CRIME – arranging a marriage with the intention of assisting another to obtain a stay visa by satisfying the criteria of the visa because of the marriage
SENTENCING – whether the prosecution had established that the offender was motivated by a desire to obtain a financial benefit – onus on the prosecution to prove an aggravating factor beyond reasonable doubt – weight to be given to general deterrence where a person is conducting a business as an arranger of false marriages
SENTENCING – whether a term of full-time imprisonment is the only available option in circumstances where there has been unexplained delay on the part of investigating authorities – delay which is not attributable to the offender may constitute a powerful mitigating factor
PRACTICE AND PROCEDURE – application for summary dismissal of defamation proceedings as an abuse of process – whether leave to cross-examine the plaintiff should be granted – application refused
PRACTICE AND PROCEDURE – plaintiff suffers stroke after proceedings for personal injury are commenced – application made to appoint a tutor – plaintiff subsequently recovers and seeks orders for removal of the tutor – application supported by the tutor and the plaintiff’s medical advisers – application granted
BUILDING AND CONSTRUCTION – referral of question of rectification costs for defective works to referee – whether referee’s approach should be wholly or partly adopted – whether referee denied natural justice by closing his mind to the Builders’ evidence and contentions – whether apprehend bias – whether referee failed to give adequate reasons for its findings
COSTS – application by successful party to vary costs order from the usual costs order that cost follow the event – application for indemnity costs following rejection of offers of compromise – application for fixed sum for costs – lengthy history of litigation – difficulties in quantification of appropriate amount
Costs – application for specified gross sum costs order – application for indemnity costs – no appearance by plaintiff at trial and proceedings dismissed – application made nearly one year after costs order made
CRIME - sentence – cause grievous bodily harm with intent to cause grievous bodily harm – standard non-parole period – extenuating circumstances – unplanned unpremeditated offending – COVID-19 and circumstances of custody
Vehicular Manslaughter – street race – vastly excessive speed in built up area - young offenders – need for general deterrence – value of plea of guilty – assessment of moral culpability where only one offender impacts with deceased’s vehicle – onerous bail conditions
CRIME – sentencing – grievous bodily harm with intent – actual bodily harm in company – affray – three co-accused – dispute over facts – whether offender to be dealt with as juvenile or adult
Coal Miner’s Workers Compensation – Claims for weekly payments and lump sums – P employed by 1D as a technician and later supervisor of a Coal Handling Processing Plant (CHPP) (formerly known as a “washery”) at Mt Owen Mine - P later employed by 2D and 3D as an electrical technician and later electrical supervisor of CHPP at Liddell - Consideration of such duties, compared to underground coal mining and work in an open cut mine.
P developed osteoarthritis/degenerative disease in neck, shoulders, thoracic spine, hips and knees - Conflicting medical evidence on causation – Internal inconsistencies in P’s medical evidence - Court not assisted by recitation by experts of formulae - Need to explain why conditions were work related.
Lump sum compensation – Deductible proportion – WCA 1987 s68A as enacted by Act No 89 of 1995 applied to coal miners, not s68A and s168B enacted by Act No 120 of 1996 - Deductible proportion only applies to impairment of the back, neck and pelvis - Rules in Rodios v Trefle still applies to all other losses – at [77].
LICENSING – Breach – licence agreement – licence term – unpaid fees.
TORT – conversion – damages – conversion of business assets – value of goods.
TORT – bank guarantee – failure to return on demand – conversion.
CRIMES - SENTENCE - Supplying prohibited drug greater than the commercial quantity - participating in a criminal group contributing to criminal activity - supplying a prohibited drug in an amount greater than the large commercial quantity - supplying a prohibited drug greater than the indictable but less than the commercial quantity.
CRIMINAL LAW – Judgment – Judge alone trial - Endeavour to solicit murder – Persuade a person or persons unknown to murder a New South Wales police officer - Ongoing negative agenda in relation to the New South Wales Police and other justice officials - Criminal responsibility – Actus reus – Mental element - Mental Illness – Reliance on the mental illness defence. – Possess “bullet proof” vest
CRIMINAL – Sentence – Knowingly deal with proceeds of crime –Supply prohibited drug greater than large commercial quantity – Supply prohibited drug greater than indictable quantity and less than commercial - Indicia of drug supply - Assistance – Prospects of rehabilitation
Practice and procedure – application to set aside a subpoena – relevance – oppression – width of subpoena – evidence as to considerable time and effort of defendant’s officers required to search for documents
Costs – appropriate costs order in circumstances where plaintiff successful in obtaining order for damages and injunctive relief against the defendant Council – defendant Council submitted that the tort of private nuisance had not been established – injunctive relief obtained by the plaintiff was not as originally sought in Statement of Claim filed – alternative injunctive relief sought by plaintiff in Amended Statement of Claim filed with leave after the commencement of the final hearing – alternative submissions on costs – application by plaintiff for indemnity costs
CRIMINAL - Sentence –common assault – reckless wounding – intimidation - using explosive fluid - attempted cause grievous bodily harm to person with intent - aggravated sexual assault x 4 – contravene AVO - threaten witness to withhold true evidence - aggravated detention with the intention of assaulting and intimidating the victim (at the time of the detention actual bodily harm was occasioned to the victim) –history of domestic violence – severe physical injuries to victim and sequelae – objective seriousness of offences – continuing sequence of offending – Victim Impact Statement – high prospect of reoffending – dangerousness – aggregate sentence – subjective matters
CRIME — Money laundering — Dealing with money suspected of being proceeds of crime
SENTENCING — Penalties — Intensive correction order
SENTENCING — Relevant factors on sentence — Deterrence — General principles — Moral culpability Sentencing statistics
SENTENCING — Subjective considerations on sentence — Rehabilitation — Remorse — Unlikely to reoffend — Plea of guilty
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 - parity
CRIMINAL LAW - Sentence – Robbery armed with offensive weapon – attempted robbery armed with offensive weapon –Threaten violence – Actual violence – DNA match - On conditional liberty a the time of offending – Risk of institutionalisation.
CRIMINAL LAW – conviction appeal – dangerous driving offences – negligent driving occasioning grievous bodily harm – whether driver was negligent in reversing in petrol station
SENTENCING — Penalties — Imprisonmen
SENTENCING — Aggravating factors — Use of weapon — Record of previous convictions — Home of victim or any other person — Substantial harm, injury, loss or damage — Series of criminal acts — Limited planning
SENTENCING — Relevant factors on sentence — Deterrence — Factual basis for sentence — Establishing relevant matters — General principles — — Objective seriousness
SENTENCING — Subjective considerations on sentence — Drug addiction —Mental illness —Special circumstances
CRIME — Violent offences — Aggravated robbery
SENTENCING — Penalties — Imprisonment
SENTENCING — Aggravating factors — Breach of conditional liberty — In company — Record of previous convictions
SENTENCING — Mitigating factors — Not part of a planned or organised criminal activity — Plea of guilty
SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offences — Multiple offences — Objective seriousness
SENTENCING — Subjective considerations on sentence — Aboriginal offenders — Drug addiction — Mental illness — Special circumstances
Judge alone trial- assault occasioning actual bodily harm – break and enter and commit a serious indictable offence namely set fire to a house – witness with Multiple Personality Disorder, Bipolar Disorder and Schizophrenia- witnesses under the influence of methamphetamine – unreliable witnesses – hearsay- recognition and identification evidence
CRIME - SENTENCE - intimidation intending to cause fear of physical harm - supplying a prohibited drug - possess a prohibited weapon without permit - possess unauthorised pistol - drive motor vehicle during disqualification period
CRIME — Complicity — Accessory after the fact
SENTENCING — Guidelines for sentencing — Applicable to juvenile offenders
SENTENCING — Juvenile offenders — To be dealt with “according to law”
CRIME - SENTENCE - wound person with intent to cause grievous bodily harm - doing an act intending to cause a person to be called as a witness in a judicial proceeding to give false evidence.
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
OTHER – site supervisor and apprentice roofer replacing polycarbonate skylight in roof with metal sheets ̶ apprentice roofer put foot onto an old brittle polycarbonate sheet skylight and fell through the roof – worker died from injuries suffered in fall – neither worker had a fall arrest or restraint system in place at the time of the incident ̶ both workers should have had their safety harnesses connected by a rope to the available static line
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 – motor vehicle service and repair business – director decided to add the manufacturing of biofuel for internal use to business activities – inexperienced, young worker tasked with manufacturing biofuel – worker assisted by work experience placement student in pouring bucket of the methanol/sodium hydroxide mix into mixing vat – worker did not inspect the gas burner flame – gas burner flame was on under vat when mixture was poured – worker suffered burns – placement student suffered flash burns – outdoor gas burner used inside – LPG cylinder used incorrectly – inaccurate labelling and storage of hazardous chemicals – inadequate training – absence of risk assessment and appropriate controls
CRIMINAL PROCEDURE – application for trial by judge alone – reliance upon COVID-19 pandemic – weight of interests of justice to the accused and the community as considerations – impact of indefinite delay on commencement of trial
CRIMINAL – Sentence - supply prohibited drug – MDMA, methylamphetamine, gamma‑butyrolactone – extensive delays to sentencing caused by outstanding Local Court matters, possible traversal of pleas, eventual adherence to original pleas, Legal Aid grant – 2 rafts of offending – “off the rails” then “over the cliff” – aggravating features – offences committed while on conditional release - discounts applied - Form 1 matters – aggregate sentence – subjective matters
TORTS – negligence – motor accident – plaintiff was riding a bicycle into a roundabout when struck by defendant’s motor vehicle causing the plaintiff to suffer injury – liability admitted; DAMAGES – assessment of claimed heads of damage in light of plaintiff’s five previous motor vehicle accidents – plaintiff self-represented
EMPLOYMENT & INDUSTRIAL LAW – Contract – Workplace relationships – terms of contract – location of employment – effect of industrial award - breach of contract – repudiation of contract – measure of damages
CRIMINAL – Sentence – State and Commonwealth offences – Fail to reply with reporting conditions – Use carriage service to access child pornography – Possess child abuse material – On conditional liberty at time of offending -Specific deterrence – Depressive illness – Debilitating physical condition – Socially isolated.
CRIMINAL – Sentence – Disputed facts hearing - Aggravated detention – Assault - Actual bodily harm – Robbery in company – Each offender on conditional liberty at time of offending – Gratuitous cruelty - Special circumstances
CRIMINAL LAW – Sentence – Intimidate with intent to cause physical or mental harm – Assault occasioning actual bodily harm – Supply quantity not less than the large commercial quantity of prohibited drug applicable to MDMA – Sexual intercourse with a child deemed between the ages of 14 and 16 years – Supply indictable quantity of prohibited drug - Supply quantity not less than the large commercial quantity of prohibited drug applicable to Cocaine – Supply prohibited drug to a minor – Agreeing to supply a prohibited drug – Deal with the proceeds of crime – Middle man – Undercover operation – Prior good character
SENTENCING – possession of a commercial quantity of cocaine – assessment of the criminality of each co-offender having regard to role played in the offence – undertaking menial tasks – role at the lower end of the range of objective seriousness
CRIME - SENTENCE - failing to report obligations - take and detain with intent to commit serious indictable offence - intentionally sexually touching a child under 10 years of age.
EVIDENCE – application to lead tendency evidence – objection to cross-admissibility of tendency evidence as between complainants – objection to use of evidence of uncharged conduct as tendency evidence – objection to use of foreign criminal history – whether time gap between alleged offences overcomes relevance and probative value thresholds
CRIMINAL PROCEDURE – application for trial by judge alone – reliance upon COVID-19 pandemic
EVIDENCE – criminal proceeding – picture identification evidence – whether evidence said to constitute ‘recognition evidence’ – photoboard identification process conducted 2 years after alleged incident giving rise to charges – assault victim identified the accused – whether not reasonable to have conducted identification parade – whether victim’s identification of the accused influenced by later encounter between them – whether recognition evidence should be excluded in Court’s discretion
CRIMINAL PROCEDURE – Crown application to amend indictment to add further alternative charge – proposed alternative charge arises on same facts as existing charge – whether prejudicial to add proposed alternative charge
PRACTICE AND PROCEDURE – civil proceeding – joint application to adjourn hearing – reliance on COVID-19 pandemic as a reason to vacate – suitability and fairness of virtual courtroom process
SENTENCE – detain, reckless wounding and contravention of AVO offences – mid-range seriousness of offences – offender’s subjective circumstances – role of alcohol disorder in offending conduct – reliance of COVID-19 pandemic as a sentencing consideration
SENTENCING – Reasons for judgment – enter dwelling with intent to commit robbery in circumstances of special aggravation being armed and in company – wounding with intent to cause grievous bodily harm – supply prohibited drug greater than indictable quantity – use of knife by co-offender – different levels of participation by offender and co-offender in joint criminal enterprise – role of offender in drug supply – methylamphetamine and its effect on social disadvantage - distinction between subjective cases of co-offenders – history of mental illness – parity – totality – special circumstances – risk of institutionalisation – aggregate sentence.
PRACTICE – Removal of tutor – no justification for the appointment of the tutor
COSTS – Indemnity costs – plaintiff to pay defendant’s costs – evidence of unreasonable conduct on behalf of the plaintiff
Apprehended Personal Violence Orders - appeal against refusal of annulment - nature of such applications - APVOs should not be given lightly or on defective evidence - criteria for making such orders
CRIMINAL LAW - evidence - propensity, tendency and co-incidence - admissibility and relevance - tendency and co-incidence evidence under uniform evidence law - CRIMINAL LAW - evidence - propensity, tendency and co-incidence - joinder of person or counts - CRIMINAL LAW - particular offences - offences against the person - property offences - robbery - evidence
SENTENCING - supply large commercial quantity of cannabis leaf - rolled up quantity - multiple transactions - danger of double counting inherent in overzealous application of s21A Crimes (Sentencing Procedure) Act 1999
SENTENCING - relevant factors on sentence- early guilty plea – Form 1 - prior convictions for drug supply - role of offender - parity - mental illness - gambling addiction - COVID 19 pandemic considered - special circumstances
CRIME – Voir Dire Judgment – S 138 Evidence Act 1995 – Challenge to admissibility of evidence found in search without lawful search warrant – Unlawful search for drugs when search being undertaken pursuant to Firearms Act 1996 – Firearms Protection Order in place – Police coordinated raid on car wash premises – Indictable quantity of drugs found in ceiling – Grave impropriety construed against extremely wide powers granted pursuant to S 74A of Firearms Act 1996 – Legislation should be narrowly construed and strictly enforced because of the wide nature of the powers – Police evidence not accepted as reliable – Seriousness of impropriety outweighs probative value – Evidence of finding drugs not admitted
REFERENCE – referral to costs assessor – removal of referee – procedure – interpretation of orders – appointment – termination – procedure of the referee – estimation of fees – association with related party - bias – apprehended bias - costs
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 – existing pipe in hospital carrying nitrous oxide was incorrectly labelled as oxygen — offender was a contractor working in the medical gas industry who failed to take reasonable care — offender did not adequately test for cross-connection of newly installed neonate oxygen port — offender did not adequately inspect the oxygen concentration of the newly installed neonate oxygen port — offender failed to conduct the relevant testing in the presence of a hospital staff member experienced in the administration of medical gases to patients — nitrous oxide mistakenly administered to two newborn babies during emergency resuscitation — offence falls in the high range of objective seriousness
EVIDENCE – application to lead tendency evidence – objection to cross-admissibility of tendency evidence as between complainants – whether tendency alleged is too general – whether tendency evidence is of significant probative value
CRIMINAL - Sentence – sexual offences - adult maintain unlawful relationship with child (DV) – ongoing significant course of offending over substantial period –offender cited victim’s supposed initiation of, and willing involvement in, the sexual acts - risk of re-offending - subjective matters
CRIMINAL LAW – possess prohibited drug – search – strip search
APPEAL – not guilty – conviction appeal
INTERPRETATION – legislative provisions – meaning of search – police powers pertaining to a search
CRIMINAL LAW- prosecution- work health and safety- duty of persons undertaking a business – risk of death or serious injury
SENTENCE – objective seriousness- mitigating factors-aggravating factors- plea of guilty – discount of 25% because of the utility of the plea -general deterrence-specific deterrence- appropriate penalty-remorse - contrition
COSTS – prosecution costs
CRIMES – sentence - Aggravated Break Enter and Commit Serious Indictable Offence - Aggravated Enter Dwelling with Intent to Steal – Goods in Custody – Larceny of a Motor Vehicle – Form 1 – lengthy criminal history – Bugmy factors
CRIME — Drug offences — Possess prohibited drug
CRIME — Firearms offences — Unauthorised use/possession of firearm
CRIME — Money laundering — Dealing with money suspected of being proceeds of crime
SENTENCING — Relevant factors on sentence — Co-offenders
SENTENCING — Relevant factors on sentence — Form 1 offences
SENTENCING – Aggravated break and enter – steal motor vehicle – obtain benefit by deception.
SENTENCING – Relevant factors on sentencing – a strange, confronting and frightening incident in Barrack Heights - early guilty plea – structure of sentence – duress – criminal history – Bugmy factors – never lived normal community life – need for fulltime rehabilitation program – spec circumstances – COVID-19.
CRIMINAL – Sentence - possess non‑native CITES/regulated specimen - official abuse public office to gain advantage - deal with proceeds of crime, money/property, $10,000 or more – s16BA offences taken into account – systemic and ongoing breach of trust - flagrant disregard for responsibilities - aggregate sentence – subjective matters
TORTS –– Negligence –– Personal Injury –– Where Plaintiff was a model under management of First Defendant –– Plaintiff attends photoshoot with Second Defendant arranged through the First Defendant –– Plaintiff suffers injury after slipping and falling at rock pools at national park –– Where s 5F and 5L of the Civil Liability Act applied –– Meaning of recreational activity, dangerous recreational activity and obvious risk –– Where s 5M of the Civil Liability Act did not apply –– Whether First Defendant breached duty of care –– Whether Second Defendant owed Plaintiff a duty of care
CONTRACTS –– Breach of contract –– Where informal contract existed between the Plaintiff and the First Defendant –– Where agency relationship existed –– Terms of agency agreement and whether they were breached by failing to effect “appropriate insurance”
TORTS –– Negligence causing economic loss ––Whether First Defendant was negligent in releasing Second Defendant from the obligation to have insurance –– Whether the risk that the Plaintiff would suffer economic harm as a result of a lack of insurance was foreseeable –– No duty of care on behalf of the Second Defendant –– No evidence that Plaintiff suffered harm –– No evidence as to the Second Defendant’s capacity to satisfy the verdict
DAMAGES – Non-economic loss – Expenses – Economic loss – Domestic Assistance
CRIME — Drug offences — Enhanced indoor cultivation — Knowingly take part in enhanced indoor cultivation
SENTENCING — Appeal against sentence — Co-offenders
Defamation – Application for assessment of damages - offer to make amends out of time – statement of claim as concerns notice – Facebook publication– closed group – serious imputations including killer and stalker of women – limited dissemination – grapevine effect
TORTS – Negligence – motor vehicle accident – personal injury – whether compensable injury was suffered – whether plaintiff suffering from conversion disorder or malingering – case significantly determined by findings as to credit of plaintiff
DAMAGES – where claim for past care dependent on findings as to credit – where claim for out-of-pocket expenses dependent on claim for past care
PRACTICE – Removal of tutor
COSTS – Indemnity costs
Other matters – matter referred to appropriate authorities
SENTENCE – Armed robbery.
SENTENCE – Relevant factors on sentence - impact of armed robbery offences - vulnerable victim - desperate crime by desperate offender - accumulation – totality - background leading to early uptake of drugs - Henry guideline considered - early guilty plea - remorse – retribution - victim vindication - rehabilitation to the community - special circumstances.
SENTENCE – Aggravated break and enter – intimidation.
SENTENCE - Relevant factors on sentence - early guilty plea - multiple domestic violence offences - Form 1 - victim targeted - victim impact - need for denunciation - specific deterrence - prior record - limited prospects - need for drug rehabilitation and psychological treatment - special circumstances.
SENTENCING – causing grievous bodily harm, while reckless as to causing actual bodily harm- late acceptance by prosecution of pleas to and alternative count
SENTENCING – Relevant factors on sentence – guilty plea- life threatening wound - unprovoked stabbing – no rationale for offence - intoxication- remorse – need for alcohol addiction programmes- special circumstances
SENTENCE- Large commercial supply methylamphetamine.
SENTENCE - Relevant factors on sentence – rolled up drug quantity - Form 1 - role of offender – prior sentence for drug supply - on parole – parity - duress – remorse - COVID-19 - special circumstances - requirement for deterrent sentence - guilty plea not adhered to - guilty plea later adhered to - calculation of start date.
SENTENCE – multiple breaking entering and stealing – totality – parity – effect on third parties – circumstances of custody for foreigners – professional burglars from overseas
CRIME — Drug offences — Commonwealth offences — Conspiracy to import border-controlled drug — commercial quantity of MDMA — relevance of police undercover operation
SENTENCING — relevance of COVID-19 pandemic to determination of appropriate sentence — onerous conditions in custody — institutionalisation.
CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – workers injured
COSTS – assessment – review by costs review panel – propriety of costs review panel undertaking re-assessment on review – whether failure to give reasons, or adequate reasons amounts to decision on a matter of law to found right to appeal – selection of hourly rate for different members of plaintiffs’ legal team – relevance of conception of ‘proportionality’ – determination of negotiation and assessment costs
Civil procedure - adjournment application – whether a Notice of Motion should be further adjourned as sought by the plaintiff
Torts - medical negligence - alleged failure by plaintiff to file and serve with his Statement of Claim appropriate expert’s report or reports – alleged failure by the plaintiff to thereafter file and serve appropriate expert’s report or reports - application by defendants under Part 31.36 to dismiss the whole of the proceedings
CRIME – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury to other persons
WORK HEALTH AND SAFETY – whether pleaded measures reasonably practicable – safety management system – objective knowledge of defendant – mere inadvertence or inattention – unforeseeable behaviour of a disobedient worker – falsification of records – reasonably foreseeable
OTHER – commissioning of works – cross-contamination of medical gases – babies exposed to nitrous oxide inadvertently
Crime – sentencing – co-offenders – take and drive motor vehicle – dishonestly obtain property by deception – receive property stolen outside state – attempted robbery - drive manner dangerous – use offensive weapon – common assault – aggravated take and detain person for advantage – mild intellectual disability rather than mental condition – joint criminal enterprise - aggregate sentence
TORTS – negligence – personal injuries – plaintiff was a passenger on a ferry that collided with a wharf – breach of duty of care admitted; DAMAGES – assessment of claimed heads of damage
CRIME – importing tobacco products with intent to defraud revenue – substantial amount of money defrauded
SENTENCING – application of the principle of parity where co-offenders sentenced to full-time imprisonment
SENTENCING – availability of an Intensive Correction Order where excellent rehabilitation has been demonstrated
SENTENCING – relevance of the COVID-19 pandemic on sentence
SENTENCING - Indecent assault of a child - sexual intercourse with a child – multiple victims
SENTENCING - Relevant factors on sentence – child victims - victim impact – old offences - applicable maximum penalties - application of principle - intellectually disabled offender - no other offending.
SENTENCE- cannabis supply
SENTENCE- relevant factors on sentence -courier- multiple transactions- first time in custody- strong pro-social support- used time on remand to advantage- - excellent prospects of rehabilitation - intensive correction order appropriate and in community interest
SENTENCE- drug supply- criminal group
SENTENCE- relevant factors on sentence - guilty plea- member of criminal group - parity not a significant issue - subordinate role - first offender - drug addiction –gambling addiction– general deterrence considered - other purposes of sentencing apply here - special circumstances - strong prospects for rehabilitation
COSTS – Calderbank offers made by the defendants – defendants insisted upon a non-disparagement and confidentiality clause – not part of relief sought in proceedings – rejection by the plaintiff was not unreasonable
COSTS – offers made at confidential mediation – mediation agreement made any such offers confidential – defendants not entitled to indemnity costs from settlement discussions during mediation
COSTS – offer of monetary settlement “subject to a settlement deed” – no terms proposed for deed in offer – offer not complete and thus not capable of acceptance or consideration
CIVIL PROCEDURE – whether power to amend a pleading should be exercised –– internal inconsistencies in the proposed pleading – particulars not provided in proposed pleading – proposed amendment not appropriate in substance or form – leave to amend refused
EVIDENCE – legal professional privilege – dominant purpose test – privilege claimed over school incident reports collected by school principal – reports created for the dominant purpose of defendant being provided with legal advice in relation to an anticipated court action – claim for privilege upheld
SENTENCING- sexual intercourse without consent- intoxicated semi-conscious victim
SENTENCING- relevant factors on sentence- early guilty plea- intoxication- victim unaware of offence- victim impact- need to vindicate victim’s dignity- negative impact of gaol sentences on offender considered - special circumstances
CRIMINAL LAW – Judgment - Application to exclude evidence – Pretext phone call - Surveillance Device Warrant - Recorded telephone conversations between complainant and accused – Oppressive conduct – Admission obtained in consequence of impropriety - Coercive behaviour – Proper records not maintained by police with regards to surveillance device – Coercive and threatening texts – Unfairness - Misleading statements – Falsehoods told by the complainant to the accused – General right to silence subverted – Denial of procedural rights – Complainant regarded as agent of the State
CRIMINAL LAW – Sentence – Supply prohibited drug greater than commercial quantity – Methylamphetamine – Form 1 – Possess prohibited drug – Deal with the proceeds of crime
CRIME – sentencing – aggravated break and enter – larceny – drug addiction – favourable findings regarding rehabilitation and risk of reoffending – ICO appropriate
SENTENCING - attempt armed robbery of service station - threat to use cigarette lighter to ignite petrol and LPG gas cylinder.
SENTENCING - Relevant factors on sentence - vulnerable victim providing valuable community service - mentally disturbed offender - hardship as a child - early guilty plea - remorse - COVID -19 concerns - special circumstances.
SENTENCING – disputed facts – fact finding - applicable principle applied – defence version rejected - prosecution version proved beyond reasonable doubt – facilitated supply of Ruger pistol.
SENTENCING – relevant factors on sentencing – firearms and prohibited weapon offences - late guilty plea – Form 1 matters – parity - maximum penalty and standard non-parole period considered - Intensive Corrections Order not appropriate.
SENTENCE – Intimidation - sentence after trial
SENTENCE - relevant factors on sentence - fact finding - offender in company - offender armed – giving full effect to acquittal on more serious count - doubt as to nature of weapon - enforcement of drug crime debt - disadvantaged background – limited criminal record - on bail – possibility of Local Court disposition considered - community safety best served by Intensive Correction Order.
CRIMINAL LAW - Sentence - Child sexual abuse - Possess child pornography - Use child for pornographic purposes - Offender video recorded his offences - Some offences in worst category - Relevance of circumstance that offender may die in gaol
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 – construction of a masonry brick wall – no risk assessment or control measures – no temporary bracing or timber framing installed – no exclusion zone – wall collapsed in high wind and crushed subcontractor of bricklaying contractor
CRIME — Sexual offences — Act of indecency
CRIME — Child sex offences — Child abuse material — Production/Dissemination/Possession
CRIME — Child sex offences — Sexual intercourse with child >10 <14
CRIME — Child sex offences — Procuring or grooming child for unlawful sexual activity
CRIME — Sexual offences — Indecent assault
CRIME — Child sex offences — Child abuse material — Production/Dissemination/Possession
CRIME — Child sex offences — Child abuse material — Using carriage service for child pornography material or child abuse material
CRIME — Child sex offences — Sexually Touch child <10
CRIMINAL LAW – Sentence - Preparing or planning to commit an offence of engaging with sexual intercourse with a child outside of Australia - engaging in sexual activity other than sexual intercourse with a child outside of Australia - aggravation - Child being under the care or supervision of the offender- Groom child to engage in sexual activity outside of Australia
Criminal law - Sentence - Juvenile offender - Aggravated break and enter and commit serious indictable offence (robbery) - Elderly female victim - Serious crime weighing against rehabilitation - Parity with sentence of co-offender - Need for specific deterrence
CRIME – sentencing - Possess Loaded Firearm in a Public Place - Possess Shortened Firearm (Not being a Pistol) - Possess Prohibited Weapon - Possess Prohibited Drug
BUILDING AND CONSTRUCTION – referral of question of rectification costs for defective works to referee – whether referee’s approach should be wholly or partly adopted – whether a conclusion by referee contrary to evidence
SENTENCING - robbery armed with offensive weapon SENTENCING- relevant factors on sentence- on parole for similar offence on same store- symbolic offence committed to ensure return to gaol – institutionalised offender- background of profound deprivation
TORT – defamation – defence of contextual truth pursuant to s 26 Defamation Act 2005 (NSW) – plaintiff brings application to plead additional imputation and to strike out contextual imputations – application to strike out contextual imputations abandoned – plaintiff brings application to “plead back” defendants’ contextual imputations – defendants consent conditionally upon the preservation of their entitlement to continue to rely upon the contextual truth defence already pleaded – leave granted conditional upon the defendants’ continued preservation of the contextual truth defence
SENTENCING – Drug supply (cannabis); cultivate cannabis by enhanced indoor means.
SENTENCING - Relevant factors on sentence – late plea – disputed facts – disputed expert opinion about cannabis yields and value - disputed expert opinion relevant principles applied – relevant principles cannabis cultivation and supply applied – need for therapy – medium low risk of reoffending – current employment – can Intensive Correction Order meet the purposes of punishment – community safety considered.
SENTENCING – Robbery in circumstances of aggravation – Weapon, being a knife – On bail during offending – Homeless at time of the offending – Whether Henry guideline applies – Significant rehabilitation since offending – Whether ICO appropriate in the circumstances – Strong subjective case
CRIME – sentence – vehicle collision – grievous bodily harm – failing to stop to give assistance – negligent driving and other offences – no remorse – no special circumstances
SENTENCING – multiple sexual and indecent assault on step-daughter - sentence after trial
SENTENCING – relevant factors on sentence- multiple offences - six year period – victim a child - relationship between offender and victim - hardship in custody – PTSD - separation from family
COSTS – Costs from earlier litigation assessed and paid – costs later reduced upon review – action for recovery of overpayment – whether initial payment was part of accord and satisfaction so as to preclude recovery of overpayment – held: payment was not part of an accord and satisfaction but was made to discharge the liability created by first costs assessment
ASSIGNMENT OF DEBT – assignment of debt said to be owing by cross-defendant to a trust – whether a debt was in fact owed by cross-defendant to trust – whether a deed setting out commercial arrangements imposed a personal obligation on cross-defendant to fund part of losses of the trust – general principles of interpretation of commercial agreements – held: deed imposed no obligation on cross defendant personally – held: no right of recovery by trustee against cross-defendant – no debt capable of assignment to cross-claimant
WORDS AND PHRASES – mutatis mutandis
MOTOR ACCIDENT – extension of time to commence proceedings – time expired – discretion of Court to permit extension – whether full and satisfactory explanation provided – whether damages exceed requisite threshold
SENTENCING – Multiple offences - assault with intent to take motor vehicle - aggravated enter with intent - intimidation - Form 1 matters - s 166 Criminal Procedure Act matters.
SENTENCING – relevant factors on sentence – late guilty plea - - Form 1 - bizarre but intimidatory behaviour by the offender towards victim - offender not himself - offender’s mental condition - drug use - considerable help needed to adjust to normal community life - special circumstances - accumulation on other sentences - need to preserve ratio between total effective sentence and total non-parole period - no need for rigid percentage deductions when reducing sentences for guilty plea
TORTS – action for damages for personal injury arising from alleged negligence – occupant of residence allegedly pushed co-occupant down a flight of stairs – occupant admits to pushing co-occupant but not down the stairs – whether issues of liability and damages regulated by the Civil Liability Act 2002 (NSW) or the common law (not modified by that legislation) – whether intent to injure established – standard of proof – whether duty of care and breach established – factual causation
DAMAGES – nature and extent of physical injury – claim of psychological injury – relevance of pre-incident diagnoses of Post-Traumatic Stress Disorder and depression – claims for aggravated and exemplary damages
CRIME. SENTENCE. SEVERITY APPEAL.
Minor adjustment of sentences to allow appellant to keep his Housing Commission accommodation, to promote rehabilitation.
SENTENCING - Firearms Act offences
SENTENCING - relevant factors on sentence - multiple Firearms Act offences- Forms 1 - breach of firearms prohibition order - reason for possession ambiguous - multiple mental health issues - exposure as a child to drugs and violence - special circumstances
SENTENCING- Sexual intercourse with a person under care - Intentionally sexually touch a child- Aggravated indecent assault
SENTENCING- relevant factors on sentence - two child victims - offender child victims stepfather - early acceptance of responsibility - Form 1 matters - seriousness of sexual assaults against children- deterrent and retributive sentences required- victim impact – remorse
TORTS – intentional harm – factual findings – plaintiff was the victim of assault, battery and wrongful deprivation of liberty committed whilst he was a customer in a brothel – rejection of defences claimed pursuant to s 5F, s 50, s 52 and s 53 of the Civil Liability Act 2002 (NSW); DAMAGES – assessment of claimed general, aggravated and exemplary damages
COALMINERS WORKERS COMPENSATION – COSTS.
Medico-legal disbursements. – The Court has no power to order payment of disbursements above a maximum fixed by the Legal Profession Uniform Law Application Regulation 2015, Part 5, clause 25 and Schedule 2 to that Regulation.
CRIME. SENTENCE.
Drug Misuse and Trafficking Act 1985 offences contrary to sections 23(1A) and 23(2)(a) – Offender not a principal but paid to cultivate plants (first offence) and to reside in drug growing house (second offence). Prior good character. Not a drug user. Working to send money home to Vietnam.
PRACTICE AND PROCEDURE – plaintiff’s application to tender a medical report – report not served on the defendant in accordance with Court rules – whether ‘exceptional circumstances’ arise to justify admission of report – whether the admission of the report would be prejudicial to the defendant
COSTS – application to amend pleadings – multiple iterations of proposed pleading served by plaintiff – no exception to general rule that amending party is obliged to pay the other party’s costs thrown away by reason of the amendment – whether costs ought be payable forthwith – plaintiff maintained appropriateness of pleading despite detailed objections – plaintiff subsequently radically altered pleading – order made requiring costs to be paid forthwith
CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation
CRIME — Sexual offences — Sexual intercourse without consent
SENTENCING - after trial - indecent assault - sexual assault – old offences.
SENTENCING- relevant factors on sentence - available maximum penalties - victim impact – delay -strong subjective case - special circumstances.
SENTENCING – firearm supply - shotgun and bolt action rifle – intermediary - breach of firearms prohibition order - Form1 matters taken into account.
SENTENCING - relevant factors on sentence - background of disadvantage and deprivation - never lived normal community life - institutionalised offender.
SENTENCING – multiple offences- drug supply- firearm possession- Form 1 matters taken into account
SENTENCING – relevant factors on sentence- institutionalised offender- background of deprivation- never lived a normal community life- need for assistance on release
SENTENCING – multiple sexual offences old and fresh - aggregate sentence.
SENTENCING – after trial – old offences - two complainants - mixed verdicts – convictions for sexual and indecent assaults - full benefit of acquittals.
SENTENCING - relevant factors on sentence - after trial - baby sitter - breach of trust-victim impact - young immature offender – delay - multiple offences - structure of sentence.
SENTENCING- after guilty plea- recent offence- sexual intercourse child under 16 – child aged 15 years 11 months 3 weeks – consent – in company - age difference - child isolated - adult offender - guilty plea - custodial sentence required on other matter.
SENTENCING – Indecent assault – Committed over a period of 6 years – Two children involved – Children between ages of 5 and 12 years old throughout duration of the offences – Offender uncle to the children – Breach of position of trust or authority – Offences not isolated – Where complainants provided victim impact statements – Plea of guilty on first day listed for trial – 10% discount applied – Limited evidence remorse – Prior good character – First time in custody – Good prospects of rehabilitation – Evidence of impact on family members – Finding of special circumstances – Application of section 25AA of Crimes (Sentencing and Procedure) Act 1999 (NSW)
CRIMINAL LAW – prosecution – work, health and safety – duty of person undertaking business – risk of death or serious injury – aggravating and mitigating factors – specific deterrence – general deterrence – discount of 25% for the utility of the plea
CRIME. SENTENCE.
Entering a building with intent to commit an indictable offence – Crimes Act 1900 section 114(1)(d) – Form 1 matter: intimidation – At the time of the offences offender 26 years old and suffering Major Depression with Anxiety – Enters through roof of a residential apartment seeking to reconcile himself with former girlfriend – Culpability of offender attenuated by psychiatric illness – Offender makes full recovery and prospect of reoffending negligible – Complainant wanted charges withdrawn – Police alleged more serious offences but they were withdrawn – Excellent subjective circumstances – Conditional Release Order for 12 months.
SENTENCING - Relevant factors on sentence -multiple offences - victim vindication – retribution - young offender - history of profound disadvantage – never had the opportunity to live a normal community life - finding of special circumstances.
CRIMINAL LAW – work health and safety – exposing worker to a risk of death or serious injury
SENTENCING – objective seriousness - deterrence – aggravating factors - mitigating factors – substantial harm, injury, loss or damage – no record of previous convictions – prospects of rehabilitation – plea of guilty – remorse – capacity to pay
CRIME — Property offences — Enter dwelling-house with intent to commit serious indictable offence — Larceny
SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions — Financial gain
SENTENCING — Mitigating factors — Plea of guilty — Injury, harm, loss or damage not substantial
SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offences — General principles — Purposes of sentencing
SENTENCING — Subjective considerations on sentence — Age of offender — Drug addiction — Special circumstances
Costs in the Compensation Jurisdiction of the District Court – Successful defendant must prove on the balance of probabilities that the application to this Court was frivolous, vexatious, fraudulent or brought without proper justification – Defendant relies on “without proper justification” – Court not so persuaded where question of statutory interpretation was res integra.
STATUTORY INTERPRETATION
Workers Compensation (Dust Diseases) Act 1942 – Whether a person who performed voluntary work for a hardware business and was exposed to asbestos dust in the cause of that work is a “worker” for the purposes of this Act – Held, to be a “worker” under this Act, a person must be a “worker” as defined by the Workplace Injury Management and Workers Compensation Act, 1998.
CRIME. APPEAL.
Appeal from the Local Court – Severity - Possession of cannabis – Unusual case - Osteogenesis imperfecta – schatzker fracture – Persistent pain – Appellant self-medicated with cannabis – In light of medical circumstances appellant’s application granted.
Historical sexual and physical offences – offences committed within institutional setting – multiple victims - offending more serious because of abuse of authority – advanced age and declining health of offender –special circumstances – imprisonment.
CRIME – sentence – sexual intercourse without consent – indecent assault – offending occurred in victim’s home – intellectual impairment of offender – Bugmy principles – accumulation and concurrency