Recent decisions for Court of Criminal Appeal

Catchwords:

CRIME – Appeals – Appeal against sentence – Application for leave to appeal – Whether the sentencing judge mistook facts in finding aggravating circumstances for a Form 1 offence – Whether the sentencing judge erred in admitting on sentence, and having regard to, the applicant’s criminal history for offences committed as a child.

Catchwords:

CRIME – appeals – appeal against sentence – manslaughter – where applicant drove motor vehicle towards victims acting in defence of her daughter – whether sentencing judge failed to take into account relevant considerations when assessing objective seriousness – relationship between objective seriousness and moral culpability – identifiable error in the sentencing exercise – applicant re-sentenced.

Catchwords:

CRIME – appeal – interlocutory order – Crown appeal pursuant to Criminal Appeal Act 1912 s 5F(3A) – appeal relating to ruling about admissibility of tendency evidence and severance of counts – where primary tendency asserted in notice did not comprehend certain alleged sexual acts of the respondent – where circumstances of tendency notice strictly confined to complainants indicating that sexual touching and/or digital penetration “unwelcome” – decision by trial judge that counts 16 and 17 pertaining to third female complainant were to proceed separately – ground whether trial judge erred in determining there were exceptional circumstances pursuant to s 97A(5) Evidence Act 1995 that overcame statutory presumption of significant probative value – whether error in in determining that the probative value of the evidence did not outweigh the danger of unfair prejudice – correct decision for different reasons – even assuming counts 16 and 17 had significant probative value as tendency evidence, decision to sever was appropriate due to extreme prejudice in light of specificity of tendency notice – appeal dismissed

Catchwords:

CRIME — appeals — appeal against conviction — miscarriage of justice — whether direction to jury about elements of s 61HE of the Crimes Act 1900 (NSW) erroneous — elements of proving applicant was reckless as to whether complainant consented to sexual intercourse— distinction between advertent and inadvertent recklessness — distinction between subjective and objective recklessness CRIME — appeals — appeal against conviction — unreasonable verdict — where applicant convicted of attempted and actual sexual intercourse with complainant without her consent — where complainant was intoxicated — whether complainant lacked credibility — whether complainant’s evidence unreliable — whether Crown excluded applicant’s version beyond reasonable doubt — whether applicant knew the complainant was not consenting to sexual intercourse

Catchwords:

CRIME – appeals – sentence appeal – where applicant pleaded guilty to numerous property offences – where applicant on conditional liberty at time of offending – new aggregate sentence partly cumulative upon balance of parole – whether error in failure to consider the effect of the applicant’s balance of parole on the “statutory ratio” between total non-parole period and total head sentence – where special circumstances not found – no evidence of express intention to extend ratio beyond 75% – appeal allowed – discussion of issues arising from Kentwell v The Queen and Lehn v R – applicant resentenced afresh – lesser sentence warranted in law CRIME – appeals – sentence appeal – where applicant pleaded guilty to numerous property offences – one count of enter dwelling-house with intent to commit larceny – circumstances of aggravation – whether error in finding the offending was aggravated by the fact that it was committed in a home – discussion of complexities surrounding aggravating factors listed in Crimes (Sentencing Procedure) Act 1999 (NSW) – no error by way of double counting established – breadth of statutory definition of “dwelling-house” – authorities to the effect that concepts underpinning “dwelling-house” and “home” are different CRIME – appeals – sentence appeal – manifest excess – extensive criminal record – offending whilst subject to conditional liberty – history of disciplinary actions in custody – background of profound deprivation – mental illness – drug and alcohol dependence – whether sentence imposed failed to reflect appropriate consideration of the applicant’s disadvantaged upbringing and history of abuse – difference between satisfaction that sentence imposed is manifestly excessive and satisfaction that lesser sentence is warranted in law on resentence – sentence imposed not manifestly excessive

Catchwords:

CRIME – appeals – appeal against aggregate sentence – four counts involving two complainants of assaulting a female and committing an act of indecency on a person under the age of 16 years – whether sentencing judge gave consideration to reducing the applicant’s moral culpability due to his age at the time of offence – where applicant did not make submissions on his age and immaturity – sentencing judge still reduced the applicant’s moral culpability – no error shown - whether sentencing judge had failed to find remorse – where no submission made by applicant to sentencing judge regarding remorse - where applicant had previously apologised to one complainant – no other statement or indication of remorse - apology did not show that applicant had accepted responsibility for his action – no error shown CRIME – appeals – appeal against sentence – manifest excess – whether indicative sentences were excessive resulting in manifestly excessive aggregate sentence - where the offences constituted serious offending against two young and defenceless victims – where a generous reduction of the non-parole period was granted – indicative sentences and the aggregate sentence were open to the sentencing judge – sentence not manifestly excessive EVIDENCE – new evidence – evidence sought to be led on appeal which was not before sentencing judge – where applicant submitted a miscarriage of justice resulted from the absence in the sentencing proceedings of new evidence – new evidence related to a conviction recorded against the applicant in 1975 – where applicant submitted that the new evidence demonstrated his mental health issues relating to offences against second complainant – new evidence did not add anything of substance to evidence before sentencing judge – new evidence did not make any link or material contribution to the applicant’s offending – where sentencing judge had reduced the applicant’s moral culpability on account of his mental health – no miscarriage of justice - evidence rejected

Catchwords:

CRIME – appeals – Crown appeal against sentence – manifest inadequacy – offence of aiding and abetting an attempt by others to possess a commercial quantity of unlawfully imported border-controlled drugs – where the sentencing judge erred by treating the respondent’s bail conditions as “quasi-custody” and backdated the sentence – respondent’s impressive and substantial progress towards rehabilitation – Court’s exercise of residual discretion not to interfere

Catchwords:

CRIME — appeals — appeal against sentence — failure to take into account a relevant consideration — whether sentencing judge failed to address matters raised in guideline judgments — whether sentencing judge erred in assessing objective seriousness CRIME — appeals — appeal against sentence — whether sentencing judge erred in assessing objective seriousness — where sentencing judge made an error of fact as to gravity of victim’s injuries CRIME — appeals — appeal against sentence — failure to take into account a relevant consideration — relevance of applicant’s prior offending — relevance of applicant’s history of domestic abuse and alcohol abuse — possibility of extra-curial punishment — whether sentencing judge erred in assessing subjective circumstances CRIME — driving offences — aggravated dangerous driving occasioning grievous bodily harm — intoxication — application of guideline judgments — where applicant lacks characteristics of the frequently occurring case referred to by guideline judgments

Catchwords:

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

Catchwords:

APPEALS – crime – appeal against conviction – unreasonable verdict – sexual intercourse without consent – whether inconsistent complainant testimony – whether deficiencies in complainant testimony – evidence of lawfully recorded conversation – whether verdicts cannot be supported having regard to the evidence APPEALS – crime – appeal against conviction – unreasonable verdict – possess child abuse material – circumstantial case – absence of direct evidence – whether Crown failed to exclude the reasonable possibility that the applicant was not knowingly in possession of child abuse material

Catchwords:

CRIME – appeals – appeal against conviction – applicant convicted of assault occasioning actual bodily harm against stepson – acquitted of common assault – whether verdict unreasonable having regard to the evidence CRIME – appeals – appeal against conviction – aggravated sexual intercourse without consent against twelve-year-old stepdaughter – evidence of particular long-standing sexual arrangement between applicant and wife – evidence that applicant knew his wife was not home at the time of offending – whether sufficient evidence to establish an honest subjective belief – whether any such belief could be reasonably held – whether failure to leave the defence of honest and reasonable mistake of fact caused a miscarriage of justice

Catchwords:

CRIME – appeals – appeal against sentence – severity appeal – ongoing sexual offending by applicant against his stepdaughters – extremely serious offending – totality considerations – principles in Mill v The Queen – whether aggregate sentence is affected by erroneous sentence indicated for particular count – whether error had the capacity to influence the aggregate sentence – where not possible to conclude error could not have affected the aggregate sentence – sentencing discretion exercised afresh – regard to conditions experienced by persons in custody – applicant’s subjective case – extremely deprived upbringing – lengthy criminal history – where applicant on conditional liberty at the time of offending – where no lesser sentence other than that imposed by the sentencing judge is warranted – leave to appeal granted – appeal dismissed

Catchwords:

CRIME — appeals — appeal against conviction — miscarriage of justice — whether trial judge’s failure to recuse herself and abort trial resulted in a miscarriage of justice — where new evidence raised mid-trial — where defence would have conducted their case differently had the evidence been raised before trial — whether failure to vacate had a prejudicial effect — whether appellant was denied a fair trial CRIME — appeals — appeal against conviction — unreasonable verdict — whether conviction of child sexual assault offences could not be supported having regard to the evidence — whether inconsistencies in the complainant’s evidence raised reasonable doubt about the applicant’s guilt — where complainant signed a retraction statement — where applicant subsequently admitted offending conduct to members of his own family CRIME — appeals — appeal against sentence – extension of time in which to appeal — whether extension of time for leave to appeal against sentence ought be granted — where applicant suffers from terminal illness — whether fresh evidence of terminal illness ought be received — whether applicant was suffering from terminal illness at time of sentencing — where applicant has been released on parole

Catchwords:

CRIME – sentencing – finding of special circumstances – “very minor adjustment” of non-parole period intended – no adjustment downwards, but slight increase in default ratio of non-parole period to head sentence – need to re-exercise sentencing discretion – manner of re-exercising discretion where parties do not challenge aspects of sentencing judge’s findings

Catchwords:

CRIME – appeal against conviction – leave to appeal– challenge to jury directions – no objection taken at trial to proposed directions – no redirection or further direction sought – whether miscarriage of justice – application of Supreme Court (Criminal Appeal) Rules 2021, r 4.15 CRIME – miscarriage of justice – tendency evidence – context evidence – single count indictment – evidence of uncharged incident admitted as tendency and context evidence – jury directed to disregard evidence of uncharged incident if not satisfied it occurred – whether jury required to be directed that doubt as to uncharged incident should be considered in assessing complainant’s evidence as to charge – inconsistency between Markuleski direction and proper consideration of tendency evidence and context evidence

Catchwords:

CRIME – appeal against sentence – s 66EA offence – jury trial – fact finding after trial – obligation to find facts consistent with the verdict of the jury – where sentencing judge accepted the evidence of the complainant as reliable – no basis advanced by applicant before sentencing judge to distinguish aspects of the complainant’s evidence – sentence imposed on the basis that whole of complainant’s evidence accepted – application raising a point not made at first instance – delay in bringing application significant and not fully explained – extension of time refused

Catchwords:

CRIME — Appeals — Application for leave to appeal against sentence — Persistent sexual abuse of a child — Sentence after trial — Fact finding on sentence

Catchwords:

LAND LAW – Indigenous land rights – Indigenous person charged under State law with possessing abalone without licence or permit – Section 211 of the Native Title Act 1993 (Cth) – Immunity from application of restrictive laws requiring licence or permit – Meaning of carrying on activity for the purpose of satisfying personal, domestic or non-commercial communal needs – Meaning of fishing, gathering or a cultural or spiritual activity EVIDENCE – Burden of proof – Criminal proceedings – Burden and standard of proof of a defendant who invokes s 211 – Statutory exception to general rule – Legislative intent for immunity to be capable of practical and ready exercise by native title holders – Legal burden on person seeking to make out claim against native title holder JUDGMENTS AND ORDERS – Court of Appeal – Decision of intermediate appellate court of another State interpreting Commonwealth legislation – Principles as to departing from such a decision – Whether previous decision of South Australian Court of Appeal plainly wrong

Catchwords:

CRIME – appeals – appeal against sentence – Commonwealth and State offences - whether a mathematical error made when considering or applying the totality principle – whether sentence for the State offence is manifestly excessive – leave to appeal granted – resentence

Catchwords:

CRIMINAL PROCEDURE – Indictment – where Crown case relied on multiple potential principals and several instances of alleged provision of financial advice in proof of a single count of contravening ss 911B(1) and 1311(1) of the Corporations Act – where trial judge had declined to quash or permanently stay indictment – whether the identification of multiple principals failed to allege an offence known to law – whether the identification of multiple principals was in contravention of the rule against duplicity – whether the identity of the principal is a factual matter that must be pleaded in order to avoid uncertainty in the charge – whether the number of potential principals and instances of provision of alleged advice was an abuse of process. CRIMINAL PROCEDURE – Indictment – where indictment did not address the exculpatory condition in s 911B(1)(e) – whether indictment fails to aver an offence known to law by failing to allege all of the necessary conditions to make out an offence.

Catchwords:

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

Catchwords:

CRIME — appeals — appeals against sentence — whether sentencing judge failed to make findings regarding mitigating factors under s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) —— whether reasons inadequate — error resulting in re-sentence — no lesser sentence warranted

Catchwords:

CRIME – appeals – appeal against sentence – two drug and proceeds of crime offences – possess commercial quantity of cocaine – where primary issue before the sentencing judge was non-exculpatory duress – duress found in favour of the applicant – moral culpability reduced by reason of duress – whether sentencing judge required to separately consider mental health – applicant diagnosed with persistent depressive disorder and trauma/stress related disorder – connection between mental health and offending raised in applicant’s written and oral submissions – held sentencing judge overlooked evidence concerning mental health – failed to consider the issue of moral culpability by reason of mental health – direct nexus between applicant’s mental health and the offending – appeal allowed – applicant resentenced to a lesser sentence

Catchwords:

CRIME – appeals – appeal against conviction – murder – joint criminal enterprise – basic and extended relied upon by Crown – directions to jury – where Crown case at trial alleged that the applicant and co-offenders had accepted a contract to kill – person fatally shot – applicant not the shooter – where deceased not the intended target – where jury directed that necessary mental element for murder established even though someone other than the deceased was the intended target – whether error in failing to direct jury that the killing or serious injury of the deceased had to be agreed to or foreseen by the applicant – transferred malice – nothing further required to be proven beyond orthodox elements of murder and joint criminal enterprise – no miscarriage of justice occasioned CRIME – appeals – appeal against conviction –unreasonable verdict – murder – separate count of shoot with intent to murder – whether guilty verdicts were open on the evidence adduced at trial – circumstantial case – credibility of civilian witnesses – where applicant took steps to conceal his involvement – admissions – acceptance of circumstantial fact that applicant attended rear door of premises whilst armed after initial shots fired – well open to jury to return verdicts of guilty on both counts – appeal dismissed

Catchwords:

CRIME — appeals — appeal against conviction — inconsistent verdicts — whether guilty verdict on count of aggravated indecent assault was inconsistent with acquittal on count of aggravated sexual assault — where sole evidence of both counts was that of the complainant — where the two counts allegedly occurred in sequence — whether there was a rational explanation for the different verdicts CRIME — appeals — appeal against conviction — unreasonable verdict — whether guilty verdicts could be supported having regard to the evidence — where large majority of the evidence was that of the complainant — where there were inconsistencies in complainant’s evidence — whether complainant’s evidence lacked credibility — whether it was unreasonable for the jury to accept the complainant’s version — where complainant was a 14-year-old indigenous boy

Catchwords:

CRIME – appeals – appeal against conviction –child sexual offences – judge alone trial – requirements in relation to reasons of the trial judge – Liberato direction – good character direction – whether error in failing to apply all aspects of directions – whether failure to explain how the second limb of each of the Liberato direction and the good character direction were taken into account in reaching the conclusion that the appellant was guilty on each relevant count – whether verdicts of guilty unreasonable – convictions set aside – new trial ordered

Catchwords:

CRIME – Appeals – Appeal against sentence – Application for leave to appeal – Whether the sentencing Judge erred in finding aggravation by reason of the age of the victims – Whether the sentencing Judge erred in his consideration of the age of the victims – Whether the sentencing Judge erred in not giving reasons for finding aggravation.

Catchwords:

CRIME – Appeals – Interlocutory appeal – By accused against interlocutory judgment made during trial – Appeal made under Criminal Appeal Act s 5 F following conviction – Where accused had agreed to a plea bargain then successfully sought for his conviction to be set aside – Where Crown then brought more serious charges resulting in a conviction – Where primary judge declined to grant a permanent stay on the basis that the proceedings brought the administration of justice into disrepute –Whether the interlocutory decision had merged into the conviction – Whether leave to appeal should be granted – Whether the subsequent proceedings were oppressive

Catchwords:

CRIME – appeals – appeal against sentence – two charge sets comprising seven counts – assault occasioning actual bodily harm, sexual intercourse and record an intimate image without consent – influence witness, aggravated detain and intentionally choke – where applicant reported traumatic childhood characterised by domestic and sexual violence – where applicant diagnosed with drug use disorders, PTSD and anti-social and borderline personality traits – whether sentencing judge failed to consider mental health and Bugmy factors – where sentencing judge reduced moral culpability by reason of Bugmy factors – where sentencing judge made a finding of special circumstances – ex tempore judgment – sentencing judge is not obliged to refer to every part of a psychological report – no submission about a causal connection between mental health and the offending was made – sentencing judge did not err by giving weight to general and specific deterrence given the applicant’s criminal record – no error – ground rejected CRIME – appeals – appeal against sentence – where parties had previously agreed to film their sexual activity – where parties’ sexual relationship involved dominating and degrading behaviour – applicant filmed sexual activity whilst the complainant was unconscious – whether sentencing judge erred in finding of objective seriousness – whether nature of the parties’ sexual relationship ought to have reduced objective seriousness – sentencing judge’s findings of fact accorded entirely with agreed statement of facts – agreement to film sexual activity did not extend to sexual intercourse whilst the complaint was unconscious – sentencing judge did not err by finding that the sexual intercourse was accompanied by degrading and violent acts – determination open to his Honour – ground rejected CRIME – appeals – appeal against sentence – manifest excess – where applicant contends indicative sentences for sexual intercourse without consent were excessive – challenge can only be made to the aggregate sentence – indicative sentences open to sentencing judge – comparable cases of limited utility given number of offences and seriousness of present offending – offending involved serious domestic violence over a six month period – sentence not plainly unjust – ground rejected – sentence appeal dismissed

Catchwords:

CRIME – appeals – appeal against conviction – attempt to possess marketable quantity of border controlled drug – where appellant attempted to gain possession of consignment sent from the Republic of South Africa – parcel interior lined with cocaine – consignee name slightly different from that of the appellant – addressed to apartment block resided in by the appellant but different unit number – earlier uncharged consignment sent from the Republic of South Africa using same altered name and incorrect unit number admitted as coincidence evidence – whether miscarriage of justice occasioned by decision to admit coincidence evidence – where proceedings commenced prior to statutory test being amended – whether probative value “substantially outweighs” prejudicial effect – evidence correctly admitted – appeal dismissed

Catchwords:

CRIME – Appeals – appeal against sentence – where total effective sentence of 29 months ordered – where combined period of custodial sentence and recognizance release order exceeded 3 years – whether sentencing judge erred having regard to the proper construction of Crimes Act 1914 (Cth), s 19AC CRIME – Appeals – appeal against sentence –impact of any period of custody on the applicant’s rehabilitation – where custodial sentence imposed – whether the sentencing judge erred having regard to Crimes Act 1914 (Cth), s 16A(2AAA) CRIME – Appeals – appeal against sentence – whether manifest excess

Catchwords:

CRIME – appeals – appeal against conviction – miscarriage of justice – directions to jury – tendency evidence – where tendency alleged was constituted by charged and uncharged acts – where no objection to directions raised at trial – whether jury should have been directed that tendency evidence comprised of the complainant’s own allegations could not be used as tendency evidence for the very same count or for any of the counts concerning that complainant – whether jury should have been directed that lack of satisfaction of any of the counts at the tendency stage would mean that a not guilty verdict should be returned in relation to that count – whether circumstances warranted a direction pursuant to s 161A(3) of the Criminal Procedure Act 1986 (NSW) CRIME – appeals – appeal against conviction – miscarriage of justice – directions to jury – complaint evidence – whether jury should have been directed that complaint evidence could only be used for its credit purpose and not for its truth purpose – where no objection to directions raised at trial – where no limitation placed on use of complaint evidence pursuant to s 136 of the Evidence Act 1995 (NSW) CRIME – appeals – appeal against sentence – manifest excess – where Applicant sentenced in relation to 34 counts which varied in duration and seriousness and related to a wide range of vulnerable victims

Catchwords:

CRIME – appeals – failure to leave to the jury alternative verdict of manslaughter based on excessive self-defence in s 421 Crimes Act 1900 (NSW) – whether failure caused a miscarriage of justice – where applicant pleaded guilty to manslaughter and not guilty to murder in front of the jury – applicant convicted of murder as part of a joint or extended joint criminal enterprise – where no expert evidence proving which of the accused committed the act causing death – whether evidence capable of supporting an alternative verdict of manslaughter – whether evidence capable of supporting formation of a tacit agreement to act in concerted self-defence – whether failure to leave excessive self-defence caused substantial miscarriage of justice CRIME – appeals – statutory interpretation – excessive self-defence – meaning of “force that involves the infliction of death” in s 421 Crimes Act 1900 (NSW) – whether something less than a direct causal connection is required to raise the partial defence – whether distinction between the use of force that involves the infliction of death and force that causes death

Catchwords:

CRIME – appeal – appeal against conviction – unreasonable verdict – murder – accessory before the fact – where Crown case was that the applicant and his brother had procured the assault on the deceased – where the jury’s advantage in having seen and heard the evidence was “slight” – circumstantial case – question as to whether the Crown has excluded any inference consistent with innocence that was reasonably open – combined effect of the evidence to be considered – capacity of the evidence to prove the particularised acts of assistance – finding of doubt as to the guilt of the applicant – leave to appeal granted – appeal allowed – verdict of acquittal entered

Catchwords:

CRIME – appeals – appeal against sentence – initial suspended sentence in the Drug Court of New South Wales – where Drug Court Program terminated due to further offending – whether final sentence affected by errors relating to parity, totality and delay – whether sentence manifestly excessive – appeal dismissed

Catchwords:

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

Catchwords:

CRIMINAL PROCEDURE – Court suppression and non-publication orders – Grounds – Open justice – Presumption in favour of open justice – Inutility in making orders under Act where there are other mechanisms having similar effect – Where limited order “necessary” to prevent prejudice to administration of justice CRIMINAL PROCEDURE – Court suppression and non-publication orders – Grounds – Undue distress and embarrassment – Where undue distress and embarrassment is asserted by well known relative of applicant – Insufficient reason to order non-publication or suppression MEDIA AND COMMUNICATIONS – Open justice – Access to court files – Application for access – Where court proceedings occurred in open court – Access to file granted

Catchwords:

CRIME – Appeals – Appeal against sentence – Application for leave to appeal – Whether the sentencing Judge erred in finding aggravation by reason of the age of the victims – Whether the sentencing Judge erred in his consideration of the age of the victims – Whether the sentencing Judge erred in not giving reasons for finding aggravation.

Catchwords:

CRIMINAL LAW - Bail - Where applicant charged with murder and refused bail - Where application made for review of bail determination - Whether exceptional circumstances justified grant of bail - Where Crown relied upon circumstantial case along with confessions made by applicant to an undercover operative - Where Crown case not properly described as weak - Exceptional circumstances not made out

Catchwords:

APPEALS – employment and industrial law – work health and safety – time limit for SafeWork NSW to commence prosecution under s 232 Work Health and Safety Act 2011 (NSW) – whether proceedings commenced in time – when SafeWork NSW had notice of the offence in s 32 Work Health and Safety Act 2011 (NSW) – the meaning of the phrase “exposes an individual to a risk” in s 32(c) Work Health and Safety Act 2011 (NSW)

Catchwords:

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

Catchwords:

CRIME — appeals — appeal against conviction — alleged significant forensic disadvantage by reason of delay in prosecution — where applicant convicted of murder four decades after offending conduct — whether trial judge erred in failing to direct himself pursuant to s 165B of the Evidence Act 1995 (NSW) CRIME — appeals — appeal against conviction — application of proviso — whether trial judge’s erroneous use of lies as evincing a consciousness of guilt gave rise to a substantial miscarriage of justice — whether applicant’s guilt was proved beyond reasonable doubt on admissible evidence notwithstanding error CRIME — appeals — appeal against conviction — lies as evidence of consciousness of guilt — where Crown at trial identified five lies it intended to rely on for such purpose — whether trial judge erred in relying on other lies — whether trial judge’s reasons why lies supported a consciousness of guilt were inadequate — application of Edwards v The Queen (1993) 178 CLR 198 — use of lies in criminal proceedings CRIME — appeals — appeal against conviction — unreasonable verdict — whether verdict of guilty of murder following trial by judge alone was unreasonable — where Crown case was wholly circumstantial — whether hypothesis consistent with innocence was excluded beyond reasonable doubt

Catchwords:

Criminal law – Appeal against conviction – Circumstantial case – DNA evidence – Appellant’s DNA recovered from vulval swabs and the child’s clothing – Whether presence of the appellant’s DNA could have been the subject of secondary or indirect transfer – Whether the jury’s verdict was unreasonable – Whether the jury ought to have had a reasonable doubt about the appellant’s guilt Evidence – Admissions – Assessment of probative value – Where probative value is outweighed by danger of unfair prejudice – Exclusion of evidence under s 137 of the Evidence Act

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict – whether verdict of not guilty on one count was inconsistent with verdict of guilty on the other count and thus the guilty verdict was unreasonable – whether verdict of not guilty only explicable on basis that the jury rejected or had at least a reasonable doubt about the complainant’s credibility – there was a rational explanation for the verdict of not guilty that did not depend on rejecting or having a reasonable doubt about the complainant’s credibility – appeal against conviction dismissed

Catchwords:

CRIME – appeals – appeal against sentence – totality – whether the principle of totality was applied to overall terms of imprisonment – concurrency and accumulation where the applicant is serving a sentence for unrelated matters – error established – re-sentenced

Catchwords:

CRIMINAL APPEALS – District Court convicting of summary or back up offence after trial – appeal under ss 5AD and 5AA Criminal Appeal Act – appeal in strict sense – where error of law must be established – amended grounds of appeal – where appellant convicted of negligent driving occasioning death – appellant a police officer involved in pursuit of motorbike – whether judge erred in failing to determine whether she took into account course of driving – where judge referred to earlier driving but found negligence at the time of the collision – no substance to ground of appeal – whether judge erred in finding negligence where there was no evidence that appellant failed to keep a safe distance – ample evidence to justify finding – whether primary judge took into account an irrelevant consideration – police safe driving policy – appellant’s knowledge of driving in breach of part of policy and pursuit guidelines – whether judge did not refer to other breaches of the policy – whether judge failed to provide adequate reasons – judgment brief but provided amply adequate reasons

Catchwords:

CRIME – appeal – appeal against sentence – whether sentencing judge erred in failing to consider the effect of the applicant’s youth on the offending – relevance of youth – applicant’s age – multiple property and violence offences – strong subjective case – disadvantaged upbringing – where the applicant had received “little caregiver supervision during adolescence to positive[ly] guide his social and moral development” – Bugmy principles enlivened to a significant extent – youth and childhood deprivation are separate considerations – totality – complex sentencing exercise – instinctive synthesis – consideration of the Henry guideline – “indicia of adult behaviour” an unhelpful appellation – manifest excess – error found – sentencing discretion exercised afresh – re-sentence

Catchwords:

CRIMINAL LAW - appeal against sentence - dishonestly obtaining financial advantage by deception - fresh evidence relied upon on appeal - heart condition - sentenced on expectation he wold receive particular level of medical care in custody - alleged failures by Justice Health - provision of medication - issues with heart transmission device - fresh evidence not indicative of a standard of medical care below expectation of sentencing judge - stable prognosis - appeal dismissed

Catchwords:

CRIME — appeals — appeal against sentence — whether attempt to stop co-offenders during murder — whether breach of rule in Browne v Dunn — no unfairness from any such breach — assessment of objective seriousness of offence — whether sentencing judge adequately took account of ADHD — ADHD not relevant to offence — whether sentencing judge took account of COVID-19 — COVID-19 issue not material — whether sentence was disproportionately harsh — sentence was proportionate to sustained and brutal murder of defenceless child

Catchwords:

CRIME — appeals — appeal against conviction — offences of sexual intercourse without consent — whether jury’s guilty verdicts unreasonable — where complainant alleged to have been “emotionally changeable” — where complainant’s version said not to account for period in which appellant at complainant’s house — where complainant’s accounts to others said to be inconsistent with charged offences — where complainant said to have curated evidence CRIME — appeals — appeal against conviction — offences of sexual intercourse without consent — application made at trial to re-call complainant pursuant to Criminal Procedure Act 1986 (NSW), s 306J to give further evidence about her interactions with others after alleged assaults — whether trial judge erred in refusing to grant leave pursuant to s 306D — whether miscarriage of justice occasioned by trial judge giving a direction on “lies”

Catchwords:

CRIME – appeals – appeal against sentence – aggregate sentence of 9 years imprisonment, with a non-parole period of 5 years and 4 months for 12 offences of dishonestly obtaining financial advantage by deception – whether sentence manifestly excessive – highly favourable subjective case – early plea of guilty – assistance to authorities – total fraud in excess of $3.3 million – offending took place over some 3½ years – many victims elderly – substantial financial harm and emotional distress inflicted on victims – consideration of comparable cases – appeal dismissed

Catchwords:

CRIME – Appeal and Reviews – Referral under Part 7 Crimes (Appeal and Review) Act 2001 – Court’s own motion – Dealt with on appeal. CRIME – Appeals – Appeal against conviction – Miscarriage of justice – Whether additional psychiatric evidence heard on appeal was fresh evidence or new evidence – Whether a miscarriage of justice occurred due to the absence of the additional psychiatric evidence at the appellant’s trial – Whether such additional evidence is capable of establishing a reasonable doubt about the appellant’s guilt. CRIME – Appeals – Appeal against sentence – Where three life sentences were imposed – Whether additional psychiatric evidence heard on appeal was fresh evidence or new evidence – Whether a miscarriage of justice occurred due to the absence of the additional psychiatric evidence in the appellant’s sentencing proceedings – Whether such additional evidence, if available to the sentencing Judge, would have resulted in a lesser sentence.

Catchwords:

CRIME – appeals – appeal against sentence – SENTENCE – sexual assault (child) – manifest excess – whether sentencing judge failed to consider impact of mental health on assessment of moral culpability and deterrence

Catchwords:

CRIME – procedure – interlocutory appeal – application for permanent stay – applicant unfit to stand trial – special hearing directed – charges related to historical sexual misconduct – refusal by trial judge to grant permanent stay – reliance on applicant’s mental and physical condition – whether judge erred in not finding that special hearing would be an affront to common humanity – risk that hearing would exacerbate applicant’s mental and physical conditions – no forensic disadvantage identified

Catchwords:

CRIME – appeals – appeals against sentence – one count of aggravated break and enter with intent to commit a serious indictable offence and two counts of use offensive weapon with intent to commit an indictable offence – alleged error in applying the discount for the applicant’s guilty pleas to aggregate sentence rather than indicative sentences – alleged error in finding that that there was the actual intentional use of a knife to slash across the victim’s torso – ground 2 upheld – applicant re-sentenced

Catchwords:

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

Catchwords:

CRIME – Appeals – appeal against sentence – dangerous driving causing death – where the statutory element of aggravation is excessive speed – whether the sentencing judge conflated the statutory element of aggravation with the circumstance of aggravation being driving under the influence of methylamphetamine – whether the applicant’s mental health conditions materially contributed to the offending – giving practical effect to a finding of special circumstances – variation to the statutory ratio should meaningfully reflect the period of parole required to sufficiently address rehabilitation – appeal upheld – re-sentence

Catchwords:

CRIMINAL LAW – sentencing – prosecution appeal – child sexual offences – whether aggregate sentence was manifestly inadequate – objective gravity of the crime – whether Court should exercise residual discretion not to intervene

Catchwords:

SENTENCING – appeal against sentence – whether open to the sentencing judge to find that the male victim suffered “life threatening injuries” – whether permissible to take into account a further offence on a Form 1 document in assessing and determining the objective seriousness of a principal offence – s 15 Children (Criminal Proceedings) Act 1987 (NSW) – admissibility of juvenile criminal record

Catchwords:

CRIMINAL LAW – leave to appeal interlocutory decision of District Court setting aside subpoenas issued by applicant and refusing to grant applicant leave to issue further subpoena – relevance of delay on sentence – delay as a mitigating factor – no error established – application refused

Catchwords:

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

Catchwords:

CRIME – appeal against sentence – child sexual assault offences – where indicative term for a count relating to anal penetration was higher than the indicative term for counts relating to vaginal penetration – where applicant argues this indicates error by sentencing judge – whether ratio of indicative sentences establishes error – question of manifest excess

Catchwords:

ENVIRONMENT AND PLANNING — Offences — Clearing native vegetation — Application by prosecutor for leave to appeal against interlocutory order or judgment — Appeal from Land and Environment Court — Case management provisions

Catchwords:

CRIME – appeals – appeal against sentence – whether time in custody partly referable to other offending – whether failure to properly consider all pre-sentence custody – resentence CRIME – sentencing – pre-sentence custody – effect of s 24(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – where Pt 2 Div 3 non-custodial penalty imposed – whether s 24 applies to non-custodial penalties

Catchwords:

CRIMINAL LAW – Crown appeal against sentence – twenty two offences against eight victims – victims all children – reduced moral culpability of offender because of his deprived upbringing – evidence of long term adverse psychological effect on victims – offences involving threats and violence – each offence regarded as a serious example of an offence of that kind – offender also a victim of sexual assaults as a child – whether aggregate sentence manifestly inadequate – application of principles relating to Crown appeals – need for sentences to reflect the objective seriousness of offending – aggregate sentence manifestly inadequate – no application of residual discretion – need to re-sentence.

Catchwords:

CRIME - appeal - conviction - fresh evidence not available at trial – miscarriage of justice - whether significant possibility jury acting reasonably would acquit appellant

Catchwords:

CRIME – appeals – appeal against sentence – armed robbery – whether sentencing judge erred in failing to take account of the effect of the applicant’s mental health on the onerousness of full-time custody – where applicant suffers complex PTSD as a result of grave offences committed against him in juvenile detention – sentencing not reduced to “tick a box” process – necessary for sentencing judge to engage with significant submissions – topic of custody being more onerous because of applicant’s mental condition not specifically addressed – appeal allowed – applicant resentenced

Catchwords:

CRIME – appeal pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) – historical sexual acts – where female teacher maintained a sexual relationship with a child – where appellant pleaded guilty in the District Court – whether the conviction was a miscarriage of justice – whether appellant was convicted of a charge founded upon charges for which the appellant could not lawfully be convicted

Catchwords:

CRIME – Appeals – Appeal against sentence - By Crown against inadequacy – child sex offence – using a carriage service to “groom” a person under 16 years of age – whether wrong sentence was imposed – where s 20(1)(b)(iii) of the Crimes Act 1914 (Cth) is invoked – meaning of “exceptional circumstances” – in what circumstances does the “exceptional circumstances” test apply – whether sentencing judge erred in finding there were exceptional circumstances – whether the respondent voluntarily withdrew from the offending – whether the respondent’s conduct amounted to cooperation such that a five percent discount was warranted –respondent is of prior good character – respondent maintained a plea of not guilty and failed to show contrition or remorse – suspended sentence remains a sentence of imprisonment – where the Director sought leave to withdraw submission – leave not granted – appeal dismissed

Catchwords:

CRIME – appeals – sentence – where applicant pleaded guilty to multiple child sex offences and offences of physical assault after one day of trial – sentencing judge applied no discount in relation to one count – error conceded – error as to maximum penalty and standard non-parole period also conceded – question of whether any lesser sentence should be imposed – grave course of offending over many years – multiple child victims

Catchwords:

CRIME – appeal against conviction – whether miscarriage of justice because of representation at trial – whether defence conducted contrary to applicant’s instructions – whether self-defence not advanced – whether applicant not permitted to give evidence – whether letters written by applicant not given to judge – no miscarriage of justice

Catchwords:

CRIMINAL LAW – sentencing – commercial drug importation – hardship to third parties – no requirement to establish exceptional hardship – gloss on plain language of Commonwealth sentencing statute – where sentencing Judge applied principles established at time of sentencing – where Court of Criminal Appeal subsequently held earlier authorities plainly wrong – ground of appeal established – applicants re-sentenced – whether applicant a “principal” – relevant considerations – not necessary to determine ground of appeal – applicant’s role substantial and possibly managerial

Catchwords:

CRIME – appeals – appeal against sentence – four separate sets of offences – possess unauthorised pistol – appeal against sentence – where Crown did not elect to proceed on indictment for Table 2 offence but sentencing judge relied upon indictable maximum penalty instead of summary maximum penalty – Crown conceded error – resentence

Catchwords:

CRIME – appeals – appeal against sentence – attempt to import commercial quantity of border-controlled drug – ground of appeal based upon Totaan v R [2022] NSWCCA 75 – sentencing judge did not accept hardship to family as exceptional and held it thus did not operate to reduce significantly the otherwise appropriate penalty – Crown conceded “Totaan error” – hardship to family and dependents taken into account – parity with co-offenders considered – applicant resentenced

Catchwords:

CRIME – appeals – appeal against conviction – fraud – dishonestly obtaining financial advantage by deception – offender overpaid herself salary, overtime and superannuation – problem gambling – evidence of offender’s ATM withdrawals at casino – whether relevant and not unfairly prejudicial EVIDENCE – cross-examination – whether trial judge erred in not allowing defence questions directed to motivation to lie – whether questioning capable of supporting an inference that witness had motivation to lie – questions peripheral and not capable of supporting the inference sought by the defence CRIMINAL PROCEDURE – appeal – directions to jury – jury directed that monetary amount in each count on the indictment need not be proven beyond reasonable doubt – particulars are not elements of offence – only elements required to be proved beyond reasonable doubt CRIMINAL PROCEDURE – appeal – directions to jury – whether summing up unbalanced – summation to be examined as a whole – whether trial judge dismissive of defence case

Catchwords:

CRIME – Appeals – Appeal against conviction – whether jury verdict unreasonable – collision between applicant’s and deceased’s vehicles – where applicant convicted of dangerous driving occasioning death while under influence of intoxicating liquor against Crimes Act 1900 (NSW) s 52A(1)(a) – defences – where applicant relied on defence under Crimes Act s 52A(8) that death not in any way attributable to his intoxication – where applicant bore onus of proving defence on balance of probabilities – whether jury bound to find defence proven on whole of evidence – whether only available finding was that collision occurred in applicant’s lane and therefore not attributable in any way to applicant’s intoxication – assessment of evidence – whether jury bound to find eye witness’s account unreliable – jury’s advantage in assessing witnesses – assessment of expert evidence – validity of assumptions made by experts

Catchwords:

CRIME – Murder – s 18(1)(a) Crimes Act 1900 (NSW) – Attempted robbery whilst armed with a dangerous weapon – s 97(2) Crimes Act CRIME – Constructive murder – Joint criminal enterprise – Extended joint criminal enterprise – Elements of constructive murder – Whether trial judge erred in directing jury – Not necessary that the act causing death must be done by the accused, or be within the scope of a joint criminal enterprise – Acts of those involved in the JCE are attributed to each other – No further mental element required as regards death DEFENCES – Self-defence – Availability to constructive murder – Self-defence unavailable EVIDENCE – Tendency evidence – Test for admitting tendency evidence – Significant probative value within the meaning of s 97(1)(b) Evidence Act 1995 (NSW) – Balancing with unfair prejudice under s 101 Evidence Act – Unnecessary to identify specific reasons behind tendency – Importance of framing tendency – Levels of generality – Danger in framing tendency evidence in too wide or narrow a manner – Evidence has significant probative value – Evidence unlikely to unfairly prejudice applicant – Applicant did not seek further directions on the point at trial SENTENCE – Whether sentence was manifestly excessive – Need to tailor sentence for constructive murder to circumstances of the case – Serious offence – Multiple aggravating factors – Lack of remorse or insight into moral culpability – Sentence not manifestly excessive

Catchwords:

CRIMINAL LAW – appeal – appeal against conviction – sexual touching contrary to 66DB(a) Crimes Act 1900 (NSW) – aggravated detention with intent to obtain advantage contrary to s 86(2)(b) Crimes Act 1900 (NSW) – whether Crown’s closing address caused a miscarriage of justice – asserted reliance on matters not the subject of evidence – asserted reliance on matters subject to a tendency application brought by the applicant but successfully objected to by the Crown – asserted use of inflammatory words – whether verdicts unreasonable – whether the complainant’s credibility is undermined because of her agitated presentation when giving evidence – whether complainant’s evidence can be accepted having regard to its evolution from her initial complaint to pre-trial evidence – whether independent objective evidence undermines the alleged timing of events – leave granted – appeal dismissed

Catchwords:

CRIME — Complicity — Differences between accessorial liability, joint criminal enterprise, and extended joint criminal enterprise — Whether and to what extent common law principles of complicity apply to murder under s 18(1)(a) of the Crimes Act 1900 (NSW) — Whether accessorial liability is consistent with charge of constructive murder CRIME — Constructive murder — History thereof — Decision in R v Sharah (1992) 30 NSWLR 292 explained and distinguished — No generic requirement that a participant in a joint criminal enterprise to commit the foundational offence foresee possibility of the act or omission causing death JURY DIRECTIONS — Directions as to constructive murder and accessorial liability — Direction as to need for foresight of act causing death erroneous but not establishing a miscarriage of justice — Directions only prejudicial to prosecution case — Necessity of taking directions in context — Directions regarding lack of prior convictions reflected understanding between judge and parties CRIME — Unreasonable verdict — Unavailability of one chosen pathway to conviction does not render verdict unreasonable — Verdict not unreasonable CRIMINAL PROCEDURE — Whether to order retrial under s 8(1) of the Criminal Appeal Act 1912 (NSW) — Factorial approach — Seriousness of murder charge — Strong case in joint criminal enterprise — Potential case not significantly different to case made at trial — Legal issues raised difficult — Retrial ordered — Whether sentence for foundational offence should be set aside

Catchwords:

CRIME – appeals – appeals against sentence – manifest excess – alleged error in the finding of the sentencing judge that the applicant had a lack of understanding of issues relating to consent – where applicant pleaded guilty to one count of sexual touching – where sentencing judge found that an ICO was technically available but would not sufficiently serve the purposes of sentencing, in particular, victim vindication, retribution and general deterrence – no error in factual finding established – manifest excess not established – leave to appeal granted – appeal dismissed

Catchwords:

CRIME – appeals – appeals against sentence – State and Commonwealth fraud-related offences – alleged failure to consider objective seriousness of count 3 – alleged failure to provide adequate reasons for indicative sentence for count 3 – alleged errors established – sentencing judge applied erroneous discount to indicative sentences – sentencing discretion re-exercised – no lesser sentence warranted in law – sentence varied to account for pre-sentence custody – leave to appeal allowed – appeal allowed

Catchwords:

CRIMINAL LAW – sentencing for serious supply of large commercial quantities of “ice” – possession of pistol with ammunition – where application at first instance of discounts to aggregate sentence as opposed to indicative sentences made determination of appeal grounds impractical – error in application of discounts established – whether lesser aggregate sentence warranted in law – appeal against sentence dismissed

Catchwords:

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

Catchwords:

EVIDENCE — relevance — whether evidence of applicant’s tendency to have a specified sexual interest was relevant — whether such evidence was irrelevant because it was incapable of establishing the tendency asserted EVIDENCE — tendency evidence — evidence of applicant’s tendency to have a specified sexual interest — presumption in s 97A(2) of the Evidence Act 1995 (NSW) that such evidence has significant probative value — whether there were sufficient grounds under s 97A(4) to rebut presumption — where the tendency evidence derives from a single witness — where there were differences between the alleged sexual acts towards the complainant and as alleged in the tendency evidence EVIDENCE — tendency evidence — whether probative value of tendency evidence outweighed danger of unfair prejudice to the applicant — Evidence Act s 101 — capacity of direction to remove prejudice

Catchwords:

CRIME – appeals – appeal against sentence – requirement to show error in appeals under s 55AA of Criminal Appeal Act 1912 (NSW) – fact finding in circumstantial cases – where none of the circumstances relied upon was indispensable, each circumstance not required to be proved beyond reasonable doubt – circumstances not to be considered piecemeal but as a whole based on the entirety of the evidence – no error in the fact finding process SENTENCING – relevant factors on sentence –specific deterrence – whether sentencing judge impermissibly gave specific deterrence primary significance in sentencing – weight to be given to a factor such as specific deterrence quintessentially a matter for sentencing judge – no error disclosed SENTENCING – assessing objective seriousness – whether sentencing judge failed to take into account the relevant circumstances of the present case when assessing objective seriousness – relevant circumstances taken into account – no error disclosed SENTENCING – whether sentence is manifestly excessive – comparable cases providing a yardstick – sentence not manifestly excessive

Catchwords:

CRIME – appeals – appeal against sentence – where sentencing judge considered material from a previous sentence over which they presided – whether sentencing judge erred in denying applicant procedural fairness CRIME – appeals – appeal against sentence –whether sentencing remarks demonstrate that the Form 1 offence was taken into account as a matter of aggravation when assessing the objective seriousness of the primary offence CRIME – appeals – appeal against sentence – whether there was an excessive degree of notional accumulation of indicative sentences – whether sentence imposed is manifestly excessive

Catchwords:

CRIME – costs – appeal – applicant acquitted at trial of a charge of manslaughter – subsequent application for costs refused – appeal against refusal of costs certificate – interlocutory appeal – leave required – application to rely on further evidence

Catchwords:

CRIMINAL APPEAL – review of procedural decisions of Registrar – no question of principle

Catchwords:

CRIME – sentence – appeal against sentence – denial of procedural fairness –– aggravated break and enter and larceny in company – unchallenged evidence of psychiatrist of causal link between psychiatric disorders and cognitive impairment and offending – evidence admitted without objection – psychiatrist not cross-examined – failure to give offender an opportunity to address on dismissal of evidence – relevance to offender’s moral culpability – relevance to general deterrence

Catchwords:

CRIMINAL LAW – appeal against conviction – tendency evidence – proper directions – where accused relied on tendency of the alleged victim – jury wrongly directed it should exercise caution in drawing inferences that tendency established – jury directed to enquire where it ”more likely than not” that the alleged victim had the tendency alleged – directions apt to reverse onus or proof – where prosecution concedes error in directions – appeal grounds sustained CRIMINAL APPEALS – whether no substantial miscarriage occurred despite erroneous directions – application of proviso – nature of error – assessment of prosecution case – case rebutting self-defence not overwhelming – accused case not “glaringly improbable” – where appellate court did not see witnesses – conflict in evidence – proviso should not be applied – appeal allowed – re-trial ordered

Catchwords:

CRIME — Drug offences — Commonwealth offence — Attempted possession of unlawfully imported drug — Where offender attempted possession of cocaine concealed in mail consignment SENTENCING — Appeal against sentence — Application for leave to appeal — Sentence by State court for offence against Commonwealth law — Whether sentencing judge misapplied principles relating to utilitarian discount for guilty plea — Whether sentencing judge failed to consider relevant factors — Whether sentencing judge erred in findings concerning prospects of rehabilitation and likelihood of reoffending APPEALS — Power to receive further evidence — Whether court should admit new or fresh evidence — Whether new evidence relating to alleged incomplete or inaccurate pre-sentence report admissible — Where alleged incompetent legal representation — Whether new evidence of reasons for guilty plea admissible — Where no challenge to conviction SENTENCING — Appeal against sentence — Manifest excess — Relevance of comparative sentences — Whether sentence imposed exceeds the bounds of proper sentencing discretion SENTENCING — Appeal against sentence — Powers of court — Power to adjust sentence to account for time spent on bail pending appeal — Where appeal dismissed and original sentence upheld

Catchwords:

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Sexual offences – Sexual touching – Whether CCTV footage demonstrated the particularised act of sexual touching – Where complainant alleged to have demonstrated affectionate behaviour towards applicant – Whether jury should have had reasonable doubt as to consent

Catchwords:

CRIME – appeals – appeal against conviction – three counts of indecent assault, sexual assault and sexual touching against younger sister – complainant aged between 12 and 17 years – where complainant’s police statement disclosed earlier instances of abuse at age nine – admitted as context evidence at trial – where evidence went to complainant’s continuing fear and delay in complaint – whether trial judge erred by admitting part of the context evidence involving fellatio – whether act of fellatio exceeded gravity of the counts of indictment because of the complainant’s young age – where no submission to that effect was made at trial – where ground of appeal alleged error when no objection taken at trial as to portions of context evidence – application of r 4.15 of the Criminal Appeal Rules – trial judge properly considered the test in s 137 of the Evidence Act – where proper anti-tendency directions were given – no miscarriage of justice demonstrated – no error in admitting the context evidence – appeal dismissed

Catchwords:

CRIME – Appeals – Appeal against conviction – Miscarriage of justice – Driving offences – Dangerous driving occasioning death – Dangerous driving occasioning grievous bodily harm – Where Crown concedes that trial judge misdirected jury as to onus and standard of proof in respect of voluntariness – Where real prospect that jury did not properly consider whether Crown proved beyond reasonable doubt that applicant not driving involuntarily due to epileptic seizure – Appeal allowed – Convictions quashed – Retrial ordered CRIME – Bail – Appeal bail – Where appeal against conviction successful – Bail not opposed – Bail granted subject to conditions

Catchwords:

CRIME – appeals – appeal against conviction – female genital mutilation – whether excision of part of the labia minora of complainant was contrary to s 45 of the Crimes Act 1900 (NSW) – whether purpose of s 45 was to prevent female genital mutilation being performed on female children – whether statements as to purpose of s 45 by High Court in The Queen v A2 (2019) 269 CLR 507 required s 45 to be read down so as only to apply to female children – where actual text of s 45 does not support such a reading – principles of statutory interpretation – purposive construction – departure from literal meaning of statute CRIME – appeals – appeal against conviction – whether consent available as a defence to a charge of infliction of grievous bodily harm – where body modification artist performed “tummy tuck” surgery on complainant who consented to such surgery – consideration of the role of consent in cases of actual and grievous bodily injury – whether considerations of autonomy should render consent a defence CRIME – appeals – appeal against conviction – unreasonable verdict – judge-alone trial – manslaughter by criminal negligence – where the Appellant inserted a silicon implant into the hand of the deceased – whether evidence capable of establishing beyond reasonable doubt that the Appellant’s treatment of the deceased was criminally negligent CRIME – appeals – appeal against conviction – unreasonable verdict – judge-alone trial – manslaughter by criminal negligence – causation – where multiple possible causes of death – whether evidence capable of proving beyond reasonable doubt that septicaemia was a significant or substantial cause of death – whether multi-drug toxicity was the sole or a contributory cause of death CRIME – appeals – appeal against conviction – miscarriage of justice – failure to give a “Shepherd direction” that the Crown had the burden of proving beyond reasonable doubt that septicaemia was present in the deceased at the time of her death and that it was a significant or substantial cause of her death – standard of proof in finding that septicaemia was a significant or substantial cause of the deceased’s death SENTENCING – appeal against sentence – severity – whether sentence manifestly excessive – objective seriousness – whether indicative sentences adequately took into account the consent of the victims to body modification procedures

Catchwords:

CRIME — Appeals — Appeal against sentence — Application for leave to appeal — Importation of border-controlled drug — Where the co-accused was the applicant’s abusive partner — Where the applicant was subordinate to her co-accused in the importations— Evidence of a non-financial motive — Whether the sentencing judge failed to take into account that the applicant was acting at the direction of an abusive partner in committing the offences in regard to general deterrence and denunciation — failure to make a finding as to moral culpability

Catchwords:

APPEALS — CRIME — appeal against conviction — sexually touching a child — 16 offences against 5 complainants — guilty verdicts returned in respect of 12 counts against 3 complainants — unreasonable verdict — whether it was open to jury to be satisfied of the applicant’s guilt in respect of those counts — discrepancies and conflicts in evidence of complainants — open to jury to resolve evidentiary issues — counts proved beyond reasonable doubt

Catchwords:

CRIME – conspiracy – conspiracy to commit common law offence of wilful misconduct in public office – elements of conspiracy – element of misconduct created by conflict between self-interest and public duty – need to establish causal element – whether agreement to do undertake a particular act(s) required – whether each participant in the conspiracy must agree to carry out act(s) in furtherance of unlawful purpose – whether motive of parties to be established – need to prove parties agreed as to quality of misconduct – conduct to be serious and meriting criminal punishment CRIMINAL PROCEDURE – elements of a conspiracy – each element and fact that are necessary links in the chain to conviction to be established beyond reasonable doubt – whether Shepherd direction required CRIMINAL PROCEDURE – judge alone trial – nature of warnings – warning to be “taken into account” – whether to be recorded in reasons – application of Criminal Procedure Act 1986 (NSW), s 133(3) CRIMINAL PROCEDURE – conviction – appeal – verdict unreasonable or not supported by the evidence – appeal court to conduct independent assessment of evidence – consideration of all circumstantial evidence – relevance of reasons of trial judge – Criminal Appeal Act 1912 (NSW), s 6(1), first limb – challenge to individual findings – whether finding indispensable to conviction – standard of review EVIDENCE – admissions – hearsay rule – conduct of one conspirator admissible as admission by other conspirator – operation of Evidence Act 1995 (NSW), ss 57(2), 87(1)(c) EVIDENCE – admissions – lies – consciousness of guilt – need for direction in accordance with Edwards v The Queen EVIDENCE – unreliability – description of map – whether tantamount to identification evidence – whether warning required under Evidence Act 1995 (NSW), s 165(2)

Catchwords:

CRIME — Appeals — Appeal against conviction and sentence — Murder MENTAL HEALTH — Criminal proceedings — Defence of mental health impairment — Special verdict of act proven but not criminally responsible — Where applicant diagnosed with schizophrenia after conviction

Catchwords:

SENTENCING — relevant factors on sentence — whether sentencing judge failed to consider, or mistook the facts in relation to, pressure exerted by the offender’s mother and ex-partner to commence and continue social security fraud SENTENCING — resentence — relevant factors on sentence — relationship between moral culpability and objective seriousness — where duress is present — significance of general deterrence in sentencing for social security fraud

Catchwords:

CRIME – Appeals – Interlocutory appeal – Application for leave to appeal two interlocutory decisions pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) – Where trial judge refused applications to adjourn trial and recuse himself for apprehended and actual bias – Whether refusal of adjournment application infected by House v The King error –Whether recusal decision amenable to s 5F appeal

Catchwords:

CRIME — Appeals — Appeal against sentence

Catchwords:

CRIME – appeals – appeal against sentence – whether the sentencing judge erred by double counting a Form 1 offence when assessing the objective seriousness of a count to which it did not attach – facts and circumstances of a Form 1 offence may be considered to provide context – no demonstrable error – appeal dismissed

Catchwords:

CRIME — Appeals — Appeal against conviction —Directions of trial judge — Whether trial judge’s direction about alternative verdicts erroneously restricted the jury’s deliberations — No error — Leave refused SENTENCING — Appeals — Appeal against sentence — Relevant factors on sentence — Parity principle — Two co-offenders sentenced with benefit of pleas and application of the totality principle — Unorthodox method of achieving appropriate totality reduced the co-offenders’ sentences for the common offence — No justifiable sense of grievance arising from co-offenders’ sentences or from a related offender’s sentence

Catchwords:

CRIME – appeals – appeal against conviction – one count of sexual intercourse without consent – where parties had been drinking heavily all day – where complainant was in and out of consciousness – where applicant stopped attempted anal penetration when asked – applicant resumed vaginal penetration – complainant said “Stop” multiple times – non-consensual penile/vaginal intercourse continued for around two minutes – where complainant made an immediate complaint to her mother – other early complaints – where mother’s evidence disclosed an alleged complaint about anal penetration inconsistent with other evidence the complainant gave – whether trial judge erred by failing to direct jury on complaint evidence given by the complainant’s mother – where Crown case never concerned anal intercourse – trial judge’s summing up made clear penile/vaginal intercourse formed the basis of the charge – jury could have had no doubt what act constituted the offence – no miscarriage of justice – leave to appeal refused CRIME – appeals – appeal against conviction – unreasonable verdict – whether by reason of inconsistencies and discrepancies the jury ought to have had a doubt – “inconsistencies” entirely explicable by reason of the complainant’s intoxication – central allegation consistent since time of first complaint – greater detail emerged in subsequent complaints – immediacy and distress of first complaint sufficient in nature and quality to satisfy jury beyond reasonable doubt CRIME – appeals – appeal against conviction – whether trial judge erred by failing to direct on the accuracy and reliability of the complainant’s account – where trial judge gave standard direction in accordance with s 293A of the Criminal Procedure Act – where applicant’s trial counsel sought no further direction – direction now proposed adds nothing to what the trial judge said – no miscarriage of justice – leave to appeal refused – appeal dismissed

Catchwords:

CRIME – appeals – purported appeal against interlocutory orders of Court of Criminal Appeal – orders made limiting applicant’s written submissions to 200 pages – whether in interests of justice to reconsider, vacate or amend orders – no reason shown to vary orders

Catchwords:

APPEAL – Criminal Appeal Act 1912 (NSW), s 5F(3A) – whether exclusion of evidence substantially weakens Crown case – HELD – ERISP met threshold test as it was inconsistent with version given by respondent in pretext call APPEAL – Evidence Act 1995 (NSW), s 90 – whether ERISP ought be excluded on grounds of unfairness – alleged unfairness constituted by investigating police not putting their knowledge of content of pretext call to respondent in ERISP – distinction between exclusion under ss 138 and 90 CRIMINAL LAW – no procedural fairness required of police when investigating alleged commission of criminal offence

Catchwords:

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

Catchwords:

Criminal Law – appeal – application to vacate hearing – Legal Aid Commission Act 1979 section 57 – pending decision of Legal Aid Review Committee – hearing vacated

Catchwords:

CRIME – SENTENCE – application for leave to appeal out of time – sole ground of appeal based upon Totaan v R [2022] NSWCCA 75 – sentencing judge did not accept hardship to family as exceptional – “Totaan error” – evidence taken into account on sentence in general mix of subjective features

Catchwords:

CRIME – appeals – appeal against sentence – where applicant sentenced to a term of imprisonment for 1 year and 10 months for cause grievous bodily harm reckless as to actual bodily harm – whether sentencing judge followed “three step process” – where applicant posed no risk to community safety - whether intensive correction order had to be imposed – whether intensive correction order should have been imposed – application of High Court decision in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3

Catchwords:

COURTS AND JUDGES — Jurisdiction — Supreme Court — whether decision to decline to grant a costs certificate pursuant to the Costs in Criminal Cases Act is an exercise of judicial or administrative power COURTS AND JUDGES — Jurisdiction — Supreme Court — where application for costs pursuant to Costs in Criminal Cases Act 1967 (NSW) determined by trial judge in the Supreme Court — whether appeal lies to Court of Criminal Appeal pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) — whether decision to decline application for costs certificate an interlocutory decision — whether decision to decline application for costs certificate is an order given or made in the proceeding for the prosecution of the offender on indictment CRIMINAL PROCEDURE — Costs — Costs in Criminal Cases Act 1967 — where applicant’s defence largely funded by legal aid — whether a legally aided applicant can recover costs pursuant to the Costs in Criminal Cases Act 1967 — whether public policy considerations weigh against grant of certificate to legally aided applicants — whether Court should exercise residual discretion to decline to grant certificate to legally aided applicants CRIMINAL PROCEDURE — Costs — Costs in Criminal Cases Act 1967 — whether it would have been unreasonable for a hypothetical prosecutor in possession of all the facts to institute proceedings against the applicant — no question of principle COSTS — Party/Party — Criminal cases — Statutory power to award costs — where applicant’s defence largely funded by legal aid — whether a legally aided applicant can recover costs pursuant to the Costs in Criminal Cases Act 1967

Catchwords:

CRIMINAL LAW – sentencing – conspiracy to assist a person to engage in hostile activities in Syria – offence against Commonwealth Criminal Code – intensive correction order – requirement to take into account purposes of punishment in state sentencing act – whether requirement satisfied by considering matters in Commonwealth Crimes Act – where issue considered by Court of Criminal Appeal after current sentence imposed – error established despite otherwise impeccable and well-reasoned sentencing judgment – re-sentencing – where intensive correction order no longer appropriate – sentence reduced and applicant entitled to immediate release

Catchwords:

CRIME – appeals – appeal against sentence – whether sentencing judge failed to have regard to applicant’s youth in assessing moral culpability and the role of general deterrence – whether the relevance of the applicant’s youth to these factors adequately explained – relationship between moral culpability and objective seriousness

Catchwords:

CRIME — Appeals — Appeal against conviction — Historical sex offences — Application for permanent stay — whether trial judge erred in refusing to permanently stay proceedings due to delay — forensic disadvantage — whether forensic disadvantage directions were inadequate CRIME — Appeals — Appeal against conviction — Judge alone trial — Tendency evidence — whether trial judge erred in holding evidence of complainants had been corroborated CRIME — Appeals — Appeal against conviction — Judge alone trial — Coincidence evidence — whether trial judge erred in using coincidence reasoning when not relied on by prosecution CRIME — Appeals — Appeal against conviction — Judge alone trial — Evidence — whether trial judge erred by taking into account excluded evidence — whether trial judge erred in assessing demeanour of accused in the dock — whether evidence of complainants and tendency witnesses contaminated — whether trial judge reversed onus of proof for contamination of evidence

Catchwords:

CRIME – appeals – appeal against sentence – where sentencing judge found that community safety would be best served by the applicant serving his sentence in the community – where sentencing judge declined to order an ICO – whether a positive finding with respect to community safety mandates a sentencing judge to impose an ICO – consideration of Stanley v Director of Public Prosecutions (NSW) – whether sentencing judge impermissibly subordinated community safety to general deterrence

Catchwords:

CRIME – Appeals – Appeal against conviction – Where applicant found guilty by jury of common assault and one count of sexual intercourse without consent – Where applicant not found guilty of related offences – Whether guilty verdicts unreasonable with regard to available evidence and related not guilty verdicts – Guilty verdicts reasonable – Leave granted, but appeal dismissed CRIME – Appeals – Appeal against direction given to jury by trial judge - Whether trial judge misdirected jury – Where no objection made to direction during trial – Where appeal against direction is strictly protective where identical argument rejected in earlier decision of this Court

Catchwords:

CRIME – appeals – extension of time – where applicant pleaded guilty to maintaining an unlawful sexual relationship with a child – female teacher sexually abused one of her students between 1977 and 1979 – where underlying offences were contrary to s 81 of the Crimes Act 1900 (NSW) (since repealed) – where Court recently held in Lam v R [2024] NSWCCA 6 that s 81 was incapable of being committed by a female – applicant now seeks leave to appeal against conviction – where no application made to withdraw plea – extension of time granted CRIME – bail – bail pending appeal – whether pending proceedings – whether bail should be granted – necessity to demonstrate “special or exceptional circumstances” – where Crown accepts applicant more likely than not to succeed on appeal – where no bail concerns – conditional bail granted

Catchwords:

CRIME – appeals – appeal against sentence – offences of sexual intercourse with child – inclusion on form 1 of repealed offence – error conceded – no findings on remorse, prospects of rehabilitation or risks of reoffending – offender denying offences six weeks prior to sentencing hearing despite having pleaded guilty three months prior – questionable insight – no lesser sentence is warranted in law

Catchwords:

CRIME – appeals – appeal against sentence – where applicant had committed a large number of property offences – larceny, obtain property by deception, break and enter, reckless damage – whether error in sentencing judge’s determination of objective seriousness – consideration of the applicant’s status as subject to conditional liberty at the time of the offending in determining objective seriousness – consideration of the applicant lengthy criminal history in determining objective seriousness of offence pursuant to s 115 Crimes Act 1900 – objective features of the offending and subjective features of the offender must be considered separately – appeal upheld – applicant resentenced CRIME – appeals – appeal against sentence – whether error in sentencing separately for common elements in ss 114 and 115 offences – no additional act of criminality necessary for guilt under s 115 – offence complete on proof of previous conviction and applicant’s commission of the s 114 offence – double punishment –contravention of Pearce v the Queen – discussion of background to statutory provision – consideration of approach in Darcy v R and R v Tillott – s 115 inconsistent with prevailing sentencing standards – unanimous criticism of s 115 – inappropriate to impose any penalty – inappropriate to indicate any sentence as part of an aggregate term of imprisonment – appeal upheld on this ground by majority

Catchwords:

CRIMINAL PROCEDURE — sexual offence proceedings — applicant convicted of indecent assault of and sexual intercourse with a child under the age of 10 — victim gave detailed description of ejaculation when interviewed by police at the age of 11 — effect of prohibition in to s 293 Criminal Procedure Act 1986 (NSW) (now s 294CB of Crimes Act 1900 (NSW)) — whether Crown was entitled to make submission to the effect that victim would not have known about ejaculation other than because of the offending conduct — whether trial judge was entitled to infer that victim would not have known about ejaculation other than because of the offending conduct EVIDENCE — discretions — exclusion of evidence — criminal proceedings — whether trial judge erred in not accepting evidence of witness (a child) which was contradicted by complainant — reasons for verdict to be read as a whole to determine why such evidence was rejected CRIMINAL PROCEDURE — sexual offence proceedings — complaint evidence — minor inconsistencies in complaint evidence — whether trial judge entitled to address alleged inconsistencies in global way in reasons for verdict EVIDENCE — whether trial judge was obliged to refer to evidence of witness whose evidence was of little or no probative value in reasons for verdict JUDGES — Courts — Duty of trial judge in trial by judge alone to give reasons for verdict — whether infelicitous phrase revealed error — requirement to read judgment fairly and as a whole

Catchwords:

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Where the appellant was convicted of being an accessory after the fact to murder of the principal offender’s girlfriend – Where Crown case wholly circumstantial – Whether the jury was not adequately directed as to the elements of the offence – Whether the evidence admissible against the appellant did not support his conviction – Whether there was a substantial miscarriage of justice EVIDENCE – Admissions – Criminal Proceedings – Where the trial judge admitted the principal offender’s certificate of conviction in the appellant’s trial – Whether the certificate can be admitted under the Evidence Act 1995 (NSW) in the appellant’s trial EVIDENCE – Criminal Proceedings – Appeals – Failure to object – Where the principal offender’s interviews with police were admitted during the appellant’s trial – Where the trial judge admitted evidence of sexual interactions between the principal offender and another – Where the trial judge admitted text messages sent by the appellant as admissions – Where no objections were made at trial – Where leave required to challenge admissions –Whether the jury was misdirected as to the use of the statements made by the principal offender

Catchwords:

CRIME – appeals – appeal against conviction – where applicant charged with specially aggravated break, enter, and commit assault occasioning actual bodily harm – joint criminal enterprise to break and enter victim’s home, commit common assault, and steal cash – whether guilty verdict was unreasonable or unsupported by the evidence – three particulars – evidence sufficient to find agreement to assault made before breaking and entering – evidence sufficient to find that infliction of actual bodily harm was foreseen as a possibility in carrying out the joint criminal enterprise – discussion of whether prohibited to combine legal concepts of extended joint criminal enterprise and committing the offence in company – concepts able to stand together – consideration of Markou v R – in that case only the assault itself required to be proven to have been committed in company, not the consequence of actual bodily harm – whether miscarriage of justice occasioned by trial judge’s failure to provide written directions about the doctrines of basic and extended joint criminal enterprise – oral directions sufficient – no sign of any difficulties in jury’s understanding – appeal dismissed

Catchwords:

CRIME – appeals – Crown appeal against directed verdicts of acquittal pursuant to s 107 of the Crimes (Appeal and Review) Act 2001 (NSW) – 40 counts of aggravated sexual offences – where respondent was employed as a gynaecologist and obstetrician – 19 complainants – respondent’s case at trial that the physical acts had either been performed for a proper medical purpose, or had not occurred at all – verdict of not guilty directed – trial judge found Crown had not adduced any evidence the complaints were not consenting, or that the respondent had possessed the requisite mental element to be charged with any sexual offence – appeal involved four proposed questions of law alone – evidence of complainants’ lack of consent readily inferred –evidence that the respondent at least foresaw the possibility that each complainant was not consenting available – directed verdicts erroneous – appeal allowed – verdicts of not guilty quashed CRIME – appeals – Crown appeal against acquittals – new trial – whether new trial appropriate – where new trial would be the third – where respondent submits new trial would be unduly oppressive – not in the interests of justice to allow acquittals to stand – new trials ordered

Catchwords:

CRIME — drug offences — supply prohibited drug psilocybin — commercial quantity — whether weight of prohibited drug included weight of mushrooms in which psilocybin naturally found — construction of s 4 of the Drug Misuse and Trafficking Act 1985 (NSW)

Catchwords:

CRIME – Appeals – Appeal against conviction – Where appellant was convicted of murdering his girlfriend – Where tendency evidence as to the appellant’s tendency to act aggressively when motivated by jealousy – whether probative value substantially outweighed prejudicial effect CRIME – Appeals – Appeal against conviction – Where Crown case was wholly circumstantial – Whether dedicated inferences direction should have been given to the jury in addition to a circumstantial case direction CRIME – Appeals – Appeal against conviction – Where defence proposed former partner of deceased as alternative theory for death of deceased – Where trial judge did not permit defence to cross examine deceased’s former partner regarding alleged dishonest conduct CRIME – Appeals – Appeal against conviction – Where deceased’s cause of death was blunt force trauma – Whether trial judge erred in not leaving manslaughter by unlawful and dangerous act to the jury CRIME – Appeals – Appeal against conviction – Unreasonable verdict CRIME – Appeals – Appeal against sentence – Where Crown closing relied upon intention to cause grievous bodily harm – Whether sentencing judge erred in determining there was intention to kill CRIME – Appeals – Appeal against sentence – Whether sentencing judge erred in assessment of objective seriousness of offending CRIMES – Appeals – Appeal against sentence – Whether sentence manifestly excessive

Catchwords:

CRIME — Appeals — Appeal against sentence — Application for leave to appeal — Manslaughter — Where sentencing judge took account of evidence not tendered in sentence proceedings — Whether miscarriage of justice occurred CRIME — Appeals — Appeal against sentence — Where applicant had a background of profound childhood deprivation — Whether sentencing judge failed to give meaningful consideration to the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 CRIME — Appeals — Appeal against sentence — Where sentencing judge erred in failing to consider special circumstances

Catchwords:

CRIME – appeals – appeal against sentence – whether obligation on a sentencing judge to make a finding of fact about an offender’s unlikelihood of re-offending – no such obligation on the evidence relevant and known to the court – where the sentencing judge made a “neutral” finding – appeal dismissed

Catchwords:

CRIME – appeal against conviction – resisting officers executing duty – appellant acquitted of charges of resisting arrest by first two officers at the scene because arrest held to be unlawful – appellant also charged with counts of resisting officers executing duty – charges based on resistance to third and fourth officers who arrived at scene later and saw appellant struggling with first and second officers – appellant pleaded guilty – whether appellant should be permitted to withdraw his pleas – whether unlawfulness of arrest by first two officers impacted upon charges based on resistance to third and fourth officers – alternatively, whether appellant entitled to set aside one of the convictions because both were based on identical conduct – significance of absence of findings by primary judge – appeal against conviction dismissed CRIME – appeal against sentence – whether finding that arrest was invalid relevant to sentencing – whether sentencing judge failed to have regard to evidence of appellant’s cognitive deficits – whether sentencing judge failed to have regard to aspects of appellant’s subjective case – appeal against sentence allowed and appellant resentenced

Catchwords:

APPEALS – criminal procedure – temporary stay of proceedings – where the Crown sought to rely on putatively privileged communications by a third party – where delay occurred because the question of whether privilege had been waived was not resolved when the third party was to give evidence – temporary stay of proceedings granted pending the Crown’s payment of costs thrown away – whether decision of the Director of Public Prosecutions not to fund legal representation for the third party to resolve the privilege issue was an irrelevant consideration in granting the temporary stay – whether the Crown was at fault for the delay such that the principles of R v Mosely (1992) 28 NSWLR 735 applied – whether the accused suffered unfairness because of delays in resolving the privilege issue

Catchwords:

CRIME – appeals – Crown appeal pursuant to Criminal Appeal Act s 5F(3A) – doli incapax – where respondent aged between ten and fourteen at time of alleged offending – knowledge and development for doli incapax purposes – whether evidence if admitted would substantially weaken the Crown case

Catchwords:

CRIME – Suppression and non-publication – protection for publishing or broadcasting the name of accused children and child victims under s 15A Children (Criminal Proceedings) Act 1987 (NSW) – whether publishing or broadcasting the deceased child victim’s name under the exception in s 15E Children (Criminal Proceedings) Act 1987 (NSW) would be likely to lead to the identification of the accused child – not a question of the possibility of identification by those in the community with personal knowledge of the circumstances of the alleged offence – whether the judgment published with the name of the deceased child would likely lead to the identification of the accused

Catchwords:

CRIME — Appeals — Appeal against sentence — Application for leave to appeal — Supply of not less than commercial quantity of drug — Where applicant supplied significantly lower quantities of drugs prior to the involvement of police undercover operative — Whether sentencing judge erred in assessing the objective seriousness of the offence on the basis that it was designed to accrue a financial benefit CRIME — Appeals — Appeal against sentence — Where sentencing judge took account of the applicant’s background of profound childhood deprivation as part of instinctive synthesis but refused to reduce the applicant’s moral culpability — Whether the sentencing judge failed to correctly apply the principles of Bugmy v The Queen (2013) 249 CLR 571

Catchwords:

CRIME — appeals — appeal against convictions for sexual intercourse without consent — miscarriage of justice — alleged risk of prejudice following exchange between Crown witness and accused in courtroom — whether trial judge’s decision not to discharge jury following the exchange resulted in a miscarriage of justice — whether trial judge’s direction to jury was sufficient to overcome potential prejudice SENTENCING — appeal against sentence — whether sentencing judge erred in calculation of commencement date of sentence — pre-sentence custody period — discretion of sentencing judge to back-date commencement date of sentence

Catchwords:

CRIME – Appeals – interlocutory appeal – decision to refuse a permanent stay – criterion for leave to appeal from interlocutory decision in criminal proceedings – whether leave to appeal should be granted – where applicant for stay had been found unfit to stand trial on the indictment pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – whether standard of appellate review is the correctness standard in light of the High Court’s decision in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 – whether there was an error of principle and possibility or likelihood of substantial injustice CRIMINAL PROCEDURE – stay of proceedings – permanent – where permanent stay of proceedings sought on multiple bases including the Applicant’s mental infirmity and forensic disadvantages arising out of delays in bringing the prosecution – whether “common humanity” test applies in cases where more than mental infirmity is relied upon to found an application for a permanent stay – whether sufficient weight given to the Applicant’s mental infirmity – whether primary judge inappropriately weighed the forensic advantage accruing to the accused as a result of delays in bringing the prosecution against those accruing to the Crown

Catchwords:

CRIMINAL LAW – appeal against conviction –accountant convicted of knowingly dealing with proceeds of crime – whether summing-up lacked balance or contained “advocacy” favouring prosecution – summary of prosecution and defence cases – no miscarriage of justice in judge recounting evidence relied on by prosecution – summing up of defence case undermined credibility of witness relied on by defence – credibility of witness not challenged by prosecutor – subsequent neutral directions not sufficient to rectify error – convictions quashed

Catchwords:

CRIMINAL LAW – sentence appeal – applicant sentenced in relation to a number of contact and non-contact sexual offences – whether the sentencing judge made a finding of special circumstances – the non-parole period was greater than the statutory ratio – approach to re-sentencing – whether discrete matter or arithmetical error – tension in authorities – where parties agree full re-sentencing is required – unfairness – offender resentenced (but only in so far as the non-parole period)

Catchwords:

CRIME — Appeals — Appeal against conviction — Sexual assault and intimidation offences — Where trial judge did not give Markuleski direction — Unreasonable verdict

Catchwords:

CRIME – appeals – appeal against sentence – one count of obtaining a financial advantage by deception – where applicant falsely represented she was separated from her husband to claim Parenting Payment Single (PPS) – offending took place over seven years and involved fraudulent payments totalling $170,787.11 – where applicant did not give evidence and psychiatric evidence was tendered without objection – where the Crown accepted applicant’s major depressive disorder at least at certain points in time impaired her decision making – where sentencing judge held applicant’s mental health condition did not reduce her moral culpability to a significant degree – whether sentencing judge’s finding on subjective circumstances amounted to a denial of procedural fairness – sentencing judge not obliged to accept what was contained in the psychiatric report – no independent evidence confirmed history given to psychiatrist and appeared inconsistent with other evidence – no denial of procedural fairness – ground rejected CRIME – appeals – appeal against sentence – whether judge ought to have found that applicant’s mental condition would make custody more onerous – where no such finding was sought by the applicant at the sentence hearing – ground rejected CRIME – appeals – appeal against sentence – where fraudulent funds had been fully repaid – where applicant did not give sworn evidence of contrition or remorse – whether sentencing judge failed to take into account repayment of money as evidence of contrition – held sentencing judge not obliged to find contrition simply because fraudulent funds had been repaid – other matters inform determination of contrition – ground rejected – appeal dismissed

Catchwords:

CRIME — appeals — appeal against conviction — alleged unreasonable verdicts in judge-alone trial — whether it was open to the trial judge to be satisfied beyond reasonable doubt that the applicant engaged in dangerous driving CRIME — driving offences — dangerous driving occasioning death and grievous bodily harm — truck driver experienced potential trigger for vasovagal syncope when stopped at the lights — put the vehicle in motion before losing consciousness — history of vasovagal syncope — whether applicant had sufficient warning of oncoming loss of conscious such that driving was dangerous — whether applicant’s loss of consciousness was caused by pre-existing medical condition (vasovagal syncope) or a pulmonary embolism

Catchwords:

SENTENCING — Crown appeal against sentence — offender convicted of aggravated sexual intercourse without consent and intimidation — whether sentence imposed was manifestly inadequate — whether sentence was unreasonable or plainly unjust — balancing objective seriousness of offence with subjective considerations SENTENCING — subjective considerations on sentence — special circumstances — offender’s youth and cognitive impairment — consideration of how best to achieve the purposes of sentencing including rehabilitation and prevention of further offending — lack of rehabilitation options for offender in custody

Catchwords:

CRIME — appeals — appeal against conviction — 16 counts of assault with an act of indecency — 1 count of common assault— three complainants — unreasonable verdict — verdict unsupported by evidence — evidence cross-admissible for tendency purpose — whether deficiencies and inconsistencies in evidence sufficient to give rise to reasonable doubt

Catchwords:

CRIME – criminal liability – absolute liability – statutory offences – whether the offence of driving a motor vehicle while there is present in the person’s oral fluid, blood or urine any prescribed illicit drug is an offence of strict or absolute liability – statutory interpretation of s 111(1) of the Road Transport Act 2013 (NSW)

Catchwords:

CRIME – Appeal against sentence – aggregate sentence - child sex offences – sentencing judge erred in finding that some counts were a “serious children’s indictable offence” within s 3 of the Children (Criminal Proceedings) Act 1987 – sentencing discretion unaffected by error –sentencing judge did not err in failing to take into account the lost opportunity of a different sentencing regime that would have been available had the applicant been prosecuted earlier - sentence not manifestly excessive.

Catchwords:

CRIME – appeals – appeal against sentence – parity – disparity between sentences of co-offenders after sentencing judge found applicant’s sentence should be slightly longer than co-offender’s – whether sentencing discretion miscarried – appeal allowed – applicant resentenced

Catchwords:

CRIME — Appeal under s 5F Criminal Appeal Act 1912 (NSW) — Sexual offences — Historical indecent assaults — Where female teacher allegedly engaged in sexual activities with male teenage students in 1978 — Whether a female capable of committing the offence of indecent assault upon a male person under the now-repealed s 81 of Crimes Act 1900 (NSW)

Catchwords:

CRIME – Appeals – Appeal against sentence – Assessment of objective seriousness of offence – Assessment by sentencing judge not open – No failure to take into account totality of evidence – Applicant resentenced

Catchwords:

CRIMINAL LAW – bail – appeal bail – release application – where charges not yet certified and charge certificate not yet filed – show cause offences – strength of prosecution case – requirement for medical treatment – cause shown – unacceptable risk – strong connections with organised crime – unacceptable risk of committing a serious offence –unacceptable risk of failing to appear – unacceptable risk of interfering with witnesses – bail refused

Catchwords:

CRIMINAL LAW – bail – release application – whether the identified unacceptable risks can be mitigated – not satisfied that any conditions can reasonably be imposed to mitigate the unacceptable risks – bail refused

Catchwords:

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

Catchwords:

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:

CRIME — Appeals — Appeal against sentence — By Crown — Where parties agree sentence miscarried — Offence which carries life imprisonment erroneously attached to Form 1 — Matter remitted to District Court

Catchwords:

SENTENCING – appeal against sentence – aggravating factors – dangerous driving occasioning death – moral culpability – objective seriousness – where the applicant was “showing off” his vehicle; grossly disregarded the speed limit and was found to have engaged in aggressive driving

Catchwords:

CRIME – appeals – appeal against conviction – circumstantial evidence – standard of proof of intermediate facts – whether higher standard of proof applies to certain non-indispensable intermediate facts

Catchwords:

CRIMINAL PROCEDURE – lies – directions to jury – consciousness of guilt – where Crown conducted a case in relation to one alleged lie told in consciousness of guilt – whether trial judge erred in directing jury about three alleged lies told in consciousness of guilt EVIDENCE – character evidence – good character – where applicant sought to lead evidence of lack of prior convictions – where trial judge refused to allow applicant to adduce evidence of prior good character – whether trial judge erred EVIDENCE – tendency evidence – coincidence evidence – whether direction sought by Crown – whether trial judge permitted to give direction

Catchwords:

CRIME – appeals – appeal against sentence –whether an Adverse Publicity Order should be substituted with a form of order reflecting the findings subsequent to a conviction appeal – Adverse Publicity Order quashed and substituted

Catchwords:

APPEAL – crime – sentence discount for guilty plea – sentencing discount to aggregate sentence rather than indicative sentences APPEAL – crime –– several times the commercial quantity of cocaine – whether this was an error of fact in sentencing APPEAL – crime – sentencing – objective seriousness – reference to “many multiples of the commercial quantities” – whether this was an error to the extent it referenced cocaine SENTENCING – appeal against sentence – role of appellate court – exercising the sentencing discretion afresh – effect of Kentwell v The Queen

Catchwords:

CRIME – Appeals – Appeal against conviction – two counts of sexual intercourse without consent – whether trial judge failed to properly direct the jury on all the elements of the offence – concession by the applicant’s trial counsel that there was no issue as to consent or knowledge of lack of consent – no request for further directions at trial – whether further directions were required – whether miscarriage of justice – whether verdicts were unsafe and unsatisfactory – inconsistencies in evidence of Crown witnesses – whether complainant had motive to fabricate her evidence – whether inconsistencies and discrepancies lead to the conclusion that the jury acting rationally ought to have entertained a reasonable doubt

Catchwords:

CRIME – appeal against sentence – environmental offences – appellant pleaded guilty to three offences contrary to s 144AA(2) and one offence contrary to s 144AA(1) of the Protection of the Environment Operations Act 1997 (NSW) – transmission of false or misleading information during the course of dealing with waste – three offences of knowingly providing false information – hundreds of weighbridge documents falsified and provided to developers and site auditors – further false documents created to conceal earlier offending – whether primary judge erred in assessing harm and risk of re-offending – whether fines totalling $943,650 manifestly excessive – consideration of nature of ground alleging manifest excess – consideration of whether offending a “single course of conduct” and significance of that conclusion – whether errors in assessment of totality and parity – whether participation in statement of agreed facts a separate mitigating factor – appeal allowed and offender resentenced

Catchwords:

CRIMES – Appeal against sentence – whether sentencing judge erred in assessment of objective seriousness CRIMES – Appeal against sentence – whether sentencing judge erred in assessment of the applicant’s rehabilitative prospects CRIMES – Appeal against sentence – where offending was assessed to be within the mid-range – where offences occurred within a short period in a single course of conduct – where applicant had strong subjective case – consideration of sentences imposed in cases with similar fact patterns – sentence is manifestly excessive – applicant resentenced

Catchwords:

CRIMINAL LAW – appeal – pleas of guilty – appeal against sentence – insufficient regard to psychologist’s report – whether the sentencing judge failed to consider and apply De La Rosa principles to the applicant’s circumstances – error found – applicant resentenced

Catchwords:

CRIME – appeals – appeal against sentence – attempt to import commercial quantity of border-controlled drug – ground of appeal based upon Totaan v R [2022] NSWCCA 75 – sentencing judge did not accept hardship to family as exceptional – Crown conceded “Totaan error” – appellant’s incarceration causes hardship to family and dependents – parity with co-offenders – appellant resentenced

Catchwords:

CRIME – Appeals – Appeal against conviction – Where evidence of text conversations between complainant and relative of applicant had been admitted by the primary judge – Whether evidence was admitted in error – Whether admission of evidence caused a miscarriage of justice CRIME – Appeals – Appeal against conviction – Where evidence of messages sent by the complainant had been obtained improperly but were admitted on the basis of relevance – Where the evidence was not admitted until the complainant and other Crown witnesses had already been cross-examined – Whether the failure to determine the admissibility of the evidence until after the Crown witnesses had been cross-examined was an error or caused a miscarriage of justice CRIME – Appeals – Appeal against conviction – Incompetence of counsel – Whether failure of counsel to object to admission of evidence occasioned a miscarriage of justice CRIME – Appeals – Appeal against conviction – Incompetence of counsel – Whether failure of counsel to determine admissibility of evidence prior to cross-examination of the complainant caused a miscarriage of justice CRIME – Appeals – Appeal against sentence – Where two counts of intimidation also involved suffocation – Whether sentencing judge fell into De Simoni error by sentencing on the basis of findings constituting a more serious offence CRIME – Appeals – Appeal against sentence seriousness – Where count of common assault constituted fourth of four counts in final episode of abuse after nine years of domestic violence – Whether sentencing judge erred in finding count was at the mid-range of objective CRIME – Appeals – Appeal against sentence – Where offending involved 28 counts of domestic violence over nine years – Whether aggregate sentence was manifestly excessive

Catchwords:

CRIME – criminal liability – absolute liability – statutory offences – liability of nominated supervisor at a day care centre under s 165(2) of the Children (Education and Care Services) National Law 2010 (NSW) – whether “must ensure” imports a standard of absolute liability

Catchwords:

CRIMINAL PROCEDURE – Costs – Costs in Criminal Cases Act 1967 – where applicant’s defence largely funded by legal aid – whether a legally aided applicant can recover costs pursuant to the Costs in Criminal Cases Act 1967 CRIMINAL PROCEDURE – Stay of proceedings – where applicant sought a Mosely stay during proceedings – whether a legally aided applicant can seek a Mosely stay where the Crown was at fault in relation to matter that led to termination of proceedings

Catchwords:

CRIMINAL LAW – appeal – appeal against sentence – sexual intercourse without consent – whether sentencing judge erred in assessing objective seriousness of offences – whether sentencing judge erred in assessing applicant’s disability – whether sentencing judge erred by having insufficient regard to applicant’s history of early childhood deprivation – whether sentencing judge erred in assessing applicant’s prospects of rehabilitation and likelihood of reoffending – whether sentencing judge erred by attributing too much weight to harm to the victim – whether sentence manifestly excessive – appeal dismissed

Catchwords:

CRIME — Appeals — Appeal against conviction — Unreasonable verdict — judge alone trial — guilty verdicts on three counts — not guilty verdict on one count — whether reasonable doubt as to guilt of applicant on whole of the evidence CRIME — Appeals — Appeal against sentence — Manifest excess — whether consideration of intellectual disability sufficiently reflected in sentence

Catchwords:

CRIME – appeal and review – post-conviction inquiry ordered pursuant to s 77(1)(a) of the Crimes (Appeal and Review) Act 2001 (NSW) – where judicial officer formed the opinion that there is reasonable doubt as to the guilt of the Applicant – where matter referred to the Court of Criminal Appeal pursuant to s 82(2) for consideration of whether the Applicant’s convictions should be quashed

Catchwords:

CRIMINAL LAW – appeal – sentencing – application of Crimes (Sentencing Procedure) Act 1999 (NSW), s 59 – whether commencement date of a sentence should be varied to preserve the sentencing judge’s intention as to the period of concurrence between two sentences served by the Applicant for unrelated offences – where the Applicant brought a successful appeal against sentence in relation to the earlier of the two sentences – where considerable delay in bringing the application

Catchwords:

CRIME — Appeals — Appeal against conviction — Child sex offences – Three counts of sexual intercourse with child >10 <16 – Two counts under authority – Unreasonable verdict – whether complainant’s evidence inherently unlikely and lacked detail – whether opportunity to develop closeness – where certain matter unexplored and unexplained – whether statement made to arresting officer and effect of statement – whether alleged location of third count possible given evidence of applicant’s brother – whether reasonable possibility applicant’s account might be true

Catchwords:

CRIME – appeals – appeal against sentence – aggregate sentences – where aggregate sentence not reconcilable with the sentencing judge’s stated intentions as to the accumulation of the indicative sentences – error conceded by the Crown SENTENCING – firearms offences – where offender convicted of possession, use and unsafe storage of a firearm – general need for some degree of accumulation – where subjective circumstances justified minimal accumulation

Catchwords:

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

Catchwords:

CRIME — Appeals — Appeal against conviction — Inconsistent and unreasonable verdicts — Single complainant — Child sexual assault

Catchwords:

CRIME — appeals — appeal against sentence — application for leave to appeal – parity – where applicant and co-offender received identical sentences – where co-offender convicted of a more serious offence – whether the applicant has a justifiable sense of grievance – appeal allowed – applicant resentenced

Catchwords:

CRIME – Appeals – Appeal against conviction – Sexual assault offences – whether identification direction was erroneous – whether guilty verdicts were unreasonable

Catchwords:

CRIME – appeal against sentence – cultivation of not less than large commercial quantity of prohibited plant – supply of large commercial quantity of cannabis leaf – conspiracy to manufacture commercial quantity of methylamphetamine –erroneous consideration of standard non-parole periods – material error – resentence required

Catchwords:

CRIME – appeals – appeal against sentence – where applicant convicted of affray and two counts of assaulting police – where applicant on conditional liberty at the time of offending – parole revoked – imposed sentence partially cumulative upon balance of parole to very small degree – whether sentence imposed failed to reflect sentencing judge’s finding of special circumstances when regard is had to the total effective sentence and total minimum period to be served by the applicant in custody – suggestion that applicant lost the opportunity to be re-released on parole purely hypothetical in the circumstances – no error on part of sentencing judge – appeal dismissed

Catchwords:

CRIME – SENTENCE – appeal against sentence – historical child sexual assaults – two victims aged about 6 to 12 years – ongoing course of conduct over a period of years – familial relationship between applicant and victims – lengthy delay between offending and prosecution – inappropriateness of grounds of appeal complaining of weight given to particular features – relevance of applicant’s reactive depression developed as a consequence of prosecution – relevance of claims by applicant of childhood abuse – no error disclosed

Catchwords:

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

Catchwords:

CRIME – Appeals – Appeal against sentence – Where applicant pleaded guilty to 38 offences – Whether misstatement in the remarks on sentencing meant that sentencing judge proceeded on an incorrect basis and had capacity to influence the sentence – Whether expressions of frustration by the sentencing judge in the sentencing remarks at the way the charges had been brought affected the sentencing judge’s discretion CRIME – Appeals – Appeal against sentence – Where evidence of assaults in custody was not before the Court at the sentencing hearing – Whether assaults in custody constituted extra-curial punishment CRIME – Appeals – Appeal against sentence – Whether the sentencing judge erred by failing to take into account events that had not occurred at the time of sentencing CRIME – Appeals – Appeal against sentence – Whether the sentencing judge erred in failing to find that delays in the police investigation amounted to a mitigating factor in sentencing CRIME – Appeals – Appeal against sentence – Where there was material before the Court at the sentencing hearing – Where the sentencing judge had made factual findings adverse to the applicant – Whether the sentencing judge had failed to take into account relevant material – Whether the findings made by the sentencing judge were reasonably open CRIME – Appeals – Appeal against sentence – Where applicant pleaded guilty to 38 offences – Whether the indicative sentences for six counts were manifestly excessive – Whether manifestly excessive sentences on some of the 38 counts was sufficient to establish that the overall effective sentence was manifestly excessive CRIME – Appeals – Appeal against sentence – Where charges were initially brought under the wrong section of legislation – Where that was not brought to the applicant’s knowledge by his lawyers – Where those charges were later withdrawn – Where the applicant’s lawyers had advised him against tendering certain evidence – Whether there had been a miscarriage on the basis of incompetence of counsel

Catchwords:

CRIME – appeals – appeals against sentence – failure to backdate sentence to account for time served in pre-sentence custody – parties contributed to sentencing error in providing unnecessarily complicated pre-sentence custody information – error established – failure to sufficiently vary the statutory ratio upon finding special circumstances – adjustment reflects explicit intention – no error – non-parole period in years, months, and days – mathematical precision not required – appeal allowed – applicant re-sentenced

Catchwords:

CRIMES – appeals – application for leave to appeal against sentence – where applicant sentenced for 34 offences, including aggravated break and enter and commit serious indictable offence – whether error in relation to finding of no evidence of remorse – whether sentencing judge erred by giving insufficient regard to impact of COVID-19 – whether sentence manifestly excessive – consideration of principles of remorse – no error found in sentence imposed

Catchwords:

CRIME – sentencing – offence under Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), s 6 –engaging in hostile activity in foreign country – parole only available in exceptional circumstances – Crimes Act 1914 (Cth), s 19ALB – parole refused – whether s 19ALB or established practice of Commonwealth to be disregarded in sentencing – whether sentence manifestly excessive – whether improbability of parole warranted reduction of sentence

Catchwords:

CRIME — Appeals — Appeal against sentence — Future commencement date of sentence — Delay — Revocation of parole — Manifest excess

Catchwords:

CRIME — Appeals — Appeal against sentence — Purposes of sentencing — General and specific deterrence — subjective circumstances

Catchwords:

CRIME – appeals – appeal against conviction – judge-alone trial – multiple carjacking, firearm and assault with intent to rob in company offences – where offending occurred over 18-hour time period and covered more than 1000km – where appellant in coercive control relationship with co-offender – duress – where trial judge determined that duress had not been established – whether trial judge erred by failing to consider that duress sufficiently raised to be considered by tribunal of fact – held trial judge’s ruling clearly a final determination as the tribunal of fact – whether there must be evidence of a particular request or demand to commit the offences charged – no direct or implied evidence of a demand or request to commit any of the offences – trial judge correctly concluded that the Crown had negatived the issue of duress – appeal dismissed

Catchwords:

CRIME — Appeals — Crown appeals against sentence — Commonwealth and State drug offences – import commercial quantity of border controlled drug – whether manifest inadequacy – whether sentencing judge determined objective seriousness – where co-offender received higher sentence – whether co-offender’s sentence and comparative cases demonstrative of error – subjective cases – whether sentences encompassed the whole of the criminality

Catchwords:

CRIMINAL LAW – Crown appeal – sexual intercourse with a 10 year old child – offence on Form 1 – respondent serving an aggregate sentence for domestic violence offences – concession by respondent that sentence was manifestly inadequate when the degree of concurrence with existing sentence was taken into account – whether sentence for the offence was manifestly inadequate – whether sentencing judge had taken into account specific deterrence, protection of society and denunciation – whether error in consideration of JIRS statistics – whether error in consideration of JIRS starting date of sentence – residual discretion – resentence – assessment of objective seriousness – consideration of moral culpability – respondent’s deprived background – whether causal link between deprived background and offending – whether causal link necessary – mental health – approach to totality – appeal allowed

Catchwords:

CRIME – sentence appeal – finding of lack of remorse based on lack of candour – finding open – finding of attempts to minimise role – finding open – parity – no error – appeal dismissed

Catchwords:

CRIMES – appeals – appeal against sentence – where applicant pleaded guilty to possession of a pistol and two counts involving discharge of the weapon – where sentencing judge misapprehended agreed facts as to which count involved the infliction of second gunshot wound – whether despite factual error no lesser aggregate sentence warranted for the three counts

Catchwords:

CRIME – Crown appeal – whether aggregate sentence for multiple counts of supplies of large commercial quantities of prohibited drugs manifestly inadequate – totality - significance of sentences previously imposed for separate supplies of large commercial quantities of prohibited drugs – significance of separate sentence imposed by sentencing judge for separate offending contrary to federal law – whether inadequacy of sentence so marked that amounted to an affront to justice – appeal allowed and respondent resentenced

Catchwords:

CRIME – appeals – appeal against conviction – circumstantial case – whether trial judge’s directions in response to jury question gave rise to miscarriage of justice – jury directed that there was no evidence to support a particular inference inconsistent with the Crown case but consistent with guilt – direction a proper reflection of evidentiary position – no misdirection established CRIME – appeals – appeal against sentence – murder – relevance in sentencing proceedings of generalised research on effects of background of disadvantage – Bugmy Bar Book – relevance of background of disadvantage to sentencing for serious offending – appeal allowed – offender resentenced

Catchwords:

CRIME – Appeals – Appeal against conviction – accessorial liability – applicant convicted of accessory before the fact to murder by shooting – whether impermissible reliance by the Crown on an alternative path to guilt on the basis of knowledge of an unidentified act committed with the intention of causing grievous bodily harm of an unidentified kind – whether trial judge’s instructions gave rise to error of law – whether knowledge of the type of offence in accessorial liability includes knowledge of the manner in which it will be brought about – crown submissions and directions read in proper context–leave granted – appeal against conviction dismissed CRIME – appeals – appeal against sentence – murder – accessorial liability – whether the sentencing judge failed to engage with a critical submission advanced on the applicant’s behalf about the applicant’s knowledge of the principals’ intention – leave to appeal granted – appeal dismissed CRIME – appeals – Crown appeal against sentence – murder – accessorial liability – whether the sentence imposed for murder is manifestly inadequate – whether the sentencing judge erred in failing to accumulate the sentence imposed in relation to the accessory after the fact of murder count to any extent – sentence imposed for murder was manifestly inadequate – respondent resentenced

Catchwords:

CRIME — Bail — Detention application — where “exceptional circumstances” established — whether bail conditions could ameliorate risk of commission of serious offence which endangers safety of community — where conditions could not ameliorate risk — where application granted and bail revoked CRIME — Bail — Terrorist offences — “Exceptional circumstances” — where respondent has been incarcerated for seven years — where COVID-19 pandemic has made conditions more onerous than normal — where “exceptional circumstances” established

Catchwords:

CRIME – appeals – Crown appeal against sentence – manifest inadequacy – 14 counts of child sexual abuse against biological daughter over a period of two years – where complainant was aged between 6 and 8 years – where clear guidance on the appropriate range for indicative sentences for this type of offending was recently provided in Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 – where Crown drew attention to TH in its written submissions to the sentencing judge – held indicative sentences for 10 offences at mid-range and above mid-range far below the proper range of sentences for such offending – where head sentence for all of the offending less than standard non-parole period for 1 of the 13 counts of sexual intercourse with a child under 10 years –– aggregate sentence an affront to the administration of justice – Court must intervene and resentence – appeal allowed – resentence

Catchwords:

CRIMES – appeals – appeal against sentence – manifest excess – where applicant pleaded guilty to six offences including supply of shotgun – whether degree of notional accumulation unreasonable – whether indicative sentences nominated for minor offences excessive – where degree of accumulation additional to indicative sentence for most serious offence of supply shotgun very modest – aggregate sentence not manifestly excessive

Catchwords:

CRIME – Appeals – Appeal against sentence – leave to appeal granted – parity – whether applicant has a justifiable grievance in light of the sentences imposed on the co-offenders – manufacture of a large commercial quantity of MDMA – criminal enterprise – group of four offenders – where two co-offenders previously successfully appealed sentences to achieve parity with applicant – where applicant was slightly lower in hierarchy than co-offenders – differentiation justified by other factors – no justifiable sense of grievance established – appeal dismissed