Recent decisions for Court of Criminal Appeal

Catchwords:

SENTENCING – appeal against sentence – co-offenders – different discounts for respective pleas – difference in accumulation due to applicant’s greater culpability and additional Form 1 offence – difference in non-parole period due to differences in motive, health needs and prospects of rehabilitation – disparity justified

Catchwords:

CRIMINAL PROCEDURE — s 5F Criminal Appeal Act 1912 — temporary stay of proceedings granted to enable applicant to seek leave to appeal against a decision of the District Court refusing a permanent stay application — reluctance of appellate courts to fragment criminal proceedings at first instance — prospects of appeal succeeding and balance of convenience considered CRIMINAL PROCEDURE — whether plea bargains are a form of contractual undertaking — whether arguable that an abuse of process on the part of the Crown to reinstate charges that it agreed not to prosecute pursuant to a plea bargain with the applicant

Catchwords:

APPEALS – leave to appeal against pre-trial rulings – s 5F(3) Criminal Appeal Act 1912 (NSW) – undesirability of fragmenting and delaying resolution of criminal proceedings at first instance not outweighed by arguments mounted by applicant

Catchwords:

CRIME – appeals – appeal against sentence – where applicant pleaded guilty in Local Court to robbery in company – discount for assistance – where another offender involved – where other offender identified by applicant - where alleged co-offender not prosecuted – whether sentencing judge erred in not having regard to all matters set out in s 23(2) in assessing value of applicant’s assistance – whether discount of 5% was open to sentencing judge CRIME – appeals – appeal against sentence – parity – where applicant’s 16-year-old sister was co-offender and was sentenced in Children’s Court – whether disparity between sentences imposed on applicant and young person gave rise to a justifiable sense of grievance – where parity not raised by the applicant before the sentencing judge – significant differences between applicant and co-offender – no justifiable sense of grievance

Catchwords:

CRIME — Appeals — Appeal against sentence – aggregate sentence for offences involving dishonesty – concession by the Crown that sentencing judge was mistaken as to the maximum term of imprisonment for three offences on a s 166 certificate and as to the backdating of sentence – appeal allowed – re-sentence – affidavits tendered on re-sentence – whether more favourable subjective findings should be made

Catchwords:

CRIME — Appeals — Appeal against conviction – manslaughter – whether trial judge failed to properly put the defence case in the summing up – requirement for a fair and balanced identification of the issues and respective cases – Rule 4.15 of the Supreme Court (Criminal Appeal) Rules – no request for further directions at trial – whether miscarriage of justice – consideration of weight to be given to jury’s advantage of seeing and hearing witnesses – whether summing up raised consciousness of guilt – whether error to instruct jury as to entitlement to give less weight to exculpatory statements than admissions – Bench Book direction – whether verdict unreasonable

Catchwords:

CRIMINAL PROCEDURE — prosecution for non-compliance with statutory notice — ruling that notice invalid — classification of ruling as interlocutory or final — whether leave to appeal could be granted under s 5F Criminal Procedure Act 1986 (NSW) ENVIRONMENT — validity of notice purportedly issued under s 191 Protection of the Environment Operations Act 1997 (NSW) requiring addressee to furnish information — whether the notice sufficiently identified the material required to be produced and whether it showed that the addressor was entitled to require that production COURTS AND JUDGES — jurisdiction — whether a judge presiding over a preliminary hearing convened in accordance with the case management provisions in the Criminal Procedure Act 1986 (NSW) has the power to summarily dismiss a summary prosecution prior to final hearing

Catchwords:

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

Catchwords:

CRIME — Appeals — Appeal against sentence — Whether sentencing judge erred in the assessment of the objective seriousness of the firearm offence — Sentencing judge appeared to treat the presence of ammunition as an aggravating factor — Unfair to have regard to ammunition as an aggravating factor where there was no evidence that the ammunition could be used with the firearm — The relevance of the ammunition required closer scrutiny — House v The King error established CRIME — Appeals — Appeal against sentence — Whether sentence manifestly excessive — Circumstances of this case departed from the circumstances contemplated in the armed robbery guideline judgment — Starting point in excess of that contemplated in the guideline was warranted CRIME — Appeals — Appeal against sentence — Whether the court proceeded on an erroneous view of the facts — Fresh evidence of child sexual abuse disclosed post-sentence — Unnecessary to determine CRIME — Appeals — Appeal against sentence — Appeal allowed — Resentence — Child sexual abuse — Post-traumatic stress disorder leading to substance abuse — Mental health conditions were present at time of offending — Willingness to seek assistance for mental health and substance use issues — Lesser sentence imposed

Catchwords:

CRIMINAL PROCEDURE – order to produce – application to set aside by Commissioner – documents sought by respondent in relation to appeal against murder conviction – documents pertaining to the police investigation – onus on respondent to show legitimate forensic purpose – applicable approach after Blacktown and Waters – where many of the documents already produced or not in the Commissioner’s possession – onus not discharged – application granted – order set aside

Catchwords:

CRIME – Appeals – Appeal against sentence – Commonwealth offences – Requirement to take into account offender’s contrition for offence – Distinction between rehabilitation and remorse – Whether offender “downplaying” criminality – Remorse does not require abandoning attempts to identify mitigating factors – Held that sentencing judge did not duly consider offender’s contrition – Sentence appeal allowed

Catchwords:

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

Catchwords:

APPEAL – interlocutory ruling rejecting Crown evidence – CCTV footage – assessment of relevance – no question of principle

Catchwords:

CRIME – appeals – appeal against sentence – alleged error in assessment of objective seriousness – parity – applicant sentenced on agreed facts different to co-offenders – other facts disclosed more serious criminality – applicant instigated and planned offending, co-offenders assisted – no error in assessment of objective seriousness – no disparity – appeal dismissed

Catchwords:

CRIME — violent offences — choking, suffocation or strangulation — s 37(1A) of the Crimes Act 1900 — meaning of “intentionally chokes” — declaration that “intentionally chokes” means “intentionally apply pressure to the neck so as to be capable of affecting the breath or the flow of blood to or from the head” CRIME — appeals — appeal against directed acquittal — where primary judge directed acquittal for intentional choking — direction based on erroneous construction of “intentionally chokes” — where it was open on the evidence for the jury to find “choking” on its correct construction CRIME — appeals — appeal against conviction — inconsistent verdicts — whether conviction in respect of sequence 4 is inconsistent with acquittal in respect of sequences 1-3 and acquittal by jury in respect of counts 1 and 2 — where evidence of witness in relation to sequence 4 was supported by evidence of bruising — no inconsistency in verdicts CRIME — appeals — appeal against sentence — manifest excess — no error of principle demonstrated CRIME — appeals — discretion not to remit matter for retrial — where accused has served a longer time in prison than the head sentence imposed STATUTORY INTERPRETATION — legislative purpose — s 37(1A) of the Crimes Act 1900 (NSW) — meaning of “intentionally chokes” — context of the provision — where there is clear legislative intention to deter controlling behaviours by perpetrators of family and domestic violence — purpose of provision to prohibit conduct capable of restricting breathing and/or blood flow to or from the head

Catchwords:

CONVICTION APPEAL – applicant faced trial on 10 counts of child sexual assault involving two victims – convicted on one count involving one victim which was supported by evidence from other victim – Markuleski direction – trial judge told jury they could use any doubt about a victim’s evidence on one count in considering their evidence on other counts involving that victim but not in addressing any count concerning the other victim – effect of direction was to preclude jury from using any doubts about the evidence of one of the victims in the assessment of so much of their evidence that related to the count concerning the other victim – point not taken at trial – no forensic advantage to accused – miscarriage of justice – unreasonable verdict – whether verdicts inconsistent – whether evidence supporting conviction meant that it was unreasonable – whether commission of offence improbable because of risk of detection – ground rejected – verdict not unreasonable – appropriate order – retrial ordered

Catchwords:

CRIMINAL LAW – evidence – admissibility – multiple counts of drug supply – where some offences admitted and others denied – cross-admissibility of evidence – where evidence not relied on as tendency evidence – whether admissible on any other basis – whether relevant to rebut accused person’s defence – whether relationship evidence – where co-offender in custody at the time of subsequent offending – risk of tendency reasoning – danger of unfair prejudice – whether directions able to cure risk of impermissible reasoning CRIMINAL LAW – adequacy of directions – whether anti-tendency direction required – risk of impermissible reasoning high – where direction not to reason “automatically” that accused guilty of other offences – whether Prosecutor’s address increased the risk of tendency reasoning

Catchwords:

CRIME – Appeal by Crown against acquittals – charges of sexual touching – respondent suffering from “sexsomnia” – question of volition – construction of phrase “mental health impairment” – s 4 Mental Health (Forensic Provisions) Act 2020 – whether Act codifies or alters the common law concerning the mental illness defence - relevance of common law defence of non-insane automatism –whether sexsomnia is a mental health impairment – question of correctness of construction and application of Act at trial

Catchwords:

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

Catchwords:

CRIMINAL LAW – Practice and procedure – Summing-up of trial judge – Where appellant was convicted by a jury of murder – Where principal Crown witness gave an account of the shooting of the deceased – Where that account was contradicted by the sworn evidence of the appellant – Where the trial judge gave directions in terms of the jury having to “choose” or “decide” between the two accounts – No direction given to the jury regarding fact that the appellant had given evidence – No direction given to the jury as to how the appellant’s evidence should be assessed in circumstances where the Crown had the onus of proof – Where the trial judge refused an application for a Liberato direction – Directions of trial judge erroneous – Refusal to give a Liberato direction also erroneous – Appeal allowed and new trial ordered CRIMINAL LAW – Practice and procedure – Summing-up of trial judge – Where trial judge expressed a number of views in the course of the summing-up which were critical of aspects of the appellant’s evidence in the course of his summing-up – Absence of any clearly defined summary of the appellant’s case in the summing up – Where the trial judge put propositions to the jury which had not been advanced by the Crown – Summing-up generally lacking in fairness and balance – Appeal allowed and new trial ordered – Observations as to the extent to which comments by the trial judge as to the evidence and the facts is permissible CRIMINAL LAW – Juries – Where trial judge discharged a juror at a relatively early stage of the appellant’s trial – Where the trial judge subsequently discharged two other jurors on the basis of the stress and anxiety associated with the trial – Where trial judge then refused an application to discharge the whole jury following the discharge of the third juror – Where verdict of guilty followed virtually immediately following the discharge of the third juror – Clear inference that the views of the third juror were at odds with the majority – Risk of miscarriage of justice arising from the refusal of the trial judge to discharge the jury – Appeal allowed and new trial ordered CRIMINAL LAW – Practice and procedure – Directions of trial judge – Where jury indicated that they were unable to reach a unanimous verdict – Where trial judge then gave what he described as an “adaptation” of a Black direction – Where that direction departed from the model direction and omitted a material part – Where the direction which was given contributed to the miscarriage of justice which arose from the subsequent failure to discharge the jury – Appeal allowed and new trial ordered – Observations as to the undesirability of departing from the terms of the model direction which is given in response to an indication that the jury are unable to reach a unanimous verdict CRIMINAL LAW – Practice and procedure – Juries – Where deliberations were permitted to continue on two separate occasions for substantial periods of time in the absence of all members of the jury being present – Where the trial judge had not made any order for separation of the jury – Where the trial judge had not directed the jury at any stage that deliberations should only take place when all members of the jury were present – Whether either instance of separation amounted to an irregularity – If so whether such irregularity gave rise to a miscarriage of justice and was thus material – Material irregularity established – Appeal allowed and new trial ordered – Observations as to the importance of making orders allowing a jury to separate during deliberations – Further observations as to the importance of directing juries at the commencement of, and during, the trial that deliberations must only be undertaken when all members of the jury are present

Catchwords:

CRIMINAL LAW – Sentence – Appeal – Where the applicant pleaded guilty to importing a border controlled drug concealed in the lining of a suitcase – Where the Crown specifically disavowed a case based on the applicant having actual knowledge of the drugs – Crown case put on the basis of recklessness – Where the effect of the applicant’s evidence was that he had turned his mind to the possibility that he was importing drugs – Where the relevant legislation defined recklessness in terms of the existence of a substantial risk rather than a possibility – Where the sentencing judge made reference to the applicant’s evidence when assessing his criminality and his level of recklessness – Whether that approach reflected the application of an incorrect test – Necessity to read the reasons for sentence as a whole – No error established – Leave to appeal granted – Appeal dismissed

Catchwords:

CRIME — appeals — appeal against sentence — misapplication of principle — sentencing for federal offences — relevant considerations for a court sentencing a federal offender pursuant to s 16A of the Crimes Act 1914 (Cth) — whether s 16A(2)(p) of the Act requires “exceptional hardship” to be established in order for a court to have regard to, or attach a specified weight to, the probable effect of a sentence or order on an offender’s family or dependants — whether s 16A of the Act was intended to alter or displace the common law with respect to the relevance and treatment of hardship to third parties — whether previous decisions of intermediate appellate courts holding that “exceptional hardship” is required are “plainly wrong” CRIME — appeals — appeal against sentence — re-sentence – obtaining a financial advantage by deception from the Commonwealth, contrary to s 134.2(1) of the Criminal Code Act 1995 (Cth) — where offending involved social security fraud — where offender underreported or failed to report income to authorities and thereby received benefits to which she was not entitled — the proper treatment of general deterrence in sentencing for social security fraud offences — where offender was the victim of physical, emotional and financial abuse perpetrated by her former partner — where the offender’s incarceration resulted in hardship to her family and children JUDGMENTS AND ORDERS — court of appeal — review of previous decision of the court of appeal — whether previous decision plainly wrong — the proper construction of s 16A(2)(p) of the Crimes Act 1914 (Cth) — whether s 16A(2)(p) of the Act requires “exceptional hardship” to be established in order for a court to have regard to, or attach a specified weight to, the probable effect of a sentence or order on an offender’s family or dependants — whether s 16A of the Act was intended to alter or displace the common law with respect to the relevance and treatment of hardship to third parties — whether previous decisions of the New South Wales Court of Criminal Appeal and other intermediate appellate courts holding that “exceptional hardship” is required are “plainly wrong” SENTENCING — appeal against sentence — general principles — relevant considerations for a court sentencing a federal offender pursuant to s 16A of the Crimes Act 1914 (Cth) — whether s 16A(2)(p) of the Act requires “exceptional hardship” to be established in order for a court to have regard to, or attach a specified weight to, the probable effect of a sentence or order on an offender’s family or dependants — whether s 16A of the Act was intended to alter or displace the common law with respect to the relevance and treatment of hardship to third parties — whether previous decisions of intermediate appellate courts holding that “exceptional hardship” is required are “plainly wrong” SENTENCING — federal offenders — relevant considerations — hardship — to third parties — whether s 16A(2)(p) of the Crimes Act 1914 (Cth) requires “exceptional hardship” to be established in order for a court to have regard to, or attach a specified weight to, the probable effect of a sentence or order on an offender’s family or dependants — whether s 16A of the Act was intended to alter or displace the common law with respect to the relevance and treatment of hardship to third parties — whether previous decisions of intermediate appellate courts holding that “exceptional hardship” is required are “plainly wrong” STATUTORY INTERPRETATION — precedent — federal legislation — the importance of comity and consistency between intermediate appellate courts in the interpretation of federal legislation — the proper construction of s 16A(2)(p) of the Crimes Act 1914 (Cth) — whether s 16A(2)(p) of the Act requires “exceptional hardship” to be established in order for a court to have regard to, or attach a specified weight to, the probable effect of a sentence or order on an offender’s family or dependants — whether s 16A of the Act was intended to alter or displace the common law with respect to the relevance and treatment of hardship to third parties — whether previous decisions of the New South Wales Court of Criminal Appeal and other intermediate appellate courts holding that “exceptional hardship” is required are “plainly wrong”

Catchwords:

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

Catchwords:

CRIMINAL LAW – appeal – appeal against conviction – sexual intercourse without consent – whether verdict of the jury was unreasonable – whether verdicts of the jury were inconsistent – whether rational explanation for differing verdicts

Catchwords:

BAIL – Where respondent was convicted in the Local Court and sentenced to a term of full time imprisonment – Where an appeal to the District Court was dismissed – Where the respondent then commenced proceedings seeking judicial review of the decision of the District Court – Where the respondent was granted conditional bail – Where respondent’s visa had been cancelled resulting in his being taken into the custody of the Australian Border Force on his release – Agreed between the parties that there had been a relevant change in circumstances which had a material and potentially adverse effect on the applicant’s prospects of success in the judicial review proceedings – Where Crown made an application for the respondent’s detention – Agreed between the parties that the application should succeed and that the respondent should be returned to the custody of Corrective Services NSW – Orders made – No point of principle

Catchwords:

CRIME – sentencing – appeal against sentence – two counts of vehicular manslaughter – additional count of dangerous driving causing grievous bodily harm – two people killed – offender heavily intoxicated – whether sentencing Judge erred in finding facts – whether Judge failed to afford procedural fairness – finding that offender always intended to drive away from hotel – thoughtful and comprehensive sentencing judgment – no patent error established – no denial of procedural fairness CRIME – sentencing – whether sentence manifestly excessive – tragic case – offending approaching but not within the worst category of case – survey of comparable cases – totality – aggregate sentence – where individual indicative sentences high but within range – totality and notional accumulation – (by majority) aggregate sentence held to be excessive – appeal allowed – applicant re-sentenced

Catchwords:

CRIME – appeals – appeal against sentence – applicant sentenced for sexual offences committed against 14-15 year old student – where applicant was a physical education teacher – explicit material exchanged on Snapchat – touching on the outside of clothing – where the applicant’s borderline personality disorder materially contributed to the commission of the offending – sentence manifestly excessive – weight to be afforded to the promotion of rehabilitation of the applicant – error in taking into account in relation to one offence a standard non-parole period that had ceased to be applicable

Catchwords:

CRIMINAL LAW – Appeal against conviction – judge alone trial - applicant found guilty of sexual assaults on two young boys some 50 years earlier – whether reasons of trial judge complied with s 133 of Criminal Procedure Act 1986 (NSW) – inconsistencies in complainants’ evidence with established facts – divergence of complainants’ evidence from their police statements – evidence of reconstruction of aspects of complainants’ recollection – uncontradicted evidence of appellant’s movements at the time – convictions quashed and acquittals entered

Catchwords:

CRIME – appeals – appeal against sentence – s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) – parity principle – totality principle – applicant sentenced to 4 years imprisonment with non-parole period of 2 years, 6 months for single armed robbery offence – co-offender sentenced to aggregate sentence of 5 years, 3 months with a non-parole period of 3 years, 2 months for three offences – co-offender’s indicative sentence for shared armed robbery offence only 3 months more than applicant’s sentence – co-offender’s non-parole period extended by 12 months and total sentence extended by 13 months – whether applicant has a justifiable sense of grievance arising from disparity between his sentence and sentence imposed upon co-offender – both offenders had strong subjective cases – difference in sentence for the shared armed robbery offence sufficient to reflect differences in subjective case – Court must consider all the components of the sentence for all the offences that each offender is serving – total effect of the sentences on each offender not reflective of their respective criminality – justifiable sense of grievance arises – resentenced

Catchwords:

CRIMINAL PROCEDURE — costs — application for certificate under Costs in Criminal Cases Act 1967 (NSW) — successful appeal against conviction for sexual assault — where complainant’s credibility a central issue at trial — whether institution of proceedings unreasonable

Catchwords:

CRIME — drug offences — supply prohibited drug — commercial quantity — where applicant entered early guilty plea — where sentencing judge applied a 25% discount for early guilty plea — whether sentencing judge erred in applying s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW) to make that discount CRIME — appeals — appeal against sentence — misapplication of principle — where applicant was entitled to a 25% sentencing discount for the utilitarian value of his early guilty plea pursuant to s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) — where sentencing judge applied a 25% sentencing discount to reflect the utilitarian value of the applicant’s guilty plea, in addition to his remorse and willingness to facilitate the course of justice — whether the Act requires separate consideration of the utilitarian value of a guilty plea, an offender’s remorse, and his or her willingness to facilitate the course of justice — whether sentencing judge erred in applying s 25D of the Act CRIME — appeals — appeal against sentence — re-sentence — supplying a large commercial quantity of a prohibited drug — where the applicant participated in a purported drug transaction facilitated by undercover law enforcement officers — where no drugs in fact existed or were disseminated into the community — where the offence may not have been committed had authorities not facilitated it — weight to be given to hardship caused to family members by an offender’s incarceration SENTENCING — appeal against sentence — sentence contrary to law — where applicant was entitled to a 25% sentencing discount for the utilitarian value of his early guilty plea pursuant to s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) — where sentencing judge applied a 25% sentencing discount to reflect the utilitarian value of the applicant’s guilty plea, in addition to his remorse and willingness to facilitate the course of justice — whether the Act requires separate consideration of the utilitarian value of a guilty plea, an offender’s remorse, and his or her willingness to facilitate the course of justice — whether sentencing judge erred in applying s 25D of the Act SENTENCING — plea of guilty — sentencing discount for the utilitarian value of an early plea of guilty pursuant to s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW) — multiple and distinct sentencing considerations which may be engaged by an early plea of guilty — where an early plea of guilty bears utilitarian value — where an early plea of guilty is indicative of remorse and/or willingness to facilitate the course of justice — whether sentencing judge erred in considering the applicant’s remorse and willingness to facilitate the course of justice when applying a sentencing discount pursuant to s 25D of the Act

Catchwords:

CRIMINAL LAW – sentencing – offences of violence – affray – assault occasioning actual bodily harm in company – gangs of youths – general deterrence – relevance of youth and immaturity – well settled principles – whether sentencing judge failed to take into account – where Judge aware of age of offender – “section 5 threshold” – where applicant’s role in affray at low level of objective seriousness - sentence of imprisonment not the only appropriate sentence – Intensive Correction Order – no power to back date – time served taken into account – applicant re-sentenced

Catchwords:

CRIME — appeals — appeal against sentence — manifest excess – manslaughter arising out of the manner in which motor vehicle was driven – applicant heavily intoxicated – comparable decisions of the New South Wales Court of Criminal Appeal used to demonstrate that the starting point, and, therefore, the sentence imposed, were so far out of line with the established pattern of sentencing as to be demonstrably manifestly excessive – after factoring in a 25% discount for plea of guilty, the starting point of 12 years was manifestly excessive CRIME — appeals — appeal against sentence — failure to take into account a relevant consideration – Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 571 – whether the sentencing judge failed to make an assessment of the applicant’s moral culpability in the light of the evidence of her background – where applicant has a strong subjective case but the objective seriousness of the manslaughter offence was extreme

Catchwords:

CRIME – appeals – appeal against conviction – miscarriage of justice CRIME – child sex offences – circumstances of aggravation EVIDENCE – the credibility rule – exceptions – specialised knowledge based on training, study or experience – opinion – children’s responses to sexual abuse EVIDENCE – the opinion rule – exceptions – expert evidence – specialised knowledge – based on training, study or experience – children’s responses to sexual abuse – what constitutes opinion

Catchwords:

CRIME — Appeals — Appeal against sentence — whether sentencing judge failed properly to take into account applicant’s mental disorders CRIME — Appeals — Appeal against sentence — new evidence — whether to admit supplementary expert report

Catchwords:

CRIME – Crown appeal against sentence – joint enterprise murder of minor by juveniles – alleged error in applying standard non-parole period – alleged failure to apply statutory aggravating features – alleged manifest inadequacy – statutory aggravating features not to be applied formulaically – no error disclosed – not manifestly inadequate in light of respective roles and subjective circumstances

Catchwords:

CRIME — appeals — appeal against conviction — unreasonable verdict CRIME — appeals — appeal against conviction — miscarriage of justice — whether a miscarriage of justice resulted from the failure of trial counsel for the applicant to seek to have admitted pursuant to s 293(4)(c) Criminal Procedure Act 1986 (NSW) evidence that the complainant had sexual experience or had taken part in sexual activity EVIDENCE — discretions — exclusion of evidence — criminal proceedings — whether the trial judge erred in declining to exclude evidence of a pregnancy test under s 137 of the Evidence Act 1995 (NSW)

Catchwords:

CRIMINAL PROCEDURE – fitness to be tried – trial judge found no real and substantial concern about the applicant’s fitness to stand trial – whether evidence tendered on appeal indicated that there was a miscarriage of justice because there exists an unresolved question about the applicant’s then fitness to be tried

Catchwords:

CRIME – Bail – release application – proposed conviction and sentence appeal – preliminary question of jurisdiction to hear and determine release application – no appeal “pending” before the Court – no jurisdiction to hear application – on the assumption that jurisdiction did exist, s 22 test not met by applicant

Catchwords:

Criminal law-sentencing-supply of prohibited drug not less than commercial quantity-role in drug hierachy and actual participation in criminal enterprise-parity-relevance of record of co-offender-standard non-parole period.

Catchwords:

CRIMINAL LAW – Offences – Sentence – Appeal – Statutory construction – Where applicant pleaded guilty to offences of entering a building or land with intent to commit and indictable offence – Where applicant also pleaded guilty to committing those offences after being convicted of an indictable offence – Whether two separate offences created or whether one offence should be regarded as an aggravated form of the other – Whether a miscarriage of justice arose from the fact of the applicant’s pleas of guilty to both groups of offences PRACTICE AND PROCEDURE – Where sentencing judge cited incorrect maximum penalties for offences on the basis of erroneous material provided by the Crown – Where that error had the capacity to infect the exercise of the sentencing discretion – Leave to appeal granted – Applicant resentenced – Observations as to the pressure on Judges of the District Court and the consequent necessity for legal practitioners to ensure that accurate information is provided to a sentencing Court

Catchwords:

CRIMINAL LAW – Application for leave to appeal against conviction – Where the applicant was found guilty by a jury of recklessly inflicting grievous bodily harm following an incident with police at a random breath testing station – Whether there was a failure on the part of the Crown to put its case to the applicant when cross-examining him – Consideration of the application of the rule in Browne v Dunn – Where the applicant was clearly on notice of the case against him – Whether the rule necessitated the Crown putting specific propositions in cross-examination – Whether it was open to the jury to find the Crown case established beyond reasonable doubt CRIMINAL LAW – Application for leave to appeal against conviction – Where grounds of appeal asserted that the trial judge had misdirected the jury in relation to a complaint of injury said to have been made by the applicant and in relation to the fact that the police witnesses had read their statements when giving evidence in chief – Where no issue had been taken by counsel at trial – Application of r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) – Directions entirely appropriate in light of submissions which had been made by counsel in his closing address to the jury – Leave to rely on those grounds refused – Appeal dismissed

Catchwords:

CRIME – Appeals – Appeal against sentence – wrong facts provided on sentence in respect of number of pills referable to count 2 – re-sentence – exercise of discretion – applicant’s subjective factors – hardship – conditions in custody – COVID-19 related – special circumstances

Catchwords:

CRIME — appeals — appeals against sentence by two co-offenders convicted of joint criminal enterprise to commit murder — both applicants allege manifestly excessive sentence — both applicants allege parity error — applicant Mouhtaris alleges further and related error in sentencing judge’s finding that applicant’s offending was at the mid-range of objective seriousness — applicants relied on range of subjective factors on sentence

Catchwords:

CRIME — appeals — appeal against sentence — aggravated dangerous driving causing grievous bodily harm — victim suffered a severe brain injury — where vehicle was travelling in excess of 200km/h with unrestrained passenger — where offending assessed as being “well above the mid-range” — whether the sentencing judge erred in assessment of objective seriousness — no error — whether the sentencing judge erred in the assessment of impact on the victim — limited evidence put before the sentencing judge — no error — term of imprisonment not manifestly excessive — automatic disqualification — failure to exercise jurisdiction with respect to variation of automatic period

Catchwords:

CRIMINAL LAW -appeal against conviction on sexual offences – Crown witness – said to accused in presence of jury “Don’t worry. We’ll get you off…” – Judge gave jury direction that did not repeat the words as addressed – possibility that jury might hold statement against applicant – other types of prejudice raised on appeal but not at trial – no miscarriage of justice – leave to appeal granted – appeal dismissed

Catchwords:

CRIME – Conviction Appeal – Inconsistent verdicts – unreasonable verdicts – alleged confusion in case presented to jury – clear and unambiguous directions – no confusion as to factual basis of different counts – difference in verdicts accounted for by degree of independent corroborating evidence – no reasonable doubt – appeal dismissed

Catchwords:

CRIME – Appeals – Appeal against sentence – Firearms offences – Unlawfully sell firearms three or more times – Drug offences – Supply large commercial quantity of prohibited drug – Discounts – Guilty plea and assistance to authorities – Whether error in respect of discount – Discount at the low end of available range but no error established APPEALS – Further evidence – Evidence not adduced at sentencing – Firearms test report – Whether relevance and significance not appreciated below – Where sentencing judge’s assessment of objective seriousness of firearms offence proceeded on misapprehension due to absence of regard to mitigating effect of report – Evidence admitted CRIME – Appeals – Appeal against sentence – Manifest excess – Resentencing – Where sentencing judge’s assessment of objective seriousness of firearms offence erroneous in light of further evidence – Where relatively low discount applied by sentencing judge – Use of comparative cases and statistics – Accumulation – Appeal allowed

Catchwords:

CRIMINAL LAW – Sentence – Appeal – Crown appeal on the basis of specific error – Respondent found guilty by a jury of multiple counts of indecent assault committed on his stepdaughter who was aged between 13 and 15 years at the relevant time – Where sentencing judge found that the requirement of the respondent to register under the Child Protection (Offenders Registration) Act 2000 (2000) was a form of extra-curial punishment and thus a mitigating factor on sentence – Error made out CRIMINAL LAW – Sentence – Appeal – Crown appeal on the basis of manifest inadequacy of sentence – Respondent found guilty by a jury of multiple counts of indecent assault committed on his stepdaughter who was aged between 13 and 15 years at the relevant time – Where a Community Corrections Order was imposed by the sentencing judge in respect of each offence – Absence of remorse and no acceptance of responsibility on the part of the respondent – Little basis in those circumstances to find that the respondent had excellent prospects of rehabilitation – Error in finding that the respondent’s motivation for the offending was not purely sexual – Error in finding that the offending was impulsive – Displacement between other findings and the sentence which was imposed – Respondent re-sentenced to a term of imprisonment CRIMINAL LAW – Practice and procedure – Sentence – Appeal – Crown appeal – Where submission made that the Crown had not assisted the sentencing judge other than by making a “bald assertion” that a sentence of imprisonment was appropriate – Where submission made that conduct of the Crown on sentence had contributed to the imposition of a manifestly inadequate sentence – Suggestion that the Crown had played a part in the imposition of a manifestly inadequate sentence rejected – Where submission made that the Crown should have specifically put to the sentencing judge what the appropriate indicative sentences were – Conclusion that such an approach would have been contrary to authority – No failure on the part of the Crown to properly assist the sentencing judge CRIMINAL LAW – Practice and procedure – Observations as to the obligations imposed by s 15A(1)(a) of the Children Criminal Proceedings Act 1987 (NSW) and the effect on general deterrence of restrictions on publication of an offender’s name

Catchwords:

CRIME – appeal – sexual offences against a child – no question of principle

Catchwords:

CRIME — appeals — appeal against conviction — whether guilty verdicts unreasonable by reason of inconsistency with not guilty verdicts

Catchwords:

CRIMINAL LAW – Sentence – Appeal – Where applicant was convicted of conspiring to import a border controlled precursor – Where Crown case at trial asserted that the conspiracy encompassed four separate importations – Where the sentencing judge found that the applicant was actively involved in all importations – Whether the evidence was sufficient to establish such involvement beyond reasonable doubt – Where issue addressed in the course of a previous determination of the applicant's appeal against conviction – Where evidence supported the findings of the sentencing judge – Leave to appeal on that ground refused CRIMINAL LAW – Offences – Sentence – Appeal – Error in the sentence imposed arising from a failure to take into account the entirety of the periods of the applicant's pre-sentence custody – Agreed position between the parties – Sentence quashed and applicant re-sentenced to correct the mathematical error – No requirement to engage in a fresh exercise of the sentencing discretion

Catchwords:

CRIMINAL LAW – appeal against conviction – attempting to import commercial quantity of border controlled drug – applicant involved in seeking to possess two packages carried by air from Netherlands to Australia – applicant claimed he believed packages contained polymer for making counterfeit banknotes – applicant had previous counterfeiting conviction – applicant when arrested possessed counterfeit banknotes – whether conviction unreasonable – only element in content was knowledge that packages contained illicit drugs – surveillance evidence, text messages and intercepted telephone calls supported Crown case – applicant cross-examined before jury – applicant accepted aspects of his case were untrue – open to jury to convict

Catchwords:

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

Catchwords:

CRIMINAL LAW – application for leave to appeal against conviction and sentence – trial by judge alone – where applicant convicted of murder as participant in joint criminal enterprise – where arrangement that applicant pay money to co-participant in return for killing deceased – where trial judge relied on circumstantial evidence and admissions of guilt by applicant – whether verdict unreasonable – whether trial judge’s reasons inadequate – reasons requirement in judge-alone trial under Criminal Procedure Act, s 133(2) – whether sentence manifestly excessive

Catchwords:

CRIMINAL LAW – appeals – application for leave to appeal against conviction – proposed appeal on mixed questions of fact and law – trial by judge alone – where applicant convicted on 21 counts of sexual intercourse without consent and two related offences – where offences committed against wife as “punishment” for alleged infidelity – whether trial judge misdirected himself as to element of consent under Crimes Act 1900 (NSW), s 61HA – whether trial judge erred in admitting evidence as to relationship or in using it to engage in tendency reasoning – whether verdict unreasonable or cannot be supported CRIMINAL LAW – appeals – application for extension of time in which to appeal – whether merit in any proposed ground of appeal – extension of time refused

Catchwords:

CRIMINAL LAW – appeal – appeal against sentence – larceny – dishonestly obtain property by deception – whether sentencing judge erred in failing to consider the remorse and contrition of the offender when discounting sentence for early guilty plea – whether sentencing judge erred in failing to consider special circumstances

Catchwords:

CRIMINAL LAW – appeal against sentence – error conceded in respect of the failure to refer to and apply s16A(2AAA) of the Crimes Act 1914 (Cth) – resentence

Catchwords:

CRIME – acquittal after Judge-alone trial – child sexual abuse offences allegedly committed in 1985 – complainant a 12-year old student at school where accused was a teacher – Crown appeal against acquittal under s.107 Crimes (Appeal and Review) Act 2001 – appeal on grounds involving questions of law alone – unchallenged evidence admitted at trial as tendency evidence – accused had committed child sexual abuse offences against two other 13-year old students from school between 1985 and 1987– first ground asserted that Judge failed to take tendency evidence into account in acquitting accused – second ground asserted that, if tendency evidence taken into account, Judge erred by failing to record findings concerning tendency evidence - consideration of significance of unchallenged tendency evidence – duty to give reasons – first ground rejected (by majority) – second ground upheld (by majority) – whether discretion should be exercised to quash acquittals and order a new trial – discretionary considerations - held (by majority) that acquittals should not be quashed and a new trial ordered – Crown appeal dismissed - acquittals of accused affirmed under s.107(5) Crimes (Appeal and Review) Act 2001

Catchwords:

CRIME – appeals – appeal against sentence – where applicant pleaded guilty to counts of sexual intercourse with young person under his special care – where applicant was teacher of victim – whether sentencing judge erred in not taking into account as mitigating factors that applicant did not have previous convictions and was a person of good character – whether sentence imposed was manifestly excessive – where significant amount of evidence attesting to applicant’s character – where some weight should have been given to good character of applicant – appeal allowed

Catchwords:

CRIME – Appeals – Appeal against sentence – reckless infliction of grievous bodily harm – victim a 9 week old infant – fractured ribs – “karate chop” – squeezing – additional assaults resulting in fractured wrist and bruising to face – multiple assaults – twenty year old ill equipped father – personal history of trauma, dysfunction and violence – psychologist’s report –– whether sentencing judge failed to assess moral culpability – whether failure to apply “Bugmy principles” – whether Judge erred in approach to youth and immaturity – ex tempore judgment on sentence

Catchwords:

CRIMINAL LAW – appeal – appeal against sentence – making documents connected with preparation for a terrorist act – whether sentencing judge erred in failing to have regard to the utilitarian value of the plea of guilty – need independently to re-exercise the sentencing discretion

Catchwords:

CRIMINAL LAW – appeal – appeal against sentence – aggravated robbery – whether sentencing judge erred in finding that the level of violence used in the offence was extreme – whether sentence was manifestly excessive

Catchwords:

BAIL – release application – bail refused in Local and Supreme Court for original charges – bail refused in Local Court for new charges – whether this Court has jurisdiction to hear release application with respect to new charges – construction of Bail Act 2013 – bail and bail decisions are specific to offences – no bail decision has been made by the Supreme Court – no jurisdiction to hear application – no view expressed as to merits

Catchwords:

CRIME — appeals — appeal against sentence —sentencing judge erred in the consideration of pre-sentence custody – applicant’s borderline intellectual functioning – moral culpability – understanding of offending – re-sentence – independent exercise of discretion – findings on objective seriousness at first instance – applicant’s subjective factors – applicant’s mental condition – dietary considerations – hardships – conditions in custody – COVID-19 – rat infestation – objective gravity of offending – general deterrence – special circumstances – sentence quashed – aggregate term of imprisonment imposed

Catchwords:

CRIME – appeal – sentence – terrorism offence – attempt to murder by knife attack – victim survived – no challenge to objective seriousness assessment – use of non-causative psychiatric condition in sentencing – manifest excess – sentence stern but not manifestly excessive for objective seriousness – no error of principle or unidentified error

Catchwords:

CRIMINAL LAW – Offences – Sentence – Appeal – Where applicant was arrested at a time when there were outstanding charges pending against him in the Local Court – Where the applicant was sentenced to a term of imprisonment in respect of those pending charges and served that sentence whilst awaiting sentence on other matters – Whether the failure of the sentencing judge to fully backdate the sentences amounted to a miscarriage of justice – Where applicant’s solicitor acquiesced to the approach taken by the sentencing judge – Ground of appeal not established – Leave to appeal granted – Appeal dismissed CRIMINAL LAW – Offences – Sentence – Appeal – Where applicant sought to argue that his conditions of custody had been rendered more harsh as a consequence of the Covid pandemic and justified a reduction in sentence – Where applicant had been sentenced before the onset of the pandemic – Court unable to intervene where, after the time of sentence, an offender’s conditions of custody are rendered more onerous because of the response of the prison authorities to the pandemic – Ground of appeal not established – Leave to appeal granted – Appeal dismissed

Catchwords:

STATED CASE – prosecution under Work Health and Safety Act 2011 – primary judge published reasons but not final orders – utility of stated case procedure – necessity to identify “pure question of law” – not a means to address or consider whether alleged finding of mixed fact and law affected by legal error – primary judge has power to submit question or multiple questions prior to making final orders – question as to power of primary judge to withdraw properly submitted questions – does not arise – question posed contending that primary judge had obligation to address components of an element of the offence in a specified order – no such requirement – questions asked concerning relevance of the reasonable foreseeability of the relevant risk and the accident in which the risk manifested – Court limited to strictly answering question posed – questions answered “yes, but not necessarily determinative” – balance of questions posed do not arise or not appropriate to answer

Catchwords:

CRIME – appeal – victim under 18 – fact taken into account in assessment of objective seriousness – not an aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – error – resentenced – enter with intent to commit serious indictable offence – aggravated break and enter and commit serous indictable offence – in each case, serious indictable offence not an aggravating feature of the principal offence – lesser sentence warranted

Catchwords:

ENVIRONMENT AND PLANNING – offences – appeal – failure to comply with condition of environment protection licence – condition to maintain plant in a proper and efficient condition – meaning of “maintain” – release of ammonia gas during upgrade works – circuit piping not able to contain ammonia – Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33 applied

Catchwords:

CRIME – Appeals – Appeal against sentence – Where applicant pleaded guilty to two offences concerning the illegal importation and distribution of tobacco products – Where applicant submitted that an intensive correction order was appropriate – Where sentencing judge imposed a full-time custodial sentence – Whether sentencing judge failed to have regard to the requirements of s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) when imposing a sentence of full-time imprisonment – Whether sentencing judge failed to engage with applicant’s submissions regarding appropriateness of an intensive correction order – Whether sentencing judge erred in his assessment of the objective seriousness of the offences – Whether the sentence imposed was manifestly excessive

Catchwords:

CRIME – APPEAL – sentence appeal – breach of ESO – breaches do not give rise to increased risk of offending for which ESO imposed – manifest excess

Catchwords:

CRIMINAL LAW – appeal against sentence – cultivation of indictable quantity and commercial quantity of cannabis – further offences of supply and proceeds of crime taken into account – inferences available from acknowledgement of guilt to further offences – whether error in finding that cash found on premises was proceeds of sale of cannabis – whether error in characterising offending as “small cottage industry” or “small commercial enterprise” – whether sentence manifestly excessive

Catchwords:

CRIMINAL LAW – application for leave to appeal against sentence – where applicant convicted of firearm offences – where no suggestion that firearms held for sale or storage for any third party – whether sentence imposed manifestly excessive

Catchwords:

APPEALS — From jury verdict — Misdirection or non-direction — whether an anti-tendency direction was required — where trial counsel did not seek an anti-tendency direction — whether trial judge erred by not giving direction SENTENCING — Appeal against sentence — whether fact on which sentence was based was proved beyond reasonable doubt — whether it was open to trial judge to find existence of fact beyond reasonable doubt SENTENCING — Appeal against sentence — whether trial judge erred in assessing prospects of rehabilitation — whether it was open to trial judge to assess prospects as slim

Catchwords:

CRIME – appeal against convictions following refusal of application to discharge jury – references in prosecutor’s address to complainant’s lack of sexual experience – s 293 Criminal Procedure Act – retractions by Crown and trial judge’s directions to jury overcame prejudice – appeal dismissed

Catchwords:

CRIMINAL LAW – appeal against conviction – medical evidence relating to appellant’s fitness to stand trial – non-publication order made concerning evidence of appellant’s medical condition

Catchwords:

CRIME — Appeals — Appeals against conviction — Unreasonable verdict — Judge alone trial — Single charge – Perverting the course of justice — Character evidence — Reasonable doubt about evidence of critical Crown witness

Catchwords:

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

Catchwords:

CRIMINAL LAW – appeal – appeal against sentence – possess child abuse material – whether sentencing judge erred in taking into account possession of images for a number of years in assessing objective seriousness – whether applicant was denied procedural fairness on issue of whether possession for a number of years increased objective seriousness – receipt of evidence regarding applicant’s medical status post-sentence

Catchwords:

CRIME – sentencing appeal – applicant convicted of sexual offences committed against child in 2007 – previously convicted and sentenced for sexual offences against children committed in 2010 – whether sentencing judge erred in failing to consider totality – no submission made to sentencing judge that totality should be considered – separate offending – no error – failure to find special circumstances – whether House v R error established – no error – leave granted but appeal dismissed

Catchwords:

CRIME – appeals – appeal against sentence – supplying or agreeing to supply methylamphetamine on an ongoing basis – whether the sentencing judge erred in the assessment of objective seriousness – whether sentencing judge failed to apply principles of parity between applicant and other related offenders – where similar offending by related offender placed on Form1 – where otherwise different offences charged between applicant and other offenders – whether sentence manifestly excessive – where applicant had strong subjective case – where comparable cases and statistics not provided to sentencing judge – appeal allowed

Catchwords:

CRIME — Appeals — Appeal against conviction —whether acquittal of co-accused was inconsistent with conviction of applicant for the same charge — whether the offence tried was the offence charged on the indictment

Catchwords:

SENTENCING — Appeal against sentence — Severity — Whether sentence manifestly excessive due to personal hardship — Whether assistance provided to police warranted reduction of sentence — Whether special circumstances to reduce non-parole period due to drug addiction

Catchwords:

BAIL – application for bail pending appeal and for pending trial in the District Court – applicant convicted of perjury and perverting the course of justice – appeal against conviction and sentence from judge-alone trial pending in Court of Criminal Appeal – necessity to demonstrate “special or exceptional circumstances” – show cause requirement applicable for charges at pending trial – special or exceptional circumstances not demonstrated – burden of showing cause not discharged – history of non-compliance with bail conditions – significant bail concerns – bail refused

Catchwords:

CRIME — sentencing — manslaughter — guilty plea — discount to be applied — whether utilitarian discount under s 25E(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) is available where offer to plead guilty to an offence made but initially refused by prosecutor — statutory construction — whether alternative less serious offence is a “different offence” to the subject of the proceedings — found — 25% discount applied under operation of s 25E(3)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW)

Catchwords:

CRIMINAL LAW – appeal – appeal against conviction – sexual intercourse without consent – whether erroneous direction of trial judge as to the legal test in s 61HA(3)(c) of the Crimes Act resulted in a miscarriage of justice – whether admission of evidence in new trial proceedings under s 306I of the Criminal Procedure Act was unfairly prejudicial – adducing of evidence excluded at pre-trial under s 130A of the Criminal Procedure Act – admissibility of evidence relating to sexual experience under s 293 of the Criminal Procedure Act – whether verdict of the jury was unreasonable

Catchwords:

CRIMINAL LAW – Offences – Sentence – Appeal – Where applicant convicted of two counts of perverting the course of justice – Where applicant submitted on sentence that the matter could appropriately be dealt with by the imposition of an Intensive Correction Order – Where the sentencing judge concluded that the objective seriousness of the offending was such that the only appropriate sentence was one of full-time custody – Whether the sentencing judge erred in failing to appropriately consider s 66(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – No error established – No further decision to be made once the sentencing judge had determined that the only appropriate sentence was one of full time custody – Leave to appeal granted – Appeal dismissed

Catchwords:

CRIME — Appeals — Appeal against conviction — Where applicant convicted of murder — Where alternative verdict of manslaughter left to jury —Circumstantial case CRIME — Appeals — Appeal against conviction — Directions to jury regarding use of evidence of lies and post offence conduct — Inference of consciousness of guilt — No miscarriage as evidence was not intractably neutral as between murder and manslaughter — No miscarriage as not seeking the direction was objectively justifiable as a rational forensic decision CRIME — Appeals — Appeal against conviction — Miscarriage of justice — Directions to jury regarding reasonable hypotheses consistent with manslaughter — No miscarriage of justice as there was no need to explain further hypotheses CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Evidence supported the view that the applicant acted with intent to inflict at least really serious injury — Verdict of guilty supported on the whole of the evidence

Catchwords:

CRIME – Appeals – Appeal against conviction –Unresponsive disclosure by witness that accused in custody – Whether refusal to discharge jury a miscarriage of justice – Requirement of material irregularity for miscarriage to arise – Significance of direction given to jury – No prejudice to applicant – No miscarriage of justice – No error in discretionary decision not to discharge jury CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Child sex offences – Whether open to jury to be satisfied beyond reasonable doubt that applicant knew complainants were not of requisite age or did not have honest and reasonable belief that they were of age – Jury entitled to reach this conclusion CRIME – Appeals – Appeal against sentence – No error in sentencing judge making adverse findings re insight and rehabilitation – Inapplicable standard non-parole period applied by sentencing judge – Error giving rise to need to re-sentence – Crown submitted that the offender be re-sentenced on a more adverse factual basis than at first instance – Knowledge of the victims’ ages – “Exceptional case” – Procedural fairness extended to both parties – No other (lesser) sentence warranted – Appeal dismissed

Catchwords:

CRIMINAL LAW – sentence appeal – manslaughter – joint criminal enterprise – victim stabbed – sentencing judge not able to find beyond reasonable doubt which co‑offender stabbed victim – sentencing judge found knife obtained by applicant used to kill victim – challenge to finding – sentencing judge had advantage of observing witnesses – challenge rejected – whether sentencing judge could have and should have found on balance of probabilities that the applicant did not stab victim – finding could have been made and would have assisted applicant – no error in not making finding – whether sentencing judge erred in finding that offence partly committed in public place – offenders chased victim through streets before victim stabbed in backyard – no error – discount for offer to plead guilty to manslaughter prior to trial – 5% discount allowed – sentencing judge erred in considering failure to plead guilty in front of jury – whether sentencing judge erred in failing to find special circumstances – discretionary judgment – no error – applicant re‑sentenced

Catchwords:

SENTENCING — Appeal against sentence — where sentencing judge accepted that Bugmy principles were enlivened on the evidence — whether judge gave proper consideration to that factor — whether childhood deprivation reduced the offender’s moral culpability

Catchwords:

CRIME – appeal – objective seriousness – whether cause of injury by applicant open on the evidence – natural justice – effect of mental condition and deprivation and environment of abuse during youth – normalisation of violence – appeal granted on so some grounds – resentencing

Catchwords:

CRIME – appeal – assistance to authorities – Ellis discount – insufficient discount applied – appeal granted – resentenced

Catchwords:

CRIME — Appeals — Appeal against conviction — Unreasonable verdict — whether failure to reach verdict on certain counts informs the reasonableness of jury’s guilty verdicts — whether evidentiary inconsistencies affected complainant’s reliability

Catchwords:

CRIMINAL LAW - procedure - application to amend indictment - re-trial - where child denied touching - addition of indecent assault count not previously charged - where application arose in response to objection to evidence - apprehended bias - whether trial Judge entered the arena - where judge hinted at “shoving” a new count on the indictment - suggestion of “incompetent bill finding” - repeated comments concerning indictment as framed - “weird” - “bizarre” - distinct roles of Prosecutor and Judge - choice of charges for the Director of Public Prosecutions - whether trial Judge “crossed the line” - relevant considerations CRIMINAL LAW - evidence - whether verdicts unreasonable or unable to be supported - independent review of evidence - advantages enjoyed by jury - acquittal entered on one count - re-trial ordered on remaining counts

Catchwords:

CRIMINAL APPEAL – pending application for bail and leave to appeal against sentence – application for orders under s 12 – attempt to challenge Extended Supervision Order – no question of principle

Catchwords:

CRIME – application for extension of time to bring appeal against conviction – offence of indecent assault under s.61L Crimes Act 1900 – claim of miscarriage of justice arising from conduct of defence counsel at trial – advice as to whether accused should give evidence at trial – accused did not give evidence – complaint concerning cross-examination of complainant – held accused made informed decision not to give evidence at trial – trial conducted in accordance with instructions of accused – miscarriage of justice not demonstrated – extension of time refused

Catchwords:

CRIME – environmental offence – Water Management Act 2000 (NSW) – appeal against sentence – whether judge adopted a two stage approach to sentencing – whether judge erred in not taking into account publication order in determining quantum of fine – whether error in assessing objective seriousness of offence – whether mistake of law and appellant company’s lack of intention to commit the offence was mitigating factor – whether genuine contrition and remorse demonstrated – whether quantum of fine was manifestly excessive

Catchwords:

CRIME – appeals – appeal against aggregate sentence as manifestly excessive – whether aggregate sentence is unreasonable and unjust – whether indicative sentences for Counts 1, 2, 3, 4, 6, 7, 9, 10 and 12 are excessive relative to the sentences indicated for Count 12 and the Sequence 1 offence – whether findings as to objective seriousness and subjective factors in mitigation resulted in an unjust sentence warranting the Court’s intervention

Catchwords:

CRIME – appeals – application for leave to appeal against conviction – whether verdicts unreasonable – principles to be applied – open to the jury to be satisfied beyond reasonable doubt CRIME – appeals – application for leave to appeal against conviction – whether verdicts inconsistent – verdicts able to be reconciled on a logical and reasonable basis – acquittals not necessarily attributable only or principally to doubt about the complainant’s credibility CRIME – statutory non-publication order on disclosure of identity of victim – s 578A Crimes Act – no appeal against convictions at trial of prescribed sexual offences

Catchwords:

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

Catchwords:

SENTENCING – Penalties – Community Service Order – Whether conviction must be recorded SENTENCING – Sentencing procedure – Correction of sentence – Whether error of law in sentence originally passed SENTENCING – Sentencing procedure – Offence by child under 16 years – Where dealt with according to law – No discretion to refrain from entering conviction as required for Community Service Order

Catchwords:

CRIMINAL LAW – Crown appeal against sentence – manifest inadequacy – where respondent pleaded guilty to sexual offences against 14 year old boy – where respondent a victim of childhood sexual abuse – where unchallenged medical evidence indicated causal link between childhood abuse and offending – where respondent sentenced without proceeding to conviction – whether unreasonable or plainly unjust for sentencing judge not to have recorded convictions – whether sentence unreasonable for not reflecting objective seriousness of offending and need for general deterrence, denunciation and recognition of harm to victim

Catchwords:

CRIMINAL LAW - sentencing - totality - accumulation and concurrence - “notional” accumulation - two drug offences - where sentencing Judge referred to notional accumulation - where sentences wholly and actually accumulated - whether structure of sentence reflected Judge’s stated intention - whether reasons adequate to explain extent of accumulation - opacity of language - error established - applicant re-sentenced

Catchwords:

CRIME — appeals — appeal against conviction — miscarriage of justice — where Crown relied on evidence of informer witness who had twice earlier been found by the Court of Criminal Appeal to be a witness who lacked credibility CRIME — appeals — appeal against conviction — unreasonable verdict — unreliable witnesses — whether on all of the evidence it was open to the jury to be satisfied of the applicant’s guilt beyond reasonable doubt

Catchwords:

CRIME – appeal against sentence – applicants pleaded guilty to one count each of aggravated break and enter dwelling and commit a serious indictable offence – whether sentencing judge made erroneous findings of fact – finding made contrary to unchallenged evidence – whether sentencing judge erred in finding that extra-curial punishment applied to self-inflicted injury – whether sentencing judge erred in finding the applicant lied to forensic psychologist – adverse inference drawn against the accused – resentence – no lesser sentence warranted in law – appeal dismissed

Catchwords:

CRIME – appeal against sentence – domestic violence offences – three victims – whether Applicant’s mental health conditions at time of offending properly taken into account on sentence – no error demonstrated – former occupation of Applicant taken into account on sentence – potential for greater degree of hardship in custody as a result of former occupation – Applicant seeks to rely upon post-sentence fresh evidence of assaults and hardship actually experienced in custody – whether fresh evidence admissible – consideration of relevant principles – miscarriage of justice not demonstrated – appeal against sentence dismissed

Catchwords:

CRIME – CROWN APPEAL – alleged errors of fact – alleged mistake as to momentary inattention – alleged error in finding accident as distinct from deliberate running of red light – moral culpability – manifest inadequacy – no error of fact disclosed – no error of conclusion – sentence within range and within judge’s discretion given subjective circumstances and otherwise good character – appeal dismissed.

Catchwords:

CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Whether open to jury to find “serious physical disability” — Whether use of more specific definition required — Quintessential jury question CRIMINAL PROCEDURE — Trial — Directions to jury — Misdirection — Whether direction necessary as to definition of “serious physical disability” — Whether miscarriage of justice established

Catchwords:

CRIME – appeal and review – further offences taken into account – offences listed on a Form 1 – procedural irregularities – Form 1 not signed by the Director of Public Prosecutions – Form 1 failed to identify which principal offence the further offences were in respect of – failure of trial judge to directly ask the offender if she wanted the further offences to be taken into account – no evidence of prejudice to offender

Catchwords:

CRIME – appeal against sentence – sentence on guilty plea – failing to report commission of child abuse offence – Form 1 offence of failing to provide a child with necessities of life – six-week old child of applicant mistreated by mother – severe brain injury resulting in permanent deficits – denial on oath of agreed facts – subsequent withdrawal of denial – whether applicant traversed plea – reduced utilitarian discount – discount for assistance – adequacy of reasons

Catchwords:

CRIME – Appeals – Appeal against sentence – Recklessly inflict grievous bodily harm in company – Affray – Where sentencing judge did not consider applicant’s deprived background to have materially contributed to his offending due to his prior good character – Whether the sentencing judge erred in her consideration of applicant’s moral culpability – Application of Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Catchwords:

CRIME — appeals — appeal against sentence — application for leave to appeal — manifest excess — applicant with significant intellectual disability — principles in Bugmy v The Queen enlivened — sentence not outside the range of sentences reasonably available — leave to appeal granted — appeal dismissed CRIME — sexual offences — sexual assault

Catchwords:

CRIME – appeals – appeal against sentence – aggregate sentence - extension of time in which to appeal – robbery in company – whether sentence manifestly excessive – parity – lessor role – record – Form 1 offence – extension of time granted – appeal granted – appeal allowed – resentenced

Catchwords:

CRIME – federal offences – dishonesty offences – where accused charged with two counts of dishonestly representing to a public official that he did not control certain companies – where particulars of the charges included that the accused made false representations during a compulsory examination about his involvement with the companies – Criminal Code (Cth), s 135.1(7) STATUTORY INTERPRETATION – principle of legality – criminal proceedings – application of accusatorial principle and companion rule to answers compelled under taxation legislation – where accused compulsorily examined under s 264 of the Income Tax Assessment Act 1936 (Cth) 12 years prior to the laying of charges – whether dissemination and use of transcript of examination by investigative and prosecuting authorities lawful pre- and post-charge CONSTITUTIONAL LAW – Commonwealth Constitution – general principles – whether fair trial values constitutionally entrenched – whether accusatorial principle and companion rule constitutionally entrenched so as to invalidate any legislative provision said to be in breach of the principle or the rule

Catchwords:

CRIME – applicant convicted of conspiracy to rob – indictment confined conspiracy to rob a person in a particular street in particular suburb – Crown conducted its case on that basis – unreasonable verdict – sufficiency of evidence to demonstrate object of conspiracy was to rob someone in that street – sufficient of evidence to demonstrate that applicant was a participant in conspiracy – whether miscarriage of justice arising from trial judge’s direction in response to jury question about proposed location of robbery – held – verdict unreasonable because of strength of evidence said to demonstrate object of conspiracy was to rob a person in particular street – other grounds rejected – acquittal entered.

Catchwords:

CRIME – Sentence appeal – assessment of respective roles of co-offender – parity – no justifiable sense of grievance – appeal dismissed

Catchwords:

CRIMINAL LAW – appeal against sentence – applicants pleaded guilty to manufacturing large commercial quantity of prohibited drug – whether error in finding applicants to be “principals” – whether error in determining discount for guilty pleas – significance of lengthy sentencing proceedings on contested issues of fact, resolved adversely to applicants – whether error in failing to find special circumstances – whether sentence manifestly excessive – all grounds save last dismissed – appeal allowed and applicants resentenced

Catchwords:

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

Catchwords:

BAIL – application for bail pending appeal – attempt to re-open court’s dismissal of application – no question of principle

Catchwords:

CRIMINAL LAW – appeal – Crown appeal against sentence – where count carrying a maximum sentence of life imprisonment placed on a Form 1 contrary to s 33(4)(b) of the Crimes (Sentencing Procedure) Act 1999 – where sentencing proceedings miscarried – where offender to be re-sentenced – whether offender should be re-sentenced in this Court or remitted to the District Court

Catchwords:

CRIME – Sentence appeal – Crown appeal – manifest inadequacy – error in classification of objective seriousness – aggravated break and enter – no error in particular circumstances of offence and offender, particularly non-exculpatory provocation – appeal dismissed.

Catchwords:

CRIME – Appeal against sentence – Misapplication of principle – De Simoni – No error – appeal dismissed.

Catchwords:

PRACTICE AND PROCEDURE – suppression orders – application made to District Court in respect of publication of report of proceedings in ongoing Supreme Court proceedings – Supreme Court had previously declined same application – adjournment of appeal and interim suppression order sought - refused

Catchwords:

CRIME – bail – application for variation – bail varied

Catchwords:

CRIMINAL LAW – appeal against sentence – aggregate sentence – whether manifestly excessive – drug manufacturing and supply offences – apex of organisation - objective gravity of offending – sentences imposed are within the available range – leave to appeal granted – appeal dismissed

Catchwords:

APPEAL – applicant convicted of offences in 2007 – received unconditional pardon in 2011 – applied to quash his convictions under s 84 of Crimes (Appeal and Review) Act 2001- whether application under s 84 can only be made if convictions subject to inquiry under Division 4 of Part 7 – Held – no jurisdiction to determine application.

Catchwords:

CRIME — appeals — appeal against sentence — application for leave to appeal — misapplication of principle — whether sentencing judge erred by holding that intensive correction order was too lenient when considering sentencing options — whether sentencing judge erred by holding that no punishment in addition to supervision could reasonably be imposed by way of conditions under intensive correction order in circumstances where supervision would be suspended by Community Corrections — manifest excess — where patent error not identifiable but error nevertheless inferred from all the circumstances — re-sentence — special circumstances on the basis of youth, previous good character, language difficulties and lack of family support CRIME — violent offences — detain for advantage — circumstances of aggravation

Catchwords:

CRIME – appeal and review – appeal against sentence – failure to consider properly offender’s youth and prior good behaviour – offender 18 years of age at the time of offending – whether immaturity affected conduct CRIME – appeal and review – procedural fairness – failure to fix period of recognizance when sentencing – offender to be present and sentenced in open court – element of sentence contained only in orders as entered on court record CRIME – appeal and review – procedural fairness – offender’s evidence consistent with defence – evidence elicited by prosecutor – offender given choice to change plea or change evidence on oath – withdrawn evidence treated as affecting credit CRIME – federal offences – drug importation offence – defence available if drugs not to be sold – evidence of predominant personal use – no evidence of intention to profit financially – factor in mitigation SENTENCING – mitigating factors – youth of offender – effects of immaturity – addiction to drug – substance abuse disorder – whether offender had control of drug use – drug use commenced at younger age

Catchwords:

CRIME — Appeals — Appeal against conviction — leave to appeal granted — sexual intercourse without consent in circumstances where the victim had overdosed and was trying to get to hospital — whether Crown closing gave rise to a miscarriage of justice — consideration of principles governing the constraints on the Crown in closing — effect of Crown closing was that the applicant’s version was objectively improbable — defence closing sufficiently dealt with the Crown’s reliance on “perceived social mores and morals” — reference to the applicant being Mongolian was relevant to explain his limited English and ability to engage in meaningful discussion — applicant’s age relevant to the objective probability of consent — lack of “sexual appetite” relevant to objective probability of victim initiating physical conduct — Crown closing was not inappropriate — verdict was not unreasonable — complaint evidence, observations of professionals and CCTV footage assisted the Crown case on consent — open to the jury to consider that the objective probabilities favoured the Crown case and the applicant could not have believed that the victim was consenting — appeal dismissed

Catchwords:

CRIMINAL PROCEDURE – suppression and non-publication orders – order made to protect integrity of completed trials in Supreme Court – further trial listed in District Court in two months – refusal to extend order – likelihood of extensive publicity if order lifted – likely prejudice to accused in subsequent trial – weighing principle of open justice and ensuring fairness in forthcoming trial

Catchwords:

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

Catchwords:

CRIMINAL LAW – sentence – error regarding totality conceded – missed reference to 5 month period sentenced in interstate custody – re-sentence – recalcitrant domestic violence offender – retribution, deterrence and protection of society – no lesser sentence warranted

Catchwords:

SENTENCE APPEAL – aggregate sentence – numerous offences of intimidation and violence – finding of special circumstances but not given effect to – error – scope of re-exercise of sentencing discretion – whether confined to adjusting non-parole period or complete re-exercise required – Crown did not consent to confining appeal to adjusting non-parole period – sentencing discretion re-exercised

Catchwords:

CRIMINAL LAW – appeal – appeal against conviction – sexual intercourse without consent – whether cross-examination of accused asserting he tailored his evidence lacked factual foundation – whether accused deprived of chance of acquittal that was fairly open – whether good character direction deficient – Rule 4.15 – miscarriage of justice – leave granted

Catchwords:

SENTENCING – indecent assaults committed on young male employees over a 30-year period – five victims – aggregate sentence – erroneous reference to standard non-parole period – error established – no lesser sentence warranted in law

Catchwords:

CRIME — appeal against sentence — knowingly take part in supply of commercial quantity of methylamphetamine — possess unauthorised firearm — whether error in determining objective seriousness of applicant’s role — manifest excess — parity — where applicant showed limited remorse — where guilty plea entered at late stage —poor prospects of rehabilitation — no error found — appeal dismissed

Catchwords:

CRIME — appeal against sentence — supply prohibited drug — failure to comply with reporting obligations — question of whether sentencing judge failed to consider mental conditions of applicant — where limited evidence of any mental disorders — question of manifest excess — where applicant in breach of intensive corrections orders and community corrections order at the time of offending — significant criminal history — limited remorse — medium risk of reoffending — poor prospects of rehabilitation — limited utility in comparing other sentences imposed for similar offences — appeal dismissed

Catchwords:

CRIME – Appeals – Appeal against sentence –whether sentencing judge erred in assessment of objective seriousness – whether sentencing judge gave “undue and overwhelming” weight to general deterrence – leave to appeal granted – appeal dismissed

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – Offences – Prosecution under s 32 Work Health and Safety Act 2011 (NSW) of an engineer following a roof collapse – Consideration of the elements of an offence under s 32 - Causation

Catchwords:

CRIME – appeal against sentence – whether manifestly inadequate – pharmacist – no consent – age differential – objective gravity – otherwise good character – residual discretion – appeal dismissed

Catchwords:

CRIME – appeals – appeal against conviction – applicant found guilty of four counts of aggravated indecent assault of a person under 16 – whether trial miscarried as a consequence of trial judge’s failure to direct the jury in relation to lies – where lies relied on as affecting applicant’s credibility only - no miscarriage of justice occasioned by trial judge’s not giving an Edwards direction – character evidence – evidence only that applicant had no convictions - where trial judge did not give to jury the second part of usual character direction – no miscarriage of justice – failure to direct jury as to applicant’s right to silence – where in applicant’s ERISP applicant answered questions until specific allegations made by complainant were put to him – where applicant lost real possibility of an acquittal fairly open to him

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:

CRIME – bail – appeal bail – Court of Criminal Appeal – jurisdiction – “pending” proceeding – “substantive proceeding” pending – application for extension of time to file notice seeking leave to appeal against sentence – no substantive proceeding until extension granted – no jurisdiction to grant bail CRIME – bail – appeal bail – leave to appeal against sentence – extension of time required – proposed appeal not before court – whether extension should be granted – whether grounds reasonably arguable CRIME – bail – appeal bail – leave to appeal against sentence – “special or exceptional circumstances” – ground must be stronger than merely arguable – ground must support release before likely date of determination of proposed appeal

Catchwords:

CRIMINAL PROCEDURE – Trial – Directions to jury – Misdirection – Whether effect of directions was to suggest the jury had to determine an intermediate fact – Whether jury diverted from a proper application of the onus and standard of proof – Whether directions as a whole had such an effect – Whether miscarriage of justice established

Catchwords:

PROSECUTION – duplicity – whether summons bad for duplicity – multiple acts of water pollution – defendant charged compendiously with single offence of water pollution – exception to rule against duplicity – whether single criminal enterprise – multiple acts of water pollution involve single compendious instance of offending – guilty plea to single offence – application to withdraw guilty plea – question of duplicity decided before application to withdraw guilty plea – error in doing so

Catchwords:

CRIMINAL LAW – appeal against sentence – aggravated dangerous driving occasioning death – whether sentence manifestly excessive – applicable principles – necessity of inferring error of principle – use of sentencing statistics – need to adjust applicant’s sentence following trial to compare with sentences following guilty plea – limitations of comparable cases – appeal dismissed

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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