Recent decisions for Court of Criminal Appeal

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

PRACTICE AND PROCEDURE – amendment of orders

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

CRIME – appeals – appeal against sentence – resentence – penalties – Intensive Correction Orders – construction of s 68 of the Crimes (Sentencing Procedure) Act 1999 (NSW) – whether court permitted first to form an intention to make an ICO and then to select a sentence in order to satisfy s 68 – construction of s 66 of the Crimes (Sentencing Procedure) Act – whether court must positively conclude that an ICO is more likely to address the offender’s risk of reoffending than would serving a sentence of full time custody – effect of ss 70 and 71 of the Crimes (Sentencing Procedure) Act – whether an ICO can be made where a sentence is fixed to commence at an earlier time than the date on which it is imposed

Catchwords:

CRIMINAL LAW – sentence appeal – sexual offending against three victims taking place over 18 years – whether sentence manifestly excessive. CRIMINAL LAW — Appeal against sentence — Aggravating factor per s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999 (NSW) — Use of Victim Impact Statements — Whether sentence manifestly excessive

Catchwords:

CRIME – appeals – application for leave to appeal against convictions – whether verdicts unreasonable – whether complainant’s evidence of sexual misconduct of applicant specific to particular charges or merely generalised assertions of misconduct – need for close examination of complainant’s evidence on each count – frequent use of word “would” in parts of evidence – specific recollection of acts occurring on a particular occasion in other parts of evidence – convictions on some counts quashed and verdicts of acquittal entered on those counts CRIME – appeals – application for leave to appeal against convictions – whether verdicts unreasonable – whether complainant’s evidence lacked sufficient quality and consistency to permit its acceptance by jury – no clear support for one count – conviction quashed and verdict of acquittal entered on that count CRIME – appeals – successful appeal against convictions on ground of unreasonable verdicts – convictions quashed – whether appropriate to enter verdicts of acquittal or order new trial – Crown should not be permitted to attempt to obtain convictions at further trial by improving its case – absence of special circumstances – verdicts of acquittal entered

Catchwords:

CRIME – Appeals – Appeal against sentence – Assault occasioning actual bodily harm – Where charge laid before commencement of early appropriate guilty plea scheme – Whether early appropriate guilty plea scheme applied – Whether sentencing judge erred in failing to apply sentencing discount

Catchwords:

CRIME – SENTENCING – serious sexual assaults – victim detained at knife point – stabbed – repeatedly sexually assaulted – offender mentally ill – irrelevance of Form 1 offences to assessment of objective seriousness of substantive counts – error established – other alleged errors only considered to the extent they affect re-exercise of sentencing discretion – no lesser sentence warranted in law – appeal dismissed

Catchwords:

CRIME – Appeals – Appeal against sentence – Commonwealth offence – Importation of commercial quantity of border-controlled drug – Whether error in declining to take into account utilitarian value of guilty plea – Xiao error – Application for leave filed out of time

Catchwords:

CRIME — Appeals — Appeal against conviction — Application of rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to grounds — Adequacy of direction that evidence be considered as a whole — No proper basis for a Murray direction — Whether the trial judge should have directed the jury about matters relating to credibility — Matters quintessentially within the province of the jury require no direction CRIME — Appeals — Appeal against sentence Application for leave to appeal successful — Whether the sentencing judge erred in failing to sentence in accordance with the principles in Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37 — Whether the sentencing judge was entitled to sentence in accordance with Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 — Whether principles in Chiro v The Queen apply wherever extended unanimity direction given or only for omnibus offences which require proof of facts which themselves amount to offences – Alleged failure to take into account delay CRIME — Appeals — Crown appeal against sentence — Whether sentence imposed was manifestly inadequate – relevance of respondent’s age – need for general deterrence – objective seriousness of criminal conduct

Catchwords:

CRIME – Appeals – leave to appeal against sentence – competence of counsel – whether miscarriage of justice by reason of counsel’s conduct – context of unusual proceeding – no point of general principle

Catchwords:

CRIME — Appeals — Appeal against conviction — Inconsistency between verdicts on different counts — Two distinct acts of intercourse — Different assessment of the circumstances affecting the applicant’s state of mind at the time of the second act of intercourse — Applicant argued unreasonable verdict — Open to the jury to return a verdict of guilty on one count albeit not agreeing on the other count CRIME — Appeals — Appeal against sentence — By Crown — Alleged error in taking into account the applicant’s self-induced intoxication in mitigation — Using self-induced intoxication to “explain” the applicant’s conduct — Review of the sentencing judge’s assessment of the facts and objective seriousness — Alleged manifest inadequacy — Court to consider all circumstances that inform the sentencing exercise, except the applicant’s self-induced intoxication — Residual discretion to decline to intervene ought not be exercised CRIME — Appeals — Re-sentence — Purposes of sentencing in section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) — Aggravating and mitigating factors

Catchwords:

CRIME — Appeals — Appeal against sentence – whether sentencing judge erred in fixing commencement date of sentence at the expiration of the applicant’s head sentence for previous offences – where offences were committed against another inmate in gaol – need for general deterrence and discipline in custodial environment – whether sentencing judge erred in applying finding of special circumstances – where applicant had already served a sentence of 6 years commencing at the age of 18 – where sentencing judge fixed ratio of 57% for index offences – where total effective ratio was 76.9% – whether by inadvertence or miscalculation – where sentencing judge expressly took into account accumulation of sentences – held, no error

Catchwords:

APPEALS – jurisdiction of appellate court – discretion to exercise jurisdiction –– Crimes (Appeal and Review) Act 2001 (NSW) s 108 – where Attorney-General or Director of Public Prosecutions has submitted a question of law arising at or in connection with a trial – whether Court of Criminal Appeal can decline to exercise jurisdiction properly invoked CRIME – appeals – directed acquittal – submission to CCA to determine question of law arising at or in connection with trial – determination not affecting acquittal - Crimes (Appeal and Review) Act 2001 (NSW) s 108 – where question submitted concerns capacity of evidence to satisfy elements of offence charged – where trial judge directed acquittal on basis of incapacity of evidence to support finding of causation – whether question so framed is a question of law – whether question arose at or in connection with trial CRIME – fraud – dishonestly cause financial disadvantage by deception – causation – where bet placed with bookmaker by deception – whether winnings paid out by bookmaker capable of constituting financial disadvantage caused by deception CRIME – fraud – dishonestly obtain financial advantage by deception – causation – where bet placed with bookmaker by deception – whether winnings paid capable of constituting financial advantage obtained by deception – whether bet itself capable of constituting financial advantage

Catchwords:

CRIME – appeals – appeal against conviction – trial for offences of child sexual assault alleged to have been committed in the presence of other family members while they slept – where prosecutor gave notice that he did not intend to call certain family members as witnesses in the Crown case – tactical decision by accused not to ask to have those witnesses called and instead to seek a Mahmood direction – whether trial resulted in a miscarriage of justice

Catchwords:

CRIME – appeals – appeal against sentence – failure to take into account a relevant consideration – whether sentencing judge erred in his assessment of the significance of the death of Man Haron Monis – personal deterrence, future dangerousness and prospects of rehabilitation CRIME – appeals – appeal against sentence – facilitation of the administration of justice – s 22A Crimes (Sentencing Procedure) Act 1999 (NSW) – whether s 22A requires a two-stage approach or instinctive synthesis approach to sentencing –desirability of quantifying any discount imposed CRIME – appeals – appeal against sentence – re-sentence – objective seriousness of offence – comparable cases

Catchwords:

CRIME — Appeals — Appeal against sentence — Application for leave to appeal CRIME — Appeals — Appeal against sentence — Manifest excess

Catchwords:

CRIMINAL LAW – sexual offences alleged against multiple accused – confusion as to basis of liability – principal in the second degree – joint criminal enterprise – where earlier decision of the Court quashed a co-accused’s conviction – no challenge to earlier decision – concession by Director of Public Prosecutions – multiple offences – appeal upheld in relation to convictions on some counts – convictions on other counts confirmed – aggregate sentence quashed – matter remitted to District Court for re-sentencing

Catchwords:

CRIME - trial - appeal against conviction – charges of sexual and indecent assault – question of unreasonable and unsafe verdict by reason of inconsistency of verdicts – whether guilty verdict for sexual assault inconsistent with acquittal for indecent assault – whether rational explanation for differing verdicts

Catchwords:

CRIME – appeal – challenge to unreasonable verdict – not a ground which involves a question of law alone – leave required – Criminal Appeal Act 1912 (NSW), s 5 CRIME – appeal – inconsistent verdicts – whether miscarriage of justice – whether acquittals cast doubt on acceptance of complainant’s evidence – whether reasonable and logical explanation available accounting for acquittals CRIME – appeal – unreasonable verdicts – whether jury should have entertained a reasonable doubt – complainant’s evidence supporting convictions confirmed by medical evidence of injuries – DNA tests implicated offender – evidence of early complaint – complainant’s evidence plausible

Catchwords:

SENTENCING — appeal against sentence — erroneous application of standard non-parole period not in existence at time of offending — error conceded by Crown — other grounds not considered — consideration of resentence — penetrative sexual offending against natural daughter — offender previously incarcerated for penetrative sexual offences against at least one child — cognitive limitations but awareness of wrongfulness of actions — first instance total head sentence of imprisonment for 11 years with total non-parole period of 7 years — no lesser sentence warranted in law

Catchwords:

SENTENCE APPEAL – plea of guilty to negligently dealing with the proceeds of crime contrary to s 404.3(3) of the Criminal Code (Cth) – applicant set up company structure and at the direction of others issued invoices – applicant did not perform any of work described in the invoices – when assessing objective seriousness of offending, sentencing judge took into account that “there was clearly planning in which the offender used his knowledge of accounting procedures and business affairs” – whether her Honour had taken into account an irrelevant consideration when assessing objective seriousness – error established – sentence appeal allowed – applicant re-sentenced.

Catchwords:

APPEAL – appeal against conviction – offences of having sexual intercourse without consent knowing that the complainant was not consenting – whether jury misdirected on effect of substantial intoxication concerning complainant’s capacity to consent – whether jury misdirected concerning consent where issue raised whether complainant had mistaken belief as to identity of the person engaging in sexual intercourse with her - consideration of s.61HA Crimes Act 1900 - comparison with successor provision in s.61HE – Crown concession of error – error established – conviction quashed – retrial ordered

Catchwords:

CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Where appellant pleaded guilty to one count of using a carriage service to menace, harass or offend, four counts of using a carriage service to groom a person under the age of 16 years for sexual activity and one count of using a carriage service to procure a person under the age of 16 years for sexual activity – Where sentencing judge erred by failing to take into account the utilitarian value of the appellant's plea of guilty – Error established giving rise to the necessity to exercise the sentencing discretion afresh – Where plea was entered at the first available opportunity – Where the appellant had co-operated with authorities – Whether specific discount should be applied to reflect that co-operation – Where appellant demonstrated genuine remorse – Where appellant had no prior criminal history – Where offending was planned and involved the creation of false identities - Serious offending committed over a sustained period of time – Where offending involved predatory and manipulative behaviour towards teenage girls – No lesser sentence warranted in the fresh exercise of the sentencing discretion - Leave to appeal granted – Appeal dismissed CRIMINAL LAW – Sentence – Relevance of delay when sentencing a Federal Offender

Catchwords:

CRIME – appeals – appeal against conviction – applicant charged with 23 offences – applicant found guilty by jury of 22 offences – offences of assault, indecent assault, indecency and one count of sexual intercourse without consent (count 7) – seven young male victims – indecent assault offending typically involved “sack whacking” – where tendency evidence was admitted on basis that it would be used only in respect of indecent assault counts – where directions of trial judge did not confine use of tendency evidence - whether trial judge erred in ruling that if applicant adduced evidence to prove he was of good character Crown would be permitted to adduce evidence in rebuttal – where rebuttal evidence was not relevant to the aspect of character evidence that was raised – whether trial judge erred in directing jury they could use applicant’s stated understanding of “sack whacking” as a lie evincing consciousness of guilt – where applicant’s answers wholly subjective and not established to be untruthful by evidence – whether verdict on count 7 is unreasonable and cannot be supported having regard to evidence – where inference open to jury that applicant was reckless as to whether victim consented – re-trial on all counts ordered EVIDENCE – character evidence – character evidence in a particular respect – where rebuttal evidence should have been similarly confined

Catchwords:

CRIME – bail – release application – show cause offence – import commercial quantity of a border controlled drug offences – proceeds of crime offences – application for bail refused

Catchwords:

CRIMINAL LAW – sentence appeal – offences comprised aggravated take and detain a person with intent to obtain advantage, the circumstances of aggravation being the infliction of actual bodily harm and the advantage being psychological gratification – further offences of assault occasioning actual bodily harm and of driving with a high range content of alcohol in his blood were brought – with the exception of the driving offence, all offences were domestic violence related and committed against the same victim – aggregate sentence of 7 years imprisonment with a non-parole period of 4 years and 4 months – whether sentence was manifestly excessive – injuries described by sentencing judge as “horrific” and representing the most serious form of actual bodily harm – use by court of comparative cases – principles relevant to appellate review of aggregate sentencing – principles to be applied in domestic violence cases – manifest excess not made out – appeal against sentence dismissed.

Catchwords:

CRIMINAL LAW – sentence appeal – attempted sexual intercourse without consent – maximum penalty of 14 years imprisonment – assault on victim in train carriage – applicant under influence of methamphetamine at time of offending – no connection between mental condition and offending – applicant raised in environment of drug abuse and violence – previous conviction for producing child abuse material – finding of remorse – prospects of rehabilitation guarded – whether sentence manifestly excessive – limitations on use of comparative cases – leave to appeal granted but appeal dismissed.

Catchwords:

CRIMINAL LAW – sentence appeal – supply a prohibited drug on an ongoing basis – maximum penalty of imprisonment for 20 years – four matters on a Form 1 – whether sentence imposed on the applicant was manifestly excessive – whether applicant had a justified sense of grievance by reason of receiving a longer sentence than a co-offender – same judge sentencing both offenders – clear differences between applicant and co-offender – parity principles observed – no error on part of sentencing judge – appeal dismissed.

Catchwords:

CRIME – jury – rejection of application to discharge jury and juror – where it was submitted that juror deliberately lied on oath when being examined as to whether or not he participated in an external conversation with another juror and overheard by a court officer as to the meaning of a mandarin expression used by a witness in his evidence – whether sufficient for a finding of misconduct within the meaning of s 53A(1)(c) of the Jury Act 1977 (NSW) that there was a possibility or reasonable apprehension that juror may have deliberately lied – whether trial judge in fact made a finding to that effect – proper construction of s 53A of the Jury Act. CRIME – jury – rejection of application to discharge jury pursuant to s 53C of the Jury Act – discretionary decision – whether House v The King error demonstrated in exercise of trial judge’s discretion – where reasons given in an ex tempore judgment – proper approach to be taken by appellate court on review of such a decision. CRIME – sexual offences – aggravated sexual assault in company – meaning of “in company” – complicity – joint criminal enterprise – meaning of “common purpose” – whether verdicts of guilty were supported by the evidence.

Catchwords:

CRIMINAL LAW – Appeal – Appeal against sentence – Whether sentencing judge erred by taking into account the fact that the applicant was on conditional liberty in assessing the objective seriousness – Where a fair reading of the sentencing judge’s remarks did not support the conclusion that the applicant’s conditional liberty was taken into account in determining the objective seriousness – Whether sentencing judge failed properly to consider Bugmy principles or the evidence giving rise to the application of those principles – Evidence adequately considered and principles taken into account – Whether sentence manifestly excessive – Comparative cases considered – Leave to appeal granted – Appeal dismissed

Catchwords:

SENTENCING — appeal against sentence — reckless wounding — offender on parole for identical offence — schizophrenia and intellectual deficits — drug abuse — whether head sentence of imprisonment for 4 years after application of 25% discount manifestly excessive — approach to mental illness when not relied upon as direct or immediate cause of offending — approach to mental illness when inextricably bound up with drug abuse — ground established and head sentence and non-parole period reduced — recommendation that State Parole Authority consider imposing further conditions of parole

Catchwords:

CRIMINAL PROCEDURE — power to extend time for leave to appeal — delay of years between imposition of sentence and bringing of application —extension refused on basis that expansion not warranted — no acceptable explanation for delay in application — submissions of applicant largely based on assertions of fact not founded on evidence in application SENTENCING — appeal against sentence — fresh or new evidence — documentary evidence tendered on behalf of applicant in proceedings on sentence sought to be impugned years later — issue of availability at time of sentence of material advanced on all grounds — relevance of asserted onerous prison conditions — relevance of asserted exceptional hardship to family of incarcerated applicant — grounds not made out

Catchwords:

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

Catchwords:

CRIMINAL LAW – appeal – appeal against conviction – applicant found guilty of offences under Commonwealth Criminal Code of importing border controlled drugs – large quantity of methamphetamine imported into Australia by sea glued to insides of kayaks – applicant involved in obtaining possession of kayaks from freight forwarder – extended definition of import – physical elements of offences satisfied – fault elements of offences – prosecution required to establish applicant intended to import a substance, and knew or was reckless as to the substance being a border controlled drug – whether jury was misdirected – written directions distinguished fault elements – lengthy oral directions conflated the two – overall effect apt to instruct jury that sufficient to find that applicant was reckless as to all elements – primary judge in fact sentenced on that basis – proviso inapplicable – appropriate case for extension of time and grant of leave pursuant to r 4 Criminal Appeal Rules – convictions quashed and retrial ordered – Commonwealth Criminal Code, ss 5.2, 5.4, 11.1, 307.1, 307.3, 307.5

Catchwords:

CRIMINAL LAW – sentence appeal – offence of intentionally making a document connected with the preparation for a terrorist act knowing of that connection contrary to s 101.5(1) of the Criminal Code 1995 (Cth) – failure to have regard to the utilitarian value of the plea of guilty in accordance with s 16A(2)(g) of the Crimes Act 1914 (Cth) – error disclosed and need to resentence – protection of the community, punishment, denunciation of the offending and general deterrence relevant to objective seriousness – objective gravity higher than mid-range – lack of insight into offending – appeal against sentence allowed – term of imprisonment reduced on resentence.

Catchwords:

CRIME – appeal against sentence – applicants pleaded guilty to Commonwealth offence of attempting to possess a commercial quantity of a border controlled drug (methamphetamine) – whether Xiao v R error established – error demonstrated – no lesser sentence warranted on resentencing – appeals dismissed

Catchwords:

SENTENCING – penalties – intensive correction orders – whether sentencing judge erred in assessment pursuant to s 66(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – no error shown SENTENCING – sentencing procedure – agreed facts – where sentencing judge misstated agreed facts – error established – resentence – no lesser sentence warranted

Catchwords:

CRIMINAL LAW – Offences – Sentence – Appeal – Wounding with intent to cause grievous bodily harm – “Road rage” incident – Whether the injury to the victim was substantial – Where Crown had submitted to the sentencing judge that the injury was not “really serious” – Where that position had apparently been accepted by counsel for the offender – Whether the Crown’s statement amounted to a concession that the injury was not substantial – Where a proper reading of the reasons of the sentencing judge indicated a finding contrary to the position taken by the Crown – Error established – Applicant re-sentenced

Catchwords:

CRIME – appeals – appeal against sentence – murder – failure to take into account a relevant consideration – Bugmy v The Queen – deprived background and early introduction to substance abuse CRIME – appeals – appeal against sentence – manifest excess – murder – heroin injection – mercy killing – deliberate taking of a human life

Catchwords:

CRIME – appeals – leave to apply to set aside judgments and orders – further vexatious application – no issue of principle

Catchwords:

CRIMINAL LAW – whether context evidence improperly excluded – where context evidence of uncharged illegal acts post-dating charged offences – whether necessary to assist jury in understanding complainant’s evidence – whether necessary to explain why an immediate complaint was not made – whether risk of unfair prejudice to applicant by jury conflating charged and uncharged acts – whether risk of jury engaging in impermissible tendency reasoning – whether Crown case substantially weakened CRIMINAL LAW – application for permanent stay – leave to appeal against refusal – interlocutory judgment or order – where complainant’s evidence to be presented by playing recording of evidence given in earlier trial – re-trial after successful appeal – relevant legislation – absence of discretion in trial judge – where conduct of earlier trial said to be incompetent – failure to distinguish counts from uncharged acts – cross-examination lacking forensic purpose – whether court can predict whether future trial will be unfair – whether stay appropriate when unfairness the result of statute – appeal against refusal to stay dismissed

Catchwords:

CRIME – Appeals – Appeal against sentence – Supply not less than a commercial quantity of a prohibited drug – Incorrect standard non-parole period referred to in sentencing – Whether error shown – Whether sentence manifestly excessive

Catchwords:

CRIME – appeals – leave to apply to set aside judgments and orders – jurisdiction to reconsider appeal – vexatious application – no issue of principle

Catchwords:

CRIME – appeals – appeal against sentence by Crown – recklessly causing grievous bodily harm – baby shaken like a ragdoll – finding of objective seriousness not open – discount for assistance to authorities should not have been given – failure to consider Crimes (Sentencing Procedure) Act 1999 (NSW) s 23 – misunderstanding of R v Ellis – onus on offender to establish discount for assistance to authorities – direct evidence from investigating police officers needed to prevent speculation – manifest inadequacy – resentence appropriate SENTENCING – relevant factors on sentence – objective seriousness – baby victim and permanent brain injury important considerations

Catchwords:

APPEAL – sentence – applicant convicted of offences of possessing and uttering counterfeit money and producing false documents – applicant sentenced prior to decision in Xiao v R – regard not had to utilitarian value of Applicant’s pleas of guilty – Xiao v R error demonstrated – consideration of factors relevant to sentence for counterfeiting and identity fraud offences – general and specific deterrence significant factors on sentence – applicant resentenced

Catchwords:

CRIME – appeals – appeal against sentence – manifest inadequacy – whether there was a misapplication of principle – objective seriousness – where objectiveness seriousness above the midrange CRIME – appeals – appeal against sentence – manifest inadequacy – comparative cases – whether comparable cases provide a meaningful range of sentences as a yardstick

Catchwords:

CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Where applicant pleaded guilty to one count of stealing from the person of another and one count of robbery in company – Additional count of robbery in company contained in a Form 1 – Robbery at a convenience store – Where the applicant snatched a wallet from a customer before returning to the store and producing a knife and threatening the proprietors – Where the applicant threatened the safety of the proprietors’ four year old child if his demand for money was not met – Where the applicant was aged 18 at the time of the offending and had a significantly disadvantaged upbringing in which he was consistently exposed to abuse – Where the applicant had a lengthy criminal history and was on bail and on probation at the time of the offending – Whether the sentencing judge was “distracted” from a proper consideration of the applicant’s subjective case by his application of the relevant guideline – Whether the sentencing judge failed to properly analyse the applicant’s lengthy criminal history – Whether sentence was manifestly excessive bearing in mind the applicant’s subjective case – Leave to appeal granted - Appeal dismissed

Catchwords:

APPEAL – sentence – applicant pleaded guilty to Commonwealth and New South Wales child abuse material offences – whether error concerning co-operation with law enforcement authorities – error not demonstrated – whether sentences manifestly excessive – individual sentences and total effective sentence not manifestly excessive – appeal dismissed

Catchwords:

CRIME – bail – release application – proposed conviction and sentence appeal – preliminary question of jurisdiction to hear and determine release application – no appeal “pending” before the Court – no jurisdiction to hear application – on the assumption that jurisdiction did exist – s 22 test not met by applicant – whether prospects of succeeding on appeals – where difficulty of preparing appeal in custody not special or exceptional circumstances

Catchwords:

APPEAL – conviction – Applicant convicted of murder – Applicant suffocated his wife – partial defence of substantial impairment relied upon unsuccessfully at trial – partial defence of extreme provocation not relied upon at trial – contended on appeal that extreme provocation should have been left to jury – consideration of partial defence of extreme provocation in s 23 Crimes Act 1900 (NSW) – proper construction and operation of s 23 – held that partial defence of extreme provocation not raised on evidence at trial – miscarriage of justice not established – leave refused under Rule 4 Criminal Appeal Rules – leave to appeal against conviction refused

Catchwords:

CRIME – appeals – appeal against sentence – applicant pleaded guilty to six offences – two indictable offences of assaulting a police officer one contrary to s 60(2) – four summary offences of possessing a prohibited drug – aggregate sentence imposed - whether sentencing judge erred in declining to fix a non-parole period – whether sentencing judge took into account irrelevant considerations and did not take into account relevant considerations – where sentencing judge not advised that s 60(2) offence carried a standard non-parole period - whether error in not indicating a non-parole period for indicative sentence for s 60(2) offence – where any error would have had no effect on the aggregate sentence – whether sentence was manifestly excessive

Catchwords:

CRIMINAL LAW – Criminal Appeal Act, s 5F(3) - application for leave to appeal against interlocutory judgment or order – whether the refusal of the trial judge to revoke the appointment of a “children’s champion” or witness intermediary is an interlocutory judgment or order – interpretation of Part 29 of Schedule 2 to the Criminal Procedure Act 1986 – whether clause 89(5) operates as a continuing condition of a witness intermediary’s appointment – whether a witness intermediary can be a witness in the proceedings – meaning of assisted in a “professional capacity” – whether clause 89(5)(b) requires determination of whether a witness intermediary’s impartiality compromised – whether assistance restricted to therapeutic assistance – leave to appeal granted – appeal allowed – appointment of witness intermediary set aside

Catchwords:

CRIMINAL LAW – appeal – appeal against sentence – parity – whether applicant has a justifiable sense of grievance having regard to the sentence imposed on a co-offender

Catchwords:

CRIMINAL LAW – sentence appeal – applicant pleaded guilty to two offences of aggravated break enter and commit serious indictable offence contrary to s 112(2) of the Crime Act 1900 (NSW) – co-offender convicted of one offence of aggravated break enter and commit serious indictable offence – whether error in sentencing judge not referring to Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 when that case had not been brought to her attention in the sentence hearing – Bugmy v The Queen considerations did not arise – whether the applicant’s sentence should be reduced for parity reasons – no justified sense of grievance – appeal dismissed.

Catchwords:

CRIMINAL LAW – procedure – application to vacate trial date – where complainant not available for medical reasons – refusal of adjournment application – where accused consented to Prosecutor’s application – where evidence to be used as tendency evidence in respect of other complainants – role of Prosecutor – role of trial Judge – case management – tail wagging dog – whether decision unreasonable or plainly unjust CRIMINAL LAW – application to discharge jury – antecedent adjournment application not dealt with – where trial Judge insists on empanelling jury – where jury made aware of complainant who was unavailable – application of wrong test – question is not whether there may be a “substantial miscarriage of justice”

Catchwords:

CRIMINAL LAW - appeal against conviction - prescribed sexual offence - evidentiary ruling - Criminal Procedure Act 1986 (NSW), s 293 - appellant charged with counts of sexual intercourse without consent - appellant admitted sexual intercourse in ERISP but maintained complainant had consented - portions of appellant’s answers concerning complainant’s conversation about her sexual history ruled inadmissible - whether admissibility under s 293(4)(a) had been advanced at trial - whether leave to do so should be granted on appeal - whether excluded answers were evidence of complainant’s sexual experience at time of alleged offence - whether excluded answers formed part of connected set of circumstances - whether probative value of excluded evidence outweighed distress, humiliation or embarrassment of complainant - whether if evidence wrong excluded, proviso applied - appeal allowed, convictions quashed and retrial ordered EVIDENCE - Criminal Procedure Act 1986 (NSW), s 293 - evidence of conversations prior to alleged prescribed sexual offence concerning complainant’s conversation about her sexual history - whether exception in s 293(4)(a) applied

Catchwords:

CRIME – appeals – application to set aside judgments and orders – jurisdiction to reconsider appeal

Catchwords:

CRIMINAL LAW – appeal pursuant to s 5F – interlocutory decisions – whether error in refusing an application for separate trials – whether failure to properly construe and apply ss 97, 101 of the Evidence Act 1995 (NSW) in finding that the evidence with respect to each of the complainants was admissible as tendency evidence – whether error in not excluding evidence due to risk of unfair prejudice to applicant pursuant to s 101 of the Evidence Act.

Catchwords:

CRIME – appeal against conviction – applicant convicted of child sex offences – ground of appeal challenges aspects of summing up to jury – statements by trial Judge concerning evidence of children – whether statements made exceeded permissible comment in accordance with RGM v R [2012] NSWCCA 89 and McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5 – held that cumulative effect of statements gave rise to miscarriage of justice – appeal allowed – convictions quashed – new trial ordered

Catchwords:

CRIME – appeals – leave to appeal against convictions – extension of time – delay caused by risk to safety of applicant while in custody CRIME – child sex offences – sexual intercourse with child under 10 by digital penetration – sexual intercourse with child between 10 and 14 years – indecent assaults CRIME – appeals – appeal against conviction – conviction on 14 charges, acquittal on 3 charges – whether verdicts inconsistent – whether dismissal of particular charges affected credibility of complainant – whether basis for jury to distinguish between reliability of evidence on different charges – whether verdicts unreasonable and unsupported on the evidence CRIME – appeals – application for leave to appeal against sentence – applicant’s age and ill-health – conditions of imprisonment – whether taken into account by sentencing judge – seriousness of offending – multiple offences against step-daughter – victim aged between 8 and 13 years – whether aggregate sentence manifestly excessive

Catchwords:

CRIME – Appeals – Appeal against aggregate sentence – prohibited drug offences including not less than the large commercial quantity of methylamphetamine – whether failure to afford procedural fairness – whether error in assessing the objective seriousness of the supply of the large commercial quantity of methylamphetamine – whether marked disparity with sentence imposed on co-offender A – whether error in not referring to applicant’s evidence – re-sentence considered

Catchwords:

CRIME — Appeals — Appeal against conviction — whether verdicts were inconsistent or otherwise unreasonable – where both complainants alleged certain offences occurred in a garage at a time when the garage had not yet been constructed – where both complainants allege that certain offences occurred at a family home in 1974 or 1975 but they did not live at the premises until 1976 – where the applicant was acquitted on these counts – whether the jury’s doubts in respect of those counts were attributable only to doubts about the complainants’ credibility – held, the verdicts were not inconsistent or otherwise unreasonable CRIME — Appeals — Appeal against conviction — Miscarriage of justice – whether the trial judge erred in failing to exclude the whole of one complainant’s evidence on the basis of hypnosis or EMDR therapy – where the complainant denied having hypnosis therapy – where EMDR therapy was undertaken after giving a statement to police but before trial and was not video recorded – where there was no indication that the complainant’s evidence changed following EMDR therapy – held, the trial judge’s finding with respect to hypnosis was a finding of fact in respect of which no error was demonstrated – held, the trial judge did not err in failing to exclude the evidence under s 137 on the basis of the EMDR therapy CRIME — Appeals — Appeal against conviction — Miscarriage of justice – whether the trial judge erred in admitting evidence of complaints made to friends, partners and relatives in the decades following the alleged offences – meaning of “fresh in the memory” under s 66(2) of the Evidence Act – where traumatic events are likely to remain fresh in the memory for many years after the events – where complaints were made in similar terms many times over the relevant period – held, no error in admitting complaint evidence under s 66(2)

Catchwords:

CRIME — Appeals — Appeal against sentence — Alleged miscarriage of sentence proceedings — Incompetence of counsel — Denial of procedural fairness — Manifest excess

Catchwords:

CRIMINAL LAW – release application – bail after sentence on indictment – bail pending appeal – special or exceptional circumstances – appeal against conviction – where pleas of guilty entered on indictment – relevant considerations – assessment of prospects of appeal – escape lawful custody – defence of necessity – whether unacceptable risk

Catchwords:

CRIME - appeals - appeal against conviction and sentence - applicant found guilty of four offences contrary to ss 61M(2) and 66A - two separate complainants both grandnieces of the applicant aged 7 and 12 - indecent assaults and digital penetration - whether the trial judge erred in directing the jury that evidence of complaint was independent of what two complainants said in court - whether trial judge erred in admitting a statement on sentence containing hearsay - where the statement impugned applicant’s character but was not tendered for that purpose - where applicant did not raise good character - whether the sentence was manifestly excessive - appeal dismissed

Catchwords:

CRIMINAL LAW – Offences – Sentence – Appeal – Applicant pleaded guilty to an offence of importing a commercial quantity of a border-controlled drug – Where applicant had assisted the authorities by making an induced statement outlining the circumstances of the importation and his involvement in it – Statement far more detailed than the facts tendered on sentence – Where Crown tendered the applicant’s statement in the context of his assistance – Failure on the part of both the Crown and counsel then appearing for the offender to address the issue of the use to which the statement could be put by the sentencing judge – Where the sentencing judge made a series of findings based on the statement as to the applicant’s role and his level of criminality in comparison with his co-offenders – Where those findings were adverse to the applicant – Error established CRIMINAL LAW – Offences – Sentence – Appeal – Applicant pleaded guilty to an offence of importing a commercial quantity of a border-controlled drug – Necessity to re-sentence the applicant in the fresh exercise of the sentencing discretion – Objectively serious offending involving the importation of sixteen times the commercial quantity of cocaine – Where applicant pleaded guilty and expressed genuine contrition – Where applicant co-operated with law enforcement and provided a high level of assistance extending to promised future assistance – Where applicant had fears for his personal safety arising out of his assistance to authorities – Where applicant’s criminality at a substantially higher level than either co-offender – Applicant re-sentenced CRIMINAL LAW – Practice and procedure – Use which can be made on sentence of an induced statement which has been made by an offender for the primary purpose of assisting the authorities – Necessity for both the Crown and defence to be clear at the time of tendering the statement as to the use to which it is intended that such statement be put – Observations as to the obligations on both the Crown and the defence to assist a sentencing judge – Observations as to the basis on which the sentence hearing should properly have been conducted

Catchwords:

CRIMINAL LAW – sentence appeal – persistent sexual abuse of a child contrary to s 66EA Crimes Act 1900 (NSW) – whether fact that some offences occurred in New Zealand with lower maximum penalties should have been taken into account by sentencing judge – whether adequate allowance made for prospects of rehabilitation – error in applying plea of guilty discount to aggregate sentence – sentence appeal allowed – need to re-sentence.

Catchwords:

SENTENCING — Relevant factors on sentence — Co-offenders — Parity

Catchwords:

CRIME – appeal – miscarriage of justice – misstatement of prosecution case by trial judge – whether misstatement was significant in a material respect CRIME – violent offences – wound with intent to cause grievous bodily harm – glassing with empty bottle – second possible offender present – whether prosecution had excluded possibility that other person responsible for attack

Catchwords:

CRIMINAL LAW – sentence appeal – supply a commercial quantity of a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) and import a marketable quantity of a border controlled drug contrary to s 307.2(1) of the Criminal Code (Cth) – pleas of guilty – sentence of 8 years and 9 months with a non-parole period of 6 years – whether sentencing judge took into account lack of prior relevant criminal antecedents and prior good character – whether the sentence imposed for the importation offence was manifestly excessive – grounds of appeal not made out – application for leave to appeal against sentence is dismissed.

Catchwords:

CRIMINAL LAW – conviction appeals – murder – intimidation – single joint criminal enterprise - where offender directed the contract killing of a former business associate and the intimidation of his wife – history of disputes between the offender and victims – whether Crown proved beyond reasonable doubt events occurred at instigation of the applicant – leave to appeal required for all grounds - whether the jury verdict is unreasonable – whether there is a miscarriage of justice – whether the trial judge erred in admitting evidence – whether the trial judge erred in his directions to the jury in respect of the use of evidence – whether evidence cross-admissible – tendency reasoning - anti-tendency direction – appeal dismissed.

Catchwords:

CRIMINAL LAW – sentence appeal – accessory after the fact to murder – interference with evidence and assistance provided after the primary offence – whether sentencing judge erred in assessing objective gravity of the offence – whether there had been prior planning and arranging – whether open to sentencing judge to reject evidence called on behalf of the applicant that his experience in custody would be more onerous than that of the general prison population – whether his Honour adequately or at all took into account the effects of the COVID-19 pandemic – whether open to sentencing judge to substantially dismiss the applicant’s subjective case – whether the applicant should have leave to rely upon fresh evidence as to his medical condition – appeal against sentence dismissed.

Catchwords:

CRIMINAL LAW – urgent appeal against decision to discharge jury – where Prosecutor raises tendency and coincidence reasoning in closing address – where notice requirements not complied with – prejudice to accused – where trial Judge invites application to dispense with notice requirements – where application opposed – decision to discharge jury without application by either party – whether Prosecutor should be permitted to improve its case in subsequent trial – whether appropriate to discharge jury – relevant considerations – where accused opposes discharge – “simple solution” for Prosecutor to withdraw submission and Judge to provide “anti-tendency” directions – decision to discharge unreasonable and plainly unjust – decision based on extraneous and irrelevant considerations – order to discharge jury vacated

Catchwords:

CRIME — dishonestly obtain financial advantage by deception — plea of guilty entered and agreed facts signed whilst represented — co-accused in joint criminal enterprise acquitted by direction at subsequent trial — application for withdrawal of guilty plea refused — where guilty plea said to be entered for convenience and not genuine consciousness of guilt — asserted defect in Crown case with regard to causation

Catchwords:

CRIMINAL LAW – sentence – appeal against sentence – guilty plea to manslaughter – applicant sentenced on basis of agreed facts concerning applicant’s involvement in gunfight – no error in failing to give sufficient weight to remorse – no error in failing to find special circumstances – sentencing judge accepted offender had provided assistance by explaining his involvement in the gunfight but declined to discount sentence – reasons did not comply with Crimes (Sentencing Procedure) Act 1999 (NSW) s 23 – offender resentenced

Catchwords:

CRIME —appeal against sentence— sexual offences — indecent assault — circumstances of aggravation – applicant pleaded guilty to three counts of indecent assault of a person under 16 years – three victims - relevant factors on sentence — multiple offences — accumulation, concurrency and totality– whether consideration of indicative sentences indicates error in the aggregate sentence - application of the principle of totality to aggregate sentence – manifest excess – objective seriousness – leave to appeal granted – appeal dismissed

Catchwords:

CRIMINAL LAW – appeal against sentence – three offences of aggravated sexual intercourse without consent – whether sentencing judge erred in failing to allow separate discount for voluntary disclosure of guilt – consideration of “Ellis discount” principles – ground upheld – applicant resentenced

Catchwords:

CRIME – murder – conviction appeal – lengthy trial – appellant convicted of five counts of murder – killing of his wife’s relatives in nearby home CRIMINAL TRIAL – accusatory and adversarial process – role of appellant court – appellant court not forum to retry case, reformulate cases presented by parties at trial or speculate how cases might have been conducted differently – grounds for admission of new evidence on appeal – related to grounds of appeal - DNA evidence lead at trial sought to be challenged on basis of new evidence lead on appeal - new evidence not “fresh” and did not establish innocence of accused or give rise to reasonable doubt – HELD evidence not admissible in relation to challenge to admission and use of DNA evidence - evidence was admissible to the extent it related to allegation of incompetence by trial counsel. DNA EVIDENCE – stain containing DNA from multiple contributors found in appellant’s garage – use of probabilistic computer analysis known as “TrueAllele” to determine likely contributors – prosecution contended four victims’ DNA present – at trial defence accepted DNA of three victims present but contended DNA from relative overseas at time of killing also present – new case on appeal – admissibility of analysis and evidence from expert challenged on different basis – contended that expert not qualified and software not appropriately validated – contended that evidence otherwise misleading – prosecutor’s fallacy – evidence sought to be challenged on basis of new evidence lead on appeal - HELD – evidence properly admitted at trial– alleged lack of validation not relevant to admissibility under s 79 of the Evidence Act – assuming trial judge refused to allow questioning on voir dire about validation then trial judge was correct to do so – prosecutor’s fallacy not established – misleading nature of evidence not established - new evidence not “fresh” and did not establish innocence of accused or give rise to reasonable doubt – evidence not admissible in relation to challenge to admission and use of DNA evidence “CSI” DIRECTION – contended that trial judge erred in directing jury not to expect all issues to be answered by forensic analysis – whether direction had tendency to divert jury from considering evidence and whether guilt established beyond reasonable doubt – HELD – no miscarriage of justice established – ground rejected CONSCIOUSNESS OF GUILT – prosecution relied on conduct of accused on day of killing and period thereafter as consciousness of guilt – contended that trial judge erred in failing to direct jury about the hypothetical reason he might have engaged in the alleged conduct – in one case accused provided reason and in other case accused denied the conduct – no application made to trial judge for further direction - HELD – direction not required – where accused provided reason for engaging in alleged conduct suggested hypothetical reasons added nothing – where accused denied conduct suggested direction had real tendency to undermine denials – as for balance of conduct said to support consciousness of guilt contended that trial judge’s summing up was unbalanced in favour of the Crown - contended that trial judge failed to put the “real defence case” – no redirection sought- HELD – no miscarriage of justice established – summing up accurately reflected parties case as presented at the trial – leave to raise ground refused. ALIBI – appellant contended that he was asleep with his wife when killings occurred – alleged that trial judge’s summary of the alibi evidence was inaccurate and directions were unbalanced – no redirection sought- HELD – complaint not established – leave to raise the ground refused COINCIDENCE EVIDENCE – Crown contended that murder weapon was “hammer like device” – folded cloth and rubber band found at crime scene covered in victims’ blood – Crown contended that it covered murder weapon – “improvised massage device” found at appellants’ premises – covered with folded cloth and rubber band – similar depressions on each cloth – contended that evidence of massage device wrongly admitted as coincidence evidence – HELD – evidence correctly admitted – sufficient similarities to establish evidence had significant probative value – conclusion not rebutted by dissimilarities – no prejudicial effect establish – ground rejected MISCARRIAGE ARISING FROM CONDUCT OF TRIAL COUNSEL – contended that conduct of appellant’s counsel occasioned miscarriage of justice – conduct to be assessed in the context of the trial as it unfolded and the material available to counsel – particulars of ground reflected other grounds – HELD – no miscarriage of justice demonstrated

Catchwords:

CRIMINAL LAW – Sentence – Appeal against sentence –Whether aggregate sentence manifestly excessive – Aggregate sentence not manifestly excessive in the circumstances CRIMINAL LAW – Sentence – Appeal against sentence – Parity – Whether applicant had justifiable sense of grievance by reason of marked disparity between the differences in length and mode of service of the sentences imposed upon him and his co-offender – Where applicant and co-offender were only co-offenders for one count among a collection of other offences – Objective and subjective features relevant to the applicant were different from those of the co-offender – No justifiable sense of grievance – Appeal dismissed

Catchwords:

CRIME — Appeals — Appeal against conviction — Directions to jury — accused’s right to silence — post offence conduct — consciousness of guilt — witnesses not called in the Crown case — hearsay evidence — victim’s motive to lie — Unreasonable verdicts CRIME — Appeals — Appeal against sentence

Catchwords:

CRIME – Appeals – Appeal against sentence – Extension of time in which to appeal – Whether sentencing judge erred in assessment of objective seriousness of offence – Whether sentencing judge erred by giving inadequate discount for guilty plea – Whether applicant’s legal representation in sentencing court incompetent – Drug offences – Manufacture prohibited drug – Large commercial quantity – Supply prohibited drug – Deemed supply – Possess prohibited drug precursor

Catchwords:

CRIMINAL LAW – appeal – appeal against sentence – robbery while armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act 1900 – whether sentencing judge erred in approach to fact finding –whether sentencing judge made findings inconsistent with agreed facts – where Crown conceded error – appeal allowed – applicant sentenced afresh

Catchwords:

CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Where applicant pleaded guilty to one count of importing a commercial quantity of a border controlled drug and one count of importing a marketable quantity of a border controlled drug – Where sentencing judge erred by failing to take into account the utilitarian value of the applicant’s plea of guilty – Error established – Where plea was entered at the first available opportunity – Where additional discount applied to reflect the applicant’s assistance to the authorities – Genuine remorse and good prospects of rehabilitation – Where applicant’s conditions of custody rendered more onerous as a consequence of an incident in custody which was no fault of the applicant – Applicant resentenced

Catchwords:

CRIMINAL LAW – Sentence – Appeal against sentence – Whether sentencing judge failed to consider the applicant’s diagnosis of PTSD according to sentencing principles – Where no psychiatric evidence as to the applicant’s mental condition and no evidence of causal connection with offending – Whether sentencing judge failed to give adequate reasons as to consideration of the applicant’s PTSD – Departure on appeal from case put at first instance – Appeal dismissed

Catchwords:

CRIME – appeal against conviction – release application pending determination of appeal

Catchwords:

CRIME – Appeals – Appeal against sentence – Aggravated break and enter and steal – Whether sentencing judge erred in failing to take into account the extent and severity of the applicant’s mental conditions – Whether sentencing judge erred in failing to determine whether and to what extent the applicant’s mental conditions reduced his moral culpability for his offending behaviour

Catchwords:

PROCEDURE – subpoena – application to set aside – whether subpoena issued for any legitimate forensic purpose – documents sought by subpoena already produced under a statutory notice – assertion that statutory notice invalid and documents produced under it unlawfully obtained – subpoena issuer’s knowledge of existence of subpoenaed documents came through sources other than statutory notice – no reason why a party should not seek to overcome inadequacies, for the purposes of proof, of documents already in its possession PROCEDURE – subpoena – application to limit scope – whether abuse of process to seek production of documents relating to days not the subject of criminal charges – arguable relevance to specific days the subject of charges, as tendency or coincidence evidence, to negative any defence and/or to sentencing

Catchwords:

CRIME – Appeals – Appeal against conviction – Corporations Act 2001 (Cth) s 184(2) – Dishonest use of position as director to gain benefit through transfers of funds and issuing of shares – Verdicts of guilty on all twenty-four counts – Whether trial judge misdirected jury as to elements of the offence – Alleged conflation of physical and mental elements – Whether jury required to be directed to be satisfied beyond reasonable doubt that the applicant did not have an honest belief that he was entitled to the funds paid to him – Appeal against conviction dismissed CRIME – Appeals – Appeal against sentence – Ten year sentence – Whether totality of criminal behaviour wrongly considered before individual sentences for each offence – Whether sentences should have been wholly concurrent – Whether inconsistency of co-offender’s sentence gives rise to justifiable sense of grievance – Whether trial judge erred in finding that lack of remorse prevented any prospects of rehabilitation – Appeal against sentence allowed – Sentence quashed and applicant resentenced to aggregate term of nine years and six months

Catchwords:

CRIME — Appeals — Appeal against conviction — Unreasonable verdict – whether Murray direction required in respect of complainant’s evidence CRIME – Appeals – trial by judge alone – adequacy of reasons

Catchwords:

CRIME – sentencing – federal offences – where applicant pleaded guilty to a foreign incursion offence contrary to part 5.5 of the Commonwealth Criminal Code – where sentencing judge had regard to principles developed in respect of terrorism offences contrary to part 5.3 of the Code – whether sentencing judge erred in sentencing the applicant by reference to principles applicable to terrorism offences under part 5.3 rather than foreign incursion offences under part 5.5 – consideration of the notion that there exist discrete principles applicable exclusively to particular kinds of offence in light of the overarching principle in Markarian – whether extent of radicalisation at the time of offending legally irrelevant to foreign incursion offences – whether sentencing judge erred in having regard to statements in terrorist cases concerning the weight to be given to the protection of the community when sentencing the applicant for a foreign incursion offence

Catchwords:

CRIME – appeals – appeal against sentence – re-sentence – accumulation of sentence – special circumstances – whether sentencing judge erred in variation of statutory ratio CRIME – appeals – appeal against sentence – conceal corpse – objective seriousness – whether sentencing judge erred in his determination that the applicants knew of the location of the deceased’s body but failed to disclose it – remorse – whether sentencing judge erred in his rejection of remorse CRIME – appeals – appeal against sentence – manifest excess – manslaughter – conceal corpse – objective seriousness of offences

Catchwords:

CRIMINAL LAW – trial - appeal against conviction – joint trial – aggravated sexual assault – manslaughter – hinder discovery of evidence – question of error in the directions to the jury concerning the use made of evidence of lies – whether convictions not supported by the evidence CRIMINAL LAW – appeal against sentence – asserted error in findings of fact concerning level of intoxication of complainant – asserted failure to take into account absence of planning – asserted error in assessment of seriousness of crime – question of delay as a mitigating feature – question of extra-curial punishment as mitigating feature – relevance of post offending conduct – prospects of rehabilitation – manifest excess

Catchwords:

CRIMINAL LAW – appeal against sentence – Family Law Act offence – dealing with proceeds of crime – offence taken into account on s 16BA schedule – schedule offence of greater seriousness than principal offence – use of s 16BA schedules – propriety of “roll-up” offence where one count encompassed 64 acts - application of quantum of discount for plea of guilty in federal sentence matters - question of concurrence and accumulation – use of aggregate sentence in Federal sentencing - relevance of mental illness to sentence – amelioration of sentence not automatic

Catchwords:

CRIME – appeals – appeal against sentence – failure to take into account a relevant consideration – manifest excess – taking into account an irrelevant consideration – where arguments on appeal were not made before the sentencing judge – offence of having sexual intercourse with a young person under special care and is aged 17 years or over and under the age of 18 years SENTENCING – relevant factors on sentence – objective seriousness – relevance of victim’s age to objective seriousness – relevance of a change in the elements of the offence post-sentencing

Catchwords:

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

Catchwords:

CRIME — Appeals — Appeal against sentence — Extension of time in which to file notice of grounds of appeal CRIME — Appeals — Appeal against sentence — where applicant convicted of ten counts of indecent sexual assault with persons under 16 years —— whether mere presence of children under 16 years was an aggravating factor — error found – mere presence insufficient to aggravate the offending CRIME — Appeals – Resentence – no point of principle

Catchwords:

CRIMINAL LAW – sentence appeal – domestic violence offences – whether House error in judge’s consideration of evidence of the applicant’s mental health – differences in applicant’s case before the judge and on appeal – repeat domestic violence offender – importance of specific and general deterrence emphasised – whether aggregate sentence manifestly excessive – whether indicative sentence for the count of choking contrary to s 37(1) Crimes Act was manifestly excessive – whether judge took into account delay – late guilty plea – further adjournments at request of applicant’s lawyer – whether non-parole period manifestly excessive after finding of special circumstances

Catchwords:

CRIME — Appeal — Appeal against conviction — point not raised below – where expert evidence admitted in first trial was ruled inadmissible in second trial – where ruling of trial judge in second trial was upheld in Court of Criminal Appeal – where following second trial the applicant sought leave to appeal against conviction in first trial – where no objection was taken to evidence at first trial – leave granted under r 4 Criminal Appeal Rules (NSW) as admission of the evidence led to a miscarriage of justice CRIME — Appeal — Appeal against conviction — miscarriage of justice — where Crown relied on the complainant’s drawing depicting an “abnormal skin flap” on applicant’s penis – where Crown adduced expert evidence from a general practitioner that there was no “major abnormality” in the applicant’s penis but it was “moderately unusual” – where general practitioner did not have specialised knowledge of anatomy or urology based on relevant training, study or experience – where jury invited to make comparison of drawing and photograph based on expert evidence of abnormality – held, admission of evidence led to miscarriage of justice – appeal allowed, conviction set aside – verdict of acquittal entered

Catchwords:

CRIMINAL LAW – applicants seeking leave pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) to appeal from refusal to grant a permanent stay of certain criminal proceedings brought against them – supplying prohibited drugs and weapon offences charged – convictions at first trial quashed by High Court and retrials ordered – additional proceeds of crime offences now charged – finding by primary judge that applicants had not demonstrated a fundamental defect giving rise to unfair consequences – applicants self-represented – some grounds of appeal misconceived – no unfairness in approach of primary judge – no basis for primary judge recusing himself on the basis of apprehended bias – applications for permanent stay refused – APPEALS BY ATTORNEY GENERAL pursuant to s 5F(2) of the Criminal Appeal Act 1912 – order prohibiting Brendan Pak from giving evidence in the prosecution of Seong Won Lee – order granting temporary stay of certain criminal proceedings pending payment of costs by DPP – no basis for finding by primary judge that Mr Pak changed his position in pre-trial interviews by NSW Crime Commission – no evidence that Mr Pak made aware of content of Seong Won Lee’s Crime Commission interviews – no proper basis for order prohibiting Brendan Pak from giving evidence in the prosecution of Seong Won Lee – appeal on that issue allowed and order quashed – in relation to temporary stay, failure by primary judge to take into account a relevant consideration – House v The King error established – fault on the part of DPP in original trials not of the kind to justify a temporary stay – appeal allowed and order granting temporary stay quashed – alternatively, a different temporary stay order should have been made – appeals by Attorney General allowed.

Catchwords:

CRIME – appeals – appeal against sentence – applicant charged with three separate offences – one child sex offence contrary to s 66A – child sex offence committed when applicant was aged 14 and victim aged 9 – applicant sentenced when aged 44 – offences of using a carriage service to menace/harass/offend and possession of child abuse material committed when applicant aged 39 - whether sentencing judge erred by having regard to current maximum penalty for offence – relevance of judge’s comments during sentence hearing - whether s 25AA of the Sentencing Act relevant where maximum penalty increased since the date of the offence - where sentencing judge was aware of the maximum penalty and his obligation to have regard to that penalty – whether sentencing judge failed to have proper regard to principles concerning sentencing juveniles – whether sentence manifestly excessive - appeal allowed – applicant resentenced

Catchwords:

SENTENCING - sentencing procedure - where sentencing judge took into account federal offences on Form 1s that were attached to State principal offences - whether State Form 1 provisions inconsistent with federal sentencing law - where a federal offence is required to attract a sentence that is stated and imposed pursuant to s 16A of Crimes Act (Cth) - where court not authorised to fix a single non parole period in respect to both federal and state sentences pursuant to s 19AJ of the Crimes Act (Cth) - where inconsistency - sentence quashed and remitted for resentencing SENTENCING - appeal against sentence – where applicant pleaded guilty to charges under both Commonwealth and State laws – where offending related to sexual acts occasioned by manipulation of multiple victims by threats, harassment and communications using various carriage services – where sentencing judge imposed a number of stand-alone and aggregate sentences – whether the sentencing judge erred in failing to take into account accumulation of sentences as “special circumstances” – where sentencing judge expressly referred to effective sentence being close to statutory norm and determined that nothing less would be sufficient – whether sentencing judge erred with respect to her assessment of the objective criminality and the indicative sentences – where both indicative and aggregate sentences were within the sentencing judge’s discretion – where sentences imposed neither unjust nor unreasonable - where sentence remitted because of an error of law

Catchwords:

CRIMINAL LAW - appeal against sentence - fraud offences - dishonestly obtain by deception - multiple counts - extremely serious example of fraud - judgment on sentence - emotive and pejorative language - whether appropriate balance in sentencing proceeding maintained - whether judge “transmogrified” into “champion of victims” - judicial detachment - temperance - “pep talk” to media - judicial function - whether subjective circumstances disregarded - manifestly excessive aggregate sentence - whether plainly wrong or unjust

Catchwords:

CRIME – appeal – appeal against conviction – tendency evidence – misdirection requiring jury to be satisfied that tendency evidence called by defence be “likely” before it could be used to rebut Crown’s tendency evidence – new trial ordered

Catchwords:

CRIMINAL LAW – sentence appeal – supply large commercial quantity of MDA and possession of firearms – whether sentencing judge applied the early plea discount to the indicative sentences – ambiguity in sentencing judge’s reasons amounting to error of law – appeal against sentence allowed – need to re-sentence.

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict – murder during home invasion – extended joint criminal enterprise – whether there was insufficient evidence to establish participation in agreement to do home invasion with the foresight of the deliberate infliction of grievous bodily harm

Catchwords:

CRIME – Appeals – Appeal against convictions – sexual assault – rule 4 of the Criminal Appeal Rules applies to grounds of appeal – whether error by judge in admitting appellant’s answers in an ERISP where no objection taken at trial – forensic choice by appellant’s counsel – appellant gives evidence at trial – admissible as prior inconsistent statements – admissible as admissions – no miscarriage of justice – whether error by judge in giving direction on lies or on consciousness of guilt – forensic choice by appellant’s counsel that no direction be given – Crown’s closing address creates risk of consciousness of guilt reasoning – whether appellant bound by forensic choice made by trial counsel – whether fairness to appellant required a direction on lies notwithstanding trial counsel’s request – whether miscarriage of justice was occasioned

Catchwords:

CRIME — appeal against sentence — dishonestly obtain financial advantage by deception — money laundering — ongoing fraud of employer leading to loss in the millions of dollars — very large sum unaccounted for — aggravating and mitigating features — moral culpability as relevant factor on sentence — whether sentencing judge erred by failing to find offences motivated by gambling — whether error with regard to asserted nexus between mental conditions and offending — onuses of proof on sentence — sentence assertedly manifestly excessive

Catchwords:

CRIME – appeals – leave to appeal against conviction – whether miscarriage of justice – administering intoxicating substance with intent to commit an indictable offence and sexual intercourse without consent – Crimes Act 1900 (NSW), ss 38(b) and 61I – whether trial judge fairly put the defence case to the jury – whether trial judge made impermissible comments in summing up – convictions quashed and retrial ordered

Catchwords:

CRIME – appeals – appeal against sentence – onerous conditions of custody – limited evidence as to conditions – High Risk Management Correctional Centre (HRMCC) – whether sentencing judge failed to take conditions of custody into account on sentence

Catchwords:

CRIME – appeals – application to set aside judgments and orders – jurisdiction to reconsider appeals

Catchwords:

CRIME – sentence appeal – manifest excess – two counts of aggravated sexual assault in one episode – aggregate sentence - offender reckless as to accused’s cognitive impairment – futile to attempt arithmetic as to accumulation and concurrency between indicatives and aggregate sentences – focus must be on whether aggregate reflects totality of criminality – sentence within judge’s discretion given objective seriousness and no discounts – appeal dismissed

Catchwords:

CRIME — Appeals — Appeal against sentence —Manifest excess – applicant convicted of numerous blackmail offences - whether the sentencing Judge erred in taking into account charged offences as representative counts – whether the sentencing Judge failed to provide adequate reasons – whether the sentencing Judge failed to assess the criminality of multiple offences individually – whether the sentence was manifestly excessive – appeal dismissed

Catchwords:

CRIMINAL LAW – Sentence – Appeal against sentence – Series of armed robbery offences –Whether sentencing judge erred in not considering the causal effect of the applicant’s schizophrenia on his mental state despite unchallenged medical evidence – Whether sentencing judge erred in applying a rigid mathematical rule that a combined discount for the guilty plea and assistance could not exceed 40% absent exceptional circumstances – Appeal against sentences allowed and sentences quashed – Applicant resentenced

Catchwords:

APPEALS – jurisdiction – challenges to evidentiary rulings at trial by Crown and accused – whether jurisdiction of Court of Criminal Appeal to review refusal of permanent stay permitted accused to challenge evidentiary rulings – whether Crown could, in absence of an appeal, challenge a contingent ruling concerning tendency evidence – no jurisdiction to entertain either challenge APPEALS – stare decisis – Court invited to depart from longstanding authority on statutory provision – sustained criticism of section by courts and law reform bodies – test for departing from settled construction – significance of re-enactment of legislation substantially unaltered despite criticisms CONSTITUTIONAL LAW – principle in Kable v DPP – whether law which precluded questioning complainant in sexual offence prosecution substantially impaired court's institutional integrity – where court retained power to stay prosecution – challenge to validity dismissed CRIMINAL LAW – permanent stay – where statute said to cause significant prejudice to accused, to give jury a distorted picture and to detract from prosecutor's obligations of fairness – complainant permitted to be asked certain questions not infringing s 293 – nature and extent of prejudice not presently ascertainable – application dismissed EVIDENCE – Criminal Procedure Act (NSW), s 293 – provision precludes questions disclosing or implying that complainant has or may have taken part or not taken part in any sexual activity – accused sought to rely on evidence that complainant had previously fabricated claims of sexual assault – evidence of varying qualities, ranging from third hand hearsay to pleading guilty to making a false report – whether s 293 applied to evidence of fabrication – whether s 293 applied to "proven" instances of fabrication – whether instances of false complaint over many years comprised a "connected series of events" occurring "at or about the same time" as the commission of the offence – history of s 293, its predecessors and its counterparts in other jurisdictions considered

Catchwords:

CRIMINAL LAW - appeal - sentence - child sexual assault offences - child abuse material offences -- criticisms of conduct of lawyers acting for applicant on sentence not made out - unjustified reduction of discount for some pleas of guilty but no material effect on aggregate sentence - no error in discounts not being precisely quantified -claim to be in protective custody not made out - aggregate sentence not manifestly excessive CRIMINAL LAW - sentence - aggregate sentence - unnecessarily detailed approach of specifying non-parole periods and commencement dates for indicative sentences - principles and statutory provisions concerning aggregate sentencing - contentions about assessment of indicative sentences misplaced

Catchwords:

CRIMINAL LAW – Challenge to conviction – where Crown case in relation to one count required the applicant to have scaled the external wall or descended on a fourth floor balcony of a five-storey apartment building – where no apparent means of applicant having accessed the balcony externally – whether conviction on this count unreasonable. CRIMINAL LAW – tendency evidence – where evidence of tendency related to conduct almost ten years prior to conduct the subject of the charges – whether tendency evidence of significant probative value – review of principles relating to tendency evidence. CRIMINAL LAW – where applicant on parole at time of hearing of appeal – where challenge to convictions in respect of multiple counts succeeds – whether new trial should be ordered. EVIDENCE – tendency evidence – where evidence of tendency related to conduct almost ten years prior to conduct the subject of the charges – whether tendency evidence of significant probative value – review of principles relating to tendency evidence.

Catchwords:

CRIMINAL LAW – sentence appeal – proceeds of crime – commercial quantity of a border controlled drug – utilitarian value of plea – Xiao error established – re-sentencing – nature and circumstances of offences – financial gain – objective seriousness of counts – subjective features – mental health issues – discount for utilitarian value of plea and co-operation with authorities – general deterrence – personal deterrence – behaviour in custody – leave to appeal granted – appeal dismissed

Catchwords:

APPEALS — From jury verdict — unreasonable verdict — where applicant alleged significant inconsistencies in complainant’s evidence should have left jury with doubt — where date of alleged conduct critical as Crown required to prove it occurred before complainant turned 10 — whether evidence supported jury’s verdicts SENTENCING — Appeal against sentence — manifest excess — historical offence — difficulty establishing range in case of repealed offence — youth and immaturity of offender at time of offending

Catchwords:

CRIMINAL LAW – appeal – leave to appeal against conviction – convictions on four counts of acts of indecency on a child under 16 years and two counts of sexual assault on a child under 10 years – child aged between 5 and 8 years – incidents alleged to have occurred between 2013 and 2016 – first complaint in January 2016 and further complaint in May 2017 where child’s evidence displayed some uncertainty about timing of some incidents – whether trial judge erred in declining to give a forensic disadvantage direction – Evidence Act 1995 (NSW) s 165B – whether accused suffered significant forensic disadvantage because of the consequences of delay – significance of accused’s misconduct in making threats to the child

Catchwords:

CRIMINAL LAW – appeal against sentence – dangerous driving occasioning death – fail to stop after vehicle impact causing death – whether sentencing judge erred in assessment of objective seriousness of failing to stop and assist – whether sentencing judge failed to accept applicant’s remorse – leave to appeal granted – appeal upheld and applicant resentenced

Catchwords:

CRIME – appeals – application for leave to appeal against sentence – offences of dishonestly obtaining a financial advantage by deception – where applicant was aged between 23 and 26 years of age at time of offending – whether sentencing judge should have had regard to applicant’s youth and asserted immaturity – boundaries of youth and adult responsibility – whether offender acted as an “adult” – whether sentence was manifestly excessive

Catchwords:

CRIME — appeals — appeal against sentence — manifest excess – failure to take into account a relevant consideration – alleged failure to take into account a period of conditional bail – held, conditional bail is a discretionary factor – no error in taking into account one period of conditional bail but not another where conditions were different – appeal allowed in respect of commencement date but otherwise dismissed

Catchwords:

CRIMINAL LAW – Offences – Sentence – Appeal – Where applicant had pleaded guilty to an offence of causing grievous bodily harm with intent to cause grievous bodily harm – Where applicant asked the sentencing judge to take additional offences into account on a Form 1 – Where applicant had a severe psychotic mental illness which was causally related to his offending – Whether the sentencing judge erred in failing to give sufficient weight to the applicant’s mental illness – Whether the sentencing judge erred in failing to give sufficient weight to the evidence of the applicant’s childhood deprivation and exposure to alcohol abuse and violence – Whether the sentence was manifestly excessive – Objectively serious offending and an associated need to protect the community – Strong subjective case – Ground of appeal asserting manifest excess established – Special circumstances justifying adjustment of statutory ratio – Applicant re-sentenced

Catchwords:

EVIDENCE – hearsay – s 65(2)(c) Evidence Act exception where maker not available – admission of electronically recorded interview with deceased complainant – approach to be taken in determining reliability of representations in interview – whether primary judge erred in taking “global approach” contrary to Sio v R (2016) 259 CLR 47 EVIDENCE – hearsay – s 65(2)(c) Evidence Act exception where maker not available – whether primary judge erred in finding that representations made in circumstances that make it highly probable they are reliable – relevance of prior inconsistent representations – whether matters relevant to credibility but not part of “circumstances” under s 65(2) EVIDENCE – s 137 Evidence Act exclusion of prejudicial evidence in criminal proceedings – unfair prejudice alleged to arise from inability to cross-examine complainant – whether primary judge took into account an irrelevant consideration in noting the “public interest” in prosecuting serious crimes – danger of unfair prejudice did not outweigh probative value CRIME – appeals – appeal against conviction – unreasonable verdict – sexual assault – whether Crown proved beyond reasonable doubt that complainant did not consent to Counts 2, 4, 5 – open to judge to hold no reasonable doubt as to Count 3 SENTENCING – re-sentence on appeal – offence of aggravated sexual assault – forcible anal rape of cognitively impaired and physically disabled complainant – need for general and specific deterrence

Catchwords:

CRIME — appeal against conviction — murder by shooting — evidence that one of two men present at the scene shot the deceased — where Crown case put in the alternative that the applicant was either the shooter or in a joint criminal enterprise with the shooter — evidence in Crown case tending to exclude the applicant as the shooter — whether verdict unreasonable

Catchwords:

CRIMINAL LAW – Offences – Sentence – Appeal – Applicant seeking an extension of time in which to seek leave to appeal against sentence – Where applicant pleaded guilty to the supply of a large commercial quantity of a prohibited drug – Evidence of money derived from that supply – Whether sentencing judge erred in treating the applicant’s financial gain as an aggravating factor – Where sentencing judge made no express reference to that being an aggravating factor – Where sentence proceedings not conducted on that basis – No ambiguity in the sentencing judge’s reasons – Unwarranted parsing of reasons – Ground of appeal not made out – Extension of time refused

Catchwords:

CRIMINAL LAW – Case stated by a Judge of the District Court of NSW – Applicant convicted of recklessly damaging property by fire – Three questions submitted for the Court’s determination – Observations as to the purpose of the stated case procedure – Procedure does not confer a general right of appeal – Emphasis on the fact that the procedure is centred upon questions giving rise to consideration of matters of principle which are of general application – Lack of clarity in question posed – Attempt to challenge the ultimate determination which was made in the Court below – Appropriate case in which to invoke the discretion of the Court to decline to answer the questions asked

Catchwords:

CRIME – bail – appeals bail - release application – whether special or exceptional circumstances exist justifying release on bail – where applicant relies on a combination of factors to satisfy the test – where appeal has reasonably arguable prospects of success – where applicant has been unable to access medical treatment in custody – where applicant is a good candidate for bail – conditional bail granted

Catchwords:

CRIMINAL LAW – Offences – Sentence – Appeal – Applicant an unlawful non-citizen who pleaded guilty to offences arising from dishonestly obtaining a passport and associated offences of revenue fraud – Whether sentencing judge erred by taking into account the fact that the applicant was an unlawful non-citizen when assessing the objective seriousness of the fraud offences – Applicant’s unlawful citizenship status inextricably linked to the fact that he was not entitled to the benefits he obtained – Error not established CRIMINAL LAW – Offences – Sentence – Appeal – Applicant an unlawful non-citizen who pleaded guilty to offences arising from dishonestly obtaining a passport and associated offences of revenue fraud – Whether sentencing judge erred in finding that the fraud offences were well above the mid-range and moving towards the upper end of the scale of objective seriousness – Error not established – Observations as to the breach of trust inherently involved in offending of this kind

Catchwords:

CRIMINAL LAW – appeal against conviction – jury verdict of guilty to an alternative count of recklessly causing grievous bodily harm – Crown concession of error by trial judge in refusing to admit a video into evidence – whether proviso should be applied – whether oral testimony contrary to the Crown case was obviously false – unnecessary to consider whether case was extreme – powerful prosecution case – credibility of witnesses was crucial – witness’ credibility undermined by evidence of police officer – witness credibility supported by the video – appellant denied fair chance of acquittal – new trial ordered

Catchwords:

COURTS AND JUDGES - bias - apprehended bias –appeal – judge-alone trial - where trial judge recognised a crucial Crown witness as a shop assistant with whom she had dealt over a lengthy period – where the credibility of the witness and the applicant were in issue - where judge should have disqualified herself - where new trial ordered CRIME - appeals - appeal against conviction - unreasonable verdict - where applicant found guilty of historical sex offences - whether findings of guilt were reasonably open - whether there had been substitution of the applicant for another perpetrator - where a number of other persons who worked at the home were convicted of sexual offences - where evidence does not disclose any basis for the submission that displacement had occurred - where trial judge did not find applicant to be reliable witness - where trial judge formed a favourable impression of complainants notwithstanding some shortcomings in their memories - where no reasonable doubt that the applicant was guilty

Catchwords:

SENTENCING - appeal against sentence - doing an act intending to pervert the course of justice - where applicant’s subjective circumstances revealed profound disadvantage and dysfunction - whether sentencing judge failed to find that the applicant’s moral culpability was reduced by reason of her disadvantaged background and mental health - where ample evidence of relationship between appellant’s circumstances and offending - where sentencing judge acknowledged personal subjective circumstances but did not take into account when sentencing - where merely referencing circumstances is insufficient - where sentencing judge ought to have mitigated the weight to be given to general deterrence

Catchwords:

CRIMINAL LAW – Sentence – Appeal against sentence – Whether sentencing judge erred in failing to give effect to finding of special circumstances – Sentencing judge plainly considered the effect accumulation would have on the overall length of time spent in custody – No error established CRIMINAL LAW – Sentence – Appeal against sentence – Where sentencing judge erred by one day in fixing commencement date for firearms offences – Minor error in calculation not a legal error requiring the exercise of sentencing discretion afresh – Application of Lehn v R (2016) 93 NSWLR 205 – Sentence adjusted by one calendar day

Catchwords:

CRIMINAL LAW – Sentence appeal – Offence of supplying not less than a large commercial quantity of methylamphetamine – Whether sentencing judge erred in characterising conduct as slightly above the mid-range of objective seriousness – Eschewing labels – Where applicant played trusted and integral role in large scale drug supply – No error in assessment CRIMINAL LAW – Sentence appeal – Manifest excess – Whether sentence was manifestly excessive in the circumstances – Statistic relating to sentences imposed for supplying large commercial quantity of drugs – Sentence not manifestly excessive in the circumstances

Catchwords:

CRIME – sentencing – aggravated indecent assault – aggregate sentence – threshold for sentence of imprisonment – Crimes (Sentencing Procedure) Act 1999 (NSW), s 5 – application to indicative sentences CRIME – sentencing – aggravated indecent assault – objective seriousness – degree of physical contact CRIME – sentencing – guilty pleas – utilitarian discount not provided – guilty pleas entered on fourth day of trial – whether obligation to allow discount – nature of discretion under Crimes (Sentencing Procedure) Act 1999 (NSW), s 22 CRIME – sexual offences – indecent assault – circumstances of aggravation – position of trust or authority – employer indecently assaulting job applicant at interview – whether aggravating factor engaged – Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(k)

Catchwords:

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

Catchwords:

CRIMINAL LAW – sentence appeal – one count of wounding with intent to cause grievous bodily harm – applicant aged 17 at time of offence – disputed facts hearing – whether judge erred in the assessment of the evidence – whether judge misdirected himself – whether applicant discharged the onus of proof – whether applicant’s symptoms of PTSD played a causative role in the offence – whether judge assessed the applicant’s moral culpability – whether error in judge’s finding that the applicant was not genuinely remorseful – whether sentence was manifestly excessive

Catchwords:

CRIMINAL LAW – appeal against sentence – supply prohibited drug – deal with proceeds of crime – participate in criminal group – fresh evidence of health and treatment in custody – applicant 67 year old woman – principle of totality given effect in aggregate sentence imposed – appeal dismissed

Catchwords:

CRIMES - drug proceeds order - legislation is directed to benefits accrued to an individual - no power to make drug proceeds order against multiple defendants based on joint or several liability - remitted to District Court

Catchwords:

APPEAL – sentence – applicants convicted at trial of offence of attempting to possess an unlawfully imported border controlled drug (methamphetamine) in a commercial quantity – 81.4 kg of pure methamphetamine – co-offender pleaded guilty to the same charge – whether Chan had legitimate sense of grievance arising from lesser sentence imposed on co-offender – where co-offender’s involvement in offences effectively indistinguishable – where utilitarian discount to co-offender due to guilty plea at commencement of trial – where co-offender had favourable subjective factors – no legitimate sense of grievance – whether error in assessment of Kwan’s objective criminality – whether Kwan had legitimate sense of grievance arising from lesser sentence imposed upon Chan – held that findings of fact concerning objective seriousness of offence and subjective circumstances were open to sentencing Judge – no legitimate sense of grievance – whether applicants’ sentences were manifestly excessive – consideration of other sentencing decisions regarding offences concerning importation of commercial quantities of drugs – sentences imposed were stern but within the reasonable exercise of sentencing discretion having regard to the gravity of the offence – claims of manifest excess rejected – appeals dismissed

Catchwords:

CRIMINAL LAW – Offences – Sentence – Appeal – Where applicant had pleaded guilty to an offence of supplying not less than the large commercial quantity of a prohibited drug – Where applicant aged 21 at the time of the offending – Where sentencing judge erroneously stated that the applicant was aged 23 at the time of the offending – Where erroneously found that the applicant was on bail at the time of his offending and regarded that as an aggravating factor – Error established – Applicant re-sentenced

Catchwords:

CRIMINAL LAW – Offences – Sentence – Appeal – Where applicant pleaded guilty to encouraging the commission of an offence of intentionally causing a fire – Where applicant was a retained firefighter – Whether the sentencing judge erred in taking into account that position in assessing the applicant’s moral culpability – Whether the sentencing judge erred in his assessment of the level of the applicant’s remorse – Whether the sentencing judge erred in his assessment of the discount for the plea of guilty and assistance – Whether the sentencing judge erred in failing to take into account the applicant’s mental state – Whether the sentencing judge erred in the manner in which he dealt with identical offences on a Form 1 – Whether sentence manifestly excessive – Where some of the issues which were sought to be raised on appeal were at odds with concessions which were made in the Court below – No error established – No merit in any ground of appeal sought to be advanced – Leave to appeal refused

Catchwords:

CRIMINAL LAW – Bail – Application for release – Applicant charged with offences of supplying a firearm and directing the activities of a criminal group – Where show cause provisions were applicable – Demonstrated difficulties in the Crown case – Significant subjective circumstances – Cause demonstrated – Assessment of risks – Identified risks capable of being addressed by the imposition of stringent conditions – Application granted

Catchwords:

CRIME — Appeals — Appeal against sentence – applicant sentenced in relation to one count of assault with act of indecency on a person aged under 16 years – s 61M(2) Crimes Act – whether sentencing judge erred in finding that offence was “slightly below the middle of the range” of objective seriousness – whether sentencing judge erred in finding that the applicant had an “abnormal sexual disorder which has not abated” – previous sexual offence 29 years earlier – no sexual offending since – where no medical evidence adduced in relation to sexual disorder – whether sentence manifestly excessive – leave to appeal against sentence granted, applicant resentenced

Catchwords:

SENTENCING — Appeal against sentence — whether miscarriage of justice occasioned by incompetence of applicant’s solicitor at sentence proceedings — where solicitor failed to obtain evidence from police about applicant’s assistance to authorities — where solicitor failed to obtain or tender evidence about applicant’s mental illness — where that evidence would have established mitigating factors relevant to the sentencing task OCCUPATIONS — Legal practitioners — Duties and liabilities — where appeal against sentence involves alleged incompetence of applicant’s solicitor at trial — where client legal privilege waived — where solicitor reluctant to provide information or affidavit concerning conduct at trial — obligation of a lawyer to assist the court where a ground of incompetence is raised — overriding duty to the Court APPEALS — Procedure — where new evidence tendered on appeal against sentence — where expiration of applicant’s non-parole period imminent — whether Court of Criminal Appeal should remit matter to District Court or allow evidence to be tested on appeal

Catchwords:

CRIMINAL LAW – appeal against sentence – manifest inadequacy – work health and safety – duty of persons undertaking business – construction work – fall from height through unprotected penetration resulting in death – penalty inadequate – appeal allowed

Catchwords:

SENTENCING – aggregate sentence – intended concurrency with prior sentence – error in fixing commencement – aggregate sentence to be partly accumulated on earlier sentence – sentence to commence 1 month after the expiry of the non-parole period imposed for the earlier offending SENTENCING – aggregate sentence – manifest excess – degree of concurrency of indicative sentences – one course of offending conduct –offence of intimidation subject to lower indicative sentence than the less serious offence of aggravated entry

Catchwords:

CRIME - sentence appeal - accessory after manslaughter and related offence - 2 year 10 month aggregate sentence after substantial discounting of indicative sentences - starting point for indicative for accessory offence not excessive because serious example of serious offence and neutral subjective case - asserted grievance at disparity with principal offender later sentenced for assault causing death - not legitimate because principal offender's sentence inadequate - appeal dismissed

Catchwords:

BAIL – release application – application for bail for purposes of appeal against conviction and sentence to be heard by Court of Criminal Appeal – applicant convicted of offences of robbery in company and attempted take and drive vehicle in circumstances of aggravation (being in company) – special or exceptional circumstances test – assessment of strength of grounds of appeal – consideration of factors relevant to bail – release application dismissed

Catchwords:

CRIMINAL LAW – appeal against sentence – drug manufacture and supply – possession of firearms – whether applicant a principal in drug offences – whether drug offences exacerbated by firearms offences – whether trial judge erred in failing to discount for assistance by surrender of additional firearms – whether sentence should be backdated for remand solely in respect of unrelated matter – leave to appeal granted – applicant resentenced

Catchwords:

CRIMINAL LAW – appeal against sentence – possession of firearm with intent to intimidate – possession and discharge of firearm in a public place and while under the influence of alcohol – offer of plea to lesser charge – applicant found not guilty of more serious charge – applicant entitled to 25% discount – leave to appeal granted – applicant resentenced

Catchwords:

CRIMINAL LAW – conviction appeal – two counts of aggravated indecent assault, three counts of aggravated sexual intercourse without consent – circumstance of aggravation being “under authority” – conviction after trial by jury – victim school pupil – offender school teacher – whether verdicts of guilty were unreasonable and cannot be supported having regard to the evidence – credit and reliability of victim challenged – whether it was open to the jury to be satisfied beyond reasonable doubt that offender was guilty – leave to appeal against conviction granted – appeal against conviction dismissed – CRIMINAL LAW – appeal against sentence - Crown appeal - assessment of objective seriousness - respondent's knowledge of lack of consent - knowledge rather than recklessness - characterisation of objective seriousness as “towards the low end of the range” - whether sentence manifestly inadequate

Catchwords:

CRIMINAL LAW – sentence appeal – co-offender – offence of attempting to possess commercial quantity of border controlled substance, namely methamphetamine contrary to ss 307.5(1) and 11.1(1) of the Criminal Code 1995 (Cth) – utilitarian value of plea – Xiao error established – applicants’ roles not relevantly different – objective gravity – applicants’ subjective features not strong – applicants resentenced – lesser sentence imposed

Catchwords:

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

Catchwords:

APPEAL – sentence appeal – aggravated break and enter – larceny – take and drive conveyance – assault occasioning actual bodily harm – resentence – where conclusions of sentencing judge generally agreed with – where different assessment of subjective case – where applicant labouring under drug addiction and mental illness – referral to Drug Court for assessment

Catchwords:

CRIMINAL LAW – sentence appeal – possession of a commercial quantity of a border controlled drug suspected of having been unlawfully imported – sentence of imprisonment for 18 years with a non-parole period of 12 years – error in failing to assess the utility of an early plea of guilty – need to resentence applicant – sentence of imprisonment for 17 years and 6 months with a non-parole period of 11 years and 8 months.

Catchwords:

CRIMINAL LAW – sentence appeal – offence of dealing with money intended as a instrument of crime where value of money was more than $100,000 – maximum sentence of 20 years imprisonment – applicant played an integral role in transferring money in and out of Australia – applicant in charge and giving directions to a number of locally based participants – person Nguyen part of syndicate controlled by applicant – Nguyen physically attended banks and carried out transactions on behalf of applicant – when sentenced Nguyen received a much less sentence than the applicant – whether the applicant had a justifiable sense of grievance due to the disparity between her sentence and that of Nguyen – appeal against sentence dismissed.

Catchwords:

CRIMINAL LAW – appeals – appeal against sentence – offences of dangerous driving occasioning death and failing to stop and assist – whether overall sentence was manifestly excessive – limited finding about objective gravity for dangerous driving offence – poor subjective case – very adverse criminal record – appeal dismissed

Catchwords:

APPEAL – sentence – offence of possession of CITES specimens and regulated live specimens contrary to s.303GN(2) Environment Protection and Biodiversity Conservation Act 1999 (Cth) (“EPBC Act”) – offence of engaging in conduct in capacity as a Commonwealth public official with the intention of dishonestly gaining a benefit contrary to s.142.2(1)(a)(iii) Criminal Code (Cth) – offence of dealing with money over $10,000 believed to be proceeds of crime contrary to s.400.6(1) Criminal Code (Cth) – further offences under s.303GN(2) EPBC Act and abuse of public office to gain advantage contrary to s.142.2(1)(a)(ii) Criminal Code (Cth) taken into account on sentence – Applicant employed as a Senior Biosecurity Officer by Commonwealth Department of Agriculture and Water Resources – Applicant used information obtained in course of employment to facilitate illegal importation of regulated specimens for sale – whether sentencing Judge erred in failing to consider alternatives to fulltime imprisonment in sentencing Applicant – error not demonstrated – whether sentencing Judge erred in failing to give full effect to “Ellis principle” – error not demonstrated – whether sentencing Judge erred in failing to give discount for Applicant’s assistance and offer to assist – error not demonstrated – whether sentencing Judge erred in relying upon Applicant’s employment to reduce mitigating factor of prior good character where his employment was already relied upon in proof of an element and had not been obtained for purpose of committing offences – error not demonstrated – whether aggregate sentence was manifestly excessive in all the circumstances – offences of considerable objective gravity – offences committed by public official occupying position of trust within Department administering EPBC Act – importance of general deterrence on sentence where public official uses inside information to abuse position of trust – sentence not manifestly excessive – appeal dismissed

Catchwords:

CRIMINAL LAW – sentence appeal – three counts of supply a prohibited drug, two of which involved a large commercial quantity – discount allowed for plea of guilty – discount erroneously applied to aggregate sentence rather than indicative sentences – need to re-sentence – despite error, a less severe sentence is not warranted in law – appeal dismissed.

Catchwords:

CRIMINAL LAW – sentence appeal – attempt to possess an unlawful imported border controlled drug (methamphetamine) – applicant convicted after trial – 142kg of methamphetamine – sentence of 10 years with a non-parole period of 6 years and 6 months – whether sentence manifestly excessive – whether error in not properly taking into account the prior good character of the applicant – leave to appeal granted but the appeal dismissed.

Catchwords:

CRIMINAL LAW – sentence appeal – driving in a manner dangerous occasioning grievous bodily harm and cause bodily harm by misconduct in charge of a vehicle – collision between semi-trailer and two cars – serious injuries caused to occupants of cars – whether objective seriousness of offending aggravated by knowledge of defective brakes and ignoring the speedometer – whether aggregate sentence manifestly excessive – appeal against sentence dismissed.

Catchwords:

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

Catchwords:

EVIDENCE — privileges — legal professional privilege — whether documents created for the dominant purpose of obtaining professional legal advice – whether affidavit supporting claim of privilege was admissible – held, affidavit evidence of subjective intention admissible as relevant but not decisive – whether primary judge erred in inspecting documents subject of privilege claim – held, no error in inspecting documents to confirm the number of relevant documents – leave to appeal refused

Catchwords:

APPEAL – conviction appeal – trial by jury – indecent assault – sexual intercourse without consent – acquittal on Counts 1, 2 and 4 – finding of guilt on Count 3 – conviction appeal – whether verdict of guilty on Count 3 unreasonable due to inconsistency with acquittals on the other counts – where acquittals not necessarily dependent on adverse findings as to complainant’s credibility – where finding of guilt on Count 3 not inconsistent or unreasonable APPEAL – sentence appeal – whether evidence of a prior intimate relationship is relevant to objective seriousness – where seriousness of offending not mitigated by prior sexual relationship between offender and victim

Catchwords:

CRIMINAL LAW – Sentence – Appeal – Where applicant pleaded guilty to one count of producing child abuse material, two counts of using a child under 14 years of age to produce child abuse material and one count of possessing child abuse material – Where sentencing judge erred in applying a non-existent standard non-parole period to two of the offences – Error established – Necessity to re-sentence the applicant in the fresh exercise of the sentencing discretion – Consideration of factors relevant to sentence for this kind of offending – General deterrence and denunciation of paramount importance – Where the applicant pleaded guilty at the first available opportunity – Where the material was produced or possessed for the applicant’s own use – Where the applicant was not acting in a collaborative network of like-minded individuals – Where the offending was unsophisticated – Where the applicant’s use of children was limited to superimposing photos of the faces of two children onto images and videos – Where the offending involved a serious breach of trust – Where prospects of rehabilitation were guarded – Where there were special circumstances justifying adjustment of statutory ratio – Applicant re-sentenced

Catchwords:

CRIMINAL LAW – Offences – Sentence – Appeal – Using an offensive weapon (a motor vehicle) with intent to prevent lawful apprehension – Driving a conveyance taken without the consent of the owner – Driving whilst disqualified – Driving with the presence of an illicit drug in his oral fluid – Finding by the sentencing judge that the principal offending of using an offensive weapon with intent to avoid lawful apprehension was spontaneous – Where sentencing judge concluded that this was not a mitigating factor –Error established – Necessity to re-sentence the applicant in the fresh exercise of the sentencing discretion – General deterrence of particular significance – Where prospects of rehabilitation largely dependent on drug rehabilitation – Special circumstances justifying adjustment of statutory ratio – Applicant re-sentenced

Catchwords:

CRIMINAL LAW – appeal against conviction – inconsistent verdicts – applicant acquitted of entry with intent to commit larceny but convicted of assault with intent to rob – whether jury’s verdicts reconcilable – applicant did in fact steal from victim's premises – open to jury to find that applicant formed intention to steal during attack on victim – appeal dismissed CRIMINAL LAW – appeal against sentence – failure to have regard to principles in Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 – no reference to the case by name – extensive reference to applicant’s disadvantaged background – question one of substance rather than form – whether error in failing to backdate sentence to earlier than end of previous sentence – discretion in Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145 exercised – offending committed soon after release on parole – applicant returned to custody and parole revoked – sentence imposed reflected substantial alteration of statutory ratio – series of prison infringements throughout balance of term of previous sentence – no appellable error

Catchwords:

CRIME – appeals – appeal against sentence – manifest excess – accumulation – totality principle – objective seriousness of offences CRIME – appeals – appeal against sentence – whether sentencing judge erred in his treatment of the applicant’s youth – principles relevant to terrorism offences

Catchwords:

SENTENCING — Sentencing procedure — offender sentenced for offences against laws of the State — where offender asked the sentencing court to take federal offences into account on a “Form 1” — whether State legislation permitted the sentencing court to take federal offences into account — whether “Form 1” provisions picked up and applied as federal law by s 68(1) or s 79 of the Judiciary Act 1903 (Cth) — whether Form 1 provisions inconsistent with federal sentencing law