Gogani v R [2014] NSWCCA 313 (18 December 2014)

Count 1: That the applicant between the 27 January 2011 and 22 March 2011 at Sydney, in the State of New South Wales, did conspire with Neil Pettersen, Terry Faumuina and other unknown persons to break and enter the premises of the Perfume Network of Australia Pty Ltd ('The Perfume Network') in Rosehill and commit a serious offence within, namely larceny, in the circumstances of aggravation, namely being in company with Neil Pettersen, Terry Faumuina and other unknown persons.

This is an offence of conspiracy to commit the offence of aggravated break, enter, and steal (aggravated by being in company). Whilst the substantive offence the subject of the conspiracy alleged against the applicant is an offence against s112(2) of the Crimes Act 1900 (NSW), the offence of conspiracy to commit such an offence itself is a common law offence.

Count 2: That the applicant, on or about 20 March 2011 at Rosehill in the State of New South Wales, did steal an Isuzu truck registration BB58UH, the property of Jamil El Helwah. This is an offence contrary to s 154A(1) of the Crimes Act, the maximum penalty for which is imprisonment for 5 years.

Count 1: a non-parole period of 4 years and 9 months imprisonment, commencing on 7 August 2013, with an additional term of 2 years and 9 months imprisonment. The earliest date the applicant is eligible to be released on parole is 6 May 2018.

Count 2: 18 months imprisonment, commencing on 7 August 2013 and concluding on 6 February 2015.

2011/Time/Appeal Book Page	Events Between 27 January 2011 and 22 March 2011
Telephone intercept material
28 January 15:06 15:08 (AB 268)	2 telephone calls (product 4 and 5): Applicant: "Did you ring up and check what time that place closed?" Mr Pettersen: "Yeah, same time as yesterday." The Crown submits, that this is a reference to checking the opening times of a business or of a place, and alleges that in the context of the wider evidence, that place is the Perfume Network.
31 January 13:43 (AB 276)	Telephone call (product 409): Applicant: "Um, I got a message from Tezza." Mr Pettersen: "yeah, yeah." The Crown case was that references to 'the Islander' and 'Tezza' are to Terry Faumuina.
31 January 15:40 (AB 279)	Telephone call (product 415): Mr Pettersen providing directions to James Ruse Drive. Applicant: "...say, Victoria Road...towards Granville." Mr Pettersen: "Yeah, should be down on your right." The Crown case was that if the applicant had followed Mr Pettersen's directions, he would have arrived at the Perfume Network.
31 January 17:05 (AB 282)	Telephone call (product 421): Discussion about time. Applicant: "Um, five or five-thirty?" Mr Pettersen: "Five-thirty, that's what they... said to me the other day." The Crown pointed out that these telephone calls occurred the day before the applicant, Mr Pettersen and Mr Faumuina are observed in the carpark across the road from the Perfume Network by surveillance operatives. The Crown submits that they are also consistent with Mr Pettersen's later direct contact by telephone with the Perfume Network on 7 March 2011.
31 January 18:07 (AB 284)	Telephone call (product 428): Applicant: "Yeah, good. Um, tomorrow, make sure you're not busy in the afternoon." Mr Pettersen: "Yep, sweet."
1 February 15:58 (AB 295) 16:48 (AB 156)	Telephone call (product 10): Making plans to meet at 4:30pm. Mr Faumuina: "Like we'll, we'll be there for about ten minutes or something, hey?" Applicant: "Yeah, for about like an hour." Surveillance by 1924, showed the applicant, Mr Pettersen and Mr Faumuina together at the McDonald's restaurant located on the north western corner of Victoria's Road and Church Street, Parramatta at 4.48pm that day.
1 February 16:29 (AB 303)	Telephone call (product 11): Applicant: "Macca's Parramatta, Macca's?" Mr Faumuina: "Yeah." Applicant: "Meet me there."
Surveillance report of the applicant, Mr Pettersen and Mr Faumuina by 1865 (ex H1)
1 February 17:21-17:34 (AB 158)	The applicant, Mr Pettersen and Mr Faumuina were observed in the black Suzuki Swift (BLT47V) that was parked, facing west within the industrial business complex located on the north east corner of Grand Avenue North and James Ruse Drive, Camellia. The carpark was across the road from the Perfume Network. The men exited and entered the vehicle numerous times while it was parked there. All three appeared to be in conversation. The Crown submits that the purpose of this meeting was to examine the proposed entry to the Perfume Network Warehouse.
Telephone intercept material continued
1 February 20:58 (AB 306)	Telephone call (product 1213): Applicant: "...talk to you tomorrow, bro. Fuck, ah, something came to mind. Fuck, um, we might need to hit the brakes."
2 February 12:11 (AB 308)	Telephone call (product 1293): Mr Pettersen: "And we've got to do a lap again this arvo."
2 February 12:38 (AB 311) 18:53 (AB 316)	Telephone call (product 54): Applicant speaking to Mr Faumuina in relation to introducing him to a girl: Mr Pettersen and the applicant also discussed girls. Applicant: "She's cute, she's cute. I reckon, personally I reckon you'll like her." Mr Faumuina: "oh, mad." Mr Pettersen (product 1412): "Cause we just - don't we need to go two out, right, to see her and then we've got to get rid of the girls later." It was submitted by the Crown that the references to meeting girls, hotties and bitches was coded conversation about preparing for the break and enter and obtaining cars.
4 February 11:47 (AB 319)	Telephone call (product 136): Applicant: "It's not like it's not cancelled for good but it's just, just cancelled at the moment. Cause that, that girl I like I know I want to set you up with her."
5 March 17:37 (AB 331)	Telephone call (product 4723): Applicant speaking to Mr Faumuina: "But I don't need too many people to come to dinner just one or two because I'm going to be eating as well." This conversation included the applicant saying to Mr Faumunia: "All right. And find out about that other thing for me." The Crown relies on this telephone call to highlight a declared intention on the part of the applicant to be present when the offence is committed.
7 March 10:48 (AB 335)	Telephone call (product 10082): Mr Pettersen telephoned the Perfume Network asking for its opening and closing hours. The female who answered the phone said they opened at 9:00am and closed at 5:30pm. This is the only direct reference to the Perfume Network in the evidence.
8 March - Bunnings Warehouse Artarmon
18:21 (AB 337)	Telephone call (product 10207): Mr Pettersen: "We've got to go to Bunnings as well, we've got to go to Bunnings. They shut at, shut soon so when you get here we'll go to Bunnings."
20:00 (DVD, AB 758)	CCTV footage from Bunnings Warehouse Artarmon (ex B): Applicant in black and Mr Pettersen wearing a white T-shirt.
20:01 (AB 122)	Bunnings Warehouse Artarmon tax invoice dated 08/03/2011 (ex B1): Attendance of the applicant in company with Mr Pettersen to purchase: Cutter bolt Trojan; Gloves garden; and Axe gardenmaster. The Crown contended that the purchase of these items was clearly evidence of the conspirators arming themselves with tools to effect forced entry to the Perfume Network's premises.
Telephone intercept material continued
9 March 17:27 (AB 339 - 354)	Numerous telephone calls between the applicant, Mr Pettersen and Mr Faumuina referring to 'breakfast' and 'dinner'. Applicant told Mr Pettersen that Mr Faumuina and his mates (AB 348): "Just him and his mates are all keen for dinner." The Crown case was that references to dinner was to doing the break and enter at night-time and breakfast referred to doing the break and enter in the daytime.
10 March 14:58 (AB 357)	Telephone call (product 10313): Applicant: "Yeah, seven's good."
10 March 16:10 (AB 363)	Telephone call (product 10317): Applicant: "Yeah, Eetsway." Mr Pettersen: "Eetsway? Okay. Cool bananas." The Officer in Charge of the police investigation, Detective Senior Constable Mena Wolsely, gave evidence that Pig Latin was commonly used by offenders investigated by police. Pig Latin involves the removal of the first or second letter from the beginning of a word and adding it to the end of the word with the letters "ay." "Eetswa" or "eestway" means "sweet." While, "arcay", "objay" and "ivingdray" are respectively Pig Latin for car, job and driving.
10 March 16:51 (AB 368)	Telephone call (product 10320): Applicant: "Worst-case scenario: if, if it's worse, worst-case, you guys are going to have to come to me."
10 March - SMS message showing job cancellation
19:07 (AB 370)	Applicant sends SMS message to Mr Faumuina: "Breakfast cancelled vital ingredient missing. Can't eat without it. Wil cal meet up n talk. Always put safety first." Reply from Mr Faumuina: "Nah fukn oaf. Dont want to catch any diseases. We'll meet soon then." The Crown submitted that there must have been something more than just a plan to do more surveillance at that point.
Telephone intercept material continued
11 March 15:45 (AB 397)	Telephone call (product 6103): Applicant: "Well it was, it was the most vital ingredient you would have needed."
14 March 13:15 (AB 404)	Telephone call (product 1659): Applicant: "Yeah. Um, yeah, don't stress out: we will be having breakfast for all of us this week".
15 March 13:15 (AB 406)	Telephone call (product 1659): Applicant: "Eat - you, you want to be able to see what you're eating, you know what I mean? ...So. But yeah, I will , I will call you tomorrow , next day and it'll be this week."
17 March 17:07 (AB 416)	Telephone call (product 10882): Applicant: "We haven't even sorted Eric out".
20 March 20:02 (AB 434)	Telephone call (product 11081): Speaking to Mr Pettersen: Applicant: "All right. And what time should I say to make, um, the booking is in the morning? Seven-thirty?"
20 March 20:05 (AB 437)	Telephone call (product 7942): Applicant: "Eric's sweet...So seven thirty, out that way... So Eric's at the party, everyone's at the party."
20 March 20:10 (AB 439)	Telephone call (product 11082): Applicant: "Um, somebody needs to go to Bunnings before nine o'clock." Mr Pettersen: "Yeah I won't be able to get there, have to just go to the servo or something."
20 March 21:53 (AB 441)	Telephone call (product 11083): the applicant told Mr Pettersen that he was leaving his house.
20 March 22:41 (AB 197)	Surveillance report by 1688 who observed the applicant attending a BP service station, 669 Pennant Hills Road, in Beecroft.
Surveillance report of the applicant and Mr Pettersen by 1951 (ex K)
20 March 23:33 (AB 199)	The surveillance report by 1951 observed the applicant reach into the window of the Mazda (BFR85Z), which was parked beside the northern kerb of Gladstone street, North Parramatta 50 metres east of Brickfield Street and withdraw his hand: "The applicant walked to the driver's side of vehicle BFR85Z and appeared to reach into the vehicle via the open driver's door window and back out again." The Crown submitted that even though the items purchased at Bunnings Warehouse Artarmon on 8 March 2011 were not seen in the possession of the conspirators, the applicant was seen to reach into the open driver's door window and withdraw his hand.
20 March - Stealing of the Isuzu truck (BB58UH) (ex K)
20 March 23:38 (AB 199)	Mr Pettersen, and the applicant were observed approaching and standing next to an Isuzu truck, the subject of the count 2 offence. Mr Pettersen then drove the truck, and the applicant followed in the Mazda. The route taken by the vehicles was marked on ex C1. At 11:52pm the truck was parked on the eastern kerb of Arthur Street in Parramatta, 50 metres north of Hassal Street, and the Mazda was parked behind it (ex C1, C2 and C3 provide maps of the vicinity). The Crown submits this was a final preparatory step to the commission of the aggravated break, enter and steal which was planned to be committed shortly after 7:30am on 21 March 2011. The Crown contends that the stealing of the truck and the parking of it near the rear of the Perfume Network premises at a time when it was proposed to commit the offence, when considered together with the other evidence, is consistent with an agreement to commit the offence charged.
21 March - SMS message at 1:57am
01:57 (AB 442)	SMS message sent from the applicant to Mr Faumuina at 1:57am on 21 March 2011 (product 7953): "From the wog cancel cancel never ever dont write back to this!!" The Crown relies on this to show that the applicant was aware that whatever he and Mr Pettersen were doing had been compromised.
Between 5:27 and 11:06am (AB 443)	Mr Faumuina called Sarah Wilson's (the applicant's de facto) phone number, five times. On each occasion it went to voicemail. He did not leave a message.

"You can see the perfume warehouse there, which is the building on the left. You can see the start of the word "Wholesale", W-H, and P-E-R underneath, which is "Wholesale Perfumes." That's a view that would have been seen by the occupants in the black Suzuki."

"Not exactly sure on how many lanes it is, but it's a busy road, yes. There's a number - there's more than one lane each way, yes."

"I've always kept it locked because I stored quite expensive stuff in it. Usually I wouldn't keep it open. I would have had it locked."

"At any break-in, through the front door, to the back door, if anyone forces entry into the warehouse, the sensors will pick that up and the sirens will go off."

"The concession must readily be made the Crown case is reasonably convincing on the chain of reasoning that Gogani, Faumuina and Pettersen are talking in code. They're planning an event by talking in code, in part, leading to the conclusion that the event is highly likely to be the commission of a crime. But when it comes to proving that that asserted crime is a break enter and steal, aggravated by being in company and nothing else, I submit to you the Crown case becomes considerably less compelling" (T11 6-13).

In the early morning of 21 March 2011, the Isuzu truck was recovered with high end cookware still in the back from storage from Mr El Helwah's business. Ex C3 shows that the truck was abandoned on Arthur Street near the corner of Tramway Avenue, Parramatta. The truck location is at a point inconvenient for loading up with stolen goods from the Perfume Network;

The fact that a truck was used instead of a car, allows an inference to be made that it was to be used to load up stolen goods. However, it would not be suitable for that purpose, with high-end cookware throughout the storage area of the truck. The applicant and his associates would need to dump that somewhere, whether it's on Arthur Street or elsewhere, hot wire to start it, drive it through the adjoining streets of a grand total distance (which Detective Constable Wolsely agreed), was approximately 350 metres, including turning off River Road West into the Rosehill Business Park before parking it near the rear of unit 1 where the Perfume Network is located; and

The sun would have been well and truly up at 7:30am on 21 March 2011, the alleged time of the break and enter.

(a) "That across the indictment period the applicant and Mr Pettersen had planned to commit a different offence or offences, an unknown offence of offences, or had commenced negotiations on poorly-defined plans to commit offences (falling in short of reaching a concluded agreement) - or some combination of these possibilities;

(b) That the plan as alleged was not shown to require the applicant's actual presence at the scene during the commission of the break, enter and steal (on the hypothesis that the jury accepted that the plan was to commit a break, enter and steal), having the effect that he did not conspire to commit the particular offence alleged, as that offence required the applicant to be in the company with his co-offenders; and

(1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence..."

[11] It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ:

'Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty'.

[12] This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to 'unsafe or unsatisfactory' in M is to be taken as 'equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'.'

[13] The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:

'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.'

Save as to the issue whether the Court of Criminal Appeal erred in not viewing a videotape of the complainant's police interview, to which reference will be made later in these reasons, this qualification is not relevant to the present matter.

[14] In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make 'an independent assessment of the evidence, both as to its sufficiency and its quality'. In M, Mason CJ, Deane, Dawson and Toohey JJ stated:

'In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'."

"It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. It is of critical importance to recognise, however, that in considering a circumstantial case, all the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence."

(iii) The applicant and others were to be physically present at the time of the commission of the planned offence.

(a) The telephone conversation of 31 January 2011 between the applicant and Mr Pettersen whereby Mr Pettersen provides directions to him. This evidence is to be considered with ex C1 and ex G to indicate that the Perfume Network is in a location consistent with "down on your right" to which Mr Pettersen makes reference in the call;

(b) On 1 February 2011, the applicant, Mr Pettersen and Mr Faumuina were observed by the police undercover operatives driving together in a car into the carpark in an industrial complex on the north east corner of Grand Avenue North and James Ruse Drive, Camellia at 5.02pm. The car was parked so that it was facing west. The men exited and re-entered the car on a number of occasions before driving off at 5.35pm. This carpark was over the other side of James Ruse Drive from the Perfume Network premises and the industrial complex in which these premises were located;

(c) The telephone conversation between the applicant and Mr Faumuina on 5 March 2011 during which the applicant said: "But I don't need too many people to come to dinner just one or two because I'm going to be eating as well";

(d) Mr Pettersen's telephone call on 7 March 2011 to the Perfume Network asking for its opening and closing times;

(e) The applicant's attendance with Mr Pettersen at Bunning's Warehouse Artarmon on 8 March 2011 when a bolt cutter, garden gloves and axe were purchased;

(g) The telephone call on 20 March 2011 with Mr Pettersen during which the applicant asked "...and what time should I say to make, um, the booking is in the morning? Seven-thirty?";

(h) The surveillance report of the applicant and Mr Pettersen getting out of the Mazda at 11.22pm on 20 March 2011 and walking out of sight. At 11.33pm they walked back to the vehicle. The applicant reached in through the driver's door window. He then walked around the back of the car to where Mr Pettersen was standing. The two of them crouched down, then stood up and walked north on Brickfield Street until they were out of sight;

(i) The surveillance report of the two men a few minutes later standing next to the stolen truck. Mr Pettersen then drove the truck with the applicant following in the Mazda. At 11.52pm, the truck was parked on the eastern kerb of Arthur Street in Parramatta, 50 metres north of Hassall Street and the Mazda was parked behind it. At midnight, the Mazda was driven away from Arthur Street by the applicant with Mr Pettersen sitting in the passenger seat; and

(j) The SMS message sent at 1.57am on 21 March 2011 from the applicant to Mr Faumuina "from the wog cancel cancel never ever don't write back to this!!"

(1) If it appears to the court that an appellant on an appeal under section 5 (1), though not properly convicted on some count or part of the indictment, has been properly convicted on some other count or part of the indictment, the court may either affirm the sentence passed at the trial or pass such sentence whether more or less severe in substitution therefor as it thinks proper, and as may be warranted in law by the conviction on the count or part of the indictment on which it considers the appellant has been properly convicted."

(i) The conclusion that the conviction on count 1 should be quashed does not mitigate the objective seriousness of the offence of stealing the truck. The truck was stolen to assist the applicant and his co-conspirators in the commission of an offence of break, enter and steal of one of the businesses within the Rosehill Business Park. The contents of the truck included Mr El Helweh's high-end kitchenware. As the Crown submitted, the quashing of the conviction on count 1 was brought about as a result of the over-particularisation of the Crown case at trial.

(ii) As the trial judge observed in his remarks on sentence, the applicant was on parole at the time this offence was committed (ROS 10). He had been sentenced in the Sydney District Court on 6 March 2009 for an offence of break and enter with intent to steal to imprisonment consisting of a non-parole period of 1 year 10 months to date from 10 February 2009 and to expire on 9 December 2010 with an additional term of 1 year 2 months. He was to be released subject to supervision. This is an aggravating factor: s 21A(2)(j) Crimes (Sentencing Procedure) Act 1999 (NSW).

(iii) The applicant's previous criminal history which the trial judge detailed in his sentencing remarks is significant (ROS 9-10). His prior convictions include offences of break and enter, being armed with intent to commit a serious indictable offence and take and drive a conveyance. Greater weight is to be placed on personal deterrence and protection of society: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566.

(iv) The Probation and Parole report that was tendered during the proceedings on sentence described the applicant's drug dependency as "unresolved" (ROS 13). The applicant has a long history of drug dependency which the Probation and Parole Service reported that he had little success in addressing.

(v) In considering the applicant's prospects of rehabilitation, the trial judge took into account that when the applicant was on bail for counts 1 and 2, he committed an offence of aggravated enter a dwelling with intent to commit a serious indictable offence, namely intimidation. His Honour was unable to conclude that the applicant "has good or reasonable prospects of rehabilitation or that he is not likely to re-offend in the future" (ROS 22).

(vi) The trial judge plainly considered the principle of totality when sentencing the applicant. He determined that the sentences for counts 1 and 2 were to be served concurrently but should commence after the expiration of the non-parole period for the aggravated break and enter on 7 August 2013. Whilst his Honour may have applied the totality principle to the non-parole period that had expired three days prior to the time that the applicant was sentenced, he was not obliged to do so.

(vii) Although the applicant will serve a total term of 2 years 8 months for the offence of aggravated break and enter and count 2, I am of the view that a fixed term of 18 months imprisonment is the minimum period of custody that reflects the objective seriousness of count 2.

2. In lieu, sentence the appellant to imprisonment comprising a non-parole period commencing 7 August 2013 and expiring on 17 December 2014. The balance of the term of the sentence will expire on 6 February 2015.

Case Title:	Gogani v R

Medium Neutral Citation:	[2014] NSWCCA 313

Hearing Date(s):	18 November 2014Supplementary submissions 28 November 2014 5 December 2014

Decision Date:	18 December 2014

Before:	Price J at [1] McCallum J at [70] RA Hulme J at [72]

Decision:	(i) Appeal upheld and the conviction on count 1 is quashed. (ii) Order the entry of a verdict of acquittal on count 1. (iii) Pursuant to s 7(1) of the Criminal Appeal Act 1912 (NSW), quash the sentence imposed on count 2. (iv) In lieu, sentence the appellant to imprisonment comprising a non-parole period commencing 7 August 2013 and expiring on 17 December 2014. The balance of the term of the sentence will expire on 6 February 2015. (v) Direct the appellant's release to parole forthwith.

Catchwords:	CRIMINAL LAW - appeal against conviction - conspiracy - circumstantial case - whether verdict unreasonable or unsupportable - whether applicant should be re-sentenced for second count that was not subject to appeal.

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

Cases Cited:	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

Category:	Principal judgment

Parties:	Yashar Gogani (Applicant)

Representation

- Counsel:	Counsel: Mr Tim Game SC & Mr Simon Healy (Applicant) Mr Neil Adams (Crown)

- Solicitors:	Solicitors: P Ryan (Applicant) J Pheils (Director of Public Prosecutions)

File Number(s):	2011/287337

Decision Under Appeal

- Before:	Norrish QC DCJ

- Date of Decision:	09 August 2013

- Court File Number(s):	2011/00287337008

Supreme Court of New South Wales - Court of Criminal Appeal

Gogani v R [2014] NSWCCA 313 (18 December 2014)