CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of worker SENTENCING – objective seriousness – deterrence - aggravating factors – mitigating factors – adverse publicity order - good prospects of rehabilitation – remorse
CONTRACT – Breach of contract – Loan agreement – Determining parties to the contract – whether the defendant entered the agreement in his personal capacity or as a representative of his company
CRIME – Aid and/or abet offence - Take/detain person in company with intent to obtain advantage SENTENCING - Relevant factors on sentence – second degree participant in joint criminal enterprise- no motivation – limited role - drug affected- no memory of offence- accumulation on existing sentence-
CRIMINAL – sentence – 3 co-offenders - joint criminal enterprise - multiple offences of robbery etc - aggravated break and enter and commit serious indictable offence, people there - aggravated break, enter and steal - enter building/land with intent to commit indictable offence -steal motor vehicle - assault with intent to rob in company - be carried in a conveyance taken without consent of the owner – extent to which offences planned or opportunistic -roles of offenders – further offenders sentenced separately – parity - subjective matters
CRIME – Sexual intercourse without consent SENTENCING - Relevant factors on sentence – sentence after trial- short trial with some benefit to the administration of justice – fact finding - victim impact - childhood abuse and trauma
SENTENCING – bestiality – dog – video recording – child pornography – form 1 offences – prior good character – upstanding citizen – excellent prospects of rehabilitation – genuine remorse
CRIME - Drive manner dangerous causing death - fail to give assistance after vehicle impact SENTENCING - Relevant factors on sentence - facilitation of administration of justice - late guilty plea – impact of EAPG negotiations - related traffic offences – young offender - no prior convictions - remorse - possible intellectual disability - application of Whyte guideline- is an ICO available – moral culpability - impact of imprisonment – fulltime custody required for a drive manner dangerous
TORT - Assessing damages for sexual assault - defendant convicted of criminal offences against the plaintiff over a lengthy period - general and aggravated damages - whether a claim for exemplary damages could be made notwithstanding the imposition of a substantial term of imprisonment on the defendant - exemplary damages not awarded - past and future economic loss - future out of pocket expenses
CONTRACT – arrangements between contractor and sub-contractor for supply of steel for development of three buildings – informal dealings - whether, in relation to one building, the parties agreed that the sub-contractor would supply and fabricate steel or only supply steel – what was the basis for labour and other charges in works for two buildings – whether the term was express or whether there was an implied term that the labour charges be reasonable – whether implied term that costs be properly incurred
CRIME - drugs - Supply Prohibited Drug in Not less that the Large Commercial Quantity - MDMA - methylamphetamine - cocaine SENTENCE - plea of guilty - offending committed whilst subject to conditional liberty - courier supporting drug habit
CIVIL PROCEDURE –– Plaintiff seeks to set aside a decision of the Defendant determining that he did not provide “notice” of his injuries as required by s 10(B)(2)(a) of the Police Regulation (Superannuation) Act 1906 (NSW) – Plaintiff claims to have injured his left knee in 1987 whilst training at the NSW police academy – Plaintiff claims the clinical record prepared by a nurse at the academy erroneously referred to the right knee as opposed to the left knee but was otherwise was to the effect of the prescribed form and constituted notice within s 10B(2)(a) (a1) of the Police Regulation (Superannuation) Act 1906 (NSW) – Requirements for valid notice considered – Notice found not to be in or to the effect of the prescribed form – Plaintiff has not established clinical note reference to left knee in 1987 as inaccurate.
CRIME — Child sex offences — Sexual intercourse with child <10 CRIME — Sexual offences — Act of indecency CRIMINAL PROCEDURE — Sexual assault communications privilege — Applications for leave CRIMINAL PROCEDURE — Subpoena — Objection to production of material — Sexual assault communications privilege
CRIME – APPEAL – SENTENCE – Severity of sentence – Request for a Conditional Release Order – Appellant alleges need for licence – Appellant’s driving history considered – Appellant’s antecedents considered – Whether case appropriate for a Conditional Release Order.
CRIME – VOIR DIRE – EXPERT EVIDENCE – ADMISSIBILITY - PRACTICE AND PROCEDURE – Prosecutorial duty of disclosure – Officer in Charge of the investigation of the accused qualified themselves as a “drug expert” – impartiality of “drug expert” – whether Officer in Charge can qualify themselves as a “drug expert” in the investigation in which they assist in the prosecution of the accused – Regardless, the Officer in Charge does not have the requisite experience to qualify as a “drug expert” – Failure to disclose reasoning process.
CRIME – APPEAL – Applicant convicted in the Local Court of an offence contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 – Offence committed below the mid-range of objective seriousness - Order sought pursuant to s 32 Mental Health (Forensic Provisions) Act 1990 (NSW) – Applicant suffered from Bi-polar disorder at the time offences committed – Mental health treatment plan provided by the Applicant – Case not suitable for specific or general deterrence.
PRACTICE & PROCEDURE – orders refusing defendant’s multiple applications for dismissal, strike out, non-publication orders, and security for costs in proceedings claiming damages for mental harm following defendant surreptitiously illicitly filming the separate intimate activities of the plaintiffs in their living quarters
PRACTICE & PROCEDURE – requirement to make available for inspection audio-visual recording before trial – ex parte application by a party to be excused from the requirement - whether the applicant has legitimate forensic purpose for not giving opponent to inspect the item- request to suppress the application
CRIMINAL LAW – procedure – alleged historical sex offences – documents produced on subpoena relating to a complainant – sexual assault communications privilege - whether leave should be granted to accused to access privileged documents
SENTENCING – wound person intend to cause grievous bodily harm – domestic violence offence – blight on civil society – repeat domestic violence offender – wound to neck – use of a weapon – children witness to immediate aftermath – victim had a broken leg – vulnerable victim – no contrition – bleak prospects of rehabilitation
CRIME – Contravene prohibition/restriction in AVO (Domestic) – wound with intent to murder (DV) SENTENCING - Relevant factors on sentence – guilty plea - defence of mental illness not put forward - long term schizophrenia - attack on his father - causal relationship between his mental illness and his offending – assessment of moral culpability –victim impact - special circumstances need for offender to be kept in and released to a mental health facility
Appeal – From Small Claims Division of Local Court – Limited right of appeal: only if Local Court acted without jurisdiction or denied procedural fairness – Consideration of statutory scheme – Claim commenced by respondent to appeal, plaintiff in Local Court – Claims for moneys had and received by the defendant to the use of the plaintiff ($9,497) and for the return of a dog, “Harold” – Plaintiff/respondent wholly successful in Local Court. (1) Animals – a dog is a chattel personal and Local Court had power to order the return of the dog. (2) Torts – Detinue – elements of demand for return of goods and refusal to comply. Admitted on pleadings. Not argued in Local Court. Could not be an appeal. (3) Appeal – arguments not raised in Court below. Should not be raised on appeal. Neither errors of law or errors of fact raised an argument about jurisdiction or raise a question of denial of procedural fairness. (4) Domestic Relationships – as domestic relationship between parties had not persisted for 2 years, no Federal jurisdiction available, and property rights could not be adjusted between parties by any court. Jurisdiction of ordinary courts not affected. (5) Costs – when appeal should not have been made.
TORT - personal injury - barricades erected at building site - site illuminated at night by two traffic lights - one of the traffic lights fails - plaintiff collided with the barricade while riding his bicycle at night - whether risk of harm foreseeable and not insignificant - whether the defendant’s response to the risk of harm was one that a reasonable person would have taken -whether risk obvious
APPEAL - appeal from decision of Assessor in the Small Claims Division of the Local Court pursuant to s 39(2) Local Court Act 2007 (NSW) - whether lack of procedural fairness - appeal dismissed with costs
Contract – Construction of Contract – Breach of Contract – Failure To Deliver Goods – Sale of Goods Act 1923 (NSW) – Claim for Statutory & Common Law Damages – Whether the Defendants Repudiated the Contract – Whether the Defendants Engaged in Misleading and Deceptive Conduct –– Australian Consumer Law (ACL) – Breach of Statutory Implied Warranty – Assessment of Damages – No Evidence of Loss or Damage – Nominal Damages
CONSTITUTIONAL LAW – Commonwealth Constitution s 75 – whether federal “matter” before the Personal Injury Commission – resident of Queensland making application against the State of New South Wales – timing and location of dispute in question JURISDICTION – Personal Injury Commission – whether application would involve an exercise of federal jurisdiction – s 26(3) of the Personal Injury Commission Act 2020 (NSW)
COSTS - proceedings summarily dismissed - application for a specified gross sum costs order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW)
APPEAL – Conviction and Sentence Appeal CRIME — Violent offences — Resist/Hinder police officer in execution of duty CRIME — Summary offences — Offensive language in a public place
SENTENCING – robbery armed with an offensive weapon – form 1 offences – larceny – common assault – bizarre facts – offender armed with a meat cleaver stolen earlier – low level of objective seriousness – diagnosis of schizophrenia – substance use disorder – offender not medicated – mental illness materially contributed to commission of the offences – reduced moral culpability – tension between mental illness and community safety - departure from guideline judgment
SENTENCING – federal offence – use of carriage service to transmit child abuse material – consideration of Minehan factors - whether ‘exceptional circumstances’ arise which require offender’s immediate release on recognisance - Crimes Act 1914 (Cth) s 20(1)(b)(iii) - consideration of comparable cases
SENTENCING – intentionally causing a fire – volunteer firefighter deliberately lighting grass fires – bushfire season – unauthorised backburning – community heroes – conduct diametrically opposed to community expectations – increased moral culpability – strong subjective case – remorseful offender – strong prospects of rehabilitation
CRIME — Public justice offences — Do an act with intent to pervert course of justice SENTENCING — Mitigating factors — Unlikely to re-offend SENTENCING — Relevant factors on sentence — Co-offenders
APPEAL - appeal from decision of Assessor in the Small Claims Division of the Local Court pursuant to s 39(2) Local Court Act 2007(NSW) - whether lack of procedural fairness - appeal dismissed with costs on an indemnity basis
CRIME – sentence – offender the father of the victim – aggravated sexual intercourse with a person under 16 years – victim had an intellectual disability
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury CRIMINAL PROCEDURE – whether proceedings brought outside limitation period – whether particulars of offence are adequate
BAIL – accused persons’ release applications – charge of detaining complainant, in the company of others, without consent and with intent to obtain advantage, occasioning actual bodily harm
COSTS – solicitor on the record for the plaintiff unsuccessfully applied for leave to withdraw representation with a hearing imminent – applicant joined to the application another firm which, it contended, acted for the plaintiff – the other firm appeared at the hearing – whether costs order should be made in favour of the other firm – whether applicant should be liable for the costs of the defendant and the other firm in opposing the application under s 99 of the Civil Procedure Act 2005 (NSW)
MENTAL HEALTH – all grounds appeal from Local Court conviction and sentence of the appellant – appellant pleaded guilty to two offences – appellant had mental illness at date of offending – application to divert from criminal law process – alternative appeal against severity of sentence of community corrections order following pleas of guilty
CRIME - Sexual intercourse without consent - Intentionally record intimate image w/o consent (DV) SENTENCING - Relevant factors on sentence – late guilty plea- some early admission- no-consensual sexual intercourse during a relationship – sleeping victim - no” means “no” - offender expresses regret and remorse but has difficulty accepting the wrongness of his actions- strong subjective case – purposes of sentencing - rehabilitation and retribution considered - need for custodial sentence
Judge alone trial; female genital mutilation application of law to adults; whether an adult can consent to grievous bodily harm; whether removal of scar is relevant to assessment of injury; manslaughter gross criminal negligence; standard of care for non-medial practitioner; duty of care.
SENTENCING – take and detain for advantage – domestic violence offence – victim is the child of the offender – victim in foster care – advantage was to prevent lawful return of child to foster parents – no threatened or actual use of violence – lower end of objective seriousness – strong subjective circumstances – non-custodial penalty
CONTRACT – whether a binding agreement was entered into between the parties in relation to an investment for the acquisition of shares in a company – whether moneys paid by a party constituted refundable deposits or part payments pursuant to a binding contract – whether party entitled to repayment of moneys said to be deposits – whether, if binding contract found, there was an anticipatory breach entitling damages – Masters v Cameron TORTS – injurious falsehood – whether elements satisfied – whether loss as alleged proved - causation CONSUMER PROTECTION – whether misleading or deceptive conduct in relation to business investment
Cause person to take intoxicating substance with intent to commit indictable offence – sexual intercourse without consent – aggravated indecent assault – victim under authority – finding of special circumstances – principle of totality.
CRIMINAL LAW –– Border controlled drugs – Attempting to possess marketable quantity of ketamine – Purity of ketamine considered to be 79% – Drug considered to be 258 times the threshold for marketable quantity of ketamine – Absence of sophistication – Offender’s role to collect and transport the drugs on the instructions of another for reward –Absence of actual knowledge of drug type and quantity – Offender’s position in the drug hierarchy found to be at the lower end SENTENCE –– Offending did not involve a course of conduct and (since a controlled operation was involved) did not cause any actual injury, loss or damage – Evidence linking the offender’s mental health at the time of the offence to his decision making – Impact on mental health found not to be limited to impulsive decision making – Offending found within the lower range of objective seriousness SENTENCE –– Contrition established – Guilty plea taken into account – Cooperation with law enforcement authorities – Offender successfully taken steps to address long standing use of illicit substances – Good prospects of rehabilitation and a low likelihood of reoffending subject to continuing treatment – Reduced need for general and specific deterrence – Intensive correction order not available – Consideration of whether a recognizance release order enabling release forthwith meets legislative requirements – Consideration of impact of incarceration on rehabilitation and mental health.
CRIME – Aggravated enter dwelling with intent, knowing people there - Common assault SENTENCING - Relevant factors on sentence – early plea – failed attempt to regain stolen property by intimidation – in company – in victim’s home - offender of prior good character- purposes of sentencing discussed -
CRIME - Discharge firearm with intent to cause grievous bodily harm - Possess shortened firearm (not pistol) without authority SENTENCING - Relevant factors on sentence – guilty plea - repeat offender - on parole - unable to access rehabilitation - no Drug Court programmes available - danger of institutionalisation – young immature offender - almost all his adult life to date spent in gaol
CRIME– Sexual offences – Aggravated sexual assault – Threat to inflict actual bodily harm with offensive weapon or instrument SENTENCING — Aggravating factors — Use of weapon SENTENCING – Subjective considerations on sentence – Special circumstances
CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of worker
CRIMINAL LAW – sentencing- procure child under 14 years for unlawful sexual activity - incite another person to sexually touch a child who is under the age of 10 years- producing child abuse material- intentionally incite another person to carry out a sexual act with or towards a child who is under the age of 10 years.
CRIMINAL LAW – sentencing- aggravated break and enter with intent to commit serious indictable offence- damage property- robbery with an offensive weapon.
CONTRACT – ACTION FOR BREACH – Plaintiff’s claim in evidence on accounts stated. CONTRACT – NOVATION OR NEW CONTRACT – resulting from company restructure by Plaintiff. WHETHER COMPROMISE of original agreement- whether consensus ad idem. CONSUMER LAW – Whether breach of an express term of contract amounts to a “representation” that enlivens Australian Consumer Law – Whether director of a company liable for same if company breaches an express term of the contract. EVIDENCE – Significance of failure of Defendant to cross-examine Plaintiff’s principal witness.
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay - appropriate penalty COSTS – prosecution costs OTHER – defendant involved in constructing fuel and petrol stations - underground tank being pressure tested by unqualified worker – pressure ten times safe limit – tank exploded – failure to provide adequate information, instruction and training – failure to provide adequate on-site supervision – failure to engage specialist contractor to perform pressure testing on fuel systems
ADJOURNMENT APPLICATION – Alternative to severance of hearing on liability, to hearing on quantum – Why matter not ready – WHY SEVERANCE INAPPROPRIATE.
Final orders after a special verdict under Mental Health and Cognitive Impairment Forensic Provisions Act 2020 after receipt of report from Forensic Mental Health Network.
CRIME – SENTENCE – PLEA GUILTY – 3 OFFENCES (1) Specially aggravated kidnapping (in company and infliction of ABH); (2) Conspiracy to rob in company; (3) Do Act intending to pervert course of justice. PARITY with co-offenders. PERSONAL CIRCUMSTANCES – Bugmy Considerations – Rehabilitation prospects.
CRIME — Child sex offences — Child abuse material — Production CRIME — Child sex offences — Procuring or grooming child for unlawful sexual activity CRIME — Child sex offences — Sexual intercourse with child >10 <14 CRIME — Sexual offences — Act of indecency CRIMINAL PROCEDURE — Trial — Judge alone CRIMINAL PROCEDURE — Trial — Judge alone — Reasons of trial judge
CRIME – SENTENCE – Plea of guilty to a charge of conspiracy to import commercial quantities of methamphetamine (249.1 kgs pure) from Mexico and cocaine (300 kgs gross) from Colombia – Contested Facts hearing as to role of the offender in the conspiracy – Whether a principal, manager or worker, whether inferior to or superior to another known conspirator. ENTRAPMENT – Not a defence – Involvement of police undercover agents – Conspiracy doomed to fail – Effect on sentence – Mitigating factor - Deprived background and mental illness mitigating factors – Whether incarceration onerous – Impact of incarceration on family members – conflict in authorities – Rehabilitation and recidivism.
Criminal Law – Judge alone – accused COVID positive – proceedings conducted via virtual court with no personal appearances – Aggravated enter dwelling with intent – witness criminally concerned in the events – honesty and reliability of the witness – not guilty verdict
CRIME – SENTENCE – Two substantive offences: (1) Deemed supply 59.74 grams methylamphetamine; (2) Deemed supply 3.356 kgs of GBL (commercial quantity) – 58 year old offender with extensive criminal history including offences of the same type. Offences committed whilst on parole – COMMENCEMENT DATE OF SENTENCE – DISCRETIONARY.
PRACTICE AND PROCEDURE – Freezing orders sought by plaintiff over assets of the defendant. Whether plaintiff has “good arguable case”. Whether plaintiff has discharged onus of establishing a danger that the judgment it seeks to record may be frustrated by actions of defendant in meantime disposing of assets. Moving of evidentiary onus to defendant.
CIVIL – COSTS – COSTS ASSESSMENT – APPEAL FROM DETERMINATION OF THE COSTS REVIEW PANEL – PAYMENT OF COSTS – SUBMITTING APPEARANCE BY THE DENDANT – WHETHER DEFENDANT SHOULD PAY THE PLAINTIFF’S COSTS OF THE PROCEEDINGS.
APPEAL FROM LOCAL COURT – summons seeking leave to appeal from decision of Small Claims Division – rejection of claim of lack of jurisdiction – rejection of claim of denial of procedural fairness – summons dismissed
CRIME – APPEAL – APPAL FROM LOCAL COURT – APPEAL FROM REFUSAL OF APPLICATION UNDER S 32 MENTAL HEALTH (FORENSIC PROVISIONS) ACT 1990 (NSW) – APPEAL DISMISSED. SENTENCE – APPEAL – SEVERITY – APPEAL ALLOWED IN PART.
SENTENCING — Mitigating factors — Good character — No record of previous convictions — Plea of guilty — Remorse SENTENCING — Penalties — Intensive correction orders SENTENCING — Relevant factors on sentence — Co-offenders — Deterrence — Form 1 offences — Maximum penalty — Moral culpability — Multiple offences — Objective seriousness— Purposes of sentencing
CRIMINAL LAW – YOUNG OFFENDER – Appeal from Children’s Court against severity of sentence – Five offences – Penalty for 3 offences already completed – Penalty for first and last offences considered – Only substantiated offence was the first (reckless wounding) – Aboriginal Australian suffering FASD and many forms of disadvantage – Appeal allowed – Order made under Mental Health (Forensic Provisions) Act 1990 sec 32.
CRIME – SENTENCE – Commonwealth offence - Tobacco products in possession, knowing they were imported with intent to defraud the revenue – seriousness of offending – deterrence – contrition – appropriate form of sentence – ICO or imprisonment.
CRIME – APPLICATION FOR ADJOURNMENT – Defendant claims extenuating circumstances through familial illness to adjourn his sentence until some time in 2022.
CRIME - Cultivate large commercial quantity prohibited plant (cannabis); SENTENCING- Relevant factors on sentence – guilty plea – role of offenders- uncontroversial personal histories
CIVIL - Claim brought by (former) wife against husband for damages in respect of alleged sexual abuse during their relationship – Sexual intercourse without consent – Whether rape in marriage actionable. CREDIBILITY –whether wife’s allegations should be accepted over husband’s denials – wife’s pattern of disclosure. INTENTIONAL TORT – whether governed by Civil Liability Act 2002. DAMAGES – entitlement to aggravated and exemplary damages – assessment of damages. DELAY – whether claim brought out of time.
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury PROCEDURAL – elements of offence – whether defendant owed a health and safety duty – whether there was a failure to comply with that duty – whether that failure exposed workers to the risk of death or serious injury PROCEDURAL – reasonable practicability – likelihood of the risk – knowledge of the risk – what the defendant ought reasonably to have known OTHER —defendant engaged contractor to operate a crane to load the dismantled centrifuge onto a flatbed truck – boom of the crane came into contact with, or in close proximity to, live overhead power lines – two workers employed by the defendant suffered electric shocks – failure to conduct a site-specific risk assessment – no appropriate SWMS – failure to adequately instruct and train employees – failure to observe and warn crane operator – failure to insist upon using a qualified dogman
SECURITY FOR COSTS – security for costs orders made in 2018 in relation to four claims – Referee’s Report rejects the plaintiff’s claims but upholds a cross-claim by the defendants – plaintiff seeks six-day-plus hearing to challenge the Referee’s Report in its entirety – defendants bring application for further security – material change in circumstances established – order for further security made
PRACTICE & PROCEDURE – civil – plaintiff’s solicitor, the applicant, had retainer verbally terminated in December 2021 – applicant omitted to file notice of intention to cease to act – applicant remains on Court record as the plaintiff’s solicitor - proceeding fixed for hearing on 28 March 2022 in September 2021- plaintiff informs applicant of desire to vacate hearing on 23 February 2002 - dispute or doubt about nature or extent of plaintiff’s legal representation, by another firm, from 10 March 2022 - other firm unaware of imminent hearing until 22 March 2022 – applicant applies for leave to withdraw
PROCEDURE – application to set aside default judgment – whether judgment entered irregularly – whether there is an explanation why a Defence was not filed – whether there is evidence of a defence on the merits
CRIME – SENTENCE Three substantive offences: (1) Enter a dwelling house in company with intent to steal. Indicative sentence: 9 months with 25% discount. (2) Assault occasioning Actual Bodily Harm in company. Indicative sentence: 9 months with 25% discount. (3) Wounding a police officer in the execution of his duty. Indicative sentence: 3 yrs 9 months with 25% discount. Non-parole period 2 yrs 9 months. 44 year old man from Tonga with extensive criminal history. Backdating of sentences.
CRIME – possessing a prohibited firearm SENTENCE – taking into account pre-sentence custody and quasi custody – whether an Intensive Correction Order is available
CRIMINAL LAW – CONVICTION APPEAL A found guilty of Common Assault. All four elements of common assault proved beyond reasonable doubt. A sought to justify pushing C out of her path on the basis that C was obstructing the footpath and/or in self-defence. Obstructing the footpath is a criminal offence. That did not give A the right to commit an offence. C was merely standing on the footpath talking to someone else. C offered no threat to A. No defence of self-defence available.
CRIME – APPEAL – DRIVING OFFENCE. Failing to give way to a pedestrian when making a left-hand turn. Offender fined for breach of Road Rule. Local Court also disqualified offender from driving for 6 months. Effect of appeal was to make that period cumulative with a disqualification period of 3 months for a low range PCA offence. Disqualification period not mandatory. Wholly discretionary as to whether to impose and, if so, for how long. Significant impact on offender’s ability to manage his businesses and derive his income.
TORTS – PRACTICE AND PROCEDURE. Work Injury damages claim. Expert Liability report. Report not served with pre-filing defence as it did not then exist. The nature and substance of the report needed to be disclosed with the pre-filing defence. Its substance could not be disclosed as it was unknown. Tender of report rejected.
CRIME – SENTENCE 40 year old woman, principal of a small enterprise selling methylamphetamine and gamma butyrolactone to persons she knew or had contact with, who, like her, were other drug users. 20 offences: (a) 8 counts of supplying a small amount of prohibited drug; (b) 8 counts of supplying a trafficable quantity of prohibited drug; (c) 2 counts of (deemed) supplying an indictable quantity of prohibited drug (drugs found in her premises where search warrant executed); (d) 2 counts of dealing with proceeds of crime, $11,000 and $9940. Offences committed while subject to Community Corrections Orders. Called up for breach of CCO’s and sentenced to 3 months imprisonment from date of arrest, 10 January 2020. Extenuating personal circumstances – how she came to be a regular drug user. Onerous conditions of incarceration (diagnosed with breast cancer; surgery and subsequent radiotherapy and chemotherapy whilst in gaol). Special circumstances arising from onerous conditions of incarceration. Head sentence 3 years commencing 10 February 2020 with NPP of 1 year 6 months expiring on 9 August 2021.
CRIME – APPEAL – LEAVE TO APPEAL OUT OF TIME – INTENSIVE CORRECTIONS ORDER FOR BREACH OF APPREHENDED DOMESTIC VIOLENCE ORDER – REPEATED BREACHES OF COMMUNITY CORRECTIONS ORDERS
TORTS – Trespass to land – standing – where plaintiffs assert that they have a lease on a property – where a mere license is insufficient for standing TORTS – Trespass to land – Defences – police power of entry – mistaken identity TORTS – Trespass to the person – False imprisonment – Defences – police power of arrest – police power to secure premises
CIVIL PROCEDURE – Discontinuance of proceedings – Leave of court – Commencement of fresh proceedings for same relief - initial proceedings discontinued, and new proceedings commenced by consent LIMITATION OF ACTIONS – Debt – whether a notice of demand was necessary to commence the limitation period LIMITATION OF ACTIONS – Debt – confirmation – where confirmation of a cause of action is constituted by payment of interest CONTRACTS – Implied terms – Terms implied in fact – whether interest was repayable on the loans
Judge alone trial - aggravated indecent assault during sleep study – alleged pranic and tantric healing - tendency evidence - whether alleged tendency acts are essential to reasoning to a finding of guilt because of the circumstantial nature of the case.
CRIMINAL – sentence – mix of state and federal offences – blackmail – dealing with proceeds of crime – federal and state offences – money laundering – early plea of guilty – past and future assistance – co-operative to authorities in recovery of monies – consideration of principle of parity – instinctive synthesis of relevant factors
CRIMINAL – sentence – federal and state offences – blackmail – aiding and abetting tax frauds – money laundering – effect of cooperation with law enforcement on sentencing factors – whether restraining order under the Proceeds of Crime Act 2002 to amount to extra-curial punishment – appropriate discount for guilty plea – consideration of principle of parity – consideration of principle of totality
CRIME – administer intoxicating substance with intent to commit indictable offence – sexual touching of another person without consent – attempted sexual intercourse without consent – principle of totality.
POLICE – SUPERANNUATION – Whether plaintiff incapable from a specified infirmity of body of discharging the duties of his office at the time that his resignation took effect on 17-4-1999 P commenced as a junior trainee on 25 February 1980 and was attested as a probationary constable on 6 April 1981. On or about 1 November 1997 he commenced to work as a sergeant at Maroubra Police Station, Eastern Beaches Local Area Command. On a shift between 22 and 23 May 1998 he injured his lower back and experienced sciatic pain. He returned to work on restricted duties on 23 November 1998 and on full duties on 11 January 1999. He gave notice of his resignation on 18 March 1999. He did not apply for a superannuation allowance until 15 October 2018. His application was rejected by D on 28 November 2019. Whether effects of injury of 22/23 May 1998 presented at time of resignation and thereafter. Whether plaintiff remained incapacitated for duties of his office until the present time. Whether P remained incapacitated for duties of his office until the present time. Whether the Workers Compensation Act 1987, section 47 applies in proceedings under the Police Regulation (Superannuation) Act 1906. Whether section 47 otiose. Applicable law: that at the resignation took effect – at [88]. “Incapability”: anachronistic noun – use of “incapacity” or “disability” preferred.
CRIME – APPEAL – Appellant convicted of two charges: (i) resisting 2 police officers in the execution of their duty; and (ii) assaulting one of them – The police were arresting the appellant – Challenge to the necessity of the arrest and on allegation of the use of excessive force – Use of excessive force does not vitiate an arrest, if it be otherwise justified.
CRIME – sentence – robbery in company – reference of Bugmy principles and mental impairment to culpability – relevance of R v Henry guideline judgment – whether s 5 threshold crossed – whether sentence of imprisonment should be served by intensive correction
CRIMINAL LAW – Sentence – s166 – Joint criminal enterprise – Specially aggravated detention in company – Intent to obtain financial advantage – Assault – Actual bodily harm - Damage property - Enter land with intent to commit indictable offence –Both offenders on conditional liberty at time of offending – Using carriage service to menace
GUARANTEE AND INDEMNITY – whether conditions precedent in guarantee fulfilled – whether condition precedent not complied with and if so, what was the consequence - whether scope of the obligation under the guarantee extends to liability for borrower where lender omits to exercise power – whether undue influence perpetrated upon defendant by co-guarantor – whether lender had notice
CIVIL PRACTICE AND PROCEDURE – BUILDING CASE – EXPERT EVIDENCE – UCPR 31.17 – On 18 May 2021, Judicial Registrar made an order that the Plaintiff serve an expert report relating to quantum by 17 July 2021 – On 18 May 2021 Plaintiff’s solicitor qualified an expert asking him to prepare a report about quantum and liability – Application by plaintiff to for leave to adduce that report on liability – Main purpose of UCPR 31 Division 2 (expert evidence) is to limit expert witnesses to the minimum necessary to achieve justice – plaintiff already had an expert in the appropriate field – Application refused – Expert on quantum had only costed the demolition and reconstruction of the building but not the cost of rectification – Leave granted to serve a further report of the expert costing both rectification and reconstruction.
CRIME – SENTENCE – Offences under Drug Misuse and Trafficking Act 1985 s 25(2) (supply large commercial quantity of 3,4 MDMA-deemed) and s25(1) (supply 200.6gms cocaine-deemed) - Offender permits those in a drug syndicate to store drugs and paraphernalia in his rented home unit in exchange for drugs to maintain his own addiction – Offending at bottom of range – Prior good character – Successfully undertaking rehabilitation and seeking psychiatric care for mental health problems - In full-time employment – Unlikely to reoffend.
CRIME – APPEAL CONVICTION APPEAL against domestic violence offences and possession of ammunition offences. SEVERITY APPEAL against possession of cannabis, possession of a cross bow and possession of handcuffs. FACT FINDING – Need to contrast and compare case of each party. Local Court analysed defence case more closely than police case, when onus of proof required the opposite approach. Implausibilities in police case rather than in defence case: Defence case was a reasonable possibility as to what occurred on domestic violence charges. Proudman v Dayman defence available on ammunition possession charge. Some penalties too severe.
CRIME – Mansour and Kalathas pleaded guilty to detaining Emmanouel Moustakis without his consent with intent to obtain a financial advantage and at the time of the detention Emmanouel Moustakis suffered actual bodily harm, the offenders being in company – Offence against Crimes Act 1900 s 86(3) for which the maximum penalty was imprisonment for 25 years – Role of each of the offenders was quite different and the crime was committed for Kalathas’ financial advantage – Each offender had different personal circumstances.
CRIME – APPEAL FROM LOCAL COURT - Three charges under National Consumer Credit Protection Act 2009 (Cth) s225(3) - Appellant relied on alleged language difficulties but gave no evidence in either the Local Court or District Court - Such difficulties objectively inconsistent with appellant’s academic achievements and work and life experience – Subjective complaints – Language difficulties self-serving and given little weight – Mule v The Queen [2005] HCA 49 applied – Appropriate to deal with matter under s19B(1) Crimes Act 1914 (Cth) – Matta v Australian Competition and Consumer Commission [2000] FCA 729 considered.
DEFAMATION – plaintiffs are publishers of local newspapers – defendant supplied labour services to plaintiffs as graphic designer until falling out with them – defendant published Facebook post and sent email to former person who supplied labouring services to the plaintiffs - whether plaintiffs identified - whether defamatory imputations conveyed – whether statutory defence of triviality applies – Defamation Act 2005 (NSW), s 33 - claim for damages – claim for permanent injunction – significance of defendant’s undertaking
Criminal law – application for compensation – Victims Rights and Support Act 2013 – corporation as an aggrieved person – dishonestly obtain financial advantage by deception – employed based on false resume – work performed to standard required – no loss sustained by reason of the offending
CRIME – particular offences – offences against the person – violent offences - recklessly inflict grievous bodily harm – sentence - delays - relevance of history of trial and conduct of defendant - subjective matters
SENTENCING - federal offence of attempting to possess commercial quantity of border controlled drug - plea of guilty - consideration of involvement of offender in enterprise - consideration of hardship to disabled son arising from sentence of imprisonment – limits to utility of the opinons of mental health professionals in sentencing proceedings
CRIME - Sexually touch another person without consent (DV) - Sexual intercourse without consent - Intentionally record intimate image without consent etc (DV) - Intentionally choke etc person with recklessness (DV) SENTENCING- Relevant factors on sentence – multiple offences- pattern of offending- Forms 1- sleeping partner - no consent – videos of offending-victim impact - first offender - offender has underlying mental conditions - special circumstances found - victim vindication - aggregate sentence
TORT – negligence – motor vehicle accident – plaintiff claiming damages for personal injury – judgment on liability only – defence of joint illegal enterprise – defence of conduct tainted with illegality – defence under s 5D of the Civil Liability Act – contributory negligence
PRACTICE AND PROCEDURE – pleadings – amendment – application amend statement of claim after closure of evidence and of submissions – amendment if allowed require further evidence including expert evidence – application refused
COSTS – Calderbank offer – principles – failure of the plaintiff to accept the Calderbank offer made by the defendant was unreasonable – time at which indemnity costs commence
SENTENCING – federal offence – possession of child abuse material – objective gravity – consideration of competing contentions as to the circumstances in which the offender obtained the material and the nature and extent of his interest in acquiring it – whether no sentence other than imprisonment appropriate – whether appropriate to make recognisance release order – whether, for the subject offence, the term of imprisonment may be served by order for intensive correction
Aggravated (in company) assault with intent to rob and inflict actual bodily harm – joint criminal enterprise – parity – application of Bugmy principles.
COSTS – determination of appropriate costs orders where plaintiffs failed in their claims against Nominal Defendant and succeeded against the second defendant owner of the vehicle found to be at fault in a motor vehicle accident – whether Sanderson or Bullock orders are justified
TORTS – negligence – injury on building site – carpenter (not employed by defendants) was injured when responding to a call to assist other workers to lift and stow a 200kg metal clad door – alleged negligence of building contractor and sub-contractor – alleged contributory negligence – application of Pt 1A of Civil Liability Act 2002 – non-application of s 151Z of the Workers’ Compensation Act 1987 (NSW) – determination of proportionate liability between defendants; DAMAGES – assessment of claimed heads of damage
CRIMINAL PROCEDURE — Application for permanent stay of proceedings EVIDENCE – Criminal Proceedings – Give false/misleading evidence at public enquiry, etc – Improperly obtained evidence – Unfair use of admissions – where evidence arising from ICAC investigation here founds the basis of criminal charges – whether ICAC investigation was ultra vires – whether evidence should be excluded INDEPENDENT COMMISSION AGAINST CORRUPTION ACT – meaning of corrupt conduct – limitation on the nature of corrupt conduct – principal functions of ICAC – whether the initiation, commencement, and continuation of the investigation met the jurisdictional prerequisite
CRIMINAL LAW –– Driving offences – Dangerous driving occasioning death – Failing to stop and assist – Police pursuit – Intoxication – Erratic driving –Consideration of impact of alcohol and mild cognitive impairment on decision to drive – Assessment of moral culpability in light of aggravating factors considered in R v Whyte SENTENCE –– High degree of moral culpability for dangerous driving offence – Failing to stop and assist offence found below mid-range – Police pursuit offence found below the mid-range and towards the lower range – Mid-range PCA dealt with by conviction with no other penalty – Offender found to have excellent prospects of rehabilitation and a low risk of re-offending SENTENCE –– Substantial harm to the victim recognised by the Court – Assistance fully taken into account – Offender of prior good character – No prior criminal convictions – Remorse established – Offender found to be of poor physical and mental health – Intoxicating effects not taken into account as a mitigating matter on sentence but considered in light of the Offender’s deteriorating mental health resorting him to alcohol – Impacts of COVID-19 on prisoners considered
SENTENCING — Mitigating factors — Injury, harm, loss or damage not substantial — Good character — No record of previous convictions — Plea of guilty — Unlikely to re-offend SENTENCING — Non-parole period — Standard non-parole period SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Factual basis for sentence — Form 1 offences — Moral culpability — Multiple offences — Aggregate sentence — Objective seriousness — Purposes of sentencing — Sentencing statistics SENTENCING — Subjective considerations on sentence — Age of offender — Mental illness — Protective custody — Special circumstances
CRIME - Aggravated robbery and deprive person of liberty - Robbery armed with offensive weapon SENTENCING- Relevant factors on sentence – guilty plea- impact on victims- impact on community - background of trauma – on ICO- Alcohol Use Disorder- youth and immaturity - Oppositional Defiance Disorder- moral culpability- guarded prospects- aggregate sentence- special circumstances
FAMILY LAW AND CHILD WELFARE – application for contact orders by biological mother – her child is permanently cared for by his maternal aunt, and her family, in Queensland – Department’s application to transfer child protective care to the Chief Executive of the Queensland Department of Children Youth Justice and Multicultural Affairs – appeals from decisions of Children’s Court of NSW transferring care orders to Queensland and refusing the mother’s contact application – whether appeal against decision to transfer care orders is out of time and cannot be extended - Children and Young Persons (Care and Protection) Act 1998 (NSW), s 231K(2) and (3) - whether contact order under s 86 should be made in circumstances where care of the child is to be transferred to Queensland Department – whether contact order should be made in any event – proper approach to appeal under s 91 with reference to the way the parties conducted their cases
PERSONAL INJURY –– Motor vehicle accident – liability admitted DAMAGES –– Loss of earning capacity – Where the Defendant seeks to impugn Plaintiff’s tax returns filed after the motor vehicle accident as a basis for calculation of loss of earning capacity such that it was not possible to determine what the Plaintiff’s earnings were – Where Court finds to the contrary – Claim for future domestic assistance on commercial basis not accepted – Claims for past and future out of pocket expenses claimed allowed in part PERSONAL INJURY –– Slip and fall accident – in the common area of a shopping centre due to liquid substance on the floor proximate to the entrance of the supermarket – Consideration of liability of both the shopping centre cleaner and supermarket – Breach of duty against both Defendants found CROSS-CLAIM –– Where Defendants in slip and fall case file cross-claim against each other seeking indemnity in respect of any liability – Apportionment of liability against both Defendants – Where the shopping centre cleaners are found to have relatively greater responsibility than the supermarket – Determination of apportionment between Defendants DAMAGES –– Plaintiff alleges an independent injury to the left shoulder arising from slip and fall and aggravation of injuries occasioned in motor accident –Plaintiff’s claim with regard to the injury to the left shoulder not accepted – Aggravation of neck and back injuries as a result of the slip and fall accepted but the impact found to be relatively minor. DAMAGES –– Non-economic loss not awarded by the Court – Past out-of-pocket expenses allowed.
CRIMINAL LAW –– Driving offences – Dangerous driving occasioning death – Failing to stop and assist – Police pursuit – Where the Accused was under the influence of intoxication CRIMINAL LAW –– Judge alone trial – Where the Accused relies on an involuntary act – Where the Accused relies on previous medical conditions rendering his ability to have been cognitively aware of his offending conduct – Where the main defence relied upon was somnambulism – Where the hypotheses relied upon by the Defence was not supported by the expert evidence – Where the offences have been proven beyond reasonable doubt
CRIME - Drive manner dangerous causing death - fail to give assistance after vehicle impact CRIMINAL TRIAL - fail to give assistance after vehicle impact causing death SENTENCING - Drive manner dangerous causing death - fact finding - factual dispute- resolution of factual dispute STATUTORY INTERPRETATION - "and" - when it means “and/or” – “hendiadys” WORDS AND PHRASES – hendiadys - failed to stop and give any assistance
Sentencing – offence of recklessly causing grevious bodily harm – single punch to victim’s head by intoxicated offender – offender considered himself as rival to victim for a young woman’s affections – punch thrown at a party at mutual friend’s home
CONTRACT – purchase of beauty business not completed – whether misleading or deceptive conduct arose from silence about the transfer provisions in the lease – claim for restitution – cross-claim for loss of the bargain – significant credit issues - no issue of principle
CRIME - Reckless wounding (DV) - Contravene prohibition/restriction in AVO (Domestic) SENTENCING - Relevant factors on sentence – stabbing of partner - breach of apprehended domestic violence order- possible life threatening consequences- mentally ill offender- available defence of mental illness not taken up – no sworn evidence- contest about influence of drugs on a mental illness diagnosis- deprived background- special circumstances - role of State Parole Authority
CIVIL – application to amend Statement of Claim and vacate Hearing – case as pleaded fundamentally flawed- seeming incompetence and lack of diligence of former solicitor- solicitor to show cause as to why he ought not to pay COSTS - new Hearing date set.
TORTS - assault and battery during domestic relationship - defendant pushed plaintiff in a longue room - plaintiff fell and suffered injury after her head hit a nearby coffee table - whether defence of self-defence established in common law and/or under provisions of Part 7 of the Civil Liability Act 2002 (NSW) DAMAGES - whether assessment governed by common law or by Part 2 of the Civil Liability Act 2002 - whether operation of Civil Liability Act excluded by s 3B(1) - significance of pre-existing physical injuries and mental health issues – whether aggravated damages should be awarded WORDS & PHRASES - whether defendant had "intent to cause injury" - Civil Liability Act 2002 s 3B(1)
CRIME – reckless wounding SENTENCING – whether an Intensive Correction Order is available – the impact of childhood deprivation and disadvantage – reduction in moral culpability – the use of research into the impact of childhood deprivation and disadvantage, including childhood sexual abuse – the Bugmy Bar Book.
CIVIL – application without Notice of Motion to vacate Hearing date on first day of Hearing refused – application without Notice of Motion to stay proceedings refused.
TORTS – Negligence – motor vehicle accident – plaintiff’s father injured due to negligence of the driver of a motor vehicle owned by the second defendant – plaintiff suffered psychological injury – damages for mental harm – Pt 3 of Civil Liability Act 2002; DAMAGES – assessment of claimed heads of damage
TORTS – negligence – motor vehicle accident – claim against the Nominal Defendant – unidentified motor vehicle – whether due inquiry and search established – whether ownership of the vehicle established – whether the driver of the motor vehicle was negligent in the circumstances in which the plaintiff was injured – whether the plaintiff was contributorily negligent; DAMAGES – assessment of the plaintiff’s claimed heads of damage
PROCEDURE – application to set aside default judgment and reinstate the defendant’s defence – whether there is a defence on the merits – whether there is an adequate explanation for delay and default COSTS – where the need for the application was a result of the defendant’s former solicitor’s conduct – whether costs should be ordered on an ordinary or indemnity basis in favour of plaintiffs – whether costs should be made payable forthwith or at the conclusion of the proceedings
CRIME – PRACTICE AND PROCEDURE – Application for stay of proceedings – A charged initially with 617 counts on one indictment – Crown later presented 5 indictments containing in total 617 counts – A seeks stay until Crown presents indictment that is not oppressive or vexatious – Crown proposes to present 4 indictments containing 206 counts – Leave granted to Crown to present 4 indictments.