Regina v Elie Gittani [2002] NSWCCA 139

New South Wales Court of Criminal Appeal

CITATION : Regina v Elie Gittani [2002] NSWCCA 139 FILE NUMBER(S) : CCA 60042/02 HEARING DATE(S) : 12 April 2002 JUDGMENT DATE : 19 April 2002

PARTIES : Regina Elie Gittani JUDGMENT OF : Ipp AJA at 1; Sully J at 2; Bell J at 25

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0908 LOWER COURT JUDICIAL Kinchington DCJ OFFICER :

COUNSEL : M. G. Allnutt - Crown G. A. Brady - Appellant SOLICITORS : Commonwealth DPP - Crown Tab Law - Appellant

LEGISLATION CITED : Crimes (Currency) Act 1981 (C'th) Crimes Act 1914 (C'th) Reg v Simpson [2001] NSWCCA 534 CASES CITED: The Queen v De Simoni [1981] 147 CLR 383 Anthony Frank Howard [1985] 82 CrAppR 262 DECISION : Leave to appeal against sentence granted; appeal dismissed

IN THE COURT OF CRIMINAL APPEAL 60042/02

IPP AJA SULLY J BELL J

Friday 19 April 2002 REGINA v ELIE GITTANI Judgment 1 IPP AJA: I agree with Sully J. 2 SULLY J: On 10 December 2001 Mr. Elie Gittani, the present applicant, was presented for trial in the District Court at Sydney before Kinchington DCJ. He was so presented upon an indictment charging that on 6 April 2001 he did, without lawful authority or reasonable excuse, have in his possession counterfeit money, namely ninety-one counterfeit Australian $50 notes knowing it to be counterfeit money. Such a charge contravenes section 9(1)(a) of the Crimes (Currency) Act 1981 (C'th), and attracts upon conviction a statutory maximum penalty of imprisonment for 10 years and/or a maximum fine of $66,000. 3 The applicant pleaded not guilty, and he stood trial accordingly before his Honour and a jury. The jury found the applicant guilty as charged. Thereafter, and on 1 February 2002, the applicant stood for sentence before Kinchington DCJ. He was convicted and sentenced to imprisonment for 2 years to date from 1 February 2002. An order was made for his release after serving 6 months of that period of imprisonment; such release being conditioned upon his entering a recognisance, himself in the sum of $1,000, to be of good behaviour for the remainder of the said period of his sentence. 4 The applicant seeks leave to appeal against that sentence of imprisonment. His grounds of appeal, as formally notified, are: "1. The sentence imposed was, in all the circumstances, unduly harsh and severe. 2. The sentencing judge erred in imposing a custodial sentence. 3. The sentencing judge erred in failing to wholly suspend the custodial sentence. 4. The sentencing judge erred in: (a) failing to find hardship; (b) failing to give sufficient weight to the appellant's good character; (c) finding as a matter adverse to the appellant that he did not show any remorse or contrition; (d) finding as a matter adverse to the appellant an intention to commit another more serious offence; (e) placing undue weight on the principle of general deterrence; (f) asserting as a matter of principle that any person convicted of the offence of knowingly having in his possession without lawful excuse such notes must ordinarily expect to go to gaol." 5 The relevant facts are stated sufficiently for present purposes in the following passages extracted from the Remarks on Sentence of Kinchington DCJ: "Shortly after 1 pm on the 8th of April 2001, you were apprehended by Security officers employed by the Flemington Market Authority after a short chase and struggle outside the First Aid Centre of the market. At the time of your apprehension you were wearing around your waist a "bum bag". During the struggle which ensured immediately after you were stopped, you undid the belt to which the "bum bag" was attached and pushed it behind you and said words to the effect "it's not my bum bag, it wasn't me". A short time later two police officers arrived and arrested you and took possession of the bum bag which contained what appeared to be a quantity of Australian paper currency of which 91 notes were subsequently found to be counterfeit fifty dollar notes. Eighty-nine of those notes were recovered from one section of the bum bag while the other two notes together with $490.10 in genuine currency were recovered from another section of that bag. In addition, in another pocket of the bum bag there was found a "K Mart receipt" in the name of the offender's wife and with her address printed thereupon. Following the offender's arrest he exercised his right not to be interviewed but at his trial he gave evidence and told the Jury that on the 8th April 2001 he went to Flemington Markets with his brother-in-law parked his car on the top floor of that multi-floor car park and he then walked down the car park stairs where he saw the bum bag and after picking it up saw it contained what appeared to be a large quantity of Australian currency whereupon he secured it around his waist until he decided what to do with it and then continued on into the markets where he said he purchased a dress for his daughter and a pair of socks for his son with money from his pocket before he and his brother-in-law were chased by the security officer from the markets and he was apprehended. When asked why he ran he told the jury that he did so because he had in his possession someone else's bum bag which appeared to have in it a lot of money. Finally in effect, he denied that the bum bag belonged to him or anyone in his family and reiterated that he had picked it up or near the car park stairs as he entered the markets. However he could not explain how the K Mart receipt in his wife's name and with his address thereon came to be in his bum bag. Finally whilst he did not deny being in possession of the bum bag and its contents at the time of his apprehension, he denied firstly that the counterfeit money and genuine money therein were his, and secondly that he knew of the existence of the counterfeit notes therein. The jury, by its verdict of guilty, obviously rejected the offender's evidence as to how he came to have the bum bag and its contents in his possession and were satisfied not only that he had in his possession the 91 counterfeit notes but also that he knew that they were counterfeit notes as well as the other essential element that go to constitute the charge in the indictment." 6 Having regard to the way in which the present application was argued, I take leave to repeat the following observations which I made in connection with the recent decision of a specially constituted Bench of this Court in Reg v Simpson [2001] NSWCCA 534: "Whenever an applicant for leave to appeal against sentence submits that there is cause to show why this Court should intervene and reduce the primary sentence, it is, as I think, obvious that the first thing to be established by the applicant is that the primary sentencing discretion has miscarried, by reason of some error of fact or of law; or because of the cumulative effect of errors of both fact and law. The errors, whether of fact or of law, may be either latent or patent; but whether latent or patent, some error must be demonstrated before this Court becomes entitled at all to consider interfering with the sentence passed at first instance: Vachalec [1981] 1 NSWLR 351 at 353F; Visconti [1982] 2 NSWLR 104 at 108G. Error once demonstrated, it does not follow automatically that this Court will, without more, intervene in fact and re-sentence. Before that can happen properly in law, the condition specified in s.6(3) of the Criminal Appeal Act 1912 (NSW) must be satisfied: that is to say, this Court must be persuaded, not only that error has been shown in the process of reasoning of the primary sentencing Court, but that some other sentence is 'warranted in law'. I agree with the observations made in this connection by Lee AJ in Astill (No. 2) [1992] 64 A Crim R 289 at 303, 304." 7 When the learned sentencing Judge came to deal with the applicant, his Honour was constrained, initially, by the requirements of section 16A of the Crimes Act 1914 (C'th). By reason of section 16A(1) his Honour was required to "impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence". By section 16A(2) his Honour was required to take account "in addition to any other matters" of a number of particular matters itemised in paragraphs (a) to and including (p) of section 16A(2). 8 The submissions now put for the applicant contend that, in some particular respects at least, the learned sentencing Judge did not advert to various of the matters thus prescribed by section 16A(2). In so far as that submission is to be understood as entailing that a sentencing Judge, who is dealing with an offence to which section 16A(2) applies at all, is required to treat the provisions of paragraphs (a) to and including (p) as a statutory check-list, each one of which must be, so to speak, explicitly ticked off, then, in my opinion, the submission should be firmly rejected. To do otherwise would be to encourage, in my opinion, the artificial forensic manipulation of section 16A(2) rather than its substantive judicial application. 9 The remarks on sentence are, with respect, completely clear. They note as follows the submissions that were put to, and considered by, the learned sentencing Judge: