Recent decisions for Court of Criminal Appeal, Criminal

Catchwords:

SENTENCING — appeal against sentence — sentence manifestly excessive — where the sentencing judge’s factual or other findings were unchallenged — index offence of wounding with intent to cause grievous bodily harm — tension between reduced moral culpability and the need for community protection — applicant’s moral culpability found to be reduced on Bugmy, De La Rosa, and Henry principles — sentence imposed was unreasonable and plainly unjust in all the circumstances of this case — appeal allowed — resentence

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict – aggravated break and enter and commit serious indictable offence of intimidation – circumstantial Crown case – where CCTV footage depicted applicant drinking from Toohey’s New beer can and discarding that beer can on the grass verge outside the home – where applicant’s partial DNA profile recovered from mouthpiece of the beer can – whether reasonable alternative hypothesis for the presence of applicant’s DNA on mouthpiece of beer can – whether it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt

Catchwords:

CRIME — Appeals — Appeal against sentence — legal principles with respect to miscarriage and receipt of additional evidence — error asserted because of failure of sentencing judge to consider facts not in evidence — Farrugia v The King handed down by High Court before determination — ground of appeal is whether sentencing exercise caused vitiating procedural irregularity — not necessary to characterise as House v The King error — further evidence should be admitted where doing so would avoid practical injustice — admission of further evidence exceptional — key factors include whether compelling explanation given for evidence not being adduced at sentence, and whether evidence could realistically have affected reasoning of sentencing judge to sentence imposed in a not insignificant way — evidence cannot be admitted if it relates to events that occurred purely subsequent to sentencing — sentencing appeal under ss 5(1)(c) and 6(3) of Criminal Appeal Act does not fit neatly into pre-existing categories of appeal CRIME — Appeals — Appeal against sentence —admission of further evidence — evidence related to applicant’s experience of child sexual abuse — provided compelling reason for not disclosing abuse during sentencing proceedings — potential for long delays and piecemeal disclosure in relation to child sexual abuse well-recognised — evidence had potential significance to sentencing — vitiating procedural irregularity established CRIME — Appeals — Appeal against sentence — Re-sentence — further evidence somewhat reduced applicant’s moral culpability for some offences and established some prospects of rehabilitation — protection of community remained of particular importance

Catchwords:

CRIME – Appeals – appeal against sentence – where applicant injected infant daughter with insulin, causing life-threatening hypoglycaemia – whether diagnosis of Factitious Disorder imposed on another bore upon objective seriousness – whether certain post-offence conduct capable of being taken into account in aggravating objective seriousness – whether sentencing judge failed to determine extent to which applicant’s moral culpability was reduced by factors demonstrated by evidence, compared to that which would otherwise substantially correspond with the offending – where sentencing judge considered moral culpability by reference to three other cases which were not relevant – on resentence additional evidence regarding hardship in custody taken into account – sentence reduced

Catchwords:

CRIME — appeals — appeal against sentence — where applicant pleaded guilty to relevant charges on first day of pre-recorded evidence hearing — whether applicable discount on sentence under s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW) is 5% or 10% STATUTORY INTERPRETATION — legislative purpose — whether ‘first day of the trial’ in child sexual offence proceedings means the first day of the pre-recorded evidence hearing or the day listed for the empanelment of the jury

Catchwords:

CRIME — Appeals — Interlocutory appeal — Where primary judge refused to order a separate trial — Whether primary judge failed to address the Middis principles or give adequate reasons for refusal — no error established

Catchwords:

CRIME — appeals — appeal against sentence — parity principle — parity between sentences of applicant and co-offender — where applicant and co-offenders pleaded guilty and sentenced on basis of participation in joint criminal enterprise — where Form 1 matter taken into account on sentence of co-offender — significant differences in subjective cases — whether justifiable sense of grievance

Catchwords:

CRIMINAL PROCEDURE – Subpoenas – Where prosecuting authority disclosed materials in accordance with obligations – Where applicant obtained leave to issue a subpoena for related materials – Whether a “legitimate forensic purpose” existed for material sought – Whether there was a connection between material sought and applicant’s case at trial

Catchwords:

COURTS AND JUDGES – apprehended bias – conduct of Judge part heard in criminal proceedings – prosecutions in name of NSW Director of Public Prosecutions – Judge made submission to Committee of Legislative Council of NSW Parliament critical of NSW Director of Public Prosecutions – Judge participated in ex parte communications with lawyers acting for accused persons in other proceedings brought in name of NSW Director of Public Prosecutions in which Judge was reserved on imposing sentence – some communications related to submission made by Judge concerning Director of Public Prosecutions – some communications not disclosed until delivery of judgment on applications for disqualification – concessions of error concerning aspects of Judge’s decision not to disqualify herself – whether reasonable apprehension of bias from Judge’s submission or making of communications or non-disclosure of communications – test for apprehended bias established

Catchwords:

APPEALS — From jury verdict — jury misconduct — application to discharge jury — juror undertook internet research — juror found to have informed other members of jury about research — whether jury irregularities gave rise to a miscarriage of justice — whether decision by trial judge not to discharge the jury gave rise to a miscarriage of justice APPEALS — From jury verdict — jury misconduct — application to discharge jury — juror made allegation of incentives offered to provide a not guilty verdict — whether jury irregularities gave rise to a miscarriage of justice — whether decision by trial judge not to discharge the jury gave rise to a miscarriage of justice CRIMINAL PROCEDURE — Trial — jury — investigation by sheriff — where jurors interviewed by sheriff’s officer — where jurors given criminal caution at commencement of interviews — miscarriage of justice

Catchwords:

EVIDENCE — standard of proof — criminal cases — exercise of discretion to exclude admissions under s 90 of the Evidence Act 1995 (NSW) — whether it would be unfair to use evidence of an admission — correctness standard applies EVIDENCE — admissions — criminal proceedings — whether to exclude pretext call under s 137 of the Evidence Act 1995 (NSW) EVIDENCE — admissions — criminal proceedings — whether to exclude pretext call under s 90 of the Evidence Act 1995 (NSW) APPEALS — from jury verdict — misdirection or nondirection regarding pretext call CRIME — appeals — appeal against conviction — unreasonable verdict — whether jury verdict of guilty on two charges of sexual intercourse without consent was unreasonable

Catchwords:

CRIME — appeals — appeal against conviction — miscarriage of justice — whether interventions by trial judge were excessive — whether by reason of judicial interventions the applicant was denied a fair trial — number of problematic interventions — not productive of unfairness rising to the level of miscarriage CRIME — appeals — appeal against conviction — unreasonable verdict — whether complainant evidence established beyond reasonable doubt acts alleged to constitute offences — whether reasonable possibility of truthfulness of applicant’s account had been excluded — verdict not unreasonable

Catchwords:

CRIME — appeals — appeal against conviction — multiple offences of possession of drugs and firearms at unoccupied house — unreasonable verdicts — inconsistent verdicts — circumstantial case — where Crown case contended applicant part of a joint criminal enterprise — where possession an essential element of each offence of which the applicant was convicted — whether inference of guilt the only available inference having regard to the whole of the evidence

Catchwords:

CRIME — appeal against conviction — offence of supplying a commercial quantity of a prohibited drug — trial judge’s directions as to deemed supply and possession — whether trial judge was required to direct as to the availability of the Carey defence — where applicant’s case at trial was that he did not know drugs were in his “missus’ bag” and did not possess them — where Carey defence applies to an accused in possession of drugs but who intends to return them to owner — where trial judge gave a Liberato direction — where no direction sought by trial counsel — no miscarriage of justice established

Catchwords:

CRIMINAL APPEAL – sentencing – aggravating circumstances – forgery – 33 counts involving single act – where sentencing Judge accepted prosecution’s submission that offence comprised a series of criminal acts – s 21A(2)(m) – conceded error – resentencing – whether sentence of imprisonment only appropriate sentence – unusual circumstances including completion of community service and partial service of intensive correction order – community correction order imposed

Catchwords:

APPEALS – criminal appeals – Crown appeal – from pre-trial rulings excluding evidence pursuant to Evidence Act 1995 (NSW), s 137 – whether applicable standard of review is as set out in House v The King or the so-called “correctness standard” – where relevant authority is not settled – applicable standard of appellate review neither necessary nor appropriate to decide in the circumstances CRIME – appeals – interlocutory appeal – by Crown against ruling on evidence – pursuant to Criminal Appeal Act 1912 (NSW), s 5F(3A) – whether pre-trial rulings “eliminate or substantially weaken the prosecution’s case” – where the impugned evidence is of considerable probative value CRIME – appeals – interlocutory appeal – by Crown against ruling on evidence pursuant to Criminal Appeal Act 1912 (NSW), s 5F(3A) – where trial judge excluded evidence under Evidence Act 1995 (NSW), s 137 – whether probative value of evidence is outweighed by the danger of unfair prejudice to the accused – where evidence assumed to be accepted by jury and taken at its highest – where probative value assessed in context of other evidence to be admitted – where probative value not to be assessed by consideration of reliability of evidence and/or credibility of witness – where simple fact that witness cannot be cross-examined is not decisive of unfair prejudice – where forensic necessity that accused may have to give evidence does not of itself involve unfair prejudice – significance of a direction or warning to jury regarding use of evidence to ameliorate potential unfair prejudice CRIME – federal offences – complicity – conspiracy – oral and documentary evidence as to existence, nature and scope of alleged conspiracy – oral and documentary evidence of acts and communications in furtherance of alleged conspiracy – probative value – where probative value assessed in context of other evidence to be admitted – where evidence pre-dating accused’s participation in conspiracy still relevant to existence, nature and scope of conspiracy EVIDENCE – application to exclude evidence pursuant to Evidence Act 1995 (NSW), s 137 – trial judge excluded evidence on basis that probative value outweighed by risk of unfair prejudice to accused – whether trial judge erred in that assessment – where evidence assumed to be accepted by jury and taken at its highest – where probative value assessed in context of other evidence to be admitted – where probative value not to be assessed by consideration of reliability of evidence and/or credibility of witness –where simple fact that witness cannot be cross-examined is not decisive of unfair prejudice – where forensic necessity that accused may have to give evidence does not of itself involve unfair prejudice – significance of a direction or warning to jury regarding use of evidence to ameliorate potential unfair prejudice

Catchwords:

CRIMINAL APPEALS – sentence appeal – miscarriage of justice – asserted conflict of interest in counsel acting at first instance – no evidence to establish conflict – no rule that the same advocate cannot appear for two offenders in sentencing proceedings – fact that a different submission conjured by appellate counsel “could” have been made establishes little or nothing – invariably the case – no waiver of privilege – reliance on record of court below – no evidence tendered on appeal – no merit in ground – no evidence of practical injustice – appeal dismissed

Catchwords:

CRIME — Appeals — Appeal against sentence — Reduction of moral culpability by reason of youth and background — Impact on purposes of sentencing

Catchwords:

CRIME — appeals — appeal against conviction and sentence — offences taken into account on a schedule pursuant to s 16BA Crimes Act 1914 (Cth) — whether sentencing judge erred in the treatment of the schedule offences — where s 16BA schedule not signed by a delegate of the Director of Public Prosecutions — where applicant arraigned and convicted of the schedule offences — where separate punishment imposed for the schedule offences — appeal allowed and proceedings remitted

Catchwords:

CRIME — Appeals — Appeal against sentence — Application of De Simoni and Josefski principles — Where the sentencing judge took into account co-offender’s possession and use of a firearm in sentencing Mr Zahab. CRIME — Appeals — Appeal against sentence —Where the offender’s liability and culpability for the offence by reason of his conduct and role were not distinguished. CRIME — Appeals — Appeal against sentence — Reduced moral culpability — Impact on purposes of sentencing. CRIME — Appeals — Appeal against sentence — Where the sentencing judge took into account prior convictions that did not appear in the offender’s criminal history.

Catchwords:

CRIME – Appeals – appeal against sentence imposed by Drug Court – appeal as of right pursuant to s 5AF(1) of the Criminal Appeal Act 1912 (NSW) – whether error in final sentencing judge commencing sentence on date different to that nominated by initial sentencing judge – all periods of time since arrest accounted for as required by Drug Court Act 1998 (NSW) and the Crimes (Sentencing Procedure) Act 1999 (NSW) – no requisite error of law or wrong principle – whether sentencing judges did not take account of s 58 of the Crimes (Sentencing Procedure) Act – s 58, if it applied to Drug Court judge exercising Local Court jurisdiction with respect to certain offences, did not constrain sentencing exercise as appellant not serving existing sentence of imprisonment

Catchwords:

SENTENCING — Appeal against sentence — Severity — Sentence manifestly excessive — Domestic violence offences with no physical violence — Principles of totality — Reduction for reduced moral culpability on Bugmy and De La Rosa factors — Appeal upheld SENTENCING — Appeal against sentence — Fresh or new evidence — Whether failure to provide a report to sentencing judge constitutes a miscarriage of justice — Where the report gave a “more detailed and more graphic account” of sexual abuse suffered by the applicant already in material before the sentencing judge — Where the sentencing judge had accepted the sexual abuse occurred — No miscarriage of justice

Catchwords:

CRIME – appeals – appeal against sentence – appropriate test to be applied to challenges to factual findings in criminal sentence appeals – test from R v O’Donoghue inconsistent with House v The King test and should no longer be followed CRIME – appeals – appeal against sentence – meaning of “mistake of fact” within meaning of House v The King – whether finding of sentencing judge “reasonably open” CRIME – appeals – appeal against sentence – whether sentencing judge erred in finding that the offences took place against a background of similar offending – no “mistake of fact” within House v The King test – no error established CRIME – appeals – appeal against sentence – whether sentence manifestly excessive – no misapplication of principle by sentencing judge – no error established

Catchwords:

APPEALS — Nature of appeal — necessity to show error for both appeals stricto sensu and by way of rehearing — correctness and House v The King standards of review — need to identify error does not determine standard of review — whether House v The King standard can apply differentially in different contexts CRIME — Appeals — Appeal against sentence —standard of review for findings of fact in sentence appeals — discretionary judgments involved in fact-finding during sentencing — distinctive aspects of fact finding in sentencing — House v The King requires asking whether a finding of fact reasonably open in sentencing appeals under ss 5 and 6 of the Criminal Appeal Act 1912 (NSW) — variable significance of “reasonably open” test based on evaluative character of finding and advantages held by trial judge CRIME — Appeals — Appeal against sentence — whether finding that applicant intended to kill deceased reasonably open — whether sentencing judge gave adequate reasons for finding — resentence of applicant SENTENCING — Relevant factors on sentence — objective seriousness — excessive self-defence — whether anterior conduct relevant to objective seriousness

Catchwords:

CRIME — Appeals — Interlocutory appeal — By accused against interlocutory judgment or order — where business-owner applicants charged with manslaughter by criminal negligence — where load being transported by truck alleged to have been inadequately restrained leading to a death on the road — where Crown case asserted duty of care owed by the applicants in their capacity as managers of business transporting the load — alleged negligence by omission or failure to implement safety procedures — whether primary judge erred in ruling that Crown case could proceed against the applicants on the basis of a duty of care in connection with applicants’ involvement in management of their business — whether facts alleged by Crown capable of establishing a duty of care that might form the basis of conviction for manslaughter by criminal negligence — principles for establishing duty of care in such circumstances considered CRIME — Appeals — Interlocutory appeal — By accused against interlocutory judgment or order — leave to appeal — where Crown concession in oral submissions meant no dispute between parties about principal legal question raised by second ground of appeal — whether utility in granting leave to appeal in respect of second ground

Catchwords:

CRIME – appeals – appeal against conviction – whether jury’s verdict unreasonable – applicant convicted of one count of maintaining unlawful sexual relationship with child under the age of 16 contrary to Crimes Act 1900 (NSW), s 66EA(1) – applicant some 12 years older than complainant – applicant long-time friend of family – applicant assumed a paternal role in complainant’s family – applicant and complainant regularly shared a bed – evidence of complaint many years after the event – no other direct evidence of offending – whether complainant’s lies made verdict unreasonable – whether uncorroborated evidence, lacking detail and years after the event made verdict unreasonable – whether unlikelihood of alleged conduct being undetected made verdict unreasonable – appeal dismissed

Catchwords:

CRIME – Appeals – appeal against conviction – unreasonable verdict – judge alone trial – dishonestly cause financial disadvantage by deception – proper characterisation of joint criminal enterprise alleged at trial – whether global joint criminal enterprise or multiple individual joint criminal enterprises – whether evidence capable of establishing the applicant’s participation in the joint criminal enterprise alleged – whether open to trial judge to reject the applicant’s evidence – where advantages of the trial judge were significant CRIME – Appeals – appeal against conviction – judge alone trial – whether insufficient reasons for verdict – whether trial judge failed to deal with the case put by the Crown at trial – where Crown case at trial was circumstantial CRIME – Appeals – appeal against conviction – unreasonable verdict – dishonestly cause financial disadvantage by deception – where indictment particularised Westpac Bank as the loss-bearing entity – where fraudulent loan applications submitted to St George Bank – whether separate legal entities – whether evidence capable of establishing interconnectedness between St George Bank and Westpac Bank – whether evidence capable of establishing the particularised financial disadvantages were occasioned CRIME – Appeals – appeal against conviction – unreasonable verdict – knowingly deal with the proceeds of crime – meaning of “deals with” in s 193A of the Crimes Act 1900 (NSW) – whether “deals with” includes an attempt to transfer funds and/or possession or receipt of funds – whether evidence excluded reasonable possibility that the funds were received by accident CRIME – Appeals – appeal against conviction – unreasonable verdict – deal with identification information with intent to commit indictable offence – where trial judge found offence proven on basis of possession only – error conceded – appeal allowed and conviction quashed CRIME – Appeals – appeal against sentence – where challenge to factual finding of sentencing judge – finding that applicant committed offences whilst on bail – where finding relied upon as an aggravating factor – no material error established CRIME – Appeals – appeal against sentence – whether sentencing judge erred in assessment of moral culpability CRIME – Appeals – appeal against sentence – whether sentencing judge erred in assessment of objective seriousness – finding that some of the funds used to repay loan application were derived from proceeds of crime – whether finding reasonably open to sentencing judge CRIME – Appeals – appeal against sentence – extra-curial punishment – where challenges to findings made by sentencing judge – finding that adverse publicity did not involve misogyny or racial vilification – finding that there was no evidence in mitigation that public denigration affected the applicant’s mental health – whether findings reasonably open to sentencing judge – no material error established CRIME – Appeals – appeal against sentence – whether sentencing judge erred in assessment of delay – no error established

Catchwords:

SENTENCE – totality – where sentence accumulated on an existing sentence – where result of accumulation was to impose a non-parole period of 80.2% of total sentence – whether result of accumulation inadvertent – youth not only relevant to objective seriousness of offending – youth and immaturity requires pervasive, specific and thorough consideration in relation to moral culpability and the potential for it to modify specific deterrence, general deterrence and denunciation

Catchwords:

CRIME – appeals – appeal against sentence – sexual offences – where applicant had a background of extreme disadvantage and deprivation – no requirement for causal link between background of disadvantage and subject offending – moral culpability – resentence

Catchwords:

CRIME – appeals – appeal against sentence – sexual intercourse without consent – where the applicant accepted that the complainant was asleep during commencement of the sexual intercourse in the agreed facts – whether reasonably open to sentencing judge to find beyond reasonable doubt that the applicant had actual knowledge the victim was asleep at the commencement of the sexual intercourse – where sentencing judge rejected applicant’s out of court statements – whether sentence manifestly excessive

Catchwords:

CRIME — Appeals — Appeal against conviction — Incompetence of counsel — whether reasonable explanation for conduct at trial — whether miscarriage of justice occurred — no miscarriage of justice demonstrated — leave to appeal granted — appeal dismissed

Catchwords:

JUDGMENTS AND ORDERS – Appeal raising issue materially indistinguishable from co-accused’s earlier appeal – Principles as to whether to depart from previous decision of this Court – Whether established “plainly wrong” threshold applies – Principle of equality before the law requires that differently constituted bench of the same court should follow the earlier decision unless compelling reason to depart APPEALS – Procedure – Time limits – Significant delay – Extension of time granted given reasonable explanations and merit in appeal

Catchwords:

CRIME – armed robbery – take and drive conveyance - successful appeal of co-offenders. EVIDENCE – tendency evidence – whether trial judge erred in admitting tendency evidence. CRIME – Appeals – Appeal against conviction - Extension of time in which to appeal.

Catchwords:

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

Catchwords:

CRIME — Appeals — Appeal against sentence — Application of Bugmy principles — Age when disadvantage occurs — Environment where disadvantage occurs — Appeal dismissed — No new issue of principle

Catchwords:

CRIME – appeal against sentence – guilty pleas to two counts of armed robbery – applicant aged 18 years at the time of the offending – whether there was error in failing to consider principles applicable to sentencing young offenders – where limited submissions advanced before sentencing judge on the principles – whether general and specific deterrence should be moderated by reason of reduced moral culpability due to youth, immaturity and other features of the applicant’s background – significance of rehabilitation due to youth – applicant resentenced – aggregate term of imprisonment of 4 years imposed

Catchwords:

CRIME — appeals — appeal against sentence — whether sentencing judge made a De Simoni error taking into account a circumstance of aggravation such that the applicant was sentenced on basis of a more severe offence — whether sentencing judge mistook facts — whether sentencing judge erred in failing to bring into effect his Honour’s finding concerning backdating the term of imprisonment to a specific period into a revoked period of parole where no De Simoni error — where sentencing judge’s factual error in remarks on sentence did not have capacity to influence sentence — where sentencing judge was not indicating precise period of backdating — where sentencing judge made an arithmetical error in commencement date — where arithmetical error went to mechanics of implementing discretionary judgment — where Court not required to re-exercise sentencing discretion

Catchwords:

CRIME — appeals — appeal against sentence — manifest excess — where applicant challenged aggregate sentence by reference to individual indicative sentences — aggregate sentence not manifestly excessive

Catchwords:

CRIME — appeals — appeal against sentence — denial of procedural fairness — expert opinion of causal link between mental health disorders and offending — where evidence admitted without objection — where expert not cross-examined — whether Crown implicitly accepted that there should be a reduction of the applicant’s moral culpability — no breach of procedural fairness CRIME — appeals — appeal against sentence — failure to take into account a relevant consideration — whether sentencing judge failed to take into account offender’s disadvantaged background — moral culpability — discussion of process to be undertaken when applying principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 CRIME — appeals — appeal against sentence —ground of appeal based upon Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75 — whether sentencing judge wrongly considered that family hardship needed to be “exceptional” before it could be taken into account — no error occasioned SENTENCING — appeal against sentence — mere arithmetical error — where sentencing judge erred in fixing the commencement date of the non-parole period — where error corrected without a need for the Court to engage in a re-sentencing exercise

Catchwords:

CRIME — appeals — appeal against conviction —unreasonable verdict — offences under s 61M(2) of the Crimes Act 1900 (NSW) — element of offence that complainant be under the age of 16 years — whether evidence on count 2 established beyond reasonable doubt that complainant was under the age of 16 years at the time of the offence — whether complainant’s evidence on count 3 established beyond reasonable doubt acts alleged to constitute offence — verdicts on counts 2 and 3 unreasonable — verdicts quashed — resentence on remaining counts CRIME — appeals — appeal against conviction — miscarriage of justice — directions to jury — tendency evidence — whether tendency directions considered as part of the summing up as a whole deflected the jury from its ultimate task — directions sufficient CRIME — appeals — appeal against sentence — unnecessary to determine given resentence

Catchwords:

CRIME — appeals — severity appeal — whether sentence imposed was manifestly excessive — applicant sentenced for wounding with intent to murder her child — where it was accepted that applicant experienced acute psychosis at time of offending — appeal allowed

Catchwords:

CRIME — Appeals — Appeal against conviction — whether tendency notice properly formulated — whether tendency evidence of ‘significant probative value’ by reference to any of the facts making up the elements of the offence — whether probative value outweighed the danger of unfair prejudice — whether appropriate directions were given to the jury regarding the use of tendency evidence — appeal dismissed CRIME — Appeals — Appeals against sentence — whether sentencing judge relied on findings of fact proved beyond reasonable doubt — whether findings were consistent with the jury verdict — appeal dismissed

Catchwords:

CRIME — Appeals — Appeal against conviction — Extension of time in which to appeal — application brought over 18 months after conviction — where no satisfactory explanation for delay advanced — public interest in adhering to time limit on appeals or applications for leave — whether extension of time should be refused CRIME — Appeals — Appeal against conviction — Unreasonable verdict — where applicant charged on three different counts — where jury returned verdicts of guilty in relation to counts 1 and 3 and verdict of not guilty in relation to count 2 — whether acquittal in respect of count 2 necessarily involved a reasonable doubt as to the credibility of a witness — whether reasonable doubt as to that witness’ credibility required a conclusion that there was reasonable doubt in respect of counts 1 and 3 — whether jury, acting rationally and in accordance with directions, had a proper basis for finding counts 1 and 3 proven beyond reasonable doubt while acquitting the applicant in respect of count 2

Catchwords:

CRIME — Appeal against conviction — child sex offences — inconsistent verdicts — applicant charged with 11 sexual offences and one offence occasioning actual bodily harm against his younger sister over three years — convicted of four counts, acquitted of remaining eight counts — unreasonable verdict appeal

Catchwords:

CIVIL PROCEDRE — Subpoena — objection to the refinement of a subpoena by the primary judge — power of the Court to reformulate the terms of a subpoena — legitimate forensic purpose — whether there is a reasonable basis beyond speculation that the requested documentation will shed light on the key issue for the applicant’s stay application CIVIL PROCEDURE — Subpoena — objection to the scope of production of material — public interest immunity claim — client legal privilege — whether there is an onus on a party claiming PII to negative the use of less restrictive measures — inspection by the Court of documents

Catchwords:

CRIME – Appeals – appeal against sentence – drug supply and proceeds of crime offences contravening Drug Misuse and Trafficking Act, s 25(1) and Crimes Act, s 193BA(a) – Form 1 offence – aggregate sentence of 2 years 3 months with non-parole period of 18 months – sentencing principles – Bugmy principles – De La Rosa principles – mental illness (PTSD and ADHD) – causal connection between mental health and offending – reduction in moral culpability – impulsivity submission rejected – limited findings as to motivation – adequacy of reasons as to causal connection - no error established CRIME – Appeals – appeal against sentence – mental illness – onerousness of custody – special circumstances – adequacy of reasons – consideration of relevant sentencing factors – no error established CRIME – Appeals – appeal against sentence – procedural fairness – alleged adverse finding without notice – nexus between mental illness and offending – adequacy of reasons – failure to consider relevant matters – no denial of procedural fairness

Catchwords:

CRIME – Appeals – appeal against conviction – unreasonable verdict – aggravated sexual assault in company – joint criminal enterprise – where Crown alleged applicant participated in joint criminal enterprise by being present, intentionally assisting and encouraging co-accused to commit the crime – whether proof of “directorial acts” was necessary to prove the existence of a joint criminal enterprise or the in company element CRIME – Appeals – appeal against conviction – unreasonable verdict – aggravated sexual assault in company – whether open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt – inconsistencies in complainant’s evidence – where jury acquitted applicant of other counts involving offending against same complainant – whether open to jury to accept the complainant’s evidence – where advantages of the jury were significant – verdicts not unreasonable

Catchwords:

CRIME — appeals — appeal against conviction —summing up of trial judge — whether summing up unbalanced and unfair — where applicant relied on co-accused’s evidence that he was dropped off prior to the offending — where trial judge expressed a number of views in the course of the summing up which were critical of the co-accused’s evidence — where trial judge made comments on evidence that went beyond arguments advanced by the parties — summing up amounted to an exercise in persuading the jury of the applicant’s guilt — appeal allowed and new trial ordered CRIME — appeals — appeal against conviction — summing up of trial judge — Liberato direction — whether Liberato direction as to co-accused had to be “calibrated” to the applicant’s case — where trial judge gave all three limbs of the Liberato direction about co-accused’s evidence and immediately directed the jury that the applicant relied on this evidence — where defence counsel did not seek a re-direction — no miscarriage of justice

Catchwords:

Sentencing – appeal against sentence – sexual offending against two victims – whether aggregate sentence failed to reflect the totality principle and produced a sentence that was manifestly excessive

Catchwords:

CRIME — appeals — appeal against sentence — determination of objective seriousness — sentencing judge ensured against risk of double counting arising from factual overlap — use of the knife to inflict the wound relevant to assessment of objective seriousness for reckless wounding offence — use of knife irrelevant to assessment of objective seriousness for custody of a knife offence — history of knife-related convictions is not an element of the custody of a knife offence — no error found CRIME — appeals — manifest excess — whether aggregate sentence imposed was unreasonable or plainly unjust — JIRS statistics of limited utility — “comparative” cases involving factual dissimilarities — sentencing judge accepted applicant's subjective case — sentence imposed not unreasonable or plainly unjust — no error found

Catchwords:

CRIME – appeals – appeal against conviction – whether miscarriage of justice occasioned as applicant could not in law have been convicted of the common law offence of escaping from lawful custody – whether common law offence of escaping is a continuing offence – where applicant was in the process of escaping from police – whether there is a temporal limitation to the offence – whether R v Tommy Ryan should no longer be followed CRIME – appeals – appeal against sentence – whether error in commencement date of aggregate sentence CRIME – appeals – appeal against sentence – whether incorrect maximum penalty applied for driving whilst disqualified offences – where maximum penalty of the offences was reduced following amendments made to the Road Transport Act 2013 (NSW) in 2017 – where error conceded CRIME – appeals – appeal against sentence – whether leave should be granted to advance further ground of appeal – whether error in the judge finding that applicant was not sexually abused in juvenile detention – where fresh and new evidence on appeal of applicant’s sexual abuse – where absence of that material during sentencing proceedings deprived the judge of fully appreciating and considering applicant’s sexual abuse – whether miscarriage of justice

Catchwords:

CRIMINAL LAW — appeals — appeal against sentence — fresh evidence — evidence of intellectual disability — where applicant sentenced on basis that he did not have intellectual disability — where evidence obtained following sentence indicated applicant has intellectual disability — whether fresh evidence — whether sentencing in absence of evidence gives rise to miscarriage of justice — evidence allowed CRIMINAL LAW — appeals — appeal against sentence — resentence — child sexual offending — young offender — intellectual disability — moral culpability — general deterrence — applicant subject to serious assaults in custody

Catchwords:

CRIME – appeals – appeal against conviction – whether irregularity constitutes miscarriage of justice – where irregularity occurred by provision of a transcript containing discussions in the absence of the jury – where those discussions included details of allegations made by the complainant for which the applicant had been acquitted in a previous trial – whether irregularity met the threshold of materiality – whether continuing trial after discharge of juror occasioned a substantial miscarriage of justice – whether it would be inferred that discharged juror would have voted for an acquittal – where majority verdict followed a short time after juror was discharged

Catchwords:

CRIME – Appeals – Interlocutory appeal – subpoena issued for copies of Royal Assent, proclamation certificate, certificate of authority and listing in government gazette of various statutes – subpoena set aside by primary judge – legitimate forensic purpose said to be proof of invalidity of said statutes – no legitimate forensic purpose – leave to appeal refused APPEALS – Jurisdiction of appellate court – jurisdiction of Court of Criminal Appeal to hear appeal without jury – Court constituted by judges only – no legal basis for jury to determine criminal appeals CONSTITUTIONAL LAW – Commonwealth Constitution – applicant posted s 78B notices to Attorneys-General – notice not yet received by Attorneys-General – constitutional claims frivolous, unarguable and concluded – appeal of an interlocutory nature – expedition of appeal necessary for trial to commence – in the interests of justice to proceed CRIMINAL PROCEDURE – right to trial by jury in relation to pre-trial orders – s 80 of the Commonwealth Constitution applies only to laws of the Commonwealth – no inalienable common law right to a jury trial – no accrued statutory right pursuant to Magna Carta or early State legislation CONSTITUTIONAL LAW – consistency of Royal Style and Titles Act 1973 with Commonwealth and State Constitutions – validity of any subsequent Royal Assent – no inconsistency or invalidity

Catchwords:

APPEAL — appeals — appeal against sentence — drug importation offence — whether certain findings were “reasonably open” — whether the sentence is manifestly excessive — appeal dismissed

Catchwords:

CRIME — Appeals — interlocutory appeal — by Crown against ruling on evidence — whether trial judge’s rulings on admissibility of evidence eliminated or substantially weakened prosecution’s case — Criminal Appeal Act 1912 (NSW) s 5F(3A) CRIMINAL PROCEDURE — Indictment — duplicity — Migration Act 1958 (Cth) s 285(1) — whether “directly or indirectly advertise” is duplicitous

Catchwords:

CRIME – appeals – appeal against sentence – manslaughter – accessory at the fact – intravenous administration of a mixture of prohibited drugs – “speedball” – whether failure to properly exercise discretion – complaint as to commencement date – where sentence set to commence at expiry of the non-parole period of a separate sentence – concurrency – distinct offending – manifest excess

Catchwords:

CRIME – appeals – appeal against sentence – whether sentencing judge erred in assessment of objective seriousness – whether a complaint about weight given to a factor is a proper ground of appeal – whether sentencing judge failed to consider alternatives to imprisonment – whether sentence manifestly excessive CRIME – appeals – appeal against sentence – where arithmetical error occurs which does not vitiate the sentencing discretion – whether an appellate court is required to re-exercise the sentencing discretion afresh where error is established – discussion of the ability of a party to inform the court’s approach on proceeding to resentencing or correcting the error only

Catchwords:

CRIME — appeals — appeal against sentence — manifest excess — manslaughter — where young person stabbed deceased with a knife — unlawful and dangerous act — appeal dismissed

Catchwords:

CRIME – appeals – appeal against sentence –applicant contends disparity between sentence imposed on applicant and co-offender gives rise to a justifiable grievance on the applicant’s part –applicant and co-offender involved in joint criminal enterprise murder – applicant convicted after plea of not guilty – co-offender sentenced after plea of guilty and discount – where findings of fact in applicant’s sentence were different to facts agreed in sentencing of co-offender – where subjective factors varied in respect of applicant and co-offender – where finding of special circumstances in co-offender’s case justified reduced non-parole period CRIME – appeals – appeal against sentence – applicant contends sentencing judge erred in failing to find special circumstances – whether COVID-19 pandemic would make conditions in custody more onerous on applicant in the future – where sentencing judge expressly accepted that COVID-19 pandemic had made conditions in custody more onerous as part of overall sentencing exercise but declined to find special circumstances on that basis – where applicant made no submission on sentence as to future impact of COVID-19 pandemic on conditions in custody – whether applicant has established a House v The King error

Catchwords:

SENTENCING — appeal against sentence — federal offenders — steps to be taken when imposing a sentence of imprisonment — consideration of alternatives to full-time imprisonment — application of factors in s 16A of the Crimes Act 1914 (Cth) — where alternatives were available and subject of argument — where consideration of alternatives not undertaken expressly or by inference — appeal allowed SENTENCING — relevant factors on sentence — moral culpability — discussion of process to be undertaken when applying principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 SENTENCING — re-sentence — intensive correction order — practical difficulties on re-sentence — recognizance release order

Catchwords:

CRIME – Appeals – appeal against sentence – Commonwealth offence – whether sentencing judge failed to assess or take into account prospect of rehabilitation – where no submissions made in relation to matter at first instance – whether matter “relevant and known to the court” – consideration of Zreika principles – relevance and significance of assessing prospects of rehabilitation – error established – miscarriage of justice – no lesser sentence warranted in law – appeal dismissed

Catchwords:

CRIME — appeals — appeal against conviction — conduct of cross-examination of an accused — domestic violence offences — where prosecutor suggested that the accused’s evidence was fabricated because matters were not put to complainant by defence counsel in cross-examination — where defence counsel did not object to the questioning — principles in Hofer v The Queen (2021) 274 CLR 351 — error conceded — appeal allowed

Catchwords:

CRIME — Appeal from Land and Environment Court — Appeal against conviction — overburden blast — construction of environment protection licence conditions — whether specific limit conditions of airblast overpressure and vibration levels override general obligation of competence — whether specific limits act as a “proxy” for general obligation of competence — as to the timing, stemming and overloading charges, whether it was established beyond reasonable doubt that the appellant failed to carry out the blast in a competent manner — as to the noise charge, whether it was established beyond reasonable doubt that the explosives were not dealt with in a proper and efficient manner

Catchwords:

CRIME — appeals — appeal against sentence — offence of sexual intercourse with a child under 10 years — whether sentencing judge erred in the assessment of moral culpability — no error in assessment of moral culpability — appeal dismissed CRIME — appeals — appeal against sentence — offence of sexual intercourse with a child under 10 years — whether sentence imposed was manifestly excessive — sentence not manifestly excessive — appeal dismissed

Catchwords:

SENTENCING — appeal against sentence — offence of murder by juvenile offender — procedural fairness — where report recorded applicant’s untested second-hand account about his involvement in the offending — where sentencing judge rejected this account — whether applicant denied procedural fairness because he was not given the opportunity to make submissions — no practical unfairness established SENTENCING — appeal against sentence — manifest excess — where offending serious and applicant involved in the assault in a significant way — where no comparison with co-offender’s manslaughter sentence — sentence not unreasonable or plainly unjust

Catchwords:

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

Catchwords:

CRIME – appeals – appeal against sentence – requirement to assess objective seriousness of offence – whether necessary to assess seriousness on a notional range CRIME – appeals – appeal against sentence – manifest excess – whether aggregate sentence manifestly excessive by reference to indicative sentences – utility of sentencing statistics

Catchwords:

CRIME – Appeals – Appeal against conviction –consciousness of guilt reasoning – allegation of collusion in oral evidence in Crown closing address going both to immediate post offence conduct and to evidence given in court – circularity of reasoning as to consciousness of guilt – improperly broad scope of Crown case on lies – directions did not cure prejudice – miscarriage established CRIME – Appeals – Appeal against conviction – asserted prosecutorial misconduct in cross-examination of accused and closing address – test to be adopted – personal commentary by prosecutor on accused’s evidence – mischaracterisation of accused’s evidence – improper use of compound questions – improper questioning as to collusion – inviting accused to comment on complainant’s evidence – inviting accused to comment on defence counsel’s examination of complainant – some degree of inappropriate conduct established – conduct not liable to divert jury from its task to extent which could realistically have affected its reasoning

Catchwords:

CRIMINAL APPEAL – appeal against sentence –imposition of life sentences for two murders – where first murder involved domestic violence with degrading sexual brutality – where victim of second murder a 2½ year old child – where second murder also involved “sexual motivation” – where second murder calculated to cover up first – whether life sentences manifestly excessive – terrible nature of a life sentence – whether pleas of guilty disregarded – whether childhood abuse and trauma should have resulted in determinative sentence rather than a life sentence – whether reasonably open to sentencing Judge to reject opinion of psychiatrist

Catchwords:

SENTENCING — appeal against sentence — possession and production of child abuse material — material error of fact — whether sentencing judge mistook the number of images and videos possessed — lack of specificity in Agreed Facts — no error in finding that there were hundreds of images and videos combined SENTENCING — appeal against sentence — assessment of objective seriousness — whether sentencing judge erred in assessing the objective seriousness of offence as mid-range — where child abuse material was category 2 and less serious — where possession offence overlapped with offence of producing the material — error found and applicant re-sentenced

Catchwords:

CRIME – Appeals – Appeals against sentence – Failure to take into account a relevant consideration – where applicant’s evidence as to claimed mental condition reliant on self-reports – where primary judge made adverse findings as to the reliability and credibility of applicant’s evidence – where primary judge rejected applicant’s self-reported history and explanation of his offending CRIME – Appeals – Appeals against sentence – failure to provide adequate reasons – where sentencing judge rejected elements of the applicant’s evidence – whether reasoning adequately explained in sentencing remarks – where it could be readily inferred that the sentencing judge accepted nether that the applicant’s mental health contributed to offending, nor that it reduced moral culpability CRIME – Appeals – Appeals against sentence – Denial of procedural fairness – where primary judge rejected applicant’s evidence as to claimed mental condition and reported historical sexual abuse – whether adverse findings were made without notice

Catchwords:

CRIME — appeals — appeal against sentence — break and enter offences contravening Crimes Act, s 112 — limited utility of guideline judgment of R v Ponfield following Crimes (Sentencing Procedure) Act — need for caution in application — moral culpability — Bugmy principles — “causal link” between deprived background and commission of relevant offences — causal link relevant to consider but not essential to establish — manifest excess — limited utility of statistical comparisons — sentence not unreasonable or plainly unjust

Catchwords:

CRIME — Appeals — Interlocutory appeal — By accused against interlocutory judgment or order — appeal against refusal to recuse on the ground of apprehended bias — application under s 5F Criminal Appeal Act 1912 (NSW) COURTS AND JUDGES — Bias — Apprehended bias — whether in the circumstances a fair-minded lay observer might reasonably conclude that the primary judge might not bring an impartial mind to the questions before the court

Catchwords:

SENTENCING — Crimes Act 1914 (Cth), s 16A(2)(g) — “any benefit to the community” resulting from plea of guilty — Whether s 16A(2)(g) limited to the immediate benefit to the community in avoiding trial in the particular matter — Whether primary judge’s approach involved double counting — Whether primary judge erred by taking into account in two different ways (one quantified and one unquantified) two distinct benefits to community resulting from guilty pleas SENTENCING — Whether sentences manifestly inadequate — Whether Court should exercise discretion to decline to interfere where sentences are erroneously lenient

Catchwords:

CRIME– appeals – appeal against conviction – directions to jury – tendency evidence – allegation that accused had sexual interest in complainant and tendency to act on it – whether directions were adequate – whether directions must have incorporated warning as to reliability of evidence sought to establish relevant tendency CRIME – appeals – appeal against conviction – directions to jury – tendency evidence – where tendency notice is expressed in the precise terms as the offending behaviour alleged by Crown – where jury directed to make findings in respect of charged conduct – whether jury were directed to consider the conduct ‘collectively to decide what conduct occurred’ to establish tendency – whether trial judge’s directions invited impermissible mode of reasoning – application of s 161A(3) of the Criminal Procedure Act 1986 – whether miscarriage of justice

Catchwords:

CRIME – appeals – appeal against sentence – determination of objective seriousness of offences – whether sentencing judge erred in categorising offences into varying groups of objective seriousness – where diverse victim ages and durations of offending permitted the assessments of objective seriousness – no error found CRIME – appeals – manifest excess – whether individual sentences imposed were outside relevant discretionary range – where sentencing judge accepted applicant's subjective case – sentences imposed not sufficiently unjust or disproportionate to betray substantive error of law – no manifest excess found CRIME – appeals – principle of totality – whether individual sentences were accumulated in such a manner which made the effective total head sentence crushing – where applicant contends large factual overlap between offences and excessive gap in starting dates of offences – sentences imposed were not disproportionate to total offending – no error found

Catchwords:

CRIME — appeals — appeal against conviction and sentence — notice of appeal filed out of time — self-represented applicant — large array of alleged errors on the part of trial judge and of defence counsel as well as general misfortune — no material error nor any matter potentially affecting the verdicts established — whether convictions unreasonable and sentence manifestly excessive — neither established — leave to appeal refused — no point of principle

Catchwords:

CRIME — appeal and review — stated case — question of law — s 58(1) of Crimes (Sentencing Procedure) Act 1999 (NSW) — whether “existing sentence of imprisonment” means the non-parole period of that sentence — whether the imposition of a new sentence wholly concurrent with an existing sentence engages s 58(1) — whether new sentence of imprisonment has effect of extending non-parole period of existing sentence so as to make the new sentence consecutive or partially consecutive to an existing sentence

Catchwords:

CRIME – Appeals – appeal against conviction – admissibility of expert evidence – s 79 of the Evidence Act 1995 (NSW) – forensic medical specialist – opinion as to expected external injuries in non-fatal ligature strangulation – where expert opinion based on clinical experience – whether opinion substantially based on specialised knowledge – whether expert engaged in process of prediction – reliability of expert evidence – distinction between matters going to admissibility of expert evidence as opposed to weight CRIME – Appeals – appeal against conviction – whether probative value of expert evidence outweighed by risk of unfair prejudice – s 137 of Evidence Act 1995 (NSW) – whether risk of jury placing unfair weight on opinion proffered by expert – white coat effect – relevance of “cogency” of reasoning in assessing probative value of expert evidence under s 137 – whether sufficient evidence to enable the jury to assess the reliability of an expert’s evidence – where expert opinion based on clinical experience – whether requirement to adduce evidence of details of cases observed in clinical experience CRIME – Appeals – appeal against conviction – murder – unreasonable verdict – whether open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt – circumstantial case – whether evidence capable of eliminating alternate hypothesis inconsistent with guilt – where advantages of the jury were significant – verdict not unreasonable

Catchwords:

CRIME — appeal — four counts of sexual touching of a child CRIMINAL PROCEDURE — trial — self represented accused — whether the trial judge failed to ensure the applicant was accorded a fair trial — whether the trial judge failed to make appropriate directions to the jury or prevent the admission of allegedly objectionable material — no miscarriage of justice demonstrated CRIMINAL PROCEDURE — trial — definition of identification evidence in the Evidence Act 1995 (NSW) — responses given by complainant to propositions in defence case does not fall within the definition CRIMINAL PROCEDURE — circumstances in which it is in the interests of a self-represented accused person that the Crown be permitted to make a closing address — need for consideration of all relevant circumstances — allowing the Crown to make a closing address may assist a self-represented accused to make a more helpful closing address and preserve procedural fairness CRIMINAL PROCEDURE — leave to appeal — not opposed by the Crown except on the basis of merit — where notice of appeal filed out of time — where delay caused by solicitor briefing barristers, who retained the brief, in circumstances where their professional commitments did not allow for timely preparation of the appeal

Catchwords:

CRIME – Appeal against sentence – possess unauthorised firearm – supply prohibited drugs in commercial quantity – cultivate prohibited plant in an indictable amount – aggregate sentence – indicative sentences – procedural fairness – where sentencing judge indicated firearms offences not of any particular impact – where indicative custodial sentence provided for firearms offence – Parkinson's disease as a shield against sentence – no opportunity for submissions against the finding – failure to address submissions in relation to an intensive correction order – manifest excess – totality – resentencing

Catchwords:

SENTENCING – appeal against sentence – co-offenders – disparity between sentences – where co-offenders sentenced in relation to attempt to possess unlawfully imported border-controlled drugs – where co-offender played less significant role in the offence than the applicant and had a stronger subjective case – applicant sentenced to substantial full-time imprisonment and co-offender released immediately on recognisance – whether disparity in sentences justified

Catchwords:

SENTENCING — appeal against sentence — material error of fact — whether sentencing judge mistook the number of firearms supplied — where sentencing judge only mistook the dates on which the supply of firearms occurred and not the total number supplied — no miscarriage of the sentencing discretion SENTENCING — appeal against sentence — mitigating factors of lack of prior criminal record and good character — where the sentencing Crown accepted that the absence of previous convictions was a mitigating factor but contested good character — where the sentencing judge made no finding as to good character — error found and applicant re-sentenced

Catchwords:

SENTENCING — appeal against sentence — use of comparable cases and sentencing statistics — whether sentencing judge failed to properly consider or give adequate reasons as to comparable cases — where the sentencing judge did make reference to the comparative material — no obligation on sentencing judges to compare similarities and differences with other cases in sentencing reasons — no error SENTENCING — appeal against sentence — finding of special circumstances — whether sentencing judge failed to take into account relevant considerations when varying the statutory ratio — where non-parole period must reflect objective gravity of offending and need for general deterrence — no error in slight variation of statutory ratio — sentence not manifestly excessive — appeal dismissed

Catchwords:

CRIME — appeals — appeal against conviction — judge alone trial — unreasonable verdict — high risk violent offender — breach of extended supervision order — whether the applicant associated with a child — meaning of associate — whether the verdict of guilty was reasonable

Catchwords:

CRIME — appeals — appeal against sentence — murder and wounding with intent to cause grievous bodily harm — whether the primary judge erred in the application of a 15% utilitarian discount instead of the statutory 25% discount

Catchwords:

CRIMINAL PROCEDURE – application for leave to appeal from decision refusing to vacate trial – where applicant unrepresented due to his dismissal of three sets of counsel and solicitors before trial – where neither submitted nor shown that conduct of legal team was incompetent or otherwise warranted termination of services

Catchwords:

CRIME - appeals - appeal against conviction - jury returned guilty verdict on one count of sexual intercourse without consent - applicant and complainant gave evidence - contemporaneous complaint evidence - contemporaneous text messages between applicant and complainant - conceded incorrect statements by applicant in police interview - whether misconduct by police - whether misconduct by barrister appearing for applicant at trial - significance of failing to call flatmate present during some of the time complainant was in the flat - whether misconduct by prosecutor - significance of inconsistencies in complainant’s evidence - whether trial judge had directed jury correctly as to consent - whether jury’s verdict unreasonable - allowance given to unrepresented litigant concerning submissions after judgment reserved and allegations unsubstantiated in evidence - appeal dismissed

Catchwords:

CRIME — appeals — appeal against conviction — judge alone trial — unreasonable verdict — where applicant found guilty of seven counts and acquitted of four counts — whether on all of the evidence it was open to the trial judge to be satisfied of the applicant’s guilt beyond reasonable doubt — where many of the trial judge’s findings of fact are contested — where there is an active challenge to a witness’s credibility — where there is a risk of contamination, inconsistencies and contradictory evidence EVIDENCE — Court invited to review recorded material — whether trial judge had an advantage in viewing recorded interviews — whether advantage capable of resolving doubt

Catchwords:

CRIME – bail – release application pending determination of applicant’s appeal against his convictions – whether there are “special or exceptional circumstances” under Bail Act 2013 (NSW) s 22

Catchwords:

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

Catchwords:

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:

CRIMINAL APPEAL – Commonwealth sentencing – transmitting child abuse material – where sentencing Judge applied a “statutory presumption” that a sentence of imprisonment be imposed – approach contrary to authority and to statute – material error conceded – whether less severe sentence warranted – whether s 17A threshold crossed – big house – consideration of alternative penalties – where applicant serving longer sentence for attempted drug importation – where applicant likely to be deported – where community correction order under State sentencing legislation picked up by Commonwealth statute – more appropriate penalty in the circumstances CRIMINAL LAW – sentencing – transmitting child abuse material – objective seriousness – relevant considerations – depiction of actual child – where one image transmitted to a single recipient – no evidence part of paedophile network – no suggestion transmission was for profit – young offender with no criminal record – findings of remorse – plea of guilty – deprived background – incarceration far away from family – sentence other than imprisonment appropriate

Catchwords:

CRIME – Appeals – appeal against sentence – whether sentencing judge erred by failing to take into account applicant’s onerous conditions of custody during COVID-19 – where sentencing judge expressly referred to impact of COVID-19 in relation to co-offender, being sentenced with the applicant, but not the applicant – error being found in such circumstances, applicant resentenced – on resentence, applicant not permitted to depart from approach below in relation to relevance of De La Rosa, but more favourable findings on prospects of rehabilitation and onerousness of custody made, taking into account additional evidence as to subsequent events in custody

Catchwords:

SENTENCING – onerous conditions of custody said to arise from COVID-19 – requirement for evidence establishing basis for submission – whether procedural fairness denied where sentencing judge does not provide notice that submission will not be accepted SENTENCING – parity – whether consideration of parity can be inferred from sentencing judge’s reasons absent formulaic expression – whether justifiable sense of grievance SENTENCING – relevant factors on sentence – whether applicant’s childhood was sufficiently deprived to enliven the principles contemplated in Bugmy – where no submissions were made at sentence – whether a requirement to consider Bugmy factors absent submissions

Catchwords:

CRIME – Appeals – appeal against sentence – fraud – representative counts – where challenge to factual finding of sentencing judge – finding that applicant voluntarily desisted offending and ceased offending when employment terminated – fact relied upon in aggravation of objective seriousness of offending – whether “reasonably open” to make finding beyond reasonable doubt – material error – appeal allowed – applicant re-sentenced CRIME – Appeals – appeal against sentence – approach of Court of Criminal Appeal when issue raised for first time on appeal – generally bound by conduct of counsel in below proceedings – exception where issue operates unequivocally in applicant’s favour CRIME – Appeals – appeal against sentence – manifest excess – not necessary to determine

Catchwords:

CRIME — Appeals — Appeal against conviction — Unreasonable verdict — where account of the offending is said to have a somewhat incredible quality and be implausible — where evidence is said to be inconsistent and/or uncorroborated — where jury found applicant not guilty of sexual intercourse but guilty of sexual touching — where complainant is under the age of 10 — where inconsistencies are peripheral and can be explained — where jury were well placed to assess the truthfulness and reliability of the evidence —ground dismissed CRIME — Appeals — Appeal against conviction — Miscarriage of justice — tendency evidence — where directions to the jury on tendency evidence were not in accordance with preferred approach in Director of Public Prosecutions v Roder — where three charged acts relied on as proof tendency — where requisite standard of proof not mentioned in the tendency direction — The King v AR [2026] HCA 10 applied — where there is real a risk of the jury being deflected from its fundamental task — leave granted — ground upheld — retrial ordered CRIME — Appeals — Appeal against conviction — Taking into account irrelevant consideration —whether trial judge erred in considering the jury’s verdict in making findings of guilt regarding related offences on s 166 certificate — whether reasons were sufficient — ground 3 need not be delt with given upholding of ground 2

Catchwords:

CRIME — appeal against sentence — application for leave to appeal — application for leave to file a notice of appeal out of time — where multiple sentences imposed by two judges — whether sentencing judge erred by characterising charges as “representative” charges — where sentencing judge did not so err — whether sentence manifestly excessive — where sentence imposed was not unreasonable or plainly unjust

Catchwords:

SENTENCING – appeal against sentence – manslaughter – whether sentencing judge erred in application of Bugmy principles – whether sentencing judge erred in use of applicant’s prior offending – whether sentencing judge erred in considering the applicant’s post-offending conduct when assessing moral culpability – error established but no lesser sentence warranted on re-sentence – appeal dismissed

Catchwords:

CRIME – appeals – appeal against sentence – importation of commercial quantity of border- controlled drug – reduced sentence for co-operation with law enforcement authorities – s 16A(2)(h) Crimes Act 1914 (Cth) – no error in not applying a discrete and identifiable discount – no error in failing to apply instinctive synthesis – leave refused

Catchwords:

CRIME – Appeal against sentence – Commonwealth offence – aid, abet, counsel or procure the commission of an attempt to possess a commercial quantity of an unlawfully imported border-controlled drug – where applicant contends sentencing judge failed to consider alternatives to full-time imprisonment – ground conceded to by respondent – steps to be undertaken in sentencing federal offenders – error established - resentence

Catchwords:

EVIDENCE – Hearsay – exceptions – admission – where hearsay evidence of representations by third parties in the absence of the applicant was admitted against the applicant under s 87(1)(c) of the Evidence Act 1995 (NSW) – where the applicant objected to most of this evidence being admissible against him – whether error in admitting evidence pursuant to s 87(1)(c) of the Evidence Act CRIME – Appeals – appeal against conviction – miscarriage of justice – application of proviso APPEALS – From jury verdict – misdirection or non-direction – whether the trial judge failed to direct adequately – whether the trial judge erred in his Honour’s directions as to the use which could properly be made of representations made in the absence of the applicant and admitted pursuant to s 87(1)(c) of the Evidence Act CRIME – Appeals – appeal against conviction – unreasonable verdict

Catchwords:

SENTENCING — appeal against sentence — pre-sentence quasi-custody — whether bail conditions amounted to quasi-custody — factual finding that bail conditions not harsh and restrictive reasonably open to the sentencing judge — no error in failing to backdate the sentence SENTENCING — appeal against sentence — parity principle — where co-offender had strong subjective case — no justifiable sense of grievance arising from disparity with co-offender’s sentence — sentence not manifestly excessive — appeal dismissed

Catchwords:

CRIME – appeals – appeal against conviction – consistency of acquittal on count 1 with guilty verdicts on two other counts – timing of count 1 offending was raised by evidence and submissions, even though trial judge did not direct that time was of the essence – verdict capable of rational explanation by reference to the complainant’s own evidence about timing in relation to count 1 CRIME – appeals – appeal against conviction –different witness accounts of offending conduct on one count – no extended unanimity direction given or sought – leave required under r 4.15 – Crown relied on one act being proven – evidence did not involve alternative “mutually destructive” bases or create “materially different issues or consequences” –parties and trial judge recognised differences in witness accounts – no injustice to applicant in the atmosphere of the trial

Catchwords:

CRIME — appeals — appeal against sentence — whether sentence manifestly excessive — whether primary Judge erred in assessing “rolled-up” charges as beneficial — whether sentencing trend is of assistance

Catchwords:

COURTS AND JUDGES – application for disqualification at commencement of sentence severity appeal – apprehension of bias – where judge previously acted for third party in unrelated proceedings – whether fair-minded lay observer might reasonably apprehend that judge might not bring an impartial mind – no logical connection between basis for application and feared departure by judge from deciding the case on its factual and legal merits – application unanimously refused

Catchwords:

CRIME — appeals — appeal against conviction — historical sex offences — application for permanent stay — applicable standards of appellate review — whether trial judge erred in refusing to permanently stay proceedings due to delay CRIME — appeals — appeal against conviction —historical sex offences — prosecutorial conduct — cross-examination of accused — Court invited to review audio of entire cross-examination — whether identified forensic purposes for listening to entire audio persuasive — forensic purposes not persuasive CRIME — appeals — appeal against conviction — historical sex offences — prosecutorial conduct — cross-examination of accused — improper questions — complaint as to various questioning techniques employed by the prosecutor – substantial repetition of prosecution evidence — manner and tone adopted by prosecutor — asking accused if prosecution witness is wrong — putting evidence of prosecution witnesses to the accused and asking whether the assertions are denied — where failure to raise further objections or seek discharge of the jury — whether cross-examination gave rise to miscarriage — miscarriage established

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdicts – inconsistency of jury verdicts – credibility of complainant’s evidence – logical distinction explains differentiation EVIDENCE – sexual experience – evidence inadmissible under s 294CB Criminal Procedure Act 1986 (NSW) – whether probative value outweighed any distress, humiliation or embarrassment that the complainant might suffer EVIDENCE – fresh and new evidence on appeal – whether evidence unavailable at trial caused miscarriage of justice – whether new evidence suggests the applicant’s guilt was not proven beyond reasonable doubt CRIME – appeals – appeal against sentence – aggregate sentence - manifest excess – whether error in indicative sentence suggests error in aggregate sentence – whether judge erred in finding that personal circumstances were not mitigating CRIME – appeals – manifest excess – whether judge erred in finding that one count warranted the maximum penalty – “reasonably open” test as correct standard for appellate review of factual error at sentence – whether judge erred in finding offending was of “worst category”

Catchwords:

SENTENCING – appeal against sentence – co-offenders – disparity between sentences – where aggregate sentences imposed – consideration of disparity between indicative sentences for common offences – where aggregate sentences accounted for offending not shared between co-offenders – whether disparity in aggregate sentences justified SENTENCING – appeal against sentence – co-offenders – disparity between sentences – where co-offender sentenced in the Drug Court – consideration of principles to be applied when comparing a sentence imposed by the District Court and a sentence imposed by the Drug Court – comparison of approaches in Scicluna v R and Tobia v R SENTENCING – penalties – Drug Court – where Drug Court imposes an initial sentence – consideration of objects and structure of the Drug Court Act 1998 (NSW) – whether leniency warranted in an initial sentence imposed by the Drug Court – approach in Tobia v R reconsidered

Catchwords:

CRIME – Appeals – appeal against sentence – backdating to account for pre-sentence custody and totality with pre-existing sentences – whether sentencing judge erred in setting commencement date of sentence – whether sentencing judge failed to provide adequate reasons for decision as to commencement date – whether lesser sentence warranted on resentence – appeal dismissed

Catchwords:

CRIME – appeals – appeal against sentence – severity – whether no penalty other than imprisonment would be appropriate – whether sentence manifestly excessive CRIME – appeals – extra-curial punishment – whether primary Judge open to consider loss of partner as extra-curial punishment – risk of an overly prescriptive approach to extra-curial punishment given fact-dependence CRIME – appeals – use of victim impact statements – whether inferences arose from sentencing remarks on victim impact statements

Catchwords:

SENTENCING — appeal against sentence — whether sentencing judge erred in approach to applicant’s plea of guilty under s 16A(2)(g) — utilitarian value of a guilty plea — whether the prosecution can resile from written concessions made in sentence hearing — whether strength of the prosecution’s case is relevant to utilitarian value of a guilty plea — whether sentencing judge can take into account the subjective value of the applicant’s guilty plea — impermissible and irrelevant factors taken into consideration — error found — appeal allowed — resentence

Catchwords:

CRIME — appeals — interlocutory appeal — doubts as to desirability of determining limitation questions in advance of trial CRIME — continuing offences — amorphous nature of term “continuing offence” — categories of continuing offence — relevance of issues of duplicity, double jeopardy, and limitation periods — nature of offence is an issue of legislative intention and facts of case — broad statements as to correct approach of limited utility — considerations relevant to characterisation exercise EMPLOYMENT AND INDUSTRIAL LAW — work health and safety — offences — characterisation of offence against ss 19(1) and 33 of Work Health and Safety Act 2011 (NSW) — distinct offence may be committed whenever duty not complied with at any time “while the workers are at work in the business or undertaking”

Catchwords:

CRIME – appeals – appeal against sentence – whether error in application of totality principle – manifest excess – five offences of manufacturing or supplying large commercial quantities of prohibited drugs – one offence of possess ammunition without licence – Form 1 offences – principle of totality – erroneous assumption as to pre-discount starting point – appropriateness of “grossing up” aggregate sentence – mathematical exercise – where substantial cumulation warranted – where sentence well within range – appeal dismissed

Catchwords:

CRIME — Appeal against sentence — application for leave to appeal — where applicant contended sentence manifestly excessive — where none of the matters relied upon by applicant demonstrate manifest excess — where application does not go beyond merely arguable — where no issue of principle raised — where leave to appeal against sentence refused

Catchwords:

SENTENCING — appeal against sentence — child sexual offences — expert evidence of applicant’s neurodevelopmental disorders — whether sentencing judge erred in failing to address whether moral culpability and the need for general deterrence was reduced — error established but no lesser sentence warranted on re-sentence — appeal dismissed

Catchwords:

CRIME – Appeals – appeal against sentence – where challenge to factual finding by sentencing judge – application of decision in Hancock – whether finding of sentencing judge “reasonably open” – no lesser sentence warranted in law – appeal dismissed.

Catchwords:

CRIME – appeals – appeal against conviction – Liberato direction – where Crown conceded that the trial judge’s direction on the second limb of Liberato was erroneous in a material respect – whether the guilty verdict was nevertheless inevitable – whether the proviso in s 6(1) of Criminal Appeal Act 1912 (NSW) should apply

Catchwords:

CRIME – appeals – appeal against sentence – sexual intercourse without consent – objective seriousness – moral culpability – whether sentencing judge erred in failing to take into account the applicant’s motive and intention in committing offences – whether applicant’s motive of love and sexual attraction toward victim mitigated objective seriousness – appeal dismissed CRIME – appeals – appeal against sentence – aggregate sentence – whether sentence manifestly excessive – appeal dismissed

Catchwords:

CRIME — appeals — appeal against conviction — jury returned guilty verdict of aggravated indecent assault contrary to Crimes Act 1900 (NSW), s 61M(2) — not guilty verdicts returned on two counts alleging earlier alleged assaults of same complainant — whether verdict unreasonable by reason of inconsistency — verdicts reconcilable having regard to qualities of evidence and timing and circumstances of alleged offences — reliability distinct from credibility — open to jury to consider complainant’s recollection of more recent offending more reliable — added weight placed on passage of time where earlier alleged offending occurred when complainant was a young child — whether a miscarriage of justice arose — no error in directions of trial judge — no material irregularity from defence counsel’s forensic decisions to consent to admission of evidence of complainant’s sister in statement form and to not address in closing — no miscarriage of justice

Catchwords:

CRIMINAL APPEAL – ground that guilty verdict unreasonable – application of authorities – where jury acquitted on two counts relating to different complainant – no inconsistency – independent examination of evidence adduced at trial – consideration of attack on credibility of complainant – myths and preconceptions – consideration of jury’s advantage – emotionally charged trial court – where complainant calls defence counsel a [expletive deleted] – impact on credibility – evaluation better made by jury familiar with atmosphere of courtroom and tone of cross-examination – eight matters of concern raised by appellant – whether matters amount to inadequacies raising reasonable doubt of appellant’s guilt CRIMINAL PROCEDURE – where complainant identifies as male – respectful use of preferred pronouns – counsel’s use of term “young lady” – unfortunate cross-examination and address – complainant’s crude response to counsel appeared to be understandable

Catchwords:

CRIMINAL LAW — appeal against conviction — murder — unreasonable verdict —self-defence — whether Crown proved beyond reasonable doubt that accused did not believe conduct necessary to defend himself — whether accused ought be acquitted on murder charge when re-trial limited to manslaughter — whether acquittal would create plea in bar — autrefois acquit — Criminal Appeal Act 1912 (NSW), ss 6, 8 — Criminal Procedure Act 1986 (NSW), s 163

Catchwords:

CRIME – appeals – appeal against sentence – four counts of drug supply offences – one count of acquiring firearms contrary to a firearms prohibition order – whether sentencing judge erred in assessment of objective seriousness of sequence 12 – whether scalar classification of objective seriousness is necessary – whether it was reasonably open to the sentencing judge to place the offence at the “mid-range” of objective seriousness – appeal dismissed

Catchwords:

APPEALS — appeal against sentence — material inadvertently disclosed at sentence — consideration of material disclosed — material error in sentence SENTENCING — appeal against sentence — consideration of irrelevant material — material error

Catchwords:

SENTENCING — appeal against sentence — where appeal is out of time BIAS — whether an apprehension of bias arises from comments made by the sentencing judge PROCEDURAL UNFAIRNESS — whether it was procedurally unfair for the sentencing judge to reject a diagnosis that was unchallenged NEW EVIDENCE — whether the applicant can rely on new reports prepared for use in sentencing proceedings in the District Court — whether the District Court sentencing judge will be bound by the findings of the sentencing judge in these proceedings — appeal dismissed

Catchwords:

SENTENCING — appeal against sentence — sexual offences committed against biological daughters — whether sentence manifestly excessive — use of comparable cases — where indicative sentences are high — where the sentencing judge applied a significant degree of notional accumulation — aggregate sentence unreasonable or plainly unjust — appeal allowed and applicant resentenced

Catchwords:

CRIME – appeals – appeal against conviction – Liberato direction – whether modified Liberato direction was appropriate – where difficulties arising from applicant’s evidence of intoxication – whether risk of confusing jury if unqualified Liberato direction given – rigid adherence to the formulation of an unqualified Liberato direction not required – where Liberato direction fashioned to an aspect of the evidence which was critical to the assessment by the jury of the offence – no objection taken nor redirection sought at trial – no miscarriage of justice from modified Liberato direction CRIME – appeals – appeal against conviction – whether miscarriage of justice by trial judge’s failure to give the standard inferences direction – where Crown case dependent upon direct evidence and jury’s assessment of credibility – where no direct evidence as to the applicant’s state of mind – no further direction sought at trial – circumstantial evidence direction not required – omission of direction did not deflect the jury from its fundamental task – essential elements of the offence proved beyond reasonable doubt – no miscarriage of justice CRIME – appeals – appeal against sentence – whether sentence manifestly excessive – sentencing statistics and comparative sentences – sentence was not unreasonable or plainly unjust

Catchwords:

CRIME — appeals — appeal against conviction — unreasonable verdict — sexual touching — where differential verdicts reached on counts arising from a single course of conduct — where counts alleged conduct at differing levels of specificity — no inconsistency CRIME — appeals — appeal against sentence — sexual touching — objective seriousness — whether open to primary judge to be satisfied of skin-to-skin contact — finding reasonably open to sentencing judge

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 — complicity — accessory before the fact — joint indictment — two persons to stand trial on one count of attempt to possess unlawfully imported border controlled drug — Crown alleged both accused persons were liable as principals — alternative Crown case that one accused procured the conduct of the other in attempting collect package at post office and that her conduct was attributed to the first accused as a proxy under s 11.3 of Commonwealth Criminal Code — whether s 11.3 applied to proxy who was charged as a principal — whether Crown could advance alternative cases — whether alternative case required amendment to indictment or further particulars — whether Commonwealth Director of Public Prosecutions v Brady [2016] VSC 334; 346 FLR 1 should be followed — whether s 11.3 confined to proxies who lack sufficient knowledge

Catchwords:

CRIME – Appeals – appeal against sentence – appellant company convicted of offences of carrying out development contrary to consent after guilty pleas and sentenced to fines in Land and Environment Court – whether sentencing judge erred by rejecting disposition under s 10 of Crimes (Sentencing Procedure) Act 1999 (NSW) as a sentencing option before considering appropriate sentence – whether sentencing judge engaged in impermissible two-stage process of sentencing or failed to take into account relevant considerations in determining not to record conviction – whether sentencing judge applied a wrong principle in considering extenuating circumstances in which offences were committed as required by s 10(3)(c) – no wrong principle identified – ground not properly framed to challenge a factual finding – factual finding as to extenuating circumstances nonetheless reasonably open – whether sentencing judge took into account irrelevant consideration being that s 10(1)(b) dispositions are more appropriate for individuals – sentencing judge did not restrict availability of s 10(1)(b) to individuals – inapplicability of certain conditions imposable under s 10(1)(b) orders to companies not irrelevant

Catchwords:

CRIME – appeals – appeals against sentence – joint criminal enterprise – whether co-offenders occupied similar roles within the enterprise – whether sentencing judge erred in assessment of participation – whether sentencing judge observed the parity principle – leave to appeal granted – appeal dismissed

Catchwords:

CRIMINAL LAW – sentence appeal – totality principle – accumulation of sentences – special circumstances – overview of principles – no difference in principle between sentence imposed in single sitting and sentence accumulated on existing sentence – accumulation on sentence for armed robbery – where sentencing delayed in relation to temporally proximate and less serious offending – whether the sentencing Judge adverted to impact on proportion of non-parole period to total accumulated sentence – examination of record in sentencing court – application of principles

Catchwords:

CRIMINAL LAW – appeal – appeal against sentence – 17 counts of child sexual offences committed against nine victims over 28 years – 10 Form 1 offences taken into account – where applicant sentenced to 30 years’ imprisonment with a non-parole period of 20 years – whether sentencing judge erred in assessment of objective seriousness of individual counts – whether trial judge erred in failing to indicate where on the scale of seriousness each of the offences fell – whether sentence manifestly excessive

Catchwords:

CRIME – bail – release application – applicant charged with aggravated kidnapping – applicant charged with robbery with a dangerous weapon – applicant charged with drug offences – bail refused by judge of Supreme Court – release application to Court of Criminal Appeal – cause shown – whether any unacceptable risk – bail granted on conditions

Catchwords:

CRIME – appeals – appeal against sentence – whether head sentence was manifestly excessive – whether indicative sentences were manifestly excessive – where one of four indicative sentences manifestly excessive – materiality – whether length of indicative sentence indicates error in aggregate sentence – appeal allowed – applicant re-sentenced. CRIME – appeals – appeal against sentence – parity principle – where co-accused had committed similar offences but facts disclosed different level of involvement – where applicant held senior and extensive role vis-à-vis co-accused – substantial difference in sentence objectively justified.

Catchwords:

CRIME – appeals – appeal against sentence – drug manufacturing – State and federal offences – whether sentence for State offence was manifestly excessive – consideration of sentences imposed in broadly comparable circumstances – appeal allowed

Catchwords:

JUDGMENTS AND ORDERS − no remaining controversy between the parties – whether the Court should nonetheless make orders and provide reasons – whether the appeal involved an issue of general importance favouring formal determination – potential to provide guidance where a similar issue may arise deemed insufficient reason to determine an appeal CRIME − whether the general principle against issuing advisory opinions regarding issues not in controversy applies in the context of criminal proceedings

Catchwords:

CRIME — Bail — Release application — Where two previous bail applications have been refused — Shooting with intent to murder and discharging a firearm with intent to cause grievous bodily harm as the alternative charge — Show cause provisions — Whether the applicant has shown cause why his detention is not justified — Youth, first time in custody, 15 months on remand, no record of prior convictions and delay — Where co-accused was granted bail — Dispute as to whether the Crown case has inherent fatal weaknesses — Whether proposed conditions of bail mitigate bail concerns to an acceptable level

Catchwords:

CRIME — Appeals — Appeal against sentence — offences of possessing a commercial quantity of border controlled drug and manufacturing not less than the large commercial quantity of a prohibited drug — application of sentencing principles to a finding of an offender’s background of deprivation — application of sentencing principles to a finding of an offender’s prospects of rehabilitation and likelihood of reoffending — whether an offender travelling to Australia for the purpose of the commission of the offence is an aggravating feature — appeal dismissed

Catchwords:

CRIME — appeals — appeal against conviction — unreasonable verdict — sexual intercourse without consent — whether complaint evidence was reliable — where applicant’s DNA was not found by investigators — whether CCTV evidence supported inferences alleged by the Crown CRIME — appeals — appeal against conviction — unreasonable verdict — sexual touching — where applicant was complainant’s doctor — where touching occurred during medical examination — whether touching was sexual in nature — whether touching was solely for a proper medical purpose CRIME — appeals — appeal against conviction — unreasonable verdict — sexual touching — where applicant was complainant’s doctor — whether touching occurred as alleged — whether complaint evidence was reliable

Catchwords:

CRIME — Appeal against conviction — application for leave to appeal — whether miscarriage of justice by the refusal of an adjournment — where applicant asserts he was prevented from pursuing a course which could, with any reasonable prospect of success, enable him to avail himself of counsel — whether trial judge erred in allowing the trial to continue after the applicant contends the severity, extent and the implications of his psychopathology (a bipolar condition and a “voice confrontation” condition) made it apparent that he could no longer receive a fair trial in the absence of legal representation — leave to appeal granted and appeal dismissed CRIME — Appeal against conviction — application to adduce fresh or new evidence on appeal — whether trial judge erred in refusing application further to recall the complainant to be cross-examined as to the allegation of photoshopping images — application refused and no error by trial judge CRIME - Appeal against sentence – application for leave to appeal – where contended that there was a striking discrepancy between the custodial conditions the sentencing judge had been led to believe would be applicable and the actual conditions experienced by the applicant — where proposed ground of appeal raised events occurring post-sentence — leave to appeal against sentence refused

Catchwords:

CRIME — miscarriage of justice — where applicant did not give evidence at trial — whether applicant was “adequately” advised by defence counsel whether or not to give evidence — whether applicant deprived of chance of acquittal that was “fairly open” CRIME — appeals — where applicant challenges conviction of sexual touching without consent and sexual intercourse without consent — where significant context and background of relationship between parties

Catchwords:

CRIME – appeals – appeal against sentence – whether the sentencing judge erred in assessing the objective seriousness of the offending – whether sentencing judge erred in approach to quantity of drug – whether reasonably open for sentencing judge to decline to accept evidence of applicant’s limited role in drug manufacture – inferences of sentencing judge properly drawn beyond reasonable doubt – appeal dismissed.

Catchwords:

CRIME — Appeals — Appeal against conviction — whether applicant prosecuted maliciously — whether applicant’s extradition from New Zealand unlawful — whether jury verdicts unreasonable — whether jury’s ability to access digital evidence impeded — whether intervention by trial judge excessive and undue — whether summing up unbalanced and unfair — whether undue pressure placed on jury by trial judge — whether consciousness of guilt reasoning inappropriately relied on by Crown — whether trial commenced at unjust time owing to applicant’s medical conditions — whether alleged errors and procedural unfairness cumulatively caused trial to miscarry

Catchwords:

CRIME — Appeals — Appeal against sentence — Whether sentencing judge’s characterisation of the applicant’s behaviour as methodical, calculated and systematic was unfounded on the evidence CRIME — Appeals — Appeal against sentence — Failure to take into account a relevant consideration — Where applicant was diagnosed with Post Traumatic Stress Disorder and other mental health conditions — Whether sentencing judge failed to properly consider the applicant’s mental health conditions when assessing moral culpability and a causal connection with the offence CRIME — Appeals — Appeal against sentence — Manifest excess — Where sentencing judge found the objective seriousness of the offence was relatively high — Where comparative cases encompass a wide range of circumstances and severity of injury

Catchwords:

CRIMINAL PROCEDURE – interlocutory appeal – rejection of application for judge only trial – nature of appeal – requirement for leave as a threshold issue – no error or arguable error in the reasons of the trial judge – no basis for a grant of leave to appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW) – leave to appeal refused

Catchwords:

CRIME — appeals — appeal against conviction — unreasonable verdict — where applicant’s authorship of pseudonymous messages was an intermediate essential fact — whether evidence was sufficient to find that applicant sent messages CRIME — appeals — appeal against conviction — miscarriage of justice — whether trial judge erred in leaving to jury a basis for conviction that represented a change in Crown case from opening — whether denial of procedural fairness — whether Crown case changed between opening and closing

Catchwords:

CRIME — appeal against conviction — offence of aggravated sexual assault in company — Crown case that the co-accused physically and sexually assaulted the complainant to obtain drugs secreted in her vagina in a correctional centre — principles of joint criminal enterprise — whether the applicant’s plea of guilty to an alternative count removed proof of an element as a real issue at trial — whether trial judge’s directions on reckless infliction of actual bodily harm and sexual intercourse erred — no second limb error — appeal dismissed

Catchwords:

CRIME – Appeal against sentence – supply large commercial quantity of prohibited drugs – partly motivated by drug and gambling addictions – diagnoses of substance use disorder and gambling disorder – mental health found not to be “causally connected to the offences in the relevant sense” – infelicity – drug and gambling addictions might provide an explanation for offending but do not operate in a mitigatory sense

Catchwords:

CRIME — appeals — appeal against conviction — unreasonable verdict — whether jury verdict of guilty on one charge of sexual intercourse with a child under the age of 10 was unreasonable — where leave to appeal granted but appeal dismissed

Catchwords:

CRIME – Appeals – appeal against sentence – where two co-offenders sentenced by the same judge 10 months apart – whether the absence of the co-offender’s subjective material before the sentencing judge caused the applicant’s sentence proceedings to miscarry – whether the sentencing judge erred in the consideration of objective seriousness – whether the sentence is manifestly excessive – leave to appeal granted – appeal dismissed

Catchwords:

CRIME – appeal – appeal against sentence – one count of dishonestly destroying property by fire for financial gain – where applicant already serving term of imprisonment for separate offence at date of sentence – where sentencing judge made finding of special circumstances and on that basis adjusted standard ratio between non-parole period and head sentence – whether in light of overall effective sentence sentencing judge erred in failing to give practical effect to finding of special circumstances

Catchwords:

CRIME — appeal — appeal against conviction — whether failure to apply second and third limbs of the Liberato direction — whether verdict unreasonable — whether aggravating circumstance in Crimes Act 1900 (NSW) s 61J(2)(a) established for multiple counts — leave granted — appeal dismissed CRIME — appeal — appeal against sentence — whether sentencing judge erred in approach to objective seriousness on multiple counts — whether sentencing judge erred applying totality principle — whether sentence manifestly excessive – aggregate sentence manifestly excessive — leave granted — appeal allowed — resentence

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict having regard to the nature and quality of the evidence – robbery – significant issue regarding the identity of the assailant – multiple irreconcilable versions given by the complainant including a positive assertion on the day of the robbery that the assailant was a person known to him, “Wayne” – evidence unreliable regarding matters essential to the charge – jury verdict unreasonable – evidence contains discrepancies, displays inadequacies, was tainted and lacks probative force – significant possibility an innocent person has been convicted

Catchwords:

CRIME – appeals – appeal against sentence – two offences of possession of a precursor intended for use in the manufacture or production of a prohibited drug – whether the sentencing judge failed to take into account the applicant’s prospects of rehabilitation – whether the sentencing judge erred by taking into account subjective matters by way of a quantified 2.5 per cent discount – whether the sentencing judge failed to determine whether the applicant facilitated the administration of justice – whether the sentencing judge failed to take into account the applicant’s mental health and its impact on making custody more onerous – error established in relation to each ground – applicant re-sentenced

Catchwords:

SENTENCING — aggravating factors — breach of conditional liberty — sentencing judge referred to appellant being on conditional liberty at time of offending when considering objective seriousness — error to have regard to that feature in assessment of objective seriousness SENTENCING — relevant factors on sentencing — where applicant did not characterise manslaughter offence by placing it on notional range or by description — no requirement to assess objective seriousness by reference to a notional range — in cases of manslaughter doing so unlikely to be of much utility — sufficient to identify a number of aggravating factors — sentencing judge not required to distinguish between applicant and uncharged co-perpetrator’s roles SENTENCING — subjective considerations on sentence — hardship — mental illness — approaches to causation in relation to mental health concerns and psychosocial maturity — no error in differing approaches to causation and differing conclusions

Catchwords:

CRIME — appeal against conviction — murder — unreasonable verdict — self-defence — where the applicant inflicted two fatal stab wounds upon the deceased during an altercation — where the applicant asserted the deceased was the aggressor — whether the Crown negatived self-defence — where the applicant’s account of events was inconsistent with the evidence in the Crown case — where the evidence was capable of satisfying the jury beyond reasonable doubt that the applicant did not stab the deceased in self-defence — leave to appeal granted — appeal dismissed CRIMINAL PROCEDURE — appeal against conviction — extension of time to file a Notice of Appeal — four year delay from sentence — interests of justice — extension granted

Catchwords:

CRIME – appeals – appeal against conviction – whether miscarriage of justice occurred – where prosecution breached its duty of disclosure – whether proviso should be applied – appeal allowed

Catchwords:

CRIME – appeals – appeal against sentence – firearms offences – plea of guilty – whether the sentencing judge erred in failing to provide a discount for the applicant’s plea after the close of Crown case – whether the sentencing judge erred in aggravating the objective seriousness by taking into account offending not subject of charge – leave to appeal granted – appeal upheld – applicant re-sentenced

Catchwords:

CRIME — Appeals — Appeal against sentence — Where applicant pleaded guilty to two Commonwealth drug offences and two State offences involving unauthorised possession of firearms and identification-making material — Whether sentencing judge erred in setting commencement date of sentences by failing to consider and/or apply the principle of totality

Catchwords:

CRIMINAL LAW — appeal against sentence — conspiracy to import border-controlled drug — where sentencing judge took into account applicant’s contrition in discount for plea of guilty — irregular deduction from nominated starting point — utilitarian value of guilty plea — principles of parity — parity between applicant and co-offender —factual challenge in criminal sentence appeal — whether applicant occupied a minor role in offending — whether the factual finding was reasonably open — House v The King (1936) 55 CLR 499; [1936] HCA 40 error — appeal dismissed

Catchwords:

CRIME – appeals – Crown interlocutory appeal – sexual offences – whether trial judge erred in refusing Crown application to discharge jury – where discharge application based on directions given by trial judge – where trial judge relied on R v Wilkie, R v Burroughs, R v Mainprize [2005] NSWSC 794 – directions inconsistent with s 294B(7) of the Criminal Procedure Act 1986 (NSW) – directions carried real risk of elevating importance of demeanour – wrong principle – error in determination of application – appeal allowed – matter remitted to be determined according to law EVIDENCE – witness evidence – evidence in sexual offence proceedings – evidence given by alternative arrangements – impact of evidence given by audio visual link – judicial attitudes – research – not equivalent to testimony in courtroom – weaker standard of communication – may affect opposing or calling party – beneficial or detrimental to witness – Kennedy Nixon presidential debate – impact may not be ascertainable EVIDENCE – directions to jury – evidence given by audio visual link – directions in ordinary case likely to contravene s 294B(7) – s 294B(7) cannot convert poor evidence into clear evidence – available direction where impact of audio visual link capable of being identified – direction as to particular quality of evidence – example direction provided

Catchwords:

CRIME – appeals – appeal against sentence – offence of dishonestly destroy property by fire with view to make a gain – where sentencing judge misstated the applicant’s date of birth and age – where the age stated by the sentencing judge was 10 years older than the applicant’s true age – whether the applicant’s deprived background warrants a finding of reduced moral culpability in circumstances where the offending was carefully planned – error established – no lesser sentence warranted

Catchwords:

CRIME – Appeals – appeal against conviction – sexual intercourse with a child – whether Crown case implied a lack of past sexual experience or activity of the complainant – whether exclusion of evidence relating to child’s sexual experience under s 293 of the Criminal Procedure Act resulted in a miscarriage of justice – whether failure to permanently stay the trial resulted in a miscarriage of justice – whether convictions unreasonable having regard to significant change between complainant’s allegations in JIRT interviews and pre-recorded evidence – appeal allowed – conviction on counts 1 and 4 quashed

Catchwords:

SENTENCING — appeal against sentence — co-offenders — disparity between sentences — whether the applicant had a justifiable sense of grievance having regard to the sentence imposed on his co-offender — where both offenders were sentenced by the same judge — where the applicant’s undiscounted indicative sentence in respect of one count was double that imposed on his co-offender

Catchwords:

CRIME — appeal against conviction — offence of sexual intercourse with a child under the age of 10 — presumption of doli incapax — whether Crown rebutted presumption on the available evidence — whether applicant understood that his acts were seriously or gravely wrong and not merely naughty or mischievous — RP v The Queen (2016) 259 CLR 641 considered — evidence as to the applicant’s contemporaneous character or maturity not sufficient to rebut the presumption beyond reasonable doubt — appeal allowed

Catchwords:

CRIME — appeals — appeal against conviction — sexual assault — oral directions given by trial judge concerning mens rea of offence — mens rea where accused believed complainant consented but accused had no reasonable grounds for belief — whether direction including words “there were no reasonable grounds” constituted misdirection — difference between phrases “there were no reasonable grounds” and “he had no reasonable grounds” — whether statutory language permits consideration of subjective factors of accused — unnecessary to decide in circumstances of appeal — whether trial judge suggested accused bore onus of proving belief in consent — significance of absence of complaint about directions given — application of rule 4.15 of Supreme Court (Criminal Appeal) Rules 2021 (NSW)

Catchwords:

CRIME – appeals – appeal against sentence – armed robbery – lighter as offensive weapon – whether the sentencing judge erred in assessing the objective seriousness of offending – whether the sentencing judge erroneously applied Henry guideline judgment – whether the sentencing judge failed to disclose her Honour’s assessment of objective seriousness – whether her Honour erred in assessing objective seriousness by reference to the nature of the weapon – guideline judgment did not offer guidance in sentencing exercise – appeal upheld – appellant re-sentenced – no basis for further punishment

Catchwords:

CRIME — Appeals — Appeal against sentence — Where applicant entered plea of guilty to an offence of facilitating the exit of a person from Australia by deception — Whether sentencing judge erred in assessing objective seriousness of the offence — Whether contended findings were made without proper evidentiary foundation which infected the sentencing discretion — Where contended relevant considerations were misconstrued — Whether sentence imposed was unreasonable or plainly unjust

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict – where applicant found guilty of one count of attempting to possess commercial quantity of border controlled drug – border controlled drug contained in hessian sacks – circumstantial Crown case – whether reasonable inferences available to be drawn – where the jury’s advantage is slight – whether it was open to the jury to draw the ultimate inference on the whole of the evidence that the applicant knew or was reckless beyond a reasonable doubt to the fact that the sacks contained a border controlled drug – whether failure to exclude an inference consistent with the applicant’s innocence that was reasonably open

Catchwords:

CRIME – appeal against sentence – misapplication of principle – irrelevant considerations – error at sentence – applicant’s criminal history not to be considered in determining the objective seriousness of an offence CRIME – appeal against sentence – re-exercise of sentencing discretion – no lesser sentence warranted

Catchwords:

CRIME — appeals — appeal against sentence —Commonwealth offence — family hardship — Totaan v R — error conceded — no lesser sentence warranted in law

Catchwords:

CRIME – appeals – appeal against sentence – whether the sentencing judge erred in setting the commencement date of the sentence – whether sentencing judge failed to account for a period of custody referable to an offence for sentence – no question of principle – appeal upheld – applicant re-sentenced

Catchwords:

ENVIRONMENT AND PLANNING – environmental crime – offending contrary to ss 342(1)(a) and 343(1) of Water Management Act 2000 – strict liability offences – where appellants fined for damaging or interfering with work owed or under control of irrigation corporation – where appellants took water from water supply work without authorisation SENTENCING – appeal against sentence – principle of totality in the imposition of fines – error in sentencing judge’s approach to totality – considerations when sentencing a corporation – parity – appellants’ resentenced PRACTICE AND PROCEDURE – arithmetical error in sentence – r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) – amendment made under slip rule – slip rule incorporated into the Land and Environment Court Rules 2007 (NSW) in respect of Class 5 proceedings – amendment permissible – application of the slip rule does not permit re-exercise of sentencing discretion – no re-exercise of discretion required here

Catchwords:

CRIMINAL LAW – appeal – sentencing – whether manifestly inadequate – respondents members of ‘Brothers for Life’ gang – gangland crime – offending of a serious nature – minimal accumulation in sentence structure – whether aggregate sentence manifestly inadequate from inadequacy of sentences on individual counts – where offenders subjected to non-exculpatory duress – where offenders were relatively young aged 18 and 22-23 respectively at time of offending – where deprived background – where guilty pleas and assistance to authorities

Catchwords:

CRIMINAL LAW – appeal – sentencing – whether manifestly inadequate – parity – whether justifiable sense of grievance – whether failure to take into account period of onerous bail conditions

Catchwords:

CRIME – appeal against sentence – use carriage service to threaten to kill a person with the intention that the person would fear the threat would be carried out – use carriage service in a way that reasonable persons would regard as being in all the circumstances menacing and/or offensive – whether primary judge erred in determining suitability of an ICO – whether primary judge erred by failing to consider a Recognizance Release Order – effect of mental health on offending – degree of notional accumulation – sentence not manifestly excessive – appeal dismissed

Catchwords:

CRIME — appeals — appeal against sentence — whether sentencing judge failed to make findings about remorse and prospects of rehabilitation — nature of sentencing judge’s obligation to give reasons CRIME — appeals — appeal against sentence — manifest excess — whether inadequate weight given to subjective circumstances

Catchwords:

CRIME – Appeals – appeal against sentence – obtain financial advantage by deception – threaten witness – manifest excess – concurrency – whether sentence should be backdated to imprisonment for unrelated offending – no error found – appeal dismissed – self-represented applicant

Catchwords:

CRIME — appeals — appeal against sentence — application for leave to appeal out of time — offence of attempt to possess commercial quantity of border-controlled drug — manifest excess — parity with sentence of co-offenders, one sentenced separately — appeal dismissed

Catchwords:

CRIME – appeals – appeal against sentence – deal with property reasonably suspected to be proceeds of crime – manifest excess – alleged misapplication of the principle of totality – De Simoni error – challenge to discount given for assistance – no lesser sentence warranted – appeal dismissed

Catchwords:

CRIME — Appeals — Appeal against conviction — Aggravated sexual intercourse with a child — Directions required to be given in respect of using uncharged acts for a tendency purpose — Reference to party adducing evidence best understood as identifying the party seeking to use evidence for a tendency purpose — Evidence may be used for tendency purpose without determining issues raised by ss 97, 97A and 101 if no objection taken CRIME — Appeals — Appeal against conviction — Application to adduce new evidence — Where new evidence could have been obtained at trial and did not raise reasonable doubt about guilt — Application refused CRIME — Appeals — Appeal against conviction — Where direction given to jury that if they had or could not reach unanimous verdict they would be given further directions — Where direction did not place pressure on jury CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Where complainant unable to be specific as to timing of sexual assaults — Where complainant’s reasons were reasonable and plausible

Catchwords:

CRIME – appeals – appeal against sentence – whether manifestly excessive

Catchwords:

CRIME – Appeals – Crown interlocutory appeal – murder – robbery with wounding – 4 counts on indictment – severance of counts 3 and 4 – whether ruling substantially weakens Crown case – whether O’Leary principle applies – whether evidence in severed counts is relevant to facts in issue – whether evidence unfairly prejudicial – assessment of probative value – whether House v The King error

Catchwords:

CRIME – Crown appeal against inadequacy of aggregate sentence – 6 offences against s 66C(4) of the Crimes Act 1900 (NSW) (“Crimes Act”) – 2 offences against s 66C(3) of the Crimes Act – Form 1 offences – a single victim – whether indicative sentences manifestly inadequate – whether offences committed whilst respondent was subject to an ADVO is an aggravating factor under s 21A(2)(j) of the Crimes (Sentencing and Procedure Act) 1999 (“CSP Act”) – whether Form 1 offences and aggravating factors adequately reflected in indicative sentences – whether the specification of the non-parole period in standard non-parole period offences in indicative sentences was a technicality – whether offence being committed in the garage of the victim’s home was an aggravating factor under s 21A(eb) of the CSP Act – victim impact statement – s 25AA of the CSP Act – whether heightened need for specific and general deterrence – whether aggregate sentence manifestly inadequate – whether residual discretion should not be exercised – assistance to police – assessment of moral culpability – sentence increased

Catchwords:

SENTENCING — Crown appeal against sentence — sexual and physical domestic violence offences committed against wife — assessment of the objective seriousness of choking offences contrary to s 37(1A) of the Crimes Act 1900 (NSW) — whether the sentencing judge erred in finding that the offender had good prospects of rehabilitation —whether aggregate sentence and Community Corrections Orders are manifestly inadequate sentences — error established SENTENCING — Crown appeal against sentence — admissibility of new evidence relevant to the exercise of the residual discretion and re-sentence — inadequacy of sentence so marked as to warrant intervention — seriousness of domestic violence offending — offender re-sentenced

Catchwords:

CRIME – appeal against sentence – multiple firearm offences – multiple drug offences – whether Form 1 offence erroneously treated as contributing to objective seriousness of principal offence – compatibility of ammunition to firearm – effect of mental health on burden of imprisonment – no lesser sentence warranted – appeal dismissed

Catchwords:

CIVIL PROCEDURE – registrars – review of Registrar’s decision – Court of Criminal Appeal – application to produce documents – no issue of principle

Catchwords:

SENTENCING — Appeal against sentence — co-offenders — disparity between sentences — methylamphetamine manufacture — applicant “go to man and organiser” — co-accused “cook” — sentencing judge finds stronger subjective case for applicant — indicative sentence nonetheless six months longer than indicative sentence for other offender on corresponding count — marked and unjustified disparity revealing House error — applicant re-sentenced

Catchwords:

CRIME – appeals – appeal against sentence – applicant sentenced for Commonwealth offences – where sentencing judge erred by mistaking the facts – where sentencing judge erred by applying wrong principle of law in considering family hardship – errors conceded by Crown – sentencing discretion re-exercised – no lesser sentence warranted – appeal dismissed

Catchwords:

SENTENCING — relevant factors on sentence — objective seriousness — whether sentencing judge erred in assessment of the objective seriousness — moral culpability — whether sentencing judge erred in assessment of the applicant’s moral culpability — mitigating factors — unlikely to re-offend — whether sentencing judge misstated the statutory test — where the expression was no more than a verbal infelicity

Catchwords:

CRIME — Appeals — appeal against sentence — failure to take into account a relevant consideration — whether sentencing judge failed sufficiently to take into account applicant’s disadvantaged background — misapplication of principle — mitigating factors in Crimes (Sentencing Procedure) Act 1999 (NSW) — risk of re-offending and prospects of rehabilitation — factors not raised before sentencing judge — whether sentencing judge erred in not assessing mitigating factors — manifest excess — whether aggregate sentence reflected totality of criminality — manifest excess established