Recent decisions for Court of Criminal Appeal

Catchwords:

CRIME — Appeals — Appeal against conviction — sexual assault — multiple complainants — whether Crown’s closing address on a recorded conversation required further directions from the trial judge — rule 4 of the Criminal Appeal Rules — no objection or request for further directions at trial — forensic choice by the appellant’s counsel — whether miscarriage of justice — whether verdicts in respect of counts concerning PW and JW unreasonable

Catchwords:

CRIMINAL LAW – release application – appeals bail – where previous applications dismissed by the Court of Criminal Appeal – statutory prohibition on multiple applications – whether grounds established for further application – whether material information to be presented that was not presented on earlier applications – whether circumstances relevant to the grant of bail had changed – self-represented applicant – indulgent approach to filing of evidence and submissions in contravention to Registrar’s directions and after the hearing – whether “more settled” grounds appeal amounted to grounds under s 74(3) of the Bail Act – changes to grounds cosmetic – whether imminence of applicant’s release a relevant change of circumstance – release date known on two previous release applications – provisional decision to grant parole – review hearing pending – relevance to release application where no outstanding charges – grounds for further release application not established – application dismissed – decision should not impact on decision of Parole Authority

Catchwords:

CRIMINAL LAW — application seeking the leave of the Court to retry a person in respect of two charges of murder — respondent to application seeking orders to produce documents comprising legal advice to various Attorneys General — whether legitimate forensic purpose established for production of documents — no such purpose in relation to legal advices — reasons for decisions by Attorneys General relevant — letters setting out reasons should be produced.

Catchwords:

CRIME – appeals – appeal against sentence – child sexual offences – where offender pleaded guilty to two offences against s 66EA of the Crimes Act 1900 – where complainants are the offender’s cousins – guilty plea in District Court – where offender denied certain particularised unlawful acts – where disputed facts hearing proceeded before the sentencing judge – aggregate term of imprisonment imposed CRIME – appeals – appeal against sentence – whether the sentencing judge erred in determination of objective seriousness – where sentencing judge concluded objective seriousness of the offences was “towards the bottom” and “at the very lowest end” of the range for a s 66EA offence – assessment of objective seriousness for “new” s 66EA – assessment of “ingredient offences” – where sentencing judge expressly relies on sentencing factors set out in Burr v The Queen – whether focus on ingredient offences and Burr v The Queen factors was a limited approach – whether it can be inferred the sentencing judge did not consider “other matters” – whether use of the term “opportunistic” affected the assessment of the objective seriousness CRIME – appeals – appeal against sentence – whether the sentence is manifestly inadequate – where Crown submits aggregate sentence is “so far below the range of sentences” which could be imposed – where complaint about “weight” given to sentencing considerations does not assist in the resolution of the adequacy – where sentencing judge nominated indicative sentences – where sentence imposed was not plainly unjust

Catchwords:

CRIME – Appeals – appeal against sentence – child sexual offences – where child was under the applicant’s authority at a care home – domestic violence offences – whether sentencing judge erred in application of Bugmy principles – whether sentencing judge erred in failing to take into account the applicant’s own history of child sexual abuse – correct approach to application of Bugmy principles – childhood deprivation – moral culpability – purposes of sentencing – giving “full weight” to background of deprivation – appeal allowed – applicant re-sentenced

Catchwords:

CRIME – appeals – appeal against sentence – application for extension of time – constructive murder – joint criminal enterprise – assault with intent to rob in company while armed with a dangerous weapon – possession of a shortened firearm – agreed facts – whether departure from agreed facts – whether denial of procedural fairness – whether error in assessment of objective gravity of offence – whether failure to find special circumstances – cumulation and concurrence – parity – where difference between starting point of sentences of applicant and co-offender – whether justifiable sense of grievance – marked and unjustified disparity – re-sentence

Catchwords:

CIVIL PROCEDURE – review of procedural decisions of Registrar – where applicant filed notice of motion seeking extension of time to file notice of appeal – extension refused by Registrar – where applicant filed notice of motion seeking access to unedited transcript – no demonstration why transcripts were required – application refused

Catchwords:

BAIL – detention application by prosecutor – show cause offence – whether cause shown – whether respondent poses unacceptable risk

Catchwords:

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

Catchwords:

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

Catchwords:

CRIMINAL LAW - application for leave to appeal under s.5F Criminal Appeal Act 1912 from refusal of Dietrich stay - applicant charged with tax fraud and money laundering - complex and lengthy trial - applicant failed to establish that he was indigent - whether error demonstrated in findings of primary Judge - no error demonstrated - whether interests of justice warranted - grant of leave to appeal - observations made concerning absence of provisions in Proceeds of Crimes Act 2002 (Cth) permitting release of restrained assets to fund a person’s defence - contrast with State confiscation legislation - leave to appeal granted - appeal dismissed

Catchwords:

CRIMINAL LAW – release application – show cause requirement – bail concerns mitigated by conditions

Catchwords:

CRIMINAL LAW – sentence appeal – supply a commercial quantity of prohibited drug – participate in a criminal group – domestic violence and common assault offences – shortened firearm and possess more than three unregistered firearms, including a prohibited weapon – indicative sentences set out and aggregate sentence imposed – whether the notional starting point for some of the indicative sentences was manifestly excessive so as to indicate error in the aggregate sentence – whether an appropriate discount allowed for assistance to authorities – two co-offenders sentenced after applicant – whether differences between indicative sentences proposed for co-offenders and applicant offended the parity principle – if so whether such a discrepancy demonstrated error in the aggregate sentence – leave to appeal granted but appeal dismissed.

Catchwords:

CRIME – Sexual offences – Sexual assault – Consent – Section 61HE of the Crimes Act 1900 (NSW) – Relevance of complainant’s substantial intoxication to issue of consent – Confusing drafting of statutory provision – Whether no free and voluntary agreement taking account of all circumstances – Not necessary to show what was said and done indicating consent was caused by intoxication APPEALS – From jury verdict – Misdirection – Real chance that the misdirections could have affected the jury verdict – Miscarriage of justice established

Catchwords:

CRIMINAL PROCEDURE – trial – closing address to jury by Crown Prosecutor – where the applicant was found guilty of multiple counts of intimidation, sexual intercourse without consent, and assault occasioning actual bodily harm – where the complainant and the applicant were in a relationship and lived together – where evidence was led of the applicant threatening self-harm after the non-consensual sex – whether there was a miscarriage of justice due to the introduction of consciousness of guilt evidence by the Crown – where it was clear that the Crown was not relying on consciousness of guilt as past of its case – where the only rational inference left to the jury was that the self-harm behaviour was related to the applicant’s manipulation of the complainant – no miscarriage of justice from anything in the Crown’s closing address CRIMINAL PROCEDURE – trial – directions to jury – where the trial judge said in her summing up that the Crown submitted that the sexual activity was nonconsensual and was supported by what followed, being the breakup “coupled with” the threats of self-harm – whether there was a miscarriage of justice from any direction or failure to give a direction by the trial judge to the jury not to use this evidence as consciousness of guilt evidence – where r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 applied – where any decision by the applicant’s trial counsel not to object to the trial judge’s summing up was a forensic one – where a reading of the proceedings as a whole shows that consciousness of guilt from the self-harm incident was not contemplated by either side or the trial judge – where it would have been wrong of the trial judge to give a consciousness of guilt direction in the absence of its being sought – no miscarriage of justice

Catchwords:

CRIMINAL LAW - sentencing - appeal against sentence - challenge to discount for plea and assistance - no question of principle - appeal dismissed.

Catchwords:

CRIMINAL LAW – conviction – substantial delay in complaint of alleged sexual offences – direction did not satisfy the requirements of Longman v the Queen.

Catchwords:

CRIMINAL LAW — Sentencing — Crown Appeal against sentence — solicit to murder — objective seriousness — combined discount for plea of guilty and assistance — double counting for discount for plea of guilty and assistance and for finding of special circumstances

Catchwords:

APPEAL AGAINST CONVICTION – appellant convicted of two counts of sexual assault under s.61I Crimes Act 1900 (NSW) – the trial concerned whether the sexual intercourse was consensual and whether there were two acts of sexual intercourse – accused did not give evidence – whether trial judge erred in failing to direct jury in relation to failure of accused to give evidence – the failure to give an Azzopardi direction in the circumstances of this case led to a miscarriage of justice – appeal allowed – retrial.

Catchwords:

s 5F appeal against refusal to grant temporary stay - risk of prejudice

Catchwords:

CRIMINAL APPEAL – applicant convicted of four offences of sexual slavery and two offences of money laundering – Crown contended that applicant enslaved two sex workers from Thailand – alleged to have seized passports and made them work off debt – whether jury direction concerning applicant’s prior good character inadequate because jury not told that good character made it less likely that applicant committed offences charged – error not established – whether miscarriage of justice occasioned by failure of applicant’s counsel to adduce good character evidence from various witnesses – miscarriage not established – failure to adduce evidence objectively justified – applicant’s good character peripheral to true factual dispute in the trial – tendency direction – alleged tendency corresponded with every particular alleged against applicant in relation to both complainants – direction misleading – miscarriage of justice established - proviso – critical part of complainants’ evidence challenged – proviso not capable of being applied – convictions set aside – new trial ordered.

Catchwords:

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

Catchwords:

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

Catchwords:

CRIME – bail – release applications – murder – where convictions had been appealed – where orders made quashing convictions and ordering retrial – show cause – unacceptable risk – strong Crown case – display of significant violence in CCTV footage – previous membership of Rebels Outlaw Motorcycle Gang – where applicants had served in excess of half of non-parole period imposed – where retrial eight years after events in question – strong bail proposal – bail granted with conditions

Catchwords:

CRIME — appeal against sentence — manifest inadequacy — where offender convicted of 12 counts of child sex offences which occurred over a period of 15 years against four child victims — where the offending involved a significant age disparity, skin-on-skin contact with the genitals, sexual intercourse, planning, use of a position of trust, persistence, and escalation in seriousness over time — where the offender’s subjective case focused on his good character, experience in custody, and mental health history — whether the indicative sentences and non-parole periods failed to reflect the objective seriousness of the offending CRIME — appeal against sentence — residual discretion — relevance of the offender’s experiences in custody — whether maintenance of public confidence in the administration of justice required re-sentencing

Catchwords:

JUDGMENTS AND ORDERS – Appeal raising issue materially indistinguishable from co-accused’s earlier appeal – Principles as to whether to depart from previous decision of this Court – Whether established “plainly wrong” threshold applies – Principle of equality before the law requires that differently constituted bench of the same court should follow the earlier decision unless compelling reason to depart APPEALS – Procedure – Time limits – Significant delay – Extension of time granted given reasonable explanations and merit in appeal

Catchwords:

CRIME – armed robbery – take and drive conveyance - successful appeal of co-offenders. EVIDENCE – tendency evidence – whether trial judge erred in admitting tendency evidence. CRIME – Appeals – Appeal against conviction - Extension of time in which to appeal.

Catchwords:

CRIMINAL LAW – Evidence – Propensity, tendency and coincidence – Evidence Act 1995 (NSW) ss 97(1)(b) and 101(2) – armed robbery – bank robbery committed with substantially same co-accused over 9 years ago – some differences and some similarities with charged conduct – whether single prior bank robbery is evidence of a tendency or propensity to commit bank robberies in a particular manner – whether evidence has significant probative value – effect of Hughes v The Queen [2017] HCA 20

Catchwords:

CRIME – Appeals – Appeal against conviction – armed robbery of bank – inadmissible and prejudicial material heard by jury – whether refusal to discharge jury a miscarriage of justice – whether substantial miscarriage of justice – test to be applied – appeal upheld.

Catchwords:

CRIME – appeals – appeal against conviction – where the appellant was found guilty of one count of using a carriage service to groom a person under 16 years of age – where the jury was directed that in the absence of evidence to the contrary it was established that the appellant believed the person to be under 16 years of age – where the jury was directed that it was a defence to the charges if the appellant established a reasonable possibility that he believed the recipient was at least 16 years of age – whether the trial judge erred in his directions to the jury – where s 474.28(3) of the Criminal Code (Cth) was found to be means of proof only in the event there is no evidence to the contrary – where the appellant gave evidence that he believed he was talking to someone over the age of 18 years – where the appellant’s evidence was held to be “evidence to the contrary” – where s 474.28(3) was found to involve a question of law to be determined by the trial judge not the jury – where the impugned directions should not have been given– where leave was granted under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) due to the error resulting in a miscarriage of justice – appeal allowed, conviction quashed and new trial ordered

Catchwords:

CRIME – Appeals – interlocutory appeal – appeal from decision ordering temporary stay of proceedings – where order was conditional stay of potentially permanent effect – where only proper basis for ordering conditional stay of potentially permanent effect would be that the respondents’ trial would otherwise have been so unfair as to be inconsistent with the requirements of a fair trial – correctness standard of appellate review applies

Catchwords:

CRIME – appeals – appeal against conviction – child sexual offences – tendency evidence – whether trial judge erred in admitting tendency evidence – whether miscarriage of justice EVIDENCE – tendency evidence – complainant 13 years old – no dispute that sexual intercourse took place – where applicant’s case was of an honest and reasonable belief that the complainant was 16 years or older – where applicant’s previous relationship with a female child aged between 9 and 10 and 13 and 14 admitted by the trial judge as tendency evidence to rebut the applicant’s case of an honest and reasonable mistake EVIDENCE – tendency evidence – where tendency evidence presented to the jury by way of agreed facts under s 191 of the Evidence Act 1995 (NSW) – where material difference between the evidence placed before the trial judge and the agreed facts – consideration of the relevant evidence for determination of the grounds of appeal EVIDENCE – whether s 97A of the Evidence Act applied – where applicant had made clear that sexual intercourse was not in issue – whether sexual intercourse remained a “fact in issue” – whether “fact in issue” includes all the elements of the offence EVIDENCE – whether error in admitting tendency evidence – adjectives “intimate” and “consensual” – whether error by trial judge in concluding that sexual relationship with other female child was of long-standing commencing when that child was aged between 9 to 10 years – whether description of previous relationship as “intimate” and “consensual” and “it is known” in agreed facts gave rise to a real risk that evidence would be used in an unfair way EVIDENCE – tendency directions to jury – whether direction required that relationship with the female child was not sexual before she turned 13 years old – whether the probative value outweighed the danger of unfair prejudice CRIME – appeals – appeal against conviction – where no objection made to tendency direction at trial – whether application of r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) CRIME – appeals – appeal against conviction – where miscarriage of justice – whether proviso applicable

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict – where applicant found guilty of six sexual offences – whether it was open to the jury to be satisfied of the guilt of the applicant beyond reasonable doubt on all the evidence – whether the apparently ‘consistent’ evidence from the applicant should have been preferred by the jury – where knowledge of consent was the issue at trial – where the applicant sent suggestive and unrelenting messages to the complainant before and after the offending – where the complainant was affected by prescription medication and alcohol – where the complainant had no memory of the offending – where the complainant had established her ‘boundaries’ – leave to appeal granted – appeal dismissed

Catchwords:

CRIME - appeals - appeal against conviction - where the appellant was convicted of multiple counts of assault with the act of indecency – where the appellant was convicted of sexual intercourse in circumstances of aggravation (under authority) – where the appellant was convicted of common assault – whether the trial judge’s reasons on the subject of consciousness of guilt were inadequate and failed to comply with s 133(2) of the Criminal Procedure Act 1986 (NSW) – whether the trial judge erred by applying consciousness of guilt reasoning in relation to each count on the indictment when it was not open to do so. CRIME - appeals - extension of time in which to appeal – where the appellant seeks an extension pursuant to s 10(1)(b) of the Criminal Appeal Act 1912 (NSW) to appeal from his convictions – where the notice of appeal was filed six months after the expiry of the notice of intention to appeal

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – work health and safety – where employee may have contracted silicosis as a result of carrying out work for the Applicant – where SafeWork NSW brought prosecution for an offence under s 32 of the Work Health and Safety Act 2011 arising from breach of health and safety duty under s 19(1) – where Applicant plead guilty in District Court – where Applicant now contends SafeWork commenced prosecution outside of time limit under s 232 of the Work Health and Safety Act 2011 (NSW) – whether prosecution brought in time – when did SafeWork have sufficient information to infer the offence had been committed – prosecution commenced in time APPEALS – appeal out of time – whether leave should be granted to bring appeal out of time – appeal futile – leave refused

Catchwords:

CRIMINAL LAW – Appeal – Appeal against decision of primary judge to vacate the applicant’s trial on the application of the Crown – Where applicant had been in custody for a period of 19 months awaiting trial – Where vacation of the trial would likely result in the applicant being in custody for more than 2 years awaiting trial – Where applicant’s family and a witness had made arrangements to travel to Australia from Taiwan for the trial - Where Crown wished to serve further material in support of its case – Where primary judge exercised his discretion on the basis that the estimated length of the trial was now in excess of the estimate which was given at the time of setting the trial date – Where primary judge gave primacy to that fact over the consequences to the accused – Exercise of discretion unreasonable and plainly unjust - Error established – Orders of primary judge quashed - Observations as to the importance of the District Court having the capacity to finalise criminal cases in a timely manner

Catchwords:

CRIMINAL LAW – appeal against conviction under Criminal Code (Cth), s 307.2(1) – appeal against conviction on the basis of fresh evidence – whether miscarriage of justice such that conviction should be quashed and new trial ordered – whether “fresh” evidence available – whether evidence credible – whether the evidence would have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused

Catchwords:

CRIMINAL APPEALS – interlocutory judgment or orders – sexual assault communications privilege – leave to issue subpoena – whether material sought “will have substantial probative value” – where District Court failed to consider documents or make orders to facilitate production for that purpose – standard of review – “House error” or “correctness standard” – standard different depending on ground of appeal and power exercised – whether Judge applied the wrong test to decision to facilitate inspections – whether irrelevant considerations taken into account – directions to be provided to jury not relevant to evaluation of probative value of evidence – orders made in District Court vacated – orders facilitating production of documents to District Court made CRIMINAL LAW – constraints on lawyers appearing for protected confiders who lack capacity to consent or provide instructions – important questions raised – issue not raised in present case – largely questions of ethics – advisory opinions not provided by appellate courts

Catchwords:

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

Catchwords:

CRIME — appeals — appeal against sentence — statutory mandatory minimum sentence prescribed — proper construction of s 16AAC of the Crimes Act 1914 (Cth) — reduction of mandatory minimum where provisions in s 16AAC(3) apply — error by treating provision as capping maximum discount as a proportion of the mandatory minimum, as opposed to provision setting a minimum floor SENTENCING — federal offenders — sentence by State court for offence against Commonwealth law — whether aggregate sentencing under s 53A of Crimes (Sentencing Procedure) Act 1999 (NSW) can be applied to federal offences — whether s 53A is capable of being picked up by s 68(1) of the Judiciary Act 1903 (Cth) — whether there is a conflict between Pt 1B of the Crimes Act and s 53A(2)(b) — whether there is a conflict between s 16AAA of the Crimes Act and s 53A(2)(b) — s 53A is capable of being picked up as federal law and does not conflict with Pt 1B or s 16AAA of the Crimes Act

Catchwords:

CRIMINAL LAW – appeal – Crown appeal – s 5F(3A) of the Criminal Appeal Act 1912 – dangerous navigation causing death contrary to s 52B(1)(c) of the Crimes Act 1900 – where trial judge excluded evidence from experts concerning likely impairment caused by intoxication – exclusion of evidence of blood alcohol content and speed of jet ski – where rulings would substantially weaken Crown case – whether experts entitled to offer opinions of specialised knowledge based on training, study or experience – Evidence Act 1995 s 79

Catchwords:

CRIME – Appeals – interlocutory appeal – sexual assault communications privilege – application for leave to appeal against a refusal of leave to the accused to access documents counsellors had produced to Court under subpoena – Criminal Procedure Act, Ch 6, Pt 5, Div 2 – whether trial judge erred by not determining the probative value of the documents to which access was sought – whether trial judge erred by not engaging in the weighing exercise required by s 299D(1)(c) of the Act

Catchwords:

SENTENCING — appeals — appeal against sentence — offence of having sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW) — plea of guilty – whether sentencing judge erred in providing a 10% discount as opposed to a 25% discount to reflect the applicant’s plea of guilty — Crimes (Sentencing Procedure) Act 1999 (NSW), s 25D — leave granted — appeal dismissed

Catchwords:

CRIME – appeals – appeal against convictions – sexual offences – distinction between second and third limbs of s 6(1) of the Criminal Appeal Act 1912 (NSW) – wrong decision on any question of law – miscarriage of justice – leave to appeal granted – appeal allowed in part – convictions quashed – whether Court should enter verdicts of acquittal or order new trial – verdicts of acquittal entered – resentenced for pervert the course of justice offence CRIME – appeals – appeal against sentence – successful conviction appeal – aggregate sentence quashed – not necessary to determine sentence appeal EVIDENCE – admissibility – tendency – whether trial judge erred by admitting tendency evidence – whether miscarriage of justice occasioned – tendency to intentionally touch body of unconscious female – where tendency suffered from degree of generality – where Crown relied on significantly less serious conduct alleged by tendency witness to prove offence – where evidence did not directly support tendency – weighing of probative value against prejudicial effect EVIDENCE – tendency directions to jury – whether omission to direct jury occasioned miscarriage of justice – whether direction involved error – where jury directed to make anterior findings as to charged and uncharged conduct – standard of proof undermined – real risk jury deflected from fundamental task

Catchwords:

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

Catchwords:

CRIMINAL PROCEDURE – Indictment – Amendment – Appeal where application by the Crown to amend the dates on an indictment previously refused – Amendment to the dates specified on an indictment to capture a period of offending in which time all offences took place – Whether there is irreparable prejudice and, as a consequence of that prejudice, a fair trial cannot occur in circumstances where an amendment to an indictment is requested by the Crown – Where leave of the Court is required to amend an indictment where the accused has not consented – Whether an amendment to an indictment which provided a date range which encompassed the dates earlier pleaded constitutes a new Crown case

Catchwords:

CRIME – appeals – Crown appeal against sentence – federal offences of procuring or attempting to procure persons believed to be children to engage in sexual activity outside of Australia – federal offences of persistent sexual abuse of children outside of Australia – State offence of failing to comply with reporting obligations – guilty pleas – aggregate sentence less than 50 percent of mandatory minimum sentences – nominated indicative sentence less than 75 percent of mandatory minimum sentence for sequence 9 – manifest inadequacy – where respondent conceded all grounds of appeal were established – appeal allowed – resentence SENTENCING – resentence – where it appeared that the persons the subject of the offences were not in fact children – where the Director conceded that it could not be proved they were in fact children – where the concession was wrongly made with respect to certain sequences – respondent’s plea of guilty to some offences not admission of fact with respect to other offences – the Court should do no more than to act on the pleas – offences all objectively serious – offences committed remotely – respondent’s advanced age and health – aggregate sentence imposed pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) – discount for pleas of guilty – equal justice

Catchwords:

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

Catchwords:

CRIME – SENTENCE – appeal against sentence – attempt to import commercial quantity of border-controlled drug – application for leave to appeal out of time – sole ground of appeal based upon Totaan v R [2022] NSWCCA 75 – sentencing judge did not accept hardship to family as exceptional – “Totaan error” - where resentence process undertaken, but no lesser sentence warranted in law – where structure of sentence did not comply with s 19AB of the Crimes Act – where sentence is to be served concurrently for each count

Catchwords:

CRIME – appeals – appeals against conviction – admissibility of tendency evidence – where matters in issue at time of pre-trial ruling not significantly different from matters in issue at close of evidence at trial – where tendency evidence still had significant probative value at close of evidence and probative value outweighed danger of unfair prejudice – where tendency direction given – no error established CRIME – appeals – appeals against conviction – miscarriage of justice – jury directions – tendency directions – content of tendency directions and standard of proof – where directions and summing up when considered as a whole would not deflect jury from their proper task of determining whether elements of offences proved beyond reasonable doubt – no miscarriage of justice EVIDENCE – tendency evidence – significant probative value – where asserted tendency is broad – where there is a gap in period where tendency is asserted – given matters in issue the tendency evidence had significant probative value – where probative value outweighed the danger of unfair prejudice – no error in pre-trial ruling STATUTORY INTERPRETATION – definition – definition of “under authority of” in s 61H(2) Crimes Act 1900 (NSW) – whether person receiving treatment from an osteopath is “in the care of” and thus “under the authority of” the osteopath – no error in so directing jury

Catchwords:

CRIME – appeals – appeal against sentence – imprisonment by way of intensive correction order (“ICO”) – where applicant sentenced to term of imprisonment of 3 years and 6 months for drug and weapon offences – whether sentencing judge ought to have considered ICO as alternative to full-time detention – where ICO only available for aggregate term of imprisonment 3 years or less – whether aggregate ought to have been reduced by the period on remand rather than backdated to date of arrest so that aggregate less than 3 years – enlivening availability of an ICO not a relevant consideration in fixing duration and commencement date where a term of over 3 years is found appropriate CRIME – appeals – appeal against sentence – mitigating factors – whether sufficient weight given to applicant’s uncontested evidence of non-exculpatory duress

Catchwords:

CRIMINAL LAW – procedure – adjournment, stay of proceedings or order restraining proceedings – application for temporary stay of proceedings on the indictment pending outcome of application for leave to appeal against refusal to grant permanent stay pursuant to Criminal Appeal Act 1912 (NSW), s 5F – whether applicant had arguable case that double jeopardy principles would be breached – temporary stay granted

Catchwords:

CRIME – Appeals – Appeal against sentence – Two offences of sexual intercourse without consent – Aggregate non-parole period greater than the sum of the two indicated non-parole periods – The totality principle applies to aggregate sentences – An aggregate non-parole period which exceeded the sum of the indicated non-parole period constituted error – Applicant resentenced

Catchwords:

CRIMINAL LAW – appeal – sentencing – whether manifestly inadequate – principles of Crown appeals – where sentencing young offender – where young offender acting under non-exculpatory duress

Catchwords:

CRIMINAL LAW – procedure – bail – applicant charged with robbery in company while armed with a dangerous weapon – applicant charged with aggravated robbery causing grievous bodily harm – applicant charged with dishonestly obtaining a financial advantage – bail refused by judge of Supreme Court – release application to Court of Criminal Appeal – assessment of bail concerns – failure to appear – commit further serious offences – endanger the safety of victims, individuals or the community – no prior criminal record – strong family ties to community – youth – delay before trial – identification of applicant – strength of Crown case – whether bail conditions met bail concerns – unacceptable risks – application dismissed.

Catchwords:

CRIME – appeals – appeal against sentence – importation of a commercial quantity of a border controlled drug – parity – “marked” disparity need not be “gross” or “glaring” – where the differences in roles and subjective cases warrant different sentences – whether the higher sentence imposed on the applicant gave rise to a justified sense of grievance – leave to appeal granted – appeal dismissed

Catchwords:

CRIME – Appeals – Appeal against sentence – Application for leave to appeal – Possessing a shortened firearm without authority – Possessing an unauthorised firearm – Supplying a prohibited drug – Dealing with suspected proceeds of crime – Whether sentencing judge erred in finding that the principles relevant to sentencing arising from a background of deprivation did not apply to the applicant – Bugmy v The Queen (2013) 249 CLR 571 SENTENCING – Subjective considerations on sentence – Positive and stable upbringing with mother and grandmother – Extended family environment where violence, heavy drinking and drug use and supply observed and normalised – Commencement of alcohol and drug abuse – Countervailing influences – Offender not required to establish “profound” childhood deprivation – No point of principle

Catchwords:

CRIME – appeals – appeal against sentence – manifest excess – supply of firearms and prohibited weapons – possession and unlawful use of firearms – supply of illegal drugs – breaking and entering –totality and notional accumulation – where 50% discount was significantly eroded at the stage of aggregation – excessive accumulation – manifest excess established – applicant re-sentenced

Catchwords:

CRIME – Bail – Appeal bail – Whether court had jurisdiction to hear and determine bail application – Where proceedings not “pending in the court” within the meaning of Bail Act 2013 (NSW), s 61 because notices of appeal not “duly given” for the purposes of Criminal Appeal Act 1912 (NSW), s 10(2) CRIME – Bail – Appeal bail – Whether applicants established “special or exceptional circumstances” to justify decision to grant bail

Catchwords:

CRIMINAL PROCEDURE — Stay of proceedings — Permanent — where permanent stay of criminal proceedings sought as a result of coaching of complainant in charge certification conference by solicitor advocate — where notes of conference later disclosed to applicants’ legal representatives — where application for permanent stay declined at first instance — consideration of statutory obligations on prosecutors — whether applicants could have a fair trial — whether allowing the trial to continue would bring the administration of justice into disrepute —whether undertakings by Crown would mitigate any unfairness — factors relevant to grant of a permanent stay of proceedings CRIME — Appeals — Interlocutory appeal — against decision to refuse a permanent stay — where error shown — whether Court should re-exercise discretion to grant stay

Catchwords:

CRIME – appeals – appeal against sentence – by Crown against inadequacy – where the respondent pleaded guilty to an offence of dangerous driving occasioning death – where the bus driven by the respondent collided with a kerb and continued forward in an area with school children – where the bus collided with a tree and struck a student before coming to a standstill – whether the sentencing judge erred in his assessment of objective seriousness – where there was no misapplication of principle – where a custodial sentence was appropriate – where the sentence imposed bears out the finding of objective seriousness CRIME – appeals – appeal against sentence – by Crown against inadequacy – whether the sentencing judge erred in finding that the respondent “mistakenly put her foot on the accelerator instead of the brake and grappled to no avail with the handbrake” – where CCTV footage and the respondent’s evidence meant the finding was open to the sentencing judge CRIME – appeals – appeal against sentence – by Crown against inadequacy – whether the sentence pronounced is manifestly inadequate – where the sentence fell within the range of sentences contemplated in the guideline judgment – where nothing suggested a sentence within the guideline judgment was not appropriate – where the offender did not have a high level of moral culpability – where the respondent’s subjective case was strong – where there was a finding of special circumstances – where it cannot be said that the sentence lies so far outside the range of appropriate sentences that there must have been an error – appeal dismissed

Catchwords:

CRIMINAL PROCEDURE – suppression and non-publication orders – where the Court published reasons in September 2023 dismissing an appeal from an interlocutory judgment in the District Court – where the Court declined to grant a permanent stay of criminal proceedings – where publication of the Court’s reasons was restricted until completion of the District Court trial – where the District Court trial was completed – where suppression orders were made by the District Court in respect of the identities of a solicitor and solicitor advocate in related proceedings – where the respondent sought amendments to the Court’s reasons in order to redact the initials of the instructing solicitor and solicitor advocate prior to publication – whether suppression orders should be made according to s 8 of the Court Suppression and Non-Publication Orders Act 2010 (NSW)

Catchwords:

CRIME – Appeals – Appeal against sentence – Application for leave to appeal – The relationship between the guideline judgment of R v Ponfield and s 21A of the Crimes (Sentencing Procedure) Act – An offender’s prior criminal history and being subject to conditional liberty at the time of offending not to be taken into account in assessing the objective seriousness of the offence for sentence

Catchwords:

CRIMINAL LAW – appeals – appeal against sentence – whether error in not applying statutory numerical discount for guilty plea entered after trial commenced – error conceded – question of whether any lesser sentence warranted in law– question of whether applicant’s moral culpability should be reduced – approach to Bugmy considerations – approach on resentence – serious offending over many years – multiple child victims – leave granted – appeal against sentence dismissed

Catchwords:

CRIMINAL APPEALS – sentence appeal – miscarriage of justice – asserted conflict of interest in counsel acting at first instance – no evidence to establish conflict – no rule that the same advocate cannot appear for two offenders in sentencing proceedings – fact that a different submission conjured by appellate counsel “could” have been made establishes little or nothing – invariably the case – no waiver of privilege – reliance on record of court below – no evidence tendered on appeal – no merit in ground – no evidence of practical injustice – appeal dismissed

Catchwords:

CRIMINAL LAW – appeals – appeal against sentence – whether sentencing judge erred in his finding of no reduction to moral culpability on the basis of neurocognitive disorder – whether sentencing judge erred in his findings regarding general deterrence – De La Rosa principles

Catchwords:

CRIME – Appeals – Appeal against sentence – Application for leave to appeal – Offences of sexual intercourse with children outside Australia and possessing child abuse material – Whether the sentencing process miscarried – Whether the sentencing judge erred in her consideration of the age of the victims – Whether the sentencing judge mistook the statutory age limit of an offence provision – Whether the sentencing judge erred in incorrectly stating an offence provision – No point of principle

Catchwords:

CRIMINAL PROCEDURE — s 5F Criminal Appeal Act 1912 — temporary stay of proceedings granted to enable applicant to seek leave to appeal against a decision of the District Court refusing a permanent stay application — reluctance of appellate courts to fragment criminal proceedings at first instance — prospects of appeal succeeding and balance of convenience considered CRIMINAL PROCEDURE — whether plea bargains are a form of contractual undertaking — whether arguable that an abuse of process on the part of the Crown to reinstate charges that it agreed not to prosecute pursuant to a plea bargain with the applicant

Catchwords:

CRIME — Appeals — Appeal against sentence — By Crown against inadequacy — issue of totality and accumulation of the overall non-parole period — where respondent was serving three pre-existing sentences — whether undue weight placed on the non-parole period ratio and insufficient weight on other relevant sentencing factors including deterrence and denunciation — need to maintain public confidence in the administration of justice — whether Court should exercise residual discretion and re-sentence the respondent

Catchwords:

CRIME - appeals - appeal against conviction – application of proviso - joint criminal enterprise – directions to jury as to elements of offence – Crown conceded that trial judge misdirected the jury – miscarriage of justice established – whether no substantial miscarriage of justice actually occurred – where there was no substantial miscarriage of justice and the proviso should be applied CRIME - appeals - appeal against conviction - unreasonable verdict – if manslaughter was excluded as having been the appropriate verdict – where evidence before the jury amply supported a verdict of murder

Catchwords:

CRIME — appeals — appeal against conviction — miscarriage of justice — tendency evidence — where applicant convicted of seven counts of sexual offending against his daughter — where applicant convicted of two counts of possession of child abuse material — whether failure to give anti-tendency direction occasioned miscarriage of justice — whether objectively reasonable for defence counsel at trial not to seek anti-tendency direction — whether alleged errors in tendency direction occasioned miscarriage of justice CRIME — appeals — appeal against conviction — miscarriage of justice — tendency evidence — whether alleged irregularities in treatment of tendencies and supporting evidence at trial occasioned miscarriage of justice CRIME — appeals — appeal against conviction — miscarriage of justice — whether proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW) applies CRIME — duties of prosecutor — tendency evidence

Catchwords:

CRIME – appeals – appeal against sentence – cultivation of prohibited plants by enhanced indoor means – pervert the course of justice – whether denial of procedural fairness – where sentencing judge rejected evidence in psychologist’s report – where no indication issue taken – psychologist’s conclusion a matter of speculation – inherently implausible – no practical injustice – leave to appeal granted – appeal dismissed

Catchwords:

CRIME – appeals – appeal against sentence – statutory aggravating factors – where the sentencing judge found that the offence was aggravated by reason of being committed “without regard for public safety” – where such a finding was not pursued by the Crown, conceded by the defence or foreshadowed by the sentencing judge – procedural fairness – threshold of materiality – where finding inevitable – no practical injustice – appeal dismissed CRIME – appeals – appeal against sentence – manifest excess – whether sufficient weight given to subjective case – where sentence “stern” but not unreasonable nor unjust – sentence within range of available sentences – appeal dismissed

Catchwords:

CRIMINAL LAW – appeal against conviction – lengthy delay in instituting appeal – where applicant accused of complicity with father in murder of wife’s lover – “honour killing” – whether conduct of Prosecutor led to a “miscarriage of justice” – religious and cultural stereotypes – cross-examination as to applicant’s religious beliefs – conduct not necessary but not improper – issue raised squarely at the commencement of prosecution opening statement – no objection taken – different approaches to “miscarriage” – where High Court reserved on issue – presumptuous and barren exercise to predict outcome – befuddling – alternative approaches considered – strength of prosecution case – application of proviso – whether no substantial miscarriage actually occurred CRIMINAL LAW – “Shepherd” direction – whether motive or “honour killing” theory required proof beyond reasonable doubt – directions on circumstantial evidence orthodox and correct – specific direction not sought at trial – no merit in ground – leave to appeal on specific ground refused CRIMINAL LAW – conditions of incarceration – ground asserting transport and conditions establishing a miscarriage – where trial Judge sympathetic and granted adjournments when requested – serious issue raised but no miscarriage established

Catchwords:

CRIME – appeals – appeal against sentence –appeal out of time – extension granted – significant volume of child abuse material – bestiality material – prohibited firearms – prohibited weapons – State and federal offences – whether error in accumulation of State aggregate sentence on federal aggregate sentence – whether State aggregate sentence manifestly excessive – special circumstances – recognizance release order SENTENCING – aggregate sentences – State and federal offences – cumulation – complexity – frustration and unnecessary public cost – punishment exacted should reflect what an offender has done – effect of other offences on appropriate penalty

Catchwords:

CRIME – appeals – appeal against sentence – where the applicant pleaded guilty to one count of intentionally causing grievous bodily harm at a super call-over – where the applicant struck the victim in the eye causing permanent damage – where the sentencing judge combined discounts under ss 22A and 25D of the Crimes (Sentencing Procedure) Act 1999 – whether the sentencing judge erred in rounding down the discount to even months – where the rounding down of the discount reduced the discount – where the sentencing judge was obliged to provide the stipulated discount in s 25D – ground of appeal upheld – where it was still necessary to resentence the applicant – error not an arithmetical or date error CRIME – appeals – appeal against sentence – objective seriousness – whether the sentencing judge erred in assessing objective seriousness – where the onus was on the applicant to show that a lack of planning should be a mitigating factor – where the offence was typified by jealousy – where there was a history of domestic violence – where the lack of planning was insignificant – ground rejected CRIME – appeals – appeal against sentence – where the applicant was diagnosed with PTSD and alcohol/substance abuse disorder – where submission made that applicant was not a suitable vehicle for general deterrence - where the sentencing judge did not engage with the effect of the mental health issues on deterrence – where the sentencing judge erred by not referencing general deterrence – ground upheld

Catchwords:

Crime – Appeals – Appeal against sentence of 48 years’ imprisonment – Application for leave to appeal – multiple child sexual offences – sexual offending against biological daughters – offending that is “heinous, depraved and appalling” – asserted failure of sentencing judge to take into account the applicant’s own history of child sexual abuse –asserted error in finding the applicant’s mental health issues increase the need for specific deterrence and protection of the community – manifest excess – appeal allowed – applicant resentenced

Catchwords:

CRIME – appeal against sentence – child sexual assaults – whether additional evidence of sexual assaults against the applicant should be admitted – characterisation of the additional evidence as “fresh” or “new” evidence – evidence admitted – appeal allowed – applicant resentenced

Catchwords:

CRIME – appeals – appeal against sentence – alleged error in finding transgender applicant did not have difficult and dysfunctional early life and difficulties which wreaked havoc on her life – sentencing judge did not set criteria to be established prior to considering applicant’s transgender status – no miscarriage of justice or unfairness established by not finding facts which findings had not been sought

Catchwords:

CRIME – Bail – show cause test – conspiracy to import a border controlled drug – aid and abet the attempted importation of a border controlled drug – AN0M devices – strength of prosecution case – longer delay – cause shown – unacceptable risk test – stringent conditions – bail granted

Catchwords:

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Offence of aggravated indecent assault – Where complainant accepted difficulties in memory and recall of events – Whether internal discrepancies and inconsistencies present in complainant’s evidence – Whether complainant’s memories of sexual intercourse and lack of consent reliable – Whether complainant credible – Strong corroboration of complainant’s evidence – Inconsistencies immaterial to credibility and reliability – Jury’s verdict reasonable – Leave to appeal granted – Appeal dismissed CRIME – Appeals – Appeal against conviction – Miscarriage of justice – Where complaint witness not called by Crown – Where trial judge did not give direction after brief enquiry from counsel – Where Crown opening indicated that witness would not be called – Whether Mahmood direction required – No expectation for Crown to call complaint witness – Complaint witness not essential or material – Absence of Mahmood direction to the benefit of the applicant’s submission to the jury – No requirement for Mahmood direction – No miscarriage of justice – Leave to appeal granted – Appeal dismissed

Catchwords:

SENTENCING — appeal against sentence — general principles — instinctive synthesis — where sentencing judge failed to adopt the ‘instinctive synthesis’ approach to sentencing SENTENCING — appeal against sentence — where applicant sentenced in 2015 — extension of time to appeal — not opposed SENTENCING — relevant factors on sentence — objective seriousness — parity — hardship to applicant’s family SENTENCING — relevant factors on sentence — discount on sentence — plea of guilty — cooperation with law enforcement agencies in the investigation of the offence

Catchwords:

CRIME – appeal against sentence – child sex offences – finding of special circumstances – grounds were age of offender, first period of imprisonment, mental condition and rehabilitation – adjustment to non-parole period from the statutory ratio refused because no need for extended period of rehabilitation – other grounds remained – error in not adjusting non-parole period – offender resentenced

Catchwords:

CRIME – appeals – appeal against conviction – where the applicant and co-accused were charged with murder – where the Crown case was that the deceased died because one or other or both of the applicant and co-accused injected the deceased with drugs – where jury initially directed that if deceased self-injected the applicant was not liable – where trial judge permitted Crown to broaden its case after jury sent out to deliberate – whether trial judge erred by permitting the jury to find the applicant guilty of manslaughter in circumstances of a self-killing – where jury redirected inconsistently with IL v The Queen - where there can be no liability for the applicant for manslaughter in accordance with IL – conviction and sentence quashed – new trial ordered

Catchwords:

CRIME – Appeals – appeal against sentence – sentencing for state and federal offences – whether the total effective sentence is manifestly excessive – consideration of manifest excess in the absence of comparative cases – totality – leave to appeal granted – appeal upheld – resentenced

Catchwords:

CRIME — appeals — appeal against conviction — unreasonable verdict — whether each or either verdict of guilty in relation to two counts of sexual intercourse without consent cannot be supported having regard to evidence CRIME — appeals — appeal against sentence — application for leave to appeal out of time — application not opposed CRIME — appeals — appeal against sentence —miscarriage of justice — whether discrepancies between the sentencing judge’s findings and evidence — where no objection taken at trial — whether errors of fact capable of influencing sentencing discretion — whether lesser sentence warranted in law

Catchwords:

CRIME – Appeals – Crown appeal – offences of dangerous driving occasioning grievous bodily harm and failing to stop and assist after vehicle impact occasioning grievous bodily harm – whether the sentencing judge took into account self-induced intoxication as a mitigating factor – whether the sentencing judge erred in his approach to imposing an ICO – manifest inadequacy – exercise of the residual discretion

Catchwords:

CRIME — appeal against sentence — whether error in applying discount for guilty pleas — whether error in failing to have regard to offender’s mental illness — whether additional evidence of historical sexual abuse should be admitted on appeal — no challenge to such evidence and its effect on offender’s later life — evidence admitted appeal allowed and offender resentenced

Catchwords:

CRIME – appeal against sentence – conviction for being accessory after the fact to murder – offender said to have acted out of “misguided sense of loyalty” to brother – lengthy criminal history – risk of institutionalisation – low objective gravity – manifest excess EVIDENCE – sentencing on basis of agreed facts – agreed facts in relation to sentencing of co-offender tendered on issue of parity – agreement in that case that brother shot victim not accepted as a fact – rules of evidence not applicable – no error in refusing to rely on facts agreed in other case except on parity

Catchwords:

CRIME – appeals – appeal against conviction –miscarriage of justice – jury directions – tendency directions – content of tendency directions and standard of proof – potential for impermissible circular reasoning by jury – on summing up viewed as a whole jury not deflected from proper task – no miscarriage of justice CRIME – appeals – appeal against sentence– aggregate sentence – obligation to indicate sentences that would have been imposed if aggregate sentence not imposed – indicative sentences where s 5 Crimes (Sentencing Procedure) Act threshold may not be crossed for offences in isolation – no error in indicating sentences of imprisonment for those offences in the circumstances CRIME – appeals – appeal against sentence– sentencing considerations – interaction of non-parole period and life expectancy of offender – where trial judge considered life expectancy in determining non-parole period but did not apply a mechanical formula – no error

Catchwords:

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

Catchwords:

CRIME – appeals – appeal against a special verdict of act proven but not criminally responsible – where trial judge considered accused presented unusually on complainant’s account of acts charged, on body worn police camera and in court – where accused expressly and repeatedly disavowed potential mental health defence – where both accused and Crown opposed to special verdict at trial – where accused gave evidence of historical brain injury – where no expert evidence about effect of any potential impairment on accused’s brain and cognitive functioning – where special verdict entered

Catchwords:

CRIME – appeals – appeal against sentence – armed robbery – where co-offender’s sentence successfully appealed – parity – where disparity between applicant and co-offender – whether justifiable sense of grievance – appeal dismissed

Catchwords:

SENTENCING – Appeal against sentence – Severity – Sentence manifestly excessive – Relevant factors on sentence – Objective seriousness – Sentencing statistics – Aggravating factors – Where actual bodily harm is inflicted – Where the aggregate sentence falls within the discretionary range allowed to a sentencing Judge CRIMINAL PROCEDURE – Sentencing proceedings – Whether comparable cases are relevant in determining duration of imprisonment and non-parole period – Whether comparable sentences fix an outer limit for the imposition of rational sentences

Catchwords:

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

Catchwords:

CRIME — fraud — dishonestly cause financial disadvantage by deception — directions as to elements of offence — whether a further mental element applies to financial disadvantage outcome element — where point not raised below CRIMINAL PROCEDURE — trial — judge alone — character evidence — whether sufficient consideration given to own directions about character evidence — impact of prior good character on likelihood of offending CRIMINAL PROCEDURE — trial — judge alone — witness evidence — warnings — unreliable evidence — whether trial judge had proper regard to own directions as to reliability of witnesses — where witnesses may have been involved or culpable in offending conduct CRIME — appeals — appeal against conviction — unreasonable verdict — whether crown proved elements of offence beyond reasonable doubt CRIME — appeals — appeal against conviction — miscarriage of justice — whether charged conduct described differently in indictment, crown case, and trial judge’s directions — whether applicant “submitted” falsified documents to bank — whether sufficient that applicant caused falsified documents to be submitted to bank CRIME — appeals — appeal against sentence — taking into account an irrelevant consideration — misapplication of principle — fraud — whether corollary deception and breach of trust relevant CRIME — appeals — appeal against sentence — misapplication of principle — specific deterrence — whether error in conclusion that specific deterrence not mitigated by prior good character and lack of subsequent offending

Catchwords:

CRIME – APPEALS – Crown appeal against sentence – persistent sexual abuse of a child – s 66EA of the Crimes Act – particularisation of individual incidents during the course of a sexually abusive “relationship” – where sentencing judge misapprehended that he had to be satisfied of each incident beyond reasonable doubt – resentencing where sentencing judge did not make an express finding as to reliability of a witness – remittal to sentencing judge

Catchwords:

CRIME – Appeals – Appeal against sentence – error by primary judge when backdating the commencement date of the sentence to the expiration of a non-parole period imposed for a separate sentence – whether error could be remedied by simple adjustment or whether the error required the court to re-exercise the sentencing discretion – whether error constituted a Kentwell error – principle of totality – re-sentencing required – Court not satisfied a lesser sentence warranted at law – sentence backdated to correct date of expiration of the non-parole period of the separate sentence

Catchwords:

CRIME – Appeals – appeal against sentence – plea of guilty – willingness to facilitate the course of justice – failure to address submission – expert evidence re relevance of ADHD not challenged – denial of procedural fairness in rejecting expert evidence – challenge to finding of role in hierarchy – error established – applicant re-sentenced

Catchwords:

CRIME – appeal against convictions – judge only trial – dishonestly destroy property by fire – dishonestly obtaining financial advantage – dealing with proceeds of crime – applicant was convicted of destroying his own house by fire – applicant’s expert evidence not accepted – adverse credibility findings against applicant CRIME – appeal against convictions – incompetence of counsel – whether counsel unprepared and failed to obtain critical evidence – refusal to waive privilege CRIME – appeal against convictions – further expert evidence – motion to tender new evidence – whether applicant’s new evidence available at time of trial – application refused

Catchwords:

CRIME – appeals – appeal against sentence – whether there was a failure to consider hardship of incarceration – whether sentence manifestly excessive

Catchwords:

CRIME – appeals – appeal against conviction – whether miscarriage of justice occasioned as applicant could not in law have been convicted of the common law offence of escaping from lawful custody – whether common law offence of escaping is a continuing offence – where applicant was in the process of escaping from police – whether there is a temporal limitation to the offence – whether R v Tommy Ryan should no longer be followed CRIME – appeals – appeal against sentence – whether error in commencement date of aggregate sentence CRIME – appeals – appeal against sentence – whether incorrect maximum penalty applied for driving whilst disqualified offences – where maximum penalty of the offences was reduced following amendments made to the Road Transport Act 2013 (NSW) in 2017 – where error conceded CRIME – appeals – appeal against sentence – whether leave should be granted to advance further ground of appeal – whether error in the judge finding that applicant was not sexually abused in juvenile detention – where fresh and new evidence on appeal of applicant’s sexual abuse – where absence of that material during sentencing proceedings deprived the judge of fully appreciating and considering applicant’s sexual abuse – whether miscarriage of justice

Catchwords:

CRIME – appeals – appeal against sentence – where the applicant pleaded guilty to one count of sexual intercourse without consent – where the offence was aggravated by its occurrence in the victim’s home – where the sentencing judge incorrectly concluded that the applicant was on bail for other offences – re-sentence – whether a lesser sentence is warranted – where applicant comes from a deprived background – where applicant has low level cognitive intellectual capacity – where the applicant failed to express remorse – where prospects of rehabilitation are guarded – where there was a finding of special circumstances – where the original sentence was lenient – no lesser sentence imposed – appeal dismissed

Catchwords:

CRIME – Appeals – appeal against sentence – multiple prohibited drugs and firearms offences – aggregate sentence – manifest excess – totality

Catchwords:

CRIME – appeals – appeal against sentence – manifest excess – where the applicant was sentenced for 2 counts of supplying not less than a large commercial quantity of lysergide (LSD) – whether sentence was unreasonable or plainly unjust

Catchwords:

CRIME — appeals — appeal against conviction — application for leave to appeal — where applicant convicted of 3 sexual offences under authority — where application for complainant to give further evidence by way of cross-examination pursuant to s 306J of the Criminal Procedure Act 1986 (NSW) refused by trial judge — where further evidence only relevant to credibility of complainant — whether further cross-examination of complainant “could substantially affect the assessment of the witness” (s 103(1) Evidence Act 1995 (NSW)) CRIME — meaning of “good character” — positive (good works) and negative aspects (absence of prior convictions or lack of history of criminal or blameworthy conduct) — depends on context SENTENCING — appeals — appeal against sentence — application for leave to appeal — mitigating factors — good character — where applicant had prior criminal history but no convictions — where trial judge ruled applicant not entitled to leniency on sentence otherwise available to person of good character because of criminal history

Catchwords:

CRIME — Appeals — Appeal against sentence — Manifest excess — whether failure to apply correct principle with respect to the quantification of a discount for the applicant’s pleas of guilty — s 16A(2)(f) of the Crimes Act 1914 (Cth) — contrition involving facilitation of the course of justice — no lesser sentence warranted

Catchwords:

CRIME – Appeal – appeal against sentence – error in having regard to Form 1 in assessment of objective seriousness for principal offences – where error conceded - resentence

Catchwords:

CRIME – appeals – appeal against sentence – assistance to authorities – discount under s 23 Crimes (Sentencing Procedure) Act 1999 (NSW) – where the sentencing judge failed to consider the applicant’s assistance to authorities while on remand – negligible connection between the applicant’s offences and the offending in respect of which the applicant is said to have provided assistance – exercise of discretion to decline to provide a discount on re-sentence

Catchwords:

CRIME – appeals – appeal against conviction – judge alone trial - where the applicant was convicted of 11 counts of sexual intercourse with a child and 1 one count of indecent assault – whether the applicant did not have a trial according to law due to the trial judge reversing the evidentiary and persuasive burdens of proof – where the judgment was effectively an ex tempore judgment – where the posing of rhetorical questions did not insinuate that there was an onus on the applicant – where the trial judge clearly stated the correct principles regarding onus and burden of proof – ground of appeal rejected CRIME – appeals – appeal against conviction – whether the trial judge erred by failing to expose his reasoning linking the relevant legal principles to the findings – where applicant highlighted four areas where directions were not given or were said to be inadequate – where the trial judge’s reasons made clear that reliance on an alibi does not shift the burden of proof – where the trial judge was not obliged to direct himself how character evidence was to be used – where a Liberato direction was not required – where no occasion arose to apply the Markuleski direction because complainant’s evidence not found unreliable on any count – ground of appeal rejected – appeal dismissed

Catchwords:

CRIME – appeals – appeals against sentence – one count of dishonestly obtain by deception a financial advantage – where applicant is self-represented – where applicant has raised eight grounds of appeal – alleged error in the backdating of sentence to account for pre-sentence custody – alleged errors in weight afforded to various factual matters – no error by sentencing judge established – leave to appeal granted – appeal dismissed

Catchwords:

CRIME – appeals – appeal against conviction – whether unreasonable verdict – where the accused was found guilty of manslaughter – where the deceased was found tied up upside down partially submerged in water in a wheelie bin – where the autopsy could not determine the cause or manner of death - where the jury were told they had to exclude any independent causes of death before returning a verdict of guilty – where the tendency evidence of violence by applicant towards deceased was very strong – where admissions made to two witnesses -where the forensic evidence included the applicant’s DNA and fingerprints at the crime scene - where there was limited evidence pointing to any motive or opportunity for other suspects – where it was not a reasonable possibility that the deceased died of a drug overdose – where evidence supported the conclusion that the applicant caused the deceased’s death – where no unanimity direction was required as to which act caused death – evidence supported the jury’s verdict of guilty

Catchwords:

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

Catchwords:

CRIME – appeal against interlocutory order – Crown appeal under s 5F Criminal Appeal Act 1912 (NSW) – offence of attempting to possess a marketable quantity of an unlawfully imported border control drug – preliminary question of jurisdiction – whether exclusion of evidence “substantially weakens” Crown case – evidence excluded by trial judge as tendency evidence – where Crown does not rely upon evidence as tendency evidence - whether evidence goes to the respondent’s state of mind – whether evidence relevant for other uses – evidence available to rebut defence case – question of unfair prejudice – capacity for directions to cure unfairness

Catchwords:

CRIMINAL APPEAL – unreasonable verdict – circumstantial case – correct approach to review on appeal – armed robbery of private poker game – Texas Hold’em – whether trial judge erred in refusing to direct acquittal – relevance of trial judge’s “inclination” expressed in argument that prosecution case not strong – joint criminal enterprise – where applicant alleged to be “inside man” – participation in card game a ruse – evidence that applicant entered the building with robber – Honda Jazz – analysis of prosecution’s case on appeal – forensic evidence and timing of events – erroneous piecemeal approach to circumstantial evidence – unwarranted criticism of concessions made by trial counsel – whether inferences consistent with non-participation excluded beyond reasonable doubt CRIMINAL LAW – “in company” – joint criminal enterprise – proper direction to jury – where no objection to directions at trial – where directions fashioned to issues litigated at trial – sole issue whether applicant joined and participated in joint criminal enterprise – where enterprise alleged was to commit armed robbery in company – no error in circumstances of the case – leave granted but ground not sustained CRIMINAL LAW – requirements of summing up – whether trial judge failed to explain elements and legal principles – whether trial judge failed to summarise cases of the parties – no complaint at trial – no substance in ground of appeal – leave to rely on ground refused

Catchwords:

Crime – appeals – appeal against sentence – manifest excess

Catchwords:

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

Catchwords:

CRIME — appeals — appeal against conviction — inconsistent verdicts — where applicant convicted of 11 sexual offences against two children — where applicant was acquitted of one count charged — whether there was rational explanation for the acquittal — where complainant’s evidence of acquitted count was uncertain compared to her evidence of other counts CRIME — appeals — appeal against conviction — unreasonable verdict — where applicant convicted of 11 sexual offences against two children — whether alleged implausibility of complainants’ versions (because the conduct was so brazen) resulted in an unreasonable verdict — where offending conduct was committed in plain sight or when others were nearby — whether disparities between complainants’ versions and evidence of complaint witnesses resulted in unreasonable verdict CRIME — appeals — appeal against conviction — miscarriage of justice — application of proviso — where applicant convicted of sexual intercourse without consent contrary to s 61D(1) of the Crimes Act 1900 (NSW) — where complainant was under 16 years old — where Crown was required to prove the complainant did not consent to sexual intercourse — where trial judge misdirected jury as to consent element of offence — where defence counsel agreed to direction as given — whether misdirection resulted in substantial miscarriage of justice — whether proviso ought be applied

Catchwords:

CRIMINAL LAW – sentence appeal – sexual intercourse with a child aged between 14 and 16 years – whether trial judge erred by making findings of fact concerning counts on which the jury returned not guilty verdicts – whether trial judge erred in failing to find that offender’s alcohol abuse and post traumatic stress disorder reduced moral culpability – whether aggregate sentence manifestly excessive – manifest excess established – appeal allowed – sentence reduced on re-sentence

Catchwords:

CRIME – appeals – appeals against sentence – disparity between sentences –– whether justifiable sense of grievance by reason of sentence imposed on co-offender – ground not made out

Catchwords:

CRIME – Bail – bail pending appeal – attempt to reopen the Court’s dismissal of application – no question of principle

Catchwords:

CRIME — Appeals — Appeal against sentence — Juvenile offender — Mental health — Moral culpability — General deterrence — Bugmy v The Queen — Youth — Where applicant subject to conditional liberty at time of offence — Manifest excess

Catchwords:

CRIMINAL LAW – bail – application to vary bail by deleting all bail conditions – where bail was granted in the Supreme Court and subsequently varied in the Local Court – Court had jurisdiction to hear the application where the bail decision in the Supreme Court remained operative – application determined on merits

Catchwords:

CRIME – appeal against aggregate sentence – steal from the person and fraud offences – sentencing judge erred in considering conditional liberty in assessment of objective seriousness – submission made on resentencing that conflicted with concession in court below – applicant held to concession – no lesser sentence warranted

Catchwords:

CRIME – Appeals – aggravated enter dwelling with intent – steal property from dwelling house – larceny – whether there was a miscarriage of justice arising from the failure of the applicant’s legal representatives to place important evidence relevant to the applicant’s subjective case – respondent’s concession that it is open to the Court to find the ground of appeal established – the absence of the material deprived the sentencing judge of a full consideration of the applicant’s circumstances – miscarriage of justice established – ground upheld – resentence

Catchwords:

CRIMINAL LAW — Appeals — Crown appeal against sentence — Manifest inadequacy — Aggregate sentence — Totality — Aggregate sentence not reflecting the totality of the criminality — Appeal dismissed.

Catchwords:

SENTENCING — appeal against sentence —arithmetical error by sentencing judge when calculating commencement date SENTENCING — appeal against sentence —discretion of sentencing judge to direct sentence to commence from date prior to that upon which it is imposed — whether sentencing judge erred in their exercise of this discretion — whether sentencing judge failed to take into account all of the applicant’s pre-sentence custody pursuant to s 24 of the Crimes (Sentencing Procedure) Act 1999 (NSW)

Catchwords:

CRIMINAL PROCEDURE – Costs – Costs in Criminal Cases Act 1967 (NSW) – Whether it would not have been reasonable for the Crown to institute proceedings if the prosecution had been in possession of evidence of all the relevant facts.

Catchwords:

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Child sex offences – Where offending occurred over a period of four months – Whether complainant’s lack of credibility and inconsistencies in evidence were such that jury should have had reasonable doubt as to applicant’s guilt – Appeal allowed CRIME – Appeals – Appeal against conviction – Inconsistent verdicts – Where logical basis to find applicant not guilty on counts where date essential element – Where no logical basis to distinguish other verdicts – Appeal allowed

Catchwords:

CRIME - sentencing - aggregate sentences - parity - where sentence imposed on co-offender very lenient and (by majority) erroneously so - application of principles stated in R v Green; R v Quinn

Catchwords:

SENTENCING – objective seriousness – whether judge erred in finding that offender was a “trusted middle-man” in a hierarchy in the absence of details of the hierarchy – sentencing judge’s finding open on evidence SENTENCING – whether aggregate sentence manifestly excessive – whether indicative sentences were individually excessive leading to the aggregate sentence being manifestly excessive – indicative sentences not individually excessive – aggregate sentence reflected totality of criminality involved and was not unreasonable or plainly unjust – aggregate sentence not manifestly excessive

Catchwords:

CRIMES – appeals – appeal against conviction – trial not according to law – majority verdict – failure to examine juror under oath on the likelihood of reaching a unanimous verdict pursuant to s 55F(2)(b) Jury Act 1977 (NSW) – appeal allowed

Catchwords:

CRIME – Appeals – Appeal against conviction – Incompetence of counsel – Where applicant charged with single count of sexual intercourse without consent – Where sole issue in trial was whether the sexual intercourse was consensual – Where applicant’s trial counsel consented to the admission of inadmissible evidence contained within the body worn videos of police and ERISP – Unfair prejudice to the applicant through admission of evidence contained in body worn video established – Slight forensic advantage to the applicant outweighed by significant forensic disadvantage – Miscarriage of justice established – Conviction and sentence quashed

Catchwords:

CRIME — appeals — appeal against sentence — by Crown against inadequacy — two unrelated sets of offences — where no patent error in sentencing remarks — indicative sentences did not reflect objective seriousness — accumulation of sentences — aggregate sentence manifestly inadequate — respondent re-sentenced

Catchwords:

CRIME – application for leave to appeal against sentence – appeal against sentence – casting upon a person an explosive substance, namely petrol, with intent to burn, maim, disfigure or disable the person – whether sentence manifestly excessive – ground not made out – appeal dismissed

Catchwords:

CRIME – bail – bail pending conviction appeal – unrepresented applicant – where Court heard full argument on application for leave to appeal prior to application for bail – not a course routinely taken – whether the applicant has established special or exceptional circumstances – length of sentence – prospects of success on appeal – personal circumstances – health concerns – particular concerns with respect to the applicant’s children and grandchild – personal circumstances weighed against all matters – application refused

Catchwords:

CRIME — appeals — appeal against conviction — miscarriage of justice — where trial judge allowed witness to refresh memory in court in the absence of jury — where witness was in custody prior to hearing and did not have opportunity to read his statement — where applicant’s counsel did not oppose this course — whether this process was so irregular that it constituted a miscarriage of justice — whether witness was pressured to give evidence in accordance with his prior statements — whether applicant was prejudiced — whether outcome of trial was capable of being affected CRIME — appeals — appeal against sentence — error in commencement date — commencement date backdated to reflect all of applicant’s time in custody

Catchwords:

CRIMINAL LAW – SENTENCE APPEAL – Commonwealth offence – mandatory requirement to take into account prospects of rehabilitation – Crown concession error established – Kentwell error – appeal allowed – resentence – mid-range objective seriousness – subjective value of guilty plea – moderate prospects of rehabilitation.

Catchwords:

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – two counts of sexual offences – where applicant found guilty on one count and acquitted on the other – whether on all of the evidence it was open to the jury to be satisfied of the applicant’s guilt beyond reasonable doubt – discrepancies and inconsistencies in complainant’s evidence – appeal allowed – conviction quashed.

Catchwords:

CRIME – Bail – bail pending appeal – where previous appeal bail applications refused by Court of Criminal Appeal – Bail Act 2013 (NSW) – ss 22 and 74 – whether change in circumstances since previous application – unrepresented applicant – strength of the proposed grounds of appeal – capacity to prepare appeal in custody – conditions in custody – whether the applicant has established special or exceptional circumstances – application dismissed

Catchwords:

CRIME — Appeals — Appeal against sentence — Where sentencing judge took into account applicant’s juvenile criminal record — Where sentencing judge erroneously took into account unproved allegations — Bugmy v The Queen

Catchwords:

CRIME — Appeals — Application for leave to appeal against convictions — Unreasonable verdict — Child sexual assault offences

Catchwords:

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

Catchwords:

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Child sex offences – Sexual intercourse with child <10 – Procuring or grooming child for unlawful sexual activity – Where applicant was the complainant’s grandfather – Where offending occurred over a period of four years – Whether inconsistencies between complainant’s account and objective evidence were sufficient that jury should have had reasonable doubt as to applicant’s guilt

Catchwords:

CRIME — Application for leave to appeal against convictions — Unreasonable verdicts — Black direction — Markuleski direction

Catchwords:

CRIME – appeals – appeal against conviction – miscarriage of justice – s 165(1)(d) of the Evidence Act 1995 (NSW) – where the Applicant contended that the Crown did not exclude the reasonable possibility his brother had committed the attack on the victim – whether the evidence of the Applicant’s brother was “evidence of a kind that may be unreliable” in the sense that it was given by a witness “who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding” CRIME – appeals – appeal against conviction – unreasonable verdict – whether there was a reasonable possibility that a person other than the Applicant was responsible for the attack on the victim – where the DNA of the Applicant, the victim and a third person found on nunchucks used in the attack which were located in the Applicant’s room – where the Crown case relied on a large body of circumstantial evidence CRIME – appeals – appeal against sentence – manifest excess – whether sentence was unreasonably or plainly unjust

Catchwords:

CRIME – appeal against sentence – aggregate sentence – sexual offending with minor – producing child abuse material – findings as to objective seriousness – whether sufficiently identified – whether sentence manifestly excessive

Catchwords:

BAIL – application to vary conditions of bail granted by Court of Criminal Appeal – self-represented litigant – application to dispense with bail – submissions inviting the court to review the applicant’s original conviction – court lacking in jurisdiction – applicantion to bring to an end all extant prosecutions for breaches of child protection register – court lacking such broad reaching power – application to dispense with bail rejected BAIL – where Court of Criminal Appeal granted bail on conditions – where Local Court judge added a condition later that the applicant report to police each week – condition added days after this court settled on conditions – no explanation for Local Court’s decision to impose more onerous condition – statutory requirements as to conditions – necessary and appropriate – proportionate to circumstances of offence – reporting condition deleted

Catchwords:

CRIME — Appeals — Appeal against sentence — Application for leave to appeal — Manifest excess — Whether sentence plainly unjust in all the circumstances of the case

Catchwords:

JUDGMENTS AND ORDERS – Appeal raising issue materially indistinguishable from co-accused’s earlier appeal – No compelling reason shown for departure from the earlier decision APPEALS – Procedure – Time limits – Delays not to be held against applicants in the circumstances

Catchwords:

CRIMINAL LAW – Practice and procedure – Where applicant and co-accused jointly indicted for two counts of robbery in company – Where the evidence relied upon by the Crown against each of them essentially the same but for two telephone conversations between the co-accused and a witness – Where co-accused made admissions during those conversations – Where neither the co-accused or the witness implicated the applicant in the offending or made any reference to him – Where the applicant’s application for a separate trial was refused by the trial judge – Whether trial judge erred in the exercise of his discretion in refusing the application for a separate trial – No specific prejudice to the applicant by virtue of the admission of the conversations in a joint trial – Where jury would be directed not to have regard to those conversations when considering the case against the applicant – Appeal against the decision of the trial judge dismissed

Catchwords:

CRIME – appeals – appeal against sentence – denial of procedural fairness – whether sentencing judge rejected applicant’s evidence of childhood abuse – whether any indication was given to applicant that issue was to be taken CRIME – appeals – appeal against sentence – denial of procedural fairness – where sentencing judge rejected applicant’s evidence in psychological report CRIME – appeals – appeal against sentence – re-sentence

Catchwords:

CRIME — Appeals — Application for leave to appeal against sentence — Assault offence in custody by young offender — Previous sentence being served — Failure to provide reasons — Totality — Manifest excess — No point of principle

Catchwords:

CRIME – Appeals – interlocutory appeal – decision to refuse a permanent stay – whether the primary judge made interlocutory orders about the availability of defences – difference between indicative rulings and interlocutory orders – criteria for leave to appeal from interlocutory decision in criminal proceedings – whether there was an error of principle and possibility a likelihood of substantial injustice – leave to appeal refused

Catchwords:

CRIME – Appeal against sentence – One count of cause grievous bodily harm with intent to cause grievous bodily harm – Whether sentencing judge failed to give legally sufficient reasons for declining to find that the applicant’s mental health conditions contributed to the offending – Where opinion of forensic psychologist is based upon facts favourable to the applicant not found by the sentencing judge – Whether sentencing judge erred in failing to find that the applicant was provoked and/or whether she provided legally sufficient reasons – Whether sentencing judge made “material factual error” – No error by sentencing judge established – Leave to appeal granted – Appeal dismissed

Catchwords:

SENTENCING — procedural fairness — where parties proceeded on basis that the applicant had made frank admissions to his own offending conduct in an ERISP — whether sentencing judge failed to provide an opportunity to the applicant to address adverse findings made about his responses in the ERISP SENTENCING — relevant factors on sentence — remorse and contrition — whether sentencing judge failed to consider the applicant’s early guilty plea and unchallenged evidence of remorse and contrition

Catchwords:

CRIME – appeal against sentence – aggregate sentence – whether causal link between mental condition and offending – whether sentence manifestly excessive

Catchwords:

CRIMINIAL LAW – sentence appeal – sexual assault – Crimes Act s 61I – knowledge that victim does not consent to sexual activity – recklessness – whether error by sentencing judge in finding that the recklessness was to at least a moderate degree and objective seriousness of the offence fell below the mid-range but not at the bottom of the range – whether error by sentencing judge in not finding that a non-custodial sentence was available due to the offender’s idiosyncratic circumstances

Catchwords:

CRIMINAL APPEAL – miscarriage of justice – where evidence adduced concerning an allegation of which the applicant was found not guilty in a previous trial –where prosecutor not at fault – where police officer informed in conference not to refer to allegation – incontrovertibility of acquittal – immediate application for discharge of the jury – initial responses of those in the courtroom – whether judicial directions cured prejudice – short trial – whether proviso should be applied – case of word against word involving questions of credibility

Catchwords:

CRIME – exercise of summary jurisdiction – nature of appeal – Criminal Appeal Act 1912 (NSW), s 5AA – appeal “in the strict sense” – finding of error necessary for appellate intervention EMPLOYMENT and INDUSTRIAL LAW – scope of health and safety duty – risk assessment – adequacy of safe work procedures – adequacy of information, training and instruction – whether steps not taken were reasonably practicable – worker on livestock feed-lot – stacking of hay bales – moisture testing in vicinity of partly constructed stack – risk of injury from falling bale CRIME – penalty by way of fine – summary criminal proceedings – prosecution by agency of State – prosecutor not police officer – award of moiety of fine to prosecutor

Catchwords:

CRIMINAL LAW – appeal – sentence – aggregate sentence – principles concerning aggregate sentencing – ground concerning degree of accumulation between indicative sentences not supportable – whether error in dealing with aggravating circumstance – whether sentence manifestly excessive

Catchwords:

CRIME – appeal – appeal against conviction – unreasonable verdict – single driving incident that resulted in a series of collisions that caused injury and death – driving in a manner dangerous – misconduct by driving – failure to stop and render assistance – where applicant’s vehicle did not come into contact with another vehicle – where evidence that other drivers avoided the applicant – whether the applicant was “involved in an impact occasioning death” within the meaning of s 52A(6) Crimes Act 1900 (NSW) – whether verdicts open on the evidence CRIME – appeal – appeal against conviction – inconsistent verdicts – acquittal on one count of misconduct by driving pursuant to s 53 Crimes Act 1900 (NSW) – inability to reach verdict on a separate count of misconduct by driving pursuant to s 53 Crimes Act 1900 (NSW) – where the facts of the misconduct charges were the same facts that led to a conviction for dangerous driving pursuant to s 52A Crimes Act 1900 (NSW) – whether verdicts inconsistent

Catchwords:

CRIME – appeals – appeal against sentence – murder – sentencing judge found intention to kill established beyond reasonable doubt – whether sentencing judge erred – whether sentencing judge should have found intention to inflict serious bodily harm – intention to kill open on the evidence CRIME – appeals – appeal against sentence – Crown submission at trial that the deceased was run down unexpectedly and without warning – submission accepted by sentencing judge – sentencing judge inferred from submission that the deceased was not aware of the imminent attack – where agreed facts silent on what exactly occurred – evidence of other people present at the location of the murder – no evidence of conversation or anyone shouting a warning – evidence of the deceased not facing the vehicle at the time of collision – finding open on the evidence CRIME – appeals – appeal against sentence – background of disadvantage – drug use – no finding of causal connection – sentencing judge found the applicant’s account of dysfunctional upbringing unsupported or contradicted by other evidence – finding open on the evidence

Catchwords:

CRIMINAL LAW – appeal –conviction – whether miscarriage of justice occurred –trial judge directed witness to not resume giving evidence –trial judge failed to direct jury of need to be unanimous as to possession of particular quantity of drugs.

Catchwords:

CRIMINAL LAW – appeals – appeal against conviction – common law offence – wilful misconduct in public office – whether misdirection that illegitimate purpose must be driving force of impugned conduct – whether direction given by primary judge disadvantaged applicant – whether difference between purpose and motivation – whether findings of guilt in judge-alone trial unsafe – appeal against conviction dismissed CRIMINAL LAW – appeals – appeal against sentence – whether error in determining objective seriousness – whether sentence manifestly excessive – appeal against sentence dismissed

Catchwords:

CRIME – Sentence Appeal – sexual touching and sexual intercourse with a child – plea of guilty at District Court “super call-over” – whether the sentencing judge should have found that the applicant facilitated the administration of justice – where s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) was not raised before the sentencing judge – failure by the sentencing judge to consider the principles relevant to sentencing youth – complex interplay between youth, mental illness and cognitive impairment – error established – applicant re-sentenced

Catchwords:

CRIME – Appeals – Appeal against sentence – By Crown against inadequacy – Where respondent has pleaded guilty to 14 domestic violence offences against former de-facto partner – Where sentencing judge made guarded findings regarding the respondent’s prospects of rehabilitation – Whether sentencing judge paid sufficient regard to the sentencing principles of specific deterrence and community protection - Whether sentencing judge engaged in “double counting” in regard to the promotion of the respondent’s prospects of rehabilitation – Manifestly inadequate sentence established – Respondent resentenced

Catchwords:

CRIME – appeals – appeal against sentence – parity principle – whether fact that participants in the same criminal enterprise charged with significantly different offences precluded application of parity principle – despite differences in the charges and the inability of the Court to review exercise of prosecutorial discretion, parity principle applies but the effect to be given to it may vary – whether aggregate sentence gave rise to a justifiable sense of grievance – in the absence of a sufficient explanation of the application of the parity principle, there was a justifiable sense of grievance – the parity principle can require imposition of a sentence that would otherwise be less than adequate, provided that the sentence is not so low as to amount to an afront to the administration of justice.

Catchwords:

SENTENCING – appeal against sentence co-offenders – disparity between sentences – where the Applicant was a participant in a conspiracy to import a commercial quantity of a border-controlled drug – where the Applicant was the only co-conspirator to plead not guilty and was the last to be sentenced – where factual challenges made to the sentencing judge’s findings as to the Applicant being senior to another of the co-conspirators in the hierarchy of responsibility in relation to the conspiracy – whether the sentence imposed on the Applicant gave rise to a justifiable sense of grievance in light of the sentence imposed on that co-conspirator – where that co-offender’s undiscounted indicative sentence in respect of the conspiracy was half of that imposed on the Applicant

Catchwords:

CRIME — Appeals — Application for leave to appeal against sentence — Commonwealth offence — adverse credit findings about offender — extra-curial punishment

Catchwords:

CRIMINAL PROCEDURE – Indictment – Amendment – where leave granted to the Crown to amend indictment to include an ex officio charge pursuant to s 66EA of the Crimes Act 1900 (NSW) – where s 66EA charge alleges offending both in Australia and in another country –– whether permitting the amendment of the indictment in the circumstances gave rise to an abuse of process

Catchwords:

CRIME – bail – release application – show cause test – conspiracy to import commercial quantity of cocaine – Operation Ironside – AN0M devices – admissibility of AN0M evidence – did the applicant enter into a conspiracy – strength of Crown case – long delay – cause shown – unacceptable risk test – electronic monitoring – risk mitigated – bail granted subject to conditions

Catchwords:

CRIME – appeal – appeal against sentence –sentences for State and Commonwealth offences – contemporaneous sentences – inconsistent orders – recognizance release order to take effect during State non-parole period – need to adjust structure of sentences

Catchwords:

CRIME – appeal against conviction – jury irregularity – where judgment on admissibility mistakenly included in juror’s folder – individual juror discharged – decision to continue with jury of 11 – whether risk of miscarriage – inconsistent versions of whether document had been discussed or seen by remaining jurors – miscarriage established CRIME – tendency evidence – directions – construction of s 161A Criminal Procedure Act – standard of proof – danger of circular reasoning process – Shepherd direction – reliance on both charged and uncharged acts – potential for misuse of evidence – potential for jury to apply wrong standard of proof to charges – need for directions to guard against prejudice – whether directions occasioned miscarriage – proposed directions flatly contrary to statute – ground of appeal dismissed

Catchwords:

CRIME – appeals – appeal against sentence – break and enter and commit serious indictable offence – principle of totality – manifest excess – notional starting point commensurate with objective gravity of the offending – offence committed nine days after release to parole – parole revoked – lengthy criminal history – personal history of deprivation – interplay between earlier sentence and sentence for the present offence – role of State Parole Authority in determining when to re-parole on earlier sentence

Catchwords:

SENTENCING – Crown appeal against inadequacy of sentence – manifest inadequacy – offence of break and enter and commit a serious indictable offence – sentencing judge’s discretion to evaluate the objective seriousness – “leniency” associated with an intensive correction order significantly moderated by the respondent’s time in custody – imposition of an ICO is nevertheless a custodial sentence

Catchwords:

CRIME – bail – de novo application before the Court of Criminal Appeal – bail sought in relation to federal and state offences – Commonwealth offences of unlawful export and possession of various protected species – fraud offences contrary to state legislation – appearance of two Crown prosecutors – potential unfairness in cross-jurisdictional opposition to bail – protracted criminal record dating back to 1988 – strong Crown case – applicant likely to spend a significant period in custody if convicted – COVID-19 considerations – offences not show cause – bail risks sufficiently ameliorated by stringent conditions

Catchwords:

CRIME — Appeals — Crown appeal against sentence — Persistent sexual abuse of a child — Approach to assessment of objective seriousness — Manifest inadequacy — Appeal allowed — Respondent resentenced

Catchwords:

CRIME – appeals – appeal against sentence – whether latent error in indicative sentences – whether inadequate reasons in arriving at indicative sentences – whether adequate assessment of objective seriousness of individual offences – finding that sentencing judge did not individually assess criminality of each offence – resentence

Catchwords:

CRIME — appeals – appeal against sentence – aggregate sentence – whether the sentencing judge erred by imposing a sentence that was manifestly excessive – where the offending occurred in the community and in custody – where the community offending involved offences at five establishments in one night and another location a few days prior – where the offending in custody amounted to a riot and involved threatening prison officers – where the applicant was on bail for other offences – where the sentencing judge took into account the applicant’s youth and deprivation – where community protection and general deterrence were found to be significant – where challenge made to some of indicative sentences and to notional accumulation - where the only sentence relevant to a ground alleging manifest excess is an aggregate sentence – given the nature of the offending the aggregate sentence was not manifestly excessive SENTENCING – appeal against sentence – co-offenders – disparity between sentences – whether the applicant had a justifiable sense of grievance at the lack of disparity between his sentence and that of his co-offender – where the sentencing judge gave consideration to parity – where the indicative sentences for the same offences were identical or explicable by a Form 1 – where both offenders had similar backgrounds and were of a similar age – where the co-offender had additional charges and a worse criminal history – where the co-offender received an increased maximum sentence, increased non-parole period and a lesser reduction in the statutory ratio – applicant did not have a justifiable sense of grievance

Catchwords:

CRIMINAL PROCEDURE – trial – lies – where Crown did not seek to rely on pretext call evidence as containing admissions or rely on consciousness of guilt reasoning – where Crown asserted in closing address applicant made truthful admissions in pretext call from which it could be concluded that applicant had lied in his evidence to the jury – where no direction to jury given – whether absence of a direction occasioned a miscarriage of justice

Catchwords:

CRIMINAL APPEALS – prosecution appeal against asserted inadequacy of sentence – sexual offences against three separate victims – offences spanning 17 years – 12 counts of sexual intercourse without consent – grave examples – whether aggregate sentence manifestly inadequate – where offences committed against women to whom the offender was married or in a serious relationship – coercive control – sexual assault as punishment – degrading and humiliating conduct – where lengthy period of non-offending – evidence of good character and lack of criminal record – sentences imposed after trial – no evidence of remorse or insight – whether indicative sentences inadequate – combination of lenient sentence and absence of substantial notional accumulation – aggregate sentence manifestly inadequate, unreasonable and unjust – sentence failed to reflect gravity of offending and vindicate dignity of separate victims – residual discretion – respondent re-sentenced

Catchwords:

CRIME – Appeals – appeal against sentence – Commonwealth and State offences – large number of child sexual assault offences – child abuse material – multiple victims – whether incorrect maximum penalty applied for some of the Commonwealth offences – whether error in indicative sentences for State offences – whether aggregate sentence for State offences manifestly excessive – no error in indicative sentences – no manifest excess – error by applying incorrect maximum penalty for some indicative sentences for Commonwealth offences – resentence for Commonwealth offences – slight adjustment to effective sentence applying totality principle

Catchwords:

CRIME – appeals – appeal against sentence – application for leave to appeal – self-representation not a privilege but a disadvantage – leave not ordinarily granted merely because a party is self-represented – applicant unaware no application was made while he had legal representation – leave to appeal granted CRIME – appeals – appeal against sentence – State and Commonwealth offences – accumulation, concurrency and totality – whether sentencing judge erred in wholly accumulating the Commonwealth aggregate sentence on the State sentence – no obligation to import a degree of concurrency – different criminality involved – whether sentencing judge erred by not expressly referring to R v Fernando and Bugmy v The Queen – sentencing judge had regard to the applicant’s subjective case and found reduced culpability – sentence passed necessarily stern to reflect the Commonwealth Parliament’s intention – appeal dismissed

Catchwords:

CRIME – Appeals – Appeal against sentence – Manifest excess – where applicant sentenced for 2 counts of aggravated sexual intercourse without consent, in company – where applicant sentenced on a joint criminal enterprise basis but found to be the instigator and organiser of the assault – whether the fact that the conduct was not motivated by sexual gratification lessens the severity of the offending

Catchwords:

CRIME – appeals – appeal against sentence – where expert evidence was not put before sentencing judge – whether there was a miscarriage of justice – whether evidence capable of materially affecting the outcome of the sentence proceedings – appeal allowed – resentence

Catchwords:

CRIME – Appeals – Appeals against conviction – Unreasonable verdict – Where co-accused have successfully appealed their convictions to the Court of Criminal Appeal on the basis that the evidence of a key Crown witness had serious difficulties which undermined his and its credibility and reliability and in circumstances where there was no objective supporting evidence linking the co-accused to the offending – Where the Crown case against the applicant for counts 1-3 was supported by corroborating evidence – Order extending time to appeal against conviction made – Leave to appeal granted – Conviction for count 4 quashed – Appeal otherwise dismissed in relation to counts 1-3 – Matter remitted to the District Court for re-sentence

Catchwords:

CRIME – Appeals – Appeals against sentence – Manifest excess – Where sentencing judge failed to make reference to the maximum penalty for one of the offences – Whether the sentencing judge conflated the issues regarding the applicant’s childhood disadvantage and his mental health conditions such that he was deprived of an assessment of moral culpability less than that found – Whether greater concurrency in the aggregate sentence required in applying the principle of totality – No inference of undisclosed error by the sentencing judge found – Leave to appeal granted – Appeal dismissed

Catchwords:

CRIME – appeals – appeal against sentence – failure to take into account a relevant consideration – whether the sentencing judge failed to have regard to critical matters in the evaluation of objective seriousness – where applicant pleaded guilty to several offences of supplying a commercial quantity of prohibited drugs and knowingly dealing with the proceeds of crime – where applicant submitted that he tried to withdraw from the arrangement to possess the drugs – where applicant submitted that the sentencing judge failed to deal with the applicant’s possession of the drugs being highly reluctant – applicant accepted that he was not operating under duress – where the sentencing judge set out the facts from which the seriousness of the offending could be seen – where there was no evidence that the applicant withdrew from the arrangement – where the sentencing judge deal with submissions made on behalf of applicant – where matters raised on appeal were not put to the sentencing judge – no error demonstrated

Catchwords:

CRIMINAL PROCEDURE – jurisdiction of Court of Criminal Appeal – application for stay of sentence – pending determination of proposed appeal – effect of filing of notice of intention to appeal – extension of time within which to appeal – notice does not commence proceeding – jurisdiction of Court not engaged CRIMINAL PROCEDURE – application for stay of sentence – contingent exercise of discretionary power to stay – whether stay of sentence necessary to preserve subject-matter of proposed appeal against conviction – opportunities for early hearing rejected by applicant – extent of prejudice from serving part of non-custodial sentence

Catchwords:

CRIME — appeals — appeals against conviction — whether miscarriage of justice —Crown Prosecutor closing address — no evidence to support submissions on central issue — impermissible speculation — whether submissions affected jury verdict CRIME — appeals — appeals against conviction — whether miscarriage of justice — conduct of defence counsel — failure to object to submissions — failure to request evidentiary basis of Crown submissions — failure to address issue in cross-examination of complainant — defence case contrary to appellant’s evidence — no rational reason for conduct of defence counsel CRIME — appeals — appeals against conviction — unreasonable verdict — whether supported by evidence — new evidence — new evidence confirming position at trial on agreed facts — Crown case run contrary to agreed facts on one count — reasonable doubt not explained by manner in which evidence given — appellant acquitted on one count

Catchwords:

CRIME – appeals – appeal against sentence – requirement to show error in appeals under s 5AA of Criminal Appeal Act 1912 (NSW) – fact finding in circumstantial cases – where none of the circumstances relied upon was indispensable, each circumstance not required to be proved beyond reasonable doubt – circumstances not to be considered piecemeal but as a whole based on the entirety of the evidence – no error in the fact finding process SENTENCING – relevant factors on sentence –specific deterrence – whether sentencing judge impermissibly gave specific deterrence primary significance in sentencing – weight to be given to a factor such as specific deterrence quintessentially a matter for sentencing judge – no error disclosed SENTENCING – assessing objective seriousness – whether sentencing judge failed to take into account the relevant circumstances of the present case when assessing objective seriousness – relevant circumstances taken into account – no error disclosed SENTENCING – whether sentence is manifestly excessive – comparable cases providing a yardstick – sentence not manifestly excessive

Catchwords:

CRIME – Bail – Appeal bail – applicant required to establish that special or exceptional circumstances exist – where applicant to be sentenced for unrelated convictions shortly after bail hearing – where it is likely that further custodial sentence will be imposed on applicant – where applicant has not proved that proposed appeals are most likely to succeed – application refused

Catchwords:

CRIMINAL PROCEDURE – conviction appeal – convictions of uncle for sexual abuse of young nephews – complaints by children to mother – delay in reporting to police – mother and father in acrimonious separation – court proceedings against father for domestic violence – challenge to mother’s credibility – failure to use evidence in domestic violence trial to challenge mother’s credibility in sexual abuse trial involving father’s brother – whether incompetence of trial counsel – whether trial unfair

Catchwords:

CRIME – appeals – appeal against sentence – misapplication of principle – where applicant pleaded guilty to multiple counts of sexual intercourse without consent and common assault – where parties had been in intimate relationship – offending occurred as a result of victim terminating relationship - whether sentencing judge erred by failing to give full effect to the findings in relation to Bugmy – where applicant was found to have mental health conditions and a very harsh background – where applicant’s moral culpability was reduced as a result of Bugmy factors but weight still given to specific and general deterrence – challenge to assessment of objective seriousness - where sentencing judge increased sentence but not objective seriousness (as applicant asserted) by reason of Form 1 matters – where applicant’s knowledge of lack of consent arose from unreasonable belief in victim’s consent – no error in assessment of objective seriousness – sentence not manifestly excessive

Catchwords:

CRIMINAL LAW – conviction appeal – one count of sexual intercourse without consent – whether the verdict of the jury was unreasonable and not be supported by the evidence – whether fresh evidence would have changed outcome of trial