Recent decisions for Court of Criminal Appeal

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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.

Catchwords:

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.

Catchwords:

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

Catchwords:

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

Catchwords:

CRIMINAL LAW – 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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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.

Catchwords:

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

Catchwords:

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

Catchwords:

CRIMINAL LAW – application for leave to appeal against sentence – alleged failure to attribute sufficient weight to applicant’s disadvantaged background – alleged manifest excess

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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.

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

CRIME — appeals — appeal against sentence — application for leave to appeal — firearms offences — assault — cultivate prohibited plant — whether sentencing discretion miscarried — assessment of prospects of rehabilitation — assessment of prospects of reoffending — weight given to applicant’s psychological treatment in custody — whether sentence manifestly excessive

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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.

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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.

Catchwords:

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

Catchwords:

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

Catchwords:

CRIME – Public justice offences – Conceal serious indictable offence – Concealment of serious indictable offences of cultivating large commercial quantity of prohibited plant and cultivating commercial quantity of a prohibited plant.   CRIME – Appeals – Appeal against sentence – Denial of procedural fairness – Alternatives to full-time imprisonment.   CRIME – Appeals – Appeal against sentence – Alternatives to full-time imprisonment – Whether sentencing judge erred in failing to consider alternatives.   CRIME – Appeals – Appeal against sentence – Manifest excess – Whether sentence imposed manifestly excessive – Sentence of 8 months full-time imprisonment.   SENTENCING – Penalties – Intensive correction orders.

Catchwords:

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

Catchwords:

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

Catchwords:

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.

Catchwords:

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.

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

CRIMINAL LAW – appeal – leave to appeal against sentence – extension of time granted – no merit –appeal refused

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

CRIMINAL LAW – sentencing – appeal against sentence – unrepresented applicant – question of commencement date of sentence – assessment of prospects of rehabilitation – asserted manifest excess

Catchwords:

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

Catchwords:

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

Catchwords:

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”

Catchwords:

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”

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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”

Catchwords:

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

Catchwords:

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.

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

CRIMINAL LAW – appeal – leave to appeal against sentence – whether insufficient disparity – whether disparity evokes justifiable sense of grievance – whether sentence was manifestly excessive – leave to appeal granted – appeal allowed – applicant resentenced

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

BAIL – release application – special or exceptional circumstances – strength of appeal – bail refused

Catchwords:

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)

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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