TORT – defamation – slander – whether the words of the matter complained of were spoken by the defendant in the course of the annual general meeting of the North Shore Karting Club – defendant denies publication – whether words published of and concerning the plaintiff – whether the words established to be spoken materially alter or qualify the sense of those set out in the particulars of claim – material difference between words pleaded and words proved – judgment for the defendant
CRIMINAL LAW- Sentence- Use carriage service to access child pornography- Repeated access to material- Possess child abuse material- Predominantly female children in sexual poses or with genitals exposed- Devices also containing adult pornography- Offender’s explanation for conduct drug abuse- Offenders mental condition affected- Motorcycle accident- Traumatic brain injury- Lasting problems requiring regular treatment- Custodial sentence more onerous- Lower range of objective seriousness- Pleas of guilty- Utilitarian value- 25% discount- Limited remorse.
CRIME — Firearms offences — Use/Possess prohibited pistol/firearm - operation of s 4A of the Firearms Act 1996
CRIME — Money laundering — Dealing with money suspected of being proceeds of crime
CRIMINAL PROCEDURE — Trial — Judge alone
PRACTICE AND PROCEDURE – defamation proceedings set down for hearing in August 2019 for a 5-day hearing in June 2020 – defendants bring application in December 2019 for affidavit evidence at the trial – plaintiffs offer to provide outlines of evidence or, alternatively, witness statements – no provision in the UCPR (rr 31.1 and 31.4) containing any provisions for outlines – circumstances in which statements, affidavits or outlines may be ordered in defamation proceedings – timetable for statements and outlines made – case management issues – long history of brinkmanship in relation to interlocutory argument – potential for ambush at the trial – timetable for parties to provide a list of issues still in dispute
SENTENCING – penalties – community corrections orders – prescribed sexual offences – individualised justice – where sentencing judge’s discretion curtailed by legislation – no alternative to full-time custody where s 5 threshold met
SENTENCE – Break and enter – circumstances of aggravation - escalation and confrontation- resist arrest- use of weaponless control techniques.
SENTENCE – Relevant factors on sentence – long record – remorse – institutionalisation – need for support on release- breaking the cycle that leads to more crime and more time in gaol- community protection.
EVIDENCE - discretion to exclude evidence pursuant to Evidence Act 1995 (NSW), ss 90, 135, 137 –
Admissions — Criminal proceedings - admissibility of a clandestine but lawfully recorded telephone conversation – silence in response to accusation - no contradictory response to accusation- failure to assert innocence - whether inference of guilt can be drawn – whether a common sense test should be applied - exclusion of evidence
SENTENCING - sexual intercourse child under 16 - two complainants - young but adult offender- application of relevant principles- is a non-custodial option available?
SENTENCING - relevant factors - age of complainants – age and immaturity of offender - late guilty plea –delay- significant progress toward rehabilitation - availability of community service
SENTENCING — Aggravating factors — Breach of conditional liberty — Use of violence — Use of weapon — Home of victim or any other person
SENTENCING — Mitigating factors — Plea of guilty — Remorse — Rehabilitation
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Moral culpability — General principles — Form 1 offences
SENTENCING — Subjective considerations on sentence — Health issues — Mental illness — Special circumstances
TORTS - Negligence - Proof of negligence
HIGHWAYS - construction, maintenance and repair of footpaths
NONFEASANCE – immunity from suit pursuant to statute
CRIME — Violent offences — Common assault
CRIME — Violent offences — Robbery in company
SENTENCING — Non-parole period — Ratio of the non-parole period and balance of term
Costs – offers of compromise – whether judgment “no more favourable” than offer – whether order “otherwise” is appropriate – service of further medical reports - illness of the plaintiff’s tutor during offer period
COSTS – Sanderson order in favour of plaintiff against first defendant for costs of proceedings including plaintiff’s costs relating to the unsuccessful joinder of the Nominal Defendant as second defendant
COMPENSATION – whether District Court has jurisdiction to make a compensation order when it is not the court which convicted the offender - Victims Rights and Support Act 2013 (NSW) s 97
Criminal – trial by judge alone - wound with intent to murder – in the alternative - wound with intent to cause grievous bodily harm – defence of mental illness
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Character of offence — Deterrence — General deterrence — Form 1 offences — General principles — Purposes of sentencing
SENTENCING — Sentencing procedure — Use of statistics
SENTENCING — Subjective considerations on sentence — Age of offender — Health issues — Special circumstances
SENTENCING — Mitigating factors — Unlikely to re-offend — Remorse — Rehabilitation — Plea of guilty
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
CRIME – break and enter dwelling house – armed with intent to commit indictable offence - assault – reckless wounding– intimidation – detain with intent of obtaining an advantage
SENTENCING – aggravating factors – presence of child – home of victim – breach of conditional liberty
SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Bugmy factors
TORT – convictions of the plaintiff in 2012 for offences under the Cruelty to Animals Act 1979 (NSW) set aside in 2016 under s 32 Mental Health (Forensic Provisions) Act 1990 (NSW) – plaintiff brings proceedings for malicious prosecution, abuse of process and defamation against parties asserted to be prosecutors, a broadcaster and Google Inc – defendants bring applications for summary dismissal of all claims
MALICIOUS PROSECUTION – whether s 32 orders amount to a termination in the plaintiff’s favour – whether rulings to this effect in Quirk v The State of New South Wales [2011] NSWSC 341; [2012] NSWCA 216 may be distinguished or are plainly wrong – whether pleadings so hopeless they should be struck out at the first opportunity
ABUSE OF PROCESS – when the cause of action accrued – whether a claim for abuse of process may be brought against a non-party – whether pleadings so hopeless they should be struck out at the first opportunity – whether generalised complaint about pleadings sufficient to warrant such an order
DEFAMATION – whether plaintiff could establish publication by any defendant within the limitation period - whether broadcaster’s fair report defence capable of summary determination – whether plaintiff’s defamation claims should be struck out on the principles of proportionality (Bleyer v Google Inc (2014) 88 NSWLR 670) – plaintiff granted leave to replead abuse of process claim but all other claims struck out and dismissed
CRIME — Sexual offences — Aggravated sexual assault — Threat to inflict actual bodily harm with offensive weapon or instrument
SENTENCING — Juvenile offenders — To be dealt with “according to law”
CRIME - SENTENCE - robbery - robbery armed with an offensive weapon - special circumstances to vary ratio of the non parole period to the head sentence.
CONTRACT – franchise agreement terminated by consent – claim for repayment of franchise fee paid by franchisee before franchise operational – subsequent arrangements entered with franchisor for the repayment of the franchise fee in instalments – whether claim against franchisor is under franchise agreement or subsequent arrangements
TRADE PRACTICES – misleading or deceptive conduct – promise that franchise fee will be repayable in instalments – whether promise amounted to an implied representation that franchisor would have the capacity in the future to repay the fee – whether promise to repay is a future representation capable of enlivening the facultative deeming provision in s 4 of the Australian Consumer Law
PRACTICE & PROCEDURE – whether judgment should be given against absent defendant without trial – ambit of grant of leave to supply supplementary submissions after judgment is reserved
NEGLIGENCE – whether a reasonable person would have taken precautions against a risk of harm – burden of taking precautions to avoid the risk of harm – Civil Liability Act 2002 (NSW) ss 5B, 5C
CROSS-CLAIM – labour hire agreement – contribution as a tortfeasor – contractual indemnity – breach of contract
OTHER – lower back injury during manual handling – training and instruction – supervision – pallet turning
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 – front end loader being used to lift heavy hydraulic cylinder – victim had unexpectedly placed himself under load and was adjusting slings – slings slipped off tines and cylinder fell
Crime - Child sex offences – Sexual intercourse with child <10 – Indecent assault person under 16 years of age – Intellectual disability - breach of trust – offences occurred in the victim’s home
CRIME. SENTENCE.
Drug Misuse and Trafficking ACT 1985, s 25A(1). Supply prohibited drug on 3 or more occasions during a period of 30 days. Five supplies (one deemed supply) of small quantities of 3, 4 MDMA (ecstasy). Supply to police street level operatives.
PARITY.
Co-offender involved in each of the supplies not charged with this offence, but lesser offences. Co-offender received non-custodial sentence, but had spent 3 months in custody.
At the time of sentence offender had spent 11 months and 2 days in custody. Given offender’s circumstances incarceration was onerous.
No prior offending. Good prospects of rehabilitation.
CRIMINAL LAW – conviction appeal – intimidating officer in execution of duty – nature of District Court’s powers in rehearing – whether necessary to identify error by the Local Court.
CRIME - SENTENCE - enter dwelling with intent to commit a serious indictable offence - intimidation - contravene apprehended domestic violence order - special circumstances to vary ratio of non parole period to head sentence.
BUILDING AND CONSTRUCTION – construction works for residential dwelling – whether practical completion arose through owner’s entry into possession – whether Builders in breach of implied statutory warranties – whether works defective or incomplete – whether works ‘practically complete’ – whether Builders should be ordered to rectify defects.
CONTRACT – existence of implied term as to date for completion of works – whether implied term breached – whether contract validly terminated – whether terminating party entitled to exercise express right to terminate if it is itself in breach.
PRACTICE AND PROCEDURE – referral of issue of costs of rectification of defective works to referee.
INJUNCTIONS – application by the plaintiffs pursuant to s 46 District Court Act 1973 (NSW), s 149 Civil Procedure Act 2005 (NSW) and paragraph 9 of the District Court Civil Practice Note 6 (Defamation List) for final or alternatively interim injunctive relief – judgment already entered in favour of the plaintiffs after a long history of non-compliance by the defendant – defendant advises the plaintiffs’ solicitors and the court that he intends to continue to publish material containing the same or similar imputations – fresh publications on social media, YouTube and in emails – balance of convenience favours the making of interlocutory injunctions
CRIMINAL – Judge Alone Trial - procedure – reopening of Crown case after closing of defence case and completion of closing addresses - whether failure to call evidence an oversight
Criminal-Sentence-publish false and misleading material to obtain financial advantage-do act with intent to pervert the course of justice-identity theft-supply prohibited drug-deal with proceeds of crime-possess shortened firearm
SENTENCING – Dangerous driving occasioning grievous bodily harm – two victims – assessment of moral culpability – number of people put at risk – length of the journey during which others were exposed to risk - prior traffic offences – remorse established – whether media scrutiny amounted to extra-curial punishment that could be taken into account
CRIMINAL LAW – Sentence – Three offences of entering a dwelling with intent to steal, aggravated by knowing persons were present – Entry gained at night through open balcony doors when victims asleep – Goods taken for first two offences not of high value but credit cards stolen and used – Considerable inconvenience to victims in addition to violation of privacy – Third offence aggravated because on bail for the first two offences – Form 1 offences mainly involving fraudulent use of stolen credit cards –Early Plea of Guilty with 25% discount – Drug addiction catalyst for offending – Offender Aboriginal Australian – Lengthy prior criminal record – Six separate periods of imprisonment – Background of trauma and dysfunction – Abused as a child – Homeless from young age – Few social contacts – Suffering from epilepsy – Guarded prospects of rehabilitation – Special circumstances found.
BUILDING AND CONSTRUCTION – application for summary judgment – claim by subcontractor against builder for unpaid tax invoice – whether valid construction contract was entered into – whether payment claim was served – whether claimant’s pleading precludes submission that payment claim was served.
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
Torts – negligence – motor vehicle accident – liability not in dispute and contributory negligence percentage agreed – extent of the plaintiff's injuries arising from the accident – voluminous medical opinions expressing different views – domestic assistance – childcare assistance - loss of future earning capacity
SENTENCING — Penalties — Imprisonment
SENTENCING — Aggravating factors — Financial gain
SENTENCING — Relevant factors on sentence — Character of offence — Establishing relevant matters — Deterrence — General deterrence
SENTENCING — Mitigating factors — Good character — Plea of guilty — Remorse — Rehabilitation — Unlikely to re-offend
SENTENCING — Subjective considerations on sentence — Special circumstances — Age of offender — Drug addiction
SENTENCE – sexual intercourse with child under 10 years – carnal knowledge – juvenile detention centre-protected custody – sex offender programs – prospects of rehabilitation
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 – underground coal mine – collisions between transport vehicles and roof infrastructure – resulting fracture of W-strap – driver of transport vehicle injured by damaged W-strap
CRIMINAL LAW – accused not fit to plead – special hearing – knowingly taking part in supply of prohibited drugs – whether a sentence of imprisonment would have been imposed – consideration of limiting term – significance of mental illness.
NEGLIGENCE – fishing charter vessel travelling through river bar – risk of suffering injury if large waves were encountered and passenger was not keeping a firm hold – risk unknown to an inexperienced person - passenger thrown to deck suffering injuries – need to provide a safety induction and to warn passengers of the dangers of the river bar – need to warn passengers to hold on to rails
NEGLIGENCE – Civil Liability Act 2002 (NSW) – ss 5B, 5D, 5E, 5F, 5G, 5H, 5I, 5J, 5L, 5M
DAMAGES – non-economic loss - past economic loss – future loss of earning capacity - Civil Liability Act 2002 (NSW) ss 13, 16
TORTS – Negligence – Road accident cases
Liability – where plaintiff’s vehicle travelling through intersection – where plaintiff’s vehicle struck by the defendant’s vehicle turning across his lane – competing evidence of forensic traffic engineers – factual findings in relation to the plaintiff’s speed at relevant times – Jones v Dunkel inference against the defendant – liability established
Damages – Future economic loss– where plaintiff was and continues to be employed as a train driver – where plaintiff has returned to his pre-injury duties – where plaintiff continues to live a physically active lifestyle – no diminution in working life proved – Other heads of damage – past out of pocket expenses agreed – future out of pocket expenses subject to Medical Assessment Service (MAS) certificates – no evidence of past economic loss
PRACTICE AND PROCEDURE – application for defence to be struck out following non-compliance with self-executing order – history of non-compliance with orders by a self-represented litigant – defendant fails to attend court for the hearing of the application – case management consideration – defence struck out but defendant advised of entitlements under UCPR r 36.16
Contract – principal and agent – action for recovery of commission by real estate agent – sale of property – whether agent was the effective cause of sale – form and effect of agreements signed by real estate agent – effect of conduct by unlicensed real estate agent – whether unlicensed real estate agent entitled to claim commission – whether unlicensed real estate agent paid commission - whether estoppel established
CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of PCBU to other persons – risk of death or serious injury – injury of worker
WORK HEALTH AND SAFETY – fall from height - likelihood of risk occurring – whether defendant had knowledge of risk - whether risk reasonably foreseeable – reasonable practicable – fall prevention - control measures – relevance of Australian Standard – provision of work platforms and edge protection - causation
COSTS. Application for indemnity costs.
Defendant made an offer of compromise during lunch on Monday 12 August 2019 which was open until 4pm on 13 August 2019. Hearing commenced on 14 August 2019. Whether defendant’s offer of compromise was open for a period of time that was reasonable in all the circumstances. Offer otherwise complied with UCPR 20.26(3)(a).
TORTS. NEGLIGENCE.
PERSONAL INJURY DAMAGES CLAIM.
Plaintiff slipped and fell in a shopping mall. Action against cleaning contractors of common areas of the mall. After review of CCTV footage of incident and of prior traffic in area of the mall where fall occurred, of evidence of security guard and of cleaner, and of histories given to doctors etc, found not satisfied that there was any liquid on floor of mall as claimed by plaintiff.
Evidence. Admissibility of medical report served on the evening before the commencement of the hearing. Prejudice suffered by other party. Whether omission to serve report by oversight “exceptional circumstances”.
CRIMINAL LAW – sentencing – sexual intercourse with a person under the age of 16 – indecent assault of a person under the age of 16 – significance of sexual intercourse and other sexual activities being consensual – significance of offender’s anxiety and depression at time of offending – significance of offender’s assistance to authorities relating to unrelated offences between the commission of the various offences
CRIME - Appeal and review - Appeal from Local Court to District Court – By person convicted against conviction- District Court’s powers on rehearing - application of principle - identification evidence – alibi.
Two offences of aggravated indecent assault; one count of use carriage service to solicit child pornography material; one count of transmit indecent communication to person under 16 years; young offender.
Aviation law – personal injury to plaintiff – claim by defendant of contributory negligence of plaintiff – whether an “accident” to the plaintiff within the Montreal Convention 1999 - whether injury to plaintiff extended beyond injury to right thumb to injuries to right wrist and arm and right shoulder – whether plaintiff entitled to commercial domestic assistance – amount of buffer to be awarded, if any, for loss of future earning capacity.
CRIMINAL LAW – Sentence – Form 1 - Reckless grievous bodily harm – Use unregistered motor vehicle - Unauthorised entry – History of abusive relationships – lengthy criminal history –Failing to stop
Sentence – sexual intercourse with child under 10 years – act of indecency under authority – lower end of subjective seriousness – abused position of trust – offender co-operated with authorities – mental health
CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – workers injured
SENTENCING – aggravating factors – mitigating factors – objective seriousness – general deterrence –no record of previous convictions – good prospects of rehabilitation – plea of guilty – assistance to law enforcement authorities – remorse
EVIDENCE – pre-trial applications to reject evidence – ERISP interviews – references to Apprehended Violence Order against accused – admission to police regarding accused’s state of mind – relevance of intoxication – unfairness – discretion to exclude.
PRACTICE AND PROCEDURE – application pursuant to ss 64(2) Civil Procedure Act 2005 (NSW) to correct a mistake in the name of a party to the proceedings – whether defendant named by mistake – whether the mistake was neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party – whether discretion should be refused pursuant to ss 56-58 and 65(2)(b) – leave sought to discontinue against the current defendants and to join the named new defendants granted
TORT – defamation – application to pursuant to s 56A(2) Limitation Act 1969 (NSW) to extend the limitation period provided by s 14B of the Defamation Act 2005 (NSW) – limitation period expired on 6 September 2016 – amended statement of claim filed without leave on 30 August 2019 and rejected by the Registry – whether orders should be made for the irregularly filed pleading under ss 16 and 63(2) Civil Procedure Act 2005 (NSW) – whether an extension under s 56A should be granted – whether the court should extend the limitation period to the date the plaintiffs filed the amended statement of claim commencing defamation proceedings or is required to choose the date to which the limitation period is extended – whether there were unexplained delays at a time when the plaintiffs were aware of all the matters related to the defamation – whether plaintiffs’ knowledge of the likely contents of the matter complained of sufficient – plaintiffs warn of an application for preliminary discovery but fail to seek orders - whether preliminary discovery an obvious step – “not reasonable” in the circumstances for the plaintiffs to have delayed past October 2018 after their solicitors had written to the defendants’ solicitors on 8 June 2018 showing an appreciation of their clients’ entitlements to bring an application for preliminary discovery – application for extension of time refused
SENTENCE – Supply prohibited drug – methylamphetamine.
SENTENCING — Relevant factors on sentence – addict low in hierarchy – on parole – early plea – reasonable prospects if given assistance - intensive corrections order
SENTENCING: supplying a prohibited drug - ongoing supply of a prohibited drug - relevant factors on sentence – courier - trafficking for reward - requirement for deterrent sentences - alternative to full time custody considered - assistance to authorities - early guilty plea
Police Superannuation – Hurt on duty –Interests of persons entitled to receive benefits under STC schemes – Requirement of SAS Trustee Corporation to act honestly when exercising function – Effect of plaintiff attaining employment since leaving NSW Police – Major traumatic events during police career – Notice of claim – Reluctance to complain – Medical evidence with no authors of reports required for cross examination – Physical and psychological injuries.
PROCEDURAL AND OTHER RULINGS – determination of separate question pursuant to UCPR r 28.2 – whether the plaintiff’s injury falls within the scheme of the Motor Accidents Compensation Act 1999
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 from height over unprotected edge
CIVIL PROCEDURE — pleadings — amendment – summons for leave to appeal
CIVIL PROCEDURE — summary disposal — dismissal of proceedings — want of due despatch – non-compliance with directions – notice to produce – “fishing expedition”
Torts – negligence – motor vehicle accident – liability not in issue – extent of injuries to child pillion passenger on a motorcycle – extent of residual disabilities and injuries in issue – whether plaintiff has established a need for past or future commercial or domestic assistance – whether a loss of future earning capacity established
CRIME — Firearms offences — Unauthorised use/possession of firearm
CRIME — Firearms offences — Use/Possess prohibited pistol/firearm
SENTENCING — Non-parole period — Principles to be applied
SENTENCING — Non-parole period — Ratio of the non-parole period and balance of term
SENTENCING — Non-parole period — Standard non-parole period
SENTENCING — Non-parole period — Standard non-parole period
SENTENCING — Relevant factors on sentence — Form 1 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 — Objective seriousness
INJUNCTION – application by the plaintiff pursuant to s 46 District Court Act 1973 (NSW) and District Court Civil Practice Note 6 (Defamation List), paragraph 9 for removal by the defendant of material from the internet – balance of convenience issues in applications for interim injunctions defamation proceedings – application refused
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 – 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.