Recent decisions for Court of Criminal Appeal

Catchwords:

CRIMINAL LAW – conviction appeal – elements of the offence – written directions to jury – question trail – no oral explanation of directions – miscarriage of justice – appeal allowed – new trial ordered

Catchwords:

CRIME — appeal against sentence — multiple counts of indecent assault — applicant pleaded guilty to seven counts of indecently assaulting child under ten — additional offences taken into account — representative counts — nature of indecent assault offences considered — inherent sexual character of offence discussed - assaults committed over an extended period — applicant the father of the victim — relationship of trust — gravity lies in harm to child - complaint of manifest excess — sentence within judge’s discretion — no useful range established by reference to previous cases — appeal dismissed

Catchwords:

CRIME – Appeals – Appeal against sentence – Manifest inadequacy – manslaughter – Indigenous respondent – whether sentencing judge erred in taking into account bail period as quasi-custody and backdating sentence – whether bail conditions amounted to quasi-custody – consideration of respondent’s background and mental health – whether non-parole period was manifestly inadequate

Catchwords:

CRIME — appeals — appeal against sentence — failure to take into account a relevant consideration — assistance provided by applicant to authorities CRIME — appeals — appeal against sentence — failure to take into account a relevant consideration — where applicant was diagnosed with Autism Spectrum Disorder — whether the applicant’s Autism Spectrum Disorder reduced his moral culpability or rendered custody more onerous

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict – trial – judge alone – murder – domestic violence – mental illness – partial defences – whether the accused had a “substantial impairment” – opinion evidence – expert opinion – whether the trial judge unreasonably rejected opinion evidence – Crimes Act 1900 (NSW), s 23A CRIMINAL PROCEDURE – trial – judge alone – appeal against conviction – new trial – miscarriage of justice – murder – domestic violence – whether a warning should have been given that no adverse inference can be drawn from the failure of an accused to give evidence – where the warning was not mandatory – where the onus lay on the accused to establish a partial defence – whether the warning can be implied from a right to silence direction –Criminal Procedure Act 1986 (NSW), s 133(3) – Criminal Appeal Act 1912 (NSW), s 6(1) – Crimes Act 1900 (NSW), s 23A

Catchwords:

CRIME – sentence appeal – murder – domestic violence –ex-partner fell from fifth floor balcony when fleeing fight – subsequent stabbing caused death – intention to kill – premeditation – applicant suffered Major Depressive Disorder with melancholic features at time of murder - guilty plea CRIME – sentence appeal – new evidence – expert opinion by forensic psychiatrist obtained after sentence – post-sentence opinion was said to clarify and supplement previous two reports by same expert – opinion contested judge’s finding that applicant’s severe depression merely inhibited her ability to restrain herself from acting on an already formed intention to kill rather than playing a part in initial formation of intention to kill – discretion to admit or reject new evidence on appeal – open to sentencing judge to reject expert opinion in face of clear CCTV footage to contrary – initial two reports sufficiently clear – no reason to admit new report – ground rejected CRIME – sentence appeal – new evidence – post-sentence expert opinion contesting judge’s finding that applicant’s difficult background did not reduce her moral culpability – applicant asserted a causal link between her background and offending – no causal link asserted by psychiatrist in initial two reports – reformulation of case – tenuous argument – ground rejected CRIME – sentence appeal – mistake about sentence in a comparable case – starting point was 30 years, not 30 years and 6 months – sentencing judge acknowledged individual sentencing outcomes are not binding – trivial error – no bearing on exercise of sentencing discretion – ground rejected CRIME – sentence appeal – reasonable consistency of sentence – manifest excess – higher starting point than case with comparable objective severity but less favourable subjective factors – no requirement for numerical equivalence – applicant’s arguments antithetical to instinctive synthesis – ground rejected – appeal dismissed

Catchwords:

CRIME – appeals – appeal against sentence – applicant pleaded guilty to possessing 1974 kilograms of tobacco knowing goods were imported with intent to defraud the revenue – one ground of appeal – whether his Honour failed to have regard to the requirements of s 66 of the Crimes (Sentencing Procedure) Act 1999 when imposing sentence of full-time imprisonment – where sentencing judge failed to engage with submission of applicant’s counsel that consideration should be given to ICO – ground of appeal made out – re-sentence – where sentence of imprisonment appropriate given applicant had significant role in organised criminal activity – whether sentence should be served by an ICO – where ICO not appropriate as applicant due to be released on recognizance in less than three months – no lesser sentence warranted

Catchwords:

MANSLAUGHTER – unlawful and dangerous act – applicant kicked and stomped on head of deceased – alcohol fuelled violence – poor criminal record – starting point for sentence prior to discount for plea of guilty near maximum penalty – offence found to be at “highest end of culpability” – whether characterisation of offence was open – whether sentence was manifestly excessive – disparity with co-offender – appeal allowed – applicant re-sentenced

Catchwords:

CRIME — appeal against sentence — appellant entered a late plea of guilty to a charge of conspiracy to import a commercial quantity of prohibited narcotic goods — earlier appeal against sentence to CCA upheld and appellant re-sentenced — referred to the Court of Criminal Appeal under Part 7 of the Crimes (Appeal and Review) Act - question of Xiao error — relevant sentencing decision that of the Court of Criminal Appeal — discount on sentence of 10% afforded — whether discount reflected savings to the community consequent upon a late plea — whether discount took into account subjective features

Catchwords:

CRIME – Appeals – Appeal against sentence – Thirteen counts of child sexual offences committed against three victims over a period of 19 years – Ten Form 1 offences taken into account – Where applicant sentenced to 30 years imprisonment with a non-parole period of 22 years and 6 months – Whether aggregate sentence manifestly excessive – Where psychologist diagnosed applicant with major depressive disorder and generalised anxiety disorder at the time of sentence – Where sentencing judge gave little or no weight to psychologist’s report – Whether applicant’s mental condition relevant to his experience of incarceration – Whether sentencing judge adequately considered the impact of protective custody on the applicant

Catchwords:

CRIME – money laundering – dealing with money suspected of being proceeds of crime – money seized by police on suspicion of being proceeds of the sale of illicit drugs – conspiracy to avoid seized money being forfeited to the Crown SENTENCING – appeal against sentence – co-offenders – disparity between sentences – whether applicant had a “justifiable sense of grievance” – where the same judge sentenced the co-offenders – where applicant knew the money was illegally obtained – where applicant used his skill and position as a solicitor in furtherance of criminal activity SENTENCING – aggravating factors – abuse of position – where applicant used his skill and position as a solicitor in furtherance of criminal activity – where applicant breached his professional responsibilities as a solicitor – whether sentencing judge entitled to attribute a high level of responsibility to the applicant SENTENCING – appeal against sentence – severity – sentence manifestly excessive – aggregate sentence – where applicant placed reliance on comparable cases – consideration of comparable cases

Catchwords:

CRIMINAL LAW – appeal against conviction – aggravated break and enter of a dwelling house and commit serious indictable offence – sexual intercourse without consent – pre-trial ruling – additional context evidence – reasons for lack of complainant – cross-examination of applicant – prosecutorial conduct – post-offence conduct – consciousness of guilt direction

Catchwords:

SENTENCING – terrorist offence – utilitarian value of plea for federal offence – Xiao error – applicant re-sentenced

Catchwords:

CRIME – appeal and review – stated case – question of law – whether question is a “question of law arising at or in connection with the trial” pursuant to s 108(2) – where question is closely tied to the mental state of the accused – drug-induced psychosis – where the accused’s subjective beliefs were delusional – where the accused believed the deceased was a demon who wanted to kill him – Crimes (Appeal and Review) Act 2001 (NSW), s 108(2) CRIME – appeal and review – stated case – question of law – self-defence – drug-induced psychosis – whether the accused’s delusional subjective beliefs could form the basis for self-defence under s 418 – whether question arose “at or in connection with the trial” within the meaning of s 108(2) – where it was conceded at trial that self-defence under s 418 was not available to the accused – Crimes (Appeal and Review) Act 2001 (NSW), s 108(2) – Crimes Act 1900 (NSW), s 418 CRIME – appeal and review – stated case – question of law – excessive self-defence – drug-induced psychosis – whether the accused’s delusional subjective beliefs could form the basis of excessive self-defence under s 421 – where it was conceded at trial that self-defence under s 418 was not available to the accused – whether it was appropriate to leave to the jury excessive self-defence under s 421 alone – whether excessive self-defence under s 421 is a separate defence – Crimes Act 1900 (NSW), ss 418, 421

Catchwords:

CRIME — Appeals — Appeal against conviction — applicant represented by competent trial counsel before withdrawing his instructions — it was open to the trial judge to refuse a further adjournment in circumstances of delays in obtaining new counsel, the length of the trial to date and the applicant’s ability to conduct the trial — it is a matter for the jury whether to accept or reject evidence of witnesses —no appeal lies against a verdict of not guilty — the obligation on the Crown to call or make available for cross-examination all relevant witnesses cannot apply to a witness who cannot be located — evidence of unsuccessful attempts to locate witnesses — applicant alleged unreasonable verdicts where inconsistencies in a witness’ evidence — no fundamental inconsistency that ought to have caused the jury reasonable doubt as to the applicant’s involvement — applicant is bound by forensic choice not to call witnesses — documents to be tendered agreed before trial counsel was dismissed — trial judge correct in not admitting evidence of a co-offender’s previous conviction where circumstances of the conviction were unknown — none of the verdicts of guilty were unsafe, unreasonable or inconsistent — it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt — transcript shows the extent to which the trial judge sought to ensure the applicant obtained a fair trial — time taken by the jury was not unreasonably short or an indication that they did other than discharge their functions appropriately CRIME — Bail — Appeal bail — second application for release made by applicant for the purposes of preparing his appeal — appeal is to be dismissed — basis for bail being granted has fallen away — release application dismissed

Catchwords:

CRIMINAL LAW – appeal against conviction – two counts of murder – alleged killing of methylamphetamine “cook” and his girlfriend for stealing drugs – Crown case implicating appellants depended on evidence of two Crown witnesses – whether verdicts unreasonable – assessment of credibility and reliability of Crown witnesses – discrepancies within and between evidence of two Crown witnesses – appeal upheld – convictions quashed

Catchwords:

BAIL – application for bail pending appeal – applicant convicted of murder – appeal against conviction pending in Court of Criminal Appeal – necessity to demonstrate “special or exceptional circumstances” – interrelationship between proposed grounds of appeal and delay in hearing appeal as well as length of sentence still to be served – nature of consideration of grounds of appeal in hearing bail application pending appeal against conviction – length of submissions – some grounds reasonably arguable but given length of sentence and period of time until appeal heard special or exceptional circumstances not demonstrated – bail concerns appreciable – bail refused.

Catchwords:

CRIME — Appeals — Appeal against conviction — offences under s 193C, Crimes Act – dealing with property suspected of being proceeds of crime – whether necessary to particularise serious offence(s) from which funds derived – consideration of analogous provision in s 400.9, Criminal Code (Cth) – held, not necessary to particularise serious offence(s) – whether trial judge failed to provide adequate reasons – whether verdicts unreasonable – whether trial judge erred in finding that defence in s 193C(4) was not made out – appeal dismissed

Catchwords:

CRIMINAL LAW – appeal against sentence – s 66EA(1) maintaining an unlawful sexual relationship with a child – unlawful sexual acts committed prior to the repeal of the predecessor offence – Ground 1 whether maximum penalty for the offence was life imprisonment or 25 years imprisonment – whether intent of legislation was to operate retrospectively – whether s 19(1) of the Crimes (Sentencing Procedure) Act (CSP Act) applies – whether s 66EA was enacted as a new offence – consideration of differences between predecessor offence and current offence – consideration of s 25AA(4) CSP Act – whether the intent of the Parliament is clear from text of the offence – consideration of Second Reading Speech – Ground 1 dismissed by majority CRIMINAL LAW – whether error in imposing sentence for s 166 related offence first – whether error in accumulation – Ground 2 dismissed by the Court CRIMINAL LAW – whether sentence manifestly excessive – Ground 3 dismissed by majority

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict CRIME – directions to jury – direction regarding use of phone call evidence – inference of consciousness of guilt – no further direction sought – chance of prejudice from not giving further direction remote EVIDENCE – evidence of consciousness of guilt – alternative inference – burden of proof – intermediate facts – inference constituting link in chain on one offence and an essential element of another offence SENTENCING – appeal against sentence – alleged failure by sentencing judge to make a finding of special circumstances – sentence partly accumulated on prior term – variation of statutory ratio – no finding of special circumstances – effect on earlier sentence not overlooked SENTENCING – appeal against sentence – criminal record taken into account in assessing objective seriousness – error conceded – re-exercise of sentencing discretion – aggregate sentence unaffected

Catchwords:

CRIME — appeals — appeal against sentence — application for leave to appeal — extension of time in which to appeal — manifest excess — whether extension of time required in the interests of justice — extension of time refused — appeal dismissed CRIME — appeals — appeal against sentence — application for leave to appeal — extension of time in which to appeal — fresh evidence — where applicant developed cirrhosis after sentencing — where applicant may have been infected with hepatitis B at time of sentencing — whether evidence of medical condition admissible — whether evidence of effect of COVID-19 pandemic admissible — extension of time and leave granted in respect of grounds of appeal based on evidence of medical condition and on evidence of effect of COVID-19 pandemic — appeal dismissed CRIME — violent offences — robbery armed with offensive weapon with wounding

Catchwords:

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

Catchwords:

CRIME – complicity – accessory after the fact – multiplicity of acts designed to conceal the role played by the principal offenders – silence – where the appellant failed to go to the police at an early stage and provide assistance – whether the sentencing judge erred in finding that the appellant’s failure to go to the police at an early stage and provide assistance constituted an offending act

Catchwords:

CRIME – Appeals – appeal against conviction – where applicant charged with two counts of sexual intercourse without consent and one count of indecent assault – where jury found the applicant not guilty of one count of sexual assault, but guilty of another count of sexual assault and indecent assault – where the events founding the three complaints were intertwined both temporally and contextually CRIME – Appeals – appeal against conviction – inconsistent verdicts – where the guilty verdicts on two of the counts were inconsistent with the applicant’s acquittal on one count of sexual intercourse without consent – where the acquittal on the one count of sexual intercourse without consent was explicable only by doubts the jury must have held as to the complainant’s credibility – where the events founding the three complaints were intertwined both temporally and contextually CRIME – Appeals – appeal against conviction – unreasonable verdicts – where verdicts were unreasonable and could not be supported having regard to the whole of the evidence – where the complainant’s assessed state of intoxication and the implausibility in aspects of her account should have caused a doubt in the mind of the jury as to whether or not the applicant was guilty – where certain DNA evidence appeared to have been critical to the jury’s returning of a guilty verdict against the applicant – where such DNA evidence was more consistent with a secondary transfer as a result of the complainant having picked up the applicant’s DNA in relevantly innocuous circumstances

Catchwords:

CRIME – appeals – appeal against conviction – discharge of firearm with intent to cause grievous bodily harm – reckless wounding – wrong decision on a question of law – the rule against double punishment – conviction on two counts – pursuant to plea of guilty – assertion that the criminality in respect of one count was totally subsumed by the other – whether the applicant was punished twice for the commission of elements common to both offences for which he was convicted – whether the fact of conviction constitutes an act of punishment CRIME – appeals – appeal against sentence – manifest excess – where indicative sentences are not themselves amenable to appeal CRIME – appeals – appeal against sentence – misapplication of principle – principle of totality – applicant sentenced on two counts – assertion that the criminality in respect of one count was totally subsumed by the other – whether the principle of totality required the sentences for both offences to be wholly concurrent – nature of the relationship between indicative sentences and aggregate sentence SENTENCING – appeal against sentence – aggregate sentence – relevant factors on sentence – multiple offences – accumulation, concurrency and totality – Pearce – whether the principle of totality required the sentences for both offences to be wholly concurrent SENTENCING – appeal against sentence – severity – sentence manifestly excessive

Catchwords:

CRIME – appeals – appeal against sentence – applicant pleaded guilty to five offences – offences of carrying out a sexual act without consent and intimidation intending fear of harm – offending involved applicant approaching victims in his car and masturbating himself – where applicant had alcohol and substance use issues, intellectual disability, and anxiety and depressive disorders – aggregate sentence imposed - whether sentencing judge erred in specifying indicative sentence which was the maximum penalty for offence in Count 5 – where objective seriousness of offence found to be in midrange - where although sentencing judge accorded 25% discount for early plea he did not reduce indicative sentence by that discount – whether offence under s 66DD(a) of the Crimes Act was aggravated by victim’s vulnerability from her age – where age was an element of the offence - where errors conceded by Crown – applicant resentenced CRIME – appeals – appeals against sentence – whether applicant could rely on further report of psychologist for resentence purposes - report based on assessment made after applicant was sentenced – report not prepared to show applicant’s progress following sentence - no exceptional circumstances – no miscarriage of justice demonstrated if report rejected

Catchwords:

CRIME – Appeal – domestic violence and sex offences – whether trial judge erred in admitting DNA evidence – whether trial judge erred in not discharging juror or jury – fresh evidence – reports from experts said to undermine complainant’s credibility – whether “fresh evidence” – whether evidence such as to give rise to doubt about convictions – where applicant received diagnosis of Autistic Spectrum Disorder after trial – report from psychologist as to implications of such a diagnosis – whether miscarriage of justice established – allegations of police misconduct – whether verdicts unreasonable

Catchwords:

CRIME – sentence appeal – alleged failure to have regard to favourable evidence about three statutory mitigating factors – concession by defence counsel at sentence that each mitigating factor was not established – alleged error contrary to case at first instance – ground dismissed CRIME – sentence appeal – manifest excess – aggregate sentence – guilty plea – incest – assault occasioning actual bodily harm – incite aggravated act of indecency – further offences taken into account on Forms 1 – father-daughter relationship between offender and victim – uncharged acts – victim at lowest of age range of offence – breach of trust – victim not a willing participant in incest – De Simoni principle – offences part of a course of conduct over a significant period – objective severity above mid-range – starting points of indicative sentences near the maximum penalty – differential unable to be explained by Form 1 offences – aggregate sentence manifestly excessive - ground upheld – applicant resentenced

Catchwords:

CRIME – sentence appeal – mental illness – medical opinion that Major Depressive Disorder combined with substance use contributed directly to offences – alcohol – benzodiazepines – moral culpability reduced “somewhat” – significance of general deterrence reduced “to some extent” but still important – De La Rosa principles not absolute – no suggestion offender acted without knowledge of his actions and their gravity – sentencing judge’s approach appropriate – ground dismissed CRIME – sentence appeal – manifest excess – aggregate sentence – guilty pleas – specially aggravated enter dwelling with intent to commit serious indictable offence – intimidation – detain person for advantage – use unauthorised firearm – substantial notional concurrency – considerable psychological trauma to victims – vulnerable victims – ground dismissed – appeal dismissed

Catchwords:

CRIMINAL LAW – appeal against conviction – fraud by loans manager of bank – directions to jury as to elements of offence – Crown conceded that trial judge had misdirected the jury with regard to mental element of dishonesty – knowledge, as opposed to recklessness, necessary on the part of an accused person as to conduct being dishonest according to the standards of ordinary people – miscarriage of justice established – whether “the proviso” can be applied – whether “no substantial miscarriage of justice has actually occurred” – by majority, appeal dismissed by way of application of the proviso

Catchwords:

CRIME — appeals — appeal against sentence — application for leave to appeal — extension of time in which to appeal — manifest excess — reliance on cases said to be comparable — sentences not manifestly excessive — extension of time and leave granted — appeal dismissed CRIME — appeals — appeal against sentence — application for leave to appeal — extension of time in which to appeal — misapplication of principle — whether sentencing judge erred in rejecting expert opinions of psychologist — whether sentencing judge failed to find special circumstances or give practical effect to such a finding — whether sentencing judge erred in placing too much weight on general deterrence — whether sentencing judge failed to request sentencing assessment report — whether excessive accumulation of sentences — no House v The King errors — extension of time and leave granted — appeal dismissed CRIME — apprehended violence order — contravene apprehended violence order CRIME — property offences — break and enter with intent to commit serious indictable offence — circumstances of aggravation CRIME — violent offences — common assault — choking, suffocation or strangulation — cause grievous bodily harm with intent WORDS AND PHRASES — “convicted inmate” — Crimes (Sentencing Procedure) Act 1999 (NSW), s 56

Catchwords:

CRIME — appeals — appeal against sentence — denial of procedural fairness — whether sentencing discretion miscarried due to failure of the applicant’s legal representatives to bring to the sentencing judge’s attention the assistance provided by the applicant to authorities — whether sentencing discount ought to have been applied

Catchwords:

CRIME – appeal against sentence – applicant found guilty by a jury of causing grievous bodily harm with intent – whether sentencing judge failed to consider s 22A of the Crimes (Sentencing Procedure) Act 1999 – arguments not advanced in court below – whether sentence imposed was manifestly excessive

Catchwords:

CRIMINAL LAW – appeal against conviction – appellant charged with two federal drug offences and one state drug offence – indictment signed by person authorised by Commonwealth Director of Public Prosecutions but not authorised by NSW Director of Public Prosecutions – lack of authority in relation to state offence raised towards conclusion of trial – judge directed jury not to return verdict on state count – jury found appellant guilty on both federal counts – whether indictment and convictions a nullity – whether amendments introduced following R v Halmi (2005) 62 NSWLR 263; [2005] NSWCCA 2 and R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281 saved indictment – whether indictment severable – significance of power to amend a defective indictment – significance of District Court’s exercise of federal jurisdiction – whether jury’s verdict unreasonable – whether trial judge erred in not leaving defence that appellant did not know drugs were imported to jury – appeal dismissed

Catchwords:

CRIMINAL LAW – murder trial – where Crown relied upon joint criminal enterprise – whether directions about mental element for extended joint criminal enterprise were inadequate – whether failure to leave manslaughter on a certain basis led to miscarriage of justice – whether directions about approach by jury to circumstantial case were erroneous – conviction appeal allowed

Catchwords:

CRIME – appeals – application for leave to appeal against conviction – whether alleged incompetence of defence trial counsel resulted in the applicant not receiving a fair trial – whether defence trial counsel erred in not raising the possibility of concoction with the complainants in cross-examination – defence trial counsel’s conduct explicable as a rational forensic decision – applicant not denied a fair trial – no miscarriage of justice CRIME – appeals – application for leave to appeal against conviction – whether the Crown’s closing address denied the applicant a fair trial – errors made by the Crown corrected by the trial judge in his summing up – no application by defence trial counsel for discharge of jury or for any further direction to be given – applicant not denied a fair trial – no miscarriage of justice CRIME – appeals – application for leave to appeal against conviction – whether verdicts inconsistent – verdicts able to be reconciled on a logical and reasonable basis – acquittal not attributable only or principally to doubt about the complainant’s credibility – verdicts not inconsistent

Catchwords:

EVIDENCE – tendency evidence – criminal proceedings – applicant charged with historical sexual offences against six complainants – applicant an officer in NSW juvenile justice system and complainants young female inmates – whether uncharged sexual acts admissible as tendency evidence – ss 97, 101 Evidence Act – correctness standard of review – whether significant probative value substantially outweighed prejudicial effect – standard of proof to be applied to uncharged acts in multi-complainant case – sufficient similarities for cross-admissibility of tendency evidence in relation to all counts EVIDENCE – exclusion of evidence – advance ruling made excluding evidence of psychologist witness under s 192A Evidence Act – evidence related to different inmates and different officer to those in this matter – evidence not relevant under s 55 Evidence Act – evidence properly excluded SENTENCING – appeal against sentence – severity – whether aggregate sentence of imprisonment excessive – need for House v The King error – whether sentencing judge sentenced in accordance with sentencing practices at time and considered delay – overall no indication that sentence is manifestly excessive

Catchwords:

CRIME – appeal against conviction – Applicant found guilty by jury of administering an intoxicating substance with intent to commit an indictable offence (aggravated indecent assault) under s. 38(a) Crimes Act 1900 (one count), aggravated indecent assault under s. 61M(1) Crimes Act 1900 (19 counts) and committing an aggravated act of indecency under s. 61O(1A) Crimes Act 1900 (two counts) – ground of appeal contends that guilty verdicts on 10 of 22 counts were unreasonable or cannot be supported on the evidence – Applicant a sleep technician charged with committing offences against five separate female victims during course of overnight sleep studies at medical facility – consideration of totality of evidence – sleep studies recorded on CCTV but not all acts of Applicant clearly visible in recordings – significant role of tendency directions in determination of verdicts – held that verdicts of guilty on each of the 10 challenged counts was open to the jury – conviction appeal dismissed CRIME – Crown sentence appeal – Applicant sentenced to aggregate term of imprisonment for six years with non-parole period of three years and nine months – five female victims aged between 16 and 29 years – offences committed over six-week period in 2018 – Applicant qualified as medical practitioner working as sleep technician – Applicant entered sleep study room and committed offences against victims whilst purporting to touch them for purposes associated with the sleep study – whether error in assessment of objective seriousness concerning six of 22 offences (ground 1) – whether error in failing to provide reasons as to how Applicant’s prior good character taken into account (ground 2) – whether aggregate sentence manifestly inadequate (ground 3) – ground 1 upheld in part (by majority) – ground 2 rejected – ground 3 rejected (by majority) – Crown sentence appeal dismissed (by majority)

Catchwords:

CRIME – appeal against sentence – break, enter and steal offences – manifest excess – no specific error alleged – where offending occurred almost immediately after release to parole – subjective circumstances – sufficiency of backdating – within sentencing discretion

Catchwords:

CRIMINAL LAW – summing-up – balance – fairness – no allegation that trial Judge became advocate for prosecution – where trial Judge failed to refer to submissions made on behalf of accused person at trial – where no complaint made at trial – requirements of balance and fairness – extent of the need for comment on evidence and arguments – where trial short and issues clear and uncomplicated – summing-up to be considered as a whole

Catchwords:

CRIMINAL LAW – Sentence – Appeal – Where the three applicants were involved with a number of other persons in offending involving evading excise duty payable on tobacco products – Complicated and difficult sentence proceedings involving complex facts, numerous offenders and a multiplicity of different charges – Where two of the applicants advanced specific submissions as to their respective prospects of rehabilitation – Where third applicant advanced specific submissions as to the disposition of the matters by way of an Intensive Correction Order – Where none of those submissions were considered by the sentencing judge – Necessity to engage with specific submissions made and provide adequate reasons – Error established – Applicants resentenced – Objective seriousness of the offending – Substantial amounts of duty involved – Need for general deterrence – Effects of lengthy delay in the finalisation of proceedings – 3 year delay between date of arrest and sentence hearing – 9 month delay between sentence hearing and passing of sentence – Latter period of delay brought about by the effects of the Covid-19 pandemic on listing arrangements in the District Court – Prospects of rehabilitation – Parity considerations

Catchwords:

CRIME – Appeals – appeal against sentence – two co-offenders sentenced contemporaneously for similar but not identical offences – aggregate sentence imposed – alleged grievance at the disparity in the sentences – whether there was marked or clearly unjustifiable disparity – no justifiable sense of grievance from comparison of indicative sentences – differential application of the totality principle has no proper basis – applicant is to be resentenced so his aggregate sentence reflect that of his co-accused – appeal allowed

Catchwords:

CRIMINAL LAW — appeal against conviction — seven offences of dishonestly obtaining a financial advantage by deception by lodging tax returns which did not disclose all assessable income — whether monies paid to appellant or to third parties at his direction were income of appellant or loans — whether trial miscarried because evidence wrongfully admitted that amended notices of assessment were issued to appellant — whether trial judge erred in directions given to jury concerning elements of the offences and on tax law — whether a Shepherd direction required as to appellant’s control of Vanuatu company making payments to him or to third parties at his direction — whether verdicts were unreasonable and not supported by the evidence — whether proviso applied notwithstanding evidence wrongfully admitted — Criminal Appeal Act 1912 (NSW), s 6(1) EVIDENCE — fresh evidence — distinction between “new evidence” and “fresh evidence” — whether significant possibility that jury acting reasonably would have acquitted appellant based on new evidence CRIME — appeals — appeal against refusal to discharge jury — where trial judge ruled that Crown case confined to payments made by Vanuatu insurance company — where Crown relied on earlier payments made at direction of appellant from another Vanuatu company to rebut defence submission — whether fundamental change in Crown case — whether miscarriage of justice

Catchwords:

CRIMINAL LAW – sentencing – armed robbery – guideline judgment – twenty year old offender with no convictions – history of trauma and neglect – whether sentencing Judge erred in application of “Bugmy principles” – where the applicant was a victim of violence as a teenager – relevance to assessment of moral culpability – impacts of childhood sexual abuse – resort to drugs – error as to commencement date of sentence – sentence varied – appeal otherwise dismissed by majority

Catchwords:

CRIMINAL LAW – appeal against conviction – unreasonable verdict – inconsistent verdicts – whether guilty verdict on count 2 irreconcilable with not guilty verdicts on counts 1, 4, 5 and 6 – applicant charged with three counts of indecent assault and two counts of sexual intercourse without consent – all events occurred on same evening and upon the same complainant – complainant made almost immediate complaints of counts 1, 4, 5 and 6 – complainant’s initial complaints did not refer to count 2 – basis for reconciling conviction on count 2 and not guilty verdicts on indecent assault counts – whether different verdicts on counts of sexual intercourse without consent reconcilable – complainant gave unequivocal testimonial evidence of both counts of sexual intercourse without consent – no apparent distinction between quality of complainant’s evidence on counts 2 and 4 – no other witnesses – no other evidence capable of reconciling not guilty verdict on count 4 with guilty verdict on count 2 – appeal allowed and conviction quashed

Catchwords:

CRIME — appeals — appeal against sentence — application for leave to appeal — misapplication of principle — De Simoni principle — where documentation provided by the parties assumed applicant had pleaded guilty to a more serious offence — parties’ error identified during the hearing — whether sentencing judge nonetheless fell into error CRIME — appeals — appeal against sentence — application for leave to appeal — manifest excess — whether sentence imposed was so far outside the range of sentences available that there must have been error CRIME — violent offences — reckless wounding — sentencing

Catchwords:

CRIME – Appeals – appeal against sentence – where applicant charged with dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm – whether there was error in the assessment of objective seriousness

Catchwords:

CRIME – Appeals – appeal against sentence –Applicant convicted of state drug and firearm possession offences – Applicant convicted of Commonwealth offence of attempt to possess a commercial quantity of border control drug (cocaine) – question of whether sentence imposed for Commonwealth offence was manifestly excessive – determination

Catchwords:

CRIME – appeal against sentence – Commonwealth offences – possess commercial quantity of a border controlled drug – attempt to possess a commercial quantity of a border controlled drug – aid and abet an attempt to traffic in a commercial quantity of a border controlled drug – sentences imposed in 2014 and 2016 – “Xiao” error – error conceded – requirement to re-exercise the sentencing discretion – application of the parity principle

Catchwords:

CRIME — appeals — appeal against conviction — where applicant had entered a plea of guilty to one “rolled up” count of obtaining a financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) — where applicant sought leave to appeal on the basis that the conviction was wrong in law and the element of deception was not made out — where applicant had by her guilty plea admitted all of the elements of the offence — no miscarriage of justice — leave to appeal refused CRIME — fraud — dishonestly obtain financial advantage by deception — causation — meaning of “obtain” — meaning of “keep a financial advantage that one has” — Crimes Act 1900 (NSW), s 192D(1)(c) CRIME — fraud — meaning of “deception” — where relevant deception was the “fraudulent transfer of money” — Crimes Act 1900 (NSW), s 192E

Catchwords:

CRIME – Appeals – appeal against sentence – manifest excess – general and specific deterrence – sentence imposed was available to sentencing Judge – appeal dismissed

Catchwords:

CRIME – Appeals – Appeal against sentence – Manifest excess – Drug offences – Supply prohibited drug – One count of large commercial quantity of methylamphetamine and two counts of commercial quantities of heroin and methylamphetamine – Firearms offences – Two counts of possess shortened firearm – Aggregate sentence of fourteen years, eight years six months non-parole – Use of discounts to indicative sentences to determine aggregate sentence but for discounts – Use of comparable cases indicating substantially shorter sentences in like cases and in cases involving considerably greater quantities of methylamphetamine – Manifest excess established CRIME – Appeals – Appeal against sentence – Re-sentence – Special circumstances and reduced moral culpability – More substantial degree of concurrency – Aggregate sentence of ten years, six years non-parole, imposed

Catchwords:

CRIME – appeals – application for leave to appeal against convictions – unreasonable verdict ground – offences of participate as client in act of child prostitution – whether Crown proved that applicant knew complainants were under 18 years at time of alleged offences – whether one complainant retracted evidence in cross-examination – whether other complainant’s evidence of post-offence conversation capable of proving applicant’s knowledge at time of offence – relevance of retrospectant evidence considered

Catchwords:

CRIME – Appeal by Prosecutor against refusal to make costs order – denial of procedural fairness – role of costs order in sentencing

Catchwords:

CRIME – appeals – appeal against sentence – singular ground of manifest excess – multiple offences – structure of the sentencing – aggregate sentence – accumulation of sentence – principles re manifest excess ground – whether sentences produced a non-parole period which was manifestly excessive – sufficiency of adjustment to statutory ratio or special circumstances – whether the Court had removed the effect of a finding of special circumstances as a result of accumulation – leave to appeal granted – appeal dismissed

Catchwords:

CRIME – appeal against sentence – taking further offences into account – Crimes (Sentencing Procedure) Act 1999 (NSW), s 33 – error in Form 1 procedure – failure to ask offender personally about Form 1 offences – incorrect offence listed on Form 1 – English not offender’s first language – ground upheld – remitted to District Court for resentencing CRIME – appeal against sentence – aggregate sentence – supplying a prohibited drug – possess a prohibited weapon – guilty plea – manifest excess – indicative sentence – sentencing statistics – quantity of drugs at lower end of indictable range – ground upheld

Catchwords:

CRIME – Appeals – Appeal against sentence – Where applicant sentenced in New South Wales for supply prohibited drug and recklessly deal with proceeds of crime – Where applicant was serving lengthy sentence in Western Australia for supply and attempted supply of prohibited drug – Where Sentencing Act 1995 (WA) mandated an unusually high ratio of the non-parole period to the total sentence – Where the sentencing judge partially accumulated the non-parole period resulting in an increase by 6 months – Where the applicant had made good rehabilitative progress in prison – Whether the sentencing judge erred in partially accumulating the non-parole period in circumstances in which the statutory ratio had already been exceeded and the applicant had made good rehabilitative progress – Principle of totality – Application of Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70

Catchwords:

CRIMINAL LAW – detention application following grant of bail by single judge – terrorist offence – legislative requirement for exceptional circumstances – fulfilled by prospect that length of remand may exceed sentence if respondent convicted of offence charged CRIMINAL LAW – detention application – relevance of strength of Crown case – difficulties of assessment before whole brief served CRIMINAL LAW – detention application – assessment of risk of committing serious offence if released – relevance of duration and extent of police surveillance of respondent prior to his arrest and charge – application refused

Catchwords:

CRIME — appeals — appeal against conviction — miscarriage of justice — where video recordings taken at 12:45am and 12:46am were in evidence — where applicant submitted that the recordings could not have proven lack of consent to sexual intercourse unless they were nearly contemporaneous with the offending — where applicant submitted that the offending occurred at 11:45pm and there was no opportunity for the offending to have occurred at around 12:45am — where applicant submitted that his evidence given at trial as to the gap in time between the recordings and sexual intercourse was wrong — no miscarriage of justice — appeal dismissed

Catchwords:

CRIME — Appeals — Application for extension of time for leave to appeal against sentence not opposed by Crown —Sentencing judge failed to take into account utilitarian value of the plea of guilty — Correctness of Diaz v R [2019] NSWCCA 216 not in issue as Crown conceded (based on Diaz v R) that re-sentence in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 was required even where the only error is a “Xiao error” and there is no challenge to the percentage discounts for the pleas of guilty — Not satisfied that any lesser overall sentence or non-parole period is warranted — Appeal dismissed CRIMINAL PROCEDURE — Sentencing —Sentencing judge questioned the Crown about the appropriateness of a particular sentence — Consideration of the ambit of the prohibition in Barbaro v The Queen — no breach of prohibition established

Catchwords:

CRIME — appeals — appeal against conviction — miscarriage of justice — whether trial judge failed to put defence case fairly before the jury CRIME — appeals — appeal against conviction — miscarriage of justice — whether trial judge failed to give the jury a full Liberato direction

Catchwords:

CRIME — appeals — appeal against sentence — application for leave to appeal — whether irrelevant consideration taken into account — whether sentence was erroneously determined by reference to co-offender’s sentence CRIME — drug offences — supply prohibited drug — commercial quantity

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 – Appeals – Appeal against sentence – Denial of procedural fairness – Confidential information detailing applicant’s assistance to the authorities provided to the Court by the Crown but not to the applicant’s legal representatives – Application of HT v The Queen – Appeal allowed

Catchwords:

CRIME — appeals — appeal against sentence — application for leave to appeal — whether failure to reflect special circumstances having regard to overall time to be spend in custody — whether manifest excess — application of comparable cases and sentencing statistics — no error established CRIME — appeals — appeal against sentence — application for leave to add ground of appeal raising error by sentencing for an offence to which the applicant did not plead guilty— where relevant provision merely misidentified on one occasion and no other error — leave to add ground of appeal refused

Catchwords:

CRIME - appeal - conviction - unreasonable verdict –inconsistent verdicts – multiple counts of sexual offences – single complainant – consent – knowledge – acquittals able to be explained without recourse to complainant’s credibility – ground rejected CRIME – appeal – conviction – jury note – apparent reversal of burden of proof in jury question – no specific correction by trial judge – no request for further direction in response to jury note – leave granted under r 4.15 – accused deprived of real chance of acquittal – miscarriage of justice – retrial ordered

Catchwords:

CRIME – appeal against sentence – multiple sexual offences committed while victim detained for a lengthy period – Crimes Act 1900 (NSW), ss 86(2)(b), 61J(1), 61I – domestic violence – guilty plea – totality – critical feature is need for overall sentence to reflect totality of criminality – crushing sentence – severity of sentence not linear – no error in application of totality principle – express reference to specific errors which have been avoided by sentencing judge not required – ground rejected CRIME – appeal against sentence – manifest excess – aggregate sentence – partial accumulation – partial concurrency – offences above mid-range of objective seriousness – seven Form 1 offences – indicative non-parole periods less than standard non-parole periods – modest individual indicative sentences – greater need for accumulation – limited utility of comparable cases – comparable cases referred to easily distinguished – ground rejected – appeal dismissed

Catchwords:

CRIME – appeals – appeal against conviction – miscarriage of justice – evidence of vulnerable persons – warnings – where complainant gave evidence in the form of a recorded interview – whether trial judge failed to direct and warn the jury as to the effect of the replaying of the evidence of the complainant – where warning given immediately prior to the jury being provided with a transcript of the recorded interview – Criminal Procedure Act 1958 (NSW), s 306X CRIME – appeals – appeal against conviction – miscarriage of justice – majority verdict – directions to jury – perseverance direction – whether trial judge erred in directing the jury as to the availability of a majority verdict – whether a reasonable time had elapsed before the giving of the direction – whether trial judge had reached the requisite degree of satisfaction that the jury was unable to reach a unanimous verdict before the giving of the direction – Jury Act 1977 (NSW), s 55F

Catchwords:

CRIMINAL LAW – appeal – appeal against sentence – three co-offenders sentenced contemporaneously – criminality in each of the offences was identical – different aggregate sentences imposed – alleged grievance at the disparity in the sentences – application of the principle of parity and equal justice – applicant re-sentenced – appeal allowed

Catchwords:

SENTENCING – solicitation and possession of child pornography – applicant used social media to solicit 12 year old girl to provide photographs using threats of exposure – two aggregate sentences imposed – sentencing judge accepted applicant affected by mental illness but did not accept causally connected to offending – whether erred in failing to find causal connection – whether sentencing judge misapplied principles concerning mentally ill offenders – no error established – whether sentence manifestly excessive – leave to appeal granted but appeal dismissed.

Catchwords:

CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Driving offences – Drug supply offence – Domestic violence offence – Where applicant was on parole at the time of the entirety of his offending – Where the applicant was also on bail at the time of the domestic violence offending – Where the sentencing judge took into account the applicant’s conditional liberty when assessing the objective seriousness of his offending – Error conceded by the Crown – Resentence – Objective seriousness of the offending – Aggravating factors – Limited subjective case – Absence of insight into the offending – Guarded prospects of rehabilitation – Limited remorse – No lesser sentence warranted and should have been passed – Leave to appeal granted – Appeal dismissed

Catchwords:

CRIME – Appeals – appeal against sentence –alleged incompetence of counsel resulting in a miscarriage of justice – tender of ERISP which adversely affected the applicant’s case – whether sentencing judge erred in assessing the objective seriousness of the offences – whether applicant was punished for an offence of which he had not been convicted – whether sentence is manifestly excessive – leave to appeal is granted – appeal dismissed

Catchwords:

CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Where applicant pleaded guilty to an offence of attempting to possess a commercial quantity of an unlawfully imported border controlled drug – Parity principle – Whether the applicant had a justifiable sense of grievance in light of the sentences imposed upon co-offenders – Where the fact that all co-offenders were sentenced by the same judge presents a hurdle to an applicant for leave to appeal based on a complaint of unjustified disparity – Where there were distinguishing features between the respective subjective cases – No justifiable sense of grievance made out – Leave to appeal granted – Appeal dismissed PRACTICE AND PROCEDURE – Observations as to the practice of an offender tendering a statement to a sentencing judge in the absence of giving sworn evidence – Practice to be discouraged – Material of that nature deserving of little or no weight

Catchwords:

CRIME – appeals – appeal against conviction – trial by jury – directions to Jury – where the jury was provided with a written document in the form of question trails – where the written document was not spoken to by the trial Judge – necessity for oral directions – written directions do not substitute the need and requirement of oral directions

Catchwords:

CRIME – Appeals – appeal against conviction –whether verdicts unreasonable – trial for offences of unauthorised possession of firearms – where sole issue at trial was whether applicant was in possession of firearms – circumstantial Crown case – whether Crown excluded reasonable possibility of secondary transfer of DNA – expert evidence as to possible contamination of DNA evidence

Catchwords:

SENTENCING – appeal against sentence – sexual intercourse with a child aged 14-16 years – aggravated indecent assault – possess child abuse material – assessment of objective seriousness of offending – low range aggravated indecent assault a first offence – possession of three brief video clips – possession of cartoon images SENTENCING – appeal against sentence – severity – manifest excess – relevant factors on sentence – objective seriousness – mitigating factors – autism spectrum disorder – developmental age of applicant

Catchwords:

SENTENCING – appeal against sentence – aggregate sentence – intensive correction order –availability for sentence under 3 years – mandatory considerations – Crimes (Sentencing Procedure) Act 1999 (NSW) s 66 – consideration of “community safety” in deciding whether to make an intensive correction order – relevance of general and specific deterrence SENTENCING – federal offence – availability of State sentencing options - intensive correction order – operation of Crimes Act 1914 (Cth), s 20AB, in picking up State sentencing alternatives – application of sentencing alternatives under State legislation – consistency between State and federal sentencing options – whether custodial sentence SENTENCING – appeal against sentence – whether failure to consider mandatory consideration – relevance of submissions for offender – if matter considered, whether reasons inadequate – issues raised adequately addressed in reasons SENTENCING – appeal against sentence – co-offenders – disparity between sentences – different offences involved – material difference in roles

Catchwords:

CRIME — appeals — appeal against convictions for child sex offences — evidence in chief given via a pre-recorded interview and evidence given at trial via audio visual link require warnings pursuant to ss 306X and 306ZI of the Criminal Procedure Act 1986 (NSW) — statute does not specify when the warnings ought be given — within discretion to give warnings in opening and summing up — direction concerning the use of complaint evidence as supportive of the victim’s claims — complaint evidence cannot be independent of the complainant corroborative evidence must be independent — reference to complaint evidence as “independent” was not capable of having any real bearing on the jury’s understanding as to its use — trial judge did not err in replaying recorded interviews when the jury requested “video transcripts” — applicant’s trial counsel did not object to replaying the interviews once — appropriateness of the direction as to the meaning of “appropriate concessions” — alleged inconsistent verdicts — evidence in respect of count 4 was qualitatively different in that it was limited — the evidence might have led the jury to believe that the complainant had misunderstood of what occurred and that count 4 had not been proved beyond reasonable doubt — alleged unreasonable verdict — on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the other counts CRIME — appeals — appeal against sentence —sentence is not manifestly excessive — youth and immaturity of the applicant — applicant knew his conduct was wrong — offending characterised by exploitation, opportunism, a sense of entitlement, and increasing severity

Catchwords:

CRIME – Appeals – Appeal against sentence – Special circumstances – Findings of the sentencing judge – Whether adjustment of non-parole period reflected findings of special circumstances – Appeal dismissed

Catchwords:

SENTENCING — Application for leave to appeal against sentence — whether sentencing judge erred by failing to assess whether the applicant was unlikely to reoffend under Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(g) — where sentencing judge considered applicant’s prospects of rehabilitation but not unlikelihood of reoffending — where sentencing judge was not asked to make a finding about the likelihood or unlikelihood of the applicant’s re-offending — severity — whether sentence manifestly excessive

Catchwords:

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

Catchwords:

SENTENCING – fraud offences – whether effect of pandemic restrictions imposed after sentence can be considered – leave to appeal refused.

Catchwords:

BAIL – release application – applicant currently serving sentence following conviction for offences – application for release pending determination of appeal against convictions – special and exceptional circumstances test – no special and exceptional circumstances demonstrated – release application dismissed

Catchwords:

CRIME – appeals – interlocutory appeal – by Crown against ruling on evidence – whether trial judge’s rulings on the admissibility of evidence eliminated or substantially weakened the prosecution’s case – Criminal Appeal Act 1912 (NSW), s 5F(3A) CRIME – appeals – interlocutory appeal – by Crown against ruling on evidence – standard of review for the exclusion of evidence under ss 55 and 137 of the Evidence Act 1995 (NSW) – correctness standard

Catchwords:

CRIMINAL LAW – Offences providing assistance to terrorist organisation – doing acts in preparation for or planning a terrorist attack – charges against co-offenders formulated differently – Sentence – alleged disparity – alleged manifest excess – issue regarding treatment of offence on Schedule pursuant to s 16BA of Crimes Act 1914 (Cth) – whether error in statement regarding effect on sentence of admitted offences

Catchwords:

SENTENCING – plea of guilty – standard non-parole period offence – offence against Crimes Act 1900 (NSW), s 154C(2) – vulnerable elderly victim – Form 1 offence – conditional liberty erroneously considered as aggravating objective severity – sentencing judge’s finding of objective severity less severe than that submitted by applicant at first instance – no error alleged in finding of objective severity as mid-range – need to resentence questionable – sentencing discretion re-exercised – no lesser sentence warranted in law – appeal dismissed

Catchwords:

CRIME – Appeals – appeal against sentence – alleged incompetence of counsel – failure to obtain and provide the court with relevant information on the offender’s upbringing and personal circumstances – sentencing Judge proceeded on a lack of relevant information – amounted to a miscarriage of justice – appeal upheld – sentence quashed – new sentence imposed

Catchwords:

CRIMINAL LAW – conviction appeal – wound with intent to cause grievous bodily harm – s 33A(1)(a) Crimes Act 1900 – whether there was a reasonable possibility that the applicant believed that his conduct was necessary in order to defend his sister – if so was there also a reasonable possibility that what the applicant did was a reasonable response in the circumstances as he perceived them – applicant brought loaded pistol to meeting with complainant – reasonable possibility that applicant believed it was necessary to shoot complainant in order to defend his sister excluded – whether verdict of the jury was unreasonable or cannot be supported having regard to the evidence – whether mental element of offence proved beyond reasonable doubt – evidence of witnesses required careful assessment – reliability and credibility issues – unreasonable verdict not established.

Catchwords:

CRIME – Appeals – Appeal against directed acquittal – Property offences – Break, enter, and commit serious indictable offence – Forcible break – Accused a tenant of property under residential tenancy agreement but no longer an occupant – Whether prosecution required to negative legal right to enter – Acquittal quashed – Retrial ordered LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Rights and obligations of landlords and tenants – Whether Tenant’s obligation not to cause or permit damage to premises negatives right of entry CRIME – Appeals – Appeal against directed acquittal – Residual discretion to dismiss Crown appeal notwithstanding material error – Public interest – Precedential value – Reflection of total criminality – Crown not responsible for error – Discretion not exercised

Catchwords:

CRIME – Appeal – Sentence – sentencing judge misinformed as to maximum sentence for one of the offences – error requiring re-sentencing – aggregate sentence – approach to mental condition – Bugmy principles – Henry guideline – effect of accumulation on ratio and special circumstances – sentence imposed.

Catchwords:

ENVIRONMENTAL OFFENCES – appeal – appeal against conviction – where defendant appeals against conviction for injuring trees the subject of a Tree Preservation Order without consent contrary to s 125 of Environmental Planning and Assessment Act 1979 – whether defendant vicariously liable for actions of independent contractor and his subcontractors – assessment of nature and terms of instruction given and any qualifications to that instruction – whether trial judge failed to consider defence argument that defendant instructed contractor to comply with 10/50 Code – whether the instruction that contractor comply with 10/50 Code would operate as a qualification upon the width of general instructions amounting to an instruction not to fell trees beyond the 10/50 zone – conviction quashed – new trial ordered

Catchwords:

CRIME – appeals – interlocutory appeals – subpoena – where primary judge set aside subpoena - where applicant extradited from Serbia to Australia in relation to drug importation – where applicant issued a subpoena to Attorney General’s Department seeking documents, two categories of which the AGD’s sought to have set aside – whether primary judge failed to apply “legitimate forensic purpose” test – where applicant asserted impropriety of Australian officials in material put forward to Serbian courts - where applicant had no evidence of impropriety but relied only on inferences – specialty and double criminality principle - whether a “fishing” expedition - where Serbian courts satisfied prerequisites for extradition demonstrated – appeal dismissed

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict – where applicant convicted of one count of assault but acquitted of one count of assault occasioning actual bodily harm, one count of indecent assault and two counts of sexual intercourse without consent – whether there was in all the circumstances a miscarriage of justice – whether the complainant was unreliable and lacking in credit – whether the nature and quality of the evidence, as a whole, and the acquittals was such that the jury ought to have entertained a reasonable doubt about the applicant’s guilt – where no reason to doubt the reliability or credibility of the complainant – appeal dismissed

Catchwords:

CRIME – appeal against conviction – murder – applicant pleads guilty in 2016 to murder and sentenced for offence – applicant’s legal representatives obtain psychiatric report in 2015 before entry of plea – 2015 report indicates that defence of mental illness and partial defence of substantial impairment not available to applicant – 2019 psychiatric report indicates that partial defence of substantial impairment was available to applicant – application for extension of time to appeal against conviction – principles to be applied on appeal against conviction following guilty plea – claim that 2019 psychiatric report constituted fresh evidence – whether fresh evidence or new evidence – 2019 psychiatric report based substantially upon new account provided by applicant – new account of applicant not credible or capable of belief by a jury acting reasonably – miscarriage of justice not demonstrated – extension of time granted – leave to appeal against conviction refused

Catchwords:

CRIME — Appeals — Appeal against sentence — Sexual and other offences — Requirement to take into account pre-sentence custody – Broken periods of pre-sentence custody – Where only second period of pre-sentence custody taken into account by backdating sentence – Whether first period of pre-sentence custody taken into account in relation to all offences – Reasons did not disclose why first period of pre-sentence custody not taken into account by backdating or how that period was taken into account for all offences — Leave to appeal granted — Appeal allowed — Sentence varied

Catchwords:

CRIMINAL LAW - appeal against conviction - arson - whether verdict unreasonable - circumstantial case - independent assessment of the evidence - whether all inferences consistent with innocence excluded - where appellant relies on deficiencies in expert evidence - evidence not to be considered in a vacuum - whether fire deliberately lit - electrical fault - arcing - where experts concede “possibility” of accident - other circumstantial evidence relied on by prosecution - insurance claim - telephone intercepts - coy references to “a certain job” - “shonky things” - invoice for “project management” - evidence of chasing debt - consciousness of guilt - admission by one co-accused - “a bread, cheese and diesel” - strong prosecution case - verdicts not unreasonable CRIMINAL LAW - evidence - failure of prosecution to call witness - whether “Mahmood” direction required - whether absence of witness gave rise to reasonable doubt - where prosecutor formed the view that witness not reliable - where prosecutor offered to assist accused to call witness - forensic disadvantage CRIMINAL LAW - evidence - circumstantial evidence - directions - whether judge required to identify particular inference - where direction not sought at trial - where several innocent inferences relied on - whether direction against applicants’ interests

Catchwords:

CRIME — accusatorial principle — admissions in civil proceedings sought to be used in subsequent criminal prosecution — plaintiff and prosecutor same legal person — admissions made voluntarily and on legal advice of counsel — admissions made in open court — applicant deposed he would not have made admissions if advised of possible criminal prosecution — use of admissions in subsequent criminal proceedings said to breach accusatorial principle — application for a stay distinguished — practical difficulties in restraining use of admissions ENVIRONMENT AND PLANNING — land clearing offence prosecuted in Land and Environment Court — Class 4 and Class 5 jurisdictions — proceedings based on same alleged acts commenced in both jurisdictions – admissions made disputing extent of civil contravention of Native Vegetation Act

Catchwords:

CRIME – driving offences – dangerous driving occasioning death – vehicle driven by applicant crossed unbroken centre line on country road and collided with vehicle travelling in opposite direction – driver of second vehicle died in collision – no evidence that applicant fell asleep – possibility of sleep raised for first time in defence counsel’s final address – whether defence of honest and reasonable mistake of fact that applicant believed he was fit to drive raised – trial judge directed jury to disregard submission – whether sleep possibility should have been left to jury – whether defence reasonably open on evidence – possibility that applicant fell asleep was a remote theoretical one – unfounded in any evidence – trial judge correct to decline to leave defence to jury CRIMINAL PROCEDURE – trial – closing address to jury by accused person – raising of defence for first time during closing – s 160 Criminal Procedure Act 1986 (NSW) – sub-s (2) could not have been used to permit Crown supplementary address – very late introduction of concept of defence apt to create unfairness to Crown – observations about need for criminal trial to be fair to both parties

Catchwords:

CRIMINAL LAW – appeal against conviction – whether jury’s verdicts unreasonable – two counts of armed robbery left to jury – victims did not identify appellant – no objective evidence connecting appellant with offences – objective evidence connecting person other than appellant with offences – Crown case dependent on evidence of driver – driver’s evidence internally inconsistent – parts of driver’s evidence inconsistent with appellant’s involvement in offences – driver maintained his innocence despite having pleaded guilty – significance of driver’s evidence being given through translator – convictions quashed

Catchwords:

CRIME – Appeal against sentence – manifest excess – street race between two motor vehicles – collision with innocent road user – manslaughter – no identifiable error by sentencing judge – sentence imposed while heavy was neither plainly unjust nor unreasonable – sentence within range and appropriate – appeal dismissed

Catchwords:

CRIME – appeal against sentence – drug and firearms offences – possess prohibited firearm – assessment made of the objective gravity of the firearms offence – loaded prohibited pistol – applicant subject to s firearms prohibition order – applicant a member of a criminal gang – question of connection with drug supply offence - above mid-range seriousness – whether assessment reasonably open – question of manifest excess

Catchwords:

SENTENCING – importation of tobacco without payment of excise duty – two applicants – each recruited into conspiracy by undercover operative – custodial sentences imposed – each applicant raised parity ground concerning the sentence imposed on the other – rejected – Crimes Act 1914 (Cth) – s 16A(2)(fa)(ii) – whether sentencing judge found factor made out in relation to licensed customs broker – ground made out – no lesser sentence is warranted in law – appeals dismissed

Catchwords:

CRIME — Appeals — Appeal against sentence – whether sentencing judge fell into Muldrock error – where sentencing judge found “very high” objective gravity and observed that but for the applicant’s young age she would have considered the SNPP appropriate – where sentence imposed was significantly less than SNPP – where sentencing remarks read fairly and as a whole demonstrate that sentencing judge did not place determinative significance on SNPP – held, no error – whether sentencing judge erred in finding that applicant would not experience hardship in custody due to PTSD – where applicant was kidnapped at gunpoint three weeks prior to the offence – where applicant consulted psychologist for PTSD symptoms prior to offence – held, error established – applicant re-sentenced

Catchwords:

CRIMINAL LAW – Appeal – Appeal against conviction – Appellants charged with an offence of contravening a condition of an approval issued under the Water Management Act 2000 (NSW) – Allegation contravention constituted by taking water from the Darling River when the flow of the river was equal to or less than a stipulated flow – Whether the primary judge erred in finding that all elements of the charge were established – Whether the trial judge reversed the onus of proof – Whether the trial judge erred in accepting evidence of a conversation between the first appellant and an officer of the respondent – No error established – Appeal dismissed EVIDENCE – Whether the trial judge erred in admitting evidence of measurements of flow rate of the Darling River which had been taken by officers of the respondent - Whether such evidence was properly regarded as opinion evidence – Distinction between evidence of opinion and evidence of observations – Where the evidence of recorded observations did not involve reaching any conclusion or forming any judgment by applying a process of reasoning from the facts observed – Evidence was not opinion evidence – No error established

Catchwords:

CRIME – appeals – appeal against sentence – three co-offenders aged 16 and 17 at time of offending - robbery armed with a dangerous weapon, assault with intent to rob whilst armed and larceny – appeal by JC1 – where applicant was serving a sentence for later offending at time sentence imposed - whether sentencing judge erred in failing to take into account the other sentence - whether insufficient disparity between aggregate sentence imposed on applicant and co-offenders – where both co-offenders also serving sentences for later offending at time sentence imposed - where starting dates for co-offenders’ sentences took account of the other sentences imposed on them – where sentencing judge otherwise appropriately took into account similarities and differences between offenders and was conscious of parity issue – where the failure to take account of applicant’s earlier sentence resulted in an unfair disparity with co-offenders - applicant re-sentenced to same sentence commencing at earlier date to take account of time spent in custody on earlier sentence CRIME – appeals – appeal against sentence – appeal by GN – whether sentencing judge impermissibly used the Henry guideline judgment in sentencing – where two-stage process not engaged in and Henry guideline judgment appropriately taken into account – whether sentencing judge erred in not properly considering applicant’s youth – where appropriate consideration given to matters involved in sentencing young person – appeal dismissed

Catchwords:

CRIMINAL LAW – sentence – appeal against severity of sentence – firearms offences – whether sentencing judge erred in assessment of objective seriousness of offences – where sentencing judge held that there was no basis for finding that a shotgun had been used for purposes of criminal activity – whether sentencing judge erred thereafter by failing to refer to a factor that he did not take into account, namely whether the firearm was intended for use in relation to criminal activity – whether sentencing discretion miscarried – no error demonstrated – leave to appeal refused

Catchwords:

CRIME — appeal against conviction — offences in company — sexual intercourse without consent — reckless infliction of actual bodily harm — question of where injury properly available to satisfy elements of actual bodily harm of s 61J(1) Crimes Act — absence of medical evidence — failure of Crown to particularise injury relevant to each charged count — where injury attributable to sexual act — question of inconsistent verdicts — use of expert pharmacological evidence to prove absence of consent — where Crown Prosecutor’s closing address conflated intoxicated and incapacity to give consent CRIME — appeal against sentence — asserted errors in findings of fact — question of correctness of assessment of objective gravity of offences — question of manifest excess — use to be made of “comparable” sentencing cases by which to establish error

Catchwords:

CRIME – Appeals – Appeal against sentence – Maintenance of unlawful sexual relationship with a child contrary to s 66EA(1) Crimes Act 1900 (NSW) – Error in finding as to aggravating factors - Appeal allowed

Catchwords:

CRIME – appeals – appeal against conviction – miscarriage of justice – joint trial – whether failure to order a separate trial resulted in a substantial miscarriage of justice – where evidence tendered was admissible against one co-accused but not the other –whether applicant deprived of a real chance of acquittal – Criminal Procedure Act 1986 (NSW), s 29(2)

Catchwords:

CRIMINAL LAW – Offences – Application for leave to appeal against sentence – Where applicant pleaded guilty to various offences including four counts of indecent assault – Where the Crown provided a sentence summary to the sentencing judge asserting that the offending was aggravated by the fact that the applicant was subject to conditional liberty at the time – Where a concession to that effect was made by counsel for the applicant – Where that concession was contradicted by a further submission made by counsel for the applicant – Where the resulting confusion was left unresolved – Where Crown determined prior to sentence being passed that its position on sentence was an error but failed to draw that to the attention of the sentencing judge until after sentence had been passed – Where sentencing judge found that the offending was aggravated based upon the Crown’s submissions – Whether applicant should be permitted to resile from the concession made at first instance – Whether miscarriage of justice established – Error established – No lesser sentence warranted – Observations as to the necessity for practitioners to ensure that sentence proceedings are properly conducted and not in a manner which has the capacity to lead a sentencing judge into error

Catchwords:

CRIMINAL LAW — Appeals — Appeal against conviction — Applicant pleaded guilty to recklessly dealing with the proceeds of crime — circumstance where the Crown put back to the applicant an offer she had made pre-committal — whether the applicant’s plea was entered and continued in circumstances that gave rise to a miscarriage of justice — the applicant’s trial counsel and solicitors were experienced, competent and diligent — agreed facts were as favourable to the applicant as they could have been — the applicant understood the nature of the charge and strength of the crown case — no evidence to support the submission that the prosecuting authorities induced the applicant to plead guilty by maintaining the charge against her children — highly significant that when the applicant made the offer pre-committal it was not dependent on the withdrawal of charges against her children — leave to appeal against conviction refused CRIMINAL LAW – Offences – Sentence – Dealing recklessly with the proceeds of crime – Whether failures on the part of counsel gave rise to a miscarriage of justice – Whether sentencing judge erred in assessing the objective criminality of the offending and gave disproportionate weight to agreed facts – Whether failure on the part of the sentencing judge to attribute appropriate weight to the applicant’s subjective circumstances – No such errors on the part of counsel – No such errors on the part of the sentencing judge CRIMINAL LAW – Sentence – Complaint of unjustified disparity – Where differences in sentences imposed upon the applicant and her co-offender explained by the differences in the objective circumstances of the offending the respective roles played – No unjustified disparity CRIMINAL LAW – Sentence – Complaint of manifest excess arising from the application of a 10% discount to reflect the applicant’s plea of guilty – Where the applicant had offered to plead guilty before being committed for trial – Where the Crown had rejected that plea – Where that plea was ultimately accepted – Applicant’s offer not recorded in case conference certificate – Requirement to do so overlooked – Consideration of legislative provisions creating the Early Appropriate Guilty Plea Scheme – Necessity to adopt a construction which did not result in manifest injustice being visited on the applicant – Where on a proper construction of the legislation a discount of 25% was warranted – Where the relevant negotiations had taken place prior to counsel who appeared on sentence being retained in the matter – Where Crown did not draw the attention of the sentencing judge to those negotiations – Error established in circumstances where the relevant issues were not raised by the Crown for the consideration of the sentencing judge – Applicant resentenced STATUTORY INTERPRETATION - Necessity to interpret legislation in a way which avoided manifest injustice and which produced less hardship to the applicant WORDS AND PHRASES – “offer recorded in a negotiations document”

Catchwords:

CRIME – appeals – appeal against conviction – applicant charged with 11 offences - grooming child under 16, incite person under 16 to commit act of indecency, aggravated act of indecency with victim under 16, and aggravated sexual intercourse with person under 14 counts – applicant found guilty by jury of all counts charged - applicant was complainant’s foster carer at time of offences – whether the verdicts in respect of each count are unreasonable – where open to the jury to convict applicant on all counts given strong case and detail given by complainant CRIME – appeals – appeal against sentence - whether sentencing judge erred in failing to assess objective criminality of counts 2 to 11– where analysis of factors her Honour took into account does not allow objective seriousness to be clearly understood – where ground is made out – resentence – complainant vulnerable because of background - significant breach of trust by applicant – applicant has good prospects of rehabilitation and low prospects of re-offending – applicant re-sentenced to nine years’ imprisonment with non-parole period of five years and nine months

Catchwords:

CRIME – Appeals – appeal against sentence – whether sentencing judge conflated objective seriousness of offence and moral culpability – whether there was a failure to have regard to particular evidence in relation to moral culpability.

Catchwords:

EVIDENCE – Evidence Act 1995 (NSW), ss 44(3), 43 – cross-examination of one accused by another – prior inconsistent statement – “use” to be made of Crime Commission Information Report – report was a summary of the co-accused’s account of events – inconsistency between Information Report and co-accused’s account of events at trial – no questions expressly or impliedly referring to existence of report allowed – questions about oral statements made by co-accused to the Commission should have been allowed with leave – rebuttal evidence should have been allowed under s 106 – erroneous ruling under Evidence Act 1995 (NSW), s 192A CRIME – appeals – Criminal Appeals Act 1912 (NSW), s 6(1) – third limb – loss of chance of acquittal – second limb – wrong decision of any question of law CRIME – appeals – proviso – error relevant to credibility of co-accused only – credibility of both accused comprehensively rejected by the jury – no significant denial of procedural fairness – Court able to assess proviso – accused’s guilt proved beyond reasonable doubt – proviso applied – appeal dismissed CRIME – appeals – unreasonable verdict – circumstantial case – joint criminal enterprise – two accused – Crown unable to prove which accused fired the fatal shots – cut-throat defence – Crown attack on both accused’s credibility – lies demonstrating consciousness of guilt – exculpatory explanations frankly absurd and third grade fictional – neither accused a criminal genius CRIME – appeals – fresh evidence – evidence came forward after the Rogerson was sentenced – key witness a friend of the accused – “oh by the way don’t tell Rogerson about this” – evidence not credible – no miscarriage of justice EVIDENCE – exclusion – Evidence Act 1995 (NSW), s 135 – evidence that Rogerson admitted having participated in several homicides and other criminal violence – evidence relevant to whether McNamara’s conduct committed under duress – limited probative value – highly prejudicial to Rogerson in context of murder trial – evidence correctly excluded CRIME – appeals – appropriate standard of review – Evidence Act 1995 (NSW), s 135(a) – review of trial judge’s decision to exclude evidence – s 135 involves an evaluative judgment, not an exercise of judicial discretion – House v The King standard not appropriate – “correctness” standard applied – appellate court to decide for itself whether the evidence should be excluded WORDS AND PHRASES – Evidence Act 1995 (NSW), s 135(a) “evidence unfairly prejudicial to a party” – “a party” includes a co-accused in a joint criminal trial CRIME – appeals – appeal against refusal to discharge jury – inadmissible evidence before jury – evidence would have had minimal effect on jury in the context of the trial – carefully crafted directions given – agreed fact stating the inadmissible evidence was incorrect – trial judge correct to refuse the application SENTENCING – appeal against sentence – life sentence – Crimes (Sentencing Procedure) Act 1999 (NSW), s 61(1) – “level of culpability in the commission of the offence” – two-stage approach appropriate – not the same two-stage approach previously rejected by the High Court – no inconsistency with instinctive synthesis approach – circumstances surrounding or causally connected to the offence – objective and subjective distinction unhelpful in context of s 61 – life sentence appropriate SENTENCING – appeal against sentence – challenge to factual findings on sentence – sentencing judge found plan to kill deceased was formed well before murder – finding overwhelmingly supported by evidence – no error

Catchwords:

CRIME — appeals — appeal against sentence — whether failure to take into account utilitarian value of early guilty plea

Catchwords:

CRIMINAL LAW AND PROCEDURE - SENTENCE - CROWN APPEAL ALLEGING INADEQUACY - FACTORS IN RESENTENCE ASSESSMENT

Catchwords:

SENTENCING – aggregate sentence – two sets of serious sexual offences committed against two victims a decade apart – applicant self harmed after offending discovered in relation to first set of offences and rendered himself a paraplegic – sentencing judge wrongly took into account standard non-parole period when none specified – error conceded SENTENCING – error by sentencing judge – effect of error – discussion of principles in Kentwell v The Queen – application of principles – independent re-exercise of sentencing discretion – ongoing relevance of R v Simpson – by majority, applicant resentenced

Catchwords:

CRIME — Appeals — Appeal against sentence —The sentencing judge did not overstate the applicant’s moral culpability — Applicant drove straight into the side of a highly visible vehicle on a highway with a speed limit of 110kph — Conduct constituted an egregious want of care — Failure to look properly and assess the presence of oncoming traffic created a substantial risk of collision with catastrophic consequences — The sentencing judge properly assessed the application for an ICO — Assessed the applicant’s risk of reoffending low whether given an ICO or full-time custody — The purposes of general deterrence would not be sufficiently served by an ICO — Sentence was not manifestly excessive

Catchwords:

CRIME — Appeals — Appeal against sentence — Co-offenders sentenced for the same offences — Sentencing judge took into account a further offence committed by the co-offender — Applicant alleges disparity between sentences — Whether the applicant was entitled to have a justifiable sense of grievance – whether the co-offender’s strong subjective case, this outweighed the co-offender’s greater involvement and further offence — Co-offenders sentenced by different judges — Whether the sentences can be explained by the different material before each sentencing judge — Co-offender gave evidence at his own sentencing and the applicant did not give evidence at his own sentencing — Agreed facts were substantially the same — Difference in material explains why the co-offender was found to have a considerably greater role than the applicant — Differential assessment of objective seriousness — No standardised language with regard to range — The effect of subjective circumstances reduced the co-offender’s moral culpability — The judge who sentenced the co-offender expressly took into account the additional offence — No disparity between the sentences such as would entitle the applicant to a justifiable sense of grievance

Catchwords:

CRIME – Appeals – Appeal against sentence – Reckless wounding (two counts) – Affray – Aggravated break and enter and commit serious indictable offence – Whether sentencing judge gave appropriate consideration to offender’s background of social disadvantage – Bugmy v The Queen (2013) 249 CLR 571 – Appeal allowed SENTENCING – Subjective considerations on sentence – Social disadvantage and hardship – Excellent upbringing with non-biological parents until aged thirteen – Subsequent discovery of and return to biological family – Entry into environment where criminal conduct normalised – Commencement of alcohol and drug abuse – History of offending associated with alcohol abuse – Childhood and adolescent years equally formative – Reduced moral culpability notwithstanding passage of time and intervening custodial sentences CRIME – Appeals – Appeal against sentence – Extension of time in which to appeal – Whether sufficient explanation for delay – Time required to receive transcripts, advice from counsel, Legal Aid approval, and submissions – Whether arguable case on appeal – Extension granted

Catchwords:

CRIME – Sentence Appeal – sexual offences on child – breach of Child Protection Orders – alleged failure to provide reasons for objective seriousness determination – failure to afford reduction for alleged assistance – reasons read as a whole provide sufficient basis for understanding why determination was effected – reasons delivered ex tempore – alleged admissions and plea not assistance that required reduction – no error disclosed

Catchwords:

CRIMINAL LAW – unreasonable verdict – two appellants convicted of two counts of wounding with intent to cause grievous bodily harm – alleged part of group that invaded victims’ unit – Crown case that all members of group entered unit or balcony – Crown case depended on proof that same group of males who walked up street returned and entered balcony area – whether Crown excluded reasonable hypothesis that at least one group member did not return down street or did not enter balcony area – appeal allowed for three appellants – judgment in respect of co-offenders determined same issue – appellants entitled to the benefit of that analysis – appellants previously refused legal aid and appeals lapsed – extension of time granted - appeal allowed.

Catchwords:

CRIMINAL LAW - appeal against sentence - accessory after the fact to murder - whether sentencing judge erred in failing to backdate the sentence to take into account the applicant's pre-sentence custody - whether sentencing judge erred in assessment of objective seriousness - whether sentence is manifestly excessive - parity

Catchwords:

CRIME – Appeals – Appeal against conviction – Where accused sought a voir dire examination to establish evidence of “experimental or explorative touching” between young children – Where trial judge declined to hold a voir dire because prospective evidence inadmissible under Criminal Procedure Act, s 293 – Whether prospective evidence likely to be inadmissible by reason of s 293(3) – Whether prospective evidence likely to be within exception in s 293(4)(a) – Whether s 293 prevents evidence being adduced in an examination on a voir dire – Appeal allowed on ground 1 (unanimous). CRIMINAL PROCEDURE – Trial – Directions to jury – Misdirection – Where evidence led of conduct of complainant “consistent” with the alleged offending having occurred – Where evidence incorrectly described by Crown as “complaint” evidence – Where directions provided limited guidance as to use of conduct evidence – Where no objection taken by defence counsel at trial to directions as to use or to description of evidence as “complaint” evidence – Whether directions were inadequate – Whether a miscarriage of justice – Whether to grant leave to appeal under Criminal Appeal Rules, r 4 – Leave granted – Appeal allowed on ground 2 (by majority).

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:

CRIMINAL LAW – Crown sentence appeal – pleas of guilty to one count of dangerous driving occasioning grievous bodily harm and two counts of aggravated dangerous driving causing death – three victims were passengers in respondent’s vehicle, two of whom were killed as a result of his conduct – sentence of imprisonment for 6 years with a non-parole period of 2 years and 9 months imposed – speed and alcohol – challenge by Crown to levels of accumulation and to total effective sentence – high level of moral culpability – error demonstrated – non-parole period and head sentence both manifestly inadequate – respondent re-sentenced.

Catchwords:

CRIME – sentencing – reckless wounding whilst in company – joint criminal enterprise – three victims with stab wounds – attack directed at rival gang – invasion of birthday party SENTENCING – appeal – manifest excess – assessment of objective seriousness not challenged – applicant did not carry weapon or wound – applicant transported attackers and entered premises where attacks occurred – presence and encouragement during fight SENTENCING – appeal – manifest excess – evidence of entirely favourable personal circumstances – whether adequately reflected in sentence

Catchwords:

CRIME – conviction appeal – jury direction – burden of proof – dealing with proceeds of crime – “reasonable grounds to suspect” – accused’s defence that no reasonable grounds – disbelieving accused insufficient to discharge prosecution burden – whether need for Liberato direction – direction given as sought – leave required under Criminal Appeal Rules SENTENCING – appeal – dealing with proceeds of crime – purpose identified as money laundering – whether judge referring to different offence – whether inflation of objective criminality – whether De Simoni error

Catchwords:

SENTENCING – police officer victim of offence under s 33B(1) of Crimes Act – whether erroneous to refer to their status as aggravating circumstance – no error established - sentencing judge only considered status of victim in characterising objective seriousness of offence - alleged double punishment revealed by indicative sentences – no common elements – sentence not manifestly excessive – leave to appeal granted but appeal dismissed.

Catchwords:

SENTENCING – Appeal against sentence – General principles – Accumulation – Where sentencing judge expressed an intention to partially accumulate but failed to do so – Appeal allowed

Catchwords:

CRIMINAL LAW – appeal – appeal against sentence – where hearsay evidence not erroneously admitted – where evidence insufficient to support finding beyond reasonable doubt that offender committed physical assault – reduced moral culpability of offender – appeal allowed

Catchwords:

CRIMINAL LAW – appeal – appeal against conviction – where appellant convicted of setting fire to his house – destroying or damaging property – attempt to dishonestly obtain financial advantage from insurance company – where there are several available reasons why appellant may have not started fire – where it was open to jury to be satisfied beyond reasonable doubt that appellant’s interpretation of evidence should not be accepted – where there are no inconsistencies in evidence that are irreconcilable with finding of appellant’s guilt – verdict not unreasonable and can be supported having regard to evidence – appeal dismissed

Catchwords:

SENTENCING – appeal against sentence – money laundering offences – co-offenders – disparity between sentences – first co-offender’s sentence reduced on appeal due on parity principles – applicant faced charges carrying significantly lower penalties than those faced by second co-offender but applicant’s sentence significantly more severe – legitimate sense of grievance demonstrated – sentence set aside – sentencing discretion re-exercised – adjustment achieved by restoring proportions with first co-offender’s sentence SENTENCING – appeal against sentence – sexual assault offences – whether primary judge erred in assessing objective seriousness – whether applicant had actual knowledge of absence of consent – knowledge clearly established as absence of consent manifest by violent assaults which preceded sexual assaults – whether offences less serious where committed in context of ongoing consensual relationship – no principle that sexual assault committed in prior or existing relationship is, for that reason alone, less serious than one committed by a stranger – Bussey v R [2020] NSWCCA 280 SENTENCING – appeal against sentence – whether level of accumulation resulted in overall manifestly excessive sentence – sentence lengthy but justified – no error by primary judge established

Catchwords:

CRIME – Appeal against sentence – sentencing judge precluded aggregate sentence and order of ICO – effective sentence of 3 years from 2 offences fully concurrent – aggregate sentence available and, if imposed, ICO available – appeal allowed – aggregate sentence imposed – ICO ordered.

Catchwords:

CRIME – Appeal against sentence – failure to allow full utilitarian value for early plea of guilty – application of discount to aggregate sentence not indicative sentences – failure to specify non-parole period in indicative sentences that have a standard non-parole period – appeal allowed – applicant re-sentenced.

Catchwords:

CRIMINAL LAW - sentence - supply of large commercial quantity of heroin - applicant highly placed in drug supply network - life sentence - ss33(3)(a), 33A(1) Drug Misuse and Trafficking Act 1985

Catchwords:

CRIME – appeals – appeal against conviction – where a majority verdict direction was given instead of a Black direction – whether a miscarriage of justice occurred by the failure to give a Black direction – direction was not a proper perseverance direction – appeal allowed – quash the verdicts of guilty returned by the jury – retrial ordered

Catchwords:

CRIME – appeals – appeal against sentence – findings of pre-meditation and planning - whether findings made which were inconsistent - whether erroneously taken to be aggravating factor on sentence – held no inconsistency in judge’s findings – leave granted - appeal dismissed

Catchwords:

CRIME – Appeals – appeal against conviction – whether there was a miscarriage of justice in that the applicant allegedly did not give evidence in relation to his application for a permanent or temporary stay of proceedings – where contemporaneous evidence revealed that decision not to proceed with stay application was taken on the applicant’s instructions

Catchwords:

CRIMINAL LAW – powers of District Court in hearing appeal from Local Court under Crimes (Appeal and Review) Act 2001 – federal offences – whether District Court can exercise power under s 19B of Crimes Act 1914 – whether District Court can exercise power under s 20BQ of Crimes Act 1914 – Judiciary Act, s 68 and s 79 – whether powers can be exercised on appeal against sentence if no power to set aside conviction – whether powers can be exercised on appeal against conviction.

Catchwords:

CRIME – offences – break and enter and commit a serious indictable offence therein – attempt – entry not effected – whether inchoate offence could only be break and enter with intent to commit a serious indictable offence – attempt related to both elements of offence – Crimes Act 1900 (NSW), ss 112, 113 CRIMINAL PROCEDURE – application by prosecutor to cross-examine own witness – unfavourable witness – statement to police put to witness – whether evidence admissible – Evidence Act 1995 (NSW), s 38 CRIMINAL PROCEDURE – application by prosecutor to cross-examine own witness – question challenged evidence on basis which affected witness’ credibility – question put to allow submission that witness mistaken – whether unfair to accused or witness – Evidence Act 1995 (NSW), s 192(2)(b) CRIME – appeals — appeal against conviction — unreasonable verdict – identity of offenders – whether appellant present – whether appellant shared joint purpose to break and enter and intimidate SENTENCING – appeal – evidence – evidence of personal circumstances not adduced before sentencing judge – whether admissible on appeal to challenge sentence – admissible on resentencing SENTENCING – leave to appeal – aggregate sentence for multiple offences – aggregate sentence exceeded sum of putative individual sentences SENTENCING – relevant factors on sentence – parity – sentence of co-offender reduced on appeal – whether ground of reduction required adjustment of applicant’s sentence

Catchwords:

CRIMINAL LAW – appeal against sentence – historical sexual offences – whether Crown concession as to the objective seriousness of count 1 – whether error in assessment of applicant’s mental health where no submission was made about general deterrence – whether applicant suffered a serious injustice – whether aggregate sentence is manifestly excessive

Catchwords:

LEGAL PROFESSIONAL PRIVILEGE – appellant’s grounds of appeal contend he was unfit to be tried – whether appellant has waived legal professional privilege over communications with lawyer at his trial – implied or imputed waiver – waiver by disclosure of substance – Held – waiver established

Catchwords:

CRIME — appeal bail — application for bail pending purported appeal against sentence imposed many years previously — no extension of time for leave to appeal sought or granted — whether Court has jurisdiction to grant bail — whether Court should grant extension to permit application to be entertained —whether special or exceptional circumstances established in any event — whether unacceptable risk of commission of serious offence in any event

Catchwords:

CRIME – sexual offences – offences alleged to have been committed between 1982 and 1987 – legislative changes with respect to sexual offences – Crimes Act 1900 (NSW) – s 81 repealed with effect from 8 June 1984 and s 78K enacted with effect from that date – appellant arraigned on indictment that charged offences against s 81 and s 78K in the alternative with dates commensurate with dates the provisions in force – indictment amended to take benefit of s 80AF Crimes Act – s 80AF allowed prosecution to rely on s 81 (as the offence carrying the lesser maximum penalty) for the entirety of the charged period, beyond the date s 81 was in force – whether judge erred in granting leave to amend indictment – whether principles against retrospectivity of legislation offended – when criminal proceeding commences – when criminal proceeding “pending” STATUTORY INTERPRETATION – retrospectivity – whether s 80AF Crimes Act substantive or procedural – whether provision affects existing rights or obligations – to classify s 80AF as substantive and deny it retrospectivity would undermine legislative intention and deprive it of effectiveness – even if substantive, s 80AF clearly intended to alter the existing law – need for interpretation of statute in context of circumstances CRIME – sexual offences – charge for offence against s 78K Crimes Act of homosexual intercourse with a male person aged between 10 and 18 years – indictment alleged offence committed during time when complainant 14 to 16½ years old – s 78T(1) Crimes Act provided that prosecution must be commenced within 12 months where complainant aged over 16 years at time of alleged offence – prosecution commenced much later – whether prosecution statute-barred – dates were an essential fact of prosecution and statutory time limit applied – conviction quashed and verdict of acquittal entered CRIME – appeals – successful appeal against conviction on one count – aggregate sentence quashed and appellant re-sentenced on other counts

Catchwords:

JUDGMENTS AND ORDERS – Court of Criminal Appeal – Application for leave to re-open – Principles governing – Whether failure to consider ground of appeal – Whether various misapprehensions of fact and law – No slip, oversight, or misapprehension identified – Attempt to reargue appeal on grounds not previously advanced – Whether Kentwell error – Leave refused SENTENCING – Appeal against sentence – Role of appellate court – Re-exercising the sentencing discretion afresh – Adopting findings of primary judge – Effect of Kentwell v The Queen

Catchwords:

CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Where applicant pleaded guilty to an offence of supplying a prohibited drug at a dance festival – Where in assessing the objective seriousness of the offending the sentencing judge took judicial notice of the fact that a number of people had died as a consequence of such offending which occurred on a regular basis and was often committed by young people of good backgrounds who had no criminal convictions –Whether such considerations were relevant to an assessment of objective seriousness as opposed to being relevant to general deterrence – Error established CRIMINAL LAW – Offences – Application for leave to appeal against sentence – Where applicant pleaded guilty to further counts of ongoing supply of a prohibited drug and offering to supply a prohibited drug – Where competing submissions had been made as to the nature and extent of the applicant’s role and the objective seriousness of his offending – Where the Crown’s submissions as to objective seriousness were advanced partly on the basis of an erroneous assertion which was unsupported by the evidence – Where the sentencing judge adopted the Crown’s submissions in the absence of the exposition of the reasoning process which led him to make that determination – Where the sentencing judge failed to engage with a submission advanced on behalf of the offender as to his role – Importance of the assessment of objective seriousness of offending in the sentencing process – Necessity for a judge to give proper reasons as an incident of the judicial process – Error established CRIMINAL LAW – Offences – Re-sentence – Objective seriousness of the offending – Significant role played by the offender in respect of each count – Need for both general and personal deterrence – No lesser sentence warranted – Appeal against sentence dismissed

Catchwords:

CRIMINAL LAW – Offences – Appeal against conviction – Where appellant convicted of aggravated break and enter and discharging a firearm – No issue at trial as to the commission of the offences – Sole issue whether the Crown had established beyond reasonable doubt that it was the appellant who was responsible – Where observations were made by several witnesses of the person at the time of the offending – Observations inconsistent as to the person’s skin colour and other characteristics – Where there were a series of other circumstances which the jury were entitled to take into account in concluding that the Crown had established its case beyond reasonable doubt – Necessity to consider a circumstantial case as a whole and not in a piecemeal fashion – Strong case against the appellant – Evidence not lacking in probative value – Open to the jury to find the offences proved beyond reasonable doubt – Appeal against convictiondismissed.

Catchwords:

CRIMINAL LAW – appeal against sentence – 10 offences including accessory after the fact to break enter and steal, robbery armed with an offensive weapon, steal from the person and reckless wounding – error on part of sentencing judge in referring to maximum penalty for one of the offences – need to re-sentence – whether lesser sentence warranted in law – whether sentencing judge failed to properly consider totality and accumulation – no lesser penalty warranted in law – appeal against sentence dismissed.

Catchwords:

CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Where applicant pleaded guilty to a series of offences relating to drug supply – Whether the sentencing judge erred in her assessment of the role of the applicant – Whether applicant had a justifiable sense of grievance in light of sentences imposed on co-offenders – Whether sentence manifestly excessive – Where it was open to the sentencing judge to reject the applicant’s evidence as to his role – Where disparity in sentences was justified on the basis that the criminality of the applicant extended well beyond that of his co-offenders – Serious offending – Where any sentence was required to reflect both general and personal deterrence – Where applicant’s subjective case unremarkable – Sentence not manifestly excessive – Leave to appeal granted – Appeal dismissed

Catchwords:

CRIMINAL LAW – Leave to appeal against conviction after pleas of guilty – In effect, application to withdraw pleas of guilty – Where applicant challenged integrity of the plea on the basis of having been misled by his legal representatives – Where legal representatives explained the consequences of pleading guilty and gave extensive advice – Where applicant had voluntarily signed, and had interpreted for him, a statement of agreed facts and written instructions – Where evidence did not establish that the applicant did not understand the nature of the pleas of guilty or that he was being sentenced for serious offences – Where applicant anticipated lesser sentence – No miscarriage of justice in the circumstance not to allow pleas of guilty to be withdrawn – Leave to appeal refused CRIMINAL LAW – Leave to appeal against sentence – Potential ground that sentence manifestly excessive – Sentence not outside the range of available sentence and not unreasonable or plainly unjust – Leave to appeal refused

Catchwords:

CRIME – trial procedure – prosecution evidence in rebuttal – whether splitting case – whether rebuttal of good character evidence – defence evidence that accused not violent – defence not foreseeable – evidence of angry behaviour in rebuttal – relationship between tendency evidence and character evidence CRIME – appeals – directions to jury – jury sought explanation of “reasonable doubt” – whether judge wrongly described meaning of term as a question of fact – whether apology for lack of assistance erroneous – whether need for comparison with civil standard

Catchwords:

CRIME – appeals – appeal against sentence – supply of prohibited drugs – sentencing – relevant factors on sentence – whether offender spent time in quasi-custody – whether quasi-custody was taken into account by the sentencing judge – no quasi-custody – no error of law established – appeal dismissed

Catchwords:

CRIME — Appeals — Appeal against conviction — whether verdicts inconsistent or otherwise unreasonable – offences of sexual intercourse without consent, assault with act of indecency and recording intimate image without consent – where applicant was convicted of three counts and acquitted of four counts – where applicant admitted acts for counts upon which he was convicted but disputed consent – where counts upon which applicant was acquitted were disputed or involved possible fragmentation of memory due to alcohol consumption and sleep – held, verdicts not inconsistent or otherwise unreasonable CRIME — Appeals — Appeal against conviction — where applicant gave different versions to police and others – whether trial judge erred in failing to give Zoneff direction in relation to the applicant’s “changing story” – where applicant told police that he deleted an intimate photograph of the complainant because he “didn’t feel right” about “how it ended” – whether trial judge erred in failing to give Edwards direction in relation to deletion of photograph – where Crown did not rely upon lies or post-offence conduct as consciousness of guilt – held, no error

Catchwords:

CRIME — Appeals — Appeal against sentence – whether sentencing judge erred in assessment of objective seriousness by “double counting” elements of the offence as aggravating features – offence of aggravated enter dwelling house with intent to commit serious indictable offence – where sentencing judge observed that the offenders were “armed with knives” and the entry was an “effective invasion of a domestic dwelling at night” – held, it was necessary for sentencing judge to have regard to the type of weapon used and the nature of the entry into the dwelling – whether sentence manifestly excessive – where offence was found to be above the mid-range of objective seriousness – lack of favourable subjective case – held, no error

Catchwords:

CRIME — Appeals — Appeal against sentence – offences of dishonestly obtain financial advantage, breach of bail undertaking, give false evidence at public inquiry – whether sentencing judge erred in assessment of objective seriousness of the offences – where sentencing judge stated that the findings of objective seriousness were arrived at after taking into account mitigating factors including plea of guilty – where subjective factors were subsequently considered – held, remarks read as a whole indicate that subjective factors were taken into account after findings of objective seriousness – whether sentencing judge erred in failing to take into account possibility of summary disposition in respect of count 1 – argument not raised below – where applicant was sentenced for multiple offences that occurred over several years including a fraud of over $1m – not necessary to consider hypothetical situation in which count 1 was dealt with in isolation – whether aggregate sentence manifestly excessive – where indicative sentence on count 1 high – principle of totality – no error disclosed in aggregate sentence – appeal dismissed

Catchwords:

CRIMINAL LAW - application for leave to appeal from decision refusing to adjourn trial - trial for break, enter and steal and engaging in police pursuit - other trials listed for sexual and other offences - claim of denial of procedural fairness and discretionary error in refusing adjournment - no denial of procedural fairness - no arguable ground of discretionary error - leave to appeal refused

Catchwords:

CRIME – Appeals – Appeal against conviction – Break and enter and commit serious indictable offence – Receive stolen property knowing it to be stolen – Special verdict pursuant to s 121 Crimes Act 1914 (NSW) – Drive vehicle knowing police in pursuit, fail to stop and drive in manner dangerous to others – Where evidence of applicant’s driver disqualification tendered – Whether trial judge erred in failing to discharge jury in circumstances where defence was on notice of evidence and evidence not objected to – Whether substantial miscarriage of justice – Whether leave to appeal required pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) CRIME – Appeals – Appeal against conviction – Where trial counsel sought to interpose expert witness despite failing to give notice of defence response – Where trial counsel sought to adjourn proceedings to allow expert witness to be called – Where trial judge refused adjournment application – Whether miscarriage of justice occasioned by trial judge’s refusal to grant adjournment application CRIME – Appeals – Appeal against conviction – Where trial judge criticised defence counsel in summing-up – Where strong Crown case against applicant – Whether trial judge’s summing up was unbalanced – Whether miscarriage of justice CRIME – Appeals – Appeal against conviction – Apprehension of bias – Where trial judge expressed his opinion of the case against the applicant in proceedings after conviction – Whether comments made by trial judge in proceedings after conviction evidenced an apprehension of bias

Catchwords:

CRIME – appeal against sentence – supply of less than commercial quantity of methylamphetamine – whether sentence manifestly excessive

Catchwords:

CRIMINAL LAW – unreasonable verdict – four appellants convicted of two counts of wounding with intent to cause grievous bodily harm – alleged part of group that invaded victims’ unit – Crown case that all members of group entered unit or balcony – Crown case depended on proof that same group of males who walked up street returned and entered balcony area – whether inference supported by CCTV footage of street – whether victims’ evidence sufficiently strong to make out Crown case – whether Crown excluded reasonable hypothesis that at least one group member did not return down street or did not enter balcony area – appeal allowed for three appellants – intercepted telephone calls involving fourth appellant – majority satisfied intercept demonstrated his presence on the balcony

Catchwords:

CRIME – appeals – appeal against sentence – where applicant has spent short amounts of time in community between periods in custody – whether sentencing judge erred in not sufficiently taking into account pattern of recidivism

Catchwords:

CRIMINAL LAW – appeal – appeal against conviction – sexual touching without consent – attempted sexual intercourse without consent – sexual intercourse without consent – judge alone trial – where appellant claims trial judge erred in accepting complainant’s evidence to required standard due to alleged inconsistency and implausibility in her accounts – where evidence provided by complainant was sufficient to establish that it was open to trial judge to be satisfied beyond reasonable doubt of guilt of complainant – where trial judge not required to give himself warning in accordance with section 165B of the Evidence Act 1995 – whether delay in prosecution created significant forensic disadvantage for appellant CRIMINAL LAW – appeal – appeal against sentence – whether sentence manifestly excessive – whether sentence failed to apply principles of totality

Catchwords:

CRIME — Appeals — Appeal against sentence – whether sentencing judge erred in failing to reduce moral culpability due to the applicant’s cognitive impairment and mental health condition – where sentencing judge found that there was insufficient evidence of a causal link such as to warrant a reduction in moral culpability – where the sentencing judge found special circumstances and found that the applicant’s time in custody would be more onerous due to his mental condition – where the sentencing judge found reduced moral culpability due to childhood deprivation – whether it was not open to the sentencing judge to find insufficient evidence of a causal link – where mental conditions taken into account in other ways – where mental conditions closely linked to childhood deprivation – held, no error

Catchwords:

SENTENCING – Appeal against sentence – Commonwealth offences – trafficking a commercial quantity of controlled drugs – Xiao error – whether sentencing judge considered appellant’s early guilty plea – discount for guilty plea – discount for assistance

Catchwords:

SENTENCING — Appeal against sentence — appeal on sentence from Drug Court — property and drug offences — indicative sentence did not discount for appellant’s guilty plea — sentencing discretion exercised afresh — leave to appeal granted — appeal allowed

Catchwords:

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

Catchwords:

SENTENCING – life sentences – mandatory life sentences for certain offences – murder – whether sentencing judge adopted a two-stage approach to sentencing – Crimes (Sentencing Procedure) Act 1999 (NSW), s 61(1) SENTENCING – appeal against sentence – informers – sentence reduced because of assistance to enforcement authorities – where sentencing judge did not distinguish between past and future assistance – Crimes (Sentencing Procedure) Act 1999 (NSW), s 23 SENTENCING – appeal against sentence – by Crown against reduced sentence for assistance to authorities – post-sentence conduct – where past assistance given – where failed to fulfil undertaking to give evidence – whether Crown received utilitarian benefit notwithstanding failure to fulfil undertaking – Criminal Appeal Act 1912 (NSW), s 5DA

Catchwords:

CRIMINAL LAW - sentencing - credit card fraud and identity theft - skimming devices - proceeds of crime - grave criminality - exceptional hardship to children - where husband and wife both incarcerated - finding reflected in adjustment to non-parole period - “crafting” sentence to facilitate availability of intensive corrections order - contrary to orthodoxy - sentence severe but not manifestly excessive

Catchwords:

CRIMINAL LAW – sentencing – finding of special circumstances – sentencing ratio – whether failure to give proper practical effect – discretion of sentencing judge – prospects of rehabilitation CRIMINAL LAW – sentencing – whether House v King error – whether material error – incorrect reference to Form 1 offence – slip – whether sentence vitiated CRIMINAL LAW – sentencing – aggregate sentence whether manifestly excessive – property and domestic violence offences – whether indicative sentences erroneous so as to infect sentence imposed – use of JIRS statistics – objective gravity – general deterrence

Catchwords:

SENTENCING – dangerous driving causing grievous bodily harm – effect of intoxicating drug – applicant suffered fatigue from withdrawal phase of using methylamphetamine – whether finding that driver significantly effected by drugs was open – whether sentencing judge failed to apply guideline judgment – Whyte – whether sentence manifestly excessive – appeal allowed – sentence reduced

Catchwords:

CRIMINAL LAW – appeal against sentence – aggravated dangerous driving occasioning grievous bodily harm contrary to Crimes Act 1900 (NSW), s 52A(4) – failure to stop and assist after vehicle impact causing grievous bodily harm contrary to Crimes Act, s 52AB(2) – high-speed front-to-rear collision causing victim’s vehicle to leave the road – multiple fractures to left arm of victim – major lacerations to face, head, neck and scalp – vertebral fractures – traumatic brain injury – guilty pleas – 25% discount for utilitarian value of pleas – aggregate sentence of imprisonment for 4 years with non-parole period of 2 years 6 months at first instance – where offender affected by psychosis at time of offence – where accepted by sentencing judge that mental health condition contributed materially to commission of offences – whether sentencing judge failed to take into account reduced moral culpability due to causative link between mental condition and offending in determining objective seriousness of offence – whether sentence manifestly excessive – appeal dismissed

Catchwords:

CRIMINAL LAW – application for leave to appeal against sentence – fraud offences – aggregate sentence – whether in reasons for sentence the trial judge should have considered an intensive correction order – requirements of s 66 Crimes (Sentencing Procedure) Act 1999 – whether offences amounted to a breach of trust – whether trial judge’s finding as to objective gravity open

Catchwords:

CRIME – appeals – appeal against sentence – three co-offenders – money laundering offences – whether error in assessment of the utilitarian value of guilty plea – whether sentence offends parity principles – error established – applicants resentenced

Catchwords:

PRACTICE AND PROCEDURE – amendment of orders

Catchwords:

SENTENCING – appeal against sentence – where applicant pleaded guilty to offence of attempting to possess a border controlled drug – where Crown relied on facts which it said proved applicant was running a drug importation operation – where sentencing judge made findings that applicant was running the collection phase of a drug importation operation – whether sentencing judge impermissibly took into account the applicant’s complicity in importation by way of aggravation

Catchwords:

SENTENCING – Crown appeal – manslaughter – offender on ICO for dangerous driving – consumes ice – drives through pedestrian crossing killing child – sentencing judge failed to address specific deterrence and community protection – sentence of 6 years and 10 months with non‑parole period of 4 years and 6 months manifestly inadequate – offender re‑sentenced

Catchwords:

CRIMINAL PROCEDURE — Stay of proceedings — Application for permanent stay refused by primary judge CRIME — Significant pre-trial publicity in the form of popular podcast and associated reports, which included matters which would be inadmissible at trial and prejudicial to the accused — Whether directions would be sufficient to ameliorate prejudice — Rare circumstances in which pre-trial publicity warrants a permanent stay of criminal proceedings CRIME — Appeals — Interlocutory appeal — By accused against interlocutory judgment — Leave to appeal against refusal of a permanent stay — Further evidence admitted — Whether the primary judge’s discretion miscarried — The primary judge applied the correct test, did not fail to take into account relevant considerations and it was not unreasonable for the primary judge to refuse a permanent stay — Consideration of authorities concerning the grant of a permanent stay and the question of delay — Prejudice to the accused occasioned by pre-trial publicity and delay can be remedied or sufficiently ameliorated — Trust placed by the administration of justice in the ability of jurors to abide by directions

Catchwords:

CRIMINAL LAW — appeal against conviction — trial by jury of child sexual assault — two complainants —evidence of each complainant admitted as tendency evidence with regard to alleged offending against the other complainant — middle-aged applicant of good character in a particular respect with regard to absence of any suggestion of prior child sexual assault or sexual interest in children — character not raised by defence counsel at trial in any respect —deliberate decision of counsel — whether miscarriage of justice established

Catchwords:

CRIMINAL LAW – appeal against sentence - single ground - manifest excess - drug supply - ongoing supply of cocaine - supplying a commercial quantity MDMA - more than a street dealer - strong subjective case - rehabilitation - death of cousins leading to downward spiral - substantial adjustment to standard non-parole period - sentencing discretion - whether sentence plainly wrong or unjust - appeal dismissed

Catchwords:

CRIME — Appeals — Appeal against conviction — Evidence to be used for a tendency purpose not to be admitted unless it has significant probative value — Evidence lacked significant probative value and was inadmissible — Failure to direct the jury as to ways the tendency evidence could be used — Trial judge’s advice or guidance as to inferences which could be drawn by the jury, in the absence of the jury, did not give rise to a reasonable apprehension of bias affecting the decision-maker — Necessary for trial judge to direct the jury as to how evidence of the appellant’s conduct, which was capable of being construed as evidencing consciousness of guilt, could be used — Whether admission of evidence which was prejudicial to the appellant, upon the urging of the appellant’s trial counsel, led to the appellant having an unfair trial — Incompetence of counsel — Operation of proviso excluded CRIME — Appeals — Appeal against sentence — Not addressed as the appeal against conviction allowed and new trial ordered

Catchwords:

CRIME — Appeals — Appeal against sentence — Application for leave to appeal — Whether sentencing judge failed to assess the applicant’s moral culpability — Omission to undertake assessment of moral culpability in reasons does not always warrant intervention by this Court — Manifest excess established — Sentence was unjust as it was grossly disproportionate with the objective and subjective circumstances SENTENCING — Appeal against sentence — Re-sentence — Assessment of objective seriousness and moral culpability — Consideration of connection between offending behaviour and childhood trauma — Finding of special circumstances warranted

Catchwords:

CRIME — Appeals — Appeal against sentence – extension of time required – where applicant is a foreign national whose visa was cancelled following his conviction – where applicant is seeking revocation of that cancellation – where the applicant’s deportation not yet a certainty – whether likelihood of deportation a relevant factor in sentencing – where applicant has been unable to access programs in custody due to visa cancellation – whether subsequent hardship vitiated exercise of the sentencing discretion – no error found – extension of time refused

Catchwords:

SENTENCING – application for leave to appeal out of time – applicant seeks consideration of time spent in custody on other charges that were later withdrawn – time was considered by sentencing judge – Bugmy – tender of additional evidence to show dysfunctional family background – before sentencing judge applicant contended had strong family support – additional evidence inconsistent with case run before sentencing judge – tender of evidence rejected –leave refused

Catchwords:

CRIMINAL LAW – application for leave to appeal against conviction – charges of sexual abuse of children – credibility of prosecution witness who had committed offences of the same kind – claim by witness that he had revealed the whole of his offending – witness subsequently convicted of further offences of the same kind – those convictions relied upon as fresh evidence – whether those convictions could be used as evidence of the witness’s guilt of those additional offences

Catchwords:

CRIMINAL LAW – appeal against interlocutory judgment – double jeopardy – principle of incontrovertibility – subsequent prosecution for perjury would not controvert acquittal at earlier trial at which applicant allegedly perjured himself – stay refused

Catchwords:

CRIMINAL LAW – appeal against sentence – appeal from the Drug Court – s 5AF of the Criminal Appeal Act 1912 (NSW) – where submitted the Drug Court did not determine the initial sentence and final sentence in accordance with the manner required by statute – where submitted that appellant’s background of social deprivation was not properly accounted for in sentencing – appeal allowed – appellant re-sentenced

Catchwords:

CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Where applicant pleaded guilty to one count of manufacturing a large commercial quantity of a prohibited drug as part of a joint criminal enterprise – Whether the applicant’s sentence was manifestly excessive – Serious offending – Substantial maximum penalty – Significant role played by the offender – Necessity for any sentence to reflect principles of general deterrence – Sentence not manifestly excessive CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Where applicant pleaded guilty to one count of manufacturing a large commercial quantity of a prohibited drug as part of a joint criminal enterprise – Parity principle – Whether the applicant had a justifiable sense of grievance in light of the sentence imposed upon co-offender – Where the applicant was found by the sentencing judge to have been slightly less involved than his co-offender – Where the applicant suffered significant injuries as a consequence of an explosion during the course of the offending – Where those injuries constituted extra-curial punishment – Where those injuries would render the applicant’s period in custody more onerous – Other differentiating factors between the applicant’s subjective case and that of his co-offender – Applicant found to be remorseful and to have good prospects of rehabilitation – No such findings made in the case of the co-offender – Leave to appeal granted – Appeal allowed – Applicant re-sentenced

Catchwords:

CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Where applicant found guilty of one count of manufacturing a large commercial quantity of a prohibited drug as part of a joint criminal enterprise – Whether the sentencing judge erred in his findings as to the applicant’s involvement in the offending – Whether the sentencing judge was restricted to taking into account those acts of the applicant which centred upon the actual manufacturing process – Sentencing judge entitled to have regard to all acts undertaken in pursuit of the joint criminal enterprise when assessing the applicant’s role CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Where applicant found guilty of one count of manufacturing a large commercial quantity of a prohibited drug as part of a joint criminal enterprise – Whether the applicant had a justifiable sense of grievance having regard to the sentence imposed on his co-offender – Where co-offender had pleaded guilty to the same offence in circumstances where the applicant had elected to go to trial – Where there were a series of factors which distinguished the respective subjective cases including significant injuries sustained by the co-offender which amounted to extra-curial punishment – Significance of those injuries not reduced by the fact that they were sustained in the course of the offending – No unjustified disparity in the respective sentences imposed – No justifiable sense of grievance established CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Where applicant found guilty of one count of manufacturing a large commercial quantity of a prohibited drug as part of a joint criminal enterprise – Whether sentence manifestly excessive – Significant role played by applicant – Unremarkable subjective case – Serious offending – Need for general deterrence – Sentence not manifestly excessive

Catchwords:

CRIME – Appeal against conviction – Procedural fairness – Duties of trial judge EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – Offences – Application of s244(1) of the Work Health and Safety Act 2011 (NSW)

Catchwords:

CRIMINAL LAW – Appeal against conviction – Juries – Directions to jury – Where applicant was found guilty by a jury of robbery in company and attempting to take and drive a vehicle without consent – Where Crown case was based upon a joint criminal enterprise between the applicant and one other – Where trial judge provided written directions to the jury regarding the elements of each offence in the form of question trails – Where jury retired to the jury room to read the question trails after they were provided – No oral directions subsequently given to the jury in respect of the elements of the offences set out the question trails – No substantive reference to the question trails in the summing-up by the trial judge – Necessity for oral directions to be given – No issue taken by trial counsel – Miscarriage of justice – Error established PRACTICE AND PROCEDURE – Juries – Observations as to the practice of providing written directions to the jury – General necessity for oral directions to accompany written directions – Necessity for a trial judge to emphasise that written directions are supplementary to and not a substitute for oral directions – Observations as to the practice of allowing the jury to retire to the jury room part way through the summing-up to read the written directions for themselves – Practice not one to be encouraged – Necessity to ensure that the jury comprehend directions – Necessity to ensure that a trial be transparent and conducted in public CRIMINAL LAW – Appeal against conviction – Juries – Summing-up of trial judge – Whether trial judge adequately put the defence case to the jury – Where counsel for the accused made a number of substantive submissions to the jury regarding aspects of the evidence – Defence case not adequately put to the jury even giving full weight to the fact that the evidence in the trial had been completed in two days and where the summing-up to the jury followed immediately upon the final address of counsel for the accused – Summary of principles regarding the obligation of a trial judge to put the defence case – No issue taken by trial counsel – Matter going to the root of the proceedings justifying a grant of leave – Miscarriage of justice – Error established

Catchwords:

APPEAL – criminal appeal – sentencing – firearms offences – discount for assistance – whether sentencing judge misled as to significance of assistance and risks incurred – alleged incompetence of counsel

Catchwords:

CRIME — Appeals — Appeal against sentence – manifest excess – “compassionate grounds” related to the health of the applicant’s father – where applicant convicted of domestic violence offences and perverting the course of justice – purposes of sentencing – need for denunciation and general deterrence – leave to appeal refused

Catchwords:

CRIMINAL LAW – sentence appeal – plea of guilty to offences of aggravated break enter and commit serious indictable offence, damage to property by fire and two counts of pervert the course of justice – whether applicant had experienced a disadvantaged background so as to attract the principles in Bugmy v The Queen – analysis by sentencing judge of report by psychologist – whether findings by sentencing judge concerning the psychologist’s report were open to him – no error on the part of the sentencing judge established – leave to appeal granted but appeal against sentence dismissed.

Catchwords:

CRIME - appeals against conviction - joint trial of applicants for sexual offences committed against complainant - applicants were uncles of complainant - prosecution did not allege applicants committed offences as part of a joint criminal enterprise - claim on appeal that requirements for joint trial of applicants under s.29(2) Criminal Procedure Act 1986 were not met - whether applicants consented to joint trial under s.29(2)(a) Criminal Procedure Act 1986 - consideration of ss.21 and 29 Criminal Procedure Act 1986 - held that applicants consented to joint trial - whether miscarriage of justice arising from joint trial of applicants - whether trial Judge gave necessary directions to jury - whether miscarriage of justice arising from prosecutor’s closing address - application of Rule 4 Criminal Appeal Rules - leave granted to one applicant (GX) under Rule 4 - claim of unfairness by GX arising from submissions made by prosecutor to jury concerning from cross-examination of FX where propositions not put to GX in cross-examination - prosecutor’s submission repeated in summing up - no application made by applicants’ trial counsel for further directions - leave granted to GX under Rule 4 and grounds of appeal upheld - convictions quashed and new trial ordered for GX - no other grounds of appeal established - FX refused leave under Rule 4 - FX’s appeal dismissed

Catchwords:

CRIMINAL LAW – sentence appeal – attempted importation of methamphetamine and ephedrine above the commercial quantity – intended ratio of non-parole period to head sentence described by reference to that applying to another offender – whether sentencing judge’s intention correctly expressed – leave to appeal granted – non-parole period adjusted to fit with sentencing judge’s expressed intention.

Catchwords:

SENTENCING — Crown appeal against inadequacy of sentence — murder – House v R error - purposes of sentencing – failure to consider protection of the community from the offender – Veen (No 2) – proportionality of sentence – offender suffering mental illness – offence committed without apparent motive – manifest inadequacy – objective seriousness of offence – poor subjective case – appeal allowed – respondent resentenced

Catchwords:

CRIMINAL LAW – appeal – leave to appeal against conviction – question of mixed fact and law – where applicant convicted of one sexual offence against a child and acquitted of multiple similar offences against that child and another – where guilty verdict depended on complainant’s credibility – whether guilty verdict unreasonable having regard to inconsistency with acquittals on other counts – whether acquittals necessarily indicate the jury had a doubt about complainant’s credibility – Criminal Appeal Act 1912 (NSW), s 6(1)

Catchwords:

CRIME — Appeals — Appeal against sentence — Drug offences — Supply prohibited drug — Large commercial quantity — Comparison of co-offender’s sentence — Parity — Assessment of objective seriousness