Recent decisions for Court of Criminal Appeal

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:

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 – 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:

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:

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:

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:

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 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 – 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:

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 – 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:

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 – 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 – 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 – 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

Catchwords:

CRIMINAL LAW – sentence appeal – robbery in company – parity with sentence of co-offender – subjective circumstances – whether applicant had a justifiable sense of grievance – relevance of co-offenders brain injury – co-offender sentenced for multiple offences

Catchwords:

APPEALS – jury verdict – conviction appeal – where applicant convicted of one count of sexual intercourse without consent and one count of assault but acquitted on one count of sexual intercourse without consent – where jury returned mixed verdicts on two counts which involved conduct that occurred in close proximity in time – whether mixed verdicts irreconcilably inconsistent – whether verdicts of guilty unreasonable and not supported by evidence

Catchwords:

APPEAL – sentence appeal – specially aggravated break and enter – assault occasioning actual bodily harm with intentional wounding – where applicant entered partner’s house with axe – where injury caused to partner and friend – whether sentencing judge engaged in two-tier sentencing – whether Form 1 matter considered appropriately – whether consideration given to remorse – where no error by sentencing judge – where sentence falls at more severe end of statistical range – where appellate intervention not compelled

Catchwords:

CRIMINAL LAW – sentence appeal – one offence of aggravated indecent assault on a victim under the age of 16 and aggravated sexual intercourse with a victim under the age of 16 – whether principle of totality properly applied – leave to appeal granted – appeal dismissed.

Catchwords:

CRIME — Appeals — Appeal against sentence — By Crown against inadequacy – where the offender was involved in a significant importation of a commercial quantity of a border controlled drug (cocaine) - whether the sentence imposed on the offender was manifestly inadequate by reference to sentences imposed on co-offenders by a different sentencing judge – the role of the principle of parity in a Crown appeal – appeal dismissed

Catchwords:

CRIMINAL LAW – Sentence appeal – Offence of doing act with intent to pervert the course of justice – Whether sentencing judge erred in assessing offence as in the midrange of objective seriousness – No error established CRIMINAL LAW – Sentence appeal – Whether sentencing judge’s misstatement of maximum penalty for additional drive while disqualified offence impacted aggregate sentence – Misstatement had no material impact CRIMINAL LAW – Sentence appeal – Whether sentence manifestly excessive – Not manifestly excessive in the circumstances

Catchwords:

CRIME – SENTENCE – child sexual assault offences – offences committed by step-father against step-son – applicant of former good character – single ground of appeal – whether there was error in treatment of evidence of good character

Catchwords:

CRIMINAL LAW – sentence appeals – three applicants – attempting to possess a commercial quantity of a border controlled drug being methamphetamine – 142kgs in quantity – error conceded by Crown in sentencing judge failing to take into account the utilitarian value of the plea of guilty – need to re-sentence – assessment of different roles of applicants in the offence – whether applicants aware of the nature and extent of drug importation – motive of financial gain – considerable planning involved – on re-sentence a finding in each case that lesser sentence warranted in law.

Catchwords:

CRIMINAL LAW – sentence appeal – Senior Australian Border Force officer – aiding and abetting the importation of tobacco products with the intention of defrauding the revenue – acceptance of a bribe – co-offender’s sentence reduced on appeal – whether erroneous sentence of co-offender overturned on appeal can give rise to justifiable sense of grievance – parity – proportionality – whether applicant had a justifiable sense of grievance – re-sentence – whether reduction in non-parole period would produce a manifestly inadequate sentence.

Catchwords:

APPEALS – nature of appeal – nature of appellate review of a decision under s 138 of the Evidence Act – House v The King type judicial restraint EVIDENCE – exclusion of evidence – improperly or illegally obtained evidence – s 138 of the Evidence Act – probative value – reliability – evidence taken at its highest

Catchwords:

CONVICTION APPEAL – manslaughter – altercation between two women leading to one stabbing the other – whether proper directions given as to manslaughter by excessive self-defence – whether if directions were erroneous a miscarriage of justice occurred – whether adequate directions given as to lies and consciousness of guilt – whether verdict unreasonable – conviction appeal allowed – Retrial limited to manslaughter ordered.

Catchwords:

CRIMINAL LAW – double jeopardy – retrial on manslaughter charge – acquittal of murder but conviction of manslaughter at previous trial – manslaughter conviction quashed and retrial ordered – manslaughter retrial held by majority to controvert earlier murder acquittal

Catchwords:

CRIME – appeals – appeal against conviction – conviction obtained following trial by judge-alone CRIME – appeals – appeal against conviction – manslaughter conviction – whether conviction unreasonable or unsupported by the evidence – time of death – whether established beyond reasonable doubt that deceased was alive when the applicant drove him away from others – Criminal Appeals Act 1912 (NSW), s 6(1) CRIME – manslaughter – gross negligence – death caused by acute multi-drug toxicity – oxycodone and benzodiazepine consumption – death occurred following voluntary assumption of duty of care – deprivation of chance of survival whilst the deceased was helpless – state of mind of applicant in assuming his care – Crimes Act 1900 (NSW), s 18(1)(b)

Catchwords:

CRIME – appeal – appeal against sentence –extension of time in which to appeal CRIME – appeal – appeal against sentence – where sentencing Judge excluded utilitarian value of applicant’s plea of guilty – where Xiao error established – where lesser sentence warranted – where applicant re-sentenced

Catchwords:

CRIMINAL LAW – sentence appeal – whether sentencing judge erred when proceeding on the basis of incorrect maximum penalty for an offence taken into account on a Form 1 – whether error capable of having a material impact on aggregate sentence CRIMINAL LAW – sentence appeal – commencement date being date of expiration of term of revoked ICO – whether sentence imposed for primary offending should be made partly concurrent with time spent in custody because of revocation of ICO – no error in the circumstances CRIMINAL LAW – sentence appeal – whether special circumstances – application of statutory ratio to effective sentence – minor divergences from statutory ratio – no error in setting non-parole period

Catchwords:

APPEAL – sentence appeal – where applicant coordinated drug syndicate – whether applicant has a justifiable sense of grievance based on sentence imposed on co-offender – where sentencing judge made no error in relation to parity

Catchwords:

APPEAL – application for leave to appeal against sentence – plea of guilty to one count of persistent sexual abuse of a child contrary to s.66EA Crimes Act 1900 – s.66EA offence comprising 12 separate ingredient offences under s.66C(3) Crimes Act 1900 committed in 2006 and 2007 – sentence of imprisonment for 10 years and 9 months with non-parole period of 7 years – general observations concerning sentencing for s.66EA offences – consideration of factors relevant to sentencing for s.66EA offences – whether sentencing Judge erred in taking into account that the Applicant was in a position of authority over the victim – error not established – whether the sentencing Judge erred in failing to assess the objective seriousness of the s.66EA offence or alternatively failed to consider the nature of the ingredient offences when considering the objective seriousness of the s.66EA offence – error not established – whether sentence manifestly excessive – limited utility of sentencing statistics for s.66EA offences – applicant’s s.66EA offence of considerable objective gravity – harm to victim from offence – held sentence not manifestly excessive – leave to appeal against sentence granted – appeal against sentence dismissed

Catchwords:

CRIME – appeals – appeal against conviction – accessorial liability – Crimes Act 1900 (NSW), s 61J – where basis of Crown case unclear – whether trial judge conflated concepts from joint criminal enterprise to directions to the jury on proof of accessorial liability – recklessness insufficient for accessorial liability

Catchwords:

CRIME – appeal against conviction – applicant found guilty of murder – whether verdict unreasonable – whether error in directions on causation – whether trial judge erred in admitting admissions influenced by violence or oppression – whether trial judge erred in failing to leave an alternative verdict of manslaughter – appeal allowed on alternative verdict issue and otherwise dismissed – retrial ordered CRIME – sentence appeal – various grounds not considered because conviction appeal allowed

Catchwords:

CRIME – appeals – appeal against sentence – 20 counts comprising 16 counts involving the sexual assault or indecent assault of two children under the age of 14 and 16 and 4 counts involving the use of a child for pornographic purposes or the production of child pornography – whether sentencing judge failed to take into account (properly or at all) mitigating factors – whether sentence breached totality principles – whether sentence manifestly excessive

Catchwords:

CRIMINAL LAW – sentence appeal – supply not less than commercial quantity of methylamphetamine – parity with sentence of co-offender – whether applicant had a justifiable sense of grievance – relevance of co-offender’s rehabilitation efforts – relevance of additional Form 1 offences and standard non-parole period – subjective circumstances

Catchwords:

CRIMINAL LAW – appeal – Land and Environment Court – whether summonses bad for duplicity – appeal upheld

Catchwords:

APPEAL – sentence appeal – where applicant sentenced with co-offender – drug offences – where sentencing judge did not indicate standard non-parole periods – where aggregate sentence imposed – whether failure to indicate non-parole periods requires appellate intervention – whether sentencing judge gave consideration to objective seriousness of offending – whether sentencing judge gave consideration to subjective case

Catchwords:

CRIME – appeals – appeal against conviction – where opinion evidence not objected to at trial – whether admission of that evidence involved any error of law – whether there was any miscarriage of justice CRIME – appeals – unreasonable verdict – where sole issue whether accused possessed drug for personal use – where accused bore onus of proof – whether open to jury to find accused guilty beyond reasonable doubt

Catchwords:

CRIMINAL LAW – Practice and procedure – Where applicant and co-accused jointly indicted for two counts of robbery in company – Where the evidence relied upon by the Crown against each of them essentially the same but for two telephone conversations between the co-accused and a witness – Where co-accused made admissions during those conversations – Where neither the co-accused or the witness implicated the applicant in the offending or made any reference to him – Where the applicant’s application for a separate trial was refused by the trial judge – Whether trial judge erred in the exercise of his discretion in refusing the application for a separate trial – No specific prejudice to the applicant by virtue of the admission of the conversations in a joint trial – Where jury would be directed not to have regard to those conversations when considering the case against the applicant – Appeal against the decision of the trial judge dismissed

Catchwords:

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

Catchwords:

CRIME – appeals – appeal against sentence - knowing participation in the cultivation of a large commercial quantity of cannabis plants - knowingly direct the activities of a criminal group – whether the sentencing judge erred in finding that the cultivation offence was aggravated pursuant to s 21A(2)(n) of the Crimes (Sentencing Procedure) Act

Catchwords:

CRIMINAL LAW – sentence appeal – manufacturing not less than commercial quantity of methylamphetamine – additional offence on a Form 1 – applicant owner of property where manufacture took place – parity with sentence of co-offender – whether applicant had a justifiable sense of grievance – applicant's rehabilitation efforts – remorse – subjective circumstances

Catchwords:

CRIME – SENTENCE APPEAL – special circumstances – failure to give effect to finding as a result of the effect of accumulation – error disclosed – additional evidence taken into account on re-sentencing – appeal allowed – applicant resentenced

Catchwords:

CRIMINAL LAW – sentence appeal – attempt specially aggravated break and enter with intent to commit a serious indictable offence (in company and armed with a dangerous weapon) contrary to s 113(3) of the Crimes Act 1900 (NSW) – maximum penalty of 20 years imprisonment – joint criminal enterprise involving three offenders – applicant sentenced to imprisonment for 4 years with a non-parole period of 3 years – whether sentencing judge erred in refusing to make a finding of special circumstances – whether sentencing judge properly took into account that this was the applicant’s first custodial sentence – whether applicant had legitimate sense of grievance by reason of the sentence imposed on his co-offenders – leave to appeal granted but appeal dismissed.

Catchwords:

CRIME – bail – release application – unacceptable risk – strength of the Crown case – where expert evidence crucial to Crown case not yet obtained – where time on remand a significant factor - bail concerns – risk of commission of further serious offence – risk of danger to the victim – risk of interference with witnesses - where bail concerns mitigated by imposition of stringent conditions – conditional bail granted

Catchwords:

CRIME – Sentence Appeal – manifest excess and failure to give effect to special circumstances – no manifest excess, by majority, minority did not need to consider – effect of accumulation on previously imposed sentences – assumed oversight – re-sentenced.

Catchwords:

CRIME – Sentence Appeal – Applicability of Guideline judgment in Henry – method of application – manifest excess – no manifest excess – majority held no error in method of application of guideline judgment – by majority, appeal dismissed.

Catchwords:

CRIMINAL LAW – appeal against interlocutory judgment – refusal by trial judge to sever indictment – use of coincidence and tendency evidence – whether risk of prejudice to applicant arising from evidence inadmissible for one purpose but admissible for another can be ameliorated by jury directions – where trial judge finds it is in interests of justice for counts on indictment to be tried together – whether trial judge made an error in exercise of discretion – HELD –appeal dismissed – no error in decision to refuse application for separate trials and for severance of indictment

Catchwords:

CRIMINAL LAW – bail – detention application – supply large commercial quantity of methylamphetamine – possess unauthorised pistol – possess unregistered firearm – possess ammunition without authority – alleged offences committed while accused on bail – three offences were show cause offences by operation of Bail Act 2013 (NSW), s 16B – whether accused had shown cause why detention not justified – strength of the Crown case – relevance of the provision of substantial surety – significance of character acknowledgments

Catchwords:

CRIMINAL LAW – application for leave to appeal against decision of trial judge to vacate trial date – unavailability of expert witness – challenge to exercise of discretion

Catchwords:

CRIMINAL LAW – CONVICTION APPEAL – offence of murder – victim a two year old child – identity of offender in issue – whether hearsay evidence wrongly admitted – whether tendency evidence wrongly admitted – whether direction pursuant to s 165 of the Evidence Act 1995 (NSW) should have been given to the jury – appeal against conviction dismissed – SENTENCE APPEAL – whether level of objective seriousness of offending properly assessed – whether sentence was manifestly excessive – no lesser sentence warranted in law – appeal against sentence dismissed.

Catchwords:

CRIMINAL LAW – application for leave to appeal against conviction – applicant convicted of supply of prohibited drug offence – s 25(1) Drug Misuse and Trafficking Act 1985 (NSW) – argument available on the evidence that he possessed drugs “otherwise than for purpose of supply” because he received them from the true owner and intended to return them to him – R v Carey (1990) 20 NSWLR 292 – trial judge and Crown informed jury of potential availability of Carey defence – whether trial miscarried because defence counsel failed to put Carey defence to jury CRIMINAL LAW – trial judge’s summing up – trial judge made comments disparaging applicant’s case – whether summing up was unbalanced and unfair in a way that constituted a miscarriage of justice – appeal allowed and new trial ordered

Catchwords:

CRIMINAL LAW – sentence appeal – assault occasioning actual bodily harm in company – applicant already in custody for other offences – fixed term of imprisonment of 6 months imposed – whether proper discount for plea of guilty awarded – whether sentencing judge entitled to impose a fixed term sentence – whether sentence imposed was unreasonable and plainly unjust – appeal dismissed.

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – work health and safety – statutory duty of person conducting a business or undertaking to ensure health and safety of workers so far as reasonably practicable – painter at worksite fell 6 metres through a void between building and platform attached to jumpform screen system – design, installation and operation of system subcontracted to appellant – whether primary judge considered the reasonable practicability of appellant taking particularised steps – Baiada Poultry 246 CLR 92 and Kirk v Industrial Court 239 CLR 1 considered

Catchwords:

CRIMINAL LAW – sentence appeal – offence of reckless wounding contrary to s 35(4) of the Crimes Act 1900 (NSW) – a single ground of appeal to the effect that the sentencing judge erred in failing to make an assessment of the offender’s moral culpability having regard to his deprived background – offender’s deprived background set out in detail by judge – full weight given to offender’s deprived background by reducing effect of general deterrence – a failure to attach the label “moral culpability” to any specific finding did not reveal error – appeal dismissed.

Catchwords:

Criminal law – sentencing – specification of discounts for past and future assistance – denial of natural justice

Catchwords:

Criminal law – no evidence from accused – failure to give Azzopardi direction – accused old and non-parole period served but acquittal not appropriate

Catchwords:

CRIME – appeals – appeal against conviction – child sexual assault offences – asserted inconsistencies in evidence of Crown witnesses – whether the verdicts were unreasonable – whether there was a miscarriage of justice

Catchwords:

CRIME – Sentence Appeal – Direction on jury’s care with comparison of handwriting – operation of Rule 4 – no error and no miscarriage

Catchwords:

CRIME – appeals – appeal against conviction – attempted specially aggravated break and enter with intent to commit serious indictable offence – where circumstances of special aggravation were that offenders were armed with a dangerous weapon – Crimes Act 1900 s 113(3) - whether conviction should be quashed because of defect in the indictment in that it did not refer to the offence being committed in circumstances of aggravation – where circumstances of aggravation were being armed with an offensive weapon - where alleged failure to identify an element of the offence – where element was necessarily implied in the pleading of another element – where the defect was cured by the jury’s verdict – whether trial judge misdirected the jury as to the elements of the offence by reason of the form of the indictment - where no miscarriage of justice CRIME – appeals – appeal against sentence - whether sentencing judge erred by making findings contrary to jury’s verdict – where jury not satisfied offenders were in possession of an imitation firearm – where sentencing judge took into account a circumstance of aggravation not mentioned in indictment - where no breach of the De Simoni principle - appeal dismissed

Catchwords:

CRIME – Appeals – Appeal against conviction – Miscarriage of justice – Investigation by the Sheriff pursuant to s 73A of the Jury Act 1977 (NSW) – Admissibility of investigation material – Whether the evidence did not fall within the exclusionary rule – Whether a retrial should be ordered or a verdict of acquittal entered.

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 – Offences of dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm – Where applicant was driving a B-double vehicle along a motorway – Applicant took eyes off the road in order to retrieve a drink and removed both hands from the wheel – Vehicle suddenly left the northbound carriageway, crossed a wide median strip and entered the southbound carriageway where it collided with another vehicle killing the passenger and severely injuring the driver – Two drivers behind forced to take evasive action and collided with the trailer of the applicant’s truck after it had come to rest – Where sentencing judge found that this was not a case of momentary inattention – Whether this was a “typical” case of the kind identified in R v Whyte – Whether aggregate sentence of 4 years and 6 months’ imprisonment with a non-parole period of 3 years’ imprisonment was manifestly excessive – Serious offending – Not a typical case attracting the strict application of the guideline – Level of notional accumulation justified having regard to the injuries sustained to the driver – Finding of manifest excess not supported by reference to sentencing outcomes in other cases – Leave to appeal granted – Appeal dismissed

Catchwords:

CRIMINAL LAW – sentence appeal – aggregate sentences – joint criminal enterprise to commit burglaries – parity with sentences of co-offenders – whether applicant had a justifiable sense of grievance – prosecutorial decisions to charge co-offenders differently – whether error for the judge to assess lesser moral culpability for a co-offender who acted as a lookout – differences in subjective circumstances of co-offenders – leave to appeal refused.

Catchwords:

APPEAL – application for leave to appeal against sentence – offence of importing a commercial quantity of a border controlled drug – cocaine imported by sea secreted within legitimate cargo – whether sentencing judge erred in the approach to the assessment of the utilitarian value of the plea of guilty – “Xiao error”

Catchwords:

CRIME — appeals — appeal against conviction — miscarriage of justice – summing up – directions to jury – circumstantial case – applicable principles – McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5 – whether summing up so lacking in balance and unfair as to occasion a miscarriage of justice – three complaints of substance – complaints made out relevant to the two most significant circumstances relied on in the Crown case – unfairness in the manner in which the jury was directed established

Catchwords:

CRIMINAL LAW – Sentencing – Appeal against sentence – Incorrect standard non-parole period referred to in sentencing – Error established – Applicant required to be resentenced – Lesser sentenced warranted in law in the circumstances

Catchwords:

CRIME – appeals – extension of time in which applicant may seek leave to appeal – appeal against sentence – dangerous driving occasioning grievous bodily harm – two victims – whether aggregate sentence manifestly excessive – notional accumulation – appeal dismissed

Catchwords:

CRIME – Sentence Appeal – non-acceptance of uncontested expert evidence re intellectual disability – inappropriate use of statistics and opinion of Crown on sentence range – manifest excess in light of subjective circumstances – appeal upheld.

Catchwords:

JUDGMENTS AND ORDERS - Court of Criminal Appeal - calculation error - correction of order by Court

Catchwords:

CRIMINAL LAW – Offences – Sentence – Appeal – Importation of a commercial quantity of cocaine – Whether sentence manifestly excessive – Whether non-parole period manifestly excessive – Necessity to consider all relevant circumstances for the purposes of determining the non-parole period not just those circumstances favourable to the offender – Serious offending involving the importation of a substantial quantity of cocaine – Premeditated offending committed for financial gain – Reliance on sentences imposed in other cases of similar offending – Complaint of manifest excess not made out – Appeal dismissed

Catchwords:

CRIME - Appeals - Appeal against sentence - Application for leave to appeal - Multiple offences - Aggregate sentences - One count of conspiring with four others to dishonestly cause a loss to the Commonwealth - One count of dealing with money suspected of being proceeds of crime - Denial of procedural fairness - Manifest excess

Catchwords:

CRIME - sentence - appeal against sentence - totality principle - import a commercial quantity of methylamphetamine - found guilty on five counts - degree of overlapping criminality - whether sentence crushing on offender- effect of finding special circumstances

Catchwords:

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

Catchwords:

CRIMINAL LAW – sentence appeal – reckless wounding causing grievous bodily harm committed in company contrary to s 35(3) of the Crimes Act 1900 (NSW) – affray contrary to s 93C(1) of the Crimes Act – two s 9 bonds revoked and sentences imposed – indicative sentence of 6 years and 6 months with a non-parole period of 4 years and 6 months provided – whether court took into account reduced moral culpability by reason of the applicant’s mental health – whether proper regard was had to the applicant’s disadvantaged early life – whether due regard had to the principles of remorse and provocation – whether the totality principle applied – whether sentence manifestly excessive – appeal dismissed.

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict – offences contrary to s 1307(1) of the Corporations Act 2001 (NSW) – sham agreement – whether sufficient evidence of the parties’ intentions and knowledge to convict – whether Crown able to exclude a particular hypothesis beyond reasonable doubt CRIME – appeals – appeal against conviction – miscarriage of justice – prosecutor’s closing address – rhetorical questions – obligation of prosecutor – references to “no evidence” – reversal of onus of proof CRIME – appeals – appeal against conviction – miscarriage of justice – written summing up – whether trial judge’s summing up presented the case for each party in a fair and balanced manner CRIME – appeals – appeal against conviction – error of law – evidence – relevance – opinion evidence – whether trial judge erred in admitting evidence CRIME – appeals – appeal against conviction – error of law – evidence – relevance – authenticity of a document – whether trial judge erred in refusing to admit evidence – National Australia Bank Ltd v Rusu not followed CRIME – appeals – appeal against conviction – error of law – jury directions – change in Crown case – definition of “false” in the context of sham – direction on sham – direction as to who was the directing mind of a company CRIME – appeals – appeal against conviction – error of law – jury directions – question trail which was said to require “yes” or “no” answers – direction that the jury needed only to be satisfied that the Crown case was reasonable – reversal of the burden of proof CRIME – appeals – appeal against conviction – error of law – whether trial judge erred in refusing to give a Mahmood direction CRIME – appeals – appeal against conviction – verdict of acquittal substituted

Catchwords:

CRIME – sentence – appeal against severity – armed robbery – multiple offences in company – youth – low cognitive functioning – manifest excess SENTENCE – disproportion between overall sentence and non-parole period – no presumption that offender will be released on completion of non-parole period – balance of term excessive

Catchwords:

CRIME – sexual offences – sentencing – 13 counts of aggravated sexual assault, indecent assault and acts of indecency – knowledge of offender as to absence of consent – whether finding as to possible belief in consent (albeit unreasonable) inconsistent with finding that offender reckless as to consent – Crimes Act 1900 (NSW), s 61HA SENTENCING – sexual offences – subjective considerations – mental illness – autism spectrum disorder – significance of mental condition to knowledge as to absence of consent – moral culpability – whether diminished due to mental illness – whether sentence manifestly excessive

Catchwords:

CRIMINAL LAW – bail – applicant charged with offences of violence and firearm offences – bail refused, then granted by Local Court – detention order made by Supreme Court – further application to Court of Criminal Appeal – power of Supreme Court to hear subsequent release application CRIMINAL LAW – bail – applicant charged with offences of violence and firearm offences – whether change of circumstances – prosecution witness contradicts earlier statement at committal hearing – whether strength of prosecution case affected – unforeseen delay before trial – unforeseen collapse of family business whilst applicant in custody

Catchwords:

CRIME – appeals – appeal against sentence – whether aggregate sentence manifestly excessive – notional accumulation – appeal allowed – applicant re‑sentenced

Catchwords:

CRIME – appeals – appeal against sentence – failure to take into account utilitarian value of guilty plea – no lesser sentence warranted – application for leave filed out of time

Catchwords:

SENTENCE – application for leave to appeal against sentence – offences of participating in a criminal group and dealing with identification information – pleas of guilty – sentence imposed partially accumulated on sentence previously imposed – single ground of appeal advanced – whether finding of special circumstances reflected by sentence imposed – relevance of earlier sentence – principle of totality

Catchwords:

CRIMINAL LAW – appeal against sentence – domestic violence offences – offences of aggravated break enter commit assault occasioning actual bodily harm and contravention of an apprehended domestic violence order – history of domestic violence offences against same victim – use made on sentence of applicant’s criminal record – assessment of objective seriousness – question of manifest excess

Catchwords:

CRIMINAL LAW – conviction appeal – found guilty by a jury of causing grievous bodily harm while reckless as to the causing of actual bodily harm by way of stomping or kicking the victim’s hip – acquitted of an assault occasioning actual bodily harm – sentenced to imprisonment for 3 years and 6 months with a non-parole period of 1 year and 9 months – appeal asserting that verdict of jury unreasonable or cannot be supported having regard to evidence – Crown case relied on a single witness – challenge to reliability of that witness – apparent discrepancy between initial complaint and texts sent to applicant – failure to adequately explain discrepancy – problems with complaint evidence – unexplained failure on the part of Crown to call an important witness – medical evidence supported claim – availability of reasonable alternate hypothesis explaining injury – leave to appeal granted but appeal dismissed.

Catchwords:

CRIMINAL LAW — appeal against conviction — whether miscarriage of justice occasioned by admission of evidence of the complainant — whether complainant competent to give evidence CRIMINAL LAW — appeal against conviction — whether evidence capable of supporting guilty verdict

Catchwords:

CRIMINAL LAW – s 5F appeal – indecent assault – where trial judge refused to order separate trials so as to sever hearing of sole count relating to one of the complainants from the remaining counts relating to the other complainant (her sister) – applicant is the complainants’ biological father – trial judge held that tendency evidence sought to be led by Crown was cross-admissible on respective counts – complaint by applicant as to prejudice if “child sex” type allegations “lumped together” with “adult sex” allegations in same trial – leave to appeal granted but appeal dismissed

Catchwords:

BAIL – nature of Court’s task in assessing bail concerns – where period of remand likely to exceed any custodial sentence that might be imposed

Catchwords:

CRIME – appeals – appeal against sentence – manifest excess – aggravated dangerous driving occasioning death conviction – extension of time –objective seriousness of the offence above mid-range – subjective features not out of ordinary or substantial – comparative cases – JIRS statistics

Catchwords:

CRIME – appeals – appeal by accused against interlocutory order dismissing his application for a trial separate from his co-accused – where admissions made by his co-accused to an informer witness ruled inadmissible against the accused – where the nature of those admissions inadmissible against the accused supports the evidence of admissions made by the accused to other informer witnesses and are consistent with the Crown case – whether unacceptable risk those admissions inadmissible against the accused will be used by the jury to assess the reliability of the informer witnesses’ evidence – real prospect of positive injustice to the accused – prejudice cannot be adequately addressed by jury directions – separate trial ordered

Catchwords:

CRIME – Terrorism offences – Possessing things connected with a terrorist act – Possessing revolver – Reckless as to connection of the thing to the preparation for a terrorist act CRIME – Firearms offences – Supply loaded revolver to person who is not authorised to possess the pistol by a licence or permit. CRIME – Appeals – Appeal against sentence – Whether miscarriage of justice by admission of Exhibit in the absence of an annexure to that statement CRIME – Appeals – Appeal against sentence – Whether sentencing judge erred in finding sympathetic towards Islamic State and motivated to commit the offences because of such sympathy CRIME – Appeals – Appeal against sentence – Whether sentencing judge erred in finding that disclosed to applicant that revolver was to be used for the purposes of a terrorist attack CRIME – Appeals – Appeal against sentence – Whether sentencing judge erred in sentencing applicant on basis that he knew revolver was to be used to shoot a person CRIME – Appeals – Appeal against sentence – Multiple offences - Degree of accumulation between offences CRIME – Appeals – Appeal against sentence – Manifest excess

Catchwords:

CRIME – appeals – appeal against sentence – drug offences – supply not less than large commercial quantity of methyl amphetamine – whether sentencing judge erred by double counting factors of aggravation – whether sentencing judge erred in failing to make a finding as to remorse – no lesser sentence warranted – whether sentence lacked parity with sentence of co-offender – appeal dismissed

Catchwords:

CRIME – appeals – appeal against sentence – drug offences – supply not less than large commercial quantity of methyl amphetamine – whether sentencing judge erred by double counting factors of aggravation – whether sentencing judge erred in failing to make findings as to remorse and prospects of rehabilitation – failure sufficiently to state reasons – no lesser sentence warranted – appeal dismissed

Catchwords:

CRIME – appeal and review – application to withdraw plea of guilty – whether integrity of plea challenged – where applicant anticipated lesser sentence CRIME – sentence – objective seriousness – revision or reformulation of the case presented below CRIME – sentence – commencement date for sentence – whether House v The King error established

Catchwords:

CRIME – Appeals – Appeal against aggregate sentence – aggravated break, enter and commit serious indictable offence (sexual intercourse without consent) and two other counts – whether error in assessing objective criminality of count 1 – whether indicative sentence for count 1 manifestly excessive – limitations of sentencing statistics – whether aggregate sentence manifestly excessive.

Catchwords:

CRIME – sentence appeal – assault with intent to rob armed with an offensive weapon causing grievous bodily harm – discharge firearm with intent to cause grievous bodily harm – specially aggravated take and detain for advantage – special circumstances – accumulation – whether the sentencing judge erred by failing to have regard to the effect of accumulating wholly the sentence to be imposed upon a pre-existing sentence

Catchwords:

CRIMINAL LAW – sentence appeal – aggregate sentence – offenders charged with different crimes – whether parity principle applies to indicative sentences for large commercial quantity supply offence – understandable sense of grievance – whether co-offender’s indicative sentence manifestly inadequate – whether applicant had a legitimate sense of grievance

Catchwords:

CRIMINAL LAW – Crown appeal – s 5F(3A) Criminal Appeal Act 1912 (NSW) – evidence – exclusion of evidence weakened Crown case – whether complaint evidence and evidence of pretext conversations admissible – whether error established in excluding evidence under 66 of the Evidence Act 1995 (NSW) – whether error established in excluding evidence of pretext conversations under s 135 and s 137 of the Evidence Act 1995 (NSW) – appeal upheld – rulings set aside – evidence admissible – matter remitted for further hearing

Catchwords:

CRIME – SENTENCE APPEAL – importation of commercial quantity of cocaine – characterisation of offender’s role in syndicate – manifest excess – offender was principal in Australia – “middle manager” – no error in characterisation – no manifest excess – if “crushing” sentence, then due to seriousness of offence at offender’s age – appeal dismissed

Catchwords:

CRIME – SENTENCE APPEAL – serious domestic violence – choking of victim occasioning actual bodily harm – permissible and appropriate for sentencing judge to take account of acts leading up to choking – taken into account to show three offences part of one course of conduct for totality purposes – no De Simoni issue – no error in characterisation of objective seriousness – appeal dismissed

Catchwords:

CRIMINAL LAW – appeal against conviction and sentence – appellant found guilty of murder – whether verdict unreasonable – whether evidence capable of supporting verdict – sentence of 21 years with non-parole period of 15 years and 9 months – whether error in assessing objective criminality of offence – whether issue of delay properly considered – whether sentence manifestly excessive – appeal dismissed

Catchwords:

CRIMINAL LAW – appeal against sentence – distortion well beyond statutory ratio by pre-existing sentence structure – strong subjective case – intellectual disability – appeal allowed – applicant re-sentenced

Catchwords:

CRIMINAL LAW – Appeal – Appeal against decision of primary judge to vacate the applicant’s trial on the application of the Crown – Where applicant had been in custody for a period of 19 months awaiting trial – Where vacation of the trial would likely result in the applicant being in custody for more than 2 years awaiting trial – Where applicant’s family and a witness had made arrangements to travel to Australia from Taiwan for the trial - Where Crown wished to serve further material in support of its case – Where primary judge exercised his discretion on the basis that the estimated length of the trial was now in excess of the estimate which was given at the time of setting the trial date – Where primary judge gave primacy to that fact over the consequences to the accused – Exercise of discretion unreasonable and plainly unjust - Error established – Orders of primary judge quashed - Observations as to the importance of the District Court having the capacity to finalise criminal cases in a timely manner

Catchwords:

CRIME – sentencing – offence committed while offender on parole for previous federal offence – automatic revocation of parole order – operation of provisions of Subdivision B of Division 5 of Part 1B of the Crimes Act 1914 (Cth) addressing revocation of federal parole – impossibility for sentencing judges of imposing a sentence that does not involve some distortion of the common law and statutory principles that govern the sentencing task

Catchwords:

CRIMINAL LAW – Evidence – Propensity, tendency and coincidence – Evidence Act 1995 (NSW) ss 97(1)(b) and 101(2) – armed robbery – bank robbery committed with substantially same co-accused over 9 years ago – some differences and some similarities with charged conduct – whether single prior bank robbery is evidence of a tendency or propensity to commit bank robberies in a particular manner – whether evidence has significant probative value – effect of Hughes v The Queen [2017] HCA 20

Catchwords:

CRIMINAL LAW – appeal against sentence – 11 offences of dishonestly obtaining a financial advantage by deception – 10 further offences of the same kind on three Forms 1 – $3.6 million unaccounted for – whether sentencing judge erred in failing to assess the objective seriousness of the offences – whether sufficient discount for assistance to authorities allowed – whether sentence imposed was manifestly excessive – objective seriousness of offences properly assessed – no error in discount allowed for assistance – sentence not manifestly excessive – error in formulation of indicative sentences – requirement to set out basis for differences between indicative sentences – error in formulation of indicative sentences not sufficient to require change in the aggregate sentence – appeal against sentence dismissed.

Catchwords:

CRIMINAL LAW – sentence appeal – offences of murder, two offences of specially aggravated break, enter and steal with intention to inflict grievous bodily harm, three offences of aggravated detain for advantage – two home invasions involved – basis of liability participation in a joint criminal enterprise – whether the sentence indicated for murder manifestly excessive – whether asserted error in indicative sentence produced a manifestly excessive aggregate sentence – whether error in the sentencing judge’s approach to special circumstances – no error established – appeal dismissed.

Catchwords:

CRIMINAL LAW – appeal against sentence – attempted importation of a commercial quantity of a border controlled drug – 25 kilograms of pure heroin – discount for utilitarian value of plea of guilty to Commonwealth offence not given – “Xiao error” established – excellent progress in custody since imposition of sentence many years ago – lesser sentence warranted – applicant re-sentenced

Catchwords:

CRIMINAL LAW – appeal – appeal against sentence – aggravated break, enter and commit serious indictable offence – robbery in company – sentencing judge had regard to Children’s Court criminal history – error established – manifest excess – Bugmy principles – youth and history of dysfunction – parity – re-sentencing

Catchwords:

SENTENCING — Appeal against sentence — Where sentencing judge erroneously referred to incorrect offence at conclusion of remarks of sentence — Where the offence had otherwise been identified correctly — Whether applicants sentenced for a more serious offence than charged — Slip in expression during ex tempore reasons SENTENCING — Appeal against sentence — Plea to reckless wounding in company — Whether sentencing judge erroneously had regard to injuries that might have exposed applicants to a more serious offence SENTENCING — Appeal against sentence — Co-offenders — Parity — Substantially similar subjective circumstances — Where co-offenders received same indicative sentence for offence of reckless wounding in company — Where one co-offender had lesser role in commission of that offence — Whether similarity in sentence justifiable

Catchwords:

SENTENCING — Appeal against sentence — Assessment of objective seriousness — Where sentencing judge’s findings accorded with submissions made by applicant at sentence hearing — Whether House v The King error — No error demonstrated SENTENCING — Appeal against sentence — Adequacy of reasons — No inadequacy of reasons

Catchwords:

CRIMINAL LAW – sentence appeal – solicit to murder – whether error in the judge’s assessment of the objective seriousness of the offence – whether the offence could fall within the mid-range of objective seriousness when no positive finding was made that he was the instigator – whether applicant’s role in the planning of the offence was limited – whether sentence manifestly excessive – consideration of other cases

Catchwords:

CRIME – Crown appeal against sentence – where asserted manifest inadequacy – shoot with intent to murder – Crimes Act 1900 (NSW) s 29 – where primary judge found offence was within high range of objective seriousness – where victim suffered catastrophic and permanent injury – where offender’s subjective circumstances generally not positive – residual discretion – offender re-sentenced

Catchwords:

CRIMINAL PROCEDURE – Submission of purported questions of law to Court of Criminal Appeal – when questions submitted after primary judge had delivered reasons finding prosecutor had failed to establish two elements of offence charged – whether de facto appeal – whether proceedings before District Court in exercise of its summary jurisdiction had been completed prior to submission of questions – whether previous decisions of Court of Appeal and Court of Criminal Appeal should be overturned – whether questions submitted on a case stated were questions of law within the meaning of s 5AE of the Criminal Appeal Act 1912 (NSW) – meaning of questions of law.

Catchwords:

CRIME - appeals - appeal against sentence - wound with intent to cause grievous bodily harm - mentally ill offender - where offender stabbed father multiple times whilst experiencing extreme paranoia and delusion - where offender lacked insight into his mental condition and was noncompliant with his treatment regime - whether sentence manifestly inadequate - where sentencing judge failed to take into account the protection of the community - where offender’s failure to treat his illness posed a significant and ongoing risk - where offender required longer supervision – where non-parole period had expired – whether residual discretion should be exercised to dismiss appeal - sentence quashed – sentence increased without changing the non-parole period

Catchwords:

APPEAL – application for leave to appeal against conviction – Judge-alone trial – whether verdicts are unreasonable and/or cannot be supported having regard to the evidence – offences of aggravated break and enter and commit serious indictable offence (armed robbery) and detaining a person with intent to obtain an advantage whilst in company – group of five offenders forced entry into the Casino Golf Club with weapons and detained two employees – offenders wore gloves and various forms of clothing to cover their heads and faces – stolen phone and discarded items of clothing and shoes later found in a nearby paddock – sole issue at trial whether applicant was one of the robbers – applicant’s DNA found on nine items of discarded clothing – expert evidence regarding DNA given at trial – where Crown case against the applicant at trial was circumstantial – whether there was reasonable hypothesis consistent with innocence concerning presence of applicant’s DNA on nine items of clothing – held that alternative hypotheses did not rise above speculation or conjecture – held it was open to trial Judge to find that the only reasonable explanation for the presence of the applicant’s DNA on the nine items of clothing was that he was one of the robbers – leave to appeal against conviction granted – appeal against conviction dismissed

Catchwords:

CRIMINAL LAW – Sentencing – Appeal against sentence – Multiple federal and state offences – Finding of special circumstances in relation to the aggregate sentence for the state offences – Accumulation of federal and state sentences – Whether finding of special circumstances given practical effect in the sentence structure after accumulation – Appeal against sentences allowed and sentences quashed – Applicant resentenced