SENTENCE – Sentence after trial – acquittals on some counts – prosecution version of events not accepted beyond reasonable doubt – defence version of events unbelievable – three incidents – firearms offence – malicious damage to property – offences against police – escape.
SENTENCING - Relevant factors on sentence - sentence after trial – sentence after guilty plea - firearms offence – offences against police – offences by escapee- long custodial history – impact of the escape “E” classification – impact of violent and dysfunctional childhood – impact of long periods of custody as a child and adult – long term drug and alcohol abuse – record of violent offending – anti-social behaviour now a norm – need for support and intervention on release – grim prospects on release.
CRIME. SENTENCE.
Supply 5.09 grams of methylamphetamine. Deemed supply but evidence indicating an intention to supply. 39 year old woman of prior good character with a compelling personal circumstance. Conviction not recorded. Conditional Release Order for 18 months.
CRIMINAL LAW – Sentence – Affray – Assault Occasioning actual bodily harm – Common assault – Conduct negotiations to supply to an unauthorised person – Attempt to acquire a firearm without a permit – Attempt to acquire an unregistered firearm – Attempt to acquire ammunition without a permit – Act with intent to influence a witness.
CRIMINAL LAW – Trial – Judge alone – Child sexual offences – Persistent sexual abuse of a child - Six complainants and multiple charges – 77 counts – Grandfather – Step-grandfather – Child abuse material — Production/Dissemination/Possession – Procuring or grooming child for unlawful sexual activity – Supply drugs to groom child – Ongoing abuse – Blackmail victims – Indecent assault “with” or “towards”
CRIME — Appeal and review — Appeal from Local Court to District Court — By person convicted against conviction
CRIME — Public justice offences — Escape
CRIME — Violent offences — Assault police officer in the execution of duty
SENTENCING – Indecent assault of child.
SENTENCING - relevant factors on sentence – early guilty plea – impact of child sexual assault – each a serious example – Form 1 – standard non parole period a guide – impact on child – apology – remorse – ill health - deterrence – retribution – recognition of harm caused.
CRIMINAL LAW – Sentence – Aggravated sexual intercourse with a child between the ages of 10 and 14 years – Aggravated indecent assault – Aggravated incitement of an act of indecency – Use child pornography – Producing child pornography – Under authority of offender – Totality – Form 1
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of employee
CRIMINAL LAW – causation – whether pleaded failure caused exposure to risk – whether worker's carelessness severed chain of causation
CRIMINAL PROCEDURE – pleadings – particularisation – relevant time period
EVIDENCE – standard of proof – criminal cases – whether prosecution must prove all relevant facts beyond reasonable doubt
WORK HEALTH AND SAFETY – whether duty owed to specialist subcontractor – construction of pleaded risk – whether risk objectively known and obvious – whether causation of injury is an element of offence under Work Health and Safety Act 2011 (NSW) s 32
WORDS AND PHRASES – "while at work in the business or undertaking" – Work Health and Safety Act 2011 (NSW) s 19(1)
OTHER – mustering sheep – whether chasing dingoes part of mustering work – riding motorcycle without helmet – fall from motorcycle – head and spinal injuries causing death – whether wearing helmet reasonably practicable
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – injury to worker
SENTENCING – mitigating factors – aggravating factors – objective seriousness – general deterrence – substantial harm, injury, loss or damage – no record of previous convictions – good character – prospects of rehabilitation – plea of guilty
SENTENCING – penalty – alternative orders – training orders – WHS undertaking
SENTENCING PRINCIPLES – remorse
WORK HEALTH AND SAFETY – undocumented risk assessment – lack of employee training
COSTS – prosecution costs
OTHER – unguarded feed chute on pillow filling machine – machine not isolated from electricity supply prior to being cleaned – fingers severed by shredder component of machine – workers with limited literacy skills
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of employee
SENTENCING – general deterrence – specific deterrence – mitigating factors – aggravating factors – objective seriousness – substantial harm, injury, loss or damage – victim impact statement – no record of previous convictions – prospects of rehabilitation – plea of guilty
SENTENCING PRINCIPLES – remorse
WORK HEALTH AND SAFETY – unsafe system of work contrary to operator’s manual – lack of employee training – lack of risk control measures
COSTS – prosecution costs
OTHER – worker fell and crushed beneath moving turf harvester – traumatic asphyxia
CRIMINAL LAW – work health and safety – allegation of exposing employee to risk of death or serious injury
CRIMINAL PROCEDURE – evidence – right to a fair trial – adequacy of prosecution brief of evidence – prosecutor's duty of disclosure – provision of witness statements
CRIMINAL LAW – offences – manufacture and supply of prohibited drug – recklessly dealing with proceeds of crime
SENTENCING – aggravating factors – mitigating factors – planned or organised criminal activity – objective seriousness – financial gain – general deterrence – specific deterrence – prospects of rehabilitation – plea of guilty
SENTENCING PRINCIPLES – remorse – totality – parity – aggregate sentences
OTHER – extraction of Methylamphetamine from imported substances – large commercial quantity
COSTS – party/party – appeals – appeal from a costs assessment – error of law
JUDGMENTS AND ORDERS – reasons – duty to give reasons – extent of duty
OTHER – whether indemnity principle misapplied – whether insufficient evidence to support findings
CRIMINAL LAW – Sentence - Forms 1 – Dishonestly obtain property by deception – Dishonestly obtain financial advantage – Fail to appear in accordance with bail undertaking – Larceny – Aggravation - Unsophisticated offending - Offences committed to support drug habit – On conditional liberty at time of offending – Sad and traumatic upbringing -
SENTENCING – Young offender – Child sex offences – Whether no other penalty than imprisonment appropriate – Where ICO is not an available penalty even where offender is a young person
Supplying large commercial quantity of cocaine; whether ‘very exceptional circumstances’ must be established before a sentence other than full-time imprisonment can be imposed; the relevance of childhood deprivation and disadvantage on the moral culpability of the offender.
CRIMINAL – conviction appeal – possession of identification information to commit, facilitate, commission fraud – unauthorised possession of a prohibited firearm – circumstantial evidence – credit of witnesses.
CRIMINAL – sentence – cultivate large commercial quantity of cannabis by enhanced means – consume electricity without authority – special circumstances – offender of assistance to police.
CRIMINAL – sentencing – aggravated dangerous driving occasioning death to one victim – aggravated dangerous driving occasioning grievous bodily harm to two victims – combination of drugs impaired capacity to drive – relevance of asserted social anxiety disorder in offender – consideration of principles in R v Whyte – subjective matters – mental health of offender.
MENTAL HEALTH — Criminal proceedings — Person unfit to be tried — Special hearing
CRIME — Sexual offences — Act of indecency — meaning of word ‘towards’
CRIME – enter with intent – circumstances of aggravation – intimidation – intentional wounding - in company.
SENTENCING - Sentencing procedure – late guilty plea – leave to present fresh indictment – Early Appropriate Guilty Plea (EAGP) system applies – new count but substantially the same facts – appropriate method to calculate discount –strictly arithmetical approach not possible
SENTENCING - Relevant factors on sentence – 5% discount for plea – acceptance of responsibility – on bail – Local Court sentence served – proper commencement date – accumulation – totality principle applied – prior criminal record for violent offences – background of deprivation – failed attempt at normal community life – negative lessons learnt from imprisonment – protection of the community -special circumstances.
CIVIL LAW- Leave application to commence proceedings – application by Plaintiff pursuant to Section 151D of the Workers Compensation Act 1987 for leave to commence proceedings
TORT – defamation – negligence – plaintiff brings proceedings against two racing entities and a Council following a refusal to permit him to train horses at a racing club – damage to reputation asserted to arise from unknown persons viewing a 2012 media news hyperlink and using this information in unspecified downloadings and/or publications – no particulars of date, contents, publisher or publishee of any consequent publications – negligence claim brought on a similar basis - application for summary dismissal pursuant to rr 13.4 and 14.28 Uniform Civil Procedure Rules 2005 (NSW) – abuse of process – whether proceedings brought for a collateral advantage – proceedings struck out and dismissed
TORT – defamation – imputations – form and capacity – application for summary dismissal of first matter complained of – substantial pleading errors – difficulties of ruling on remaining imputations due to the number of imputations struck out – general leave to amend subject to further challenge granted
SENTENCING – extent of retrospective operation of provision – principle of legality – historical offences – where the offender is convicted of seven historical offences – where s 25AA Crimes (Sentencing Procedure) Act 1999 (NSW) was enacted with retrospective operation – where the provision applies to courts sentencing for historical offences – whether s 25AA cannot operate retrospectively where a proceeding has already commenced prior to the commencement of the section – whether the scope and purpose of the provision reveals a legislative intention for the provision to apply to extant proceedings
SENTENCING – special circumstances – effect of delay – hardship in custody – mitigation of sentence – variation of statutory parole period – where there has been a significant delay between the commission of the offences and the imposition of sentence – where the offender contributed to the delay – whether delay constitutes a special circumstance – where the offender was a judicial officer – where the offender is likely to serve the period of imprisonment in protective custody – whether hardship in custody constitutes a special circumstance
CRIMINAL PROCEDURE - Trial - Sexual offence proceedings — Adjournment - unfitness to be tried - issue genuinely raised
MENTAL HEALTH - Practice and procedure - unfitness to be tried issue genuinely raised - procedural fairness
SENTENCING - dangerous driving causing death- after trial – defence that pedestrian stepped into car not accepted by jury - moral culpability not low but not high - key factors driving too fast for conditions in high pedestrian area and distraction - general principles in death by dangerous driving cases - application of sentencing principles.
SENTENCING - relevant factors on sentencing – death of pedestrian – impact on deceased’ family - offender a young mother - impact on offender’s family - remorse – good character- psychological harm - general deterrence - custody required - moderation of penalty – special circumstances - good prospects for rehabilitation – referral to Jacaranda House Mothers and Children’s Program.
CONTRACT.
Contract for the sale of a rural property and the dog breeding business being conducted from it. Action for damages for breach of those parts of the contract relating to the sale of the business. Meaning of “breeding dogs”.
Whether solicitor who drew the contract (acting for both vendors and purchasers) was a concurrent tortfeasor.
CRIME – Sentence – dishonestly obtain financial advantage by deception – possess equipment to make identification documents – possess identification information - joint criminal enterprise – key member of criminal group – numerous stolen identities – created bank accounts, credit card accounts and personal loans in other people’s names – on line applications over 2 year period – over $2 million in total - sophisticated operation – stole mail from mail boxes to create identities – possessed computer program capable of generating false documents – passports, bills, driver’s licences – measuring totality of criminality – overlapping offences – previous offending with similar offences – support drug habit and lifestyle – drugs helped with pain relief and anxiety – successful completion of Drug Court program – current offending commenced 3 months after completion of program – possible “Conduct Disorder” or ADHD – aggravating factor – on conditional liberty – pleas of guilty – expressions of remorse – special circumstances – medium to high risk of re-offending.
Crime – Change of venue – prejudicial effects of media article on jurors – adverse local media publicity - prior findings of guilt – importance of a fair trial – remedy by directions and warnings
CRIME – Sentence – indecent assault victim under 16 years under authority – aggravated act of indecency – age difference – employer/employee – grooming – manipulation - pattern of behaviour – numerous incidents – victim resigned from job and reported to police one incident from that day – did not speak of wider behaviour until following year – prisoner serving sentence for similar prior offence when charged with these offences – pleas of guilty – letter of apology to the victim - no mental illness or personality pathology – moderate risk of re-offending – family support – limited insight into his offending - requires further counselling – sentence partially accumulative upon previous aggregate sentence
CRIME – appeal from Local Court to District Court – appeal against sentence- apprehended violence orders – domestic violence – intimidation of police officer – orders sought be made pursuant to s32 Mental Health (Forensic Provisions) Act 1990 – PTSD – chronic anxiety – major depressive disorder – failure in duty of care by NSW Police Service – causal relationship between mental condition and matters before the court
CRIMINAL LAW – prosecution – work health and safety – duty of person 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
PROCEDURAL – foreseeability – whether there was a causal relationship between the act or omission and the risk - measures to guard against a risk to safety that are reasonably practicable – guard against inadvertence to fullest extent practicable – not always possible to foresee inadvertence by a disobedient worker
OTHER – unforeseen behaviour of worker – no one could have foreseen operation of the excavator in that location, in that fashion – worker had been instructed to perform other tasks, not to operate excavator on rocky slope – no breach in failing to risk assess potential for excavator to overturn on rocky slope – risk unknown and therefore unforeseen
OTHER – ROPS – Roll Over Protective Structure – excavators not on list of vehicles on which ROPS were required to be fitted – equipment not covered by ROPS standards must be the subject of a Risk Assessment – no ROPS required if excavator used on a flat area – risk of earthmoving machines overturning increases as variables increase – risk of excavators rolling over in mines and quarries
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 – appropriate penalty
COSTS - prosecution costs
OTHER – worker fell from ladder onto upright reo bars from which caps were missing – additional risk of fall from height because of lack of edge protection
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 – appropriate penalty
COSTS - prosecution costs
OTHER – worker fell from ladder onto upright reo bars from which caps were missing – additional risk of fall from height because of lack of edge protection
SENTENCING — Penalties — Suspended sentences
SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation — Not fully aware of the consequences of his or her actions because of the offender’s mental condition —Remorse — Unlikely to re-offend
SENTENCING — Relevant factors on sentence — Form 1 offences — Purposes of sentencing — Moral culpability
SENTENCING — Subjective considerations on sentence — Mental illness
CRIME – Trial - notice of motion for stay of proceedings until cost of previous trial are paid – “Mosely” order - jury discharged after officer in charge gave evidence that raised matters of prejudice – trial judge considered this could not be cured by direction
CRIME - Sentence – reckless wounding – impulsive not planned – self-defence - foreign national resident in Australia – prior good character
CRIME - Sentence – ongoing supply prohibited drug – drug user – “runner” – offences committed whilst on conditional liberty – partial accumulation of sentences
CRIME – in company rob while armed with dangerous weapon – black replica pistol – machete – joint criminal enterprise – breach of conditional liberty – vulnerable victims – lack of sophisticated planning – drug dependency as motivating factor – homelessness – ADHD – history of violence – guilty plea – remorse – ‘special circumstances’
CRIME – Sentence - sexual assault – commit act of indecency -person under 16 years – family member – opportunistic – criminal history but no prior offences of this type – mental health and intellectual issues – disadvantaged upbringing – ADHD – schizophrenia – drug and alcohol abuse – difficulty with maintaining medication regime – head injuries due to accident and attack – paranoia – no evidence of serious sexual deviance
SENTENCE – assault occasioning actual bodily harm (DV) – intentionally choke person with recklessness as to render unconscious – dysfunctional background – childhood abuse and trauma – violence – drug and alcohol use – history of offending – mental health – plea of guilty during trial - absence of contrition – attitude to offending – medium to high risk of reoffending.
CRIME – pre-trial hearing – the admissibility of evidence as a result of a search of a motor vehicle by police which was alleged by the accused to be either illegal or improper – police on patrol observe car accelerating harshly and follow – vehicle approached to administer RBT – driver and passenger questioned without cautions being administered – observations of the accused’s demeanour lead to suspicion of drug supply – search of car – drugs, cash and phones found and seized – occupants arrested – accused admits driving vehicle but not to trying to avoid police – denies knowledge of presence of drugs and cash in vehicle – felt intimidated by presence and conduct of police officer – conflicting accounts by police officer and accused – no contemporaneous notes by any of police officers – no conversations recorded – officers give contradictory accounts of the events – evidence changed in court during voir dire hearing after speaking to other people involved
CRIME – Sentence - supply prohibited drug –methylenedioxymethamphetamine – not less than commercial quantity – issue of parity – sentencing in relation to co-offenders – equal justice – street level supplier – messenger– aggravating factor – financial reward, but not in possession of substantial sums of cash, drugs or drug related paraphernalia – provided assistance to police -
CRIME – participate in criminal group, contribute to criminal activity and knowingly deal with proceeds crime
CRIME. SENTENCE APPEAL.
Drink driving. Offender had unrestricted drivers licence for a motorcar; but a P1 licence to ride a motorcycle. Guilty of driving with the special range prescribed concentration of alcohol (0.02 grams). Recorded reading was 0.021 grams i.e. 0.002 grams over the legal limit. Prior good character. Appeal allowed. S10(1)(a) of Crimes (Sentencing Procedures) Act 1999 applied
CRIME — Violent offences — Assault occasioning actual bodily harm
CRIME — Violent offences — Aggravated robbery
SENTENCING — Non-parole period — Principles to be applied
SENTENCING — Non-parole period — Standard non-parole period
SENTENCING — Penalties — Imprisonment
SENTENCING — Probation and parole — Non-parole period
CRIMINAL – sentencing – common assault – domestic violence – assaulting police officers in the execution of duty and occasioning actual bodily harm – attempting to use an offensive weapon with intent to commit an indictable offence – subjective features – whether Bugmy considerations applicable – special circumstances.
MERCANTILE LAW – guarantee of contract for hire of pallets – whether guarantee enforceable; DAMAGES – whether claimed loss included unenforceable penalties – whether claimed loss has been proven: s 5D and s 5E of the Civil Liability Act 2002 (NSW)
CRIMINAL – sentence – demand with menaces by accusation that person has committed a serious indictable offence – demand with menaces intending to obtain a gain or cause a loss – importance of general deterrence - assistance
TAXATION – company of which the defendant was a director failed to remit PAYG as well as owing substantial other sums to the ATO – DPN notice issued to defendant in respect of PAYG withholding – defendant makes payments to the ATO but does not advise until the fifth payment, made at a time that proceedings on the DPN had been commenced, that these were intended to pay his own DPN liability – whether the plaintiff paid amounts for the express purpose of the DPN as claimed
ESTOPPEL – whether estoppel available against the ATO – whether the ATO made representations that the PAYG withholding liabilities had been satisfied – whether there was detrimental reliance – whether the steps the defendant claimed he would have taken but for the representations could in fact have been taken
TORT – defamation – church bulletin setting out parish affairs refers to “intensive discussion” about the plaintiff’s position on the Management Committee being the subject of a forthcoming meeting – capacity of imputations – application for summary dismissal on the basis of no defamatory meaning – proceedings struck out and dismissed pursuant to UCPR r 28.4
COSTS – plaintiff discontinues defamation action against two of seven defendants – application by those defendants for gross sum costs order – plaintiff seeks orders that the costs be assessed and that payment of the assessed costs await the determination of proposed Federal Court proceedings against one of the defendants concerning the same publication – total costs of $5,905.90 (GST included) sought – gross sum costs order made
SENTENCING - old offences - indecent assault male - procure indecent assault - procure indecent act with male - multiple child complainants - disclosure to Royal Commission into institutional response to child sexual abuse - applying s 25AA Crimes (Sentencing Procedure) Act 1999 - current and past sentencing practice - common law principles still apply - proper approach to sentencing
SENTENCING - relevant factors on sentence - long delay - custodial sentences required - impact of child sexual assault on complainants – Victim Impact Statements – remorse – voluntary cessation of criminal activity – low future risk – youth at time of offending – ill health – vulnerability in custody – special circumstances.
PROFESSIONAL NEGLIGENCE – claim by client against solicitor who acted in Supreme Court proceedings – whether there was a failure by the defendant to give proper legal advice prior to settlement – whether there was a failure by the defendant to give timely advice regarding prospects of success – whether incorrect advice was given by the defendant to settle the proceedings – held: no negligence
FAMILY PROVISION – principles applicable – notional estate – discretionary nature of power to make provision for claimant out of notional estate
Appeal, maliciously damage property, Can you be convicted of destroying own property? Effect of Federal Circuit court property orders, Nature of wife’s interest consequent on Court’s orders, property transfer not yet registered, damage before registration of transfer to wife in accordance with order, Does Real Property Act 1900 limit Crimes Act 1900? Tangible and intangible property, meaning of “property”, meaning of “belonging to”, Claim of right
TORTS – negligence – occupiers liability – slip and fall injury in casino premises – polished marble floor rendered slippery by presence of clear liquid – whether due to negligence of occupier – whether there was contributory negligence on plaintiff’s part; DAMAGES – assessment of claimed heads of damage
CRIME — Child sex offences — Disseminate child abuse material
CRIME — Child sex offences — Conspiracy to have sexual intercourse with child <10 — Procuring or grooming child for unlawful sexual activity — Sexual intercourse with child <10
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking a business – duty of employers – risk of death or serious injury
SENTENCE – mitigating factors – aggravating factors – fine – capacity to pay – circumstances – objective seriousness – specific deterrence – general deterrence – appropriate penalty
SENTENCE PRINCIPLES – parity – totality – community values – remorse – contrition
COSTS – prosecution costs
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking a business – duty of employers – risk of death or serious injury
SENTENCE – mitigating factors – aggravating factors – fine – capacity to pay – circumstances – objective seriousness – specific deterrence – general deterrence – appropriate penalty
SENTENCE PRINCIPLES – parity – totality – community values – remorse – contrition
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 – appropriate penalty
COSTS – prosecution costs
OTHER – worker in pit required by supervisor to exit by riding in bucket of excavator – worker tipped out of bucket into pit – inadequate means of ingress to and egress from pit
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 – appropriate penalty
COSTS – prosecution costs
OTHER – plumber excavated a trench at residence and left it overnight unguarded and unfenced – death of elderly resident of house who fell into trench
SENTENCING – robbery – dishonestly obtain property by deception – invited victim to home – forced her to provide bank card details – special circumstances – parity – Intensive Correction Order – Community Correction Order
SENTENCING – possess unregistered firearm – supply large commercial quantity (5.484 kilograms) of methylamphetamine – minor role of ‘storeman’ but large commercial quantity of drugs – plea of guilty entered early – constellation of mental health issues – special circumstances found – full-time custody
CRIME — Violent offences — Assault with intent to rob — circumstances of aggravation — armed with offensive weapon
CRIME — Property offences — Take and drive a conveyance
SENTENCING — Relevant factors on sentence — Form 1 offences
SENTENCING — Aggravating factors — Home of victim or any other person — temporary accommodation — Subjective considerations on sentence — young offender — Relevant factors on sentence — Multiple offences — Accumulation, concurrency and totality
CRIMINAL PROCEDURE — Sexual offence proceedings — Admissibility of evidence related to lack of sexual experience — Admissibility of evidence related to false complaints —
PRACTICE AND PROCEDURE – application to set aside and vary costs order – applicant’s failure to provide submissions as to costs orders as directed – adequacy of explanation for non-compliance with directions.
COSTS – plaintiff sued multiple defendants – plaintiff successful against second defendant but not first defendant – whether Sanderson order should be made – whether conduct of second defendant makes it fair to impose liability upon it for costs of the first defendant.
CRIME — Violent offences — Armed robbery — Offensive weapon
SENTENCING — Non-parole period — Principles to be applied
SENTENCING — Non-parole period — Ratio of the non-parole period and balance of term
SENTENCING — Relevant factors on sentence — Form 1 offences
SENTENCING — Relevant factors on sentence — General principles
CRIME — Firearms offences — Firearms prohibition orders
CRIME — Firearms offences — Unauthorised use/possession of firearm
SENTENCING — Non-parole period — Principles to be applied
SENTENCING — Non-parole period — Ratio of the non-parole period and balance of term
CRIME — Property offences — Break and enter with intent to commit serious indictable offence
SENTENCING — Commencement — Pre-sentence custody period
SENTENCING — Non-parole period — Principles to be applied
Torts – negligence – plaintiff struck by mobility scooter being driven in a shopping centre – whether defendant shopping centre operator breached a duty of care owed to the plaintiff – whether warnings required by signs due to a hoarding near an amenities corridor – whether convex mirrors needed – whether a barrier needed - causation – degree of economic loss of plaintiff – whether an amount for domestic assistance should be awarded
TORTS – negligence – non-invasive skin treatment in a beauty salon resulting in facial skin depigmentation and dimpling – whether due to inherent risk or negligence; DAMAGES – assessment of claimed heads of damage
SENTENCING — Aggravating factors — Abuse of position of trust — Mitigating factors — advanced age — poor health
CRIME — Sexual offences — Aggravated sexual assault — Aggravated indecent assault — Victim <16 years
Negligence – whether Council owed duty of care at recreation centre to respond to criminal conduct of third parties – Special Relationship – Control – Breach
CRIME — Drug offences — Supply prohibited plant — Knowingly take part in supply
SENTENCING — Relevant factors on sentence — Form 1 offences
SENTENCING — Relevant factors on sentence — General principles
COSTS – Party/Party – Assessed by assessor and review panel – Plaintiff registered judgment – whether Plaintiff estopped from appealing costs – Where summons went stale due to failure to serve - whether Plaintiff permitted an extension of time
CRIME — Property offences — Destroying or damaging property
CRIME — Violent offences — Reckless wounding
SENTENCING — Non-parole period — Standard non-parole period
SENTENCING — Non-parole period — Standard non-parole period — Muldrock error
SENTENCING — Non-parole period — Standard non-parole period — Statutory provision for standard non-parole period for Table offences
SENTENCING — Relevant factors on sentence — General principles
SENTENCING — Relevant factors on sentence — Multiple offences
SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences
SENTENCING — Relevant factors on sentence — Purposes of sentencing
COSTS – Costs assessment – Solicitor/Client - Determination – Review/appeal
CIVIL PROCEDURE – Time – Extension of time to appeal decision of review panel – where appeal lodged some 30 days out of time – plaintiff’s explanation for the delay inadequate – prospects of appeal’s success low – where costs agreement addressed to plaintiff – where parties contemplated scope of work would evolve over time – no error demonstrated by review panel – prejudice demonstrated by defendant – little/no prejudice suffered by plaintiff on account of plaintiff’s right to continue professional negligence proceedings against defendant – application for leave refused - amended summons dismissed
COSTS - Party/Party - Exceptions to general rule that costs follow the event - Offers of compromise/ Calderbank offers - Interest on costs – where defendant made offer on 20 November 2018 for $140,000 plus costs – where plaintiff obtained judgment on 26 August 2019 for $48,420 plus costs – where defendant disputed liability until first day of hearing at which time liability was conceded – whether indemnity costs order against plaintiff from 21 November 2018 should be limited to costs referrable to the issue of damages – discretion to split costs order
CONTRACTS - Advice by defendant that plaintiff spray its lucerne crop with certain herbicides - Breach of Contract - Australian Consumer Law – Misleading or Deceptive Conduct – Statutory Guarantees – Negligence
CONTRACTS – Remedies – Damages – Causation – destruction of lucerne crop – hypothetical loss of grazing income – loss of profits – limited direct evidence of loss - causation substantially not satisfied
CRIME — Child sex offences — Sexual intercourse with child >14 <16
CRIME — Sexual offences — Sexual intercourse without consent
SENTENCING — Relevant factors on sentence — Delay
Evidence – business records – exception in s 69(3) of the Evidence Act 1995 (NSW) – purpose to be inferred from the creation of a document containing a representation
COURTS AND JUDICIAL SYSTEM – jurisdiction – cross-vesting – exclusive jurisdiction clause
PRACTICE AND PROCEDURE – jurisdiction – defendant’s notice of motion seeking orders to stay proceedings
JURISDICTION – courts and judges – cross-vesting – exclusive jurisdiction clause – test for determining the most appropriate court
CONTRACTS – construction and interpretation of contracts – evidence of surrounding circumstances – commercial and business transactions – to show meaning of words
INTERPRETATION OF INSTRUMENTS – commercial and business transactions – extrinsic evidence
Torts – negligence – motor vehicle accident – whether breach of duty of care by defendant – whether contributory negligence by plaintiff – causation - significance of prior medical conditions - extent of plaintiff's injuries arising from the accident – extent of damages
CRIME, SENTENCE, COMMONWEALTH OFFENCE
Importation of pseudoephedrine. 75 year old grandmother. Physical illnesses. Psychiatric illnesses stemming from childhood war experiences. Hardship of custody.
Delay of 4 years between detection of offence and charging. Delay unexplained. Delay causing hardship.
SENTENCING - Relevant factors on sentence - Multiple offences – drug supply - supply for profit and own use – long term drug user – need to engage in treatment – ICO not considered – further custody required – special circumstances found.
TORT – defamation – remedies for Facebook publications – plaintiff brings proceedings for defamation (in the District Court) and for remedies under the Anti-Discrimination Act 1977 (NSW) (in the NCAT) against a Facebook account holder the first defendant) and against the second defendant for his part of the publication on the first defendant’s Facebook page – publication pleaded as being downloaded by four of the other participants in the Facebook debate – plaintiff obtains damages award in the NCAT and settles his claim in the defamation proceedings against the first defendant, who was the Facebook account holder – remaining defendant seeks dismissal of the claim as an abuse of process – plaintiff seeks summary dismissal of the defence – whether action liable to be dismissed as an abuse of process on the grounds of proportionality –whether multiple proceedings for different causes of action arising from the same publication may amount to abuse of process – whether the court resources required to determine the claim will be out of all proportion to the interest at stake – trial issues may include consideration of overlapping heads of damage and s 38 Defamation Act issues – likelihood that damages awarded would be very small – proceedings dismissed on the principles of proportionality
SENTENCING - sentence after trial - sexual intercourse with child under 10 - maximum penalty life imprisonment - need to give content to maximum penalty - full benefit of acquittal on another count - child offender - brother of victim use of dildo - any penetration of a 5 year old objectively serious - victim impact statement - special circumstances adult gaol could harm prospects of rehabilitation - special circumstances found - sentence should be served in juvenile detention.
SENTENCING – relevant factors on sentence - offender in family home - brother trusted to baby sit sister - child offender - immature offender - mental illness - autism spectrum disorder – impact on moral culpability – rehabilitation prospects - impact of denial of offending- rehabilitation programmes available - victim vindication – guidance offered by maximum penalty - retribution or rehabilitation - one factor can be determinative.
CRIMINAL LAW – Sentence – Indecent assault of a person under 16 years of age – Aggravated break, enter and steal – Opportunistic offending – Mild intellectual disability – Dysfunctional and disturbing family history - Totality
SENTENCING — Aggravating factors — Financial gain — In company — Multiple victims — Planned or organised criminal activity — Record of previous convictions — Breach of conditional liberty
SENTENCING — Mitigating factors — Plea of guilty Rehabilitation — Remorse
SENTENCING — Relevant factors on sentence — Co-offenders — Parity — De Simoni/double counting
SENTENCING — Subjective considerations on sentence — Special circumstances — Drug addiction — Mental illness
SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Circumstances of offence
SENTENCING — Mitigating factors — Remorse — Unlikely to re-offend — Rehabilitation — Plea of guilty — No record of previous convictions
SENTENCING — Aggravating factors — Financial gain
CRIME. SENTENCE.
Offender found guilty by a jury of manufacturing a large commercial quantity of methylamphetamine. Offender part of a joint criminal enterprise. Role of offender considered.
PARITY. Another offender who pleaded guilty sentenced to 9 years imprisonment, NPP 6 years 9 months. That offender suffered personal injuries which were accepted to be extra-curial punishment and was remorseful.
SENTENCE - factors on sentence - robbery in company - client of prostitute robbed - forced to hand over account details - duress asserted - Form 1 and need to avoid double counting matters going to objective seriousness - offender’s own vulnerability exploited by co-offenders - tragic background - drug abuse - mental illness - custodial sentence still required - special circumstances found.
SENTENCING - relevant principles - sexual intercourse child under 16 procuring child for unlawful sexual activity - use of carriage service to transmit indecent article images of penis to a child- use of social media – Snapchat described - use of child to make child abuse material where sexual acts recorded on phone – client of child prostitution where child not a prostitute - sentencing for Commonwealth and State offences- multiple forms 1 - relevant principles set out
SENTENCING - relevant factors- sexual intercourse child under 16 - child prostitution offences- procuring child offences - transmitting indecent article - relevant factors considered – maximum penalties and standard non parole periods considered - multiple victims- course of conduct - Victim Impact Statements considered –offenders prior good character- youth and immaturity - strong support in community-special circumstances - prospects for rehabilitation – multiple victims accumulation – totality – early guilty plea – acceptance of responsibility
SENTENCE - Affray - low level - other violence- De Simoni applied - late guilty plea at special call-over.
SENTENCE - factors on sentence - impact of family and school problems - criminal record for drug offences not violence - young man at crossroad- judicial deference to a mother’s opinion- custodial sentence not required.
SENTENCING — Aggravating factors — Substantial harm, injury, loss or damage — Without regard for public safety
SENTENCING — Mitigating factors — Good character — Rehabilitation — Remorse — Unlikely to re-offend
SENTENCING — Relevant factors on sentence — Form 1 offences — Victim impact statments
SENTENCING — Subjective considerations on sentence — Hardship — Health issues — Special circumstances
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 – appropriate penalty
COSTS - prosecution costs
OTHER – fall through unprotected void on construction site
CRIME SENTENCE
Offender pleaded guilty (late) to taking and detaining a male victim whilst in company with four others. Of three offenders involved in the same offence, this offender was first to plead guilty. Offender also offered assistance to the authorities. Total discount allowed at 25%. Young female 20 at the time of offence, 23 years at sentence. Very minor role in offence. No prior conviction. Good work history. Very low risk of reoffending.
CRIME. SENTENCE.
Offender pleaded guilty (late) to a charge of taking and detaining a male victim for financial advantage (recovery of a loan) whilst in company of four other persons. Maximum penalty 20 years.
21 year old woman (24 years at sentence) of prior good character. Engaged in self-rehabilitation. Low risk of reoffending. Some assistance to authorities.
Call up for breach of s 9 bonds. Delay. No action taken.
Aggravated kidnapping. Offender in a joint criminal enterprise with others. Offender participated in a crime planned by others for their benefit, probably out of false sense of loyalty. Criminal history incl gaol sentence for drug offences. Late plea of guilty. Personal circumstances favourable. Need for re-establishment in the community.
CRIME — Violent offences — Assault occasioning actual bodily harm
CRIME — Violent offences — Aggravated robbery
SENTENCING — Non-parole period — Principles to be applied
SENTENCING — Non-parole period — Standard non-parole period
SENTENCING — Penalties — Imprisonment
SENTENCING — Probation and parole — Non-parole period
SENTENCING — Plea of guilty — Committal for sentence
SENTENCING — Commencement — Pre-sentence custody period
TORT – defamation – email to residents of strata building – defences under ss 25, 31 and 33 Defamation Act 2005 (NSW) – defence of qualified privilege at common law – reply to attack – malice – damages – whether aggravated damages should be awarded – mitigation of damages – award of $120,000
CRIMINAL – knowingly make false statement on oath – notice of motion - application for permanent stay of proceedings – test of fairness - onus on the applicant to establish factual basis for the stay, and satisfy the Court that any trial would be an abuse of process – competence of interpreter used in previous court hearings – no audio recordings – defence argument that its inability to raise honest mistake, carelessness, misunderstanding or inadvertence causing possible prejudice to accused rejected.
PRACTICE AND PROCEDURE – plaintiff’s application for the solicitors for the defendant to cease acting on its behalf in these proceedings – no issue of principle
TORT – defamation – application to strike out Reply – litigant in person files document in excess of 100 pages which does not address the defences pleaded – Reply previously struck out on two occasions – leave to replead granted in the form of a self-executing order
CRIME – guilty plea during trial – multiple incidents.
SENTENCING - Relevant factors on sentence – late guilty plea - multiple incidents – numerous victims – firearms used – stranger’s home attacked – in company with others – separate & distinct domestic violence incident – breach of AVO - multiple sentences – accumulation – concurrence – totality considered – long history of offending – deprived upbringing – early uptake of illicit drugs use - still some prospects for future – rehabilitation – victims request mercy – parity - efforts required – special circumstances found.
CRIME – Drug offences – state and federal offences – offence committed on bail - supply cocaine – attempt to import ketamine – import cocaine – use of dark web and crypto currency - summary of other sentences involving dark web importations.
SENTENCING – relevant factors on sentence – early plea - offences committed while on conditional liberty – pro social support – lessons of custody learnt – drug addiction and gambling not mitigating factors – use of other decisions – general deterrence.
CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of serious injury – worker injured
SENTENCING – objective seriousness – deterrence – mitigating factors – no record of previous convictions – good prospects of rehabilitation – remorse – plea of guilty – restoration order
WORK HEALTH and SAFETY – obvious risk – known to the offender – inadequate instructions – risk control measures available at low cost
CRIMINAL PROCEDURE — Sexual offence proceedings — Admissibility of evidence related to lack of sexual experience — Admissibility of evidence related to false complaints — Exceptions to exclusion in s 293 Criminal Procedure Act
CONSTITUTIONAL LAW — Validity of s 293 Criminal Procedure Act
CRIMINAL PROCEDURE — Stay of proceedings — Inherent power to prevent abuse of process
CRIME – SENTENCE – COMMONWEALTH MATTER
Admitted Crimes:
(1) import a commercial quantity of methamphetamine 4.8958 kgs gross, purity assessed at 75%
(2) attempt to possess a commercial quantity of methamphetamine 1.0814 kgs gross, purity level of 79% equally 855.3 grams pure drug
(3) traffick a marketable quantity of cocaine/methamphetamine (4 separate transactions)
Member of a criminal syndicate involving two others already sentenced: Pantaleo and Chiagozie
41 year old man at time of arrest 26 May 2016. Personal references at odds with agreed facts and human experience. Married with adult stepson. Good work history since arrival in Australia in 2007.
SENTENCE — Sexual intercourse with child - assault with act of indecency - child is offender’s step daughter - indecent assaults on other children.
SENTENCE - Sentencing factors - Acceptance of responsibility after trial – need for retributive and different sentences – assessment of objective seriousness – guidance offered by standard non parole periods – difficulty reconciling standard non parole periods for sexual assault and indecent assault - impact on victims – expression of remorse too late – no antecedents – need for custodial sex offender programmes – totality – aggregate sentence.