Recent decisions for Court of Criminal Appeal

Catchwords:

CRIMINAL – conviction appeal – juror with legal training – whether jurisdictional error – denial of jurisdiction – section 53B of the Jury Act – discretion to discharge – trial judge cognisant of discretion   CRIMINAL – appeal against sentence – severity – sexual offences – manifest excess – objective gravity of the offending – indicative sentences – whether amenable to appeal – structure of sentence – subjective factors of age and health – not manifestly excessive   EVIDENCE – fresh evidence – new evidence – circumstances COVID-19 for persons

Catchwords:

CRIMINAL LAW – sentence appeal – causing grievous bodily harm with an intent to cause grievous bodily harm – applicant responded to punch by stabbing victim – serious injuries suffered by victim – whether error in assessment of objective seriousness of offending – whether principle of general deterrence properly applied – whether fact that offence committed while applicant at conditional liberty was a matter of aggravation – whether sentence was manifestly excessive – appeal dismissed.

Catchwords:

CRIME — Appeals — Appeal against conviction — Unreasonable verdict – Judge alone – Whether verdict unreasonable or insupportable having regard to evidence – Whether appellant the principal offender – Trial judge ought to have had a reasonable doubt CRIME — Complicity — Joint criminal enterprise – Appellant’s conviction not vitiated due to participation in joint criminal enterprise – Reduction in objective seriousness of offending where appellant is convicted on the basis of joint criminal enterprise rather than being the principal offender CRIME — Property offences — Break, enter and commit serious indictable offence — Circumstances of special aggravation – Statutory interpretation – Whether intent to wound required to satisfy circumstance of special aggravation where not expressly required by statute at the time of the relevant offence

Catchwords:

CRIMINAL LAW – application for leave to appeal against sentence – sexual offences committed by the applicant upon his 10 year old half-sister – aggregate sentence – finding of special circumstances but a minimal departure from statutory proportion – no explanation – error found – applicant resentenced

Catchwords:

CRIMINAL LAW – appeal against conviction – sexual offences – indecent assault and sexual intercourse without consent – where complainant adult niece of applicant – whether consent given – sole ground of appeal whether verdict unreasonable – appeal dismissed

Catchwords:

CRIMINAL LAW – Appeal and new trial – appeal against acquittal – where defence of mental illness raised and successful – jurisdiction of court – where statute confers right to appeal against conviction – where no conviction by reason of mental illness – court has no jurisdiction – Criminal Appeal Act 1912, s 5.

Catchwords:

CRIMINAL LAW – appeal against conviction – indictment containing multiple counts of sexual offences with respect to one complainant – verdicts of guilty returned on seven counts and verdicts of not guilty on three counts – significance of acquittals when considering reasonableness of guilty verdicts – significance of jury’s rejection of complainant’s evidence on one count on the assessment of reliability in respect of other counts – whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty – whether verdicts unreasonable – whether rational basis existed for the difference in the verdicts returned

Catchwords:

CRIME – appeals – appeal against sentence – using offensive instrument with intent – reckless wounding – reference to R v Way – whether sentencing principles applied erroneously – applicant’s moral culpability – Bugmy factors – notional accumulation – whether failure to provide adequate reasons

Catchwords:

CRIME – appeals – appeal against sentence – manifest inadequacy – whether 3 years imprisonment served by way of intensive correction order was manifestly inadequate – sentence did not reflect overall gravity of offending and importance of general deterrence and accountability – manifestly inadequate – resentenced CRIME – federal offences – attempted exportation of regulated native specimens – importation and attempted importation of regulated live specimens – possession of non-native CITES-regulated specimens – dealing with proceeds of crime

Catchwords:

CRIMINAL LAW – Sentence – Appeal – Sexual intercourse with child under 10 – Where applicant was the father of the victim who was 9 months old – Whether sentencing judge erred in weighing applicant’s breach of trust – Necessity for parity principle – Whether applicant had a justifiable sense of grievance in light of sentence imposed on a co-offender – Where sentencing judge properly took into account similarities and differences in the cases of the applicant and the co-offender – No unjustified disparity in the sentences imposed – Sentence not manifestly excessive – Appeal dismissed   WORDS AND PHRASES – “breach of trust” – “under the authority”

Catchwords:

CRIMINAL LAW – appeal against sentence –comparison between roles of co-offenders – whether error in assessment of objective seriousness – whether due consideration of specific deterrence – whether sentence manifestly excessive

Catchwords:

APPEAL - sentence - applicant pleaded guilty to child pornography and grooming offences - offences of using carriage service to solicit child pornography material contrary to s.474.19(1)(a)(iv) Criminal Code (Cth) (two offences), using carriage service to groom a person under 16 years for sexual activity contrary to s.474.27(1) Criminal Code (Cth) (one offence) and possession of child abuse material contrary to s.91H(2) Crimes Act 1900 (NSW) (one offence) - offence of using carriage service to menace, harass or cause offence contrary to s.474.17(1) Criminal Code (Cth) taken into account on sentence under s.16BA Crimes Act 1914 (Cth) - 18-year old applicant committing offences against young victims - objective gravity of offences - finding by sentencing judge that applicant’s mental condition and immaturity reduced moral culpability with less weight to be given to specific deterrence and general deterrence - fulltime custodial sentence imposed with applicant to be released on recognizance release order after 15 months - alleged failure to consider whether alternative to fulltime imprisonment was available for Commonwealth offences - error not demonstrated - alleged failure to give any weight to utilitarian value of guilty pleas for Commonwealth offences - error not demonstrated - alleged erroneous reliance upon other sentencing decisions to identify sentencing range in manner which failed to give effect to findings favourable to applicant - error established - other sentencing decisions dissimilar to applicant’s case in significant respects - other sentencing decisions did not identify sentencing range - principles to be applied in use of other sentencing decisions on sentence - resentencing of applicant under s.6(3) Criminal Appeal Act 1912 (NSW) - objective gravity of offences - harm done to child victims of cybersex offences - offences involved real victims and not police officer posing as a child - applicant manipulated, threatened and humiliated victims - troubled and immature 18-year old offender - applicant’s moral culpability reduced and lesser role for specific and general deterrence - fulltime custodial sentence nevertheless appropriate - applicant resentenced to imprisonment to be released after 11 months on recognizance release order

Catchwords:

CRIMINAL LAW – application to extend time for leave to appeal – proposed sentencing appeal – utilitarian value of plea – Xiao error – lack of merits of proposed appeal – length of delay – explanation for delay – application to extend time refused

Catchwords:

APPEAL – sentence – child sex offences – applicant sexually abused his daughter – 17 offences over nine-year period – aggregate sentence of imprisonment of 14 years with a non-parole period of 10 years and six months – conceded error in specification of standard non-parole periods – Court to exercise sentencing discretion to determine whether lesser sentence warranted – objective gravity of offences – victim aged between five and 15 years during period of offending – lesser sentence not warranted – appeal dismissed

Catchwords:

APPEAL – sentence – offences of aggravated kidnapping (causing actual bodily harm), driving whilst disqualified and damaging property – applicant forcibly detained victim in his car after she made a “000” call during an argument – applicant threw victim’s phone out of the car window and broke it – fearful victim leaped from moving car – offence of driving whilst disqualified the next day – whether sentencing Judge erred in not providing reasons as to objective seriousness of each offence – where sentencing Judge delivered ex tempore remarks on sentence – error not established – whether sentencing Judge erred, by taking into account an irrelevant consideration, in finding applicant to not be genuinely remorseful – where applicant’s history of intimate partner violence was an overlapping issue – error not established – whether sentencing Judge erred by failing to take into account a relevant consideration in deciding whether to find special circumstances – where sentencing Judge commenced aggregate sentence on incorrect date – error established – whether sentencing Judge erred in failing to afford the Applicant procedural fairness in whether to find special circumstances – error not established – whether sentencing Judge erred in finding that the driving whilst disqualified offence occurred on the night of the applicant’s other offences – error established – consideration of objective gravity of aggravated kidnapping offence – consideration of factors relevant to sentence for driving whilst disqualified – objective gravity of offence and history of driving whilst disqualified – applicant re-sentenced

Catchwords:

CRIME – Sentence Appeal – application of discount for plea to aggregate sentence and not to indicative sentences – failure to specify non-parole period for each sentence having a Standard Non-Parole Period – manifest excess

Catchwords:

CRIME – appeals – appeal against sentence – whether appropriate adjustment made to non-parole period following finding of special circumstances – discretionary – adjustment as specifically intended – no error   CRIME – appeals – appeal against sentence – aggregate sentence – offences of sexual and physical violence and dishonesty – whether manifestly excessive – indicative sentences not excessive – totality principle properly applied – aggregate sentence not unreasonable or plainly unjust   STATUTORY INTERPRETATION – s 22(1) of Crimes (Sentencing Procedure Act 1999 – imposing a lesser penalty than would otherwise have been imposed for plea of guilty – sentence assessed in summary jurisdiction under Ch 3 Pt 3 Div 7 of Criminal Procedure Act 1986 – jurisdictional limit under s 268 of Criminal Procedure Act – whether starting point before discount may exceed jurisdictional limit

Catchwords:

APPEAL – where charges found to be duplicitous – where leave sought to amend charges to nominate particular working days as separate counts of breach   APPEAL – whether failure to take into account relevant consideration – whether denial of procedural fairness   ENVIRONMENT AND PLANNING – consent – where alleged breach of terms of development consent

Catchwords:

CRIMINAL LAW – Appeal against conviction – where evidence of de facto relationship between prosecution witness and applicant – where prosecution witness completes evidence before the jury without being made aware of a right to object under s 18 of the Evidence Act – where judge raises s 18 the next day and recalls the witness – voir dire conducted – where witness says she would have objected if informed of the right to object – where judge determines the evidence was admissible – procedural unfairness to the witness – whether error could be corrected retrospectively – whether judge made the witness aware of the effect of s 18 on the voir dire – application of proviso – whether substantial miscarriage of justice by wrongful admission of evidence – forensic choice of counsel – whether different result would have been reached if s 18 raised when witness gave evidence before the jury – no procedural unfairness to applicant – whether Court of Criminal Appeal satisfied that the guilt of the applicant had been proved to the criminal standard.   SENTENCING – whether sentence manifestly excessive – no challenge to assessment of objective seriousness of offences or to the applicant’s subjective case.

Catchwords:

CRIME – Sentence – application for leave to appeal against asserted excessiveness of sentence – possession of counterfeit money – utility of sentencing statistics based on small sample – utility of decided cases in determining whether sentence is manifestly excessive

Catchwords:

CRIME – Appeals – Appeal against sentence – By Crown against inadequacy – Whether sentence manifestly inadequate – Residual discretion   CRIME – Drug offences – Aiding and abetting commission of an offence by another person, namely importing border controlled drug – Commercial quantity of methamphetamine – 166 kilograms of pure methamphetamine – Respondent a “facilitator” who used inside knowledge of DHL Global Forwarding Ltd operations

Catchwords:

ENVIRONMENT AND PLANNING — Offences — Prosecutions — whether commencement of criminal proceedings time barred   LIMITATION OF ACTIONS — Operation of bar — National Parks and Wildlife Act 1974 (NSW) s 190(1) — whether distinct limitation periods can be relied on in the alternative — whether prosecutor must elect which limitation period is relied on

Catchwords:

CRIMINAL LAW – appeal against sentence – applicant re-sentenced to aggregate sentence of imprisonment to be served by way of intensive correction order – where terms of orders required correction – variation of orders – Criminal Appeal Rules(NSW) r 50C(3) – orders varied

Catchwords:

CRIMINAL LAW – appeal – appeal against sentence – utilitarian value of plea – reasons for delay – principles of totality – aggregate sentences – principles in Parente – community safety – objective factors – general deterrence – parity – manifest excess – resentencing – orders

Catchwords:

APPEAL – sentence – offences of aggravated dangerous driving causing grievous bodily harm and driving dangerously during a police pursuit – applicant’s vehicle in near collision with police vehicle – police pursued applicant’s vehicle over 8.1 kilometres on north coast country road – applicant drove up to 139 kilometres per hour with a blood alcohol content between 0.155 and 0.180 grammes per 100 millilitres of blood – applicant’s vehicle spun out of control and collided with tree – passenger in applicant’s vehicle ejected 39.5 metres away and suffered substantial injuries – aggregate sentence of imprisonment for four years and three months with non-parole period of two years and three months – whether aggregate sentence was manifestly excessive – where sentencing Judge had regard to the guideline judgment in R v Whyte – where there were two statutory aggravating factors under s.52A(7) Crimes Act 1900 of driving with prescribed concentration of alcohol and driving at a speed which exceeded the speed limit by 45 kph – substantial objective gravity of offences – where sentencing Judge had proper regard to the Applicant’s strong subjective case – aggregate sentence not manifestly excessive – appeal dismissed

Catchwords:

CRIME – appeals – appeal against sentence – unorthodox procedural history – where s 68 of the Crimes (Sentencing Procedure) Act 1999 (NSW) originally precluded the making of an intensive correction order (ICO) – Form 1 “withdrawn” – ICO ultimately imposed –whether judge erred in failing to find good prospects of rehabilitation and unlikelihood of reoffending – whether error made in assessment of the objective gravity of offences – whether sentence featuring ICO was manifestly excessive – analysis of aspects of procedure adopted

Catchwords:

CRIME – Appeals – Appeal against conviction - Miscarriage of justice – Principle of incontrovertibility – Whether evidence challenged acquittal of a non-party – Whether an abuse of process – No application of principle of incontrovertibility.   CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Unreliable witnesses – Facts which required proof beyond reasonable doubt – Verdict of acquittal substituted.

Catchwords:

CRIMINAL LAW – indecent assault of 8 year old grandchild – allegations of kissing on or near vagina – sexual intercourse – cunnilingus – whether trial miscarried by failure of counsel to lead evidence of alibi – new evidence presented on appeal – whether evidence established alibi – where time not of the essence – where indictment specified range of dates – whether miscarriage of justice – whether verdict unreasonable – analysis of evidence – audio visual recordings – whether appellate court should review evidence played to jury – where transcripts referred to gestures – gestures significant in determining whether prosecution proved sexual intercourse – advantages enjoyed by jury – verdicts not unreasonable     CRIMINAL LAW – sentence – hardship to third parties – extra-curial punishment – specific grounds not made out – whether sentence manifestly excessive – exceptional case – applicant’s contributions to community – relevance of good character – elderly offender – medical conditions – leave to re-open – COVID-19 – conditions of incarceration – vulnerability of offender – relevance to sentence – objective criminality – fleeting offence – applicant stopped when asked – sentence excessive – applicant re-sentenced

Catchwords:

CRIME – evidence from multiple complainants of sexual offences – trial judge ruled evidence admissible but not cross-admissible for tendency purposes – whether an anti-tendency direction was required – whether trial miscarried as a result of the direction not being given – relevance of the conduct of defence counsel – r 4 Criminal Appeal Rules CRIME – character evidence – whether trial miscarried as a result of the admission and use of bad character evidence – evidence led by or with the concurrence of defence counsel – legitimate forensic decisions – r 4 Criminal Appeal Rules   CRIME – appeals – appeal against conviction – unreasonable verdict – trial turned on the jury’s assessment of the credit of the principal witnesses – open to the jury to be satisfied of guilt beyond reasonable doubt

Catchwords:

CRIMINAL LAW - Criminal Appeal Act s SF - Appeal against interlocutory judgment or order Kidnapping - Application for permanent stay of proceedings - Whether evidence was capable of constituting the elements of the offence of kidnapping - Detain for advantage – Whether victim was 'detained' - Whether necessary for victim to be aware that he or she is detained - Victim was unconscious - Whether victim's liberty was restrained - 'Detained' includes causing a person to remain where he or she is - Offence capable of being committed where victim is denied the assistance of other persons or where accused prevents other persons from rendering assistance -Whether offence proved on the facts a matter for jury

Catchwords:

CRIME – Appeals – Appeal against sentence – Whether unnecessary to make a finding of special circumstances – Manifest excess – Whether aggregate sentence imposed was unreasonable or plainly unjust – Gravity of offending

Catchwords:

CRIMINAL LAW — particular offences — drug offences — supply prohibited drug — indictable quantity — traffickable quantity — possession of prohibited drug SENTENCING — appeal against sentence — severity — whether sentence manifestly excessive — whether sentencing judge erred by failing to take into account a legislative amendment that allowed the offence to be dealt with summarily — grounds not made out SENTENCING — relevant factors on sentence — multiple offences — totality — whether sentencing judge erred by failing to properly apply the totality principle — ground not made out

Catchwords:

CRIMINAL LAW – sentence appeal – exposing children to drug manufacturing process – applicant rented basement to manufacturer – family lived upstairs – possession of firearms – whether sentencing judge erred in finding drug offence affected objective seriousness of firearms offences – where applicant played no role in drug manufacture – objective seriousness of firearms offence – relevant considerations – applicant re-sentenced

Catchwords:

CRIMINAL LAW – appeal against conviction – child sexual assault offences - appellant convicted of one count and acquitted of two counts – whether verdicts inconsistent – whether Markuleski direction should have been given in conjunction with a Black direction – whether conviction unreasonable and not supported by the evidence   CRIMINAL LAW – sentence appeal – sexual intercourse with child under 10 years - Crown appeal against asserted inadequacy of sentence – community based sentence imposed – importance of statutory guideposts – principles to be applied in sentencing for a s 66A Crimes Act offence – non-custodial sentence manifestly inadequate – question of re-sentence – discretion not to intervene – relevance of respondent’s advanced age and respiratory ill-health – COVID-19 pandemic – discretion exercised

Catchwords:

Criminal Law - sentencing - aggravated robbery - whether sentence manifestly excessive

Catchwords:

CRIMINAL LAW – interlocutory appeal from refusal to adjourn or stay trial – accused said to be effectively unrepresented through no fault of his own – accused’s barrister returned brief close to trial – prosecution case involved overseas witness in custody – principles in Dietrich – necessary for counsel to run trial – adjournment or stay required – leave granted – appeal allowed.

Catchwords:

CRIMINAL LAW – procedure – judgment on appeal – application to set aside or vary orders – jurisdiction to reconsider appeal – principle of finality – entry of orders – claim that two grounds not addressed in judgment – leave granted – Criminal Appeal Rules, r 50C   CRIMINAL LAW – appeal against conviction – charges of (i) conspiracy to import firearm parts, (ii) conspiracy to possess firearm parts and (iii) knowingly taking part in the sale of a pistol to another person on three or more occasions in a 12 month period – whether charge (ii) should have been stayed – whether charge (iii) an aggravated form of charge (ii) – whether charge (ii) a necessary part of charge (i) – whether extended definition of sale should have been left to jury

Catchwords:

CRIMINAL LAW – appeal against conviction – importation of firearms in parts – conspiracy to possess pistol – knowingly take part in the sale of a pistol on three or more occasions – directions with respect to the meaning of ‘firearm’ and ‘possession’ – whether multiple conspiracies   CRIMINAL LAW – appeal against conviction – whether convictions for possession and sale based on same conduct – conspiracy to possess and possession for purposes of sale differentiated – directions as to the meaning of ‘sale’ – objection not raised by counsel at trial – prejudice   CRIMINAL LAW – appeal against sentence – appellant sentenced for federal and State offences – whether scope of conspiracy accurately assessed – whether offender’s subjective case adequately taken into account – whether manifestly excessive

Catchwords:

CRIMINAL LAW – Application for leave to appeal against interlocutory order – Order protecting identity of ASIO witnesses – Application heard after their evidence given – Leave to appeal refused.

Catchwords:

CRIMINAL LAW - appeal - leave to appeal against conviction - accessory after the fact - assault with intent to rob with an offensive weapon - failure to direct jury as to possible defence of claim of right - motive to lie - R4 Criminal Appeal Rules - no miscarriage of justice

Catchwords:

CRIME – Terrorism offences – Conspiracy to do acts in preparation for a terrorist act or acts   CRIME – Appeals – Appeal against sentence – Sentencing judge erred by failing to take into account the utilitarian value of the applicant’s plea of guilty – Resentence   SENTENCING – Relevant factors on sentence – Terrorism offences – Mitigating factors – Prospect of rehabilitation – Subjective factors –Youth of offender

Catchwords:

CRIME – appeals – appeal against conviction – allegedly inconsistent verdicts – whether there was a rational basis for the jury to acquit on three counts but convict on a fourth   CRIME – appeals – appeal against conviction – alleged miscarriage of justice due to failure to give a Markulski direction – whether case properly characterised as a word against word case involving multiple counts resting on the evidence of a single Crown witness – consideration of the principle for which Markuleski stands   CRIME – appeals – application of rule 4 of the Criminal Appeal Rules – admissibility of evidence from trial defence counsel

Catchwords:

CRIME – APPEALS – appeal against severity of sentence – reckless wounding in company – whether sentencing judge erred in assessment of objective seriousness – whether sentencing judge erred in finding the offence of reckless wounding was aggravated by planning – whether sentences manifestly excessive – appeal dismissed   CRIME – APPEALS – appeal against severity of sentence – reckless wounding in company – whether sentencing judge erred in finding that the offence was planned – whether error established in finding offenders shared equal criminal and moral culpability – whether error in assessing objective seriousness – whether error in calculation of the commencement date of sentence – whether sentence manifestly excessive – error in calculation established – commencement date adjusted without consideration of substantive re-sentence

Catchwords:

CRIME — appeals — appeal against sentence — dangerous driving occasioning death — whether sentencing judge erred in application of the guideline judgment — R v Whyte — use of remarks made in course of hearing to attempt to establish error — Crimes Act 1900 (NSW), s 52A   CRIME — appeals — appeal against sentence — manifest excess — whether sentencing judge failed to have regard to applicant's subjective circumstances   CRIME — appeals — appeal against sentence — principle in R v De Simoni — Crimes Act 1900 (NSW), s 52A   CRIME — appeals — appeal against sentence — clerical error in record of sentence entered for offence under Crimes Act 1900 (NSW), s 53 — record corrected

Catchwords:

CRIME — Appeals — Appeal against conviction — Direction about ERISP evidence of co-accused — Unanimous verdict — Whether not guilty is the default position for undecided jury — Appeal against sentence — Manifest Excess — Weight to be given to applicant’s subjective circumstances — Aggravating factors — Relevance of time spent in immigration detention

Catchwords:

CRIMINAL LAW – sentencing – aggravated break enter and steal – stealing a motor vehicle – aggregate sentence – error asserted in assessment of objective gravity of stealing of motor vehicle – whether sentence manifestly excessive

Catchwords:

CRIME – SENTENCE APPEAL – joint criminal enterprise robbery – role in crime – sentencing judge erred in applying Guideline Judgment in Henry without assessing relative youth of offender – error in denying genuine remorse – objective seriousness assessed on an inference inconsistent with Agreed Facts – sentence quashed – offender re-sentenced – parity assessed.

Catchwords:

CRIMINAL LAW – appeal – appeal against sentence – robbery while armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act 1900 – whether sentencing judge erred in approach to fact finding – whether sentencing judge made findings inconsistent with agreed facts based on evidence adduced at co-offender’s trial – whether errors are “material” – whether sentencing judge erroneously applied sentencing principles – whether sentencing judge failed to properly apply Bugmy principles – applicant resentenced afresh – leave granted – appeal allowed

Catchwords:

SENTENCING — Appeal against sentence — Severity — Alleged sentence manifestly excessive — Appeal dismissed   SENTENCING — Appeal against sentence — Offenders engaged in the same criminal enterprise — Alleged disparity between sentences — Distinction in prospects of rehabilitation — Appeal dismissed

Catchwords:

SENTENCING — appeals — appeal against sentence — misapplication of principle — whether sentencing judge failed to assess objective seriousness — whether sentencing judge erred in determining starting point for sequences 6 and 7 — whether sentencing judge erred in failing to give full effect to historical sentencing practices — historical child sexual assault offences — indecent assault — carnal knowledge — construction and application of s 25AA Crimes (Sentencing Procedure) Act 1999 — consideration of interaction between s 25AA and s 6(3) Criminal Appeal Act 1912 — grounds of appeal not made out — appeal dismissed

Catchwords:

APPEAL – criminal – interlocutory appeal – nature of appeal – Evidence Act s 128 – where accused objects to giving evidence – where trial judge refused to grant certificate – jurisdiction – Criminal Appeal Act, s 5F(3) – whether refusal of s 128 certificate an “interlocutory judgment or order given or made in proceedings”   EVIDENCE – Evidence Act s 128 – whether trial judge erroneously refused to grant s 128 certificate – where accused makes tactical decision not to give evidence without certificate – whether accused unfairly hindered in ability to satisfy onus to exclude prejudicial material pursuant to Evidence Act, s 137 – whether accused "objecting" to give evidence – whether accused “compellable” to give evidence

Catchwords:

CRIME – appeals – appeal against conviction – fresh evidence – where neither applicant nor co-conspirator gave evidence at trial – where co-conspirator gave evidence at sentence that he only claimed to be preparing to carry out a terrorist attack to manipulate applicant into marrying him – whether evidence given by co-conspirator at sentence was fresh evidence – whether fresh evidence gave rise to miscarriage of justice   EVIDENCE – privileges – immunity – immunity in crime for conspiracy between husband and wife – where applicant and co-conspirator were married during timeframe of conspiracy – whether at the time immediately prior to the introduction of the Criminal Code Act 1995 (Cth) the common law of Australia recognised an immunity from prosecution for conspiracy for a husband and wife – whether the Criminal Code, s 11.5, inconsistent with any common law immunity

Catchwords:

CRIMINAL LAW – Crown appeal against sentence – attempt to pervert course of justice – offender pleaded guilty to making false statement to police – statement gave alibi to friend being investigated for sexual assault – offender sentenced on agreed facts – whether sentencing judge erred in failing to find that offender instigated idea of a false statement – whether error in assessment of objective seriousness – whether sentencing judge failed to have regard to full extent of offender's criminality – whether sentence manifestly inadequate – appeal dismissed

Catchwords:

CRIME – appeal against sentence – Commonwealth offence – conspiracy to import drugs - failure to take into account the utilitarian value of the plea of guilty – re-sentencing required – parity principle and its application – relative role in conspiracy – sentence below quashed and new sentence imposed.

Catchwords:

CRIMINAL LAW – appeal against conviction – whether miscarriage of justice – whether Crown’s duty of disclosure breached – appellant charged with counts of sexual intercourse with person over 10 and under 14 – appellant’s mobile phone seized pursuant to warrant – Crown brief referred to download of information from mobile phone being available – Crown case statement referred to text message sent by accused to complainant – appellant did not seek access to download – Crown disclosed witness shortly before trial – no objection or application for adjournment – Crown identified witness from downloaded information – whether duty of disclosure extended to fact that Crown had identified witness from downloaded information – nature of duty of disclosure considered – whether verdicts otherwise unreasonable – appeal dismissed

Catchwords:

APPEAL - sentence - importing commercial quantity of a border controlled drug (methamphetamine) - applicant sentenced in 2015 - sentencing Judge did not have regard to utilitarian value of plea of guilty - Xiao v R error established - consideration of factors relevant to utilitarian value of plea - discount allowed - applicant with stronger subjective case on sentence in 2020 - lesser sentence warranted - applicant resentenced

Catchwords:

CRIME – sentencing – mitigating factors – sexual intercourse without consent – community correction order imposed – offender’s self-induced intoxication taken into account in mitigation – error conceded – Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(5AA)   CRIME – sentencing – aggravating factors –whether offender in a position of trust or authority in relation to the victim – victim was niece of offender and heavily intoxicated – Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(k)   CRIME – sentence appeal – appeal against inadequacy by Director of Public Prosecutions – error conceded – whether custodial sentence required –– discretion not to re-sentence

Catchwords:

CRIMINAL LAW – sentencing – drug offences – supplying large commercial quantity of gamma-butyrolactone – GBL – drug imported from China – whether Judge erred in assessment of objective criminality – whether sentence manifestly excessive – whether error in failing to apply Victorian authority relating to importation of the same drug ­– authority described GBL as “low reward drug” – where Judge referred to “modest profit” received or expected – relevant matter was taken into account – no error in approach

Catchwords:

CRIME — Appeals — Interlocutory appeal — By accused against interlocutory judgment or order — trial judge refused to discharge jury although applicant’s trial counsel had withdrawn – error established – importance of counsel to fair trial

Catchwords:

CRIME – appeals – appeal against conviction – offence of indecent assault contrary to s 61L of the Crimes Act 1900 (NSW) – offence of sexual assault without consent contrary to s 61I of the Crimes Act 1900 (NSW) – whether unreasonable verdict having regard to the evidence – whether complainant’s evidence implausible – whether complainant’s evidence contradicted by other evidence – whether complainant’s memories reliable – complainant’s evidence found to be reliable – jury’s verdicts reasonable – leave to appeal granted – appeal dismissed   CRIME – appeals – appeal against conviction – offence of indecent assault contrary to s 61L of the Crimes Act 1900 (NSW) – offence of sexual assault without consent contrary to s 61I of the Crimes Act 1900 (NSW) – whether miscarriage of justice – whether onus of proof was reversed – whether applicant’s bad character was implied – matters not raised with trial judge – matters dealt with in applicant’s address to the jury – leave to appeal not granted

Catchwords:

CRIMINAL LAW – appeal against sentence – child sexual assault – offender suffered from serious mental illnesses – sentencing judge failed to reduce role of general deterrence despite joint submission from Crown and defence – sentencing judge found aggravating factor of substantial harm – whether victim impact statement sufficient to establish substantial harm over and above harm inherent in offence – appeal allowed and offender resentenced

Catchwords:

CRIME — drug offences — Commonwealth offences — import border controlled precursor — pseudoephedrine   SENTENCING — appeal against sentence — sentence contrary to law — whether sentencing judge mistook facts by finding the applicant imported a larger amount of precursor — ground made out — applicant resentenced SENTENCING — relevant factors on sentence — factual basis for sentence — amount of precursor drug imported — finding inconsistent with agreed facts on sentence

Catchwords:

APPEAL – sentence appeal – where Form 1 offences taken into account contrary to legislative requirements – re-sentence – where offences objectively serious – where genuine remorse demonstrated – where good albeit guarded prospects of rehabilitation – where assistance does not entitle applicant to discount – where lesser aggregate sentence not warranted

Catchwords:

EVIDENCE – client legal privilege – claims for legal professional privilege by prosecuting and investigative bodies – relationship between the CDPP and persons within her office – whether relationship is sufficiently “independent” for privilege to exist over communications – Held: privilege claim upheld   CRIMINAL LAW – whether privilege lost under s 125(1) of Evidence Act – whether disclosure of examinations conducted under s 264 of Income Tax Assessment Act 1936 (Cth) to AFP and CDPP unlawful – whether within exception for performance of officer’s duties - s 16(2A) of Income Tax Assessment Act 1936 (Cth) – whether s 3E of Taxation Administration Act 1953 (Cth) limits operation of s 16(2A) – whether arguable construction of statute raises a “fact in issue” in the substantive proceedings within meaning of s 125(1) of Evidence Act – whether communications in “furtherance” of offence – Held: disclosures authorised by s 16(2A)   EVIDENCE – client legal privilege – whether continuation of prosecution and opposition to accused’s motion to stay proceeding is inconsistent with the maintenance of privilege in documents that fall within the prosecutorial duty of disclosure – whether results in an imputed waiver of privilege – relationship between the prosecutorial duty of disclosure and waiver or privilege – Held: no waiver of privilege – R v Bunting (2002) 84 SASR 278 not followed

Catchwords:

CRIMINAL APPEAL – prosecution appeal against sentence – home invasion – specially aggravated break and enter – attempted robbery of drug dealer – gun-fight in suburban street – very grave offence – manifest inadequacy – whether error in assessment of objective criminality – where trial Judge makes global finding in relation to co-offenders – failure to make clear finding in respondent’s case – whether Judge erred in assessment of respondent’s role – sheep who was led – where respondent concedes sentence manifestly inadequate – powerful subjective case – deprivation and dysfunctional family life – whether concession should be accepted – residual discretion

Catchwords:

SENTENCING — Appeal against sentence — Severity — whether sentence manifestly excessive   SENTENCING — Appeal against sentence — Failure to take into account a relevant consideration — whether sentencing judge failed to consider applicant’s youth — whether sentencing judge failed to consider that police initiated the offending   CRIME — Appeals — Appeal against sentence — Re-sentence

Catchwords:

CRIME — appeals — appeal against sentence – sexual offences by grandfather against two granddaughters –whether sentencing judge took into account applicant’s medical condition - whether sentencing judge provided adequate reasons – whether sentence was manifestly excessive - aggravating factors – abuse of position of trust or authority in relation to victim - where being “under authority” was an element of some but not all of offences - vulnerability of victim - where aggravating factors may have been double counted – no lesser sentence warranted

Catchwords:

CRIME – appeals – appeal against sentence – manifest excess – fraud found in upper end of mid-range objective seriousness – eight years of maximum ten is excessive starting point – no room left for offences above mid-range but below worst case – re-sentenced with six year starting point

Catchwords:

CRIMINAL LAW - appeal against sentence - five offences involving violence committed in a short period following sustained drinking - one count of intimidation intending to cause fear or physical or mental harm, two counts of reckless wounding, one count of common assault, one count of destroy or damage property - two men wounded, two women fearful for their safety, one woman assaulted by drink poured on her - aggregate sentence of 4 years with non-parole period of 2 years 8 months after 25% reduction for guilty plea - supplementary submissions made after decision reserved and without leave - propriety of making such submissions - whether sentencing judge erred in failing to consider that the injuries to the men amounted to “woundings in technical sense” - whether error in failing to consider medical reports, in circumstances where sentencing judge was not directed to those reports - whether unreasonable weight given to photographs of injuries to men - nature of care involved in use of photographic evidence - whether error in assessment of objective seriousness - relevance of fact that the charges could have proceeded summarily - submissions and evidence adduced which departed from agreed facts - significance of agreed facts - whether submissions based on “provocation” misunderstood by sentencing judge - whether character references unreasonably devalued by sentencing judge - significance of psychologist’s report purporting to diagnose psychiatric conditions - whether sentence manifestly excessive - significance and purpose of aggregate sentence - role of totality when offending was single course of conduct - appeal allowed and applicant resentenced

Catchwords:

CRIMINAL LAW – application for variation of commencement of sentence – where earlier unrelated sentence quashed – whether application for leave to appeal against sentence or application under s 59 – considerable confusion – where no ground impeaching reasons of sentencing judge – nature of appeal – jurisdiction – where extensive delay – whether criminal appeal rules provide a time limit for bringing application – discretionary considerations – where further sentences and parole orders made during period of delay – uncertainty around release dates if application was made earlier – whether egg can be unscrambled – where no evidence of matters relevant to the exercise of discretion – where applicant at large on parole order – rendering nugatory decisions of Parole Authority – application refused in exercise of discretion

Catchwords:

CRIME – appeal against sentence – co-offenders – disparity between sentences – disparity justified once regard had to different objective and subjective circumstances – no legitimate sense of grievance – appeal dismissed

Catchwords:

CRIME – appeals – appeal against conviction – unsafe and unreasonable verdict having regard to the evidence – attempted armed robbery – offender turned himself in and confessed in ERISP, was bailed, then failed to appear – applicant arrested over twenty years later when all evidence except for partial ERISP lost or destroyed – applicant denied he was the person in ERISP – whether open to the jury to be satisfied beyond reasonable doubt that the applicant was that person – circumstantial evidence – inference of identity – appeal dismissed

Catchwords:

CRIME — Sexual offences — alleged incompetence of trial counsel in failing to dispute geographical jurisdictional nexus with New South Wales in respect of one count on the indictment — whether there was a rational explanation for counsel’s approach — where dispute as to nexus on that count may have enhanced the complainant’s credibility on another count on the indictment   CRIME — Appeals — Appeal against conviction — Unreasonable verdict

Catchwords:

CRIMINAL LAW – appeal against sentence – importing a commercial quantity of a border controlled drug – utilitarian value of plea of guilty for Commonwealth offence – “Xiao error” established – mitigatory duress - lesser sentence warranted – applicant resentenced

Catchwords:

CRIME – appeals – appeal against sentence – reduction for plea of guilty not explicitly mentioned in reasons – no error because plea and discount clearly taken into account   CRIME – appeals – appeal against sentence – no special circumstances – applicant already on reintegration home detention – extended supervision not called for because low risk of reoffending   CRIME – appeals - appeal against sentence – manifest excess – three year sentence for cultivation by enhanced means of commercial quantity of cannabis plants not unreasonable or plainly unjust

Catchwords:

CRIMINAL LAW – appeal against sentence – domestic violence – intentionally or recklessly damaging a building by fire contrary – breach of apprehended violence order – two grounds of appeal – whether judicial notice of certain facts impermissible – examples of facts that can be judicially noticed – use of photographs – evidence – whether finding was open

Catchwords:

APPEAL – referral to Court of Criminal Appeal under s.79(1)(b) Crimes (Appeal and Review) Act 2001 - offences of aiding and abetting importations of commercial quantities of cocaine and methamphetamine and a marketable quantity of heroin – appellant sentenced in 2013 - sentencing Judge excluded utilitarian value of appellant’s pleas of guilty from consideration in calculating discount consistent with the law prior to Xiao v R – Xiao v R error established - consideration of factors relevant to utilitarian value of guilty pleas - guidance provided by the principles in R v Borkowski - appellant with stronger subjective case on resentence in 2020 - finding that appellant now had good prospects of rehabilitation and a low risk of reoffending - lesser sentences warranted – applicant resentenced

Catchwords:

CRIME – application for leave to appeal against sentence – drug importation offences – whether applicant provided assistance to authorities – offender provided information including name, description, and location of recruiter to authorities in post-arrest interview – finding at sentence that information was of no real assistance to authorities – post-sentence police interview with German authorities – initial information provided by offender confirmed to be true and correct – further information provided by offender of “great value” to German prosecution of recruiter – whether evidence of post-sentencing events is admissible – principle that post-sentence events can be taken into account where significance of facts not appreciated until after sentence – applicant entitled to reduction of sentence for co-operation with authorities pursuant to s 16A(2)(h) Crimes Act 1914 (Cth)

Catchwords:

CRIMINAL LAW – subpoena – application to set aside subpoena – application refused in District Court – whether documents caught by subpoena a “report” under child care legislation – where subpoena did not call for report on its face – purpose of legislation – legislation prescriptive – where complainant in historical sexual assault case makes allegation to Family and Community Services – where existence of FACS complaint disclosed to accused in criminal proceedings – where no details of date or substance of complaint disclosed – accused issues subpoena – fairness to the accused – where primary Judge protects confidential information by ordering redaction of documents – where orders accord with purpose of legislation – where accused unaware of contents of document – hypotheticals – prohibition on production of “extract” of report – prohibition on evidence of “any of its contents” – subpoena set aside

Catchwords:

CRIME – appeal – conviction – two counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW) – whether trial judge’s summing up caused a miscarriage of justice – whether summing up unbalanced or unfair

Catchwords:

CRIMINAL LAW – Appeal – Practice and Procedure – Amendment of indictment – Where appellant was charged with 7 counts of fraudulent misappropriation of money paid to him on particular terms – Where some counts in the indictment originally presented alleged that the money had been received by the appellant from a superannuation fund – Where trial judge allowed the Crown to amend those counts by substituting the name of an individual for the name of the superannuation fund – Whether trial judge erred in doing so – Whether the appellant was unfairly prejudiced by the amendment   CRIMINAL LAW – Appeal – Statutory Construction - Where appellant was charged with 7 counts of fraudulent misappropriation of money paid to him on particular terms – Where the counts in the indictment alleged in each case that the money the subject of the misappropriation had been received by the appellant on terms which required him to pay it towards “seed capital” in house and land packages in Queensland – Whether a charge pleaded in those terms disclosed an offence known to the law – Whether it was an element of the offence that the Crown prove that the money was received on terms requiring to be paid to a particular person   CRIMINAL LAW – Appeal – Where appellant was charged with 7 counts of fraudulent misappropriation of money paid to him on particular terms – Where the Crown relied upon evidence of individual investors in support of each count – Where the Crown also relied upon documentary evidence to support the various counts - Whether a so-called “Murray” direction was required in those circumstances   CRIMINAL LAW – Appeal – Where appellant was charged with 7 counts of fraudulent misappropriation of money paid to him on particular terms – Where Crown did not rely upon tendency evidence and had not served any tendency notice – Where a tendency evidence direction was nevertheless sought by counsel for the accused – No direction given - Whether error on the part of the trial judge in failing to give such direction   CRIMINAL LAW – Appeal – Summing-up by trial judge - Where appellant was charged with 7 counts of fraudulent misappropriation of money paid to him on particular terms – Where appellant asserted a number of errors arising from the summing-up of the trial judge – Where trial counsel sought no further direction at the time of the trial when specifically given an opportunity to do so by the trial judge – Application of rule 4 of the Criminal Appeal Rules – Duty upon trial counsel to deal with issues when they arise at trial – Leave refused   CRIMINAL LAW – Appeal – Where verdicts on particular counts were asserted to be unsafe and unsatisfactory – Open to the jury to be satisfied beyond reasonable doubt that those counts were established   CRIMINAL LAW – Appeal – Sentence – Where delay in charging the appellant and bringing him to trial – Gap of 10 years between offences and trial – Whether delay a mitigating factor – Whether sentencing judge gave appropriate weight to delay - Where the appellant did not give evidence on sentence – Onus upon the appellant to establish the specific asserted effects of delay – Onus not discharged – Asserted error arising from the failure of the sentencing judge to give proper weight to the delay – Where sentencing judge specifically stated that delay had been taken into account – No basis upon which to assert the contrary – Leave to appeal against sentence refused

Catchwords:

APPEAL – sentence appeal – whether failure to consider remorse – where delay between arrest and sentence – whether failure to consider delay – whether error in finding of objective seriousness – where challenge to sentencing discretion – whether sentence manifestly excessive – whether no judge could reasonably have imposed the sentence

Catchwords:

CRIME – appeals – appeal against conviction – multiple grounds of appeal including unreasonable verdict, alleged incompetence of counsel, asserted miscarriages of justice, argued errors in directions and comments to the jury, argued error in admitting tendency evidence, argued error in finding complainant competent witness – appeal dismissed   EVIDENCE – tendency evidence – criminal proceedings – evidence relied on to prove tendency to have a sexual interest in pre teenage girls – whether significant probative value – where part of defence was that the allegedly intentional conduct was innocent or accidental – whether probative value substantially outweighed prejudicial effect – where prejudicial effect ameliorated by directions and omission of certain material from tender – no error in admission of tendency evidence

Catchwords:

CRIMINAL LAW – leave to appeal against sentence – whether sentencing judge incorrectly assessed the role of the applicant – whether sentencing judge failed to have regard to the principle of parity – parity – whether sentencing judge erred in determining objective criminality without taking into account indicia – whether sentencing judge erred by mischaracterising level of responsibility of the applicant’s position as an employee – dishonestly obtain financial advantage by deception – defrauding of employer – role of co-offender in commission of the offence   CRIMINAL PROCEDURE – appeals to the Court of Criminal Appeal – leave to appeal

Catchwords:

CRIMINAL LAW – appeal – appeal against conviction – offence of kidnapping contrary to s 86(3) of the Crimes Act 1900 – offence of breaking, entering and stealing contrary to s 112(1)(a) of the Crimes Act 1990 – whether trial judge erred in allowing Crown to call further witnesses after commencement of final address – whether trial judge erred in failing to redact or limit use that could be made of evidence admitted without objection – witness called following change of position by counsel for accused – leave to appeal granted – appeal dismissed – whether trial judge erred in failing to decide application for discharge of the jury – application not pressed – leave to appeal refused

Catchwords:

APPEAL – application to seek leave to appeal against sentence – offence of assault with intent to rob whilst armed with an offensive weapon – applicant threatened service station attendant with butter knife and demanded money and then asked victim to call police  – whether error in assessment of objective seriousness of the offence – where applicant had a mental illness and his motivation was to be arrested – where sentencing Judge delivered ex tempore remarks on sentence – where no conclusion expressed with regard to objective seriousness and no reference to moral culpability – error established – whether error in failure to consider the role of the applicant’s mental health – error established – whether new evidence of DVD depicting the offence was admissible on appeal in light of Crown concession clarifying ambiguous factual issue - DVD not admitted – lesser sentence warranted –  applicant resentenced

Catchwords:

CRIME — Appeals — Criminal Appeal Rules — application for leave to set aside or vary an order — whether the Court failed to consider a ground of appeal — bound by conduct of counsel   CRIME — Appeals — Criminal Appeal Rules — application for leave to set aside or vary an order — whether error adopted by the Court from Crown submissions is material — leave refused

Catchwords:

CRIMINAL LAW – conviction appeal – judge alone trial – twelve counts of sexual offending against four victims – applicant convicted of seven and acquitted on five counts – victims aged between 5 and 15 – tendency evidence – a single ground of appeal – whether verdicts of guilt were unreasonable having regard to the evidence – applicant’s case that evidence had been concocted – complainants found by judge to be honest – evidence established physical abnormality in applicant – failure of complainants to give evidence of physical abnormality – whether this failure rendered guilty verdicts unreasonable – evidence of three complainants found to be reliable – verdicts of guilt not unreasonable – conviction appeal dismissed.

Catchwords:

CRIME - appeals - appeal against conviction – sexual offences – whether complainant consented – where trial judge did not give good character direction – where no direction sought – whether failure to seek direction was inadvertent or a tactical forensic decision – whether miscarriage of justice

Catchwords:

CRIMINAL LAW – appeal against sentence – parity – appeal on basis that sentencing judge did not have regard to the principle of parity – parity in respect of co-offenders – applicant with greater role in the course of offending than co-offenders – criminal enterprise – sentence for cultivation of commercial quantity of cannabis plants – supply (deemed) of a commercial quantity of cannabis

Catchwords:

CRIME – appeals – appeal against aggregate sentence – manslaughter – use firearm near public place – where sentencing judge found objective seriousness of manslaughter offence “very grave” – whether sentencing judge erred in fact finding on excessive self-defence   CRIME – appeals – appeal against sentence – jury verdict of not guilty of murder but guilty of manslaughter – utilitarian discount – where early offered plea of guilty of manslaughter on grounds of excessive self-defence rejected by prosecutor – where applicant's defence case at trial inconsistent with sentencing judge’s findings as to circumstances of the offending – whether House v The King error in assessment of 10% discount – applicant re-sentenced – 20 % discount allowed for early guilty plea

Catchwords:

CRIMINAL LAW – sentence appeal – ongoing supply of cocaine, dealing with the proceeds of crime – pleas of guilty – in respect of each count further offences taken into account on a Form 1 – one of the offences taken into account not established on the agreed facts – on each count one of the offences taken into account was on the Form 1 referable to the other count

Catchwords:

CRIME – Appeals – Appeal against sentence – Manifest excess – Whether aggregate sentence of 46 years is manifestly excessive – Whether sentence disproportionate to offences committed – Principle of totality – Lack of remorse – Very high criminality.   CRIME - Murder – Kidnapping – Acts of indecency – Form 1 offences – Further 21 offences taken into account when sentenced for murder - Pleas of guilty – Murder and kidnapping most serious crimes.

Catchwords:

CRIMINAL LAW – Sentencing – whether there had been a failure to take into account the utilitarian value of an early guilty plea upon sentencing – whether error as to assessment of objective seriousness of offences.

Catchwords:

CRIMINAL LAW – s 5F appeal – interlocutory judgment or order – whether trial judge erred by failing to correct a plea of guilty entered by counsel on behalf of the accused under the slip rule   JUDGMENTS AND ORDERS – amending, varying and setting aside – correction under slip rule   ADMINISTRATIVE LAW – bias rule – apprehended bias – application of “double might” test

Catchwords:

CRIME – Appeals – Appeal against sentence – application of Bugmy principles where offender now living prosocial life – impact of disadvantaged and dysfunctional background long-lasting and continuing – link between background and poor decision-making consistent with offending   CRIME – Appeals – Appeal against sentence – failure to take into account a relevant consideration – remorse – no explicit submission but concession by prosecutor and strong basis for finding – error established   TRAFFIC LAW AND TRANSPORT – Traffic Law – licensing of drivers – disqualification – effect of imprisonment on licence disqualification

Catchwords:

CRIME – appeal against conviction and sentence – new DNA testing more discriminating than initial testing – whether applicant has lost a chance of acquittal reasonably open to him

Catchwords:

SENTENCING – Appeal against sentence – objective seriousness – aggravating factors – whether sentencing judge failed to distinguish between objective seriousness and aggravating factors – alleged manifest excess   SENTENCING – Appeal against sentence – severity – sentence manifestly excessive – appeal dismissed

Catchwords:

BAIL - application for bail pending determination by High Court of application for special leave to appeal - sentence appeal dismissed by Court of Criminal Appeal - no appeal “pending in High Court” under s.67(1)(d) Bail Act 2013 as no grant of special leave to appeal - bail application dismissed - alternative application for stay - stay refused

Catchwords:

CRIMINAL LAW – appeal – appeal against sentence – application for leave to appeal – attempt to import a commercial quantity of a border controlled drug, contrary to the Criminal Code Act 1995 (Cth) ss 11.1(1) and 307.1(1) – utilitarian value of plea of guilty for Commonwealth offence – Xiao error established – whether applicant to be resentenced – consideration of parity principle to sentence imposed by differently constituted Court of Criminal Appeal – applicant resentenced afresh – leave granted – appeal allowed

Catchwords:

CRIMINAL LAW – appeal - appeal against sentence – offence of having sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 – whether sentencing judge erred in referring to sexual act constituting sexual intercourse “in this country” – whether sentencing judge erred in approach to specific deterrence – whether sentence imposed was manifestly excessive – consideration of sentences imposed for comparable offences – leave granted – appeal dismissed

Catchwords:

CRIME — Appeals — Appeal against conviction — High Court allowed appeal and remitted matter for determination of unreasonable verdict ground on proper construction of s 45(1)(a) of Crimes Act 1900 — appellants abandoned unreasonable verdict ground — New trial ordered

Catchwords:

CRIME – conviction appeal – female genital mutilation – appellants A2 and Magennis convicted of offences of female genital mutilation contrary to Crimes Act s 45(1)(a) – appellant Vaziri convicted of being an accessory to those offences – appeal allowed EVIDENCE – application for leave to adduce new evidence – new expert evidence sought to be adduced by appellants – whether necessary that new evidence is “fresh” evidence – whether new evidence relevant – leave granted to admit new evidence as evidence demonstrating a potential miscarriage of justice CRIME – miscarriage of justice – whether miscarriage of justice on account of new evidence – new undisputed evidence of visibility of tip of clitoral head in both complainants C1 and C2 – demonstrates potential miscarriage of justice STATUTORY INTERPRETATION – Crimes Act s 45(1)(a) – meaning of “otherwise mutilates” STATUTORY INTERPRETATION – Crimes Act s 45(1)(a) – meaning of “clitoris” STATUTORY INTERPRETATION – extrinsic material – whether reference to extrinsic material permissible to determine context and purpose of offence provision STATUTORY INTERPRETATION – extrinsic material – extrinsic material which post-dates enactment of offence provision STATUTORY INTERPRETATION – words and phrases – “otherwise” CRIME – unreasonable verdict – whether open to jury to be satisfied of appellants’ guilt beyond reasonable doubt – where court satisfied that trial miscarried due to fresh evidence – not possible for jury to conclude beyond reasonable doubt that clitoris of either complainant “mutilated” – no basis to order new trial on charges under Crimes Act s 45(1) – verdicts of acquittal CRIME – whether new trial should be ordered on alternate counts – alternate counts of assault occasioning actual bodily harm – no new trial ordered EVIDENCE – opinion evidence – whether evidence of expert “Dr X” admissible – relevance – evidence of Dr X relevant EVIDENCE – opinion evidence – whether evidence of expert “Dr X” admissible – requirements of Evidence Act s 79 – particular opinions of Dr X not derived from specialised knowledge – evidence inadmissible as to those opinions EVIDENCE – opinion evidence – whether evidence of expert “Dr X” admissible – discretionary exclusion – probative value of particular opinions did not outweigh potential prejudicial effect – should have been excluded EVIDENCE – competence – evidence of complainant C2 – where C2 participated in recorded interview at age six – where C2 age nine at time of trial – where C2 has mild intellectual disability – time for determination of competence – whether competence to be determined at time of interview or only at trial EVIDENCE – competence – threshold requirement of competence in Evidence Act s 13(1) EVIDENCE – competence – competence to give sworn evidence – C2 not competent to give sworn evidence EVIDENCE – examination in chief – leave to ask leading questions EVIDENCE – cross-examination – disallowance of leading questions – where trial judge adopted “two-phase approach” – not prejudicial or unfair – C2 remained “available” for cross-examination as required by Criminal Procedure Act s 306U EVIDENCE – exclusion or withdrawal of video evidence in the “interests of justice” – Criminal Procedure Act s 306Y EVIDENCE – unreliability warning to jury – no foundation for unreliability warning EVIDENCE – consciousness of guilt – direction to jury – no error in trial judge’s directions on consciousness of guilt CRIMINAL PROCEDURE – rule 4 of the Criminal Appeal Rules – relevant principles EVIDENCE – coincidence evidence – whether evidence of complainants had “significant probative value” as coincidence evidence – whether trial judge misdirected jury – no error established EVIDENCE – tendency evidence – whether evidence of complainants had “significant probative value” as tendency evidence – whether trial judge misdirected jury – no error established EVIDENCE – relevance – relevance of evidence of community education program on female genital mutilation – evidence not relevant CRIMINAL PROCEDURE – presentation of Crown case – whether closing address of Crown prosecutor led to miscarriage of justice – obligations of Crown in closing address – no miscarriage of justice arising from closing address CRIMINAL PROCEDURE – summing up – whether summing up unbalanced – no error in summing up CRIME – sentencing appeal – appellant Vaziri appeals sentence – parity principle – not necessary to determine

Catchwords:

CRIME – APPEALS – application for leave to appeal against sentence – two counts of supplying a prohibited drug – whether sentencing judge found aggravating factor of personal gain contrary to evidence – whether cumulation of sentences unavailable – whether subjective factors inadequately reflected in sentences of full-time custody – whether sentences manifestly excessive – whether erroneous disparity demonstrated – consideration of effect of erroneously generous backdate – parity ground upheld – applicant resentenced – sentences to be served by way of intensive correction orders

Catchwords:

CRIME — Appeals — Appeal against conviction — Miscarriage of justice – whether primary judge in summing-up failed to balance adequately the defence and Crown cases – primary judge entitled to remind the jury of evidence given in the course of the trial which impacts on the defence or Crown case – primary judge entitled to suggest to the jury that if they accept certain evidence it would be highly supportive of other evidence unfavourable to the defence – whether primary judge undermined the defence case through raising matters of speculative possibility rather than addressing the evidence – no miscarriage of justice shown in light of the summing-up as a whole   CRIME — Appeals — Leave to adduce evidence on appeal — Fresh evidence – whether evidence fresh evidence or new evidence where witness was a co-accused who pleaded guilty and agreed to a statement of facts unfavourable to the appellant which was later recanted – no knowledge of the unfavourable statement of facts at time decision made not to call or to ask the Crown not to call – evidence not fresh evidence as a conscious forensic decision made not to call the witness at the time of the trial   CRIME — Appeals — Appeal against conviction — Unreasonable verdict – whether verdict to convict unreasonable in light of new evidence – whether verdict to convict unreasonable in light of contradictory evidence ventilated at trial – where new evidence is of low probative value and raises significant reliability issues due to intoxication and inconsistency – where all of the relevant discrepancies in the evidence identifying the appellant were put to the jury and capable of resolution – no reasonable doubt raised

Catchwords:

CRIME – bail – release application – show cause requirement s 16B(1)(h) Bail Act 2013 (NSW) –proceeds of crime and dishonesty offences – extensive criminal history – non-compliance with bail and parole obligations – witnesses not credible – connections and resources to assist leaving the country – cause not shown and application refused – charges subsequently reformulated and bail granted in court below

Catchwords:

CRIME — appeals — application for leave to appeal against sentence — offences of bribery of a public official, aid and abet importation of tobacco products knowing of an intent to defraud revenue and dealing in proceeds of crime greater than $100,000 — where applicant formerly employed as a Customs Officer — whether sentencing judge erred by considering fact of applicant's former employment as a Customs Officer as a matter seriously aggravating the offending — whether offending constituted an abuse of trust or authority — whether sentencing judge erroneously dismissed applicant's prior good character as a relevant mitigating factor — whether sentence was manifestly excessive — appeal allowed — resentence

Catchwords:

APPEALS – application for bail – applicant charged with armed robbery offences – applicant on bail at time of offences – show cause offence – reasonably strong Crown case – applicant contended bail necessary for him to care for his mother – applicant’s mother diagnosed with dementia, diabetes and lung disease – applicant with long criminal record and multiple breaches of bail – paucity of evidence as to need for applicant to care for his mother – cause not shown.

Catchwords:

CRIMINAL LAW – appeals – Appeal against convictions – sexual assault – tendency evidence – whether error by judge in directing jury that the criminal standard of proof was required before the jury could use tendency evidence – where trial judge’s direction given before Bauer – multiple complainants – whether criminal standard elevated the tendency evidence to an essential intermediate fact – whether criminal standard gave rise to an unacceptable risk of compromise by the jury – whether tendency evidence was inadmissible – leave to appeal granted – appeal dismissed.

Catchwords:

CRIMINAL LAW – sentence appeal – two episodes of drug supply each involving the supply of different kinds of drugs – whether sentence manifestly excessive – whether parity principle should apply – limitations on use of statistics – sentences not excessive – no application of the parity principle – offending and personal characteristics different for each offender – no justifiable sense of grievance.

Catchwords:

APPEAL – SENTENCE – application for extension of time to seek leave to appeal against sentence – offences of cause grievous bodily harm with intent to murder and wounding with intent to cause grievous bodily harm – offender attacked his wife with a knife and his vehicle and her co-worker with a knife – sentencing Judge imposed aggregate sentences and indicated sentences which would have been imposed for individual offences – whether sentencing Judge erred in the notional accumulation of the indicative sentences – no claim that indicative sentences or aggregate sentence were manifestly excessive – consideration of provisions for aggregate sentencing – claim of error based on misconception concerning aggregate sentencing – ground of appeal rejected – extension of time refused

Catchwords:

CRIME — appeals — appeal against sentence — application for leave to appeal — manifest excess — where sentence comparatively long — appeal dismissed

Catchwords:

CRIMINAL LAW – sentence appeal – murder – long history of domestic violence – whether sentencing judge properly dealt with subjective issues and those going to objective seriousness of the offending – to what extent should the sentencing judge have taken into account previous convictions as a matter of aggravation – was the fact that offender on conditional liberty at time of offence a matter of aggravation – whether sentencing judge properly took into account the offender’s lack of planning – whether sentencing judge properly took into account the offender’s disadvantaged background – whether it was open to the sentencing judge to find that the offender’s intoxication was a matter of aggravation – whether sentencing judge erred in finding that the offender’s offending involved gratuitous cruelty – whether sentence was manifestly excessive – whether “comparative cases” should be taken into account on re-sentence – appeal allowed and offender re-sentenced.

Catchwords:

EVIDENCE — privileges — self-incrimination privilege — consideration of s 89A of the Evidence Act 1995 (NSW) — where accused exercised right to silence during police questioning — where jury directed that an adverse inference from accused’s silence was open — whether s 89A applicable   CRIMINAL PROCEDURE — trial — Browne v Dunn — where accused’s explanation for silence is reliance on legal advice — where explanation unchallenged — whether invitation to draw adverse inference a miscarriage of justice   CRIME — appeals — appeal against conviction —application of proviso — whether substantial miscarriage of justice   CRIMINAL PROCEDURE — trial — cross-examination and summing up —where Crown cross-examination and summing up undermined accused’s evidence of good character — where no remedial direction given — whether miscarriage of justice

Catchwords:

APPEAL – SENTENCE – offender convicted of manslaughter following trial for murder – offender requires an extension of time – offender was party to a joint criminal enterprise – whether sentencing Judge took into consideration a factor which was inconsistent with verdict of the jury – where fair reading of sentencing remarks demonstrated no error – where change in language was a slip – claims of errors in finding aggravating factors in s.21A(3) Crimes (Sentencing Procedure) Act 1999 – whether offence was a “part of a planned or organised criminal activity” – error established – whether offence aggravating because of substantial injury, emotional harm, loss or damage – where finding made by sentencing Judge open in circumstances where family of victim were physically present at time of offence – whether sentencing Judge impermissibly double counted offender’s previous criminal history – no double counting demonstrated – whether offence aggravated because it was committed “in company” – where being in company was an integral component of the offence – error established – interests of justice warranted grant of an extension of time – later sentence imposed for offence of recklessly wounding a law enforcement officer – assault on correctional officer while offender on remand – issue of totality to be considered on resentencing for manslaughter – special circumstances – offender resentenced

Catchwords:

APPEAL – SENTENCE – offender pleaded guilty to a number of sex offences committed over 10 year period against his sister between 1967 and 1977 – unlawful and carnal knowledge of a girl between 10 and 16 contrary to s.71 Crimes Act – incest offence contrary to s.78A Crimes Act – two offences of rape contrary to s.63 Crimes Act – two further offences of indecent assault taken into account on a Form 1 – offences representative of sexual offending against sister over a period of 13 years – whether sentencing Judge erred in assessment of objective seriousness of the rape offences – no error demonstrated in approach taken by sentencing Judge to assessment of objective seriousness – findings of objective seriousness open to the sentencing Judge – whether aggregate sentence imposed was manifestly excessive – where challenges directed to indicative sentences – whether degree of notional accumulation reflected sentencing practices at the time of the offences – where indicative sentences nominated were substantial but not suggestive of error – where sentencing Judge had regard to sentencing principles and practice at time of offending conduct – no error demonstrated in approach taken by sentencing Judge to historical sex offences – aggregate sentence not unreasonable or plainly unjust – appeal dismissed

Catchwords:

CRIME – conviction appeal – whether unreasonable verdicts – sexual and violent acts committed against de facto partner – whether jury’s verdicts of not guilty on ten counts and guilty on three others are inconsistent – logical and reasonable explanations available for verdicts – appeal dismissed

Catchwords:

CRIMINAL LAW – appeals – appeal against sentence – applicant pleaded guilty to two drug supply offences – further offences taken into account on sentence – applicant made nine separate supplies to undercover police operatives – seven of the supplies involved methylamphetamine and two involved inert substances – where the sentencing judge assessed the objective seriousness of the offending collectively – where the parties had made submissions on the objective seriousness of the offending collectively – sentencing judge made reference to the relevant matters in assessing the objective seriousness of the offending – no error shown – whether the sentencing judge erred in fixing the commencement date of the sentence – where the commencement date did not accord with the sentencing judge’s decision to backdate the sentence – error demonstrated – no need to engage in the resentencing exercise

Catchwords:

CRIME – appeals – appeal against conviction – whether substantial miscarriage of justice by reason of appellant being tried jointly with co-accused – whether evidence led in joint trial inadmissible against appellant highly prejudicial

Catchwords:

CRIME – sentence – cultivation of commercial quantity of cannabis plants and supply of methylamphetamine – assessment of objective gravity – whether objective seriousness was “moderate” – prospects of rehabilitation – whether there was evidence to support offender’s “work ethic” claim

Catchwords:

CRIME – sentence – importation of commercial quantity of border controlled drug – assessment of objective gravity – whether primary judge found that objective seriousness of offender’s offence was “right at the utmost upper end of the upper range” – whether manifest excess – appeal dismissed

Catchwords:

CRIME – Terrorism offences – Membership of a terrorist organisation – Member of Partiya Karkerên Kurdistanê (PKK) between 2011 and 2013 – Travelled with military arm, supported in writings, wore uniform and insignia and carried arms – - Sentencing judge found to be towards the lowest order of seriousness - Sentenced to Community Correction Order.   SENTENCING – Relevant factors on sentence – Objective seriousness – Terrorism – Membership of terrorist organisation – Whether appropriate to take into account the merits of the organisation – Merits of the cause is not a relevant factor - Consideration of ideology – Matter for the legislature.   SENTENCING – Relevant factors on sentence – Objective seriousness – Terrorism – Membership of terrorist organisation – History and objectives of organisation relevant – Fact organisation does not advocate nor engage in indiscriminate killing of civilians relevant – Organisation and resources of organisation relevant – Commitment to international humanitarian law not relevant – Classification of conflict not relevant.   SENTENCING – Relevant factors on sentence – Moral culpability – Relevant that joined organisation and maintained membership with full knowledge of objectives and method – Belief in the rightness of the cause not relevant – Reasons for joining organisation due to cruel treatment mitigates culpability.   SENTENCING – Error found – Exercise of residual discretion not to interfere with sentence.

Catchwords:

CRIMINAL LAW – sentence appeal – sexual intercourse without consent contrary to s 61I of the Crimes Act – contravene apprehended domestic violence order on s 166 certificate – guilty pleas – whether sentencing judge erred in assessment of objective seriousness – whether sentencing judge erred in approach to applicant’s intellectual disability – whether sentencing judge erred by failing to give effect to finding of special circumstances – whether sentence is manifestly excessive

Catchwords:

CRIME – environment and planning – appeals – appeal against sentence – inadequacy – whether sentencing judge erred in assessment of seriousness – evidence of state of mind of corporation   CRIME – environment and planning – appeals – appeal against sentence – inadequacy – whether sentencing judge erred in application of De Simoni principle – whether moral culpability a factor   EVIDENCE – exclusion of evidence – whether unfairly prejudicial to accused   SENTENCING – EPA appeal against inadequacy of sentence – where grounds of appeal made out – whether Court should exercise discretion to intervene

Catchwords:

CRIMINAL LAW – Evidence – Admissibility of credibility evidence of an accused – Where the appellant stood trial on charges of sexual assaulting a child in his care – Where the appellant relied substantially upon evidence of his good character as part of his defence – Where evidence of irrelevant matters had been excluded from a recorded interview between the appellant and police – Where such matters were specifically raised by counsel for the appellant in the appellant’s evidence in chief notwithstanding that they had been excluded by agreement – Where Crown then cross-examined the appellant in relation to such matters without a grant of leave and in breach of relevant statutory provisions – Where the Crown’s stated bases for the cross-examination were wholly inconsistent – Crown’s cross-examination entirely impermissible and grossly unfair to the appellant   CRIMINAL LAW – Summing up by trial judge – Where trial judge repeated a materially erroneous statement made by the Crown regarding certain evidence – Erroneous reference by the trial judge to “bad character evidence” – Erroneous directions given by trial judge as to the evidence of the appellant’s good character – Erroneous directions given by the trial judge as to the evidence of complaint   CRIMINAL LAW – Directions to jury during deliberations – Appellant charged with two counts of sexually assaulting a child in his care – Where jury requested in the course of their deliberations that excerpts of the complainant’s recorded evidence in chief be replayed – Excerpts replayed in the absence of the trial judge reminding the jury of either the cross-examination of the complainant or the evidence of the appellant – No direction given to the jury not to give disproportionate weight to the evidence of the complainant which was being heard for a second time – No direction given to the jury reminding them of the necessity to bear in mind the other evidence in the case – No direction given to the jury reminding them of the necessity to consider all of the evidence in the trial – Where the failure on the part of the trial judge to give such directions and warn the jury as to the caution with which they were to approach the re-playing of the complainant’s evidence amounted to a miscarriage of justice   CRIMINAL LAW – Unreasonable verdicts – Appellant charged with two counts of sexual assaulting a child in his care – Where a number of assertions made by the complainant were not consistent with objective evidence – Untruthful answers given by the complainant in an interview with police regarding contact with the appellant and his wife – Inconsistent evidence of complaint – Evidence of the appellant’s prior unblemished character – Verdicts unreasonable – Convictions quashed – Verdicts of acquittal entered

Catchwords:

CRIME – appeals – appeal against sentence – by Crown on ground of manifest inadequacy – manslaughter – respondent received a non-parole period of 18 months with an additional term of 2 years – sentencing judge made finding of special circumstances – sentencing judge described offence as “falling below mid-range” and “towards lower end of range” – finding of objective seriousness did not reflect characteristics of offending – finding of special circumstances not justified – non-parole period did not reflect seriousness of offending – respondent re-sentenced

Catchwords:

CRIMINAL LAW – appeal against sentence – manifest excess – domestic violence offences – whether indicative sentences demonstrated error in aggregate sentence – findings as to offender’s subjective circumstances – cumulative effect of multiple sentences

Catchwords:

CRIMINAL LAW – Application for leave to appeal against sentence – Two offences of violence, including choking into unconsciousness – Self-represented applicant – Whether sentences should have been wholly concurrent – Whether interference warranted on any other basis – Grounds lacking in merit – Application for leave refused

Catchwords:

CRIME – appeal – sentencing – offender agreed to court taking into account three offences of transporting waste to facility that cannot be used as a waste facility when sentencing him for principal offences – statutory Form 1 procedure not utilised – common law principle permitting additional offences admitted by offender to be taken into account in sentencing process – whether common law only authorises an additional offence to be taken into account in respect of a single, identified, charged offence   CRIME – appeal – sentencing – non-parole period – special circumstances – whether sentencing judge erred in not considering matters relied upon in combination – whether hardship to offender’s family may be taken into account – points not taken in court below   CRIME – appeal – whether sentencing miscarried because of incompetence of offender’s counsel – mandatory visa cancellation provisions in Migration Act engaged as a result of sentence – evidence and argument not put before sentencing judge as to mandatory cancellation of visa and its effects on the offender and his family

Catchwords:

CRIMINAL LAW – Appeal – Sentence – Where sentencing judge imposed sentence partially cumulative on existing sentence – Where special circumstances were found – Structure of sentences such that the applicant would be required to serve 80% of his total sentence before being eligible for parole – Nothing to indicate that the sentencing judge considered the precise impact of the level of accumulation – Error established – Applicant re-sentenced   CRIMINAL LAW – Appeal – Sentence – Parity principle – Whether applicant had a justifiable sense of grievance in light of the sentence imposed on a co-offender – Clear distinguishing subjective features between the two cases – No unjustified disparity in the respective sentences imposed

Catchwords:

CRIME – application for leave to appeal against sentence – sexual offences – aggregate sentence imposed – whether sentencing judge erred in grouping offences into categories and nominating the same indicative sentence for each offence within the categories – whether sentencing judge erred in not finding special circumstances where he said that doing so would be a form of double counting – leave to appeal granted but appeal dismissed

Catchwords:

CRIME – Federal Offences – Conspiracy – Dishonestly cause a loss or risk of loss to the Commonwealth – s 135.4(5) Criminal Code - False depreciation claims in company tax returns – Loss to Commonwealth in excess of $100 million   CRIME – Federal Offences – Conspiracy – Dealing with property of a value of $1 million or more believing it to be the proceeds of crime – ss 11.5(1) and 400.3(1) Criminal Code.   CRIME – Appeals – Appeal against conviction – Whether trial judge improperly applied pressure to jury interfering with free deliberation – s 80 Commonwealth Constitution – Jury notes – Trial judge refused request to adjourn for juror to attend job interview – Trial judge refused request to provide a second letter to juror’s employer.   CONSTITUTIONAL LAW – Commonwealth Constitution – s 80 – Trial by jury – Constitutional contention - Whether trial judge breached s 80 by interfering with jury.   CRIME – Appeals – Appeal against conviction – Admissibility of evidence - Whether evidence of Amended Tax Assessments irrelevant and inadmissible as disclosed opinion of Commissioner of Taxation.

Catchwords:

CRIMINAL LAW – application for leave to appeal against sentence – commercial quantity drug supply offences over period of two months – possession of prohibited weapon and conduct drug premises offences – whether error in assessment of objective seriousness of drug supply offences – sentencing judge relied on incorrect reference to prescribed “large commercial quantity” for methylamphetamine – reference was misleading – error in statement as to number of drugs found in possession for purpose of supply upon arrest – no merit in grounds asserting error in relation to consideration of Form 1 offences, applicant’s cognitive ability, or parity – no merit in assertion of manifest excess – sentencing discretion re-exercised

Catchwords:

CRIME – application for leave to appeal against sentence – drug supply offences – whether error to reject applicant’s evidence of no financial reward for supplies – consideration of correct approach to asserted errors of fact finding on sentence – rejection of applicant’s evidence soundly based on available inferences and well open to be made – whether error in misapplication of reasoning in Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 – consideration of non-custodial sentence not available where sentence of imprisonment required and length of sentence set at 5 years – whether sentence was manifestly excessive – sentence not unreasonable or plainly unjust

Catchwords:

APPEAL – offender pleaded guilty to a range of child pornography and related offences – whether sentencing Judge erred in assessment of objective seriousness of an offence – no error in assessment demonstrated in approach taken – whether sentencing Judge erred in applying the principles in Veen v The Queen (No. 2) – offender had demonstrated a continuing attitude of disobedience to the law – no misapplication of principle – whether sentencing Judge erred in elevating sentence by reason of a Form 1 offence – orthodox approach to use of Form 1 offence on sentence – whether sentence was manifestly excessive – where reliance placed on assertions of express errors – where other sentencing decisions do not establish pattern or range – sentence was not unreasonable or plainly unjust – leave to appeal granted and appeal dismissed

Catchwords:

CRIMINAL APPEAL – sentence appeal – availability of intensive correction order – three grounds of appeal – first whether his Honour erred by failing to give paramount consideration to community safety as required by s 66(1) – second whether his Honour erred by failing to provide reasons for refusing to make an intensive correction order – third whether his Honour mistook the facts

Catchwords:

CRIME – appeals – appeal against conviction – assault with act of indecency on person under 16 – whether a miscarriage of justice occurred due to the trial judge failing to give a direction about the need for the jury to be unanimous about which act of touching they found proved beyond reasonable doubt – whether a miscarriage of justice occurred due to the trial judge failing to give a direction that the accused’s silence was not evidence against him and could not be used to support the prosecution case – whether verdict of guilty is unreasonable and cannot be supported having regard to the evidence

Catchwords:

CRIMINAL LAW – sexual intercourse with child under 10 – young offender – assault by halfbrother – retraction of complaint in cross-examination – finding that complainant’s court evidence unreliable – counsel not informed of finding of unreliability during cross-examination – whether procedural unfairness   CRIMINAL LAW – conviction appeal – judge alone trial – judge determining reliability of evidence – failure to direct herself as to unreliability of complaint   CRIMINAL LAW – appeal – sentence – custodial sentence – offender a minor with intellectual disabilities – whether denunciation of offending inconsistent with rejection of general deterrence – whether judge took offender’s vulnerabilities into account

Catchwords:

CRIMINAL LAW – appeals – appeal against sentence – applicant convicted of one count of conspiracy to cheat and defraud the beneficiaries of an estate – applicant insinuated herself into the life of an ageing and dementia-afflicted woman – forged will – applicant sentenced to seven years’ imprisonment with a non-parole period of five years – whether the sentencing judge erred in his assessment of objective seriousness – whether the sentencing judge misconstrued the applicant’s role in the conspiracy – paucity of evidence as to how the applicant and her co-conspirators insinuated themselves into the deceased’s life – sentencing judge described the applicant’s conduct as wicked – open to the sentencing judge to describe the applicant’s conduct in terms reflecting his strong reprobation of her conduct – no error shown – whether the sentence imposed was manifestly excessive – whether the sentencing judge should have taken into account the applicant’s depressive disorder – where no such submission was advanced on sentence – comparable cases did not support a finding of manifest excess – appeal dismissed

Catchwords:

CRIMINAL LAW – sentence appeal – use offensive weapon with intent to intimidate contrary to s 33B(1)(a) of the Crimes Act - intentionally damage property contrary to s 195(1)(a) of the Crimes Act - intimidate with the intention of causing fear of physical or mental harm contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 – take person with intent to gain a psychological advantage contrary to s 86(1)(b) of the Crimes Act – whether aggregate sentence was manifestly excessive – whether sentencing judge erred by accumulating the sentence upon the sentence imposed in separate proceedings

Catchwords:

CRIMINAL LAW – sentence appeal – six counts of sexual assault with a child – victim is applicant’s brother – whether aggregate sentence was manifestly excessive

Catchwords:

CRIME – appeals – appeal against conviction – application for leave to appeal on question of fact or mixed question of fact and law – whether verdict unreasonable – whether verdict of guilty could not be supported by the evidence   CRIME – appeals – appeal against sentence – application for leave to appeal – whether sentencing judge erred in the assessment of the objective seriousness of the offence

Catchwords:

CRIME — appeals — leave to appeal against sentence — four counts of supplying not less than the commercial quantity of a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) — two offenders — whether sentencing judge erred in failing to take account of applicant's mental illness — parity — whether justifiable sense of grievance when comparing sentence imposed on co-offender — appeal dismissed

Catchwords:

CRIME – conviction appeal – whether an alternative verdict of manslaughter based on a joint criminal enterprise to inflict injury falling short of grievous bodily harm should have been left to jury CRIME – conviction appeal – directions – failure to give proper direction on consciousness of guilt evidence – failure to give proper direction where accused did not give evidence – failure to give proper direction on meaning of “in company” CRIMES – conviction appeal – unreasonable verdict – whether verdict on one count was unreasonable in light of acquittal on another count

Catchwords:

CRIMINAL LAW – Crown appeal against inadequacy of aggregate sentence – historical child sexual assault offences – elderly respondent – whether manifestly inadequate – whether judge overlooked s 25AA(1) of Crimes (Sentencing Procedure) Act – sentence patterns and practices at time of sentence – importance of expressly stating an offender has been sentenced in accordance with ss 25AA(1) and (3) – delay – whether fairness to respondent has played a dominant role in sentence – error of principle – reason for delay in old sexual assault offences – totality – respondent previously sentenced for similar offences – purposes of totality principle – failure of sentence to reflect the respondent’s conduct as a whole – non-parole period – double counting – whether residual discretion should be exercised – re-sentence – importance of general deterrence and denunciation – sentence increased.

Catchwords:

CRIMINAL LAW – Application for extension of time – Notice of application for leave to appeal against sentence – Obtaining a financial advantage by deception – Quantum over $1.4 million – Self-represented applicant – Newborn grandchild with difficult medical conditions – Recently discovered psychological conditions of son – Whether sentence manifestly excessive – Grounds doomed to failure – Necessary extension refused

Catchwords:

CRIMINAL PROCEDURE – trial – directions to jury – failure to direct the jury in accordance with Black v The Queen – failure clearly to respond to notes from the jury indicating inability to reach unanimity – whether undue pressure imposed on jury – whether trial miscarried

Catchwords:

CRIMINAL LAW – appeal against interlocutory judgment or order – applicant sought an order below for a separate trial pursuant to s 21(2) of the Criminal Procedure Act 1986 (NSW) – whether primary judge erred in dismissing an application for a separate trial from the co-accused – whether evidence is of a kind which is not amenable to judicial directions to the jury – whether the prejudice associated with the telephone intercepts cannot be cured by a direction to the jury –principle that jurors accept and obey the directions given to them by the trial judge – no error has been demonstrated in the judgment below – leave to appeal refused

Catchwords:

CRIMINAL LAW – appeal – appeal against conviction – murder – whether failure to instruct jury as to possible defence of self-defence occasioned a substantial miscarriage of justice   CRIMINAL LAW – appeal – appeal against conviction – murder – tendency evidence – where evidence relied on by accused person – where jury directed that it needed to be satisfied that one or more of the alleged tendency acts had been proven on the balance of probabilities before it could accept the tendency contended – whether such a direction was erroneous   CRIMINAL LAW – appeal – appeal against conviction – murder – whether verdict unreasonable or could not be supported by the evidence   CRIMINAL LAW – appeal – appeal against sentence – manslaughter – whether trial judge failed to implement a stated intention to structure the sentence to the statutory proportions under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW)

Catchwords:

CRIME – appeal – appeal against sentence – where applicant pleaded guilty to being an accessory after the fact to aggravated break, enter and steal – where applicant sentenced to a term of 4 years and 8 months imprisonment with a non-parole period of 3 years – whether miscarriage of justice arose because of omission by applicant’s legal representatives to place evidence of applicant’s history of mental illness before the District Court – where miscarriage of justice arose because sentencing judge did not have relevant evidence before him – appeal allowed – whether matter should be remitted for sentence

Catchwords:

CRIMINAL LAW – leave to appeal an interlocutory decision of District Court refusing permanent stay – trial for sexual offences allegedly committed over several decades ago – whether primary Judge erred in exercise of discretion – whether primary Judge focused unduly on public interest in conviction – whether primary Judge had regard to an irrelevant matter – whether primary Judge failed to have proper regard to directions to reduce forensic disadvantage to Applicant – open to primary Judge to refuse application – no House v The King error demonstrated – leave to appeal refused

Catchwords:

CRIME – appeals – leave to appeal against conviction – unreasonable verdict – two counts of sexual intercourse without consent and two counts of indecent assault – Crimes Act 1900 (NSW), ss 61I & 61L – assessment of the nature and quality of evidence – asserted implausibility of complainant’s account – whether inconsistencies in evidence and inadequate explanation for delay in report to police – leave granted and appeal dismissed   CRIME – appeals – where applicant granted conditional bail pending appeal – time on bail not counted towards sentence – Criminal Appeal Act 1912 (NSW), ss 18(2) & 28A – commencement date of sentence adjusted

Catchwords:

CRIMINAL LAW – appeal against sentence – parity – two offenders manufactured large commercial quantity of methylamphetamine – applicant found guilty and sentenced on basis of manufacturing some 2.6 kg of the drug – co-offender pleaded guilty to manufacturing 12.84 kg of the drug – section 4 of Drug Misuse and Trafficking Act 1985 (NSW) provided that references to a prohibited drug included reference to any admixture containing any proportion of the drug – offenders charged on different bases but sentenced on basis that both had manufactured the same mixture from which 2.6 kg of methylamphetamine could be extracted – no error in having regard to purity of admixture – no justifiable sense of grievance by applicant when all relevant facts considered – appeal dismissed

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict – jury verdicts of guilty for historical sexual offences committed against two complainants – where there were internal inconsistences in the evidence and directly contradictory evidence – unreasonable verdicts – verdict of acquittal entered

Catchwords:

CRIME — appeals — appeal against sentence — error of law — procedural fairness — whether sentencing judge led the applicant to understand that a certain course would be adopted — sentenced on a different basis — where sentencing judge relied on matters in confidential affidavit in finding of objective seriousness — where statement not induced — prospects of rehabilitation — finding of “poor to moderate” prospects — objective seriousness

Catchwords:

CRIME — Appeals — Appeal against sentence — Child sex offences — Applicant diagnosed with terminal illness after sentence imposed — Whether sentence manifestly excessive — Whether applicant to be re-sentenced based upon fresh evidence — Sentence not manifestly excessive — Fresh evidence admitted — Discussion of principles relevant to subsequent development of illness taken into account at time of sentence — Held by majority that applicant be re-sentenced — Lesser aggregate sentence imposed

Catchwords:

CRIMINAL LAW – appeal – leave to appeal against sentence – intent to cause grievous bodily harm – whether sentencing judge erred in failing to give proper reasons for a finding of fact – whether sentencing judge erred in finding certain facts – whether sentencing judge erred in failing to find provocation as a mitigating factor – whether sentencing judge erred in failing to give proper consideration to applicant’s background as a mitigating factor – grounds of appeal not made out – leave to appeal granted – appeal dismissed

Catchwords:

CRIMINAL LAW – sentence appeal – two counts of drug supply – offender on bail for first offence at time of second offence – offender had an extensive criminal record – aggregate sentence of imprisonment for 3 years and 4 months with a non-parole period of 2 years – whether sentence manifestly excessive – leave to appeal granted but appeal dismissed.

Catchwords:

Crime — appeals — appeal against sentence — application for leave to appeal — two counts of aggravated kidnapping in company contrary to s 86(2)(a) of the Crimes Act 1900 (NSW) — whether sentencing judge failed to have regard to community safety as paramount consideration in accordance with s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) in considering whether to make an Intensive Correction Order — where s 68 of the Crimes (Sentencing Procedure) Act 1999 (NSW) precluded the making of an Intensive Correction Order — whether sentencing judge misapplied the principle of parity — whether sentencing judge failed to properly account for applicant's mental health — whether sentencing judge failed to give adequate reasons

Catchwords:

CRIME — public justice offences — do an act with intent to pervert course of justice — Crimes Act 1900 (NSW) s 319 — elements of offence — whether act or omission said to constitute the offence must have a tendency to pervert the course of justice

Catchwords:

Crime — appeals — appeal against sentence — application for leave to appeal — recklessly inflict grievous bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW) — whether sentencing judge erred in assessment of objective seriousness of the offence — no principle that the nature of injuries sustained necessarily determines the assessment of objective seriousness — where offender was correctional officer in position of trust and authority over the victim who was an inmate — whether sentence imposed was manifestly excessive — not demonstrated that sentence was unreasonable or plainly unjust

Catchwords:

CRIME – Appeal – Appeal against conviction – Inconsistency of verdicts – Unreasonable verdict – Whether inconsistency as a result of acquittal on 7 counts and conviction on 2 counts – Whether inconsistency between acquittal on a particular count and conviction on count of persuading a witness to withhold “true evidence” – Identification of the “true evidence” withheld   CRIME – Appeal – Application for leave to appeal against sentence – Manifest excess – Whether aggregate sentence was unreasonable or plainly unjust

Catchwords:

CRIMINAL PROCEDURE – appeal against conviction – sole ground that verdict was unreasonable or unsupportable on the evidence – challenges to fairness of trial, improper limit on cross-examination and content of prosecutor’s address went beyond the sole pleaded ground – challenges dealt with as separate grounds of appeal   CRIMINAL LAW – appeal against conviction – supply of commercial quantity of drugs – supply by one co-accused to the other – whether verdict unreasonable – inferences of prior arrangement based on video surveillance – no evidence of prior relationship   CRIMINAL LAW – appeal against conviction – unfair trial – change in the prosecution case – prosecutor using rhetorical questions in address to jury – failure to put defence case in summing up   EVIDENCE – powers of trial judge to limit cross-examination – application to limit scope of re-examination if prosecution witness cross-examined about drug dealing with third party – risk of questioning causing unfair trial

Catchwords:

CRIME – appeals – leave to appeal against conviction – Drug Misuse and Trafficking Act 1985, s 25(1) – deemed supply of traffickable quantity of a prohibited drug methylamphetamine – unreasonable verdict – issue of possession – whether open to the jury to be satisfied beyond reasonable doubt that the accused was guilty – miscarriage of justice – complaints about Crown’s conduct at trial and closing address – where no complaint made at trial – whether applicant should be bound by forensic decisions

Catchwords:

CRIME - sentence appeal – where applicant pleaded guilty to supply prohibited drug on an ongoing basis – where applicant sentenced to imprisonment for 4 years with a non-parole period of 1 year and 8 months – where further offence of supply prohibited drug on an ongoing basis also taken into account on sentence – whether sentence manifestly excessive - appeal allowed - resentence

Catchwords:

Bail Act 2013 – Detention Application by Crown – attempted murder and a firearm offence – accused and complainant members of rival criminal gangs – likely delay before trial not excessive – strong Crown case – inapplicability of “principle of restraint” – “show cause” test not made out – alternatively accused would constitute an unacceptable risk if released on bail.

Catchwords:

CRIME – sentence appeal – where applicant pleaded guilty to importing a marketable quantity of cocaine – where applicant sentenced to a term of imprisonment of 7 years and 6 months with a non-parole period of 4 years and 6 months – where Crown concedes sentencing judge erred – re-sentence – whether applicant tricked into importing cocaine by on-line suitor whom she had not met – whether applicant’s offending motivated by financial greed – sentence quashed – new sentence imposed

Catchwords:

EVIDENCE – hearsay exceptions – criminal trial – maker of representations deceased – whether representations made in circumstances that made it unlikely that they were fabrications – s 65(2)(b) Evidence Act – representations made soon after alleged events to persons in authority, with maker exhibiting injuries consistent with representations   CRIME – appeals – whether misdirection to jury as to mental element of consent in relation to sexual assault offence resulted in any substantial miscarriage of justice – misdirection in written and oral directions – whether erroneous direction could have affected jury’s verdict – no substantial miscarriage of justice – Kalbasi v Western Australia (2018) 264 CLR 62 considered   CRIME – appeals – whether trial miscarried because of irregularities in the Crown’s address to the jury   CRIME – appeals – whether trial miscarried because of incompetence of accused’s trial counsel – appeal ground rejected   CRIME – appeal against sentence – whether sentencing judge failed to take into account accused’s deprived upbringing in relation to moral culpability – leave to appeal against sentence refused

Catchwords:

CRIMINAL LAW – application for leave to appeal against sentence – supply commercial quantity of methylamphetamine, dealing with proceeds of crime – challenge to sentencing judge’s assessment of objectiveness seriousness of drug supply offence – whether aggregate sentence manifestly excessive

Catchwords:

CRIME — appeals — appeal against sentence — application for leave to appeal — one count of aggravated robbery with wounding contrary to s 96 of the Crimes Act 1900 (NSW) — sentencing judge's description of applicant's conduct as a 'gratuitous act of cruelty' went to the objective seriousness of the offence — no finding made of an aggravating factor under s 21A(2)(f) of the Crimes (Sentencing Procedure) Act 1999 (NSW) although this was open to sentencing judge — whether sentence was manifestly excessive — whether sentencing judge failed to have due regard to applicant's subjective factors — no error in sentencing process — appeal dismissed

Catchwords:

CRIME — appeals — appeal against sentence — application for leave to appeal — manufacture of a large commercial quantity of a prohibited drug contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW) — four co-offenders — where other co-offenders received shorter non-parole period than applicant — whether sentencing judge erred in not finding special circumstances for applicant — whether justifiable sense of grievance arising from a lack of parity between sentences of co-offenders — justifiable sense of grievance as a factor under s 21A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) — resentence

Catchwords:

CRIMINAL LAW – appeal against sentence – recklessly causing grievous bodily harm – whether sentencing judge erred in failing to find the applicant was remorseful – whether sentence manifestly excessive

Catchwords:

CRIME – appeals – appeal against conviction – identification evidence – warnings – unreasonable verdict

Catchwords:

CRIME – appeals – appeal against sentence – manifest excess – sexual offences against four child victims – 13 counts of indecent assault and 2 counts of aggravated incite act of indecency – individual sentence imposed for each count – total effective sentence of 11 years imprisonment and 8 years non-parole period – most of the individual sentences imposed were manifestly excessive – set aside individual sentences – re-sentence to aggregate sentence of 11 years imprisonment and 8 years non-parole period

Catchwords:

CRIMINAL LAW – sentence appeal – dangerous driving causing death – whether sentence manifestly excessive – guideline judgment of Whyte – strong subjective case - elderly driver

Catchwords:

CRIME – sentence appeal – where applicant pleaded guilty to reckless wounding – where applicant sentenced to imprisonment of 4 years and 3 months with a non-parole period of 2 years and 3 months – where offence of stalk/intimidate on a Form 1 also taken into account on sentence – whether sentence manifestly excessive – appeal allowed – re-sentence

Catchwords:

CRIME – appeal against sentence – aggregate sentence imposed for serious domestic violence offences – no error in assessment of objective seriousness of counts 1 and 4 – no error in less than favourable findings for prospects of rehabilitation or risk of re-offending – whether sentence was manifestly excessive – limited utility of statistics and cases for comparison – no error in assessment of indicative sentences for individual offences – no error in degree to which the indicative sentences were partially accumulated

Catchwords:

CRIME – conviction appeal – where appellant convicted of manslaughter based on joint criminal enterprise – whether verdict unreasonable – whether mere presence when crime committed and post-offence conduct were capable of amounting to proof of an agreement to commit the crime – verdict of acquittal entered

Catchwords:

CRIMINAL LAW – appeal – sentence – medical conditions – loss of employment – protective custody – grounds of appeal without merit

Catchwords:

CRIMINAL LAW – conviction appeal –13 counts alleging sexual misconduct by an uncle against his niece – jury trial – applicant found guilty of six of the charges and not guilty of seven charges – single ground of appeal asserting unreasonable verdicts – offences said to have occurred between 1991 and 2000 – complainant aged 4 when offending commenced – Crown case depended on evidence of complainant – challenge to complainant’s credit – tendency evidence tendered in Crown case – whether jury verdicts inconsistent – effect of concessions made by complainant – credibility issues essentially a jury matter – well open to jury to be satisfied beyond reasonable doubt as to guilt of the applicant. Leave to appeal granted but appeal dismissed.

Catchwords:

CRIMINAL LAW – sentencing – alleged errors in factual findings – whether denial of procedural fairness regarding assessment of utilitarian discount outside range contended by parties – manifest excess – “weight” given by sentencing judge to relevant factors

Catchwords:

CRIMINAL LAW – sentence appeal – 14 counts of indecently assaulting a male person contrary to s 81 of the Crimes Act 1900 (NSW) (since repealed) – offending took place over a period of 11 years while applicant was a teacher – at time of sentence applicant serving a sentence of imprisonment for similar offences committed against different complainants – aggregate sentence of 8 years and 6 months with a non-parole period of 6 years – there was a single ground of appeal alleging manifest excess – sentencing principles comprehensively covered by sentencing judge – disputed issues involved matters of discretion – manifest excess not established – leave to appeal granted but appeal dismissed.

Catchwords:

CRIME – appeal – application for extension of time in which to appeal – merits of proposed conviction and sentence appeals – whether conviction unreasonable or cannot be supported having regard to the evidence – open to jury to conclude beyond reasonable doubt that applicant intended to cause victim grievous bodily harm – whether sentence unreasonable or plainly unjust – sentence within range of those open to primary judge to impose – application refused

Catchwords:

CRIME – appeals – appeal against conviction – identification – directions as to physical characteristics of accused – no error in directions – verdict not unreasonable

Catchwords:

CRIME – Appeals – appeal against conviction – where applicant convicted of four counts of indecent and sexual assault with a person under 16 years – where applicant is acquitted of four counts of assault and indecency – whether the verdicts were unreasonable – whether the whether the differential verdicts are irreconcilable – whether there was inconsistency in the jury’s verdict – where the complainant’s evidence at trial was uncorroborated – credibility of the witness

Catchwords:

CRIMINAL LAW – application for leave to appeal against sentence – sexual offences committed against child aged between 10 and 14 years – victim had cognitive impairment – whether errors in assessment of the objective seriousness of offences – asserted errors of failing to take into account the victim’s consent, failing to find that cognitive impairment is a less serious type of aggravating circumstance, and finding that second offence was aggravated by planning – asserted errors rejected – sentencing findings reasonably open to be made – whether sentence is manifestly excessive – issue is whether sentence is proportionate to totality of criminality – substantial degree of accumulation of indicative sentences – subjective matters should not lose force in assessment of aggregate sentence – stern sentence required to respond to s 3A purposes of sentencing – inadequate allowance for favourable aspects of subjective case – sentence manifestly excessive