Recent decisions for Court of Criminal Appeal

Catchwords:

CRIMINAL APPEAL – appeal against sentence –imposition of life sentences for two murders – where first murder involved domestic violence with degrading sexual brutality – where victim of second murder a 2½ year old child – where second murder also involved “sexual motivation” – where second murder calculated to cover up first – whether life sentences manifestly excessive – terrible nature of a life sentence – whether pleas of guilty disregarded – whether childhood abuse and trauma should have resulted in determinative sentence rather than a life sentence – whether reasonably open to sentencing Judge to reject opinion of psychiatrist

Catchwords:

SENTENCING — appeal against sentence — possession and production of child abuse material — material error of fact — whether sentencing judge mistook the number of images and videos possessed — lack of specificity in Agreed Facts — no error in finding that there were hundreds of images and videos combined SENTENCING — appeal against sentence — assessment of objective seriousness — whether sentencing judge erred in assessing the objective seriousness of offence as mid-range — where child abuse material was category 2 and less serious — where possession offence overlapped with offence of producing the material — error found and applicant re-sentenced

Catchwords:

CRIME – Appeals – Appeals against sentence – Failure to take into account a relevant consideration – where applicant’s evidence as to claimed mental condition reliant on self-reports – where primary judge made adverse findings as to the reliability and credibility of applicant’s evidence – where primary judge rejected applicant’s self-reported history and explanation of his offending CRIME – Appeals – Appeals against sentence – failure to provide adequate reasons – where sentencing judge rejected elements of the applicant’s evidence – whether reasoning adequately explained in sentencing remarks – where it could be readily inferred that the sentencing judge accepted nether that the applicant’s mental health contributed to offending, nor that it reduced moral culpability CRIME – Appeals – Appeals against sentence – Denial of procedural fairness – where primary judge rejected applicant’s evidence as to claimed mental condition and reported historical sexual abuse – whether adverse findings were made without notice

Catchwords:

CRIME — appeals — appeal against sentence — break and enter offences contravening Crimes Act, s 112 — limited utility of guideline judgment of R v Ponfield following Crimes (Sentencing Procedure) Act — need for caution in application — moral culpability — Bugmy principles — “causal link” between deprived background and commission of relevant offences — causal link relevant to consider but not essential to establish — manifest excess — limited utility of statistical comparisons — sentence not unreasonable or plainly unjust

Catchwords:

CRIME — Appeals — Interlocutory appeal — By accused against interlocutory judgment or order — appeal against refusal to recuse on the ground of apprehended bias — application under s 5F Criminal Appeal Act 1912 (NSW) COURTS AND JUDGES — Bias — Apprehended bias — whether in the circumstances a fair-minded lay observer might reasonably conclude that the primary judge might not bring an impartial mind to the questions before the court

Catchwords:

SENTENCING — Crimes Act 1914 (Cth), s 16A(2)(g) — “any benefit to the community” resulting from plea of guilty — Whether s 16A(2)(g) limited to the immediate benefit to the community in avoiding trial in the particular matter — Whether primary judge’s approach involved double counting — Whether primary judge erred by taking into account in two different ways (one quantified and one unquantified) two distinct benefits to community resulting from guilty pleas SENTENCING — Whether sentences manifestly inadequate — Whether Court should exercise discretion to decline to interfere where sentences are erroneously lenient

Catchwords:

CRIME– appeals – appeal against conviction – directions to jury – tendency evidence – allegation that accused had sexual interest in complainant and tendency to act on it – whether directions were adequate – whether directions must have incorporated warning as to reliability of evidence sought to establish relevant tendency CRIME – appeals – appeal against conviction – directions to jury – tendency evidence – where tendency notice is expressed in the precise terms as the offending behaviour alleged by Crown – where jury directed to make findings in respect of charged conduct – whether jury were directed to consider the conduct ‘collectively to decide what conduct occurred’ to establish tendency – whether trial judge’s directions invited impermissible mode of reasoning – application of s 161A(3) of the Criminal Procedure Act 1986 – whether miscarriage of justice

Catchwords:

CRIME – appeals – appeal against sentence – determination of objective seriousness of offences – whether sentencing judge erred in categorising offences into varying groups of objective seriousness – where diverse victim ages and durations of offending permitted the assessments of objective seriousness – no error found CRIME – appeals – manifest excess – whether individual sentences imposed were outside relevant discretionary range – where sentencing judge accepted applicant's subjective case – sentences imposed not sufficiently unjust or disproportionate to betray substantive error of law – no manifest excess found CRIME – appeals – principle of totality – whether individual sentences were accumulated in such a manner which made the effective total head sentence crushing – where applicant contends large factual overlap between offences and excessive gap in starting dates of offences – sentences imposed were not disproportionate to total offending – no error found

Catchwords:

CRIME — appeals — appeal against conviction and sentence — notice of appeal filed out of time — self-represented applicant — large array of alleged errors on the part of trial judge and of defence counsel as well as general misfortune — no material error nor any matter potentially affecting the verdicts established — whether convictions unreasonable and sentence manifestly excessive — neither established — leave to appeal refused — no point of principle

Catchwords:

CRIME — appeal and review — stated case — question of law — s 58(1) of Crimes (Sentencing Procedure) Act 1999 (NSW) — whether “existing sentence of imprisonment” means the non-parole period of that sentence — whether the imposition of a new sentence wholly concurrent with an existing sentence engages s 58(1) — whether new sentence of imprisonment has effect of extending non-parole period of existing sentence so as to make the new sentence consecutive or partially consecutive to an existing sentence

Catchwords:

CRIME – Appeals – appeal against conviction – admissibility of expert evidence – s 79 of the Evidence Act 1995 (NSW) – forensic medical specialist – opinion as to expected external injuries in non-fatal ligature strangulation – where expert opinion based on clinical experience – whether opinion substantially based on specialised knowledge – whether expert engaged in process of prediction – reliability of expert evidence – distinction between matters going to admissibility of expert evidence as opposed to weight CRIME – Appeals – appeal against conviction – whether probative value of expert evidence outweighed by risk of unfair prejudice – s 137 of Evidence Act 1995 (NSW) – whether risk of jury placing unfair weight on opinion proffered by expert – white coat effect – relevance of “cogency” of reasoning in assessing probative value of expert evidence under s 137 – whether sufficient evidence to enable the jury to assess the reliability of an expert’s evidence – where expert opinion based on clinical experience – whether requirement to adduce evidence of details of cases observed in clinical experience CRIME – Appeals – appeal against conviction – murder – unreasonable verdict – whether open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt – circumstantial case – whether evidence capable of eliminating alternate hypothesis inconsistent with guilt – where advantages of the jury were significant – verdict not unreasonable

Catchwords:

CRIME — appeal — four counts of sexual touching of a child CRIMINAL PROCEDURE — trial — self represented accused — whether the trial judge failed to ensure the applicant was accorded a fair trial — whether the trial judge failed to make appropriate directions to the jury or prevent the admission of allegedly objectionable material — no miscarriage of justice demonstrated CRIMINAL PROCEDURE — trial — definition of identification evidence in the Evidence Act 1995 (NSW) — responses given by complainant to propositions in defence case does not fall within the definition CRIMINAL PROCEDURE — circumstances in which it is in the interests of a self-represented accused person that the Crown be permitted to make a closing address — need for consideration of all relevant circumstances — allowing the Crown to make a closing address may assist a self-represented accused to make a more helpful closing address and preserve procedural fairness CRIMINAL PROCEDURE — leave to appeal — not opposed by the Crown except on the basis of merit — where notice of appeal filed out of time — where delay caused by solicitor briefing barristers, who retained the brief, in circumstances where their professional commitments did not allow for timely preparation of the appeal

Catchwords:

CRIME – Appeals – appeal against sentence – Commonwealth offence – whether sentencing judge failed to assess or take into account prospect of rehabilitation – where no submissions made in relation to matter at first instance – whether matter “relevant and known to the court” – consideration of Zreika principles – relevance and significance of assessing prospects of rehabilitation – error established – miscarriage of justice – no lesser sentence warranted in law – appeal dismissed

Catchwords:

CRIME – Appeal against sentence – possess unauthorised firearm – supply prohibited drugs in commercial quantity – cultivate prohibited plant in an indictable amount – aggregate sentence – indicative sentences – procedural fairness – where sentencing judge indicated firearms offences not of any particular impact – where indicative custodial sentence provided for firearms offence – Parkinson's disease as a shield against sentence – no opportunity for submissions against the finding – failure to address submissions in relation to an intensive correction order – manifest excess – totality – resentencing

Catchwords:

SENTENCING – appeal against sentence – co-offenders – disparity between sentences – where co-offenders sentenced in relation to attempt to possess unlawfully imported border-controlled drugs – where co-offender played less significant role in the offence than the applicant and had a stronger subjective case – applicant sentenced to substantial full-time imprisonment and co-offender released immediately on recognisance – whether disparity in sentences justified

Catchwords:

SENTENCING — appeal against sentence — material error of fact — whether sentencing judge mistook the number of firearms supplied — where sentencing judge only mistook the dates on which the supply of firearms occurred and not the total number supplied — no miscarriage of the sentencing discretion SENTENCING — appeal against sentence — mitigating factors of lack of prior criminal record and good character — where the sentencing Crown accepted that the absence of previous convictions was a mitigating factor but contested good character — where the sentencing judge made no finding as to good character — error found and applicant re-sentenced

Catchwords:

SENTENCING — appeal against sentence — use of comparable cases and sentencing statistics — whether sentencing judge failed to properly consider or give adequate reasons as to comparable cases — where the sentencing judge did make reference to the comparative material — no obligation on sentencing judges to compare similarities and differences with other cases in sentencing reasons — no error SENTENCING — appeal against sentence — finding of special circumstances — whether sentencing judge failed to take into account relevant considerations when varying the statutory ratio — where non-parole period must reflect objective gravity of offending and need for general deterrence — no error in slight variation of statutory ratio — sentence not manifestly excessive — appeal dismissed

Catchwords:

CRIME — appeals — appeal against conviction — judge alone trial — unreasonable verdict — high risk violent offender — breach of extended supervision order — whether the applicant associated with a child — meaning of associate — whether the verdict of guilty was reasonable

Catchwords:

CRIME — appeals — appeal against sentence — murder and wounding with intent to cause grievous bodily harm — whether the primary judge erred in the application of a 15% utilitarian discount instead of the statutory 25% discount

Catchwords:

CRIMINAL PROCEDURE – application for leave to appeal from decision refusing to vacate trial – where applicant unrepresented due to his dismissal of three sets of counsel and solicitors before trial – where neither submitted nor shown that conduct of legal team was incompetent or otherwise warranted termination of services

Catchwords:

CRIME - appeals - appeal against conviction - jury returned guilty verdict on one count of sexual intercourse without consent - applicant and complainant gave evidence - contemporaneous complaint evidence - contemporaneous text messages between applicant and complainant - conceded incorrect statements by applicant in police interview - whether misconduct by police - whether misconduct by barrister appearing for applicant at trial - significance of failing to call flatmate present during some of the time complainant was in the flat - whether misconduct by prosecutor - significance of inconsistencies in complainant’s evidence - whether trial judge had directed jury correctly as to consent - whether jury’s verdict unreasonable - allowance given to unrepresented litigant concerning submissions after judgment reserved and allegations unsubstantiated in evidence - appeal dismissed

Catchwords:

CRIME — appeals — appeal against conviction — judge alone trial — unreasonable verdict — where applicant found guilty of seven counts and acquitted of four counts — whether on all of the evidence it was open to the trial judge to be satisfied of the applicant’s guilt beyond reasonable doubt — where many of the trial judge’s findings of fact are contested — where there is an active challenge to a witness’s credibility — where there is a risk of contamination, inconsistencies and contradictory evidence EVIDENCE — Court invited to review recorded material — whether trial judge had an advantage in viewing recorded interviews — whether advantage capable of resolving doubt

Catchwords:

CRIME – bail – release application pending determination of applicant’s appeal against his convictions – whether there are “special or exceptional circumstances” under Bail Act 2013 (NSW) s 22

Catchwords:

CRIME – appeals – appeal against conviction – embezzlement by clerk or servant – statutory construction of ss 155 and 157 of the Crimes Act 1900 (NSW) – definition of “clerk or servant” – meaning of “employed” and “collector of moneys” – where complainant had contractual relationship with a company controlled by applicant CRIME – appeals – appeal against conviction – miscarriage of justice – closing address to jury by Crown Prosecutor – prohibition on comment on the accused’s failure to give evidence – references to “no evidence” or a lack of “explanation” – reversal of onus of proof – further improprieties – whether improprieties could be redeemed by trial judge’s directions – whether proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) applied

Catchwords:

CRIMINAL LAW – appeal – appeal against conviction – sexual intercourse without consent – whether cross-examination of accused asserting he tailored his evidence lacked factual foundation – whether accused deprived of chance of acquittal that was fairly open – whether good character direction deficient – Rule 4.15 – miscarriage of justice – leave granted

Catchwords:

CRIMINAL APPEAL – Commonwealth sentencing – transmitting child abuse material – where sentencing Judge applied a “statutory presumption” that a sentence of imprisonment be imposed – approach contrary to authority and to statute – material error conceded – whether less severe sentence warranted – whether s 17A threshold crossed – big house – consideration of alternative penalties – where applicant serving longer sentence for attempted drug importation – where applicant likely to be deported – where community correction order under State sentencing legislation picked up by Commonwealth statute – more appropriate penalty in the circumstances CRIMINAL LAW – sentencing – transmitting child abuse material – objective seriousness – relevant considerations – depiction of actual child – where one image transmitted to a single recipient – no evidence part of paedophile network – no suggestion transmission was for profit – young offender with no criminal record – findings of remorse – plea of guilty – deprived background – incarceration far away from family – sentence other than imprisonment appropriate

Catchwords:

CRIME – Appeals – appeal against sentence – whether sentencing judge erred by failing to take into account applicant’s onerous conditions of custody during COVID-19 – where sentencing judge expressly referred to impact of COVID-19 in relation to co-offender, being sentenced with the applicant, but not the applicant – error being found in such circumstances, applicant resentenced – on resentence, applicant not permitted to depart from approach below in relation to relevance of De La Rosa, but more favourable findings on prospects of rehabilitation and onerousness of custody made, taking into account additional evidence as to subsequent events in custody

Catchwords:

SENTENCING – onerous conditions of custody said to arise from COVID-19 – requirement for evidence establishing basis for submission – whether procedural fairness denied where sentencing judge does not provide notice that submission will not be accepted SENTENCING – parity – whether consideration of parity can be inferred from sentencing judge’s reasons absent formulaic expression – whether justifiable sense of grievance SENTENCING – relevant factors on sentence – whether applicant’s childhood was sufficiently deprived to enliven the principles contemplated in Bugmy – where no submissions were made at sentence – whether a requirement to consider Bugmy factors absent submissions

Catchwords:

CRIMINAL LAW AND PROCEDURE - SENTENCE - MALICIOUS INFLICTION OF GRIEVOUS BODILY HARM WITH INTENT - HORRIFIC INJURIES AND PERMANENT DISABILITY OF VICTIM - OFFENDER ONE OF TWO ENGAGED IN JOINT COMMISSION OF CRIME - OFFENDER THE ACTUAL PERPETRATOR OF MOST SERIOUS ASSAULT - PRIOR RECORD - NO JUSTIFIABLE GRIEVANCE ARISING FROM LESSER SENTENCE RECEIVED BY CO-OFFENDER - SENTENCE AT TOP OF RANGE WARRANTED

Catchwords:

CRIME – Appeals – appeal against sentence – fraud – representative counts – where challenge to factual finding of sentencing judge – finding that applicant voluntarily desisted offending and ceased offending when employment terminated – fact relied upon in aggravation of objective seriousness of offending – whether “reasonably open” to make finding beyond reasonable doubt – material error – appeal allowed – applicant re-sentenced CRIME – Appeals – appeal against sentence – approach of Court of Criminal Appeal when issue raised for first time on appeal – generally bound by conduct of counsel in below proceedings – exception where issue operates unequivocally in applicant’s favour CRIME – Appeals – appeal against sentence – manifest excess – not necessary to determine

Catchwords:

CRIME — Appeals — Appeal against conviction — Unreasonable verdict — where account of the offending is said to have a somewhat incredible quality and be implausible — where evidence is said to be inconsistent and/or uncorroborated — where jury found applicant not guilty of sexual intercourse but guilty of sexual touching — where complainant is under the age of 10 — where inconsistencies are peripheral and can be explained — where jury were well placed to assess the truthfulness and reliability of the evidence —ground dismissed CRIME — Appeals — Appeal against conviction — Miscarriage of justice — tendency evidence — where directions to the jury on tendency evidence were not in accordance with preferred approach in Director of Public Prosecutions v Roder — where three charged acts relied on as proof tendency — where requisite standard of proof not mentioned in the tendency direction — The King v AR [2026] HCA 10 applied — where there is real a risk of the jury being deflected from its fundamental task — leave granted — ground upheld — retrial ordered CRIME — Appeals — Appeal against conviction — Taking into account irrelevant consideration —whether trial judge erred in considering the jury’s verdict in making findings of guilt regarding related offences on s 166 certificate — whether reasons were sufficient — ground 3 need not be delt with given upholding of ground 2

Catchwords:

CRIME — appeal against sentence — application for leave to appeal — application for leave to file a notice of appeal out of time — where multiple sentences imposed by two judges — whether sentencing judge erred by characterising charges as “representative” charges — where sentencing judge did not so err — whether sentence manifestly excessive — where sentence imposed was not unreasonable or plainly unjust

Catchwords:

SENTENCING – appeal against sentence – manslaughter – whether sentencing judge erred in application of Bugmy principles – whether sentencing judge erred in use of applicant’s prior offending – whether sentencing judge erred in considering the applicant’s post-offending conduct when assessing moral culpability – error established but no lesser sentence warranted on re-sentence – appeal dismissed

Catchwords:

CRIME – appeals – appeal against sentence – importation of commercial quantity of border- controlled drug – reduced sentence for co-operation with law enforcement authorities – s 16A(2)(h) Crimes Act 1914 (Cth) – no error in not applying a discrete and identifiable discount – no error in failing to apply instinctive synthesis – leave refused

Catchwords:

CRIME – Appeal against sentence – Commonwealth offence – aid, abet, counsel or procure the commission of an attempt to possess a commercial quantity of an unlawfully imported border-controlled drug – where applicant contends sentencing judge failed to consider alternatives to full-time imprisonment – ground conceded to by respondent – steps to be undertaken in sentencing federal offenders – error established - resentence

Catchwords:

EVIDENCE – Hearsay – exceptions – admission – where hearsay evidence of representations by third parties in the absence of the applicant was admitted against the applicant under s 87(1)(c) of the Evidence Act 1995 (NSW) – where the applicant objected to most of this evidence being admissible against him – whether error in admitting evidence pursuant to s 87(1)(c) of the Evidence Act CRIME – Appeals – appeal against conviction – miscarriage of justice – application of proviso APPEALS – From jury verdict – misdirection or non-direction – whether the trial judge failed to direct adequately – whether the trial judge erred in his Honour’s directions as to the use which could properly be made of representations made in the absence of the applicant and admitted pursuant to s 87(1)(c) of the Evidence Act CRIME – Appeals – appeal against conviction – unreasonable verdict

Catchwords:

SENTENCING — appeal against sentence — pre-sentence quasi-custody — whether bail conditions amounted to quasi-custody — factual finding that bail conditions not harsh and restrictive reasonably open to the sentencing judge — no error in failing to backdate the sentence SENTENCING — appeal against sentence — parity principle — where co-offender had strong subjective case — no justifiable sense of grievance arising from disparity with co-offender’s sentence — sentence not manifestly excessive — appeal dismissed

Catchwords:

CRIME – appeals – appeal against conviction – consistency of acquittal on count 1 with guilty verdicts on two other counts – timing of count 1 offending was raised by evidence and submissions, even though trial judge did not direct that time was of the essence – verdict capable of rational explanation by reference to the complainant’s own evidence about timing in relation to count 1 CRIME – appeals – appeal against conviction –different witness accounts of offending conduct on one count – no extended unanimity direction given or sought – leave required under r 4.15 – Crown relied on one act being proven – evidence did not involve alternative “mutually destructive” bases or create “materially different issues or consequences” –parties and trial judge recognised differences in witness accounts – no injustice to applicant in the atmosphere of the trial

Catchwords:

CRIME — appeals — appeal against sentence — whether sentence manifestly excessive — whether primary Judge erred in assessing “rolled-up” charges as beneficial — whether sentencing trend is of assistance

Catchwords:

COURTS AND JUDGES – application for disqualification at commencement of sentence severity appeal – apprehension of bias – where judge previously acted for third party in unrelated proceedings – whether fair-minded lay observer might reasonably apprehend that judge might not bring an impartial mind – no logical connection between basis for application and feared departure by judge from deciding the case on its factual and legal merits – application unanimously refused

Catchwords:

CRIME — appeals — appeal against conviction — historical sex offences — application for permanent stay — applicable standards of appellate review — whether trial judge erred in refusing to permanently stay proceedings due to delay CRIME — appeals — appeal against conviction —historical sex offences — prosecutorial conduct — cross-examination of accused — Court invited to review audio of entire cross-examination — whether identified forensic purposes for listening to entire audio persuasive — forensic purposes not persuasive CRIME — appeals — appeal against conviction — historical sex offences — prosecutorial conduct — cross-examination of accused — improper questions — complaint as to various questioning techniques employed by the prosecutor – substantial repetition of prosecution evidence — manner and tone adopted by prosecutor — asking accused if prosecution witness is wrong — putting evidence of prosecution witnesses to the accused and asking whether the assertions are denied — where failure to raise further objections or seek discharge of the jury — whether cross-examination gave rise to miscarriage — miscarriage established

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdicts – inconsistency of jury verdicts – credibility of complainant’s evidence – logical distinction explains differentiation EVIDENCE – sexual experience – evidence inadmissible under s 294CB Criminal Procedure Act 1986 (NSW) – whether probative value outweighed any distress, humiliation or embarrassment that the complainant might suffer EVIDENCE – fresh and new evidence on appeal – whether evidence unavailable at trial caused miscarriage of justice – whether new evidence suggests the applicant’s guilt was not proven beyond reasonable doubt CRIME – appeals – appeal against sentence – aggregate sentence - manifest excess – whether error in indicative sentence suggests error in aggregate sentence – whether judge erred in finding that personal circumstances were not mitigating CRIME – appeals – manifest excess – whether judge erred in finding that one count warranted the maximum penalty – “reasonably open” test as correct standard for appellate review of factual error at sentence – whether judge erred in finding offending was of “worst category”

Catchwords:

SENTENCING – appeal against sentence – co-offenders – disparity between sentences – where aggregate sentences imposed – consideration of disparity between indicative sentences for common offences – where aggregate sentences accounted for offending not shared between co-offenders – whether disparity in aggregate sentences justified SENTENCING – appeal against sentence – co-offenders – disparity between sentences – where co-offender sentenced in the Drug Court – consideration of principles to be applied when comparing a sentence imposed by the District Court and a sentence imposed by the Drug Court – comparison of approaches in Scicluna v R and Tobia v R SENTENCING – penalties – Drug Court – where Drug Court imposes an initial sentence – consideration of objects and structure of the Drug Court Act 1998 (NSW) – whether leniency warranted in an initial sentence imposed by the Drug Court – approach in Tobia v R reconsidered

Catchwords:

CRIME – Appeals – appeal against sentence – backdating to account for pre-sentence custody and totality with pre-existing sentences – whether sentencing judge erred in setting commencement date of sentence – whether sentencing judge failed to provide adequate reasons for decision as to commencement date – whether lesser sentence warranted on resentence – appeal dismissed

Catchwords:

CRIME – appeals – appeal against sentence – severity – whether no penalty other than imprisonment would be appropriate – whether sentence manifestly excessive CRIME – appeals – extra-curial punishment – whether primary Judge open to consider loss of partner as extra-curial punishment – risk of an overly prescriptive approach to extra-curial punishment given fact-dependence CRIME – appeals – use of victim impact statements – whether inferences arose from sentencing remarks on victim impact statements

Catchwords:

SENTENCING — appeal against sentence — whether sentencing judge erred in approach to applicant’s plea of guilty under s 16A(2)(g) — utilitarian value of a guilty plea — whether the prosecution can resile from written concessions made in sentence hearing — whether strength of the prosecution’s case is relevant to utilitarian value of a guilty plea — whether sentencing judge can take into account the subjective value of the applicant’s guilty plea — impermissible and irrelevant factors taken into consideration — error found — appeal allowed — resentence

Catchwords:

CRIME — appeals — interlocutory appeal — doubts as to desirability of determining limitation questions in advance of trial CRIME — continuing offences — amorphous nature of term “continuing offence” — categories of continuing offence — relevance of issues of duplicity, double jeopardy, and limitation periods — nature of offence is an issue of legislative intention and facts of case — broad statements as to correct approach of limited utility — considerations relevant to characterisation exercise EMPLOYMENT AND INDUSTRIAL LAW — work health and safety — offences — characterisation of offence against ss 19(1) and 33 of Work Health and Safety Act 2011 (NSW) — distinct offence may be committed whenever duty not complied with at any time “while the workers are at work in the business or undertaking”

Catchwords:

CRIME – appeals – appeal against sentence – whether error in application of totality principle – manifest excess – five offences of manufacturing or supplying large commercial quantities of prohibited drugs – one offence of possess ammunition without licence – Form 1 offences – principle of totality – erroneous assumption as to pre-discount starting point – appropriateness of “grossing up” aggregate sentence – mathematical exercise – where substantial cumulation warranted – where sentence well within range – appeal dismissed

Catchwords:

CRIME — Appeal against sentence — application for leave to appeal — where applicant contended sentence manifestly excessive — where none of the matters relied upon by applicant demonstrate manifest excess — where application does not go beyond merely arguable — where no issue of principle raised — where leave to appeal against sentence refused

Catchwords:

SENTENCING — appeal against sentence — child sexual offences — expert evidence of applicant’s neurodevelopmental disorders — whether sentencing judge erred in failing to address whether moral culpability and the need for general deterrence was reduced — error established but no lesser sentence warranted on re-sentence — appeal dismissed

Catchwords:

CRIME – Appeals – appeal against sentence – where challenge to factual finding by sentencing judge – application of decision in Hancock – whether finding of sentencing judge “reasonably open” – no lesser sentence warranted in law – appeal dismissed.

Catchwords:

CRIME – appeals – appeal against conviction – Liberato direction – where Crown conceded that the trial judge’s direction on the second limb of Liberato was erroneous in a material respect – whether the guilty verdict was nevertheless inevitable – whether the proviso in s 6(1) of Criminal Appeal Act 1912 (NSW) should apply

Catchwords:

CRIME – appeals – appeal against sentence – sexual intercourse without consent – objective seriousness – moral culpability – whether sentencing judge erred in failing to take into account the applicant’s motive and intention in committing offences – whether applicant’s motive of love and sexual attraction toward victim mitigated objective seriousness – appeal dismissed CRIME – appeals – appeal against sentence – aggregate sentence – whether sentence manifestly excessive – appeal dismissed

Catchwords:

CRIME — appeals — appeal against conviction — jury returned guilty verdict of aggravated indecent assault contrary to Crimes Act 1900 (NSW), s 61M(2) — not guilty verdicts returned on two counts alleging earlier alleged assaults of same complainant — whether verdict unreasonable by reason of inconsistency — verdicts reconcilable having regard to qualities of evidence and timing and circumstances of alleged offences — reliability distinct from credibility — open to jury to consider complainant’s recollection of more recent offending more reliable — added weight placed on passage of time where earlier alleged offending occurred when complainant was a young child — whether a miscarriage of justice arose — no error in directions of trial judge — no material irregularity from defence counsel’s forensic decisions to consent to admission of evidence of complainant’s sister in statement form and to not address in closing — no miscarriage of justice

Catchwords:

CRIMINAL APPEAL – ground that guilty verdict unreasonable – application of authorities – where jury acquitted on two counts relating to different complainant – no inconsistency – independent examination of evidence adduced at trial – consideration of attack on credibility of complainant – myths and preconceptions – consideration of jury’s advantage – emotionally charged trial court – where complainant calls defence counsel a [expletive deleted] – impact on credibility – evaluation better made by jury familiar with atmosphere of courtroom and tone of cross-examination – eight matters of concern raised by appellant – whether matters amount to inadequacies raising reasonable doubt of appellant’s guilt CRIMINAL PROCEDURE – where complainant identifies as male – respectful use of preferred pronouns – counsel’s use of term “young lady” – unfortunate cross-examination and address – complainant’s crude response to counsel appeared to be understandable

Catchwords:

CRIMINAL LAW — appeal against conviction — murder — unreasonable verdict —self-defence — whether Crown proved beyond reasonable doubt that accused did not believe conduct necessary to defend himself — whether accused ought be acquitted on murder charge when re-trial limited to manslaughter — whether acquittal would create plea in bar — autrefois acquit — Criminal Appeal Act 1912 (NSW), ss 6, 8 — Criminal Procedure Act 1986 (NSW), s 163

Catchwords:

CRIME – appeals – appeal against sentence – four counts of drug supply offences – one count of acquiring firearms contrary to a firearms prohibition order – whether sentencing judge erred in assessment of objective seriousness of sequence 12 – whether scalar classification of objective seriousness is necessary – whether it was reasonably open to the sentencing judge to place the offence at the “mid-range” of objective seriousness – appeal dismissed

Catchwords:

APPEALS — Nature of appeal — necessity to show error for both appeals stricto sensu and by way of rehearing — correctness and House v The King standards of review — need to identify error does not determine standard of review — whether House v The King standard can apply differentially in different contexts CRIME — Appeals — Appeal against sentence —standard of review for findings of fact in sentence appeals — discretionary judgments involved in fact-finding during sentencing — distinctive aspects of fact finding in sentencing — House v The King requires asking whether a finding of fact reasonably open in sentencing appeals under ss 5 and 6 of the Criminal Appeal Act 1912 (NSW) — variable significance of “reasonably open” test based on evaluative character of finding and advantages held by trial judge CRIME — Appeals — Appeal against sentence — whether finding that applicant intended to kill deceased reasonably open — whether sentencing judge gave adequate reasons for finding — resentence of applicant SENTENCING — Relevant factors on sentence — objective seriousness — excessive self-defence — whether anterior conduct relevant to objective seriousness

Catchwords:

APPEALS — appeal against sentence — material inadvertently disclosed at sentence — consideration of material disclosed — material error in sentence SENTENCING — appeal against sentence — consideration of irrelevant material — material error

Catchwords:

SENTENCING — appeal against sentence — where appeal is out of time BIAS — whether an apprehension of bias arises from comments made by the sentencing judge PROCEDURAL UNFAIRNESS — whether it was procedurally unfair for the sentencing judge to reject a diagnosis that was unchallenged NEW EVIDENCE — whether the applicant can rely on new reports prepared for use in sentencing proceedings in the District Court — whether the District Court sentencing judge will be bound by the findings of the sentencing judge in these proceedings — appeal dismissed

Catchwords:

SENTENCING — appeal against sentence — sexual offences committed against biological daughters — whether sentence manifestly excessive — use of comparable cases — where indicative sentences are high — where the sentencing judge applied a significant degree of notional accumulation — aggregate sentence unreasonable or plainly unjust — appeal allowed and applicant resentenced

Catchwords:

CRIME – appeals – appeal against conviction – Liberato direction – whether modified Liberato direction was appropriate – where difficulties arising from applicant’s evidence of intoxication – whether risk of confusing jury if unqualified Liberato direction given – rigid adherence to the formulation of an unqualified Liberato direction not required – where Liberato direction fashioned to an aspect of the evidence which was critical to the assessment by the jury of the offence – no objection taken nor redirection sought at trial – no miscarriage of justice from modified Liberato direction CRIME – appeals – appeal against conviction – whether miscarriage of justice by trial judge’s failure to give the standard inferences direction – where Crown case dependent upon direct evidence and jury’s assessment of credibility – where no direct evidence as to the applicant’s state of mind – no further direction sought at trial – circumstantial evidence direction not required – omission of direction did not deflect the jury from its fundamental task – essential elements of the offence proved beyond reasonable doubt – no miscarriage of justice CRIME – appeals – appeal against sentence – whether sentence manifestly excessive – sentencing statistics and comparative sentences – sentence was not unreasonable or plainly unjust

Catchwords:

CRIME — appeals — appeal against conviction — unreasonable verdict — sexual touching — where differential verdicts reached on counts arising from a single course of conduct — where counts alleged conduct at differing levels of specificity — no inconsistency CRIME — appeals — appeal against sentence — sexual touching — objective seriousness — whether open to primary judge to be satisfied of skin-to-skin contact — finding reasonably open to sentencing judge

Catchwords:

APPEALS – leave to appeal against pre-trial rulings – s 5F(3) Criminal Appeal Act 1912 (NSW) – undesirability of fragmenting and delaying resolution of criminal proceedings at first instance not outweighed by arguments mounted by applicant

Catchwords:

CRIME — complicity — accessory before the fact — joint indictment — two persons to stand trial on one count of attempt to possess unlawfully imported border controlled drug — Crown alleged both accused persons were liable as principals — alternative Crown case that one accused procured the conduct of the other in attempting collect package at post office and that her conduct was attributed to the first accused as a proxy under s 11.3 of Commonwealth Criminal Code — whether s 11.3 applied to proxy who was charged as a principal — whether Crown could advance alternative cases — whether alternative case required amendment to indictment or further particulars — whether Commonwealth Director of Public Prosecutions v Brady [2016] VSC 334; 346 FLR 1 should be followed — whether s 11.3 confined to proxies who lack sufficient knowledge

Catchwords:

CRIME – Appeals – appeal against sentence – appellant company convicted of offences of carrying out development contrary to consent after guilty pleas and sentenced to fines in Land and Environment Court – whether sentencing judge erred by rejecting disposition under s 10 of Crimes (Sentencing Procedure) Act 1999 (NSW) as a sentencing option before considering appropriate sentence – whether sentencing judge engaged in impermissible two-stage process of sentencing or failed to take into account relevant considerations in determining not to record conviction – whether sentencing judge applied a wrong principle in considering extenuating circumstances in which offences were committed as required by s 10(3)(c) – no wrong principle identified – ground not properly framed to challenge a factual finding – factual finding as to extenuating circumstances nonetheless reasonably open – whether sentencing judge took into account irrelevant consideration being that s 10(1)(b) dispositions are more appropriate for individuals – sentencing judge did not restrict availability of s 10(1)(b) to individuals – inapplicability of certain conditions imposable under s 10(1)(b) orders to companies not irrelevant

Catchwords:

CRIME – appeals – appeals against sentence – joint criminal enterprise – whether co-offenders occupied similar roles within the enterprise – whether sentencing judge erred in assessment of participation – whether sentencing judge observed the parity principle – leave to appeal granted – appeal dismissed

Catchwords:

CRIMINAL LAW – sentence appeal – totality principle – accumulation of sentences – special circumstances – overview of principles – no difference in principle between sentence imposed in single sitting and sentence accumulated on existing sentence – accumulation on sentence for armed robbery – where sentencing delayed in relation to temporally proximate and less serious offending – whether the sentencing Judge adverted to impact on proportion of non-parole period to total accumulated sentence – examination of record in sentencing court – application of principles

Catchwords:

CRIMINAL LAW – appeal – appeal against sentence – 17 counts of child sexual offences committed against nine victims over 28 years – 10 Form 1 offences taken into account – where applicant sentenced to 30 years’ imprisonment with a non-parole period of 20 years – whether sentencing judge erred in assessment of objective seriousness of individual counts – whether trial judge erred in failing to indicate where on the scale of seriousness each of the offences fell – whether sentence manifestly excessive

Catchwords:

CRIME – bail – release application – applicant charged with aggravated kidnapping – applicant charged with robbery with a dangerous weapon – applicant charged with drug offences – bail refused by judge of Supreme Court – release application to Court of Criminal Appeal – cause shown – whether any unacceptable risk – bail granted on conditions

Catchwords:

CRIME – appeals – appeal against sentence – whether head sentence was manifestly excessive – whether indicative sentences were manifestly excessive – where one of four indicative sentences manifestly excessive – materiality – whether length of indicative sentence indicates error in aggregate sentence – appeal allowed – applicant re-sentenced. CRIME – appeals – appeal against sentence – parity principle – where co-accused had committed similar offences but facts disclosed different level of involvement – where applicant held senior and extensive role vis-à-vis co-accused – substantial difference in sentence objectively justified.

Catchwords:

CRIME – appeals – appeal against sentence – drug manufacturing – State and federal offences – whether sentence for State offence was manifestly excessive – consideration of sentences imposed in broadly comparable circumstances – appeal allowed

Catchwords:

JUDGMENTS AND ORDERS − no remaining controversy between the parties – whether the Court should nonetheless make orders and provide reasons – whether the appeal involved an issue of general importance favouring formal determination – potential to provide guidance where a similar issue may arise deemed insufficient reason to determine an appeal CRIME − whether the general principle against issuing advisory opinions regarding issues not in controversy applies in the context of criminal proceedings

Catchwords:

CRIME — Bail — Release application — Where two previous bail applications have been refused — Shooting with intent to murder and discharging a firearm with intent to cause grievous bodily harm as the alternative charge — Show cause provisions — Whether the applicant has shown cause why his detention is not justified — Youth, first time in custody, 15 months on remand, no record of prior convictions and delay — Where co-accused was granted bail — Dispute as to whether the Crown case has inherent fatal weaknesses — Whether proposed conditions of bail mitigate bail concerns to an acceptable level

Catchwords:

CRIME — Appeals — Appeal against sentence — offences of possessing a commercial quantity of border controlled drug and manufacturing not less than the large commercial quantity of a prohibited drug — application of sentencing principles to a finding of an offender’s background of deprivation — application of sentencing principles to a finding of an offender’s prospects of rehabilitation and likelihood of reoffending — whether an offender travelling to Australia for the purpose of the commission of the offence is an aggravating feature — appeal dismissed

Catchwords:

CRIME — appeals — appeal against conviction — unreasonable verdict — sexual intercourse without consent — whether complaint evidence was reliable — where applicant’s DNA was not found by investigators — whether CCTV evidence supported inferences alleged by the Crown CRIME — appeals — appeal against conviction — unreasonable verdict — sexual touching — where applicant was complainant’s doctor — where touching occurred during medical examination — whether touching was sexual in nature — whether touching was solely for a proper medical purpose CRIME — appeals — appeal against conviction — unreasonable verdict — sexual touching — where applicant was complainant’s doctor — whether touching occurred as alleged — whether complaint evidence was reliable

Catchwords:

CRIME — Appeal against conviction — application for leave to appeal — whether miscarriage of justice by the refusal of an adjournment — where applicant asserts he was prevented from pursuing a course which could, with any reasonable prospect of success, enable him to avail himself of counsel — whether trial judge erred in allowing the trial to continue after the applicant contends the severity, extent and the implications of his psychopathology (a bipolar condition and a “voice confrontation” condition) made it apparent that he could no longer receive a fair trial in the absence of legal representation — leave to appeal granted and appeal dismissed CRIME — Appeal against conviction — application to adduce fresh or new evidence on appeal — whether trial judge erred in refusing application further to recall the complainant to be cross-examined as to the allegation of photoshopping images — application refused and no error by trial judge CRIME - Appeal against sentence – application for leave to appeal – where contended that there was a striking discrepancy between the custodial conditions the sentencing judge had been led to believe would be applicable and the actual conditions experienced by the applicant — where proposed ground of appeal raised events occurring post-sentence — leave to appeal against sentence refused

Catchwords:

CRIME — miscarriage of justice — where applicant did not give evidence at trial — whether applicant was “adequately” advised by defence counsel whether or not to give evidence — whether applicant deprived of chance of acquittal that was “fairly open” CRIME — appeals — where applicant challenges conviction of sexual touching without consent and sexual intercourse without consent — where significant context and background of relationship between parties

Catchwords:

CRIME – appeals – appeal against sentence – whether the sentencing judge erred in assessing the objective seriousness of the offending – whether sentencing judge erred in approach to quantity of drug – whether reasonably open for sentencing judge to decline to accept evidence of applicant’s limited role in drug manufacture – inferences of sentencing judge properly drawn beyond reasonable doubt – appeal dismissed.

Catchwords:

CRIME — Appeals — Appeal against conviction — whether applicant prosecuted maliciously — whether applicant’s extradition from New Zealand unlawful — whether jury verdicts unreasonable — whether jury’s ability to access digital evidence impeded — whether intervention by trial judge excessive and undue — whether summing up unbalanced and unfair — whether undue pressure placed on jury by trial judge — whether consciousness of guilt reasoning inappropriately relied on by Crown — whether trial commenced at unjust time owing to applicant’s medical conditions — whether alleged errors and procedural unfairness cumulatively caused trial to miscarry

Catchwords:

CRIME — Appeals — Appeal against sentence — Whether sentencing judge’s characterisation of the applicant’s behaviour as methodical, calculated and systematic was unfounded on the evidence CRIME — Appeals — Appeal against sentence — Failure to take into account a relevant consideration — Where applicant was diagnosed with Post Traumatic Stress Disorder and other mental health conditions — Whether sentencing judge failed to properly consider the applicant’s mental health conditions when assessing moral culpability and a causal connection with the offence CRIME — Appeals — Appeal against sentence — Manifest excess — Where sentencing judge found the objective seriousness of the offence was relatively high — Where comparative cases encompass a wide range of circumstances and severity of injury

Catchwords:

CRIMINAL PROCEDURE – interlocutory appeal – rejection of application for judge only trial – nature of appeal – requirement for leave as a threshold issue – no error or arguable error in the reasons of the trial judge – no basis for a grant of leave to appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW) – leave to appeal refused

Catchwords:

CRIME — appeals — appeal against conviction — unreasonable verdict — where applicant’s authorship of pseudonymous messages was an intermediate essential fact — whether evidence was sufficient to find that applicant sent messages CRIME — appeals — appeal against conviction — miscarriage of justice — whether trial judge erred in leaving to jury a basis for conviction that represented a change in Crown case from opening — whether denial of procedural fairness — whether Crown case changed between opening and closing

Catchwords:

CRIME — appeal against conviction — offence of aggravated sexual assault in company — Crown case that the co-accused physically and sexually assaulted the complainant to obtain drugs secreted in her vagina in a correctional centre — principles of joint criminal enterprise — whether the applicant’s plea of guilty to an alternative count removed proof of an element as a real issue at trial — whether trial judge’s directions on reckless infliction of actual bodily harm and sexual intercourse erred — no second limb error — appeal dismissed

Catchwords:

CRIME – Appeal against sentence – supply large commercial quantity of prohibited drugs – partly motivated by drug and gambling addictions – diagnoses of substance use disorder and gambling disorder – mental health found not to be “causally connected to the offences in the relevant sense” – infelicity – drug and gambling addictions might provide an explanation for offending but do not operate in a mitigatory sense

Catchwords:

CRIME — appeals — appeal against conviction — unreasonable verdict — whether jury verdict of guilty on one charge of sexual intercourse with a child under the age of 10 was unreasonable — where leave to appeal granted but appeal dismissed

Catchwords:

CRIME – Appeals – appeal against sentence – where two co-offenders sentenced by the same judge 10 months apart – whether the absence of the co-offender’s subjective material before the sentencing judge caused the applicant’s sentence proceedings to miscarry – whether the sentencing judge erred in the consideration of objective seriousness – whether the sentence is manifestly excessive – leave to appeal granted – appeal dismissed

Catchwords:

CRIME – appeal – appeal against sentence – one count of dishonestly destroying property by fire for financial gain – where applicant already serving term of imprisonment for separate offence at date of sentence – where sentencing judge made finding of special circumstances and on that basis adjusted standard ratio between non-parole period and head sentence – whether in light of overall effective sentence sentencing judge erred in failing to give practical effect to finding of special circumstances

Catchwords:

CRIME — appeal — appeal against conviction — whether failure to apply second and third limbs of the Liberato direction — whether verdict unreasonable — whether aggravating circumstance in Crimes Act 1900 (NSW) s 61J(2)(a) established for multiple counts — leave granted — appeal dismissed CRIME — appeal — appeal against sentence — whether sentencing judge erred in approach to objective seriousness on multiple counts — whether sentencing judge erred applying totality principle — whether sentence manifestly excessive – aggregate sentence manifestly excessive — leave granted — appeal allowed — resentence

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict having regard to the nature and quality of the evidence – robbery – significant issue regarding the identity of the assailant – multiple irreconcilable versions given by the complainant including a positive assertion on the day of the robbery that the assailant was a person known to him, “Wayne” – evidence unreliable regarding matters essential to the charge – jury verdict unreasonable – evidence contains discrepancies, displays inadequacies, was tainted and lacks probative force – significant possibility an innocent person has been convicted

Catchwords:

CRIME – appeals – appeal against sentence – two offences of possession of a precursor intended for use in the manufacture or production of a prohibited drug – whether the sentencing judge failed to take into account the applicant’s prospects of rehabilitation – whether the sentencing judge erred by taking into account subjective matters by way of a quantified 2.5 per cent discount – whether the sentencing judge failed to determine whether the applicant facilitated the administration of justice – whether the sentencing judge failed to take into account the applicant’s mental health and its impact on making custody more onerous – error established in relation to each ground – applicant re-sentenced

Catchwords:

SENTENCING — aggravating factors — breach of conditional liberty — sentencing judge referred to appellant being on conditional liberty at time of offending when considering objective seriousness — error to have regard to that feature in assessment of objective seriousness SENTENCING — relevant factors on sentencing — where applicant did not characterise manslaughter offence by placing it on notional range or by description — no requirement to assess objective seriousness by reference to a notional range — in cases of manslaughter doing so unlikely to be of much utility — sufficient to identify a number of aggravating factors — sentencing judge not required to distinguish between applicant and uncharged co-perpetrator’s roles SENTENCING — subjective considerations on sentence — hardship — mental illness — approaches to causation in relation to mental health concerns and psychosocial maturity — no error in differing approaches to causation and differing conclusions

Catchwords:

CRIME — appeal against conviction — murder — unreasonable verdict — self-defence — where the applicant inflicted two fatal stab wounds upon the deceased during an altercation — where the applicant asserted the deceased was the aggressor — whether the Crown negatived self-defence — where the applicant’s account of events was inconsistent with the evidence in the Crown case — where the evidence was capable of satisfying the jury beyond reasonable doubt that the applicant did not stab the deceased in self-defence — leave to appeal granted — appeal dismissed CRIMINAL PROCEDURE — appeal against conviction — extension of time to file a Notice of Appeal — four year delay from sentence — interests of justice — extension granted

Catchwords:

CRIME – appeals – appeal against conviction – whether miscarriage of justice occurred – where prosecution breached its duty of disclosure – whether proviso should be applied – appeal allowed

Catchwords:

CRIME – appeals – appeal against sentence – firearms offences – plea of guilty – whether the sentencing judge erred in failing to provide a discount for the applicant’s plea after the close of Crown case – whether the sentencing judge erred in aggravating the objective seriousness by taking into account offending not subject of charge – leave to appeal granted – appeal upheld – applicant re-sentenced

Catchwords:

CRIME — Appeals — Appeal against sentence — Where applicant pleaded guilty to two Commonwealth drug offences and two State offences involving unauthorised possession of firearms and identification-making material — Whether sentencing judge erred in setting commencement date of sentences by failing to consider and/or apply the principle of totality

Catchwords:

CRIMINAL LAW — appeal against sentence — conspiracy to import border-controlled drug — where sentencing judge took into account applicant’s contrition in discount for plea of guilty — irregular deduction from nominated starting point — utilitarian value of guilty plea — principles of parity — parity between applicant and co-offender —factual challenge in criminal sentence appeal — whether applicant occupied a minor role in offending — whether the factual finding was reasonably open — House v The King (1936) 55 CLR 499; [1936] HCA 40 error — appeal dismissed

Catchwords:

CRIME – appeals – Crown interlocutory appeal – sexual offences – whether trial judge erred in refusing Crown application to discharge jury – where discharge application based on directions given by trial judge – where trial judge relied on R v Wilkie, R v Burroughs, R v Mainprize [2005] NSWSC 794 – directions inconsistent with s 294B(7) of the Criminal Procedure Act 1986 (NSW) – directions carried real risk of elevating importance of demeanour – wrong principle – error in determination of application – appeal allowed – matter remitted to be determined according to law EVIDENCE – witness evidence – evidence in sexual offence proceedings – evidence given by alternative arrangements – impact of evidence given by audio visual link – judicial attitudes – research – not equivalent to testimony in courtroom – weaker standard of communication – may affect opposing or calling party – beneficial or detrimental to witness – Kennedy Nixon presidential debate – impact may not be ascertainable EVIDENCE – directions to jury – evidence given by audio visual link – directions in ordinary case likely to contravene s 294B(7) – s 294B(7) cannot convert poor evidence into clear evidence – available direction where impact of audio visual link capable of being identified – direction as to particular quality of evidence – example direction provided

Catchwords:

CRIME – appeals – appeal against sentence – offence of dishonestly destroy property by fire with view to make a gain – where sentencing judge misstated the applicant’s date of birth and age – where the age stated by the sentencing judge was 10 years older than the applicant’s true age – whether the applicant’s deprived background warrants a finding of reduced moral culpability in circumstances where the offending was carefully planned – error established – no lesser sentence warranted

Catchwords:

CRIME – Appeals – appeal against conviction – sexual intercourse with a child – whether Crown case implied a lack of past sexual experience or activity of the complainant – whether exclusion of evidence relating to child’s sexual experience under s 293 of the Criminal Procedure Act resulted in a miscarriage of justice – whether failure to permanently stay the trial resulted in a miscarriage of justice – whether convictions unreasonable having regard to significant change between complainant’s allegations in JIRT interviews and pre-recorded evidence – appeal allowed – conviction on counts 1 and 4 quashed

Catchwords:

SENTENCING — appeal against sentence — co-offenders — disparity between sentences — whether the applicant had a justifiable sense of grievance having regard to the sentence imposed on his co-offender — where both offenders were sentenced by the same judge — where the applicant’s undiscounted indicative sentence in respect of one count was double that imposed on his co-offender

Catchwords:

CRIME — appeal against conviction — offence of sexual intercourse with a child under the age of 10 — presumption of doli incapax — whether Crown rebutted presumption on the available evidence — whether applicant understood that his acts were seriously or gravely wrong and not merely naughty or mischievous — RP v The Queen (2016) 259 CLR 641 considered — evidence as to the applicant’s contemporaneous character or maturity not sufficient to rebut the presumption beyond reasonable doubt — appeal allowed

Catchwords:

CRIME — appeals — appeal against conviction — sexual assault — oral directions given by trial judge concerning mens rea of offence — mens rea where accused believed complainant consented but accused had no reasonable grounds for belief — whether direction including words “there were no reasonable grounds” constituted misdirection — difference between phrases “there were no reasonable grounds” and “he had no reasonable grounds” — whether statutory language permits consideration of subjective factors of accused — unnecessary to decide in circumstances of appeal — whether trial judge suggested accused bore onus of proving belief in consent — significance of absence of complaint about directions given — application of rule 4.15 of Supreme Court (Criminal Appeal) Rules 2021 (NSW)

Catchwords:

CRIME – appeals – appeal against sentence – armed robbery – lighter as offensive weapon – whether the sentencing judge erred in assessing the objective seriousness of offending – whether the sentencing judge erroneously applied Henry guideline judgment – whether the sentencing judge failed to disclose her Honour’s assessment of objective seriousness – whether her Honour erred in assessing objective seriousness by reference to the nature of the weapon – guideline judgment did not offer guidance in sentencing exercise – appeal upheld – appellant re-sentenced – no basis for further punishment

Catchwords:

CRIME — Appeals — Appeal against sentence — Where applicant entered plea of guilty to an offence of facilitating the exit of a person from Australia by deception — Whether sentencing judge erred in assessing objective seriousness of the offence — Whether contended findings were made without proper evidentiary foundation which infected the sentencing discretion — Where contended relevant considerations were misconstrued — Whether sentence imposed was unreasonable or plainly unjust

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict – where applicant found guilty of one count of attempting to possess commercial quantity of border controlled drug – border controlled drug contained in hessian sacks – circumstantial Crown case – whether reasonable inferences available to be drawn – where the jury’s advantage is slight – whether it was open to the jury to draw the ultimate inference on the whole of the evidence that the applicant knew or was reckless beyond a reasonable doubt to the fact that the sacks contained a border controlled drug – whether failure to exclude an inference consistent with the applicant’s innocence that was reasonably open

Catchwords:

CRIME – appeals – appeal against sentence – appropriate test to be applied to challenges to factual findings in criminal sentence appeals – test from R v O’Donoghue inconsistent with House v The King test and should no longer be followed CRIME – appeals – appeal against sentence – meaning of “mistake of fact” within meaning of House v The King – whether finding of sentencing judge “reasonably open” CRIME – appeals – appeal against sentence – whether sentencing judge erred in finding that the offences took place against a background of similar offending – no “mistake of fact” within House v The King test – no error established CRIME – appeals – appeal against sentence – whether sentence manifestly excessive – no misapplication of principle by sentencing judge – no error established

Catchwords:

CRIME – appeal against sentence – misapplication of principle – irrelevant considerations – error at sentence – applicant’s criminal history not to be considered in determining the objective seriousness of an offence CRIME – appeal against sentence – re-exercise of sentencing discretion – no lesser sentence warranted

Catchwords:

CRIME — appeals — appeal against sentence —Commonwealth offence — family hardship — Totaan v R — error conceded — no lesser sentence warranted in law

Catchwords:

CRIME – appeals – appeal against sentence – whether the sentencing judge erred in setting the commencement date of the sentence – whether sentencing judge failed to account for a period of custody referable to an offence for sentence – no question of principle – appeal upheld – applicant re-sentenced

Catchwords:

ENVIRONMENT AND PLANNING – environmental crime – offending contrary to ss 342(1)(a) and 343(1) of Water Management Act 2000 – strict liability offences – where appellants fined for damaging or interfering with work owed or under control of irrigation corporation – where appellants took water from water supply work without authorisation SENTENCING – appeal against sentence – principle of totality in the imposition of fines – error in sentencing judge’s approach to totality – considerations when sentencing a corporation – parity – appellants’ resentenced PRACTICE AND PROCEDURE – arithmetical error in sentence – r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) – amendment made under slip rule – slip rule incorporated into the Land and Environment Court Rules 2007 (NSW) in respect of Class 5 proceedings – amendment permissible – application of the slip rule does not permit re-exercise of sentencing discretion – no re-exercise of discretion required here

Catchwords:

CRIMINAL LAW – appeal – sentencing – whether manifestly inadequate – respondents members of ‘Brothers for Life’ gang – gangland crime – offending of a serious nature – minimal accumulation in sentence structure – whether aggregate sentence manifestly inadequate from inadequacy of sentences on individual counts – where offenders subjected to non-exculpatory duress – where offenders were relatively young aged 18 and 22-23 respectively at time of offending – where deprived background – where guilty pleas and assistance to authorities

Catchwords:

CRIMINAL LAW – appeal – sentencing – whether manifestly inadequate – parity – whether justifiable sense of grievance – whether failure to take into account period of onerous bail conditions

Catchwords:

CRIME – appeal against sentence – use carriage service to threaten to kill a person with the intention that the person would fear the threat would be carried out – use carriage service in a way that reasonable persons would regard as being in all the circumstances menacing and/or offensive – whether primary judge erred in determining suitability of an ICO – whether primary judge erred by failing to consider a Recognizance Release Order – effect of mental health on offending – degree of notional accumulation – sentence not manifestly excessive – appeal dismissed

Catchwords:

CRIME — appeals — appeal against sentence — whether sentencing judge failed to make findings about remorse and prospects of rehabilitation — nature of sentencing judge’s obligation to give reasons CRIME — appeals — appeal against sentence — manifest excess — whether inadequate weight given to subjective circumstances

Catchwords:

CRIME – Appeals – appeal against sentence – obtain financial advantage by deception – threaten witness – manifest excess – concurrency – whether sentence should be backdated to imprisonment for unrelated offending – no error found – appeal dismissed – self-represented applicant

Catchwords:

CRIME — appeals — appeal against sentence — application for leave to appeal out of time — offence of attempt to possess commercial quantity of border-controlled drug — manifest excess — parity with sentence of co-offenders, one sentenced separately — appeal dismissed

Catchwords:

CRIME – appeals – appeal against sentence – deal with property reasonably suspected to be proceeds of crime – manifest excess – alleged misapplication of the principle of totality – De Simoni error – challenge to discount given for assistance – no lesser sentence warranted – appeal dismissed

Catchwords:

CRIME — Appeals — Appeal against conviction — Aggravated sexual intercourse with a child — Directions required to be given in respect of using uncharged acts for a tendency purpose — Reference to party adducing evidence best understood as identifying the party seeking to use evidence for a tendency purpose — Evidence may be used for tendency purpose without determining issues raised by ss 97, 97A and 101 if no objection taken CRIME — Appeals — Appeal against conviction — Application to adduce new evidence — Where new evidence could have been obtained at trial and did not raise reasonable doubt about guilt — Application refused CRIME — Appeals — Appeal against conviction — Where direction given to jury that if they had or could not reach unanimous verdict they would be given further directions — Where direction did not place pressure on jury CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Where complainant unable to be specific as to timing of sexual assaults — Where complainant’s reasons were reasonable and plausible

Catchwords:

CRIME – appeals – appeal against sentence – whether manifestly excessive

Catchwords:

CRIME – Appeals – Crown interlocutory appeal – murder – robbery with wounding – 4 counts on indictment – severance of counts 3 and 4 – whether ruling substantially weakens Crown case – whether O’Leary principle applies – whether evidence in severed counts is relevant to facts in issue – whether evidence unfairly prejudicial – assessment of probative value – whether House v The King error

Catchwords:

CRIME – Crown appeal against inadequacy of aggregate sentence – 6 offences against s 66C(4) of the Crimes Act 1900 (NSW) (“Crimes Act”) – 2 offences against s 66C(3) of the Crimes Act – Form 1 offences – a single victim – whether indicative sentences manifestly inadequate – whether offences committed whilst respondent was subject to an ADVO is an aggravating factor under s 21A(2)(j) of the Crimes (Sentencing and Procedure Act) 1999 (“CSP Act”) – whether Form 1 offences and aggravating factors adequately reflected in indicative sentences – whether the specification of the non-parole period in standard non-parole period offences in indicative sentences was a technicality – whether offence being committed in the garage of the victim’s home was an aggravating factor under s 21A(eb) of the CSP Act – victim impact statement – s 25AA of the CSP Act – whether heightened need for specific and general deterrence – whether aggregate sentence manifestly inadequate – whether residual discretion should not be exercised – assistance to police – assessment of moral culpability – sentence increased

Catchwords:

SENTENCING — Crown appeal against sentence — sexual and physical domestic violence offences committed against wife — assessment of the objective seriousness of choking offences contrary to s 37(1A) of the Crimes Act 1900 (NSW) — whether the sentencing judge erred in finding that the offender had good prospects of rehabilitation —whether aggregate sentence and Community Corrections Orders are manifestly inadequate sentences — error established SENTENCING — Crown appeal against sentence — admissibility of new evidence relevant to the exercise of the residual discretion and re-sentence — inadequacy of sentence so marked as to warrant intervention — seriousness of domestic violence offending — offender re-sentenced

Catchwords:

CRIME – appeal against sentence – multiple firearm offences – multiple drug offences – whether Form 1 offence erroneously treated as contributing to objective seriousness of principal offence – compatibility of ammunition to firearm – effect of mental health on burden of imprisonment – no lesser sentence warranted – appeal dismissed

Catchwords:

CIVIL PROCEDURE – registrars – review of Registrar’s decision – Court of Criminal Appeal – application to produce documents – no issue of principle

Catchwords:

SENTENCING — Appeal against sentence — co-offenders — disparity between sentences — methylamphetamine manufacture — applicant “go to man and organiser” — co-accused “cook” — sentencing judge finds stronger subjective case for applicant — indicative sentence nonetheless six months longer than indicative sentence for other offender on corresponding count — marked and unjustified disparity revealing House error — applicant re-sentenced

Catchwords:

CRIME – appeals – appeal against sentence – applicant sentenced for Commonwealth offences – where sentencing judge erred by mistaking the facts – where sentencing judge erred by applying wrong principle of law in considering family hardship – errors conceded by Crown – sentencing discretion re-exercised – no lesser sentence warranted – appeal dismissed

Catchwords:

SENTENCING — relevant factors on sentence — objective seriousness — whether sentencing judge erred in assessment of the objective seriousness — moral culpability — whether sentencing judge erred in assessment of the applicant’s moral culpability — mitigating factors — unlikely to re-offend — whether sentencing judge misstated the statutory test — where the expression was no more than a verbal infelicity

Catchwords:

CRIME — Appeals — appeal against sentence — failure to take into account a relevant consideration — whether sentencing judge failed sufficiently to take into account applicant’s disadvantaged background — misapplication of principle — mitigating factors in Crimes (Sentencing Procedure) Act 1999 (NSW) — risk of re-offending and prospects of rehabilitation — factors not raised before sentencing judge — whether sentencing judge erred in not assessing mitigating factors — manifest excess — whether aggregate sentence reflected totality of criminality — manifest excess established

Catchwords:

Sentencing - Crown Appeal against inadequacy - sentencing judge imposed non-parole period of 6.25% of overall term - delay of 6 months in hearing of appeal - Appeal upheld but in view of delay respondent re-sentenced to periodic detention.

Catchwords:

CRIME – appeals – appeal against sentence – offence of sexual intercourse without consent – domestic violence – whether the sentencing judge erred in the application of a 25% discount for the applicant’s plea of guilty – whether the sentencing judge denied the applicant procedural fairness in finding that the offending was aggravated by a breach of trust – whether the sentencing judge double counted aggravating factors of a breach of trust and the offending having occurred in the victim’s home – no point of principle – leave to appeal granted – appeal dismissed

Catchwords:

STATUTORY INTERPRETATION – Drug Misuse and Trafficking Act 1985 (NSW), s 25 – supply of a large commercial quantity of a prohibited drug – level of knowledge required to establish charge under s 25(2) CRIMINAL LAW – appeal against conviction – where applicant convicted of supply of a large commercial quantity of a prohibited drug – applicant convicted of supply of fentanyl – where applicant gave evidence of mistaken belief as to the particular prohibited drug in his possession – whether applicant had requisite mental knowledge with regard to quantity of prohibited drug CRIMINAL LAW – appeal against sentence – supply of a prohibited drug – whether sentencing judge erred in assessment of objective seriousness of offending – where sentence appeal was previously abandoned and subsequently raised without leave

Catchwords:

SENTENCING — appeal against sentence — relevant factors on sentence — Form 1 offences — whether sentencing judge impermissibly took Form 1 offence into account when assessing the objective seriousness of the principal offence — whether sentencing judge failed to make finding accepting or rejecting case advanced by the applicant — where appeal allowed — resentence — where a greater sentence ought to have been imposed than that given by the sentencing judge

Catchwords:

CRIME – Appeal – Appeal against sentence – Aggregate sentence – 35 counts including dangerous driving occasioning death, dangerous driving occasioning grievous bodily harm, actual bodily harm caused by wanton driving – Whether material error in factual findings –Whether sentence manifestly excessive – Whether notional accumulation excessive – Leave to appeal granted but appeal dismissed

Catchwords:

SENTENCING — appeal against sentence — co-offenders — disparity between sentences — whether the applicant had a justifiable sense of grievance having regard to the sentences imposed on five co-offenders — where five co-offenders received lesser sentences after the applicant was sentenced — where co-offenders sentenced by different judges — where co-offenders found guilty of different offences — whether open to applicant to impugn findings in co-offenders sentencing judgment

Catchwords:

CRIME — appeal against sentence — sentence approximates the sentence actually sought at first instance — not manifestly excessive — parity ground — less severe outcome for co-offender amply justified by differences between cases — no question of principle

Catchwords:

CRIMINAL LAW — appeal — conviction — self-represented applicant — maintaining unlawful sexual relationship with child under 16 years — challenges to conduct of prosecutor, defence counsel and trial judge — allegations of miscarriage of justice — admissibility of tendency, context and complaint evidence — alleged judicial bias — unreasonable verdict — constitutional challenge to s 66EA of the Crimes Act 1900 (NSW) CRIMINAL LAW — appeal — conduct of defence counsel — conduct of prosecutor — whether conduct caused miscarriage of justice CRIMINAL LAW — appeal — sentence — maintaining unlawful sexual relationship with child under 16 years — incompetence of counsel — alleged error in assessing number and frequency of acts — manifest excess — failure to consider particular circumstances — absence of remorse or insight

Catchwords:

CRIMINAL LAW — appeal against conviction — causing grievous bodily harm with intent to cause grievous bodily harm — alleged unreasonable verdict — substantial evidence of multiple blows to the victim’s head – admissibility of statement made immediately after assault — statement made when victim unconscious — whether capable of constituting admission — motive to inflict grievous bodily harm — s 81 Evidence Act 1995 (NSW) — extension of time — delay caused by seeking a second opinion — appeal lacking merit

Catchwords:

CRIME – Appeal – Appeal against conviction – Unreasonable verdict – Murder – Whether Crown excluded the possibility that a person other than accused inflicted at least one blow to the head of the deceased – Deference given to advantage of jury in assessing credibility and reliability of witnesses

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict – murder – joint criminal enterprise and extended joint criminal enterprise – investigated nine years later – where applicant acquitted by this Court – where High Court allowed Crown appeal and remitted for determination – admissions – where admissions central to proof of Crown case – reliability of admissions – inconsistent and against interest – litany of lies – Court invited to review recorded material – intercepted telephone calls and interviews with police – nature of advantage held by jury – whether advantage capable of resolving doubt.

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict – attempt to possess commercial quantity of heroin – whether prosecution required to exclude possibility that an associate of the applicant had attempted to possess the heroin alone – unnecessary for prosecution to exclude that possibility – verdict not unreasonable CRIME – appeals – appeal against sentence – principles in R v De Simoni (1981) 147 CLR 383 – whether sentencing judge sentenced applicant based on his “role in importation” – error established – no lesser sentence warranted

Catchwords:

CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Joint criminal enterprise and extended joint criminal enterprise — Where admissions were made by the applicant against own interests — Where admissions are inconsistent — Whether admissions sufficiently reliable to found a guilty verdict — Whether jury had a natural advantage in hearing phone intercepts and viewing police interviews CRIME — Appeals — Appeal against conviction — Unreasonable verdict — No issue of principle

Catchwords:

CRIME — Appeals — appeal against conviction — unreasonable verdict — Crown alleged exclusive possession of drugs and cash — applicant argued evidence did not establish exclusive possession — whether applicant had exclusive possession of drugs and cash

Catchwords:

CRIME – appeals – appeal against sentence – offence of wound person with intent to resist or prevent arrest – related offences on s 31 certificate – police pursuit, not stop and drive dangerously – robbery armed with offensive weapon – whether sentencing judge erred by sentencing the applicant ‘at law’ for the related offences – whether the sentencing judge erred by sentencing the applicant to a sentence that was more than jurisdictionally available – whether the sentence was manifestly excessive as a result of the asserted error – leave to appeal allowed – applicant resentenced

Catchwords:

CRIMINAL LAW — appeal against conviction — using carriage service to transmit communications with person believed to be under 16 years — misdirection as to belief element — error conceded — whether Court should direct acquittal or order re-trial — interests of justice — discretion of Director of Public Prosecutions — significance of conviction under Child Protection (Offenders Registration) Act 2000 (NSW)

Catchwords:

CRIME – appeals – appeal against conviction – whether irregularity constitutes miscarriage of justice – where irregularity occurred by provision of a transcript containing discussions in the absence of the jury – where those discussions included details of allegations made by the complainant for which the applicant had been acquitted in a previous trial – whether irregularity met the threshold of materiality – whether continuing trial after discharge of juror occasioned a substantial miscarriage of justice – whether it would be inferred that discharged juror would have voted for an acquittal – where majority verdict followed a short time after juror was discharged

Catchwords:

CRIME – Appeals – Appeal against sentence – whether sentencing judge erred by finding that general deterrence weighed heavily on the sentence – appeal allowed – resentence

Catchwords:

CRIME – Appeal against sentence – Sexual offences – Aggravated sexual assault – Indecent assault – Circumstances of aggravation – Victim under authority – Victim under 16 years of age – Leave granted – Appeal upheld – Applicant resentenced CRIME – Appeals – Appeal against sentence – Misapplication of principle – Whether the sentencing judge erred in an assessment of objective seriousness – Whether the characterisation given by the sentencing judge was reasonably open to him –Ground of appeal not upheld CRIME – Appeals – Appeal against sentence – Misapplication of principle – Whether the sentencing judge erred in finding that personal deterrence was a significant factor in sentencing – Whether the offender’s willingness to engage in treatment courses is conditional upon expressions of remorse and insight into offending – Error of principle – Where remorse and insight into offending found not to be a precondition for engagement in treatment courses – Grounds 2 and 3 upheld CRIME – Appeals – Appeal against sentence – Manifest excess – Unnecessary to consider in light of upholding grounds 2 and 3

Catchwords:

CRIME – appeals – appeal against conviction – supply commercial quantity of prohibited drug – 1,4-butanediol – whether guilty verdict unreasonable – whether commercial quantity of drug in possession for the purpose of supply – application of deeming provision – s 29(a) Drug Misuse and Trafficking Act 1985 (NSW) – definite and indefinite articles – nature of offence – indivisible whole – where proof of intention to use part of drug not inconsistent with possession of whole quantity for the purpose of supply – appeal dismissed

Catchwords:

CRIME – Appeal and review – Appeal from District Court to Supreme Court – Appeal against sentence – Leave to appeal granted – Appeal dismissed CRIME – Child sex offences – Child abuse material – Bestiality material – Possession of – Pleas of guilty – Imposition of an aggregate sentence CRIME – Grounds of appeal – Failure to take into account a relevant consideration – Failure to consider objective seriousness – Where an ex-tempore judgment lacks the order and precision of a reserved judgment – Principle established in Rotner v R [2011] NSWCCA 207 – Where sentencing Judge refers to the factors relevant to objective seriousness without making an explicit determination – Where assessment of objective seriousness deemed to have taken place when the sentencing judgment is read as a whole – Ground 1 not upheld CRIME – Grounds of appeal – Failure to take into account a relevant consideration – Failure to give sufficient weight to a reduction in moral culpability re Bugmy and the applicant’s mental health conditions – Error in taking applicant’s mental health conditions into account – Application of Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 – Where the applicant submitted that he was an inappropriate vehicle for general deterrence – Where no submissions were made or evidence tendered to support a link between the applicant’s mental health conditions and his offending conduct – Where consideration of Bugmy factors deemed to have taken place when the sentencing judgment is read as a whole – Ground 2 not upheld CRIME – Grounds of appeal – Manifest excess – Where it was open to the sentencing Judge to conclude that each offence needed significant individual recognition for the individual criminality displayed – Where indicative sentences displayed no error – Sentence open to sentencing Judge – Ground 3 not upheld

Catchwords:

CRIME – Appeal and review – Appeal from District Court to Supreme Court – Appeal against conviction – Miscarriage of justice – Whether unedited transcript containing prejudicial material was provided to the jury – Standard of proof – Where balance of probabilities determined to be appropriate standard of proof where the appeal is based on a finding of fact CRIME – Sexual offences – Indecent assault of a person under 16 years of age – Applicant found guilty by a jury – Aggregate sentence imposed CRIMINAL PROCEDURE – Trial – Jury – Access to transcript – Irregularities – Where unedited transcript containing prejudicial material may have been provided to the jury – Where evidence from a previous trial may have been provided to the jury in a second trial after the charges relevant to that evidence had been withdrawn – Where no practitioners in the trial have any recollection of an incorrect transcript being provided to the jury – Where the primary evidence of the applicant is an unedited transcript from the court file which was marked for identification – Where the Court unable to infer that the incorrect transcript was provided to the jury based on the evidence before it – Where practitioners were alert to the need to ensure the correctness of transcripts as a result of an error earlier in the trial – Where the primary evidence at trial was of a small number of recorded interviews – Where significant discrepancies in the transcript and recorded interview would have been alerted to the Judge – Where the recording was played whilst the jury were in possession of the transcript and no discrepancy was raised by any party in the court room at the time – Where the Court was not satisfied as a matter of fact that the jury received an inappropriate transcript – Miscarriage of justice not established – Appeal dismissed

Catchwords:

CRIMINAL PROCEDURE — costs — Costs in Criminal Cases Act 1967 (NSW) — appeal against the trial judge’s decision to award a costs certificate after finding that it was not reasonable to institute proceedings against the respondent — whether if the prosecution had evidence of all of the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings — whether the complainant was unreliable — whether complaint witnesses gave evidence that was inconsistent with the complainant’s account — whether the trial judge fell into error within the meaning of House v The King — whether a certificate should be awarded pursuant to the Suitors’ Fund Act 1951 (NSW) even if the appeal was successful

Catchwords:

CRIME — appeals — appeal against sentence — where Crown accepted that Court should proceed to resentence the applicant — where extension of time and leave to appeal granted — where appeal allowed — where Court proceeded to resentence the applicant

Catchwords:

CRIME – appeals – appeal against sentence – one count of not stopping and driving a vehicle dangerously knowing that police officers were in pursuit of the vehicle – one count of assaulting a police officer in the execution of his duty – guilty plea – where the applicant was serving the balance of parole SENTENCING – appeal against sentence – whether the sentencing judge erred in the consideration of totality and a finding of special circumstances – whether the sentence was manifestly excessive – no point of principle – leave to appeal granted – appeal dismissed

Catchwords:

CRIME – appeal – appeal against sentence – applicant convicted of murder based on joint criminal enterprise to kill as act of revenge – applicant 17 years old acting with father and brother – whether sentence was manifestly excessive – no challenge to findings made by the sentencing judge – sentencing judge had regard to all relevant factors in determining sentence including youth immaturity and father’s influence – applicant presented favourable subjective case on sentence – sentence not unreasonable or plainly unjust – leave to appeal granted – appeal dismissed

Catchwords:

APPEALS – issue of jurisdiction – leave sought to appeal against a District Court interlocutory judgment – where District Court proceedings were an appeal against a Local Court conviction – where District Court Judge dismissed application for adjournment and leave to tender fresh evidence – leave sought pursuant to s 5F(3)(a) Criminal Appeal Act 1912 – whether the Court of Criminal Appeal has jurisdiction to entertain the appeal – whether appeal should be dismissed as “incompetent” – whether a party can appeal to the Supreme Court following an appeal in the District Court from a Local Court conviction WORDS AND PHRASES – “indictment” – s 5F(1)(a) Criminal Appeal Act 1912 – whether s 5F should be read down and/or made subject to the terms of s 176 District Court Act 1973

Catchwords:

CRIME — appeals — appeal against conviction — unreasonable verdict — whether jury verdicts of guilty on two counts of sexual intercourse without consent, knowing the other person does not consent, and two counts of intentional sexual touching without consent, knowing that the victim does not consent, were unreasonable — where no reasonable doubt — where any doubt the Court may have had could readily have been resolved by the jury’s advantage in seeing and hearing the evidence CRIME — appeals — appeal against conviction — miscarriage of justice — whether miscarriage of justice occasioned by trial judge’s comment to jury in summing up that complainant confused or misled by questioning in her cross-examination — where no such miscarriage of justice occasioned and comment did not deflect jury from its fundamental task of deciding whether prosecution had proved the elements of the charged offences beyond reasonable doubt CRIME — appeals — appeal against conviction — miscarriage of justice — whether miscarriage of justice occasioned by trial judge’s direction to jury to decide element of knowledge by considering what applicant’s state of mind would have been if he had not been intoxicated — where no complaint made at trial about trial judge’s direction to jury in this regard — where leave therefore required under r 4.15 of Supreme Court (Criminal Appeal) Rules 2021 — where jury not deflected from its fundamental task and no such miscarriage of justice occasioned — where leave therefore refused under r 4.15 to raise ground

Catchwords:

CRIME – appeals – appeal against sentence – attempt sexual intercourse without consent – alleged material error of fact – leave to appeal against sentence refused – no point of principle

Catchwords:

CRIME – appeals – appeal against sentence – Commonwealth offences of attempting to cause a person under the age of 18 to enter into a forced marriage SENTENCING – appeal against sentence – whether there was evidence of the applicant’s conduct as an accepted cultural practice in the sentence proceedings – whether s 16A(2A) of the Crimes Act 1914 (Cth) precluded a finding of reduced moral culpability because of a cultural practice SENTENCING – appeal against sentence – consistency in sentencing federal offenders – whether this Court should follow decisions of intermediate appellate courts in other States and Territories – leave to appeal granted – appeal dismissed

Catchwords:

CRIME – application for request to sheriff for investigation of potential juror impropriety pursuant to s 73A of Jury Act 1977 (NSW) – application dismissed by judge – whether application could be renewed in appellate court on same basis – where judge who presided over trial had already investigated the matter – where previous investigation took place 18 months ago in immediate aftermath of incident – where previous investigation obtained evidence on oath – prospects of second investigation resulting in different evidence speculative – application refused JURISDICTION – nature of decision by Supreme Court judge to refuse application for request for sheriff to conduct investigation – nature of purported appeal from refusal of such application – availability of appeal under s 5F or s 22 of Criminal Appeal Act 1912 (NSW) – whether right of appeal under s 101 of Supreme Court Act 1970 (NSW) excluded by s 17 – whether decision judicial or administrative – whether decision amenable to judicial review

Catchwords:

CRIMINAL LAW – appeal – appeal against conviction – where the applicant was found guilty of murder by a jury – whether the verdict was unreasonable – where the Crown case was circumstantial – whether the circumstances of the Crown case were adequate to prove the applicant’s presence at the scene of the murder CRIMINAL LAW – appeal – appeal against conviction – surveillance device material – where parts of the recorded conversation were unclear – whether the recorded conversation contained admissions – whether the surveillance device material was relevant – whether admission of the recorded conversations by the trial judge was unfairly prejudicial to the accused CRIMINAL LAW – appeal – appeal against conviction – surveillance device material – whether the jury was properly directed as to the manner in which the surveillance device material could be used – whether the jury was directed in accordance with Shepherd v The Queen and Burns v The Queen CRIMINAL LAW – appeal – appeal against conviction – fresh evidence – where it cannot be said that the evidence was not available to the applicant in the preparation of his case – where the evidence did not give rise to doubt about the applicant’s guilt – leave to appeal granted – appeal dismissed

Catchwords:

CRIMINAL LAW –– appeal against conviction –– indecent assault of a child under 16 –– appellant convicted of two counts and acquitted of one count ––verdict unreasonable –– whether trial judge misapprehended elements of the offence to be proved ––whether the trial judge afforded the applicant procedural fairness–– whether context evidence properly admitted –– whether an Edwards lie submission was open to the Crown CRIMINAL LAW –– sentence appeal ––question of utility of sentence appeal where full sentence has been served and parole period expired –– where objection taken to registration as a child sex offender

Catchwords:

CRIMINAL LAW — appeal against sentence — sexual offences against child — whether sentencing judge failed to take into account limited criminal history as mitigating factor — whether sentencing judge failed to properly consider prospects of rehabilitation — whether aggregate sentence manifestly excessive — approach to weighing prior good character and limited record — relevance of Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 — assessment of rehabilitation where offender maintains denial — value of comparisons with other sentences — Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Catchwords:

CRIME — appeals — appeal against conviction — indictment containing 12 counts — offences of intimidation, assault, choking and sexual assault — whether the jury’s verdicts in relation to specific counts on the indictment were unreasonable and inconsistent — whether the amendment of one count on the indictment during the trial caused unfair prejudice to the applicant CRIME — appeals — appeal against conviction — admissibility of phone recordings between the applicant and the complainant — where the phone recordings were not objected to by counsel at the trial — where the trial judge was not asked to exclude the phone recordings — where an anti-tendency direction was given by the trial judge CRIME — appeals — appeal against conviction — whether a miscarriage of justice was occasioned by the Crown Prosecutor’s closing address CRIME — appeals — appeal against conviction — offences of aggravated sexual assault — where the applicant was convicted on the principal counts — whether the trial judge erred by leaving to the jury statutory alternative verdicts CRIME — appeals — appeal against sentence — manifest excess — where the sentence imposed was not unreasonable, plainly unjust or outside the range of sentences available to the sentencing judge — where the applicant was self-represented during the appeal hearing — appeal brought out of time — extension granted — leave refused on two grounds — leave granted on five grounds — appeals against conviction and sentence dismissed

Catchwords:

CRIME – appeal – appeal against conviction – aggravated indecent assault – aggravated incite act of indecency – where complainant is the biological daughter of the applicant – where the applicant was convicted of three sexual offences – where the jury could not reach a verdict on remaining nine counts – where the applicant was acquitted of the nine counts at a second trial – unreasonable verdicts – whether it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty – where the complainant was mistaken as to sequence of events CRIME – appeal – appeal against conviction – inconsistent verdicts – whether the verdicts of guilty are inconsistent with the jury’s failure to reach a verdict with respect to the remaining counts in the first trial, and with the applicant’s acquittals at the second trial – obligation of the jury to treat all counts separately – where evidence of the applicant in his electronically recorded interview was not significantly dissimilar to the complainant’s description of incidents CRIME – appeal – appeal against conviction – fresh evidence – whether the evidence of a witness was ‘fresh’ – where it cannot be said that the evidence was not available to the applicant in preparation of his case

Catchwords:

CRIME — appeals — appeal against conviction —inconsistent verdicts — where applicant tried jointly with co-accused — where Crown alleged joint criminal enterprise — whether verdict of not guilty for co-accused inconsistent with guilty verdict for applicant — whether Crown case was “all or nothing” as between both accused — whether trial judge required to direct jury to render same verdict for both accused — no inconsistency — no requirement to give jury direction CRIME — appeals — appeal against sentence — manifest excess — whether comparison between indicative sentences and aggregate sentence reflected a latent misapplication of totality principle — where offences involved multiple victims — where different injuries captured by separate offences — error not established

Catchwords:

CRIMINAL LAW – application for leave to appeal against sentence – massive tax fraud – money laundering – multiple offenders involved in a sophisticated conspiracy – where applicant entered an early plea of guilty – [redacted] – [redacted] – application of parity principle – whether applicant left with justifiable sense of grievance – impact of sentence on family members – where sentencing judge applied law as it existed – where later decision changed approach in commonwealth sentencing – error conceded – re-sentencing – where no lesser sentence warranted CRIMINAL APPEALS – where applicant raised submission on appeal different to submission made on sentence – whether “leave” required to raise different argument on appeal

Catchwords:

CRIME – appeals – appeal against conviction – inconsistent verdicts – logical and reasonable explanation for jury’s verdicts of not guilty – verdicts not inconsistent so as to be unreasonable

Catchwords:

SENTENCING — appeal against sentence — federal offenders — steps to be taken when imposing a sentence of imprisonment — consideration of alternatives to full-time imprisonment — application of factors in s 16A of the Crimes Act 1914 (Cth) — where alternatives were available and subject of argument — where consideration of alternatives not undertaken expressly or by inference — appeal allowed SENTENCING — relevant factors on sentence — moral culpability — discussion of process to be undertaken when applying principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 SENTENCING — re-sentence — intensive correction order — practical difficulties on re-sentence — recognizance release order

Catchwords:

CRIME — appeals — appeal against sentence — related offences dealt with by the District Court under s 166 of the Criminal Procedure Act 1986 (NSW) — whether an offence arises from substantially the same circumstances as those from which the first indictable offence has arisen — no “bright line” — appeal dismissed

Catchwords:

CRIME – appeals – appeal against sentence – Commonwealth and State offences - whether a mathematical error made when considering or applying the totality principle – whether sentence for the State offence is manifestly excessive – leave to appeal granted – resentence

Catchwords:

CRIME — Appeals — Appeal against conviction — Appeals where prior acquittal purportedly controverted by witness evidence at trial — where no objection or direction sought at trial — leave required to rely on matters not objected to at trial EVIDENCE — purported improper admission of evidence — whether evidence was correctly admitted

Catchwords:

CRIMINAL PROCEDURE — intensive correction order for federal offender in NSW – Application of Crimes Act 1914 (Cth) STATUTORY CONSTRUCTION — whether in considering making intensive correction order for federal offender in NSW a court is required to apply s 16A of Crimes Act 1914 (Cth) or s 66 Crimes (Sentencing Procedure) Act 1999 (NSW) SENTENCE — gravity of offending — no lesser sentence warranted

Catchwords:

CRIME – appeals – appeal against sentence – Commonwealth offence of transmitting child abuse material using a carriage service – State offence of possession of child abuse material – whether the sentencing judge erred in the assessment of objective seriousness of offending – whether the applicant’s motivation for the offending increased the objective seriousness – whether the sentencing judge erred by not considering the causative role of the applicant’s mental health in his motivation to offend – whether the sentence imposed is manifestly excessive – leave to appeal granted – appeal dismissed

Catchwords:

CRIMINAL LAW — appeal against conviction — good character evidence — whether trial judge erred in failing to direct jury that applicant’s good character could be used in assessing credibility — whether omission to direct caused miscarriage of trial — offences against young child — appeal dismissed

Catchwords:

SENTENCING — appeal against sentence — delay — whether an extension of time to file Notice of Appeal should be given — subjective considerations on sentence — mental illness — whether submissions concerning the offender’s mental illness were raised before the sentencing judge

Catchwords:

CRIME – Appeals – Appeal against conviction – Appeal out of time – Irregularities in jury deliberations – Where alleged bullying and harassment in jury room – Where unauthorised communications between court and sheriff’s officers and jury – Where sheriff’s officers interviewed juror privately and prepared report on irregularities in jury room without knowledge of parties – Application for discharge of jury refused by trial judge – Whether unauthorised communications with jury were a fundamental or material irregularity amounting to a miscarriage of justice – Whether proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) applies – Whether there was a denial of procedural fairness occasioning miscarriage of justice – Whether practical injustice occasioned

Catchwords:

CRIMINAL LAW – appeals – appeals against sentence – manifest excess – indecent assault of a child – no challenge to the sentencing judge’s findings – where the applicant was on parole for like offending at the time of the offence – where the applicant has extensive record of child sex offences – where the applicant voluntarily takes anti-libidinal medication – where the applicant was abused as a child – where the applicant has shown remorse

Catchwords:

CRIME – meaning of the phrase “mental illness within the civil law of the State or Territory” in s 20BQ of the Crimes Act 1914 (Cth) – whether this is to be determined with reference only to the definition of "mental illness" in s 4 of the Mental Health Act 2007 (NSW)

Catchwords:

CRIME – appeals – appeals against conviction – extended unanimity directions – conspiracy to commit an act in preparation for, or planning, a terrorist act or acts - whether an extended unanimity direction required as to terrorist act or acts prepared for or planned – preparing for, or planning, a specific terrorist act not an “essential ingredient” of offence of conspiracy to commit an act in preparation for, or planning, a terrorist act or acts – where only issue at trial was whether the applicant was a party to a conspiracy to do acts in preparation for, or planning, a terrorist act or acts which was admitted to exist between other parties – extended unanimity direction as to a particular terrorist act prepared for, or planned, not required in the circumstances CRIME – appeals – appeals against conviction – lies as consciousness of guilt – whether asserted lies were material and explicable only on the basis that the truth would implicate the applicant – whether jury would employ circular reasoning in their consideration of the asserted lies – no risk of the jury employing circular reasoning – in light of other evidence it was open to the jury to conclude the lies were material and explicable only on the basis that the truth would implicate the applicant

Catchwords:

CRIMINAL LAW — appeal — conviction — tendency evidence — whether trial judge misdirected jury on tendency reasoning — whether trial judge erred in directing jury to be satisfied of conduct before inferring tendency — adequacy of directions on onus and standard of proof — whether directions diverted jury from task of determining whether Crown proved each element beyond reasonable doubt CRIMINAL LAW — appeal — sentence — error of fact — whether miscarriage of sentencing discretion — manifest excess — offences against young child within family home — betrayal of trust — escalating sexual abuse — no remorse or insight

Catchwords:

CRIME – appeals – appeals against conviction – miscarriage of justice – manslaughter – second-hand hearsay evidence of an admission – where no objection taken to admissibility – where no direction limiting use sought by defence counsel – whether to grant leave under Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15 – where evidence highly prejudicial to defendant – where no rational forensic explanation for lack of objection – material irregularity – miscarriage of justice established CRIME – appeals – appeals against conviction – application of proviso – defence at trial not glaringly improbable – substantial miscarriage of justice occurred – proviso not engaged

Catchwords:

CRIME — appeals — appeal against conviction — unreasonable verdict — whether jury’s verdicts of guilty for six counts of sexual intercourse without consent were unreasonable and could not be supported having regard to the evidence — where no reasonable doubt as to applicant’s guilt — where it was open to jury to be satisfied that applicant was guilty beyond reasonable doubt of each of the six offences with which he was charged — where leave to appeal granted but appeal dismissed

Catchwords:

CRIME — Appeals — Appeal against conviction — Crimes Act 1900 (NSW), s 66EA —International Covenant on Civil and Political Rights not enacted in domestic law CRIME — Appeals — Appeal against conviction — Standard of proof under s 66EA CRIME — Appeals — Appeal against conviction — Whether applicants suffered forensic disadvantage — Whether police officer failed to properly investigate case — Whether Office of the Director of Public Prosecutions improperly delayed charging applicants — Whether sentencing judge’s findings inconsistent with verdicts of guilty CRIME — Appeals — Appeal against conviction — Irregularity at trial — Where Crown Prosecutor’s disclosure incomplete — Whether irregularity material CRIME — Appeals — Appeal against conviction — Where inappropriate remarks in Crown Prosecutor’s address — Where trial judge refused application to discharge jury — Whether prejudice occasioned by remarks material CRIME — Appeals — Appeals against sentence — Unlawful sexual relationship with child — Six grounds of appeal — Whether the trial judge was required to ask the jury which acts they found proved — Whether trial judge was obligated to sentence the applicants on a basis most favourable to them — Whether trial judge added extra charges — Manifest excess — Applicability of the ICCPR under Australian law — Reliance on events which post-date sentence — Appeal brought out of time — Extension granted — Leave granted on one ground — Appeal dismissed

Catchwords:

CRIME – appeals – appeal against conviction – irregularity in criminal trial – materiality – miscarriage of justice – where criminal record of appellant’s accountant was sought to be tendered but not admitted – no irregularity disclosed – any irregularity was not material – no miscarriage of justice CRIME – appeals – appeal against conviction – materiality – where trial judge upheld an objection to questioning of a Federal Agent which called for speculation – no error disclosed

Catchwords:

CRIME — Appeals — Appeal against sentence — Recklessly inflicting grievous bodily harm — Whether failure to take into account mitigatory factors that offence was not planned and provocation — Whether sentencing judge erred in sentencing applicant for all injuries caused to victim in circumstances where applicant initially acted in lawful self-defence

Catchwords:

SENTENCING—Appeal against sentence—Erroneous incorporation of reduction for past cooperation within utilitarian discount for early plea—Failure to consider contrition—Re-sentencing exercise undertaken—Appeal dismissed

Catchwords:

CRIME – appeals – appeal and application for leave to appeal – notice of appeal filed out of time – where a proposed ground of appeal raises a constitutional issue so as to attract the operation of s 78B of the Judiciary Act 1903 (Cth) – prior to leave being granted to make appeal or application for leave to appeal no “cause pending” – whether appropriate to deal with application for extension of time for appeal before hearing the substantive appeal where s 78B notices would be required – appropriate to hear application for leave to make the appeal out of time before hearing the appeal CRIME – appeals – appeal and application for leave to appeal – notice of appeal filed out of time – release application under s 49 of the Bail Act 2013 (NSW) – proposed conviction and sentence appeal – no “proceedings…pending” before the Court – no jurisdiction to hear application before leave to appeal out of time granted – appropriate to hear application for leave to make the appeal out of time before hearing the release application CRIME – appeals – appeal and application for leave to appeal – notice of appeal filed out of time – where there is satisfactory explanation for delay – where proposed grounds of appeal sufficiently arguable – no relevant prejudice to proposed respondent if leave to appeal granted – where leave to appeal is in the interests of justice – application to make appeal and leave for appeal out of time granted

Catchwords:

CRIMINAL LAW – bail on appeal – relevant considerations – where sentence will not expire for many years – difficulties in evaluating prospects of success on appeal – constitutional challenge to offence creating provision – where some submissions unlikely to succeed – where applicant “model bailee” prior to conviction – whether special or exceptional circumstances established

Catchwords:

APPEALS — Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), r 101(e) — Where barrister called to give evidence by opponent at first instance — Where barrister proposed appearing on leave to appeal applications — Whether r 101(e) applies — Whether barrister should be heard on applications

Catchwords:

CRIME – appeals – appeal against sentence – application of R v Henry guideline judgment – whether subjective factors were relied on in the determination of objective seriousness – finding that applicant did not accept responsibility for harm to victim- whether finding of remorse should have been made – parity where no joint criminal enterprise – manifest excess – where judgment delivered ex tempore – appeal brought out of time – extension granted – ground 1 upheld – no lesser sentence warranted – appeal dismissed

Catchwords:

CRIMES – appeals – admissibility of evidence related to sexual experience – whether exclusion of evidence relating to child’s sexual experience resulted in a miscarriage of justice CRIMES – appeals – leave to appeal – where evidentiary ruling applicant says should have been given was not sought before the trial judge – where leave to appeal required pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) – where decision at trial was an objectively rational decision – leave to appeal refused

Catchwords:

CRIME – appeals – appeal against sentence – driving offences – whether the sentencing judge erred in setting the commencement date of the sentence by failing to give effect to stated intention regarding totality – no question of principle – appeal upheld – applicant re-sentenced

Catchwords:

CRIME – appeals – appeal against sentence – supply large commercial quantity of prohibited drug – manifest excess – comparative cases – appeal dismissed

Catchwords:

CRIMINAL APPEAL – mixed verdicts – applicant alleged to have sexually assaulted his step-daughter on numerous occasions over a number of years at different locations – where jury returned guilty verdicts on the first three counts, not guilty on four later counts and unable to agree on four other counts – whether verdicts factually inconsistent – test of logic and reasonableness – whether verdicts unreasonable or unable to be supported – relevance of jury being unable to agree – fact specific inquiry – where potent evidence in the form of complaint concerning general allegation of sexual misconduct – where such evidence did not relate to a specific count – whether open to the jury to reach guilty verdicts on some counts but not others – evidence of good character and denials – conflict in evidence of opportunity – whether jury ought to have entertained a doubt – advantages of jury in circumstances of the case manifest and substantial CRIMINAL LAW – directions to jury – “Markuleski” direction – where direction focused on reliability rather than truthfulness – where jury not directed that it was difficult to see how different verdicts could be returned on different counts – where no objection taken to direction at trial – where issues clear – while “full” direction preferable counsel satisfied direction sufficient – leave to appeal refused but absence of direction taken into account in considering ground asserting inconsistent verdicts

Catchwords:

CRIME – appeals – appeal against sentence – Commonwealth child abuse material offences – State offences of common assault, sexual touching and possessing child abuse material – whether the sentencing judge erred in his findings as to the degree of deception practiced by the applicant in his offending and his use of insights gained from his teaching career – whether the aggregate sentence in respect of the Commonwealth offences was manifestly excessive – whether the overall effective sentence was manifestly excessive as a result of the asserted errors – leave to appeal granted – appeal dismissed

Catchwords:

CRIME – sentencing – appeal against sentence – manifest excess – manslaughter – fight between two young persons where applicant brought a knife – unlawful and dangerous act – appeal dismissed