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Court of Criminal Appeal 18 December 2014

Gogani v R

[2014] NSWCCA 313

Fraud & dishonesty
CRIMINAL LAW APPEAL AGAINST CONVICTION CONSPIRACY CIRCUMSTANTIAL CASE WHETHER APPLICANT SHOULD BE RE

Citation: Gogani v R [2014] NSWCCA 313
Court: NSW Court of Criminal Appeal
Date: 18 December 2014
Judges: Price J, McCallum J, RA Hulme J

Background

The appellant was tried in May 2013 before Judge Norrish QC and a jury on two counts: conspiracy to commit aggravated break, enter and steal at a perfume warehouse in Rosehill, and motor vehicle theft. The jury convicted him on both counts, and he was sentenced to a non-parole period of four years and nine months on the conspiracy count, with a concurrent fixed term of 18 months on the theft count.

The Crown's case on the conspiracy count was entirely circumstantial. It rested on intercepted telephone calls and SMS messages, surveillance observations, and CCTV footage gathered between January and March 2011. The intercepted conversations included discussions between the appellant and co-accused that the Crown characterised as coded references to planning the break-in, as well as surveillance evidence placing all three men in a carpark across the road from the warehouse on 1 February 2011.

The appellant did not challenge his conviction or sentence on the theft count. His sole ground of appeal against conviction on the conspiracy count was that the verdict was unreasonable and could not be supported by the evidence.

  • Whether the jury's verdict on the conspiracy count was unreasonable or unsupportable having regard to all of the evidence, applying the standard in s 6(1) of the Criminal Appeal Act 1912 (NSW).
  • Whether, upon quashing the conspiracy conviction, a verdict of acquittal should be entered rather than a retrial ordered.
  • Whether the sentence on the theft count (count 2), which was not the subject of an appeal against conviction, should be re-examined once the conspiracy sentence was quashed, given the fixed-term structure imposed by the sentencing judge.

Decision

Price J, with whom McCallum J and RA Hulme J agreed, held that the verdict on count 1 was unreasonable and could not be supported by the evidence. The circumstantial case, while placing the appellant in the company of the co-accused and in the general vicinity of the warehouse, did not, taken as a whole, exclude the reasonable possibility that the appellant was not a party to the alleged conspiracy. The jury ought to have entertained a reasonable doubt as to his guilt on that count.

Price J proposed confirming the sentence on count 2. However, RA Hulme J (with whom McCallum J agreed on this point) took a different view on the count 2 sentence. RA Hulme J reasoned that the sentencing judge had imposed a fixed term of 18 months on the theft count without separately identifying a non-parole period, which was appropriate at the time because it ran concurrently with the longer conspiracy sentence. Now that the conspiracy sentence had been quashed, the count 2 sentence stood alone and should have included a non-parole period.

RA Hulme J noted there was nothing in the record to indicate the sentencing judge had set the 18-month fixed term at the level of what a non-parole period would otherwise have been. Given the practical difficulties in reconstructing what the sentencing judge would have done, and the submissions made on behalf of the appellant, RA Hulme J took a practical approach and restructured the count 2 sentence to set a non-parole period expiring on 17 December 2014, with the balance of the term ending on 6 February 2015, and directed the appellant's immediate release to parole.

Orders Made

On count 1 (conspiracy):
- Appeal upheld and conviction on count 1 quashed
- Verdict of acquittal entered on count 1

On count 2 (motor vehicle theft):
- Sentence imposed by the trial judge quashed pursuant to s 7(1) of the Criminal Appeal Act 1912 (NSW)
- In lieu, sentence of imprisonment comprising a non-parole period commencing 7 August 2013 and expiring 17 December 2014, with the balance of term expiring 6 February 2015
- Appellant directed to be released to parole forthwith

Key Takeaways

  • A conspiracy conviction built on circumstantial evidence will not survive appeal if the evidence, viewed as a whole, does not exclude a reasonable doubt as to the accused's participation in the agreement alleged by the Crown.
  • The Court of Criminal Appeal confirmed that where an appellate court quashes a conviction as unreasonable under s 6(1) of the Criminal Appeal Act 1912 (NSW), it may enter a verdict of acquittal rather than order a retrial.
  • Where a fixed-term sentence is imposed for one count in a multi-count sentencing exercise, the structure may rest implicitly on the concurrent operation of a longer sentence on another count. If that longer sentence is later quashed on appeal, the remaining sentence may need to be restructured to comply with the requirement to set a non-parole period.
  • No error was required to be shown in the count 2 sentence for the Court to re-examine it. The need for resentencing arose from the changed sentencing context created by quashing the count 1 conviction, not from any identified mistake by the sentencing judge.
  • A practical approach to resentencing, aimed at achieving a coherent outcome rather than an artificial reconstruction of the original exercise, was appropriate in the circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(2), 154A(1)
- Criminal Appeal Act 1912 (NSW), ss 6(1), 7(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(j)

Cases:
- Raumakita v R [2011] NSWCCA 126; (2011) 210 A Crim R 326
- Chamberlain v R (No 2) [1984] HCA 7; (1984) 153 CLR 521
- R v Hillier [2007] HCA 13; (2007) 228 CLR 618
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400