Recent decisions for Court of Criminal Appeal, Criminal

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

Catchwords:

CRIME – appeals – appeal against sentence – offence of sexual intercourse without consent – domestic violence – whether the sentencing judge erred in the application of a 25% discount for the applicant’s plea of guilty – whether the sentencing judge denied the applicant procedural fairness in finding that the offending was aggravated by a breach of trust – whether the sentencing judge double counted aggravating factors of a breach of trust and the offending having occurred in the victim’s home – no point of principle – leave to appeal granted – appeal dismissed

Catchwords:

STATUTORY INTERPRETATION – Drug Misuse and Trafficking Act 1985 (NSW), s 25 – supply of a large commercial quantity of a prohibited drug – level of knowledge required to establish charge under s 25(2) CRIMINAL LAW – appeal against conviction – where applicant convicted of supply of a large commercial quantity of a prohibited drug – applicant convicted of supply of fentanyl – where applicant gave evidence of mistaken belief as to the particular prohibited drug in his possession – whether applicant had requisite mental knowledge with regard to quantity of prohibited drug CRIMINAL LAW – appeal against sentence – supply of a prohibited drug – whether sentencing judge erred in assessment of objective seriousness of offending – where sentence appeal was previously abandoned and subsequently raised without leave

Catchwords:

SENTENCING — appeal against sentence — relevant factors on sentence — Form 1 offences — whether sentencing judge impermissibly took Form 1 offence into account when assessing the objective seriousness of the principal offence — whether sentencing judge failed to make finding accepting or rejecting case advanced by the applicant — where appeal allowed — resentence — where a greater sentence ought to have been imposed than that given by the sentencing judge

Catchwords:

CRIME – Appeal – Appeal against sentence – Aggregate sentence – 35 counts including dangerous driving occasioning death, dangerous driving occasioning grievous bodily harm, actual bodily harm caused by wanton driving – Whether material error in factual findings –Whether sentence manifestly excessive – Whether notional accumulation excessive – Leave to appeal granted but appeal dismissed

Catchwords:

SENTENCING — appeal against sentence — co-offenders — disparity between sentences — whether the applicant had a justifiable sense of grievance having regard to the sentences imposed on five co-offenders — where five co-offenders received lesser sentences after the applicant was sentenced — where co-offenders sentenced by different judges — where co-offenders found guilty of different offences — whether open to applicant to impugn findings in co-offenders sentencing judgment

Catchwords:

CRIME — appeal against sentence — sentence approximates the sentence actually sought at first instance — not manifestly excessive — parity ground — less severe outcome for co-offender amply justified by differences between cases — no question of principle

Catchwords:

CRIMINAL LAW — appeal — conviction — self-represented applicant — maintaining unlawful sexual relationship with child under 16 years — challenges to conduct of prosecutor, defence counsel and trial judge — allegations of miscarriage of justice — admissibility of tendency, context and complaint evidence — alleged judicial bias — unreasonable verdict — constitutional challenge to s 66EA of the Crimes Act 1900 (NSW) CRIMINAL LAW — appeal — conduct of defence counsel — conduct of prosecutor — whether conduct caused miscarriage of justice CRIMINAL LAW — appeal — sentence — maintaining unlawful sexual relationship with child under 16 years — incompetence of counsel — alleged error in assessing number and frequency of acts — manifest excess — failure to consider particular circumstances — absence of remorse or insight

Catchwords:

CRIMINAL LAW — appeal against conviction — causing grievous bodily harm with intent to cause grievous bodily harm — alleged unreasonable verdict — substantial evidence of multiple blows to the victim’s head – admissibility of statement made immediately after assault — statement made when victim unconscious — whether capable of constituting admission — motive to inflict grievous bodily harm — s 81 Evidence Act 1995 (NSW) — extension of time — delay caused by seeking a second opinion — appeal lacking merit

Catchwords:

CRIME – Appeal – Appeal against conviction – Unreasonable verdict – Murder – Whether Crown excluded the possibility that a person other than accused inflicted at least one blow to the head of the deceased – Deference given to advantage of jury in assessing credibility and reliability of witnesses

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict – murder – joint criminal enterprise and extended joint criminal enterprise – investigated nine years later – where applicant acquitted by this Court – where High Court allowed Crown appeal and remitted for determination – admissions – where admissions central to proof of Crown case – reliability of admissions – inconsistent and against interest – litany of lies – Court invited to review recorded material – intercepted telephone calls and interviews with police – nature of advantage held by jury – whether advantage capable of resolving doubt.

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict – attempt to possess commercial quantity of heroin – whether prosecution required to exclude possibility that an associate of the applicant had attempted to possess the heroin alone – unnecessary for prosecution to exclude that possibility – verdict not unreasonable CRIME – appeals – appeal against sentence – principles in R v De Simoni (1981) 147 CLR 383 – whether sentencing judge sentenced applicant based on his “role in importation” – error established – no lesser sentence warranted

Catchwords:

CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Joint criminal enterprise and extended joint criminal enterprise — Where admissions were made by the applicant against own interests — Where admissions are inconsistent — Whether admissions sufficiently reliable to found a guilty verdict — Whether jury had a natural advantage in hearing phone intercepts and viewing police interviews CRIME — Appeals — Appeal against conviction — Unreasonable verdict — No issue of principle

Catchwords:

CRIME — Appeals — appeal against conviction — unreasonable verdict — Crown alleged exclusive possession of drugs and cash — applicant argued evidence did not establish exclusive possession — whether applicant had exclusive possession of drugs and cash

Catchwords:

CRIME – appeals – appeal against sentence – offence of wound person with intent to resist or prevent arrest – related offences on s 31 certificate – police pursuit, not stop and drive dangerously – robbery armed with offensive weapon – whether sentencing judge erred by sentencing the applicant ‘at law’ for the related offences – whether the sentencing judge erred by sentencing the applicant to a sentence that was more than jurisdictionally available – whether the sentence was manifestly excessive as a result of the asserted error – leave to appeal allowed – applicant resentenced

Catchwords:

CRIMINAL LAW — appeal against conviction — using carriage service to transmit communications with person believed to be under 16 years — misdirection as to belief element — error conceded — whether Court should direct acquittal or order re-trial — interests of justice — discretion of Director of Public Prosecutions — significance of conviction under Child Protection (Offenders Registration) Act 2000 (NSW)

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 – Appeal against sentence – whether sentencing judge erred by finding that general deterrence weighed heavily on the sentence – appeal allowed – resentence

Catchwords:

CRIME – Appeal against sentence – Sexual offences – Aggravated sexual assault – Indecent assault – Circumstances of aggravation – Victim under authority – Victim under 16 years of age – Leave granted – Appeal upheld – Applicant resentenced CRIME – Appeals – Appeal against sentence – Misapplication of principle – Whether the sentencing judge erred in an assessment of objective seriousness – Whether the characterisation given by the sentencing judge was reasonably open to him –Ground of appeal not upheld CRIME – Appeals – Appeal against sentence – Misapplication of principle – Whether the sentencing judge erred in finding that personal deterrence was a significant factor in sentencing – Whether the offender’s willingness to engage in treatment courses is conditional upon expressions of remorse and insight into offending – Error of principle – Where remorse and insight into offending found not to be a precondition for engagement in treatment courses – Grounds 2 and 3 upheld CRIME – Appeals – Appeal against sentence – Manifest excess – Unnecessary to consider in light of upholding grounds 2 and 3

Catchwords:

CRIME – appeals – appeal against conviction – supply commercial quantity of prohibited drug – 1,4-butanediol – whether guilty verdict unreasonable – whether commercial quantity of drug in possession for the purpose of supply – application of deeming provision – s 29(a) Drug Misuse and Trafficking Act 1985 (NSW) – definite and indefinite articles – nature of offence – indivisible whole – where proof of intention to use part of drug not inconsistent with possession of whole quantity for the purpose of supply – appeal dismissed

Catchwords:

CRIME – Appeal and review – Appeal from District Court to Supreme Court – Appeal against sentence – Leave to appeal granted – Appeal dismissed CRIME – Child sex offences – Child abuse material – Bestiality material – Possession of – Pleas of guilty – Imposition of an aggregate sentence CRIME – Grounds of appeal – Failure to take into account a relevant consideration – Failure to consider objective seriousness – Where an ex-tempore judgment lacks the order and precision of a reserved judgment – Principle established in Rotner v R [2011] NSWCCA 207 – Where sentencing Judge refers to the factors relevant to objective seriousness without making an explicit determination – Where assessment of objective seriousness deemed to have taken place when the sentencing judgment is read as a whole – Ground 1 not upheld CRIME – Grounds of appeal – Failure to take into account a relevant consideration – Failure to give sufficient weight to a reduction in moral culpability re Bugmy and the applicant’s mental health conditions – Error in taking applicant’s mental health conditions into account – Application of Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 – Where the applicant submitted that he was an inappropriate vehicle for general deterrence – Where no submissions were made or evidence tendered to support a link between the applicant’s mental health conditions and his offending conduct – Where consideration of Bugmy factors deemed to have taken place when the sentencing judgment is read as a whole – Ground 2 not upheld CRIME – Grounds of appeal – Manifest excess – Where it was open to the sentencing Judge to conclude that each offence needed significant individual recognition for the individual criminality displayed – Where indicative sentences displayed no error – Sentence open to sentencing Judge – Ground 3 not upheld

Catchwords:

CRIME – Appeal and review – Appeal from District Court to Supreme Court – Appeal against conviction – Miscarriage of justice – Whether unedited transcript containing prejudicial material was provided to the jury – Standard of proof – Where balance of probabilities determined to be appropriate standard of proof where the appeal is based on a finding of fact CRIME – Sexual offences – Indecent assault of a person under 16 years of age – Applicant found guilty by a jury – Aggregate sentence imposed CRIMINAL PROCEDURE – Trial – Jury – Access to transcript – Irregularities – Where unedited transcript containing prejudicial material may have been provided to the jury – Where evidence from a previous trial may have been provided to the jury in a second trial after the charges relevant to that evidence had been withdrawn – Where no practitioners in the trial have any recollection of an incorrect transcript being provided to the jury – Where the primary evidence of the applicant is an unedited transcript from the court file which was marked for identification – Where the Court unable to infer that the incorrect transcript was provided to the jury based on the evidence before it – Where practitioners were alert to the need to ensure the correctness of transcripts as a result of an error earlier in the trial – Where the primary evidence at trial was of a small number of recorded interviews – Where significant discrepancies in the transcript and recorded interview would have been alerted to the Judge – Where the recording was played whilst the jury were in possession of the transcript and no discrepancy was raised by any party in the court room at the time – Where the Court was not satisfied as a matter of fact that the jury received an inappropriate transcript – Miscarriage of justice not established – Appeal dismissed

Catchwords:

CRIMINAL PROCEDURE — costs — Costs in Criminal Cases Act 1967 (NSW) — appeal against the trial judge’s decision to award a costs certificate after finding that it was not reasonable to institute proceedings against the respondent — whether if the prosecution had evidence of all of the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings — whether the complainant was unreliable — whether complaint witnesses gave evidence that was inconsistent with the complainant’s account — whether the trial judge fell into error within the meaning of House v The King — whether a certificate should be awarded pursuant to the Suitors’ Fund Act 1951 (NSW) even if the appeal was successful

Catchwords:

CRIME — appeals — appeal against sentence — where Crown accepted that Court should proceed to resentence the applicant — where extension of time and leave to appeal granted — where appeal allowed — where Court proceeded to resentence the applicant

Catchwords:

CRIME – appeals – appeal against sentence – one count of not stopping and driving a vehicle dangerously knowing that police officers were in pursuit of the vehicle – one count of assaulting a police officer in the execution of his duty – guilty plea – where the applicant was serving the balance of parole SENTENCING – appeal against sentence – whether the sentencing judge erred in the consideration of totality and a finding of special circumstances – whether the sentence was manifestly excessive – no point of principle – leave to appeal granted – appeal dismissed

Catchwords:

CRIME – appeal – appeal against sentence – applicant convicted of murder based on joint criminal enterprise to kill as act of revenge – applicant 17 years old acting with father and brother – whether sentence was manifestly excessive – no challenge to findings made by the sentencing judge – sentencing judge had regard to all relevant factors in determining sentence including youth immaturity and father’s influence – applicant presented favourable subjective case on sentence – sentence not unreasonable or plainly unjust – leave to appeal granted – appeal dismissed

Catchwords:

APPEALS – issue of jurisdiction – leave sought to appeal against a District Court interlocutory judgment – where District Court proceedings were an appeal against a Local Court conviction – where District Court Judge dismissed application for adjournment and leave to tender fresh evidence – leave sought pursuant to s 5F(3)(a) Criminal Appeal Act 1912 – whether the Court of Criminal Appeal has jurisdiction to entertain the appeal – whether appeal should be dismissed as “incompetent” – whether a party can appeal to the Supreme Court following an appeal in the District Court from a Local Court conviction WORDS AND PHRASES – “indictment” – s 5F(1)(a) Criminal Appeal Act 1912 – whether s 5F should be read down and/or made subject to the terms of s 176 District Court Act 1973

Catchwords:

CRIME — appeals — appeal against conviction — unreasonable verdict — whether jury verdicts of guilty on two counts of sexual intercourse without consent, knowing the other person does not consent, and two counts of intentional sexual touching without consent, knowing that the victim does not consent, were unreasonable — where no reasonable doubt — where any doubt the Court may have had could readily have been resolved by the jury’s advantage in seeing and hearing the evidence CRIME — appeals — appeal against conviction — miscarriage of justice — whether miscarriage of justice occasioned by trial judge’s comment to jury in summing up that complainant confused or misled by questioning in her cross-examination — where no such miscarriage of justice occasioned and comment did not deflect jury from its fundamental task of deciding whether prosecution had proved the elements of the charged offences beyond reasonable doubt CRIME — appeals — appeal against conviction — miscarriage of justice — whether miscarriage of justice occasioned by trial judge’s direction to jury to decide element of knowledge by considering what applicant’s state of mind would have been if he had not been intoxicated — where no complaint made at trial about trial judge’s direction to jury in this regard — where leave therefore required under r 4.15 of Supreme Court (Criminal Appeal) Rules 2021 — where jury not deflected from its fundamental task and no such miscarriage of justice occasioned — where leave therefore refused under r 4.15 to raise ground

Catchwords:

CRIME – appeals – appeal against sentence – attempt sexual intercourse without consent – alleged material error of fact – leave to appeal against sentence refused – no point of principle

Catchwords:

CRIME – appeals – appeal against sentence – Commonwealth offences of attempting to cause a person under the age of 18 to enter into a forced marriage SENTENCING – appeal against sentence – whether there was evidence of the applicant’s conduct as an accepted cultural practice in the sentence proceedings – whether s 16A(2A) of the Crimes Act 1914 (Cth) precluded a finding of reduced moral culpability because of a cultural practice SENTENCING – appeal against sentence – consistency in sentencing federal offenders – whether this Court should follow decisions of intermediate appellate courts in other States and Territories – leave to appeal granted – appeal dismissed

Catchwords:

CRIME – application for request to sheriff for investigation of potential juror impropriety pursuant to s 73A of Jury Act 1977 (NSW) – application dismissed by judge – whether application could be renewed in appellate court on same basis – where judge who presided over trial had already investigated the matter – where previous investigation took place 18 months ago in immediate aftermath of incident – where previous investigation obtained evidence on oath – prospects of second investigation resulting in different evidence speculative – application refused JURISDICTION – nature of decision by Supreme Court judge to refuse application for request for sheriff to conduct investigation – nature of purported appeal from refusal of such application – availability of appeal under s 5F or s 22 of Criminal Appeal Act 1912 (NSW) – whether right of appeal under s 101 of Supreme Court Act 1970 (NSW) excluded by s 17 – whether decision judicial or administrative – whether decision amenable to judicial review

Catchwords:

CRIMINAL LAW – appeal – appeal against conviction – where the applicant was found guilty of murder by a jury – whether the verdict was unreasonable – where the Crown case was circumstantial – whether the circumstances of the Crown case were adequate to prove the applicant’s presence at the scene of the murder CRIMINAL LAW – appeal – appeal against conviction – surveillance device material – where parts of the recorded conversation were unclear – whether the recorded conversation contained admissions – whether the surveillance device material was relevant – whether admission of the recorded conversations by the trial judge was unfairly prejudicial to the accused CRIMINAL LAW – appeal – appeal against conviction – surveillance device material – whether the jury was properly directed as to the manner in which the surveillance device material could be used – whether the jury was directed in accordance with Shepherd v The Queen and Burns v The Queen CRIMINAL LAW – appeal – appeal against conviction – fresh evidence – where it cannot be said that the evidence was not available to the applicant in the preparation of his case – where the evidence did not give rise to doubt about the applicant’s guilt – leave to appeal granted – appeal dismissed

Catchwords:

CRIMINAL LAW –– appeal against conviction –– indecent assault of a child under 16 –– appellant convicted of two counts and acquitted of one count ––verdict unreasonable –– whether trial judge misapprehended elements of the offence to be proved ––whether the trial judge afforded the applicant procedural fairness–– whether context evidence properly admitted –– whether an Edwards lie submission was open to the Crown CRIMINAL LAW –– sentence appeal ––question of utility of sentence appeal where full sentence has been served and parole period expired –– where objection taken to registration as a child sex offender

Catchwords:

CRIMINAL LAW — appeal against sentence — sexual offences against child — whether sentencing judge failed to take into account limited criminal history as mitigating factor — whether sentencing judge failed to properly consider prospects of rehabilitation — whether aggregate sentence manifestly excessive — approach to weighing prior good character and limited record — relevance of Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 — assessment of rehabilitation where offender maintains denial — value of comparisons with other sentences — Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Catchwords:

CRIME — appeals — appeal against conviction — indictment containing 12 counts — offences of intimidation, assault, choking and sexual assault — whether the jury’s verdicts in relation to specific counts on the indictment were unreasonable and inconsistent — whether the amendment of one count on the indictment during the trial caused unfair prejudice to the applicant CRIME — appeals — appeal against conviction — admissibility of phone recordings between the applicant and the complainant — where the phone recordings were not objected to by counsel at the trial — where the trial judge was not asked to exclude the phone recordings — where an anti-tendency direction was given by the trial judge CRIME — appeals — appeal against conviction — whether a miscarriage of justice was occasioned by the Crown Prosecutor’s closing address CRIME — appeals — appeal against conviction — offences of aggravated sexual assault — where the applicant was convicted on the principal counts — whether the trial judge erred by leaving to the jury statutory alternative verdicts CRIME — appeals — appeal against sentence — manifest excess — where the sentence imposed was not unreasonable, plainly unjust or outside the range of sentences available to the sentencing judge — where the applicant was self-represented during the appeal hearing — appeal brought out of time — extension granted — leave refused on two grounds — leave granted on five grounds — appeals against conviction and sentence dismissed

Catchwords:

CRIME – appeal – appeal against conviction – aggravated indecent assault – aggravated incite act of indecency – where complainant is the biological daughter of the applicant – where the applicant was convicted of three sexual offences – where the jury could not reach a verdict on remaining nine counts – where the applicant was acquitted of the nine counts at a second trial – unreasonable verdicts – whether it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty – where the complainant was mistaken as to sequence of events CRIME – appeal – appeal against conviction – inconsistent verdicts – whether the verdicts of guilty are inconsistent with the jury’s failure to reach a verdict with respect to the remaining counts in the first trial, and with the applicant’s acquittals at the second trial – obligation of the jury to treat all counts separately – where evidence of the applicant in his electronically recorded interview was not significantly dissimilar to the complainant’s description of incidents CRIME – appeal – appeal against conviction – fresh evidence – whether the evidence of a witness was ‘fresh’ – where it cannot be said that the evidence was not available to the applicant in preparation of his case

Catchwords:

CRIME — appeals — appeal against conviction —inconsistent verdicts — where applicant tried jointly with co-accused — where Crown alleged joint criminal enterprise — whether verdict of not guilty for co-accused inconsistent with guilty verdict for applicant — whether Crown case was “all or nothing” as between both accused — whether trial judge required to direct jury to render same verdict for both accused — no inconsistency — no requirement to give jury direction CRIME — appeals — appeal against sentence — manifest excess — whether comparison between indicative sentences and aggregate sentence reflected a latent misapplication of totality principle — where offences involved multiple victims — where different injuries captured by separate offences — error not established

Catchwords:

CRIMINAL LAW – application for leave to appeal against sentence – massive tax fraud – money laundering – multiple offenders involved in a sophisticated conspiracy – where applicant entered an early plea of guilty – [redacted] – [redacted] – application of parity principle – whether applicant left with justifiable sense of grievance – impact of sentence on family members – where sentencing judge applied law as it existed – where later decision changed approach in commonwealth sentencing – error conceded – re-sentencing – where no lesser sentence warranted CRIMINAL APPEALS – where applicant raised submission on appeal different to submission made on sentence – whether “leave” required to raise different argument on appeal

Catchwords:

CRIME – appeals – appeal against conviction – inconsistent verdicts – logical and reasonable explanation for jury’s verdicts of not guilty – verdicts not inconsistent so as to be unreasonable

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 — related offences dealt with by the District Court under s 166 of the Criminal Procedure Act 1986 (NSW) — whether an offence arises from substantially the same circumstances as those from which the first indictable offence has arisen — no “bright line” — appeal dismissed

Catchwords:

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

Catchwords:

CRIME — Appeals — Appeal against conviction — Appeals where prior acquittal purportedly controverted by witness evidence at trial — where no objection or direction sought at trial — leave required to rely on matters not objected to at trial EVIDENCE — purported improper admission of evidence — whether evidence was correctly admitted

Catchwords:

CRIMINAL PROCEDURE — intensive correction order for federal offender in NSW – Application of Crimes Act 1914 (Cth) STATUTORY CONSTRUCTION — whether in considering making intensive correction order for federal offender in NSW a court is required to apply s 16A of Crimes Act 1914 (Cth) or s 66 Crimes (Sentencing Procedure) Act 1999 (NSW) SENTENCE — gravity of offending — no lesser sentence warranted

Catchwords:

CRIME – appeals – appeal against sentence – Commonwealth offence of transmitting child abuse material using a carriage service – State offence of possession of child abuse material – whether the sentencing judge erred in the assessment of objective seriousness of offending – whether the applicant’s motivation for the offending increased the objective seriousness – whether the sentencing judge erred by not considering the causative role of the applicant’s mental health in his motivation to offend – whether the sentence imposed is manifestly excessive – leave to appeal granted – appeal dismissed

Catchwords:

CRIMINAL LAW — appeal against conviction — good character evidence — whether trial judge erred in failing to direct jury that applicant’s good character could be used in assessing credibility — whether omission to direct caused miscarriage of trial — offences against young child — appeal dismissed

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:

SENTENCING — appeal against sentence — delay — whether an extension of time to file Notice of Appeal should be given — subjective considerations on sentence — mental illness — whether submissions concerning the offender’s mental illness were raised before the sentencing judge

Catchwords:

CRIME – Appeals – Appeal against conviction – Appeal out of time – Irregularities in jury deliberations – Where alleged bullying and harassment in jury room – Where unauthorised communications between court and sheriff’s officers and jury – Where sheriff’s officers interviewed juror privately and prepared report on irregularities in jury room without knowledge of parties – Application for discharge of jury refused by trial judge – Whether unauthorised communications with jury were a fundamental or material irregularity amounting to a miscarriage of justice – Whether proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) applies – Whether there was a denial of procedural fairness occasioning miscarriage of justice – Whether practical injustice occasioned

Catchwords:

CRIMINAL LAW – appeals – appeals against sentence – manifest excess – indecent assault of a child – no challenge to the sentencing judge’s findings – where the applicant was on parole for like offending at the time of the offence – where the applicant has extensive record of child sex offences – where the applicant voluntarily takes anti-libidinal medication – where the applicant was abused as a child – where the applicant has shown remorse

Catchwords:

CRIME – meaning of the phrase “mental illness within the civil law of the State or Territory” in s 20BQ of the Crimes Act 1914 (Cth) – whether this is to be determined with reference only to the definition of "mental illness" in s 4 of the Mental Health Act 2007 (NSW)

Catchwords:

CRIME – appeals – appeals against conviction – extended unanimity directions – conspiracy to commit an act in preparation for, or planning, a terrorist act or acts - whether an extended unanimity direction required as to terrorist act or acts prepared for or planned – preparing for, or planning, a specific terrorist act not an “essential ingredient” of offence of conspiracy to commit an act in preparation for, or planning, a terrorist act or acts – where only issue at trial was whether the applicant was a party to a conspiracy to do acts in preparation for, or planning, a terrorist act or acts which was admitted to exist between other parties – extended unanimity direction as to a particular terrorist act prepared for, or planned, not required in the circumstances CRIME – appeals – appeals against conviction – lies as consciousness of guilt – whether asserted lies were material and explicable only on the basis that the truth would implicate the applicant – whether jury would employ circular reasoning in their consideration of the asserted lies – no risk of the jury employing circular reasoning – in light of other evidence it was open to the jury to conclude the lies were material and explicable only on the basis that the truth would implicate the applicant

Catchwords:

CRIMINAL LAW — appeal — conviction — tendency evidence — whether trial judge misdirected jury on tendency reasoning — whether trial judge erred in directing jury to be satisfied of conduct before inferring tendency — adequacy of directions on onus and standard of proof — whether directions diverted jury from task of determining whether Crown proved each element beyond reasonable doubt CRIMINAL LAW — appeal — sentence — error of fact — whether miscarriage of sentencing discretion — manifest excess — offences against young child within family home — betrayal of trust — escalating sexual abuse — no remorse or insight

Catchwords:

CRIME – appeals – appeals against conviction – miscarriage of justice – manslaughter – second-hand hearsay evidence of an admission – where no objection taken to admissibility – where no direction limiting use sought by defence counsel – whether to grant leave under Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15 – where evidence highly prejudicial to defendant – where no rational forensic explanation for lack of objection – material irregularity – miscarriage of justice established CRIME – appeals – appeals against conviction – application of proviso – defence at trial not glaringly improbable – substantial miscarriage of justice occurred – proviso not engaged

Catchwords:

CRIME — appeals — appeal against conviction — unreasonable verdict — whether jury’s verdicts of guilty for six counts of sexual intercourse without consent were unreasonable and could not be supported having regard to the evidence — where no reasonable doubt as to applicant’s guilt — where it was open to jury to be satisfied that applicant was guilty beyond reasonable doubt of each of the six offences with which he was charged — where leave to appeal granted but appeal dismissed

Catchwords:

CRIME — Appeals — Appeal against conviction — Crimes Act 1900 (NSW), s 66EA —International Covenant on Civil and Political Rights not enacted in domestic law CRIME — Appeals — Appeal against conviction — Standard of proof under s 66EA CRIME — Appeals — Appeal against conviction — Whether applicants suffered forensic disadvantage — Whether police officer failed to properly investigate case — Whether Office of the Director of Public Prosecutions improperly delayed charging applicants — Whether sentencing judge’s findings inconsistent with verdicts of guilty CRIME — Appeals — Appeal against conviction — Irregularity at trial — Where Crown Prosecutor’s disclosure incomplete — Whether irregularity material CRIME — Appeals — Appeal against conviction — Where inappropriate remarks in Crown Prosecutor’s address — Where trial judge refused application to discharge jury — Whether prejudice occasioned by remarks material CRIME — Appeals — Appeals against sentence — Unlawful sexual relationship with child — Six grounds of appeal — Whether the trial judge was required to ask the jury which acts they found proved — Whether trial judge was obligated to sentence the applicants on a basis most favourable to them — Whether trial judge added extra charges — Manifest excess — Applicability of the ICCPR under Australian law — Reliance on events which post-date sentence — Appeal brought out of time — Extension granted — Leave granted on one ground — Appeal dismissed

Catchwords:

CRIME – appeals – appeal against conviction – irregularity in criminal trial – materiality – miscarriage of justice – where criminal record of appellant’s accountant was sought to be tendered but not admitted – no irregularity disclosed – any irregularity was not material – no miscarriage of justice CRIME – appeals – appeal against conviction – materiality – where trial judge upheld an objection to questioning of a Federal Agent which called for speculation – no error disclosed

Catchwords:

CRIME — Appeals — Appeal against sentence — Recklessly inflicting grievous bodily harm — Whether failure to take into account mitigatory factors that offence was not planned and provocation — Whether sentencing judge erred in sentencing applicant for all injuries caused to victim in circumstances where applicant initially acted in lawful self-defence

Catchwords:

SENTENCING—Appeal against sentence—Erroneous incorporation of reduction for past cooperation within utilitarian discount for early plea—Failure to consider contrition—Re-sentencing exercise undertaken—Appeal dismissed

Catchwords:

CRIME – appeals – appeal and application for leave to appeal – notice of appeal filed out of time – where a proposed ground of appeal raises a constitutional issue so as to attract the operation of s 78B of the Judiciary Act 1903 (Cth) – prior to leave being granted to make appeal or application for leave to appeal no “cause pending” – whether appropriate to deal with application for extension of time for appeal before hearing the substantive appeal where s 78B notices would be required – appropriate to hear application for leave to make the appeal out of time before hearing the appeal CRIME – appeals – appeal and application for leave to appeal – notice of appeal filed out of time – release application under s 49 of the Bail Act 2013 (NSW) – proposed conviction and sentence appeal – no “proceedings…pending” before the Court – no jurisdiction to hear application before leave to appeal out of time granted – appropriate to hear application for leave to make the appeal out of time before hearing the release application CRIME – appeals – appeal and application for leave to appeal – notice of appeal filed out of time – where there is satisfactory explanation for delay – where proposed grounds of appeal sufficiently arguable – no relevant prejudice to proposed respondent if leave to appeal granted – where leave to appeal is in the interests of justice – application to make appeal and leave for appeal out of time granted

Catchwords:

CRIMINAL LAW – bail on appeal – relevant considerations – where sentence will not expire for many years – difficulties in evaluating prospects of success on appeal – constitutional challenge to offence creating provision – where some submissions unlikely to succeed – where applicant “model bailee” prior to conviction – whether special or exceptional circumstances established

Catchwords:

APPEALS — Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), r 101(e) — Where barrister called to give evidence by opponent at first instance — Where barrister proposed appearing on leave to appeal applications — Whether r 101(e) applies — Whether barrister should be heard on applications

Catchwords:

CRIME – appeals – appeal against sentence – application of R v Henry guideline judgment – whether subjective factors were relied on in the determination of objective seriousness – finding that applicant did not accept responsibility for harm to victim- whether finding of remorse should have been made – parity where no joint criminal enterprise – manifest excess – where judgment delivered ex tempore – appeal brought out of time – extension granted – ground 1 upheld – no lesser sentence warranted – appeal dismissed

Catchwords:

CRIMES – appeals – admissibility of evidence related to sexual experience – whether exclusion of evidence relating to child’s sexual experience resulted in a miscarriage of justice CRIMES – appeals – leave to appeal – where evidentiary ruling applicant says should have been given was not sought before the trial judge – where leave to appeal required pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) – where decision at trial was an objectively rational decision – leave to appeal refused

Catchwords:

CRIME – appeals – appeal against sentence – driving offences – whether the sentencing judge erred in setting the commencement date of the sentence by failing to give effect to stated intention regarding totality – no question of principle – appeal upheld – applicant re-sentenced

Catchwords:

CRIME – appeals – appeal against sentence – supply large commercial quantity of prohibited drug – manifest excess – comparative cases – appeal dismissed

Catchwords:

CRIMINAL APPEAL – mixed verdicts – applicant alleged to have sexually assaulted his step-daughter on numerous occasions over a number of years at different locations – where jury returned guilty verdicts on the first three counts, not guilty on four later counts and unable to agree on four other counts – whether verdicts factually inconsistent – test of logic and reasonableness – whether verdicts unreasonable or unable to be supported – relevance of jury being unable to agree – fact specific inquiry – where potent evidence in the form of complaint concerning general allegation of sexual misconduct – where such evidence did not relate to a specific count – whether open to the jury to reach guilty verdicts on some counts but not others – evidence of good character and denials – conflict in evidence of opportunity – whether jury ought to have entertained a doubt – advantages of jury in circumstances of the case manifest and substantial CRIMINAL LAW – directions to jury – “Markuleski” direction – where direction focused on reliability rather than truthfulness – where jury not directed that it was difficult to see how different verdicts could be returned on different counts – where no objection taken to direction at trial – where issues clear – while “full” direction preferable counsel satisfied direction sufficient – leave to appeal refused but absence of direction taken into account in considering ground asserting inconsistent verdicts

Catchwords:

CRIME – appeals – appeal against sentence – Commonwealth child abuse material offences – State offences of common assault, sexual touching and possessing child abuse material – whether the sentencing judge erred in his findings as to the degree of deception practiced by the applicant in his offending and his use of insights gained from his teaching career – whether the aggregate sentence in respect of the Commonwealth offences was manifestly excessive – whether the overall effective sentence was manifestly excessive as a result of the asserted errors – leave to appeal granted – appeal dismissed

Catchwords:

CRIME – sentencing – appeal against sentence – manifest excess – manslaughter – fight between two young persons where applicant brought a knife – unlawful and dangerous act – appeal dismissed

Catchwords:

CRIME – appeals – appeal against conviction – murder – where applicant fired 226 cartridges – whether adequate directions given to the jury on the standard of proof for partial defence of substantial impairment – standard of proof – where asserted failure by the judge to explain the meaning of balance of probabilities to the jury in relation to partial defence of substantial impairment – where jury directed on the full defence of mental illness – balance of probabilities – where jury directed balance of probabilities means more likely than not – where directions not given in the terms of R v Porter or the Criminal Trial Courts Bench Book – where no objection taken at trial to the directions given – where jury did not request clarification on the meaning of balance of probabilities – whether miscarriage of justice CRIME – appeals – appeal against conviction – summing up – whether adequate summing up of the defence case – whether summing up when read as a whole is fair, balanced and impartial CRIME – appeals – appeal against sentence – whether the judge erred in assessment of objective seriousness – whether sentence is manifestly excessive – whether the judge gave insufficient weight to the applicant’s subjective factors CRIME – appeals – appeal against sentence – whether the judge failed to give meaningful effect to finding of special circumstances – where modest reduction in variation to statutory ratio – whether degree of adjustment within sentencing discretion

Catchwords:

CRIME — Appeals — Appeal against sentence — Where applicant convicted of Commonwealth offences relating to child abuse material — Whether sentencing judge has acted on a wrong principle with respect to the applicant’s mental health and its connection to the offending behaviour — De La Rosa principles

Catchwords:

CRIME — appeals — appeal against sentence — intentionally causing grievous bodily harm to 10-week-old daughter — life threatening injuries — whether sentencing judge erred by failing to consider whether a finding of reduced moral culpability meant the applicant was a suitable vehicle for general deterrence — approach to application of Bugmy principles — sentencing person with a profoundly deprived childhood for a very serious violent offence SENTENCING — re-sentencing on appeal — objective seriousness and moral culpability separate but related concepts — departing from findings of sentencing judge — where the Court will not impose a more severe sentence — instinctive synthesis — appeal dismissed

Catchwords:

APPEALS – appeal pursuant to Court Suppression and Non-publication Orders Act 2010 (NSW), s 14 – where an application for non-publication and take-down orders refused – an appeal pursuant to s 14 of the CSNPO Act is a hearing de novo – whether the order is necessary to prevent prejudice to the administration of justice in the applicant’s upcoming trials – where the evidence naming the applicant in the current trial is limited – weighing principles of open justice and ensuring fairness in the applicant’s forthcoming trials – substantial and long-standing reporting on the Alameddine and Hamze OCNs – where the making of non-publication and take-down orders would be futile – leave to appeal granted – appeal dismissed

Catchwords:

CRIME – appeals – appeal against convictions – knowingly taking part in supply of a prohibited drug – large commercial quantities of methylamphetamine found on premises jointly leased by applicant and her husband – jury directions – directions sought as to (i) applicant’s power as joint tenant to prevent the storage of drugs on premises by co-tenant and (ii) inability of applicant to prevent storage of drugs on premises by husband – directions inappropriate where prosecution case based on knowing and willing participation by applicant WORDS AND PHRASES – “take part in” – “permit”

Catchwords:

CRIME – appeals – appeal against sentence – sexual intercourse without consent – where the offending occurred in a domestic violence context and contrary to an ADVO – whether the sentencing judge erred in failing to take into account the applicant’s mental health – whether the sentence is manifestly excessive – appeal dismissed

Catchwords:

CRIME – appeals – appeal against sentence – offences of shoot with intent to murder – whether the sentencing judge misapplied the principle of totality in fixing the aggregate sentence – whether the aggregate sentence was manifestly excessive as a result of the asserted error – leave to appeal granted – appeal allowed – applicant resentenced

Catchwords:

CRIME – Conviction appeal – Specially aggravated break and enter dwelling house and commit a serious indictable offence (intimidation, armed with a dangerous weapon) – Fire firearm in a manner likely to endanger the safety of other persons – Possess firearm, not being authorised by licence or permit – Whether guilty verdict unreasonable and not supported by the evidence

Catchwords:

CRIME — Sentencing — Crown appeal against sentence — Manifest inadequacy — Domestic violence — Where offender convicted of murder — Sentence of imprisonment of 22 years and 6 months, with a non-parole period of 15 years and 6 months following a 10% discount applied for guilty plea — Where offender’s moral culpability diminished by mental health issues and significant deprivation in childhood — Reference to comparable cases — Appeal dismissed

Catchwords:

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

Catchwords:

CRIMINAL LAW – Appeal – Appeal against conviction – Where applicant was convicted of offences under Commonwealth Criminal Code of attempting to import border controlled drugs – Circumstantial case – Fault elements – Inference of intent – Intention to import – Whether trial judge misdirected the jury as to the required state of mind of the applicant – Whether verdict unreasonable

Catchwords:

CRIME – appeals – appeal against sentence – aggravated sexual intercourse without consent – applicant 15 years and 11 months old at the time of offending – where grounds of appeal assert that insufficient weight was given to youth, mental health and background – reduced moral culpability as a result of mental health and disadvantaged background – where good prospects of rehabilitation – efficacy of labels such as “adult like conduct” – whether the sentence is manifestly excessive – appeal dismissed

Catchwords:

CRIME — Appeals — Appeal against sentence — Where applicant member of organised criminal group — Where applicant spent unusually long period on remand — Where imposition of two discrete aggregate sentences rather than one overall aggregate sentence — Whether sentencing judge failed to take into account certain periods of applicant’s remand period

Catchwords:

CRIMES – appeals – appeal against conviction – trial not according to law – majority verdict – failure to examine juror under oath on the likelihood of reaching a unanimous verdict pursuant to s 55F(2)(b) Jury Act 1977 (NSW) – appeal allowed

Catchwords:

COSTS — Suitors’ Fund Act 1951 (NSW), s 6 — Where Crown brought appeal pursuant to Criminal Appeal Act 1912 (NSW), s 5F(3A) — Whether respondent contributed to circumstance in which he was required to meet expense of appeal — Where respondent defending trial proceedings while preparing to appear on appeal — Application refused

Catchwords:

CRIME — appeal against conviction — jury returned guilty verdict of sexual intercourse with child under the age of 10 contrary to Crimes Act 1900 (NSW), s 66A — whether verdict unreasonable — whether trial judge erred in not giving “full” character direction — whether failure to seek full character direction a deliberate forensic decision reflecting agreement that if applicant’s character evidence limited to absence of criminal convictions, no character evidence in reply would be presented — whether other errors in directions to jury — appeal dismissed CRIME — appeal against sentence — whether sentence manifestly excessive — appeal dismissed

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict – where applicant found guilty of one count of intentionally sexually touching a child under the age of 10 years – whether reasonable possibility complainant’s evidence was a result of a hallucination

Catchwords:

CRIMINAL APPEALS – appeal against sentence – fact finding – importation of marketable quantity of cocaine – “rolled up” charge involving three consignments – where co-offender disposes of one consignment – threat to kill co-offender – act to influence witness – whether Judge erred in calculating quantity of missing consignment – where offender referred to quantity in intercepted call – no evidence of purity of drug – where offender referred to “pure coke” – whether Judge made finding of exact quantity – whether error (if established) material – whether safe to act on offender’s disclosures – whether sentence manifestly excessive

Catchwords:

CRIME – appeals – appeal against sentence – Form 1 matters – where sentencing judge indicated a starting point for Count 1 before taking into account the Form 1 offences – whether an error in this approach CRIME – appeals – appeal against sentence – where the sentencing judge failed to make findings in respect of the applicant’s remorse and prospects of rehabilitation – where evidence adduced in support of remorse and rehabilitation – where competing submissions made about mitigating factors – where the differences required “clear and transparent resolution” – appeal allowed

Catchwords:

CRIMINAL APPEAL – remittal from High Court – High Court set aside some but not all of appellant’s convictions – appellant given aggregate sentence – remittal to Court of Criminal Appeal to consider resentence or remittal to District Court – matter remitted to District Court – no question of principle

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:

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:

CRIME – appeals – appeal against sentence – denial of procedural fairness – finding of aggravating factor not raised at sentencing hearing – finding not inevitable – applicant deprived of the opportunity to make submissions – miscarriage of justice SENTENCING – aggravating factor – substantial harm, injury, loss or damage – difference between significant and substantial harm – whether incorrect test applied SENTENCING – appeal against sentence – severity – whether sentence manifestly excessive – aggravating factor – substantial harm, injury, loss or damage – victim impact statement as evidence of harm – substantial harm established – no lesser sentence warranted in law – adjustment of commencement date of sentence

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict – trial by judge alone – historical sexual offending – where complainants’ evidence at trial and in police statements regarding timing of alleged offending inconsistent with objective circumstances – where Crown amended time period of alleged offending in indictment prior to trial to account for alibi – where complainants’ evidence regarding timing of alleged offending inconsistent with amended indictment – whether open to trial judge to be satisfied of guilt beyond reasonable doubt notwithstanding complainants’ mistakes as to timing – verdict not unreasonable

Catchwords:

CRIME – appeals – appeal against convictions – whether a miscarriage of justice arose in the trial – bases upon which knowledge of absence of consent left to jury – whether the Crown advocate’s misstatement amounted to a miscarriage of justice – whether the judicial direction to the jury regarding knowledge of lack of consent resulted in a miscarriage of justice – miscarriage of justice established – mixed verdicts – whether the guilty verdicts were inconsistent with the not guilty verdicts – guilty verdicts not unreasonable – extension of time and leave to appeal granted – appeal allowed – convictions and sentence quashed – re-trial ordered

Catchwords:

CRIME – SENTENCE – appeal against sentence - dishonestly obtaining a financial advantage by deception – services Australia – relief payments - failure to place evidence before the court relevant to the applicant’s subjective circumstances – where sentencing judge only has a sentencing assessment report before them – where new material goes to the applicant’s attempt to seek rehabilitation – background of disadvantage – Bugmy principles – sentence quashed – resentence - Recognizance Release Order

Catchwords:

CRIMINAL LAW – sentencing – manslaughter – horrendous killing of mother – decapitation – substantially impaired offender – complex neurological and mental impairments – relationship between moral culpability and objective seriousness – spontaneous offence – loss of self-control – protection of the community – purposes of punishment – whether error in assessment of objective gravity CRIMINAL LAW – sentencing – facilitation of the course of justice – distinction from statutory discount for utilitarian value of guilty plea – where statutory system prescriptive and unfair – facilitation discount not to fill gaps – whether error in approach taken by sentencing judge

Catchwords:

BAIL – release application – murder – where conviction quashed by Court of Criminal Appeal – unreasonable verdict – Director’s appeal to High Court allowed – matter remitted to Court of Criminal Appeal for determination according to law – offence for which an appeal is pending in Court of Criminal Appeal – whether special or exceptional circumstances exist that justify a decision to grant bail – consideration of the relative strength of the ground of appeal – whether the appeal has reasonable prospects of success – whether the appeal is reasonably arguable – whether bail concerns are capable of amelioration by imposition of conditions

Catchwords:

CRIME – appeals – appeal against sentence – fraud offences – where the sentencing judge erred in finding that there was no evidence of the quantum of the debt the applicant intended to extinguish by committing the offences – whether the error was material – whether the error had the capacity to affect the sentencing exercise – whether the sentencing judge may have taken a more adverse view of the applicant’s offending as a result of the factual error – appeal allowed – applicant resentenced SENTENCING – where the applicant is to be sentenced for overlapping offences of dealing with the proceeds of his own crime – principles of accumulation and concurrency

Catchwords:

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

Catchwords:

CRIME – Appeals – Crown appeal against sentence – Commonwealth offences of importing and trafficking controlled drugs – State offence of supplying prohibited drugs – matters placed on schedules – whether aggregate Commonwealth sentence was manifestly inadequate – whether sentence for State offence was manifestly inadequate – whether effective total sentence was manifestly inadequate – whether the sentencing judge erred in making a factual finding as to hierarchy – residual discretion not exercised – re-sentence

Catchwords:

CRIME — appeals — appeal against sentence — allegation of error in assessment of offender’s subjective case — allegation of manifest excess — error in determination of indicative sentence — aggregate sentence not unreasonable or plainly unjust

Catchwords:

SENTENCING – Crown appeal against sentence – where offender deployed taser in course of responsibilities as police officer – where offender convicted of manslaughter – non-custodial sentence for manslaughter conviction – whether sentence manifestly inadequate – whether sentence imposed unreasonable or plainly unjust – where a number of grounds raised, on proper analysis, went only to weight given to role of general deterrence and assessment of objective seriousness – strong subjective circumstances – honest error of judgement – no ongoing risk posed to the community – no malice – extra-curial punishment – loss of employment – inability to continue to reside in local community – sentence lenient but not manifestly inadequate – where no relevant error in sentencing disclosed SENTENCING – Crown appeal against sentence – Court of Criminal Appeal’s discretion to intervene – s 5D(1) of the Criminal Appeal Act 1912 (NSW) – residual discretion – purposes of Crown appeals against sentence – unusual circumstances of offending – inapt vehicle for laying down general principles – inapt vehicle for ensuring consistency in sentencing – where offender’s health deteriorated since sentence – where offender already undertaken not insubstantial part of sentence imposed – residual discretion not exercised in favour of Crown

Catchwords:

CRIME – Appeals – Appeal against sentence – Assistance to authorities – Whether sentencing judge failed to take into account the applicant’s disclosure to the police immediately after the subject offence as evidence of assistance to authorities and as evidence of remorse – Discount under s 23 Crimes Sentencing Procedure Act 1999 (NSW) – Appeal allowed – Applicant resentenced

Catchwords:

CRIME – appeals – costs – interlocutory appeal – appeal against granting of costs certificate to defendant under s 2 of the Costs in Criminal Cases Act 1967 (NSW) – construction of “before the proceedings were instituted” in s 3(1)(a) of that Act – institution of proceedings referred to is limited to the institution of proceedings by filing of a court attendance notice or other permitted means of setting the criminal justice process in motion and does not include steps in proceedings such as committal for trial or commencement of trial STATUTORY INTERPRETATION – construction of “before the proceedings were instituted” in s 3(1)(a) of the Costs in Criminal Cases Act 1967 (NSW) – institution of proceedings referred to is limited to the institution of proceedings by filing of a court attendance notice or other permitted means of setting the criminal justice process in motion and does not include steps in proceedings such as committal for trial or commencement of trial

Catchwords:

CRIMINAL PROCEDURE — Evidence Act 1995 (NSW), s 137 — Where trial judge excluded recognition evidence — Where evidence had high probative value — Whether respondent would have to adduce unfairly prejudicial evidence to challenge recognition evidence — Whether directions to the jury would be sufficient to cure prejudice — Appeal allowed

Catchwords:

EVIDENCE – tendency evidence – exclusion of tendency evidence – where Crown served tendency notice shortly before trial – trial judge held that reasonable notice had been provided for the purposes of s 97(1)(a) of the Evidence Act – where late service caused no prejudice or unfairness to the accused – reasonable notice was provided CRIME – appeals – appeal against sentence – manifest excess – child sexual assault offences – where indicative sentences are said to be manifestly excessive – neither the indicative sentences nor the aggregate sentence manifestly excessive

Catchwords:

CRIME – appeals – appeal against sentence – supply not less than the commercial quantity of methylamphetamine – deal with proceeds of crime – Form 1 offences – allow premises to be used as drug premises – supply methylenedioxymethamphetamine – advanced age – whether failure to take into account utilitarian discount – whether error in including “the presence of children” as aggravating factor – whether failure to include remorse and age as mitigating factors – whether sentence manifestly excessive – s 25D(2)(a) Crimes (Sentencing Procedure) Act not applied – s 25F(7) Crimes (Sentencing Procedure) Act not complied with – failure to take into account applicant’s remorse – leave to appeal granted – appeal allowed – sentence quashed – resentence

Catchwords:

CRIME — appeals — appeal against conviction — Liberato direction — application of proviso — trial judge made reference in summing up to competing evidence — appeal by co-accused upheld on the basis of failure to give Liberato direction — majority in co-accused’s appeal declined to apply the proviso — whether earlier appeal decision should be followed in relation to the Liberato direction and the proviso on the basis of the principle outlined in Kwu v R [2024] NSWCCA 199 — whether any evidence only applicable against applicant constitutes material distinction between applicant and co-accused’s case CRIME — appeal against conviction — extension of time in which to appeal — co-accused’s appeals not heard jointly — delays in preparing appeal — unnecessary judgments of the court — wastage of resources

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

CRIME – Appeals – Appeal against conviction – Incompetence of counsel – Where applicant charged with single count of sexual intercourse without consent – Where sole issue in trial was whether the sexual intercourse was consensual – Where applicant’s trial counsel consented to the admission of inadmissible evidence contained within the body worn videos of police and ERISP – Unfair prejudice to the applicant through admission of evidence contained in body worn video established – Slight forensic advantage to the applicant outweighed by significant forensic disadvantage – Miscarriage of justice established – Conviction and sentence quashed

Catchwords:

CRIME — Appeals — Appeal against conviction — Liberato direction — following altercation between two groups of men in two vehicles, one man was killed by a shotgun discharged by a man in the other vehicle — man who discharged shotgun gave evidence that shot was accidental — other aspects of his evidence implausible or incorrect — trial judge made reference in summing up to competing evidence — joint application for Liberato direction refused by trial judge — whether error in failing to give direction — whether proviso applicable

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict – where applicant found guilty of murder as an accessory before the fact – whether it was open to the jury to be satisfied of the guilt of the applicant beyond reasonable doubt on all the evidence – circumstantial Crown case – where the appeals of the co-accused have been allowed – whether certain inferences can be drawn from communications between the applicant and the co-accused where evidence of the content of those communications is unavailable or limited – whether other reasonable possibilities remain available – whether the applicant ‘procured’ the assault to cause really serious injury to the deceased – leave to appeal granted – appeal allowed – verdict quashed – applicant acquitted

Catchwords:

APPEALS — appeal against interlocutory judgment — 7 counts on indictment — counts 1-4 (sexual offences against the complainant) relate to one accused — count 5 (offence of violence against the complainant) relates to both accused — counts 6-7 (one sexual offence and one offence of violence) relate to the other accused — refusal by primary judge to sever indictment — whether House v The King error — Criminal Appeal Act 1912 (NSW), s 5F APPEALS — standard of appellate review for interlocutory decision to sever indictment — House v King error or correctness standard — current authority is that House v King error is applicable standard but unnecessary to decide EVIDENCE — cross-admissibility of evidence — mischaracterisation of evidence as admissible for a non-tendency purpose — Evidence Act 1995 (NSW), ss 97, 101, 135, 137 CRIMINAL PROCEDURE — joinder of counts — severance of counts on indictment — whether primary judge made an error in exercise of discretion — whether joinder results in positive injustice to accused

Catchwords:

CRIME – appeals – appeal against conviction – historical sexual offending – six complainants – where offender was a teacher and swimming coach – admission of evidence at trial – whether warrants authorising the recording of the conversations containing admissions were defective – whether there is a miscarriage of justice occasioned by the Crown not calling witnesses – whether emotional outbursts and unresponsive answers caused a substantial miscarriage of justice – whether documents relied on by Applicant amount to “fresh evidence” – whether the jury verdict was unreasonable – special advantage enjoyed by the jury of seeing and hearing witnesses – where there are discrepancies in accounts between or among witnesses CRIME – appeals – appeal against conviction – forensic disadvantage – whether delay in prosecution caused offender to suffer an irreparable forensic disadvantage – whether offender received a fair trial – application for permanent stay of proceedings at trial – where direction was issued by trial judge about delay – competing considerations in exercise of judicial discretion – public interest – presumptive prejudice caused by delay – where forensic disadvantage did not significantly or adversely affect conduct of the defence CRIME – appeals – appeal against sentence – whether the COVID-19 pandemic was a matter which the sentencing judge was required to deal with in sentencing – where offender was sentenced before commencement of the pandemic

Catchwords:

CRIME – Appeal – unreasonable verdict – applicant convicted on two counts of detaining and occasioning actual bodily harm – where two complainants – when second complainant was herself involved in detention and assault of first complainant – whether any inconsistency between evidence of complainants incapable of resolution by a properly instructed jury – jury’s advantage when both complainants cross-examined at length – whether any material inconsistency between evidence of complainants – whether verdicts in respect of both complaints were open to the jury.

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:

CRIMINAL LAW - Evidence - admissions made by accused to police - whether admissible - not tape recorded or referred to in subsequent video recorded interview - accused not a suspect at the time - whether he could reasonably have been suspected - lies - not relied on as showing consciousness of guilt - whether Zoneff direction necessary or desirable - Rule 4 - proviso - whether miscarriage of justice - CRIMINAL LAW - Sentencing - 2 murders and 3 other offences involving attempt to murder - life sentences for murder - whether excessive - whether other offences relevant in considering sentences for murders

Catchwords:

SENTENCE - asserted inadequacy of a number of non-custodial sentences in relation to objective seriousness of the offences

Catchwords:

CRIME – appeals – crown appeal – offences of specially aggravated break and enter and commit the serious indictable offence of intimidation in company and armed with a dangerous weapon and specially aggravated kidnapping with intent to hold for ransom in company and occasioning actual bodily harm – whether the offender’s subjective case warranted the sentence – where the sentence was clearly lenient but was not an affront to the administration of justice and did not risk undermining public confidence in the criminal justice system – no manifest inadequacy

Catchwords:

CRIME – appeals – crown appeal – offences of specially aggravated break and enter and commit the serious indictable offence of intimidation in company and armed with a dangerous weapon and specially aggravated kidnapping with intent to hold for ransom in company and occasioning actual bodily harm – whether the offender’s subjective case warranted the sentence – where the sentence was clearly lenient but was not an affront to the administration of justice and did not risk undermining public confidence in the criminal justice system – no manifest inadequacy CRIME – appeals – appeal against sentence – where applicant diagnosed with PTSD – whether sentencing judge failed to engage with contention that there was a link between diagnosis and the offending – where primary judge rejected this contention SENTENCING – appeal against sentence – co-offenders – where co-offenders received the same sentence – where there was comparable criminality between co-offenders – no basis for interference with sentences

Catchwords:

CRIME – bail – release applications – murder – where convictions had been appealed – where orders made quashing convictions and ordering retrial – show cause – unacceptable risk – strong Crown case – display of significant violence in CCTV footage – previous membership of Rebels Outlaw Motorcycle Gang – where applicants had served in excess of half of non-parole period imposed – where retrial eight years after events in question – strong bail proposal – bail granted with conditions

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict – whether jury’s verdicts in relation to specific counts on the indictment were unreasonable and inconsistent – whether unreasonableness of verdicts for those specific counts renders the verdict for a separate count unreasonable

Catchwords:

JUDGMENTS AND ORDERS – Appeal raising issue materially indistinguishable from co-accused’s earlier appeal – No compelling reason shown for departure from the earlier decision APPEALS – Procedure – Time limits – Delays not to be held against applicants in the circumstances

Catchwords:

CRIMINAL LAW – sentencing – reckless infliction of grievous bodily harm – appeal against sentence – uncontested evidence of frontal lobe damage, cognitive impairment and post-traumatic stress disorder and/or depressive illness – submissions made on relevance to moral culpability and general deterrence – robust exchange but submissions not withdrawn – where sentencing judge found on balance that mental health issues played some role in commission of the offence – absence of engagement with relevant principles conspicuous – appeal upheld and offender re-sentenced

Catchwords:

SENTENCING – appeal against sentence – co-offenders – parity principle - disparity between sentences – where the applicant pleaded guilty to aiding and abetting the importation of a commercial quantity of a border controlled precursor – where a co-offender was sentenced by a different judge in respect of a related offence of attempting to import a commercial quantity of border controlled precursor – whether there was error in the sentencing judge’s sentence having regard to parity principles – where his Honour made appropriate findings about the applicant's offending and circumstances – where those findings were compared to the offending and circumstances of the co-offender – where the imposed undiscounted starting point took into account the differences between the applicant and the co-offender – where the applicant received a lower sentence than the co-offender – no error in his Honour’s sentence having regard to parity principles

Catchwords:

CRIME – appeals – appeal against sentence – dishonestly obtain financial advantage by deception – contravention of section 192E(1)(b) Crimes Act 1900 (NSW) – whether breach of De Simoni principle – where advantage particularised was the obtaining of loan facilities – where sentencing judge assessed objective seriousness by reference to quantum and period of drawdowns of facilities – whether objective seriousness assessed by reference to criminality comprising a more serious offence CRIME – appeals – appeal against sentence – whether sentencing judge failed to take into account “risk management” – whether sentencing judge failed to take into account absence of loss – where applicant sought to rely on loan facilities as security for the amount drawn down CRIME – appeals – appeal against sentence –whether sentence manifestly excessive

Catchwords:

CRIMINAL LAW – appeal – conviction – where the trial was conducted with a judge sitting alone – where the trial judge failed to adequately direct himself – where the trial judge failed to observe the requirements of s 133 of the Criminal Procedure Act – where the conviction is quashed – where a new trial is ordered

Catchwords:

CRIME – Appeals – Appeal against sentence – whether sentencing judge failed to take into account mitigating factor of provocation on sentence – findings of fact open to sentencing judge – no error established CRIME – Appeals – Appeals against sentence – whether offender was entitled to discount for the facilitation of justice pursuant to s 22A Crimes (Sentencing Procedure) Act 1999 (NSW) – factors said to facilitate justice not identified by defence counsel at hearing – no further discount beyond 25% for guilty plea warranted – no error established

Catchwords:

CRIMINAL LAW - bail - Crown appeal - s 45(1)(b)

Catchwords:

CRIMINAL LAW - appeal - conviction - sexual offences - Judge alone trial - whether verdicts inconsistent - time an essential element of the offences - difference in verdicts rationally explained and not inconsistent

Catchwords:

CRIMINAL LAW – sentencing – aggravated sexual intercourse with a child – two counts – whether aggregate sentence manifestly excessive – penile/vaginal intercourse – offender of good character – findings of remorse and prospects of rehabilitation – early pleas of guilty – comparison with past sentencing cases – use of statistics – helpful and thorough submissions – sentence imposed not manifestly excessive – sentence not plainly wrong or unjust

Catchwords:

CRIME — appeals — appeal against sentence — application for leave to appeal — whether the sentencing judge erred in the determination of objective seriousness — whether the sentencing judge erred in her determination that the s 17A threshold was crossed thus necessitating the imposition of a full-time custodial term of imprisonment — whether the sentencing judge erred in the application of the parity principle — whether the overall sentence was manifestly excessive — Commonwealth and State offences — appeal allowed — applicant resentenced

Catchwords:

CRIME – appeals – appeal against sentence – where the applicant and co-accused drove a stolen vehicle in a police pursuit whilst in possession of a firearm – where the vehicle was abandoned and set on fire – whether the sentencing judge failed to properly assess the applicant’s role in the offending – where the sentencing judge made no distinction between being liable for an offence as part of a joint criminal enterprise and the culpability of a participant by reason of that person's role – where, as a result, the applicant’s moral culpability was not given consideration – where the sentencing judge rejected the submission that there was a reasonable possibility that the co-offender started the fire – where a finding against the applicant needed to be made beyond reasonable doubt – where there was a reasonable possibility that the co-offender lit the fire – where the submission should not have been rejected to the applicant’s detriment

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:

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 – appeals against sentence –Commonwealth offences of transmitting soliciting and possessing child pornography – alleged failure to assess objective seriousness – alleged statement of agreed facts – alleged as application of s 16A(2AAA) of the Crimes Act 1914 (Cth) concerning sentence of sufficient duration to permit a rehabilitation program – all grounds dismissed – no point of principle

Catchwords:

CRIME – appeals – appeal against sentence – pleas of guilty - whether the sentencing judge erred by discounting the aggregate sentence rather than the indicative sentences or whether the sentencing judge’s remarks are insufficient in disclosing how the discount was applied – whether the sentence was manifestly excessive

Catchwords:

CRIMINAL LAW – sentencing – totality – stated intention to depart from statutory ratio of non-parole period – need for adjustment in overall sentence – relationship between totality of criminality and totality of sentences.

Catchwords:

CRIME – appeals – appeal against conviction – miscarriage of justice – where the applicant pleaded guilty to the murder of his sister – where the applicant was under the influence of drugs at the time of the offending – where the applicant was diagnosed with schizophrenia – where the applicant entered his plea on the basis of advice that the applicant did not meet the definition of “mental health impairment” – whether the advice was wrong and thus constituted a miscarriage of justice – whether the applicant’s impairment at the time of the offending was “solely caused” by drug ingestion – where none of the expert evidence engaged with the “caused solely by” test – the advice given to the applicant was wrong – conviction set aside STATUTORY INTERPRETATION – whether the Crown bears the onus of demonstrating that s 4(3) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) applies – where s 4(3) provides an exception or a qualification to what is contained in s 4(1) – where the Crown asserts no mental health impairment by reason of ingestion of drugs or substance use disorder the Crown bears the onus of proof under s 4(3)

Catchwords:

CRIMINAL LAW - interlocutory appeals - appeal by accused under s 5F Criminal Appeal Act - application to sever assault charges from indictment charging accessory after the fact to manslaughter

Catchwords:

CRIME — Appeals — Appeal against sentence — Manifest excess — where no indicative sentence was excessive — where sentence required to reflect significant criminal history, maximum penalties, general deterrence and form 1 matters — where sentence demonstrated no immunity from prosecution for providing assistance to authorities — where aggregate sentence not manifestly excessive

Catchwords:

CRIME — Appeals — Appeal against conviction — whether trial judge erred in failing to take into account evidence relevant to the issue of the date sexual intercourse occurred other than with respect to the credibility of the complainant — where trial judge did not so err CRIME — Appeals — Appeal against conviction — whether trial judge erred regarding application of burden and standard of proof — where trial judge was satisfied beyond reasonable doubt of the applicant’s guilt — where trial judge did not so err CRIME — Appeals — Appeal against conviction — Unreasonable verdict — whether verdict of guilty of one charge of carnal knowledge by a teacher following trial by judge alone was reasonable — where evidence as a whole sufficient in nature and quality to eliminate any reasonable doubt as to the applicant’s guilt — where verdict not unreasonable

Catchwords:

CRIME — appeals — appeals against convictions — offences of publishing or broadcasting the name of a child with respect to whom proceedings before the Children’s Court were brought — posts uploaded to Facebook referring to child by name — self-represented appellants — whether indictment invalid — whether failure to leave alleged defences to jury — whether error in instructing jury of effect of removing Facebook posts — whether error in directions to jury about time of the offences — whether failure to dismiss matter where no harm to child allegedly shown — whether failure to allow the appellant Katelaris to inform jury of right to acquit even if offence had been proved — where grounds 1, 2 and 7 raised a question of law alone and did not require leave — leave to appeal on grounds 3, 4, 5 and 6 granted — appeal dismissed

Catchwords:

CRIME — Appeals — Appeal against conviction — miscarriage of justice — where Crown concedes breach of prosecutorial duty of disclosure — consideration of appropriate orders to be made CRIME — Appeals — Appeal against conviction — fresh evidence — nature of task to be undertaken by appellate court — whether fresh evidence establishes innocence of applicant or a reasonable doubt as to his guilt such as to warrant the entry of a verdict of acquittal in accordance with the principle stated in Ratten — consideration of probative value of fresh evidence

Catchwords:

CRIMINAL LAW – appeal – appeal against conviction – persistent sexual abuse – whether verdict of guilty unreasonable – whether trial judge erred by failing to direct jury regarding the requirement for an “unlawful sexual relationship” in the s 66EA offence

Catchwords:

CRIME – appeals – appeal against sentence – offence of supply prohibited drug not less than commercial quantity – offence of deal with property reasonably suspected to be proceeds of crime – self-represented applicant – complaints with respect to backdating, cumulation, parity – further issues – manifest excess – failure to specify non-parole period in indicative sentence for offence with standard non-parole period – grounds of appeal not established – leave to appeal granted – appeal dismissed

Catchwords:

CRIME – appeals – appeal against sentence – whether sentencing judge erred by not providing reasons for how onerous bail conditions were taken into account – whether sentencing judge erred by not backdating the sentence to account for pre-sentence quasi-custody – whether the sentence imposed was manifestly excessive

Catchwords:

CRIME — Appeals — Appeal against sentence — Where applicant convicted of supply a large commercial quantity of methylamphetamine —Whether sentencing judge erred in assessing the seriousness of the applicant’s conduct — Whether assumptions about criminal organisations unrelated to the offence in question were made — Whether a denial of procedural fairness CRIME — Appeals — Appeal against sentence — Where applicant convicted of supply a large commercial quantity of methylamphetamine — Prospects of rehabilitation — Whether sentencing judge failed to take into account that applicant had good prospects of rehabilitation — Resentencing exercise

Catchwords:

CRIME – appeals – appeal against sentence – penetrative child sexual assault – sentence after trial – [REDACTED] – whether assessment of objective seriousness was incorrect – impracticality of plotting precisely objective seriousness along spectrum – whether error was made in failure to find special circumstances – discussion of role of sentencing statutes in finding or not finding special circumstances – whether aggregate sentence was manifestly excessive – discussion of current sentencing patterns for repeated offences of penetrative child sexual assault – appeal dismissed

Catchwords:

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

Catchwords:

CRIME — Crown appeal against sentence — respondent pleaded guilty to dealing with funds reasonably suspected of being proceeds of crime under s.1 93C(1) Crimes Act 1900 (six counts), attempt to obtain financial advantage by deception under s.192E(1)(b) Crimes Act 1900 (one count) and dealing with money reasonably suspected of being proceeds of crime under s.400.9(1) Criminal Code (Cth) (one count) — two further s.193C(1) offences taken into account on sentence — aggregate sentence imposed for s.193C(1) and s.192E(1)(b) offences — total effective sentence of imprisonment for five years and six months with minimum term of two years and eight months — offences involved total of about $103 million over 15-month period — first ground asserted error by failing to assess individually the objective seriousness of each of the s.193C(1) offences — same indicative sentences nominated for four offences despite very significant differences between amount of money and number of transactions involved in each count — each s.193C(1) charge a rolled-up count—approach to assessment of objective seriousness of rolled-up counts - capacity to consider challenge to indicative sentences as components of aggregate sentence — first ground of appeal established — second ground asserted that overall sentence manifestly inadequate— error concerning s.193C(1) indicative sentences contributed to imposition of manifestly inadequate sentence — significant objective gravity of offences — combined 40% discount for pleas of guilty and assistance to authorities — other strong subjective factors — held overall sentence manifestly inadequate — consideration of residual discretion — substantial ongoing assistance to authorities in new areas since imposition of sentence in District Court — earliest release date imminent — function of Crown sentence appeals — exceptional and unusual case — held Court should not resentence — Crown appeal dismissed

Catchwords:

CRIME – appeal against conviction – unreasonable verdict – whether open to jury to accept Crown case that applicant contemplated use of knife to cause death or really serious injury – verdict not unreasonable – breach of prosecution’s duty of disclosure – conceded materiality of breach – appeal allowed, conviction quashed and retrial ordered

Catchwords:

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

Catchwords:

EVIDENCE – Tendency evidence – Significant probative value – Evidence of tendency of conduct and tendency of state of mind of the accused – Whether the tendency evidence has a significant probative value that substantially outweighs the risk of prejudice

Catchwords:

CRIMINAL LAW – appeals – appeal against conviction – unreasonable verdict not supported by the evidence – whether the evidence adduced at trial was capable of proving guilt beyond reasonable doubt – jury’s advantage in seeing and hearing the evidence – verdict not unreasonable – appeal dismissed CRIMINAL LAW – appeals – appeal against conviction - whether trial miscarried because of Crown’s closing address – whether it was improper for the Crown to invite the jury to “jettison” the evidence of a witness – no complaint made at trial – no miscarriage established – appeal dismissed CRIMINAL LAW – appeals – appeal against conviction – whether the trial miscarried because evidence which was audible but not transcribed resulted in the trial being conducted as though it had not been adduced – miscarriage established – appeal allowed – retrial ordered

Catchwords:

CRIME – appeals – application for leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW) – application for separate trials – alleged home invasion – where case against each applicant is weak – where not established that there will be any evidence led at a joint trial which will be inadmissible as against the applicants – leave granted – appeal dismissed

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

EVIDENCE — Tendency evidence — Multiple complainants — Significant probative value — Need for a sufficient link between distinct events — No need for link to be peculiar — Evidence of tendency of accused to adopt particular kind of persistence in the pursuit of his sexual interests — Whether relevant evidence is proposed tendency evidence upon which primary judge ruled or evidence as actually admitted CRIME — Appeals — Appeal against conviction — Unreasonable verdict — No issue of principle CRIME — Appeals — Appeal against sentence — Failing to make any proper assessment of the objective seriousness of the offending

Catchwords:

BAIL – release application – breaches of ESO – s 17 bail risks – unacceptable risks – bail refused

Catchwords:

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

Catchwords:

CRIMINAL PROCEDURE – application for leave to appeal from decision refusing to vacate trial – whether decision was a judgment or order within the meaning of s 5F of the Criminal Appeal Act 1912 (NSW) – where applicant unrepresented due to his withdrawal of instructions from Legal Aid funded senior counsel and solicitors shortly before trial – where neither submitted nor shown that conduct of legal team was incompetent or otherwise warranted termination of services – whether refusing to vacate trial in the circumstances was “relevantly unfair” to the applicant – consideration of Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57

Catchwords:

CRIMINAL LAW – Procedure – permanent stay – stay granted by court below on basis of unfairness and oppression to the accused – whether primary judge misapplied the correct test – where third trial on two counts after jury in second trial unable to agree but delivered not guilty verdicts on two other counts – exceptional nature of jurisdiction – whether permanent stay should be set aside

Catchwords:

CRIMINAL LAW – sexual assault – appeal against conviction – alleged incompetence of counsel – whether significant possibility that incompetence affected outcome of trial – failure to adduce good character evidence before jury – failure to seek direction as to good character – good character evidence shown to be available – no explanation for course taken – concessions by Crown accepted – appeal allowed, conviction quashed and retrial ordered

Catchwords:

CRIMINAL LAW - sentencing - appeal against sentence - challenge to discount for plea and assistance - no question of principle - appeal dismissed.

Catchwords:

CRIMINAL LAW – appeal against conviction – multiple counts of sexual assault and indecent assault on complainants who were detained at Reiby Juvenile Justice Centre at the relevant time – where the accused was a youth worker at Reiby when offences allegedly committed – where Crown relied on evidence of Dr Lennings to buttress credibility of complainants – where evidence of Dr Lennings extended beyond evidence of behavioural responses by children under orders to sexual assault – where evidence of Dr Lennings included opinion about qualities attributed to youth workers in detention centres – whether the evidence was relevant and admissible pursuant to s 108C of the Evidence Act – whether Dr Lennings’ evidence was within his area of specialised knowledge – where trial Counsel failed to object to evidence of Dr Lennings in its entirety – where the evidence in so far as it related to opinion about youth workers was irrelevant and highly prejudicial – requirement of material irregularity – whether the irregularity could realistically have affected the reasoning of the jury to the verdicts of guilty – whether admission of the evidence occasioned a miscarriage of justice – appeal allowed

Catchwords:

CRIME – Appeals – appeal against sentence – child sexual offences – where child was under the applicant’s authority at a care home – domestic violence offences – whether sentencing judge erred in application of Bugmy principles – whether sentencing judge erred in failing to take into account the applicant’s own history of child sexual abuse – correct approach to application of Bugmy principles – childhood deprivation – moral culpability – purposes of sentencing – giving “full weight” to background of deprivation – appeal allowed – applicant re-sentenced

Catchwords:

CRIME — Appeals — Appeal against conviction — sexual assault — multiple complainants — whether Crown’s closing address on a recorded conversation required further directions from the trial judge — rule 4 of the Criminal Appeal Rules — no objection or request for further directions at trial — forensic choice by the appellant’s counsel — whether miscarriage of justice — whether verdicts in respect of counts concerning PW and JW unreasonable

Catchwords:

CRIMINAL LAW – release application – appeals bail – where previous applications dismissed by the Court of Criminal Appeal – statutory prohibition on multiple applications – whether grounds established for further application – whether material information to be presented that was not presented on earlier applications – whether circumstances relevant to the grant of bail had changed – self-represented applicant – indulgent approach to filing of evidence and submissions in contravention to Registrar’s directions and after the hearing – whether “more settled” grounds appeal amounted to grounds under s 74(3) of the Bail Act – changes to grounds cosmetic – whether imminence of applicant’s release a relevant change of circumstance – release date known on two previous release applications – provisional decision to grant parole – review hearing pending – relevance to release application where no outstanding charges – grounds for further release application not established – application dismissed – decision should not impact on decision of Parole Authority

Catchwords:

CRIMINAL LAW — application seeking the leave of the Court to retry a person in respect of two charges of murder — respondent to application seeking orders to produce documents comprising legal advice to various Attorneys General — whether legitimate forensic purpose established for production of documents — no such purpose in relation to legal advices — reasons for decisions by Attorneys General relevant — letters setting out reasons should be produced.

Catchwords:

CRIME – appeals – appeal against sentence – child sexual offences – where offender pleaded guilty to two offences against s 66EA of the Crimes Act 1900 – where complainants are the offender’s cousins – guilty plea in District Court – where offender denied certain particularised unlawful acts – where disputed facts hearing proceeded before the sentencing judge – aggregate term of imprisonment imposed CRIME – appeals – appeal against sentence – whether the sentencing judge erred in determination of objective seriousness – where sentencing judge concluded objective seriousness of the offences was “towards the bottom” and “at the very lowest end” of the range for a s 66EA offence – assessment of objective seriousness for “new” s 66EA – assessment of “ingredient offences” – where sentencing judge expressly relies on sentencing factors set out in Burr v The Queen – whether focus on ingredient offences and Burr v The Queen factors was a limited approach – whether it can be inferred the sentencing judge did not consider “other matters” – whether use of the term “opportunistic” affected the assessment of the objective seriousness CRIME – appeals – appeal against sentence – whether the sentence is manifestly inadequate – where Crown submits aggregate sentence is “so far below the range of sentences” which could be imposed – where complaint about “weight” given to sentencing considerations does not assist in the resolution of the adequacy – where sentencing judge nominated indicative sentences – where sentence imposed was not plainly unjust

Catchwords:

CRIME – appeals – appeal against sentence – application for extension of time – constructive murder – joint criminal enterprise – assault with intent to rob in company while armed with a dangerous weapon – possession of a shortened firearm – agreed facts – whether departure from agreed facts – whether denial of procedural fairness – whether error in assessment of objective gravity of offence – whether failure to find special circumstances – cumulation and concurrence – parity – where difference between starting point of sentences of applicant and co-offender – whether justifiable sense of grievance – marked and unjustified disparity – re-sentence

Catchwords:

CIVIL PROCEDURE – review of procedural decisions of Registrar – where applicant filed notice of motion seeking extension of time to file notice of appeal – extension refused by Registrar – where applicant filed notice of motion seeking access to unedited transcript – no demonstration why transcripts were required – application refused

Catchwords:

BAIL – detention application by prosecutor – show cause offence – whether cause shown – whether respondent poses unacceptable risk

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 - application for leave to appeal under s.5F Criminal Appeal Act 1912 from refusal of Dietrich stay - applicant charged with tax fraud and money laundering - complex and lengthy trial - applicant failed to establish that he was indigent - whether error demonstrated in findings of primary Judge - no error demonstrated - whether interests of justice warranted - grant of leave to appeal - observations made concerning absence of provisions in Proceeds of Crimes Act 2002 (Cth) permitting release of restrained assets to fund a person’s defence - contrast with State confiscation legislation - leave to appeal granted - appeal dismissed

Catchwords:

CRIMINAL LAW – release application – show cause requirement – bail concerns mitigated by conditions

Catchwords:

CRIMINAL LAW – sentence appeal – supply a commercial quantity of prohibited drug – participate in a criminal group – domestic violence and common assault offences – shortened firearm and possess more than three unregistered firearms, including a prohibited weapon – indicative sentences set out and aggregate sentence imposed – whether the notional starting point for some of the indicative sentences was manifestly excessive so as to indicate error in the aggregate sentence – whether an appropriate discount allowed for assistance to authorities – two co-offenders sentenced after applicant – whether differences between indicative sentences proposed for co-offenders and applicant offended the parity principle – if so whether such a discrepancy demonstrated error in the aggregate sentence – leave to appeal granted but appeal dismissed.

Catchwords:

CRIMINAL PROCEDURE – trial – closing address to jury by Crown Prosecutor – where the applicant was found guilty of multiple counts of intimidation, sexual intercourse without consent, and assault occasioning actual bodily harm – where the complainant and the applicant were in a relationship and lived together – where evidence was led of the applicant threatening self-harm after the non-consensual sex – whether there was a miscarriage of justice due to the introduction of consciousness of guilt evidence by the Crown – where it was clear that the Crown was not relying on consciousness of guilt as past of its case – where the only rational inference left to the jury was that the self-harm behaviour was related to the applicant’s manipulation of the complainant – no miscarriage of justice from anything in the Crown’s closing address CRIMINAL PROCEDURE – trial – directions to jury – where the trial judge said in her summing up that the Crown submitted that the sexual activity was nonconsensual and was supported by what followed, being the breakup “coupled with” the threats of self-harm – whether there was a miscarriage of justice from any direction or failure to give a direction by the trial judge to the jury not to use this evidence as consciousness of guilt evidence – where r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 applied – where any decision by the applicant’s trial counsel not to object to the trial judge’s summing up was a forensic one – where a reading of the proceedings as a whole shows that consciousness of guilt from the self-harm incident was not contemplated by either side or the trial judge – where it would have been wrong of the trial judge to give a consciousness of guilt direction in the absence of its being sought – no miscarriage of justice

Catchwords:

CRIMINAL LAW – conviction – substantial delay in complaint of alleged sexual offences – direction did not satisfy the requirements of Longman v the Queen.

Catchwords:

CRIMINAL APPEAL – applicant convicted of four offences of sexual slavery and two offences of money laundering – Crown contended that applicant enslaved two sex workers from Thailand – alleged to have seized passports and made them work off debt – whether jury direction concerning applicant’s prior good character inadequate because jury not told that good character made it less likely that applicant committed offences charged – error not established – whether miscarriage of justice occasioned by failure of applicant’s counsel to adduce good character evidence from various witnesses – miscarriage not established – failure to adduce evidence objectively justified – applicant’s good character peripheral to true factual dispute in the trial – tendency direction – alleged tendency corresponded with every particular alleged against applicant in relation to both complainants – direction misleading – miscarriage of justice established - proviso – critical part of complainants’ evidence challenged – proviso not capable of being applied – convictions set aside – new trial ordered.

Catchwords:

CRIME — appeal against sentence — manifest inadequacy — where offender convicted of 12 counts of child sex offences which occurred over a period of 15 years against four child victims — where the offending involved a significant age disparity, skin-on-skin contact with the genitals, sexual intercourse, planning, use of a position of trust, persistence, and escalation in seriousness over time — where the offender’s subjective case focused on his good character, experience in custody, and mental health history — whether the indicative sentences and non-parole periods failed to reflect the objective seriousness of the offending CRIME — appeal against sentence — residual discretion — relevance of the offender’s experiences in custody — whether maintenance of public confidence in the administration of justice required re-sentencing

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.