that just looking at the alcohol in itself that you wouldn't be satisfied beyond reasonable doubt that it was stolen. But when you look at the alcohol found on 24 September 1995 in Mr Henderson's van and you know that a couple of months later there is also found a vacuum cleaner in his house at Yarraville, 84 Hamilton Street, and on the same day an icecream scoop with a blue end which matches exactly the type of scoop taken from the restaurant and the vacuum cleaner is exactly the type of vacuum cleaner taken from the restaurant and not your ordinary old-fashioned model but one that you strap onto your back which is a little bit different, what a coincidence. What a coincidence? I mean, it's amazing, isn't it? You put all those three circumstantial pieces of evidence together, there can be only one conclusion, can't there? Yes, they were all stolen from Limor's Restaurant. That can be the only reasonable inference open to you or conclusion open to you once you know those three facts. So that's the way you look at it. You look at count 1 in considering whether the alcohol was stolen and you take into account the fact that other items were stolen or found, sorry. They were found in his possession that match the description from the restaurant and you do it for count 2 and you do it for count 3. At the end of the day you should be satisfied, I suggest to you, beyond reasonable doubt, that each of them have been stolen from Limor's Restaurant. Thus, they are stolen goods."

[48]

As to part (b), Mr Priest, echoing an unsuccessful application by trial counsel after the jury had retired for the case to be taken away from them even then, submitted that there was no evidence on which the jury could be satisfied that the applicant was not the thief. He submitted that the evidence of the finding of the alcohol in the possession of the applicant 13 days after the burglary and of the finding of the other items three months after was "intractably neutral" on the question whether the applicant as possessor was the thief or the receiver. I do not find it necessary to decide whether his criticism of His Honour's comment is justified, since, in my view, as suggested by the President in the course of argument, it was open to the jury to infer beyond reasonable doubt that the applicant was a receiver, not the thief, from the fact that 13 days after the burglary 19 bottles, amongst which the stray bottle of Black Douglas whisky had been placed, were in a van in the street. For to apply the famous test enunciated in Martin v. Osborne [1936] HCA 23; (1936) 55 C.L.R. 367 at 375 and repeated in R v Plomp [1963] HCA 44; (1963) 110 C.L.R. 234 at 243, according to the common course of human affairs the degree of probability that that proved fact would be accompanied by the fact to be proved, namely that the applicant was not the thief, is so high that the contrary cannot reasonably be supposed. Or, at any rate, it was open to the jury (I should more accurately say) to take that view. Only part of the stolen alcohol was in the van. With it was mixed an extraneous bottle. It was not stored in a refrigerator or cupboard in a home or shop, but was ready 13 days after the burglary, the jury would be justified in inferring, to be disposed of to consumers. It was submitted that the answers in the record of interview are "intractably neutral", but I do not need to consider whether this is so or whether, on the other hand, the record of interview as a whole by itself enables the requisite inference to be drawn, because, for the reasons I have given, I consider that there was evidence on which the jury could draw the inference in question beyond reasonable doubt. In what I have said, I have assumed in favour of the applicant, without needing to decide, that the point raised by the parenthetic words of s.88(1) is not limited by the second definite article to the time when the theft is actually being committed: compare Williams and Weinberg, Property Offices, 2nd Edition, 383-384.