CRIME - sentence appeal – where applicant pleaded guilty to supply prohibited drug on an ongoing basis – where applicant sentenced to imprisonment for 4 years with a non-parole period of 1 year and 8 months – where further offence of supply prohibited drug on an ongoing basis also taken into account on sentence – whether sentence manifestly excessive - appeal allowed - resentence
Judgment of
Payne JA at [1]
Harrison J at [2]
N Adams J at [34]
Bail Act 2013 – Detention Application by Crown – attempted murder and a firearm offence – accused and complainant members of rival criminal gangs – likely delay before trial not excessive – strong Crown case – inapplicability of “principle of restraint” – “show cause” test not made out – alternatively accused would constitute an unacceptable risk if released on bail.
Judgment of
Hoeben CJ at CL at [1]
R A Hulme J at [41]
Wilson J at [42]
CRIME – sentence appeal – where applicant pleaded guilty to importing a marketable quantity of cocaine – where applicant sentenced to a term of imprisonment of 7 years and 6 months with a non-parole period of 4 years and 6 months – where Crown concedes sentencing judge erred – re-sentence – whether applicant tricked into importing cocaine by on-line suitor whom she had not met – whether applicant’s offending motivated by financial greed – sentence quashed – new sentence imposed
Judgment of
Gleeson JA at [1]
Harrison J at [2]
Cavanagh J at [37]
EVIDENCE – hearsay exceptions – criminal trial – maker of representations deceased – whether representations made in circumstances that made it unlikely that they were fabrications – s 65(2)(b) Evidence Act – representations made soon after alleged events to persons in authority, with maker exhibiting injuries consistent with representations
CRIME – appeals – whether misdirection to jury as to mental element of consent in relation to sexual assault offence resulted in any substantial miscarriage of justice – misdirection in written and oral directions – whether erroneous direction could have affected jury’s verdict – no substantial miscarriage of justice – Kalbasi v Western Australia (2018) 264 CLR 62 considered
CRIME – appeals – whether trial miscarried because of irregularities in the Crown’s address to the jury
CRIME – appeals – whether trial miscarried because of incompetence of accused’s trial counsel – appeal ground rejected
CRIME – appeal against sentence – whether sentencing judge failed to take into account accused’s deprived upbringing in relation to moral culpability – leave to appeal against sentence refused
Judgment of
Macfarlan JA at [1];
Johnson J at [158];
Lonergan J at [159]
CRIMINAL LAW – application for leave to appeal against sentence – supply commercial quantity of methylamphetamine, dealing with proceeds of crime – challenge to sentencing judge’s assessment of objectiveness seriousness of drug supply offence – whether aggregate sentence manifestly excessive
Judgment of
Leeming JA at [1]
Davies J at [2]
Hidden AJ at [3]
CRIME — appeals — appeal against sentence — application for leave to appeal — one count of aggravated robbery with wounding contrary to s 96 of the Crimes Act 1900 (NSW) — sentencing judge's description of applicant's conduct as a 'gratuitous act of cruelty' went to the objective seriousness of the offence — no finding made of an aggravating factor under s 21A(2)(f) of the Crimes (Sentencing Procedure) Act 1999 (NSW) although this was open to sentencing judge — whether sentence was manifestly excessive — whether sentencing judge failed to have due regard to applicant's subjective factors — no error in sentencing process — appeal dismissed
Judgment of
Macfarlan JA at [1]
Johnson J at [2]
Cavanagh J at [3]
CRIME — appeals — appeal against sentence — application for leave to appeal — manufacture of a large commercial quantity of a prohibited drug contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW) — four co-offenders — where other co-offenders received shorter non-parole period than applicant — whether sentencing judge erred in not finding special circumstances for applicant — whether justifiable sense of grievance arising from a lack of parity between sentences of co-offenders — justifiable sense of grievance as a factor under s 21A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) — resentence
Judgment of
Hoeben CJ at CL at [1]
Brereton JA at [5]
Cavanagh J at [10]
CRIMINAL LAW – appeal against sentence – recklessly causing grievous bodily harm – whether sentencing judge erred in failing to find the applicant was remorseful – whether sentence manifestly excessive
Judgment of
Bathurst CJ at [1]
Johnson J at [2]
Fullerton J at [3]
CRIME – appeals – appeal against sentence – manifest excess – sexual offences against four child victims – 13 counts of indecent assault and 2 counts of aggravated incite act of indecency – individual sentence imposed for each count – total effective sentence of 11 years imprisonment and 8 years non-parole period – most of the individual sentences imposed were manifestly excessive – set aside individual sentences – re-sentence to aggregate sentence of 11 years imprisonment and 8 years non-parole period
Judgment of
Payne JA at [1]; Fullerton J at [67]; Adamson J at [68]
CRIME – sentence appeal – where applicant pleaded guilty to reckless wounding – where applicant sentenced to imprisonment of 4 years and 3 months with a non-parole period of 2 years and 3 months – where offence of stalk/intimidate on a Form 1 also taken into account on sentence – whether sentence manifestly excessive – appeal allowed – re-sentence
Judgment of
Gleeson JA at [1]
Harrison J at [1]
Cavanagh J at [1]
CRIME – appeal against sentence – aggregate sentence imposed for serious domestic violence offences – no error in assessment of objective seriousness of counts 1 and 4 – no error in less than favourable findings for prospects of rehabilitation or risk of re-offending – whether sentence was manifestly excessive – limited utility of statistics and cases for comparison – no error in assessment of indicative sentences for individual offences – no error in degree to which the indicative sentences were partially accumulated
Judgment of
Macfarlan JA at [1];
Johnson J at [2];
R A Hulme J at [8]
CRIME – conviction appeal – where appellant convicted of manslaughter based on joint criminal enterprise – whether verdict unreasonable – whether mere presence when crime committed and post-offence conduct were capable of amounting to proof of an agreement to commit the crime – verdict of acquittal entered
Judgment of
Bathurst CJ at [1]
Bell P at [2]
Harrison J at [3]
CRIMINAL LAW – conviction appeal –13 counts alleging sexual misconduct by an uncle against his niece – jury trial – applicant found guilty of six of the charges and not guilty of seven charges – single ground of appeal asserting unreasonable verdicts – offences said to have occurred between 1991 and 2000 – complainant aged 4 when offending commenced – Crown case depended on evidence of complainant – challenge to complainant’s credit – tendency evidence tendered in Crown case – whether jury verdicts inconsistent – effect of concessions made by complainant – credibility issues essentially a jury matter – well open to jury to be satisfied beyond reasonable doubt as to guilt of the applicant. Leave to appeal granted but appeal dismissed.
Judgment of
Hoeben CJ at CL at [1];
Walton J at [122];
Price J at [123]
CRIMINAL LAW – sentencing – alleged errors in factual findings – whether denial of procedural fairness regarding assessment of utilitarian discount outside range contended by parties – manifest excess – “weight” given by sentencing judge to relevant factors
Judgment of
Simpson AJA at [1];
Fullerton J at [1];
Adamson J at [1].
CRIMINAL LAW – sentence appeal – 14 counts of indecently assaulting a male person contrary to s 81 of the Crimes Act 1900 (NSW) (since repealed) – offending took place over a period of 11 years while applicant was a teacher – at time of sentence applicant serving a sentence of imprisonment for similar offences committed against different complainants – aggregate sentence of 8 years and 6 months with a non-parole period of 6 years – there was a single ground of appeal alleging manifest excess – sentencing principles comprehensively covered by sentencing judge – disputed issues involved matters of discretion – manifest excess not established – leave to appeal granted but appeal dismissed.
Judgment of
Hoeben CJ at CL at [1];
Walton J at [54];
Price J at [55]
CRIME – appeal – application for extension of time in which to appeal – merits of proposed conviction and sentence appeals – whether conviction unreasonable or cannot be supported having regard to the evidence – open to jury to conclude beyond reasonable doubt that applicant intended to cause victim grievous bodily harm – whether sentence unreasonable or plainly unjust – sentence within range of those open to primary judge to impose – application refused
Judgment of
Macfarlan JA at [1];
Johnson J at [41];
Cavanagh J at [42]
CRIME – appeals – appeal against conviction – identification – directions as to physical characteristics of accused – no error in directions – verdict not unreasonable
Judgment of
Simpson AJA at [1];
Wilson J at [2];
Ierace J at [3]
CRIME – Appeals – appeal against conviction – where applicant convicted of four counts of indecent and sexual assault with a person under 16 years – where applicant is acquitted of four counts of assault and indecency – whether the verdicts were unreasonable – whether the whether the differential verdicts are irreconcilable – whether there was inconsistency in the jury’s verdict – where the complainant’s evidence at trial was uncorroborated – credibility of the witness
Judgment of
Bathurst CJ at [1]
Garling J at [9]
Wright J at [108]
CRIMINAL LAW – application for leave to appeal against sentence – sexual offences committed against child aged between 10 and 14 years – victim had cognitive impairment – whether errors in assessment of the objective seriousness of offences – asserted errors of failing to take into account the victim’s consent, failing to find that cognitive impairment is a less serious type of aggravating circumstance, and finding that second offence was aggravated by planning – asserted errors rejected – sentencing findings reasonably open to be made – whether sentence is manifestly excessive – issue is whether sentence is proportionate to totality of criminality – substantial degree of accumulation of indicative sentences – subjective matters should not lose force in assessment of aggregate sentence – stern sentence required to respond to s 3A purposes of sentencing – inadequate allowance for favourable aspects of subjective case – sentence manifestly excessive
Judgment of
Bell P at [1];
Simpson AJA at [2];
R A Hulme J at [3]
CRIME – appeals – appeal against convictions for two counts contrary to s 7(1) of the Firearms Act 1996 – whether plastic pistols were imitation firearms – construction of s 4D(4) of the Firearms Act – meaning of “identified as a children’s toy” – whether confined to matters intrinsic to the object – whether present use and intention may be taken into account – possession – consideration of Crown case at trial – whether verdicts on counts 1 and 2 were unreasonable – resentence – the ceiling principle – aggregate sentence for counts 3 and 4
Judgment of
Hoeben CJ at CL at [1];
Price J at [2];
Lonergan J at [101]
CRIMINAL LAW – appeals – appeal against sentence – applicant pleaded guilty to one count of aggravated break and enter with intent to commit a serious indictable offence – further offence of intimidation taken into account on sentence – head sentence of 6 years’ imprisonment – whether the sentencing judge erred in their treatment of the offending as aggravated – sufficient basis to make out aggravation – whether the sentencing judge failed to give proper regard to the applicant’s traumatic brain injury – where the applicant had previously sustained a diffuse axonal injury – whether the sentencing judge should have found special circumstances – where the applicant has significant rehabilitative needs in light of his brain injury – Court obliged to resentence – applicant resentenced to head sentence of 3 years and 9 months’ imprisonment
Judgment of
Payne JA at [1]
Fullerton J at [2]
Adamson J at [80]
CRIMINAL LAW – Crown appeal on sentence – robbery armed with an offensive weapon – three matters to be taken into account on a Form 1 – two offences placed on a s 166 Certificate – non-parole period 41 per cent of head sentence – significant backdating of sentence – whether sentence unreasonable or plainly unjust – whether sentencing principles properly applied – failure to explain reasons for lenience – Crown appeal allowed.
Judgment of
Hoeben CJ at CL at [1];
Brereton JA at [77];
Cavanagh J at [83]
CRIMINAL LAW – sentence appeal – 91 fraud related offences – whether disparity established – whether significant overlap exists in the criminality of the applicant – having regard to the money involved, the number of victims and the sheer number of offences disparity not established.
Judgment of
Hoeben CJ at CL at [1];
Brereton JA at [62];
Fullerton J at [63]
CRIME – Bail – Appeal bail – Appeal against conviction and sentence – Release application – "special or exceptional circumstances" – Arguable merit in sentence appeal – Sentence will be largely served before determination of appeal – Crown concession as to no unacceptable risks
CRIME – appeals – appeal against sentence – manifest inadequacy – whether 3 years imprisonment served by way of intensive correction order was manifestly inadequate – sentence did not reflect overall gravity of offending and importance of general deterrence and accountability – manifestly inadequate – resentenced
CRIME – federal offences – attempted exportation of regulated native specimens – importation and attempted importation of regulated live specimens – possession of non-native CITES-regulated specimens – dealing with proceeds of crime
Judgment of
Payne JA and Fullerton J at [1]; Adamson J at [100]
CRIMINAL LAW – application for an extension of time to seek leave to appeal – Judge alone trial – break and enter dwelling house and commit serious indictable offence – sexual intercourse without consent – whether trial Judge failed to give reasons – whether reasons expressed contradictory explanations – whether verdicts were unreasonable or could not be supported by the evidence – whether verdicts entered were inconsistent where finding of guilt entered on statutory alternative – whether sentence was manifestly excessive – no merit to any ground of appeal – application refused
Judgment of
Johnson J at [1]
Price J at [79]
Lonergan J at [80]
CRIME – appeals – appeal against sentence– knowingly take part in supply of a prohibited drug – offence not carrying standard non-parole period – whether sentencing judge entitled to increase objective seriousness by matter inferred from agreed facts – whether judge erred in failing to take into account community safety and in particular whether ICO or fulltime custody more likely to address risk of reoffending – whether disparity established – whether sentence manifestly excessive
Judgment of
Hoeben CJ at CL at [1]
Brereton JA at [3]
Fullerton J at [79]
CRIMINAL PROCEDURE – trial – whether prosecutor impermissibly cross-examined accused about parts of the accused’s evidence not having been put to the relevant complainant in cross-examination – by majority held that prosecutor’s questions were not prejudicial to accused – appeal dismissed
MENTAL HEALTH – criminal proceedings – fitness to be tried – whether there was a miscarriage of justice by reason of an unresolved question as to the accused’s fitness to be tried at the time of his trial
Judgment of
Macfarlan JA at [1];
Fullerton J at [101];
Fagan J at [119]
CRIME – Appeals – Appeal against sentence – Whether the sentencing judge erred in the application of the principle of totality – where the applicant had been sentenced for similar offences previously
CRIMINAL LAW – leave to appeal against sentence – two offences of sexual assault against stepdaughter – whether sentencing Judge erred by double counting statutory aggravating features when considering objective seriousness of one offence – no error demonstrated in approach taken by sentencing Judge – complaint of manifest excess – no useful range established by reference to previous cases – sentence was substantial but not unreasonable or plainly unjust – appeal dismissed
Judgment of
Macfarlan JA at [1]
Johnson J at [2]
Wright J at [82]
CRIME – appeals – appeals against sentence – sentenced for dealing with proceeds of crime – sentenced for knowing participation in a criminal group – whether sentencing judge imposed a manifestly excessive sentence – leave to appeal refused
Judgment of
Bell P at [1];
Simpson AJA at [35];
R A Hulme J at [36]
CRIMINAL LAW – sentence appeal – making documents connected with preparation for a terrorist act – error in failing to have regard to the utilitarian value of the plea of guilty – need to independently re-exercise the sentencing discretion – need for such re-sentence to reflect considerations of general deterrence, protection of the community and denunciation of the offence – appeal allowed and applicant re-sentenced.
Judgment of
Hoeben CJ at CL at [1];
White JA at [86];
Hamill J at [94]
CRIME – APPEALS – appeal against sentence –firearm offences contrary to s 93G(1)(a)(i) of the Crimes Act 1900 (NSW) and s 7(1) of the Firearms Act 1996 (NSW) – drug supply contrary to s 25 of the Drug Misuse and Trafficking Act 1985 (NSW) – whether error in assessment of culpability with regard to firearm offences – whether error in assessment of objective gravity of drug offence – whether sentence manifestly excessive – discussion of particularisation of firearm offence on Court Attendance Notice – discussion of period of possession of firearm – consideration of double punishment and imposition of identical wholly concurrent sentences for the firearm offences – consideration of indicative sentence for the drug offence – aggregate head sentence manifestly excessive – resentence
Judgment of
Payne JA at [1]
Button J at [3]
Lonergan J at [116]
CRIMINAL LAW – conviction appeal – joint criminal enterprise – two counts of firing a firearm in a public place – jury trial – verdict of not guilty on first shooting but verdict of guilty on second shooting – circumstantial case – whether verdicts inconsistent – whether verdict of guilty open to the jury – intermediate fact of knowledge that the co-offender possessed a firearm – an issue in the first shooting but not the second – whether other reasonable possibilities inconsistent with guilt
Judgment of
Basten JA at [1];
Johnson J at [2];
Price J at [3]
CRIMINAL LAW – application for leave to appeal against sentence – alleged failure to attribute sufficient weight to applicant’s disadvantaged background – alleged manifest excess
Judgment of
Payne JA at [1];
Fullerton J at [2];
Adamson J at [3]
CRIME — appeals — appeal against sentence — error of law — procedural fairness — whether sentencing judge led the applicant to understand that a certain course would be adopted — sentenced on a different basis — where sentencing judge relied on matters in confidential affidavit in finding of objective seriousness — where statement not induced — prospects of rehabilitation — finding of “poor to moderate” prospects — objective seriousness
Judgment of
Gleeson JA at [1]
Harrison J at [2]
N Adams J at [3]
CRIME – Terrorism offences – Aid, abet, counsel or procure the commission of terrorist act -
CRIME – Appeals – Appeal against sentence – Whether error in sentencing applicant on basis that prospects of rehabilitation were poor – Assessed prospects of rehabilitation on basis of evidence at the time
CRIME – Appeals – Appeal against sentence – Whether strong element of general or personal deterrence required
SENTENCING – Relevant factors on sentence – Deterrence – General deterrence
SENTENCING – Relevant factors on sentence – Deterrence – Personal deterrence
CRIME – Appeals – Appeal against sentence – Whether error in giving primacy to deterrence, incapacitation and retribution over rehabilitation and youth – Applicant 18 years of age – Terrorism Offence
SENTENCING – Relevant factors on sentencing – Relevance of Youth – Terrorism Offences
CRIME – Appeals – Appeal against sentence –Whether error in failing to take into account existence of continuing detention scheme for high risk terrorist offenders
HIGH RISK OFFENDERS – Continuing detention orders –High risk terrorist offenders – Relevance to sentencing
CRIME – Appeals – Appeal against sentence – Manifest excess
CRIME – Appeals – Appeal against sentence – Section 19AG Crimes Act (1914) (Cth) – Whether error in failing to determine an appropriate non-parole period – Whether error in fixing the non-parole period – Whether section 19AG Crimes Act (1914) (Cth) invalid – Statutory minimum non-parole period
CONSTITUTIONAL LAW – Commonwealth Constitution – Legislative Power – Validity of section 19AG Crimes Act (1914) (Cth) – Whether incompatible with the exercise of judicial power – Statutory minimum non-parole period
Judgment of
Bathurst CJ at [1]; Price J at [198]; N Adams J at [201]
CRIME – appeal against conviction – appellant convicted by jury of murder – appellant was driving, with his blood-alcohol level in excess of prescribed concentration, when his van struck and killed the deceased – appellant had an altercation with the deceased prior to the collision – appellant alleged that the collision was an accident – whether the jury verdict was unreasonable and unable to be supported by evidence – discussion of the role of an appellate court in addressing “unreasonable verdict” grounds of appeal – whether the trial judge erred in leaving to the jury evidence of the appellant’s flight from the scene, or alternatively leaving such evidence to the jury as evidence of consciousness of guilt
Judgment of
Macfarlan JA at [1];
Hoeben CJ at CL at [140];
Fagan J at [151]
CRIME – Appeals – appeal against sentence – wounding with intent to commit grievous bodily harm – whether sentencing judge erred in finding the objective seriousness of the offence was in the mid-range – whether lack of motive is to be taken into account in determining objective seriousness – whether absence of specific aggravating factors prevented sentencing judge’s assessment – whether sentencing judge erred by failing to properly address the applicant’s mental state – whether planning is required for the specific intention for an offence contrary to s 33(1)(a) – whether sentencing judge gave insufficient weight to ameliorating factors – whether sentence manifestly excessive – whether undiscounted starting point of sentence was about 10 years
Judgment of
Johnson J at [1];
Price J at [2];
Lonergan J at [86]
CRIMINAL LAW – appeal against sentence - kidnapping and attempted arson – bizarre offending - offender with mental illness - relevance to sentencing - reduction in moral culpability - error in failing to take into account - offences committed during change of drug regime - failure to follow doctor’s orders - where no history of violent or bizarre behaviour - correct approach to sentencing - prospects of rehabilitation - failure to make finding - error in sentencing process - applicant re-sentenced
Judgment of
Bathurst CJ at [1];
Macfarlan JA at [2];
Hamill J at [3]
CRIME – sentence appeal – maliciously inflict grievous bodily harm – attempted sexual intercourse without consent in circumstances of aggravation – convictions in 2015 for offences committed in 1996 –failure to accept evidence of rehabilitation – failure to accept evidence of mental illness – manifest excess
Judgment of
Basten JA at [1];
Hamill J at [2];
Lonergan J at [3]
CRIMINAL LAW – sentence appeal – two offences of aggravated sexual assault in company, one count of aggravated indecent assault, one count of produce child abuse material – sexual assault by two school boys on female fellow student – whether unjustified disparity in sentences imposed – moral culpability of one offender greater than other – unexplained inconsistency in indicated sentences – disparity established – need to re-sentence.
Judgment of
Hoeben CJ at CL at [1];
Brereton JA at [58];
Fullerton J at [59]
CRIME – appeals – appeal against sentence –whether sentencing judge failed to assess objective seriousness of offences properly – offending occurred when applicant was 13, 14 or 15 years old – causative mental disorder – appeal allowed – applicant re-sentenced
CRIME – appeals – leave to appeal against conviction – supply large commercial quantity of prohibited drug and possess prohibited weapon – where applicant’s counsel did not object to summing up or directions at trial – whether trial judge erroneously confined applicant’s evidence on possession as relevant to the Carey defence – whether directions on joint possession misled the jury – whether the applicant’s case on possession fairly put to the jury in the summing up and directions
Judgment of
Gleeson JA at [1]
Johnson J at [127]
Fagan J at [128]
CRIMINAL PROCEDURE – application for leave to appeal against sentence – additional offences taken into account – Crimes Act 1914 (Cth), s 16BA – procedural failure – failure to ask statutory inquiries – procedure to be undertaken by court in which person is convicted – remittal to District Court for sentence
Judgment of
Bell P at [8]; Simpson AJA at [1]; Fullerton J at [10]
CRIME — appeals — appeal against conviction — applicant convicted on three counts of various child sexual assault offences — whether jury verdicts unreasonable given conflicts in evidence as to peripheral matters — whether jury verdicts unreasonable given acquittals on other counts over uncertainty as to date of offence — probative value of tendency evidence where conduct separated by large gap in time — use of tendency evidence retrospectively — whether primary judge gave inadequate R v Markuleski (2001) 52 NSWLR 82 direction — whether trial miscarried because cross-examination did not comply with Evidence Act 1995 (NSW) s 44(3)
CRIME — appeals — appeal against sentence — manifest excess — whether sentencing judge’s assessment of objective seriousness of offending exaggerated
Judgment of
White JA at [1];
Harrison J at [153];
R A Hulme J at [154]
CRIME — Appeals — Appeal against sentence — Manifest excess – Special circumstance and totality – Where applicant’s sentence was more severe than co-offenders – Where there exist substantial differences in the respective cases of the co-offenders
CRIMINAL LAW – Appeal against conviction – whether a substantial miscarriage of justice – three discharge applications refused – fourth discharge application not ruled upon – other irregularities - meaning of “irregularities” – cumulative effect of irregularities – whether fair trial compromised by irregularities – curative effect of jury directions – standard of review on a conviction appeal – not House v The King
Judgment of
Bathurst CJ at [1];
Bell P at [14];
Davies J at [170]
CRIMINAL LAW – appeal against sentence – primary offence of cultivating not less than commercial quantity of cannabis by enhanced indoor means contrary to s.23(2)(a) Drug Misuse and Trafficking Act 1985 – two Form 1 offences of cultivation – one Form 1 offence of dealing with proceeds of crime – objective seriousness of primary offence assessed separately before taking into account Form 1 offences – no error demonstrated in assessing objective seriousness – general and specific deterrence important aspects on sentence for cultivation offences – other sentencing decisions assist but do not establish correct range – selection of cases do not include multiple cultivation offences – sentence not unreasonable or plainly unjust – appeal dismissed
Judgment of
Brereton JA at [1]
Johnson J at [17]
Lonergan J at [89]
CRIME – Drug offences – Commonwealth offences – Import/Export border-controlled prohibited plant or drug – Import commercial quantity of methamphetamine – Two co-offenders
CRIME – Appeals – Appeal against sentence – Whether error in assessment of objective seriousness – Comparison of seriousness of applicant’s offending and that of two co-offenders
CRIME – Appeals – Appeal against sentence – Co-offenders – Disparity between sentences – Whether gives rise to a justifiable sense of grievance
Judgment of
Bathurst CJ at [1]; Harrison J at [54]; N Adams J at [55]
CRIME – APPEALS – appeal against sentence – application for leave to appeal – attempting to import a commercial quantity of a border controlled drug, contrary to the Criminal Code Act 1995 (Cth) ss 11.1(1) and 307.1(1)) – self-represented applicant – proposed grounds devoid of merit – no assertion of Xiao error in grounds – consideration of Xiao error – Xiao error established – sentencing judge provided 25% discount for facilitation of justice – whether applicant to be resentenced – applicant resentenced afresh – 25% discount for utilitarian value of plea applied
Judgment of
Gleeson JA at [1]
Button J at [4]
Lonergan J at [94]
CRIME – Appeals – Appeal against sentence – Denial of procedural fairness – Whether sentencing judge erred in omitting to adjust the non-parole period to reflect a finding of special circumstances – Re-sentence
CRIME – Appeals – Appeal against sentence – Whether the sentencing judge erred in failing to make a finding in relation to the objective seriousness of the offence
CRIME – Appeals – Appeal against sentence – Whether the sentencing judge erred in not indicating a non-parole period for the offence of supplying a large commercial quantity of prohibited drug
Judgment of
Bathurst CJ at [1];
Ierace J at [2];
Hidden AJ at [72]
CRIMINAL LAW – appeal against sentence – applicant convicted of dishonestly obtaining a financial advantage by deception – whether judge improperly took into account as an aggravating factor that offences were committed for financial gain – whether an email from judge to the Registrar after sentence acknowledging error should be taken into account – whether sentence manifestly excessive – exercise of discretion to resentence
Judgment of
Simpson AJA at [1]; Wilson J at [67]; Ierace J at [72]
CRIME – conviction appeal – where applicant convicted of indecent assault and sexual assault – whether trial miscarried because of defence counsel’s failure to adduce evidence of applicant’s prior good character – whether verdict is unreasonable – whether trial miscarried because of the admission of prejudicial evidence
Judgment of
Bathurst CJ at [1]
Harrison J at [2]
N Adams J at [80]
CRIMINAL LAW – Appeals – whether sentencing judge fell into Muldrock error – whether instinctive synthesis correctly undertaken – findings as to factual circumstances well founded – findings about failure of applicant to take responsibility well founded – findings about absence of contrition well founded – comparable cases not indicative of excessive sentence - lesser sentence not warranted.
Judgment of
Payne JA at [1]
Bellew J at [15]
Campbell J at [21]
CRIME – appeals – appeal against sentence – application for leave to appeal – whether sentence was manifestly excessive – whether denial of procedural fairness – whether error in not finding special circumstances – appeal dismissed
Judgment of
Brereton JA at [1]
Johnson J at [29]
Lonergan J at [33]
CRIME — Appeals — Appeal against sentence — Application for leave to appeal — Intellectual disability and moral culpability — No error in not taking into account intellectual disability when assessing moral culpability and objective seriousness when no causal connection between the disability and the offending established — Finding of special circumstances discretionary — No error in failing to finding special circumstances — Sentence not manifestly excessive
Judgment of
Macfarlan JA at [1]
Johnson J at [2]
Wright J at [3]
CRIMINAL LAW – appeal against sentence – multiple sexual offences committed against Applicant’s niece – sole ground of appeal that aggregate sentence was manifestly excessive – Applicant suffers from rare genetic disorder – reliance on bare statistics without analysis unhelpful – aggregate sentence not unreasonable or plainly unjust – appeal dismissed
Judgment of
Gleeson JA at [1]
Johnson J at [2]
Fagan J at [53]
CRIMINAL LAW – appeals – appeal against sentence – manifest excess – s 112(2) Crimes Act – aggravated break and enter and commit serious indictable offence – assault occasioning actual bodily harm – s 59(1) Crimes Act – difficulty placing objective seriousness on a scale for the offence under s 112(2) – appeal allowed
CRIME – Appeals – Appeal against conviction – Inconsistency of verdicts – Jury failed agree on Counts 1-7 – Jury convicted on Count 8 –– Count 7 and 8 arose out of same incident - Count 7 concerned allegation of choking so as to render complainant incapable of resistance with intention of enabling applicant to commit sexual assault - Count 8 concerned allegation of aggravated sexual assault where applicant inflicted actual bodily harm by choking complainant – Whether conviction on Count 8 is inconsistent with the failure of jury to agree on Counts 1-7 - Whether principles of inconsistent verdicts apply where failure to agree by jury.
CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Failure by jury to agree on Counts 1-7 – Jury convicted on Count 8 – Whether reasonable doubt that the applicant committed the offence notwithstanding advantage of jury - Assessment of credibility of the complainant and supporting evidence.
CRIME – Sexual offences – Aggravated sexual assault – Assault complainant occasioning actual bodily harm – s 61J(1) Crimes Act 1900.
CRIME – Sexual offences – Sexual assault – 5 counts - s 61I Crimes Act 1900.
CRIME – Violent offences – Choking, suffocation or strangulation – Choking with intention of enabling applicant to commit sexual intercourse without consent – s 67(2) Crimes Act 1900.
CRIME – Violent offences – Stalking or intimidation – Intimidation of complainant with intention of causing the complainant to fear physical or mental harm – s 13(1) Crimes (Domestic and Personal Violence) Act 2007.
Judgment of
Bathurst CJ at [1]; Bell P at [299]; Hamill J at [312]
CRIMINAL LAW – appeal and new trial – conviction appeal – applicant convicted of non-consensual sexual intercourse but acquitted of indecent assault – whether verdict unreasonable or insupportable having regard to evidence – principles applicable to unreasonable verdicts – assessment of factual circumstances – evidence of conduct and initial complaints significantly more substantial for offence resulting in conviction
CRIMINAL LAW – appeal and new trial – conviction appeal – direction as to need to consider counts separately – direction as to use of doubts as credibility of complainant on one charge in considering other charge – comment as to prosecution case if satisfied as to complainant’s credibility – no objection taken at trial – whether direction adequate – R v Markuleski considered
Judgment of
Basten JA at [1];
Button J at [54];
Lonergan J at [63]
CRIMINAL LAW – appeal against conviction – importation of firearms in parts – conspiracy to possess pistol – knowingly take part in the sale of a pistol on three or more occasions – directions with respect to the meaning of ‘firearm’ and ‘possession’ – whether multiple conspiracies
CRIMINAL LAW – appeal against conviction – whether convictions for possession and sale based on same conduct – conspiracy to possess and possession for purposes of sale differentiated – directions as to the meaning of ‘sale’ – objection not raised by counsel at trial – prejudice
CRIMINAL LAW – appeal against sentence – appellant sentenced for federal and State offences – whether scope of conspiracy accurately assessed – whether offender’s subjective case adequately taken into account – whether manifestly excessive
Judgment of
Basten JA at [1];
Simpson AJA at [117];
N Adams J and [118]
CRIMINAL LAW – appeal against conviction and sentence – appellant found guilty of dishonestly damaging property by fire with a view to making financial gain and two counts of doing acts with intent to pervert the course of justice – Crimes Act 1900 (NSW) ss 197 and 319 – whether convictions unreasonable having regard to paucity of evidence concerning (a) appellant being located at scene of fire (b) the cause of the fire (c) joint criminal enterprise and (d) financial gain – whether primary judge failed to comply with Evidence Act 1995 (NSW) s 18 concerning evidence from appellant’s de facto partner at the time of the fire – whether miscarriage of justice concerning jury directions – whether leave should be given to advance matters not raised at trial – whether sentence manifestly excessive, or contrary to principles of parity and totality – appeal dismissed
Judgment of
Leeming JA at [1];
Garling J at [80];
Wright J at [81]
COSTS – questions of law submitted under Criminal Appeal Act s 5AE during summary proceedings in Land and Environment Court – successful appellant sought costs of s 5AE proceedings – costs ordered to successful appellant
CRIME – Appeals – Appeal against sentence – Application for leave to appeal – Application for adjournment refused – Solicitor withdrew – Applicant has insufficient funds to prosecute appeal – Dismiss application for leave to appeal.
Judgment of
Bathurst CJ at [1] and [8]; Garling J at [6]; Wright J at [7]
CRIMINAL PROCEDURE – Appeals – Sentence Appeal - Adjournment – Notice of motion to vacate the hearing date and adjourn application filed two days before hearing – Applicant has insufficient funds to fund appeal – Counsel withdrawn – Unexplained withdrawal of funds from unnamed people – Application for adjournment causes difficulty and injustice – Application refused.
Judgment of
Bathurst CJ at [1]; Garling J at [10]; Wright J at [11]
INTERLOCUTORY APPEAL – s 5F Criminal Appeal Act – accused found not to have standing to make submissions about objection to giving evidence at trial under s18 Evidence Act made by accused’s father – whether denial of procedural fairness
EVIDENCE — witness evidence — compellability —parents – whether witness should be excused from giving evidence – s 18 Evidence Act – whether the trial judge denied the accused procedural fairness by finding she had no standing – whether the trial judge had failed to take into account a material consideration – whether the trial judge’s finding about co-accused was plainly unreasonable
Judgment of
Payne JA at [1]; Schmidt J at [52]; Button J at [53]
CRIME – sentence appeal – where applicant convicted of manslaughter on the basis of excessive self-defence – where applicant sentenced to imprisonment for 9 years and 4 months with a non-parole period of 7 years – whether sentencing judge erred in assessment of the gravity of the offence – whether sentencing judge erred in finding that the offence was aggravated because it occurred in the victim’s home – whether sentencing judge erred in finding the applicant had an intention to kill – whether sentencing judge erred in finding that general deterrence was relevant to sentencing – whether sentencing judge erred by assuming that applicant must be sentenced to imprisonment – whether sentencing judge erred by failing to take into account delay as a mitigating factor – whether applicant should be resentenced
Judgment of
Simpson AJA at [1]
Harrison J at [2]
N Adams J at [63]
CRIMINAL LAW – appeal – sentence – sexual assaults upon two persons under the age of 10 years – error conceded – sentencing judge erred by treating standard non-parole period as having determinative significance in the sentencing exercise – sentencing judge erred in giving effect to finding of special circumstances in relation to count 3 by extending the additional term, rather than reducing the non-parole period – resentence
Judgment of
Simpson AJA at [1]
Button J at [7]
Lonergan J at [8]
CRIMINAL LAW – appeals – appeal against sentence – indecent assault – whether sentencing judge erred in finding the objective seriousness of the offending as in the mid-range – whether sentencing judge erred by not giving sufficient weight to the applicant’s remorse – whether sentencing judge erred by failing to properly apply a sufficient discount for the guilty plea – whether sentencing judge erred by failing to consider alternatives to full time imprisonment – whether sentence manifestly excessive
CRIMINAL LAW – sentence – appeal against sentence – Commonwealth drug offences – State drug and fraud offences – whether sentence imposed for a discrete offence was outside the available range – utility of sentencing statistics – whether a custodial sentence was warranted for discrete offence – manifest excess – question of parity with co-offender
Judgment of
Basten JA at [1];
Wright J at [2];
Wilson J at [3]
CRIMINAL LAW – leave to appeal against sentence – offender pleaded guilty to 22 offences relating to child pornography and child abuse material – additional 15 child pornography offences taken into account on sentence – offender transmitted and solicited child abuse material to and from various male children – possession of child abuse material – offender transmitted indecent communications to various victims – offending conduct occurred over two-and-a-half-year period involving multiple offences and actual victims – two child victims of indecent communications identified – victims provided victim impact statements – two grounds of appeal that overall sentence was manifestly excessive as sentences imposed on discrete counts were manifestly excessive – element of artificiality in the complaints – sentences for discrete counts open to sentencing Judge – no error demonstrated – ground of appeal that overall sentence was manifestly excessive – active and persistent offender – favourable findings based on psychological evidence – cautionary approach given limited insight into offending behaviour – general deterrence a primary consideration in offences involving sexual predatory conduct towards children – no demonstrable error in total effective sentence – leave to appeal granted – appeal dismissed
CRIMINAL LAW – appeal against sentence – attempting to procure fictitious child under 14 for unlawful sexual activity – travel with intention of meeting child under 14 whom applicant groomed for sexual purposes with intentions of procuring unlawful sexual activity with child and another person – Crimes Act 1900 (NSW) s 66EB – whether error in level of accumulation – whether total sentence manifestly excessive
Judgment of
Leeming JA at [1]
Hamill J at [2]
N Adams J at [3]
CRIMINAL LAW – appeal against sentence – robbery armed with knife – whether error in failing to find intellectual disability mitigated moral culpability – whether error in failing to take into account intellectual disability when considering general deterrence – whether sentence manifestly excessive
Judgment of
Bathurst CJ at [1]
Harrison J at [2]
N Adams J at [3]
CRIMINAL LAW – application for leave to appeal against sentence – assault occasioning actual bodily harm in company – wounding with intent to cause grievous bodily harm – aggregate sentence - whether applicant’s representation in the District Court was incompetent – whether discount for late pleas of guilty inadequate - whether sentence excessive
EVIDENCE – Evidence Act 1995 (NSW) s 87(1)(c) – whether section encompasses representations made in furtherance of a common purpose extraneous to proceedings
EVIDENCE – Evidence Act 1995 (NSW) – “representation” – meaning of
EVIDENCE – where evidence tendered under s 87(1)(c) – where criteria satisfied – satisfaction of criteria does not finally determine admissibility in substantive proceedings
CRIME - appeals - appeal against sentence – whether sentence manifestly excessive - applicant pleaded guilty to a number of sexual offences - three further offences taken into account on a Form 1 - offending occurred when the applicant was 15 and 16 years of age - complainant was the applicant’s stepbrother aged 10 and 11 years at the time - approximately 16 year delay in prosecuting the offences - whether the sentencing judge gave sufficient weight to the offender's youth and the delay - where the offending was significant - where the offences charged were representative offences - where the offending involved threats and a degree of coercion - consideration of how the offender would have been sentenced but for the delay - sentence not unreasonable or plainly unjust - appeal dismissed
CRIMINAL LAW – sentencing – appeal against sentence – unrepresented applicant – question of commencement date of sentence – assessment of prospects of rehabilitation – asserted manifest excess
Judgment of
Basten JA at [1];
Wright J at [3];
Wilson J at [4].
APPEAL - Crown appeal - manifest inadequacy of aggregate sentence - sentence after trial - Respondent convicted of three offences under s.27 Crimes Act 1900 - wounding with intent to murder, cause grievous bodily harm with intent to murder and attempt to wound with intent to murder - Respondent armed with large axe and knife - Respondent randomly attacked victims with axe in a convenience store without provocation - initial attack on two victims captured on CCTV footage - attack on third victim on street outside convenience store - significant impact of offences upon all three victims - Respondent had powerful subjective case - consideration of sentencing decisions for s.27 Crimes Act 1900 offences - aggregate sentence manifestly inadequate - appropriate case for Court to resentence Respondent - finding of special circumstances - Respondent resentenced to aggregate term of imprisonment of 14 years with a non-parole period of eight years
Judgment of
Simpson AJA at [1]
Johnson J at [10]
Harrison J at [148]
INTERLOCUTORY APPEAL – appeal by Crown pursuant to s 5F(2) Criminal Appeal Act 1912 (NSW) – where trial judge stayed indictment pending the provision of further particulars – whether trial judge erred in finding that the relevant counts suffered from latent ambiguity such that further particulars required
Judgment of
Hoeben CJ at CL at [1]
Latham J at [2]
N Adams J at [3]
CRIMINAL LAW – criminal investigation – warrant for telephone intercepts - two counts of supplying a prohibited drug - joint criminal enterprise - appeal under s 5F(3A) Criminal Appeal Act against ruling excluding telephone intercept evidence - whether primary judge made erroneous finding of fact –– whether s 60(1) Telecommunications (Interception and Access) Act 1979 (Cth) complied with – whether any irregularity found was a substantial irregularity – whether primary judge erred in determining that telephone intercept was not lawful
WORDS AND PHRASES – “immediately”
Judgment of
Basten JA at [1]
Johnson J at [14]
Davies J at [15]
CRIMINAL LAW – sentencing – robbery in company – application of Henry criteria – causing actual bodily harm – wholly concurrent sentences – imprisonment to be served by intensive correction order
CRIMINAL LAW – sentencing – appeal against inadequacy of sentence – misapprehension of facts – failure to give effect to expressed intent to accumulate sentences – misapplication of principle in The Queen v De Simoni – manifest inadequacy
CRIMINAL LAW – sentencing – intensive correction order – community safety as paramount consideration – extent to which additional purposes of sentencing affect determination – consideration of statements in R v Pullen
WORDS AND PHRASES – “adequately punished” – “community safety” – “paramount consideration”
Judgment of
Basten JA at [1];
Johnson J at [77];
Price J at [78]
SENTENCING — application for leave to appeal against sentence – Whether gross failure by applicant’s legal representatives properly to advise about evidence on sentence
SENTENCING – whether applicant denied opportunity to give evidence at sentencing hearing
Judgment of
Payne JA at [1], Johnson J at [49], N Adams J at [99]
CRIME – Firearms offences – Conspiracy to unlawfully supply pistols or prohibited firearms
SENTENCING – Appeal against sentence – Co-offenders – Discount for plea of guilty – Co-offenders received discount for plea of 15% - Applicant received discount for plea of 10% - Applicant’s plea entered shortly after
SENTENCING – Appeal against sentence – Assessment of criminality – Whether findings of fact available on evidence
SENTENCING – Appeal against sentence – Non-parole period – Ratio of the non-parole period and balance of term - Finding of special circumstances – Partial Accumulation of sentence upon previously imposed sentence – Non-parole period marginally less than statutory ratio
Judgment of
Bathurst CJ at [1]; Price J at [80]; N Adams J at [81]
CRIMINAL LAW — appeals — appeal against sentence —misapplication of principle—objective seriousness of the offence—assessment for each individual offence— whether application of Clarke principle— “smorgasbord” of drugs— whether no penalty other than imprisonment was appropriate
CRIMINAL LAW — appeals — appeal against sentence — manifest excess
CRIMINAL LAW – appeals – appeal against sentence – applicant convicted of one count of aggravated indecent assault of a child under the age of 16 years – applicant the paternal grandfather of the complainant – complainant stayed over at the applicant’s home and slept in his bed – applicant pulled down the complainant’s pants while pressed against her – sentencing judge found that the applicant had an erection and had ejaculated during the commission of the indecent assault – applicant asserted that he had an incontinence problem and had unwillingly urinated on the complainant – issue relevant to measure of objective seriousness of offending - whether the sentencing judge’s finding of fact was consistent with the jury’s verdict – where the veracity of the applicant’s alleged incontinence was cast into doubt by the evidence – the sentencing judge’s finding was the only rational inference from the facts – finding made beyond reasonable doubt – appeal dismissed
Judgment of
Leeming JA at [1]
Davies J at [2]
Hidden AJ at [54]
CRIMINAL PROCEDURE – trial – directions to jury – failure to direct the jury in accordance with Black v The Queen – failure clearly to respond to notes from the jury indicating inability to reach unanimity – whether undue pressure imposed on jury – whether trial miscarried
Judgment of
Simpson AJA at [1]; Walton J at [85]; Adamson J at [86]
CRIME – appeals – Crown appeal against sentence – where respondent guilty of sexual intercourse with child under 10 in circumstances of aggravation – victim of offending was 11-month-old infant daughter of the respondent’s partner – where victim suffered internal injury to her rectum – sentencing judge not satisfied that offending was sexually motivated – sentenced to 4 years and 6 months with non-parole period of 3 years – where sentence largely concurrent with manslaughter sentence involving same child – whether sentence manifestly inadequate – objective seriousness of the offending – application of the totality principle – exercise of the residual discretion pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) – consideration of factors relevant to the exercise of the discretion – expiration of the non-parole period imposed by the sentencing judge – respondent resentenced
Judgment of
Gleeson JA at [1]
Button J at [93]
Lonergan J at [94]
CRIMINAL LAW – appeal against sentence – plea of guilty to offence of cultivate commercial quantity of cannabis – where applicant made admissions to police upon arrest and walked them through grow operation whereas co-offender did not – whether sentencing judge failed to take into account applicant’s admissions
Judgment of
Bathurst CJ at [1]
Price J at [2]
N Adams J at [3]
APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION AND SENTENCE – sexual assault – indecent assault – aggravated sexual assault – aggravated indecent assault – pleas of guilty entered in the District Court – further offences taken into account – question of whether the pleas were entered as a consequence of incorrect legal advice – question of consciousness of guilt – “fresh evidence” – whether credible or persuasive – question of integrity of plea – appeal out of time – question of leave – sentence appeal – no grounds or submissions filed
Judgment of
Hoeben CJ at CL at [1]
Walton J at [2]
Wilson J at [4]
CRIME – conviction appeal – where applicant consented to joint trial when advised otherwise by counsel – where Crown witness gave damaging answers in response to questions regarding use of prohibited weapons – where defence counsel disclosed fact of the applicant’s previous incarceration during cross-examination of Crown witness – whether incompetence of counsel led to miscarriage of justice
CRIME – sentence appeal – whether sentence manifestly excessive
Judgment of
Simpson AJA at [1]; Bellew J at [98]; Campbell J at [99]
CRIMINAL LAW – appeal against sentence – series of sexual assaults against granddaughter – whether failure to make finding of special circumstances disclosed error – whether sentence manifestly excessive – comparison with other sentences – appeal allowed and applicant resentenced
Judgment of
Leeming JA at [1];
Davies J at [95];
Button J at [96]
CRIME – Appeals – Appeal against sentence – numerous sexual offences committed against a child – whether sentencing judge erred in using “Form 1 offences” in determining objective seriousness – whether sentencing judge erred in relying on Veen (No 2) – failure to include parole period in backdating of sentence – totality principle – error established – approach to exercise of discretion to re-sentence – whether more or less severe sentence is warranted in law – whether Court should specify longer sentence that would have been imposed – discretion to re‑sentence exercised – same length of sentence imposed but new commencement date
Judgment of
Bathurst CJ at [1];
Beech-Jones J at [2]
N Adams J at [117]
CRIME – appeal against conviction – supply of prohibited drugs – unrepresented accused at trial – pleas of not guilty not personally entered by accused on arraignment before the jury panel – whether trial a nullity as a result – whether trial so unfair as to constitute a miscarriage of justice – both grounds dismissed
Judgment of
Basten JA at [1];
Button J at [68];
Lonergan at [407]
APPEAL AND REVIEW – question of law stated under Criminal Appeal Act s 5AE during summary proceedings in Land and Environment Court – offence of using land as a waste facility without lawful authority – whether prosecutor permitted to make second s 5AE request in substantially different form to first request – meaning of “waste” – whether recycled materials deposited on land in stockpiles met definition of waste – whether stockpiling of materials on land a scheduled activity – whether depositing waste on land was the scheduled activity of waste disposal by application to land – whether temporary stockpiling of waste on land was the scheduled activity of waste storage – meaning of “asbestos waste” – whether waste contained asbestos – application of exemption granted under regulations – effect of exemptions that activity a non-scheduled activity – statutory exception to onus of proof – defendants bore onus of proving lawful authority – defendants bore onus of proving exemptions apply – no lawful authority pursuant to development consent or other approval – whether continuing offence proven – whether offences time barred – errors of law established – proceedings remitted to Land and Environment Court for determination in accordance with the answers given to the submitted questions
WORDS AND PHRASES – “waste” – “waste facility” – “waste disposal by application to land” – “waste storage” – “asbestos waste” – “without lawful authority”
Judgment of
Preston CJ of LEC at [1];
Davies J at [411];
Adamson J at [412]
CRIME – Appeals – Appeal against sentence – stealing motor vehicle and aggravated break and enter – applicant pleaded guilty whereas co-offender was found guilty after jury trial – parity – whether disparity in sentences explained by differences in subjective cases – whether justifiable sense of grievance – whether reduction in sentence would produce an erroneously lenient sentence – whether co-offender’s sentence manifestly inadequate – consideration of head sentence and non-parole period – re-sentence
Judgment of
Gleeson JA at [1];
Johnson J at [2];
Price J at [3]
CRIMINAL LAW – Appeals – objective seriousness – principle of proportionality – whether sentencing judge erred in the assessment of the objective gravity of the offences – whether sentence manifestly excessive – sentencing for standard non-parole period offences
SENTENCING – Absence of an aggravating factor does not diminish gravity of offence – requirement of an assessment based on the facts of each case – no hierarchy of sexual offences according to type of penetration or sexual connection – each offence compounded by eventual abandonment of complainant – whether aggregate sentence imposed by trial judge too severe – whether sentence imposed was unreasonable or plainly unjust – held sentence within bounds of sentencing discretion – held the appeal should be dismissed.
Judgment of
Simpson AJA at [1]
Bellew J at [27]
Campbell J at [36]
CRIMINAL LAW – case stated pursuant to Criminal Appeal Act 1912 (NSW), s 5BA – where only route of appeal against sentence and conviction in Local Court is in Land and Environment Court – where appeal to District Court dismissed on jurisdictional grounds – whether summons seeking appeal in Land and Environment Court filed out of time should be dismissed – stated case defective
Judgment of
Simpson AJA at [1]; Walton J at [19]; Adamson J at [20]
CRIME – application for leave to appeal against conviction – where indictment contained 7 counts alleging sexual offences (sexual intercourse without consent and indecent assault) – where verdicts of guilty returned after trial by jury in relation to counts 2-6 – where applicant acquitted of counts 1 and 7 – whether verdicts are inconsistent – whether verdicts of guilty are generally unreasonable or unable to be supported – discussion of the evidence given at trial – analysis of points of rational differentiation between acquittal counts and conviction counts – verdicts not irreconcilable – application of M v The Queen (1994) 181 CLR 487 – verdicts not generally unreasonable or unable to be supported – leave to appeal granted and appeal dismissed
CRIMINAL LAW – stated case from District Court on question of law – where appeal dismissed against conviction of driving heavy vehicle not complying with loading requirements – whether extension of time should be granted – limitations of stated case procedure – inappropriate to answer question of mixed fact and law – whether primary judge misdirected himself at law as to the meaning of a defined term
Judgment of
Gleeson JA at [1]
Johnson J at [49]
Price J at [50]
CRIME – appeals – appeal against conviction – jury verdict of guilty for offence of sexual intercourse with a child, and acquittal for three similar counts – whether conviction is unreasonable – whether it was not open to jury to be satisfied beyond reasonable doubt of guilt of applicant – review of evidence at trial – complainant aged 5-6 at time of alleged offending and aged 7 at trial – inconsistencies between contemporaneous police interview and cross-examination of complainant – young age and nature of child’s memory relevant to jury’s assessment of evidence – well open on evidence for jury to be satisfied beyond reasonable doubt of guilt – whether jury should have had a doubt about guilt because of acquittal on other counts – logical reasons for jury to have had reasonable doubt about other counts – appeal dismissed
Judgment of
Leeming JA at [1];
R A Hulme J at [2];
Davies J at [145]
CRIME – leave to appeal against sentence – where appellant convicted of offence against public justice – pursuant to s 314 of the Crimes Act 1900 (NSW) – whether sentencing judge erred in consideration of the applicant’s mental state – whether sentence manifestly excessive – appeal allowed – discretion to re-sentence exercised – lower sentence imposed
CRIME – appeals – appeal against conviction – unreasonable verdict – wounding with intent to cause grievous bodily harm – where jury found guilt based on joint criminal enterprise or extended joint criminal enterprise – whether it was open to the jury to be satisfied beyond reasonable doubt that an agreement existed between the appellant and the co-accused to commit a crime – where Crown case was circumstantial
Judgment of
Gleeson JA at [1]
Harrison J at [70]
N Adams J at [71]
CRIME – sentence appeal – where applicant convicted of supplying a commercial quantity of prohibited drug – where applicant sentenced to imprisonment for 3 years with a non-parole period of 18 months – whether sentencing judge erred in assessing the role of the applicant in the offence – whether sentencing judge erred in not concluding that delay in entering guilty plea was caused by factors outside of legal representative’s control – whether sentencing judge erred in only reducing the sentence by 10 per cent for guilty plea
Judgment of
Gleeson JA at [1]
Harrison J at [2]
Adams J at [34]
CRIMINAL LAW – stay of proceedings – temporary stay – applicant charged with sexual intercourse without consent – main issue at trial consent – ambulance officer made note concerning complainant’s history “ANXIETY, DEPRESSION - OFF MEDICATION FOR 4/12 SINCE -> AUSTRALIA” – complainant resident of United Kingdom – applicant sought stay pending prosecution making inquiries of complainant’s mental health and obtaining records of diagnosis and treatment – stay refused by primary judge – consideration of nature of duty of disclosure – consideration of circumstances when duty extended to duty to make inquiries – nature of evidentiary onus upon applicant for a stay – no obligation to make inquiries in present case – appeal dismissed
Judgment of
Leeming JA at [1];
R A Hulme J at [78];
Adamson J at [79]
CRIMINAL LAW – appeals – appeal against conviction – judge alone trial – applicant found guilty of two offences of sexual intercourse without consent and one offence of use an offensive weapon with intent to commit an indictable offence – applicant acquitted on other two counts – same complainant for all charges – applicant and complainant in a dysfunctional and abusive relationship – the two sexual intercourse offences for which the applicant was convicted occurred on the same night – early complaint to friends – offensive weapon offence committed on later occasion – early complaint to neighbour – whether the verdicts of guilty for the first three offences was unreasonable in light of the nature and quality of the evidence and the verdicts of not guilty for the other two offences – whether the complainant’s evidence was reliable – where inconsistencies in complainant’s evidence considered at length by the trial judge – acquittal on final two counts heavily informed by the lack of corroboration – verdict not unreasonable.
EVIDENCE – hearsay – warnings – failure to give hearsay warning – where trial counsel did not seek the direction now complained of – applicant failed to identify and formulate the direction said to have been required at trial – r 4 Criminal Appeal Rules – leave not granted to advance this ground of appeal
Judgment of
Hoeben CJ at CL at [1]
Davies J at [2]
Fagan J at [112]
CRIMINAL LAW – interlocutory appeal – joint indictment – applicant charged with one count of sexual intercourse with a girl aged 14, and one count of committing an act of indecency towards a girl aged 11 – pre-trial ruling on objections to Crown adducing evidence of each complainant as tendency evidence in respect of the other charge and application to sever indictment – primary judge ruled evidence admissible – Crown conceded material errors by primary judge in failing to assess probative value, failing to assess whether probative value significant and failing to determine whether that value substantially outweighed prejudicial effect – Crown contended for narrower basis of admissible tendency reasoning – material differences between accounts of the two complainants meant absence of significant probative value and probative value failing to substantially outweigh prejudicial effect – appeal allowed, ruling set aside and indictment ordered to be severed – Evidence Act 1995 (NSW), ss 95, 97, 101 and 137
EVIDENCE – tendency rule – joint indictment – one complainant described spontaneous act of indecency by accused – other complainant described a series of interactions gaining her trust leading to sexual intercourse without consent – complainants were both young girls who first encountered accused driving in his car – whether acceptance of account of either complainant would have significant probative value in respect of the other charge – whether significant probative value substantially outweighed prejudicial effect
Judgment of
Leeming JA at [1];
R A Hulme J at [69];
R S Hulme AJ at [70]
CRIMINAL LAW – appeals – appeal against sentence – applicant pleaded guilty to four offences of robbery in company and one offence of police pursuit – further offence of steal motor vehicle taken into account on sentence – offending all occurred in the course of one criminal enterprise – robbery in company perpetrated against a number of complainants who all lived at the same premises – degree of violence involved in the robbery offences – use of weapons – several of the offences committed in the presence of minors – after the robberies the applicant and co-offenders stole the vehicle of one of the complainants and fled the premises – police pursuit ensued – where the applicant had served time in custody for other offences whilst refused bail for index offences – backdating of sentences - whether the sentencing judge erred in his assessment of the time spent by the applicant in custody solely referable to the index offences – whether the sentencing judge erred in his application of the Bugmy principles – whether the sentencing judge erred in his assessment of the applicant’s criminal antecedents – need for re-sentence – no lesser sentence warranted – adjustment to commencement date for sentence
Judgment of
Leeming JA at [1]
R A Hulme J at [2]
Davies J at [3]
CRIME – bail – detention application – respondent required to show cause – reasonably strong crown case –serious organised criminal activity – charges include supply large commercial quantity cocaine and proceeds of crime in excess of $2 million – lengthy custodial sentence likely if convicted – flight risk – concern of delay – caused not shown – application granted
CRIMINAL LAW – conviction appeal – assault – sexual intercourse without consent – where jury was misdirected as to onus of proof in relation to consent – where applicant’s counsel failed to object to misdirection – leave given under rule 4 of Criminal Appeal Rules as applicant was deprived of a real chance of acquittal – unnecessary to decide question of the validity of rule 4 – appeal allowed – conviction and sentence quashed
Judgment of
Hoeben CJ at CL at [1];
White JA at [2];
Fagan J at [69]
CRIMINAL LAW – sentence appeal – Crown appeal – wound with intent – failure to aggravate sentence because of use of weapon – use of weapon considered by sentencing judge in assessing objective seriousness – use of weapon is aggravating factor, but no error because taken into account – impermissible to double count – manifest inadequacy – seemingly insufficient or no regard to maximum sentence and standard non-parole period – outside range for this offence and this offender – residual discretion – significant rehabilitation – Crown did not persuade the Court to intervene – residual discretion exercised
APPEAL – Crown appeal against sentence – purpose of Crown appeal – residual discretion not to intervene exercised
Judgment of
Hoeben CJ at CL [1];
Rothman J at [2];
Button J at [70]
CRIME – Appeals – Appeal against sentence – two armed robberies – report by sentencing judge to the Court of Criminal Appeal – circumstances where report may be made – report not considered by the Court – whether judge erred in taking into account Form 1 offences when assessing the objective seriousness of principal offences – whether error in taking into account multiple victims and series of criminal acts – whether error in taking into account threat of violence – whether error in application of principle of totality – Re-sentence – consideration of guideline judgment in R v Henry – consideration of whether applicant’s mental health reduced moral culpability for offences – whether applicant remorseful – applicant serving balance of parole – indicative sentences – aggregate sentence imposed – commencement date of aggregate sentence
CRIME – Fraud – Conspired dishonestly to obtain financial advantage by deception – $1 million advance from Commonwealth Bank of Australia for purpose of acquiring shares in company – Applicant used advance to repay personal debt - s 192E Crimes Act 1900 (NSW).
CRIME – False information – Supply misleading information as director to the Australian Securities Exchange – Two false or misleading announcements - ss 1309 and 1311 Corporations Act 2001 (Cth).
CRIME – Falsification of books – Relating to the affairs of company – ss 1307 and 1311 Corporations Act 2001 (Cth).
CRIME – Appeals – Appeal against conviction – Conspiracy – Verdict on duplicitous basis – Directions given to jury – suggested three alternative agreements which might prove conspiracy - Gave rise to latent duplicity or latent ambiguity – No miscarriage of justice – Applicant did not lose a real chance of acquittal.
CRIMINAL PROCEDURE – Appeals – Appeal against conviction – Joinder of State offence with Commonwealth offences – “Out of the same set of circumstances” – s 29 Criminal Procedure Act 1986 (NSW).
CRIMINAL PROCEDURE – Appeals – Appeal against conviction – Joinder of substantive offences to conspiracy count in same indictment – Open to the Crown to charge applicant with conspiracy – Crown did not obtain any forensic advantage.
CRIME – Appeals – Appeal against conviction – Falsification of books – Falsification of company minutes – Falsification of correspondence between solicitor and company – Falsification of correspondence between bank and company - Documents are “books” of the company - s 1307 Corporations Act 2001 (Cth).
CRIMINAL PROCEDURE – Appeals – Appeal against conviction – Tender and use of exhibit – Two volumes of documents – Extended evidence of applicant during trial – No realistic prospect of prejudice – Limited duplication of documents that related to prior conviction – Applicant elected to give evidence – Detailed and thorough evidence-in-chief and cross-examination – No unfairness to applicant.
CRIME – Appeals – Appeal against conviction – Incompetence of counsel – Applicant not denied a fair trial – Applicant not deprived of a fair chance of acquittal.
CRIME – Appeals – Appeal against sentence – Manifest excess – Overall sentence not manifestly excessive – Reasonable exercise of discretion of sentencing judge.
CORPORATIONS – Meaning of “books of the company” considered – s 1307 Corporations Act 2001 (Cth)
CRIME — appeals — appeal against sentence – sentenced for ongoing drug supply, drug supply, and proceeds of crime offences – whether primary judge failed to give any weight to remorse – no error established no submission made and where evidence of remorse relevant to s 21A(3)(i) not self-evident on the materials – whether primary judge imposed a manifestly excessive aggregate sentence – potential disadvantage on appeal where ground asserting manifest excess particularised in sub-grounds asserting patent error – no error in primary judge’s assessment of objective seriousness where no submissions made below against such finding – no error in parity between the indicative sentences imposed for the supply offences – no error in aggregate sentence having regard to totality of criminality and the applicant’s subjective case
Judgment of
Leeming JA at [1];
R A Hulme J at [2];
Davies J at [57]
CRIME – criminal appeals – appeal against sentence – persistent sexual abuse of a child – whether sentence manifestly excessive – objective seriousness below mid range – unusual facts – very strong subjective case – notional starting point 8 years imprisonment – sentence of six years with non-parole period of 3 years 6 months – sentence not manifestly excessive
Judgment of
Leeming JA at [1];
Ierace J at [38];
Hidden AJ at [39]
CRIME — appeals — appeal against sentence – firearms offences committed in 2011 – sentenced for offences related to possession of firearms in 2012 – sentenced for offences of firing of firearm with disregard for safety of others and causing grievous bodily harm offences in 2018 – no error established where submissions on sentence made in respect of delay and principle of totality – judges are not required to approach sentencing in arithmetical fashion – no error established in relation to concurrency and accumulation of offences – offences contain discrete and additional criminality compared to possession of firearm offences – sentence not manifestly excessive – appeal dismissed
Judgment of
White JA at [1];
Harrison J at [2];
R A Hulme J at [3]
CRIMINAL LAW – appeal against sentence – offender convicted of multiple drug supply offences –sentencing judge inferred from prior conviction that offender had previously used growth hormone – error conceded – whether error sufficient to warrant resentencing – agreement between parties – effect of Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 considered
CRIMINAL LAW – appeal against sentence – resentencing – nature of remorse – offender did not testify – limited reliance on self-serving statements to psychologist – need for transparency in accumulation of sentences – appropriateness of aggregate sentence – special circumstances
Judgment of
Basten JA at [1];
Hamill J at [70];
Lonergan J at [78]
CRIMINAL LAW – procedure – permanent stay – stay granted by court below on basis of weakness of Crown case – whether primary judge had applied correct test – whether “incurable weakness” in Crown case such that prosecution was “foredoomed to fail” – consideration of exceptional nature of jurisdiction – appeal allowed, stay discharged and matter remitted to District Court for trial
Judgment of
Leeming JA at [1];
Button J at [57];
Fagan J at [58]
CRIMINAL LAW – stay of proceedings – accused charged with unlawfully killing his disabled daughter – police investigation produced 370 hours of sound recordings from listening device – none of recordings incriminated accused – recordings all disclosed to accused in 2016 – Legal Aid unwilling to pay for lawyers to listen to recordings – Crown unwilling to provide transcripts – trial judge refused to grant stay pending provision of transcripts – whether leave should be granted to appeal from refusal to grant stay – where insufficient prospects of success – where allowing appeal would likely result in vacating the trial – leave refused
SENTENCING — appeal against sentence — co-offenders — disparity between sentences – whether legitimate sense of grievance arising from disparity – assessment of disparity based on objective criteria – consideration of basis upon which co-offenders sentenced – differences in statements of agreed facts and subjective cases between applicant and co-offenders – no justifiable grievance assessed by reference to objective criteria – leave to appeal granted – appeal dismissed
Judgment of
Basten JA at [1];
R A Hulme J at [12];
Fagan J at [48]
CRIME – appeals – appeal against sentence – manifest inadequacy – whether sentence was open to sentencing judge – where legislature has set significant maximum penalty – where Crown accepts finding of special circumstances correctly made
Judgment of
Payne JA at [1]; Davies J at [55]; Button J at [56]
CRIMINAL LAW – appeals – appeal against sentence – applicant sentenced after trial – applicant found guilty of two child sex offences contrary to ss 66A(1) and 61M(2) – two separate complainants – first complainant was the 8 year old sister of the applicant’s then partner – second complainant was the 5 year old daughter of the applicant’s then partner – touching and digital penetration – applicant sentenced to an aggregate sentence of 13 years’ imprisonment with a non-parole period of nine years – whether the s 66A sentence incorporated factual error – where the sentencing judge made erroneous factual finding as to bleeding caused by the offending – finding only one of the considerations taken into account when assessing objective seriousness – whether the sentencing judge erroneously assessed the objective seriousness of the offending – whether the sentencing judge erred in the weight she afforded to the standard non-parole period – whether the sentencing judge erroneously found that the applicant could address his rehabilitation needs in custody – whether the sentencing judge failed to give adequate consideration to the causal role of substance addiction in the offending and the applicant’s disadvantaged background – whether special circumstances should have been found – whether the sentence was manifestly excessive – no statistics or comparative cases were provided to support applicant’s high-level assertion that the sentence was plainly unreasonable and unjust – significant degree of concurrency between two individual sentences – no manifest excess found – appeal dismissed
CRIMINAL LAW - appeals - application for leave to appeal against sentence - applicant convicted after trial of one offence of sexual intercourse without consent - intoxicated complainant assaulted by Uber driver in his car - applicant sentenced to 9 years’ imprisonment with non-parole period of 6 years 4 months - whether the sentencing judge erred in her interpretation of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW) in dealing with evidence of remorse - where the applicant wrote a letter of apology for the offending - letter provided to the sentencing judge after the sentence hearing - letter was said to demonstrate remorse - where applicant did not give evidence - where sentencing judge concluded that remorse not shown - conclusion open to the sentencing judge - whether the sentence was manifestly excessive - where the applicant did not challenge the sentencing judge’s assessment of objective seriousness - use of comparable cases - sentence not plainly unreasonable or unjust - appeal dismissed
Judgment of
Hoeben CJ at CL at [1]
R A Hulme J at [2]
Davies J at [3]
CRIME – application for leave to appeal against sentence – sexual intercourse with child under 10 – convictions on two counts after trial – very adverse pattern of prior similar offending – whether assessments of objective seriousness erroneous – whether application of totality principle erroneous – whether aggregate head sentence of imprisonment for 30 years with aggregate non-parole period of 22 years 6 months manifestly excessive – appeal dismissed
Judgment of
Simpson AJA at [1]
Button J at [65]
Lonergan J at [202]
SENTENCING – appeal against sentence – where sentencing judge recorded that he did not accept the applicant’s evidence “beyond reasonable doubt” – whether language was merely an infelicitous, emphatic rejection of the applicant’s account or betrayed a fundamental misapprehension that the applicant needed to establish circumstances to the criminal standard of proof
SENTENCING – appeal against sentence – Form 1 matters – where sentencing judge arrived at a sentence for one count, discounted it for an early plea and then added a further period to the sentence to take into account Form 1 matters – whether an error in this approach
SENTENCING – non-parole period – ratio of the non-parole period and head sentence term – accumulation of two sentences where one sentence had later commencement date – where effect of accumulation meant that the statutory ratio of 75% was exceeded and not clear from sentencing judge’s remarks on sentence whether this was intended
Judgment of
Bathurst CJ at [1];
Bell P at [2];
Hamill J at [73]
CRIME – conviction appeal – where applicant convicted of six counts of aggravated indecent assault but acquitted on two counts – where jury returned mixed verdicts on two counts which involved conduct that occurred in close proximity in time – whether mixed verdicts irreconcilably inconsistent – whether verdicts of guilty unreasonable and not supported by evidence
Judgment of
Simpson AJA at [1]; Button J at [75]; Lonergan J at [76]
CRIME – Appeal and review – Appeal from inclusion in Child Protection Register following conviction – no jurisdiction to hear appeal from inclusion in Register that followed from conviction for class 1 or class 2 offence – application dismissed
Judgment of
Bathurst CJ at [1], [12] and [14];
Beech-Jones J at [2];
N Adams J at [13]
CRIMINAL LAW – application for leave to appeal against sentence – sexual intercourse with a child under 10 years (and related offences) – whether the sentencing judge properly had regard to the applicant’s deprived background – whether special circumstances should have been found – whether sentence unreasonable or plainly unjust
Judgment of
Bathurst CJ at [1]
Ierace J at [2]
Hidden AJ at [3]
APPEAL – conviction – mental impairment defence – new evidence – psychiatric evidence from second trial – leave to appeal – out of time application – mental impairment found regarding similar counts – psychiatric evidence covers some period in first trial – unable to reason with moderate degree of composure – moral wrongfulness – mental illness – special verdict not guilty
Judgment of
Hoeben CJ at CL at [1]
Walton J at [2]
Wilson J at [20]
PROCEDURE – remitter – appellant convicted of multiple child sexual assault offences – aggregate sentence imposed – appeal against conviction – three convictions quashed but appeal otherwise dismissed – remitter to District Court for resentencing
CRIMINAL LAW – bail – appeal bail – appeal to the High Court – where special leave granted – “special or exceptional circumstances” – appeal at least arguable – where non-parole period imposed in District Court expired – where substantial proportion of non-parole period imposed on Crown appeal will have been served – applicant on bail for three years pending sentence – bail granted
Judgment of
Bathurst CJ at [1], [35] and [37]
Bell P at [36]
Hamill J at [2]
CRIMINAL LAW – appeals – appeal against sentence – applicant pleaded guilty to three charges – take and drive vehicle without consent of owner – break enter and steal – dispose of stolen property – where the applicant scaled a unit complex and forcibly entered a first floor apartment – apartment was ransacked and car keys stolen – applicant entered the occupant’s car and drove it towards his home – the applicant subsequently pawned a number of items which belonged to persons other than the owners of the apartment – applicant readily apprehended as he had dropped his mobile phone in the apartment – applicant also used his own photo identification and address when pawning the goods – sentenced to aggregate sentence of 4 years 6 months’ imprisonment with non-parole period of 3 years 1 month – 25% discount given for early plea – whether the sentencing judge erred in his assessment of the objective seriousness of the offending – where the sentencing judge found that all three offences fell within the mid-range or just below it – where trial counsel and the Crown had agreed that the objective seriousness of the offending was towards the lower end of the range – where sentencing judge gave no explanation for his finding of objective seriousness in the face of the parties’ submissions to the contrary – undisputed facts indicated objective seriousness at the lower end of the range – sentencing judge also incorrectly interpreted the ambit of offences falling under s 189 Crimes Act 1900 (NSW) – error not immaterial – ground made out – resentencing warranted – all three offences deemed to be in the low range of objective seriousness – consideration given to applicant’s extensive criminal history – improved prospects of rehabilitation since being sentenced – high likelihood of reoffending – special circumstances found to exist – applicant resentenced to an aggregate sentence of 4 years’ imprisonment with non-parole period of 2 years and 8 months
Judgment of
Leeming JA at [1]
Davies J at [2]
Button J at [53]
CRIMINAL LAW – crimes of dishonesty – discount for assistance – assistance provided very late – police aware of matters subject to assistance – possibility applicant to be called to give evidence – whether 5% discount for future assistance sufficient – discretionary and evaluative judgment – no error established
Judgment of
Bathurst CJ at [1];
Hamill J at [2];
N Adams J at [19]
CRIME — Appeals — Appeal against sentence – offences of aggravated sexual assault and indecent assaults against daughter of partner – whether sentencing judge erred in application of the totality principle in imposing aggregate sentence – whether sentence manifestly excessive – difficulties with mathematical analysis of indicative sentences in determining manifest excess – need for careful approach in using comparative cases – no misapplication of principle – aggregate sentence within range of sentences available to reflect the criminality involved – appeal dismissed
Judgment of
Bathurst CJ at [1];
Price J at [2];
Ierace J at [3]
CRIMINAL PROCEDURE – appeal against conviction – where convicted of murder – directions to jury – where Crown case joint criminal enterprise – where directions introduced concept of extended joint criminal enterprise – whether the directions erroneously advanced a case for consideration of the jury that was not the Crown case
CRIMINAL PROCEDURE – appeal against conviction – Criminal Appeal Rules (NSW) r 4 – whether error giving rise to miscarriage of justice
CRIMINAL PROCEDURE – appeal against conviction – Criminal Appeal Act s6 – whether “no substantial miscarriage of justice has actually occurred” – whether jury direction precluded application of proviso
Judgment of
Simpson AJA at [1]
Fullerton J at [75]
McCallum J at [76]
CRIMINAL LAW - appeal against sentence - knowingly take part in the manufacture of a large commercial quantity of ecstasy (MDMA) - discount applicable to sentence - whether the trial judge erred in the approach to the applicant's mental disorder - whether the trial judge erred in the approach to the applicant's assistance
CRIMINAL LAW – appeal against sentence – aggravated indecent assault on children under 10 years old – whether offences planned – appellate challenge to factual findings of sentencing judge – application of Clarke v R [2015] NSWCCA 232
CRIMINAL LAW – resentencing – breaches of extended supervision order – indecent assaults – assessment of objective seriousness – significance of offender’s propensity to reoffend – availability of extended supervision or detention orders irrelevant
Judgment of
Basten JA at [1];
Hamill J at [82];
Lonergan J at [85]
CRIMINAL LAW – conviction appeal – extension of time – whether verdict unreasonable or not available on the evidence – inconsistent verdicts – admissibility of evidence of surveillance recordings – obligation to present material evidence – failure to raise issues at trial – discharge of jury on prejudicial event – fairness of Crown submissions – fairness or appropriateness of summing-up and jury directions – evidence of bad character – fresh evidence – perversion of the course of justice – conduct of Crown in submissions – extension of time granted – appeal dismissed
CRIMINAL LAW – sentencing appeal – role of appellant – totality – parity – extension of time granted – leave to appeal granted – appeal dismissed
Judgment of
Hoeben CJ at CL at [1]
Walton J at [2]
Button J at [382]
CRIMINAL LAW – sentencing – drug offences – aggregate sentencing – where Judge told of wrong maximum penalty – where Judge told of standard non-parole period that did not exist – error not picked up by applicant – error raised by counsel for respondent – error conceded and established – necessary to re-sentence – lesser aggregate sentence warranted
CRIMINAL LAW – other grounds of appeal – grounds rejected – whether Judge erred in not providing 25% discount for plea – whether Judge erred in assessment of objective criminality – where no evidence available to establish precise role of offender
Judgment of
Basten JA at [1];
Hamill J at [2];
Lonergan J at [32]
CRIMINAL LAW – Crown appeal against sentence – Criminal Appeal Act 1912 (NSW), s 5DA – discount on sentence due to undertaking to provide future assistance – assistance not provided – whether undertaking extended to assisting at sentencing of co-offender – effect of respondent being held in immigration detention after being entitled to be released on parole – where effect of discount was 78 days, of which 61 days had been served in immigration detention – where undertaking contributed to co-offender’s guilty plea – appeal dismissed
SENTENCING – Relevant factors on sentence – Parity of sentencing - Co-offenders – Joint criminal enterprise – murder – disparity in sentences of co-offenders - whether justifiable sense of grievance by reference to the notional starting point of sentence of appellant and sentence of co-offender– co-offenders sentenced on different evidentiary basis – sentencing judge found co-offender’s offence more serious than applicant – applicant had strong subjective circumstances unlike co-offender.
Judgment of
Bathurst CJ at [1]; Hamill J at [108]; N Adams J at [109]
CRIMINAL LAW – appeal – appeal against sentence –aggravated break, enter and steal under s 112(2) of Crimes Act 1900 (NSW) – offences committed as part of joint criminal enterprise – whether effect of delay taken into account when fixing non-parole period – assessment of subjective case – leave to appeal out of time granted – leave to appeal granted – appeal upheld – applicant resentenced
Judgment of
Payne JA at [1], Davies J at [28], Button J at [29]
CRIME — Appeals — Application for leave to appeal against sentence and conviction — Primary judge imposed aggregate sentence in respect of offences including offences of unauthorised possession of prohibited firearms contrary to s 7(1) of the Firearms Act 1996 (NSW) to which applicant pleaded guilty — Where one such offence charged under s 7(1) related to possession of a shortened 20-gauge BOITO single-barrel shotgun — Common ground on appeal that agreed description of shotgun did not disclose offence against s 7(1) and that consequentially the relevant count on the indictment and aggregate sentence imposed thereon ought to be quashed — Whether applicant could be resentenced on appeal pursuant to s 7(2) of the Criminal Appeal Act 1912 (NSW) — No power for Court of Criminal Appeal to re-sentence where there was no other possible count on indictment on which a jury could have found applicant guilty — Proceedings remitted to District Court for re-sentencing
Judgment of
Hoeben CJ at CL at [1];
White JA at [1];
Hamill J at [1]
CRIME — Appeals — Appeal against sentence — Application for leave to appeal — Misapplication of principle — Commencement date of sentence — Offence committed while on day release
Judgment of
Bathurst CJ at [1], [21]-[26] and [28]
Hamill J at [2]
N Adams J at [27]
CRIME — appeals — appeal against conviction – whether prosecutor made error of fact by inviting jury to treat evidence of complainant differently due to intellectual disability – whether trial judge made error of fact in finding that the complainant and witnesses had cognitive impairment and directing jury that it could form own opinions about intellectual capacity – no technical medical evidence of intellectual disability – trial run on acceptance of complainant’s lower intellectual capacity – rule 4 Criminal Appeal Rules applies – leave refused
CRIME – appeals – appeal against sentence – whether error of fact – taking into account that complainant was cognitively impaired and vulnerable person – no technical medical evidence of intellectual disability – whether error of law – denial of procedural fairness in taking into account complainant’s cognitive impairment – open to judge to describe complainant as having an intellectual disability – applicant’s counsel agreed with proposed sentence – leave refused
Judgment of
Johnson J at [1];
R A Hulme J at [2];
Wright J at [87]
CRIMINAL LAW – sentencing – child sexual assault – amendment of statute to increase statutory age of victim from 10 and 16 years – sentencing Judge not made aware of amendment – indictment not correctly pleaded – Judge adopts error in indictment – impact on assessment of objective criminality – error established – whether victim vulnerable by virtue of age – all children caught by provision necessarily vulnerable – not an aggravating circumstance – exercising sentencing discretion afresh – applicant re-sentenced
Judgment of
Leeming JA at [1]
Hamill J at [2]
N Adams J at [35]
CRIMINAL LAW – Objective seriousness – error made in the exercise of discretion – whether the primary judge erred in assessing the applicant’s role in the drug supply enterprise – held in accepting erroneous assessment of the primary judge it must be accepted that the evaluation of objective seriousness is also erroneous – held primary judge fell into error by characterising the involvement of the applicant as more serious than that indicated by the evidence
CRIMINAL LAW – Appeals – parity principle – equality before the law – whether the applicant has a justifiable sense of grievance in the disparity of sentences imposed – substance rather than form – objective assessment of subjective circumstances – held disparity between sentences of co-offenders gives rise to a justified sense of grievance – resentence applicant
Judgment of
Hoeben CJ at CL [1];
Johnson J at [2]
Campbell J [3]
CRIME – conviction appeal – where permanent stay of proceedings denied by trial judge – where appellant accused of historical child sexual offences – where complainant made allegations shortly after the offending – where appellant interviewed by police and cross-examined at committal proceedings – where complainant chose not to proceed with prosecution but later reactivated complaints – where contemporaneous material lost – whether trial judge erred in dismissing application for stay
CRIME – conviction appeal – mixed verdicts – whether convictions on two counts unreasonable and not supported by evidence
Judgment of
Simpson AJA at [1]; Johnson J at [64]; N Adams J at [65]
SENTENCING – appeal – Director’s appeal against inadequacy of sentence – dangerous driving causing death – manifest inadequacy – high range objective seriousness – finding of special circumstances – relevance of hardship to family – discretion to intervene
CRIMINAL LAW — appeal against conviction — application for leave —conviction for recklessly causing grievous bodily harm and failing to provide child with necessities of life — medical and biomedical evidence of the cause of injuries — whether verdict unreasonable or cannot be supported having regard to evidence
CRIMINAL LAW — appeal against conviction — whether verdict unreasonable in light of acquittal on count of intentionally causing grievous bodily harm — whether modified circumstantial evidence direction should have been provided
CRIMINAL LAW — appeal against sentence — whether error in assessing objective criminality —precise mechanism of injury unknown
Judgment of
Basten JA at [1];
Adams J at [72];
Ierace J at [80]
SENTENCING – appeal against sentence – fresh or new evidence – whether a miscarriage of justice resulted from the absence of psychiatric evidence in the sentencing proceedings – no miscarriage of justice
SENTENCING – appeal against sentence – multiple offences – attempt to rob whilst being armed with a replica firearm – whether indicative sentence manifestly excessive – ground misconceived – no appeal against indicative sentence – aggregate sentence not manifestly excessive
SENTENCING – appeal against sentence – whether sentencing judge failed to take into account applicant’s background of deprivation – no failure to consider applicant’s background – leave granted to amend the application for leave to appeal to include this ground – appeal on this ground rejected
Judgment of
Johnson J, at [1]
R A Hulme J, at [2]
Wright J, at [3]
CRIME – appeals – appeal against conviction – alleged failure to direct jury regarding use of circumstantial evidence – whether trial judge obliged to give Shepherd direction regarding identification of vehicle on CCTV footage – identification of car not an indispensable intermediate step
CRIME – appeals – appeal against conviction – alleged failure to direct jury regarding use of circumstantial evidence – directions not in accordance with Bench Book – no deficiency identified
CRIME – appeals – appeal against conviction – alleged unreasonable verdict – verdicts open to jury – appeal dismissed
CRIME – appeal against sentence – question of parity – co-offender’s appeal against sentence not finally determined – leave to appeal refused
Judgment of
Simpson AJA at [1]
Walton J at [3]
Adamson J at [4]
CRIME — appeals — appeal against sentence – offences of sexual intercourse without consent with threatened and malicious infliction of actual bodily harm – offences committed in January 2002 – offender not sentenced until 2018 – offender sentenced for similar offences committed in February 2001 and February 2002 – whether sentencing judge needs to consider likely head sentence if offender sentenced for all three offences at one time – artificial consideration where earlier sentences had expired – failure to give reasons in relation to totality, remorse, rehabilitation prospects and unlikelihood of re-offending – consideration of relevance of delay and totality in resentencing exercise – no lesser sentence warranted
Judgment of
Hoeben CJ at CL at [1];
R A Hulme J at [2];
Davies J at [94]
CRIMINAL LAW – sentence appeal – two counts of perjury and one of threatening witness to withhold evidence – House v The King error in assessment of objective seriousness of Count 1 – need to re-sentence – need to take into account physical and mental health of applicant – need to reduce indicative sentence for Count 1 – need to reduce aggregate sentence.
Judgment of
Hoeben CJ at CL at [1];
R A Hulme J at [57];
Davies J at [58]
CRIMINAL LAW – Sentence – Appeal – Sending an explosive substance with intent to burn – Whether offending premeditated – Whether immaturity played a part in the offending – Consideration of sentencing principles relating to youthful offenders – Whether sentence manifestly excessive
Judgment of
Macfarlan JA at [1]
Fullerton J at [2]
Bellew J at [34]
CRIME – conviction appeal – where applicant convicted of having taken and driven a motor vehicle without the consent of the owner in circumstances of aggravation – whether trial judge erred in circumstantial evidence direction to the jury – whether trial judge erroneously minimised the lack of identification of the applicant as the important issue in the applicant’s response to the Crown case – whether trial judge should have excluded parts of the ERISP in which the police purported to identify the applicant in CCTV footage – whether verdict is unreasonable – appeal dismissed
CRIME – sentence appeal – where applicant sentenced to imprisonment of 7 years with non-parole period of 5 years – whether sentence manifestly excessive – appeal dismissed
Judgment of
Macfarlan JA at [1]
Harrison J at [2]
Hamill J at [2]
INCOME TAX – Ordinary income – agreement to make payments to a company in exchange for supply of services by a consultant – company did not operate any business other than the supply of services by the consultant – whether payments were ordinary income derived by the consultant
CRIME – Appeals – Appeal against conviction – New trial – prosecution advanced argument on appeal not raised at trial to support conviction– significant elapse of time since offences and likely delay in new trial – whether appropriate to make an order for a new trial
CRIMINAL LAW – Appeal – Application for a permanent stay of prosecution – whether the proceedings are an abuse of process – whether the appellant can receive a fair trial– double jeopardy –House v The King principles
Judgment of
Payne JA at [1];
Price J at [145];
Adamson J at [146].
CRIMINAL LAW – appeal – criminal procedure – permanent stay – sexual assault – delay in bringing proceedings – whether primary judge misapprehended intended use of Crown evidence – whether appropriate direction could overcome prejudice
Judgment of
Bathurst CJ at [1]; Johnson J at [75]; R S Hulme AJ at [76]
CRIME – sentence appeal – where appellant pleaded guilty to murder – where appellant sentenced to imprisonment for 36 years, with a non-parole period of 27 years – whether sentencing judge erred in finding murder involved a significant degree of premeditation – whether sentencing judge erred when determining objective seriousness – whether sentence manifestly excessive – appeal allowed – resentence
Judgment of
Payne JA at [1]
Harrison J at [2]
R A Hulme J at [50]
CRIMINAL LAW – appeal against conviction – appellant charged with child sexual assault offences against four young children – appellant found guilty and aggregate sentence imposed – counts one, two and three involved offences committed when appellant aged between 11 and 13 – whether guilty verdicts on those counts were unreasonable – whether Crown had rebutted doli incapax presumption – verdicts on counts one, two and three quashed – whether evidence of complainants admissible as tendency evidence on counts involving other complainants – whether probative value of evidence substantially outweighed prejudicial effect – appeal allowed in relation to conviction on counts one, two and three and dismissed in respect of counts four to twenty
CRIMINAL LAW – application for leave to appeal against sentence – offence of break, enter and steal, aggravated break, enter and steal – Form 1 matters – whether sentencing judge failed to assess the objective seriousness of the offences – new evidence, including evidence of applicant’s intellectual disability, received on re-sentence
CRIME – sentence appeal – where applicant convicted of supplying a prohibited drug – where applicant sentenced to imprisonment for 5 years, with a non-parole period of 3 years – whether sentencing judge was provided with incorrect information in pre-sentence report – whether mention of gun by prosecutor and sentencing judge during sentencing proceedings was misleading – whether sentencing judge erred by not backdating sentence to date applicant entered custody – whether sentencing judge was provided with incorrect information about location of applicant’s property and co-offender’s property – whether sentence manifestly excessive – whether Blackberry phone pictures were misleading – appeal dismissed
Judgment of
White JA at [1]
Harrison J at [5]
R A Hulme J at [48]
CRIME – appeals – appeal against conviction –aggravated break and enter dwelling-house and commit serious indictable offence – Crimes Act 1900 (NSW) s 112 – relationship of s 112 with burglary at common law – meaning of “break” – whether “constructive breaking” to knock at a door of a house with intent to rob its occupants and, upon the door being opened, to rush into the house
CRIME – appeals – appeal against conviction – miscarriage of justice – whether to allow withdrawal of guilty plea – where alleged that the agreed facts do not support the charge
CRIME – appeals – appeal against sentence – failure to take into account a relevant consideration –gambling disorder – substance use disorder
CRIME – appeals – appeal against sentence – manifest excess – whether guideline judgment in R v Henry should have been considered
Judgment of
Payne JA at [1]; Harrison J at [60]; R A Hulme J at [61]
CRIMINAL LAW – Appeals – appeal by applicant against aggregate sentence – trial judge’s misstatement of statutory threshold for large commercial quantity of methylamphetamine – trial judge overemphasised role of weight as factor in sentencing – appeal allowed – resentence applicant – lesser sentence warranted
CRIMINAL LAW – Parity principle – issue of equality before the law – comparison of seriousness of criminality of applicant against co-offenders – like cases be treated alike – different cases be treated differently according to circumstances of the case – no error as to application of parity principle
Judgment of
Hoeben CJ at CL at [1]
Bellew J at [2]
Campbell J at [3]
CRIME — public justice offences — do an act with intent to pervert course of justice — Crimes Act 1900 (NSW) s 319 — elements of offence — whether act or omission said to constitute the offence must have a tendency to pervert the course of justice
Judgment of
Simpson AJA at [1]; Johnson J at [100]; R A Hulme J at [101]
CRIMINAL LAW - sentencing - domestic violence offences - State and Federal offences - aggravating features - weight to be given to psychological report - whether sentence manifestly excessive - error of fact conceded by the Crown - error of law conceded by Crown - parole order revoked - whether applicant at liberty on parole - whether applicant subject to conditional liberty after revocation of parole -commission of offences while on conditional liberty not relevant to assessment of objective seriousness of offence - whether some other sentence is warranted in law - correct approach to resentencing after error found
Judgment of
Simpson AJA at [1]
Wilson J at [64]
Ierace J at [166]
CRIME – appeal against sentence– where discount for utilitarian value of guilty plea in sentence for federal offence not taken into account – where error conceded by Crown – need to resentence
SENTENCING – terrorist offence – conspiracy – preparation and planning of terrorist act or acts involving threat to human life – objective seriousness – significance of punishment, deterrence and protection of the community – mitigating factors – youth (14 years and 2 months at time of offending) and prospects of rehabilitation
Judgment of
Meagher JA at [1];
RA Hulme J at [71];
Button J at [72].
CRIME – appeal against conviction - whether wrong decision on a question of law – whether expert evidence should have been excluded – relevance of evidence – probative value of evidence - IMM v R The Queen (2016) 257 CLR 300; [2016] HCA 14 applied
CRIME – appeal against conviction - whether wrong decision on a question of law – whether admissions should have been excluded by trial judge – where point not raised below – where clear warnings given to accused prior to admissions
CRIME – appeal against conviction – whether unreasonable verdict – whether, on the evidence at trial, jury’s verdict was reasonably open
CRIME – appeal against sentence – aggravated dangerous driving occasioning death – aggravated dangerous driving occasioning grievous bodily harm – manifest excess- objective seriousness – special circumstances
Judgment of
Payne JA at [1]; Bellew J at [98]; Campbell J at [99]
SENTENCING – appeal against sentence – whether offences aggravated within pars (m), (n) or (o) of s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – sentencing judge did not hold offences so aggravated – alternatively, if offences were held to be aggravated within s 21A(2)(m), (n) or (o), error in exercise of discretion – no lesser sentence warranted
CRIME – appeals – Mental Health (Forensic Provisions) Act 1990 (NSW) – appeal against nominated limiting terms – drug supply offences and direct activities of criminal group offence – applicant suffered stroke after arrest – Mental Health Review Tribunal assessed applicant as unfit to be tried – no error in finding applicant an inappropriate medium for general deterrence – error in taking into account specific deterrence – no likelihood of applicant reoffending due to mental condition – appeal allowed – reapplication of totality principle – lower total effective limiting term nominated – referral to Mental Health Review Tribunal confirmed
Judgment of
Payne JA at [1];
Harrison J at [2];
R A Hulme J at [3]
CRIME – Bail – Release Application – Applicant and co-accused convicted at same hearing – Co-accused successfully appealed conviction – Whether Crown concession given in respect of applicant’s own conviction appeal special or exceptional circumstance justifying grant of bail – Release application and bail granted
Judgment of
White JA at [1];
Harrison J at [22];
R A Hulme J at [23]
CRIMINAL LAW – sentence appeal – one count of cultivating a prohibited plant greater than the applicable commercial quantity – whether factual findings open to the sentencing judge – whether finding of special circumstances should have been made – whether applicant’s deprived upbringing relevant – whether sentence was manifestly excessive – grounds of appeal not made out – leave to appeal granted but appeal dismissed.
Judgment of
Hoeben CJ at CL at [1];
Davies J at [62];
Fagan J at [63]
CRIMINAL LAW – appeals – appeal against sentence – applicant pleaded guilty to five aggravated sexual offences committed against his biological daughter – further sexual offences taken into account on a Form 1 – whether the sentencing judge erred in fixing the indicative sentence for one offence resulting in the sentencing discretion miscarrying – where the sentencing judge wrongly described one of the offences when identifying its indicative sentence in the Remarks on Sentence – where a reading of the Remarks as a whole indicated that the sentencing judge correctly understood the applicable legislative guideposts for sentencing the relevant offence – indicative sentence reflected the sentencing judge’s finding of objective seriousness – appeal dismissed
Judgment of
Macfarlan JA at [1]
R A Hulme J at [2]
Davies J at [3]
CRIMINAL LAW – appeals – appeal against sentence – applicant pleaded guilty to the offence of aggravated enter dwelling with intent to commit a serious indictable offence – circumstance of aggravation that applicant entered knowing a person was present in the dwelling - further offences taken into account on a Form 1 – whether the sentencing judge gave full weight to the applicant’s deprived background – where the applicant had failed to make the most of opportunities for rehabilitation – application of principles in Bugmy v the Queen – whether the sentencing judge double counted the aggravating factor of the presence of the victim in the dwelling at the time of the break and enter – where the presence of a person in the dwelling was an element of the offence - need to re-sentence – lesser sentence warranted in law
Judgment of
Macfarlan JA at [1]
R A Hulme J at [2]
Davies J at [3]
CRIMINAL LAW – appeal against conviction – accessorial liability – Crimes Act 1900 (NSW) s 346 – where appellant convicted of accessory before the fact to murder – where appellant not present at murder scene – where appellant tried based on encouragement and assistance – where appellant sent threatening text messages to deceased – where evidence that appellant intended to encourage principal offender to cause really serious bodily injury to deceased – where appellant messaged principal offender “If you see [deceased] jump on his head”, “jus chop index n look” – where appellant’s defence was that deceased’s death was the result of principal offender’s spontaneous acts – where no alternate case relying on either joint criminal enterprise or extended joint criminal enterprise relied upon by the Crown – where trial judge used terms “enterprise” and “design” in context of summarising defence counsel’s closing address – whether trial judge erred in directing jury it was not necessary to prove actual encouragement of the principal offender – whether recklessness suffices – whether assisting and encouraging is a continuous act that persists until the substantive offence is committed – whether trial judge conflated concepts from joint criminal enterprise to directions to the jury on proof of accessorial liability
WORDS AND PHRASES – “linked in purpose” – “render more likely”
CRIMINAL LAW – sentence appeal – specially aggravated break and enter and commit a serious indictable offence – applicant sentenced to imprisonment for 3 years and 9 months with a non-parole period of 2 years – applicant aged 12 years and 10 months – 78 year old woman severely beaten with bricks and a piece of wood – significant psychological and physical injuries – lack of contrition and remorse – whether proper allowance made for applicant’s youth – whether proper allowance made for immaturity and impulsiveness of youth – whether proper allowance made for applicant’s deprived and violent background – whether too much weight given to protection of community – whether proper allowance made for time in custody solely related to this offence – whether totality properly taken into account – whether sentence was manifestly excessive – one appeal ground made out – re-sentence.
Judgment of
Hoeben CJ at CL at [1];
Garling J at [91];
Hidden AJ at [130]