CIVIL PROCEDURE – application for injunction orders for intimidation– defamation – breach of privacy – ex parte proceeding – whether there is a serious question to be tried – balance of convenience – evidence of a “campaign of extortion” by the defendant to obtain financial advantage in exchange for ceasing to publish – interim injunction granted
CRIME - sexual offences - SENTENCING - relevant factors on sentence - plea of guilty - form 1 - subjective considerations on sentence - special circumstances
CRIME - child sex offences – child abuse material - use carriage service to access child abuse material – use carriage service to possess/control child abuse material
Crime – Sentence – Breaking and entering dwelling house with intent to commit larceny, knowing persons inside – Break and enter dwelling house with intent to commit larceny in company
CRIME – Appeal from Local Court – Domestic violence assault occasioning actual bodily harm – Notice of Motion to adduce new evidence – Report of doctor commenting on injuries shown in contemporaneous photograph of complainant – Doctor had sufficient expertise to comment – Report raises unnecessary issues and does not advance nature of appeal – Not in interests of justice to be admitted.
COSTS — Security for costs — Jurisdiction against natural person — Proper construction of UCPR rules 42.21 (e) and (f) — “Suing not for his or her own benefit but for the benefit of another person” — In context of solicitor agreeing to accept outstanding fees by instalment — Laith & Fadi Investments v Fogo Brazilia Holdings Pty Ltd [2024] NSWSC 1508; Tyneside Property Management Pty Ltd v Hammersmith Management Pty Ltd [2013] NSWCA 404; and Longjing Pty Ltd v Perpetual Nominees Ltd [2017] NSWSC 1690 explained and distinguished — No jurisdiction engaged — In any event application dismissed on discretionary grounds — Claim defensive in nature — Delay — Quantification — As to corporation — Application dismissed on discretionary grounds
CRIME — Multiple drug supply offences — Supply prohibited drug — Commercial quantity — Not less than large commercial quantity CRIME — Multiple firearms supply offences — Supply of illegal firearms — Supply pistol SENTENCING — Relevant factors on sentence — Balancing competing factors of high level of criminality as shown in maximum penalties against strong subjective case of Offender
CRIME – SENTENCE – Entering a dwelling house with intent to commit a serious indictable offence, AOABH, in circumstances of aggravation: armed with baseball bat – ABH was a small wound requiring 3 stitches – Disputed facts hearing – Disputed facts decided in favour of offender – Whether s 10 available to offender – 55 year old man of prior good character – No conviction recorded – 2 year CRO.
TORT – defamation – motion for summary dismissal - adequacy of concerns notice and statement of claim – plaintiff’s address for service not a place of business – whether costs should be awarded on an indemnity costs
COSTS – plaintiff fails to pay first tranche of payments for security for costs despite two adjournments – plaintiff leaves jurisdiction and refuses to give a full address for his place of residence overseas – application by defendants for dismissal of cause of action granted – costs – application for gross sum costs order – no issue of principle
CRIME – Appeals – Conviction Appeal from Local Court – whether Magistrate erred in finding that consent is not an available defence to assault occasioning actual bodily harm – whether Magistrate erred in admitting tendency evidence – whether tendency notified was too general to have significant probative value – whether Magistrate was entitled to rely on parts of central witness’ evidence despite rejecting other parts of the central witness’ evidence on the basis of credit.
CRIME – Poison to injure person – Offence committed in custody – Cellmate’s drink spiked with drain cleaner – Alkaline burns to mouth, oesophagus, and stomach – Victim vulnerable due to old age and health issues – Offence potentially undercharged SENTENCING – Form 1 offence – Possess identification information to commit serious indictable offence – Maximum penalty for Form 1 offence greater than principal offence SENTENCING – Subjective circumstances – Plea of guilty – Guarded remorse and rehabilitation – Extensive and serious criminal history – Offender has spent most of adult life in custody – Offender institutionalised – Mental health issues – Obsessive Compulsive Disorder and Paedophilia
CRIMINAL PROCEDURE – whether questions can be submitted to the Court of Criminal Appeal – when questions submitted after delivery of reasons that the prosecutor had failed to establish elements of the relevant offences – whether surrogate right of appeal – whether questions proposed by the prosecutor to be submitted were questions of law within the meaning of s 5AE Criminal Appeal Act 1912
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – maximum penalty COSTS – prosecutor’s costs
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – maximum penalty COSTS – prosecutor’s costs
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury death of worker SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine - appropriate penalty SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities
CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employer – risk of death or serious injury – injury to worker WORK HEALTH AND SAFETY – use of mobile plant - likelihood of risk occurring – whether defendant had knowledge of risk - whether risk reasonably foreseeable – workers not given adequate training
CRIME — Firearms offences — Enter dwelling with the intent to steal firearms in company — Offender already subject to firearms prohibition order — Aggregate sentence of imprisonment — Deprived childhood — Special circumstances found for longer period on parole — Prospects of rehabilitation tied to remaining drug-free
SENTENCE – Attempting to possess a commercial quantity of an unlawfully imported border controlled substance – Approximately 900g pure methamphetamine – Offender collected consignment – No evidence of earlier involvement with importation – Defence submitted he was not aware of the contents of the consignment – No alternative explanation put before the jury – Guilty verdict following brief jury trial – Offender reported to psychiatrist that he was asked to collect consignment in exchange for gambling money – Previous conviction for cultivating a commercial quantity of a prohibited plant – Offender emigrated to Australia from Vietnam as a young man
Crime – Sentence – Aggravated carry out sexual act with child 10-16 years – Sexual touching child 10-16 years – Sexual intercourse with child under 14 years – Sexual touching child under 16 years – Carry out sexual act towards child under 10-16 years – Sexual intercourse with child 10-14 years
CRIME — Child sex offences — Sexual intercourse with child >10 <14 — Circumstances of aggravation CRIME — Child sex offences — Indecent assault — Circumstances of aggravation CRIME — Child sex offences — Incite act of indecency child — Circumstances of aggravation SENTENCING — Mitigating factors — Prior good character SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Delay — Maximum penalty — Objective seriousness SENTENCING — Sentencing procedure — Sentence after trial — No evidence to support a conviction on one count — No power to stay proceedings after a jury verdict — No power to reject jury guilty — No facts to sentence for on count — Only remedy s 10 Crimes (Sentencing Procedure) Act 1999 (NSW) disposition SENTENCING — Subjective considerations on sentence — Drug use and mental health decline after the commission of offences
CRIME — Sentencing — Recklessly cause grievous bodily harm — Objectively serious unprovoked assault — Victim suffered significant injuries — Early plea — Mental health of Offender — Contested diagnosis of schizophrenia — Deprived childhood — Poor criminal history — Homeless — Prospect of appropriate treatment low — Protection of community given significant weight — Limitations in criminal justice system dealing with Offenders suffering mental health issues in an appropriate way
AVIATION — Crop dusting — Statutory liability — Damage caused by aircraft while in flight — Strict liability imposed by Damage By Aircraft Act applies to damage caused to crops by crop dusting using incorrect herbicide BREACH OF CONTRACT — NEGLIGENCE — Crop dusting — Allegation that Defendants sprayed Plaintiff’s cotton with herbicide contaminated with 2,4-D, which is toxic to young cotton, causing the Plaintiff loss and damage — Finding of breach of contract and liability under the Damage by Aircraft Act based on inferences — No breach of duty of care established DAMAGES — Proper measure of damages to be awarded for economic loss occasioned by damage to particular cotton fields
CRIME — Violent offences — Robbery in company CRIME — Complicity — Accessory before the fact CRIME — Property offences — Take and drive a conveyance SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Specific deterrence — Moral culpability — Objective seriousness SENTENCING — Subjective considerations on sentence — Aboriginal offender — Drug addiction — Mental health — Institutionalisation — Childhood deprivation and multiple traumas
TORT – DEFAMATION – application to set aside jury requisition – whether requisition out of time – whether requisition filed irregularly – ‘case-splitting’ issues
CRIMINAL- Sentence - dishonestly obtaining a financial advantage by deception x 15 - knowingly deal with the proceeds of crime x1 – total sum obtained over 1 year - $500,052.42 - creation of profile for a fake contractor in program used by the victim company to manage payments – falsifying stocks, payments, moving money through accounts - considerable planning involved - breach of position of trust – subjective matters
PERSONAL INJURY – plaintiff injured while rolling a large oil container down a ramp, an interim system set up pending investigation and repair – liability of landlord and owner – applicability of s 151Z of the Workers Compensation Act 1987 (NSW) – damages PRACTICE AND PROCEDURE – adjournment of hearing due to ill health of medical expert – late application by first defendant to amend defence and bring a cross-claim against the second defendant – inability to hear application before the trial resumption date – application for leave to amend and file cross-claim refused
BUILDING AND CONSTRUCTION — Contract — Damages – claim by builder for cost of variations – alternative claim in quantum meruit BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — cross-claim by owner for damages for alleged defects and incomplete works – claim for restitution of money paid under the Building and Construction Industry Security of Payment Act 1999 (NSW)
EVIDENCE — Admissibility — Section 318 Workplace Injury Management and Workers Compensation Act 1998 (NSW) — Proper construction — Material not reasonably available
TORT - defamation – parents sued for signs placed by their small son pinned to his bedroom window and on the footpath outside – the first sign consists of the words “the Pooh Heads” chalked on the footpath and the second sign is a cartoon of a penis and terms of abuse (“cocksucker’; “mind your own business”) – whether publications were actionably defamatory or mere vulgar abuse – no evidence signs seen by third party – proceedings struck out with costs
TORT – defamation – three jury trials aborted, two of which resulted from the plaintiff’s ongoing health issues – whether a fourth trial by jury should be ordered or whether the current (third) trial should continue to completion – “other issue” – discretion – trial should continue before trial judge sitting alone
TORT – defamation – plaintiff requisitions a jury - proceedings set down for trial with a jury – trial adjourned after plaintiff suffers an atrial fibrillation episode during examination in chief – plaintiff’s cardiologist certifies plaintiff now fit to give evidence and be cross-examined in a jury trial - defendants bring application pursuant to s 21(1) of the Defamation Act 2005 (NSW) (“the Act”) for an order that the trial of these proceedings proceed without a jury – whether medical evidence satisfactory – whether, in the exercise of the unfettered discretion under s 21(1), there are other reasons why the court should order that the trial should proceed before a judge alone – application dismissed with costs
SENTENCE - Deal with proceeds of crime; by deception did dishonestly cause financial disadvantage; possession of false documents with intention to induce a person to accept them as genuine thereby causing financial disadvantage; deal with ID information to facilitate commission of an indictable offence; multiple offences; aggregate sentence
SENTENCING – Drug offences – Supplying less than a commercial quantity of a prohibited drug – Participating in a criminal group involved in supplying a prohibited drug – Dealing with proceeds of crime – Attempting to possess a large commercial quantity of a prohibited drug – Cocaine – Related offences – Possessing an anabolic or androgenic steroidal agent – Possessing ammunition without holding a licence, permit, or authority SENTENCING – No criminal history – Comparatively lesser role and length of time involved in criminal group than co-offenders – Acting under the direction of another – Parity – 10% discount for utilitarian value of plea – Rehabilitation during extended period on bail SENTENCING – Pre-sentence custody of 1 year and 7 months followed by 1 year and almost 5 months on bail – Head sentence of over 3 years – Consequent requirement for the State Parole Authority to make a parole determination, rather than automatic release to statutory parole on expiry of non-parole period (as with sentences under 3 years) – Offender required to enter into custody despite non-parole period expiring and intention that he be immediately released to parole
SENTENCING – Child sex offences – Possess child abuse material – Sexual intercourse with child >14 <16 – Procure child for unlawful sexual activity – Form 1 offences and uncharged acts SENTENCING – Offender on conditional liberty at time of offending – On parole for similar offences – Present offending an escalation in behaviour – Breach of Child Protection (Offenders Registration) obligations – Lack of insight into offending CRIME – Met child via encrypted social media and communications application – Sent child abuse material and pornography to child – Offered to purchase items for child – Arranged to meet child in person before school – Provided child with methylamphetamine immediately prior to assault – Sexual intercourse in public park toilet block – Filmed assault – Child in school uniform at time of assault
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury to worker SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine – parity - appropriate penalty SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities
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 - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine - appropriate penalty SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty
CRIME — Violent offences — Detain for advantage while in company with intent to commit the serious indictable offence SENTENCING — Mitigating factors — Late plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Co-offenders — Parity — Deterrence — Specific deterrence — Form 1 offences — Moral culpability — Objective seriousness SENTENCING — Subjective considerations on sentence — Age of offender — Immaturity — Victim of domestic violence— Drug addiction — Mental disorders — Trauma in childhood — ICO not appropriate
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – maximum penalty DETERRENCE – general and specific deterrence DUTY HOLDERS – there may be more than one duty holder, but that does not exculpate a PCBU from the duty imposed by the legislation AGGRAVATING AND MITIGATING FACTORS – treatment of the injured worker after the incident COSTS – prosecutor’s costs
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – maximum penalty EXPARTE PROSECUTIONS – elements of the offence COSTS – prosecutor’s costs
BUILDING AND CONSTRUCTION — Residential building work — Claim by homeowner against builder for breach of statutory and contractual warranties CONTRACT — Proper construction of standard form of Master Builders Association Residential Building Contract STATUTORY CONSTRUCTION — Home Building Act 1989 (NSW) — Proper construction of s 18B and s 7E warranties as incorporated in contract STATUTORY CONSTRUCTION — Home Building Act 1989 (NSW) — Proper construction of “relates solely” in Schedule 2 cl 2(2) STATUTORY CONSTRUCTION — Home Building Act 1989 (NSW) — Proper construction of “specific purpose or result” for purpose of s 18B(1)(f) — Various defects the subject of the claim relating to leaking roof caused by and thus relating solely to defective design — Claim dismissed STATUTORY CONSTRUCTION — Home Building Act 1989 (NSW) — To what extent can builder be liable for failures caused by design — The Owners – Strata Plan No 66375 v King [2018] NSWCA 170 distinguished and explained
TORTS – trespass to goods – false imprisonment – whether the plaintiff consented to search – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 21 – whether police officer had reasonable grounds to suspect plaintiff had possession of prohibited drug DAMAGES – nominal damages – no entitlement to aggravated or exemplary damages
SENTENCING — Child sex offences — Using a carriage service to transmit child abuse material – Using a carriage service to access child abuse material – Using a carriage service to possess or control child abuse material – Strong subjective circumstances – Advanced age – Health issues – “exceptional circumstances”
Crime – Sentence – Cause person to take intoxicating substance with the intention of enabling him to commit the indictable offence of sexual touching without consent – Sexual touching without consent
TORTS – Trespass to person – False imprisonment, battery – Trespass to goods – Alleged unlawful search – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 21 – power to stop, search and detain a person without a warrant if police officer suspects on reasonable grounds that the person has in their possession or under their control a prohibited drug
TORTS – alleged police negligence in looking for a person at night – vacation of hearing sought due to High Court appeal in another matter – factors to be considered
WORKERS COMPENSATION — Common law remedies — Discretion to grant leave to commence proceedings out of time for the purpose of Workers Compensation Act 1987 (NSW), s 151D — Relevant matters to be considered in context of broad discretionary power — Explanation for delay — Strength of proposed case — Detriment to Defendant — Leave granted
CIVIL – WORKERS COMPENSATION – DUST DISEASES – Appeal from decision of Workers Compensation (Dust Diseases) Authority – Quantum of lump sum payment to deceased worker’s dependent wife disputed – Insufficient evidence led by plaintiff to establish case.
TORT – defamation – prolix and repetitive statement of claim - full text of all three publications not provided – confusing pleading of republication – requirement for proper pleading before claim can proceed – use of Gen AI material in the pleadings – statement of claim struck out with leave to replead
EVIDENCE – pretext phone calls from complainant to accused arising from execution of surveillance device warrant – accused’s application for exclusion of evidence of sound recordings of phone calls –whether complainant acted as an ‘agent of the State’ – whether admissions and the circumstances in which they were made were not influenced by oppressive conduct – whether admissions improperly obtained and if so, whether the desirability of admitting them outweighs the undesirability of admitting them – whether probative value of admissions outweighed by the danger of unfair prejudice – whether it would be unfair to admit the evidence of admissions having regard to the circumstances in which they were made CRIMINAL PROCEDURE – admissibility of evidence of sexual reputation – complainant identifies herself in a witness statement as being a virgin as a temporal reference for when alleged acts of penile-vaginal intercourse commenced to occur – whether evidence relevant – whether evidence should be excluded
PRACTICE AND PROCEDURE – alleged sexual battery of a school student – application to vacate hearing date where plaintiff personally not at fault – relevant factors
INSOLVENCY – application by liquidator of company against former director for breach of statutory directors’ duty to prevent insolvent trading pursuant to s 588G of the Corporations Act 2001 (Cth) - whether reasonable grounds to suspect insolvency – date of insolvency – whether date of insolvency gave rise to “safe harbour” protections under s 588GAAA
CONSUMER LAW – misleading or deceptive conduct – whether statements made – whether misleading or deceptive - assessment of damages for breach of s 18 of the Australian Consumer Law
TORTS – negligence – work injury damages claim by former police officer injured in the course of a cannabis eradication operation in a State forest – claim of defective system of work – claim of inadequate consideration and instruction by employer on safety issues – provision of unsuitable police vehicle for assigned task of transporting large quantity of culled cannabis plants – single vehicle accident – vehicle fishtailed out of control under excessive load whilst negotiating a downhill bend on a gravelled mountain dirt road – vehicle slid off the road and rolled multiple times 175m down the ravine of a steep embankment – finding of negligence – rejection of claim of contributory negligence DAMAGES – plaintiff sustained multiple physical injuries to head, neck, right shoulder and fracture of right wrist – plaintiff also incurred psychological injuries – development of intractable complex regional pain syndrome ultimately leading to surgical amputation of dominant right arm below the elbow – permanent unfitness for work – causation of damages established – assessment of economic damages
CRIME – costs – application for certificate under Costs in Criminal Cases Act 1967 (NSW) – whether a certificate should be issued in circumstances where no further proceedings directed by DPP – whether the prosecution of the applicant was reasonable – where Crown case relies heavily on account of complainant – application dismissed
SEVERITY APPEAL – high range drink driving – full term imprisonment – inappropriateness of refusal of bail pending de novo appeal against severity of sentence
WORKERS’ COMPENSATION – COAL MINING – Whether previous redemption with previous employer prevents plaintiff from bringing proceedings against subsequent employer for same symptoms / injuries.
CRIMINAL LAW – Possess child abuse material - Application to supress offender’s identity - Self-harm – reputational damage to extended family – Interim suppression and non-publication orders made by Local Court - Conviction appeal incompetent – Court having no jurisdiction – Severity appeal within Court’s jurisdiction.
CONTRACT – construction of commercial contract for purchase of a business – implied terms- implied term to act reasonably -duty to co-operate – loss of opportunity – causation
CRIME - SENTENCE - supply prohibited drug not less than the large commercial quantity - supply prohibited drug more than the indictable quantity but less than the commercial quantity.
CRIME – Notice of Motion for trial by judge alone – Alleged prejudicial evidence and need for interpreter cited as reasons in support of motion – Insufficient evidence to support application.
CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation MENTAL HEALTH — Criminal proceedings — Defence of mental illness — Offender elected criminal jurisdiction SENTENCING — Aggravating factors — Home of victim or any other person SENTENCING — Mitigating factors — Good character — No record of previous convictions — Not fully aware of the consequences of his or her actions because of the offender’s age or any disability — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Moral culpability — Objective seriousness — Mental illness — Dangerousness — Assistance to law enforcement authorities considered SENTENCING — Subjective considerations on sentence — Drug addiction — Severe mental health issues — Schizophrenia
CRIME — Drug offences — Commonwealth offences — Import/Export border-controlled prohibited plant or drug — Commercial quantity SENTENCING — Objective seriousness — Offenders came to Australia for the purpose of picking up some drugs in exchange for AUD$20,000 — Objective seriousness towards bottom end of range SENTENCING — General deterrence important factor to be understood by people in other countries tempted to come to Australia to commit serious crimes SENTENCING — Subjective considerations on sentence — Difficult upbringing — Alcohol abuse — Financial difficulties — Mental health — Prospects of rehabilitation — Effect on Offenders’ families — Time in custody — Custody more onerous than usual SENTENCING — Parity — No relevant difference between objective and subjective cases — Same penalty appropriate
CRIME — Robbery in company — Assault occasioning actual bodily harm — Violent offences — Stalking or intimidation SENTENCING — Relevant factors on sentence — Discussion of guideline in R v Henry — Motivation of Offender — Youth — Remorse/contrition — Extremely disadvantaged childhood engaging “Bugmy” principle — Mental health in part cause of offending — Time spent in custody — Prospects of rehabilitation and reoffending — Totality — Intensive Correction Order — Safety of community paramount
SENTENCING – Fraud offences – Obtain a financial advantage by deception – Defrauding the Commonwealth – Defrauding the Medicare Benefits Scheme – Offender abusing position as a healthcare provider and physiotherapist – Submitting false claims for services never provided – Initial offending unsophisticated – Initial offending involved over-claiming for patients under his care – Later offending more sophisticated – Later offending involved claiming on behalf of other practitioners at other practices for patients he had never seen – Obtained HICAPS terminal to continue conduct – Began “cloning” HICAPS terminal identifications at other practices by using a “rolling password” – Obtained counterfeit Medicare numbers online – Offending occurred over a period of 3 years – Total amount dishonestly obtained of $2,215,351 SENTENCING – Subjective factors on sentence – Offender on conditional liberty at the time of offending – History of dishonesty offences – Offender’s comparative youth at time of offending – Offender’s ongoing conduct motivated by drug and gambling addiction – Extensive expenditure on luxury car rentals and restaurants overseas – Drug rehabilitation prior to sentence – Delay due to disputed facts negotiations and changes in representation
CRIME - COSTS - Judge Alone Trial - Verdicts of Not Guilty - whether, if the prosecution had, before the proceedings, been in possession of all the relevant facts, it would not have been reasonable to institute the proceedings.
CONTRACTS – loan agreement – construction of guarantee under deed – whether term ought be implied in relation to extent of guarantor’s liability – unjust enrichment – restitution – money had and received
CRIME — Sexual offences — Bestiality — Production/Dissemination bestiality material SENTENCING — Mitigating factors — Good character — No record of previous convictions — Plea of guilty — Past and future assistance — Rehabilitation — Remorse — Unlikely to re-offend SENTENCING — Penalties — Intensive correction orders SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Form 1 offences — Moral culpability — Objective seriousness — Voluntary disclosure of offending — Assistance to prosecution of others SENTENCING — Subjective considerations on sentence — Extra curial punishment — Mental illness and disorders
CRIMINAL LAW – prosecution – work health and safety- duty of persons undertaking business – risk of death or serious injury – maximum penalty COSTS – prosecutor’s costs
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – maximum penalty ADVERSE PUBLICITY ORDER – reference to the circumstances of the offence – significant steps taken after the incident – potential impact on the defendant’s reputation in the industry CAPACITY TO PAY – onus on the defendant to satisfy the court on the balance of probabilities as to the current financial circumstances of the defendant COSTS – prosecutor’s costs
CONTRACTS — non-party seeking to sue on a deed – alleged oral contract or implied contract or contract by agency RESTITUTION — claim for unjust enrichment and quantum meriut
CRIME — Child sex offences — Child abuse material — Use child for production — Produce — Possession — Procuring or grooming child for unlawful sexual activity — Sexually touch child >10 <16 — Incite child >10 <16 to sexually touch — Assault with intent to have sexual intercourse with child >10 <16 — Sexual intercourse with child >10 <14 — Sexual act towards child <14 SENTENCING — Mitigating factors — No record of previous convictions SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Multiple offences — Accumulation, concurrency and totality — Objective seriousness — Sentence after judge alone trial
SECURITY FOR COSTS – plaintiff brings proceedings for defamation claiming to reside at an address in Sydney, New South Wales – plaintiff’s solicitors concede in correspondence that he resides in the United States – whether security for costs should be ordered – quantum of security – no issue of principle
CRIMINAL – Sentence – all 3 offenders: aggravated robbery, being armed with a dangerous weapon – Nolan & Kwu: drive or be carried in a conveyance – Ilievski: 2 offences of aggravated break and enter and commit a serious indictable offence in company, to wit larceny – circumstantial Crown case – history of trial - 3rd retrial of offences in re armed robbery & be carried in conveyance – delay – roles of offenders – context – background & association between offenders – police surveillance – forensic evidence - alibi – seriousness of offences – firearms offences - parity –ceiling principle re past sentence - impact of armed robbery and effect on those present – specific deterrence – subjective matters
CRIME – Drug offences – Supply prohibited drug – Large commercial quantity – Co-offenders operating small scale drug supply business – Involving various types of illicit drugs – Charged matters – Cannabis and psilocybin (“magic mushrooms”) SENTENCING – Aggravating factors – Prior criminal history – Offences committed whilst on conditional liberty – Offences committed for financial reward SENTENCING – Mitigating factors – Contrition and remorse – Prospects of rehabilitation – Significantly deprived upbringing engaging “Bugmy principle” SENTENCING – Co-offenders – Parity – Co-offenders charged with same offences – Explanation for different sentences
Sections 111(2) and 154F Crimes Act 1900; joint criminal enterprise; suitability of an intensive corrections order; consideration of De Simoni principles; aggravating factors at s 105A of the Crimes Act 1900
CRIME — sentencing — sexual offences against children — juvenile at the time of offending— aggravated sexual assault — victim <16 years — deprivation of victim’s liberty — infliction of actual bodily harm CRIME – sentencing — multiple victims — sexual intercourse with person above 10 years and under 14 years — intentionally sexually touch child above 10 years under 16 years — take or detain person with intent to commit serious indictable offence — indecent assault of person under 16 years CRIME – sentencing — offending spanning over years — Form 1 offences CRIME — sentencing — subjective considerations on sentence — age of offender — mental health – deprived upbringing - special circumstances
TORT – defamation – three podcasts imputing the plaintiff is the world leader of a paedophile murder and blood-drinking ring of criminals - defendants seek trial by jury – form 23A Election for Trial by Jury filed and served – plaintiff’s Notice of Motion to refuse application for trial by jury – practical difficulties, logistical problems and the need for prolonged examination of documents and podcasts – Notice of Motion granted – second defendant’s application for a second pro bono lawyer pursuant to UCPR r 7.36 – whether “special reasons” made out – hearing date already set and amount of work involved would be very substantial - application refused
CRIME — Violent offences — Robbery with wounding — Common assault CRIME — Property offences — Steal from the person CRIME — Fraud — Dishonestly obtain property by deception — Attempt to dishonestly obtain property by deception SENTENCING — Aggravating factors — Breach of conditional liberty — Home of victim or any other person — In company — Record of previous convictions SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offences — Moral culpability — Objective seriousness — Proportionality SENTENCING — Sentencing procedure — Disputed facts — Findings of fact — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Drug addiction — Mental illness and disorders — Childhood trauma, abuse, neglect and sexual abuse — Institutionalisation — Limited remorse
CONTRACTS — Breach of contract — assessment of damages arising from the repudiation and termination of a building contract RESTITUTION — Nature of restitutionary liability — Unjust enrichment — Grounds of restitution COSTS — basis for award of costs – gross sum costs order
BUILDING AND CONSTRUCTION – Breach of residential building contract – Delay – Where building was to be completed within a specified time period – Defective works – Where both parties claim to have validly terminated building contract – Whether monies awarded under an Adjudicator’s Determination and registered as a judgment debt can be recovered pursuant to s 32 of the Building and Construction Industry Security of Payment Act 1999 (NSW) – Consequential loss incurred from renting alternative accommodation – Correct measure of damages for breach of building contract – Whether sole director of building company is necessarily liable under the Design and Building Practitioners Act 2020 (NSW)
TORTS – Negligence – Personal injury – Ankle ligamentous injury caused by massage – Where masseuse did not hold professional qualification – Masseuse not called to give evidence – Where anticipated remedial surgery likely to significantly reduce need for future damages
CRIMINAL LAW – Fraud – Commonwealth offences – Use position as officer of company to dishonestly gain advantage/cause detriment – Offender was liquidator, voluntary administrator and/or deed administrator of five separate companies –Transferred funds beyond agreed or reasonable remuneration for administration of companies – Transfer from administration accounts to personal and business accounts not for benefit of companies – Total of approximately $2,518,483.31 dishonestly obtained by offender – Offending over the course of several years from 2016-2022 – Offending detected by ASIC after offender failed to lodge relevant returns – Offender to attend examination pursuant to s 19 of the Australian Securities and Investments Commission Act 2001 (ASIC Act) – Some transfers at the end of the period made by the offender after giving an undertaking to ASIC not to deal with funds of companies – Offender used false descriptors of transfers – The amounts transferred significantly exceeded any amounts which could have been charged or agreed for unremunerated work. SENTENCING – Sentence after pleas of guilty – Subjective factors on sentence – Significant assistance to authorities – Early plea of guilty – General deterrence very important for white collar crime – Mental health issues – Extra curial punishment – Reputational damage – Loss of marriage – Suicide attempts – Excellent prospects of rehabilitation but overall sentence too high for ICO – Only full time custody appropriate with low 50% NPP.
CRIME – SENTENCE Commonwealth offences – 4 counts of money laundering – Taking cash from undercover operatives to be converted into cryptocurrency – “Frontline” worker – Remunerated by 1% of each transaction – Syndicate collecting 6% of each transaction – Genuine remorse – Prior good character – Re-offending unlikely – Aggregate sentence of 3 years to be served by way of an Intensive Corrections Order. State offence – Crimes Act 1900 s192K, possession of identification information to deal with proceeds of crime – Fixed term of imprisonment for time served before being bailed.
CRIME — Violent offences — Recklessly cause grievous bodily harm SENTENCING — Mitigating factors — Good character — No record of previous convictions — Not fully aware of the consequences of her actions because of the offender’s age — Plea of guilty — Positive steps to rehabilitation — Limited remorse — Unlikely to re-offend — Strong subjective case SENTENCING — Penalties — Intensive Correction Order SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — General principles — Moral culpability — Objective seriousness — Consideration of imposing an Intensive Correction Order SENTENCING — Sentencing procedure — Staged approach to sentencing not permitted — A reduction for a guilty plea should not be expressed in days — Reading down a Victim Impact Statement — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Mental illness — Alcohol addiction — Childhood sexual, psychological and emotional abuse — Youth — Motherhood — Indigenous offender — Needs of the child
CRIME — SENTENCING – sentence following guilty verdict — child sex offences — sexual intercourse with child <10 — sexual intercourse with child >10 <14 — circumstances of aggravation — subjective considerations on sentence — special circumstances
CRIME – APPEAL FROM LOCAL COURT – Appellant went to Local Court to seek an adjournment because of revocation of legal aid – Local Court did not want to grant an adjournment – Prosecutor believed case settled, but Appellant always sought an order under the Mental Health Legislation – Even after Local Court recorded a conviction and made an Apprehended Personal Violence Order Appellant continued to seek orders under Mental Health Legislation – “Advice” given by Local Court was incorrect – Denial of procedural fairness – Convictions set aside – Orders made under Mental Health Legislation.
WORKERS COMPENSATION – COAL MINERS - Lump sum claim for permanent impairment of neck and back, the loss of efficient use of right leg, left leg and right arm – s 67 lump sum claim pain and suffering - Statutory norm applied to find 10% of each loss removed to account for underlying non‑compensable condition of disease of gradual process.
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – maximum penalty COSTS – prosecutor’s costs
CRIME – Sentencing – Dishonestly describing to Commonwealth officials the source of table grapes for export to New Zealand so as to avoid cold storage requirement on grapes from non-fruit fly pest-free-areas – Dishonestly influencing public official by false representations – Damage to national interest of Australia in context of Australian-New Zealand Bilateral Quarantine Arrangement – Real risk to both Australia and New Zealand growers – Significant objective seriousness – Need for general deterrence – Subjective case weak – Consideration of concepts such as character, remorse, and contrition in context of corporate offender – Penalties – Fines – “Financial circumstances” or “means” of Offender – Totality
POLICE – SUPERANNUATION – INCREASE OF BENEFITS – Application under s 10(1A)(c) – The Police Superannuation Advisory Committee made a decision under s 10(1A)(b) on 25 November 2021 and notified the Plaintiff on 9 December 2021, and backdated its decision to 14 June 2019 – On 16 December 2021 the Police Superannuation Advisory Committee made a decision under s 10(1A)(c) and certified the Plaintiff on 31 December 2021, repeating its decision to backdate the pension increase to 14 June 2019 – The Plaintiff commenced proceedings – Only issue to be litigated was date of commencement of the increased benefit – The Defendant argued that the Plaintiff was statute-barred as decision to backdate made on 25 November, notified 9 December and proceedings commenced more than 6 months later – Held: The Defendant had to make its decision under s 10(1A)(c) and decision under s 10(1A)(b) was otiose – Further letter of 25 November did not give adequate notice of decision to backdate.
CRIMINAL LAW – prosecution – work health and safety- duty of persons undertaking business – risk of death or serious injury – maximum penalty COSTS – prosecutor’s costs
CRIMINAL PROCEDURE – alleged offences committed by two accused persons arising out of the same circumstances – whether there should be separate trials or a joint trial
TORTS – negligence – work injury damages claim – s.151D extension application – plaintiff has serious psychiatric conditions – whether application should be heard by the trial judge
Trial by judge alone – expert evidence – whether the expert for the accused is qualified to give the opinion he purports to give – driving under the influence occasioning grievous bodily harm – BAC at time of impact
CONTRACTS — Construction — Interpretation – contract with local Chamber of Commerce & Industry for the provision of accounting and management consulting services – scope of services – provisions regarding fees
CRIME – Violent offences – Domestic violence – Substantive Offence – Wound with intend to cause grievous bodily harm – Stabbing – Injuries to victim requiring surgery – Serious weapon – 20cm knife Form 1 Offences – Reckless wounding – Serious domestic violence offence against partner – Almost amputated finger Contravene apprehended domestic violence restriction x 3 – 2 related to main offences and 1 later – Phone calls to victim from gaol in contravention of non-contact order EAGP scheme negotiations criticised – contravene ADVO involving same facts and 2 main offences unnecessary – but very serious Form 1 offence of reckless wounding means no proper sentence able to be imposed for that offence SENTENCING — Extensive criminal history – Largely break and enter type offending – History of violence against same victim – General deterrence – On conditional liberty at the time of offending SENTENCING – Subjective considerations on sentence – Childhood sexual abuse in juvenile custody – Poor education – Disrupted employment history – Frequent incarceration – Substance abuse issues
LAND LAW — Strata title — Owners corporation — Contributions by owners – Recovery of unpaid contributions and interest – Unpaid strata levies – Notice of Levy
WORKERS COMPENSATION – work injury damages – negligence – psychiatric injury – bullying and harassment – scope and content of employer’s duty of care – whether employer vicariously liable for conduct of superior officer – whether duty breached – whether breach causative of injury DAMAGES – competing causes of incapacity – whether tortious injury causative of loss of earning capacity – proper approach to the assessment of damages – discount to be applied to take account of unrelated causes of incapacity STATUTORY INTERPRETATION – whether loss of superannuation benefits subject to cap under s 151I Workers Compensation Act 1987 (NSW)
CIVIL PROCEDURE — Stay of proceedings — application to amend statement of claim - whether the home owner’s proceedings claiming damages should be stayed until payment of the judgment debt in favour of the builder obtained by filing an adjudication certificate under s 25 of the Building and Construction Industry Security of Payment Act 1999 (NSW) – application for a freezing order– whether the payment of security for costs should be required
CRIME — Sentence – Child sex offences — Child abuse material — Using carriage service to solicit, access, and transmit child abuse material CRIME – Sentence – Bestiality material – Possession or dissemination of bestiality material an offence under s 547E of Crimes Act 1900 (NSW)
CRIME - Judge Alone trial - robbery whilst armed with a dangerous weapon - robbery whilst armed with an offensive weapon - deal with proceeds of crime.
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 SENTENCING – objective seriousness – aggravating factors – mitigating factors – parity COSTS – vacation of hearing date – preparation of expert report
CRIME — Sexual offences — Sexual touching CRIME — Violent offences — Assault occasioning actual bodily harm — In company — Detain for advantage SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions SENTENCING — Mitigating factors — Late plea of guilty — Considerable steps towards rehabilitation SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — General principles — Moral culpability — Objective seriousness SENTENCING — Sentencing procedure — Findings of fact — Extent of reduction for guilty plea SENTENCING — Subjective considerations on sentence — Drug addiction — Mental illness — Mental disorders — Significant progress on remand
Crime – Sentence – Indecent assault – Sexual intercourse without consent – Attempted sexual intercourse without consent – Act of indecency towards – Dissociative Identity Disorder
TORT – defamation – plaintiff brings application for default judgment when defendant fails to comply with timetable orders for filing a defence – whether default judgment available where serious harm is a jurisdictional requirement - defendant brings application for summary dismissal for plaintiff’s failure to provide particulars of serious harm in the concerns notices and in the statement of claim, failure to set out the text of the matters complained of and attach copies and errors in pleading the imputations – statement of claim struck out and dismissed with costs
PROCEEDS OF CRIME – serious offences other than drug trafficking offences – fraud offences – application for pecuniary penalty order – assessment of value of benefits the offender derived because of having committed the offences – whether defendant’s payment to the New South Wales Crime Commission as part of a settlement of another proceeding arising from different charges operated as a release or discharge from further liability following his conviction of the index charges
CONTRACTS — Remedies — Damages — Assessment DAMAGES – goods and services tax (GST) – whether an award of damages should include the amount of GST that is part of the price of services acquired to make good the damage
EMPLOYMENT AND INDUSTRIAL LAW — Contract — Termination — Termination on notice ESTOPPEL — Anshun estoppel — Decisions to which applicable ABUSE OF PROCESS – Settlement of proceedings
CRIMINAL LAW – prosecution – work health and safety- duty of persons undertaking business – risk of death or serious injury – maximum penalty COSTS – prosecutor’s 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 – capacity to pay appropriate penalty – no extra-curial punishment COSTS – prosecution costs OTHER – sunken yacht salvage – crane lift failed – mast struck worker on head – failure of director to exercise due diligence – director did not put appropriate processes in place – director provided no appropriate resources – failure to verify PPE was in use
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty COSTS – prosecution costs OTHER – sunken yacht salvage – crane lift failed – mast struck worker on head – failure to conduct an adequate risk assessment – failure to develop and enforce a Safe Work Method statement – failure to prohibit workers from exceeding safe working limits of the crane – failure to prohibit workers from using inadequate load lifting points – failure to provide adequate training, instruction and supervision – PPE not in use
NEGLIGENCE – Fire in a refrigerator – Duty of care owed by an importer and distributor to the end-consumer – Civil Liability Act 2002 (NSW) – Breach of duty – Causation – Damages
CRIME – sentencing – driving at a dangerous speed occasioning death – victim impact statements – whether appropriate to treat harm to deceased’s family members as an aspect of harm to the community – significance of offender’s asserted childhood sexual abuse – significance of traits of PTSD after offending – offender’s injuries from collision as extra-curial punishment
CRIMINAL LAW – Application for further and better particulars – Application to quash indictment – Application for permanent stay of proceedings – Negligent manslaughter -Dangerous driving causing death – Drive manner dangerous – Accessory before the fact to the offence of dangerous driving causing death - Aid and abet- failure to take reasonable care – Criminal negligence – Recklessness – Negligent loading – Securing load
CRIME — Sentence – Child sex offences — Child abuse material — Using carriage service to solicit, access, and transmit child abuse material CRIME – Sentence – Bestiality material – Possession or dissemination of bestiality material an offence under s 547E of Crimes Act 1900 (NSW)
CRIME — child sex offences — child abuse material — using carriage service for child pornography material or child abuse material — possess bestiality material SENTENCING — federal offenders — sentence by State court for offence against Commonwealth law SENTENCING — penalties — recognisance
CRIME – Proper construction of s 110(c) LEPRA and s 139(2) of Evidence Act – Meaning of “the person has been informed that they are free to leave” for the purpose of s 110(c) of LEPRA and “an investigating officer who does not have the power to arrest” for the purpose of s 139(2) of the Evidence Act – s 99 LEPRA – s 138 Evidence Act – Evidence obtained in contravention of improprieties – Admissibility – Balancing exercise
COSTS — defendant seeks the imposition of a cap on costs after judgment has been entered – defendant seeks an issue by issue approach to be applied to the costs order
CIVIL PROCEDURE — Time — Extension of time – application to extend the 12 year long-stop limitation period – ascertaining the date on which the cause of action was discoverable – matters relevant to the exercise of discretion
CRIME – SENTENCE – Found guilty by jury – Attempt to possess border controlled drug – Marketable quantity of heroin – Package containing drug intercepted and substituted – Accepted by offender from UCO posing as delivery man – Whether offender knew drugs in delivery – Inferences to be drawn from electronic evidence (mobile phones and computer tower) – Prior conviction in New Zealand – Claimed need to care for elderly parents – Whether further attempts at education (university degree) realistic.
CRIME – SENTENCE – Import commercial quantity of border controlled drug – 4.618kg pure methamphetamine – Foreign national – Offender elected not to give evidence to explain discrepancies in subjective evidence – Consideration of effect of sentence on family and dependents – Good prospects of rehabilitation.
CRIME – Appeal from Local Court – Charges under s 58 Crimes Act 1900 – Whether first stop unlawful under LEPRA – Whether evidence flowing from stop should be excluded if stop was unlawful – Whether first search classified as strip search.
CRIMINAL LAW – interpretation – fraud and dishonesty offences – offence of fraudulent embezzlement by clerk of servant – whether ‘fraudulent’ is equated to the test for dishonesty in s 4B of the Crimes Act 1900 (NSW) – significance of earlier High Court authority on offences concerning fraudulent conduct which do not have dishonesty as an essential element of the offence
CRIME – SENTENCE – PLEAS OF GUILTY Commonwealth Offences: Furnish authority with document containing false or misleading statements – Mid-range objective seriousness. Obtain travel documents dishonestly – Low-range objective seriousness. Conceal had been known by any other name and had been convicted of offence – above mid-range objective seriousness. Minimal criminal history – Historical crimes – Low risk of reoffending – High prospects of rehabilitation – Remorse. Effect of sentence on child in kindergarten – Offender sole parent.
STATUTORY INTERPRETATION – Companion Animals Act 1998 (NSW) – whether bodily injury within the meaning of s 25(1)(a) includes psychological injury caused by trauma of witnessing attack on the plaintiff’s dog at the time of the attack on the plaintiff – damages for psychological injuries limited to the sequelae of physical injuries suffered by the plaintiff and the trauma of the attack on her ASSESSMENT OF DAMAGES – approach to be applied to an interrelated but not compensable causal factor – evidentiary onus to disentangle contributing causes – unrealistic on the evidence to dissect components of a psychiatric injury suffered in one event – quantification of buffer for economic loss
CRIME – appeals and reviews – appeal against refusal to annul convictions entered in Local Court – accused person is deliberately disruptive in proceeding – the judicial officer determined that he was not ‘present’ and proceeded to hear the matter in his absence CRIME – interpretation – whether accused person ‘present’ – Criminal Procedure Act 1986, s 196
GUARANTEE AND INDEMNITY — Actions to enforce guarantee — Guarantors liability – Guarantor’s awareness of charges due under the contract the subject of the Guarantee and Indemnity
CRIME – aggravated break and enter and specially aggravated break and enter. CRIME - Judge Alone hearing - verdicts “act proven but not criminally responsible” - consequential orders MENTAL HEALTH - Criminal proceedings — Special hearing – defence of cognitive impairment established – orders finding conditional release appropriate in light of current medical evidence – referral to the Mental Health Review Tribunal.
CRIME — Citizenship and migration offence – Furnishing false and misleading information to a migration official in connection with entry into Australia and application for a visa – Arrival on tourist visa with intention of staying – False personal details provided for both protection visa and citizenship application – Failure to declare relevant matters for both protection visa and citizenship application – Previous denial of protection visa SENTENCING — Penalties – Recognisance SENTENCING — Unexplained delay – Stale offences – Offences committed 10-14 years previously SENTENCING — Subjective considerations on sentence – Childhood hardship – Poverty – Abuse – Arrest and abuse in China for violation of One Child Policy
PROCEDURAL – Motion to dismiss because the proceedings were brought out of time – past alleged offences were observed outside limitation period – new, distinct and different alleged offences were observed within limitation period – defendants are not immunised from risks and breaches of duty because they are guilty of an earlier alleged offence – object of the WHS Act would be defeated – present proceedings brought within limitation period
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty COSTS – prosecution costs OTHER – fall through void – failure to undertake adequate risk assessment – failure to enforce defendant’s control to use scissor lift – inadequate information, training and instruction to workers about hazards and controls – failure to provide adequate supervision to ensure compliance with SWMS – failure to prohibit work near voids and penetrations through which a person could fall
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 - parity COSTS – prosecution costs OTHER – fall from height – roofing work – worker fell through roof soffit – no fall prevention system – worker had no qualification or experience working at height – inadequate training, instruction and supervision
CRIMINAL LAW – appeals and reviews – appeal against conviction – sexual offences – carrying out sexual act without consent – domestic violence offences – stalking or intimidation offence – whether the accused knew that the complainant was likely to suffer physical or mental harm
CRIME – SENTENCE – Knowingly take part in supply of prohibited drug – Large commercial quantity of cocaine (3.164kg) – Remorse shown – Good prospects of rehabilitation – Low to moderate prospects of recidivism – Special circumstances found.
NEGLIGENCE – risk was foreseeable – risk was not insignificant – reasonable person in the position of the council would have taken precautions – significant probability that the harm would occur – serious harm could result – minimal burden to take precautions – social utility – factual causation established – scope of liability extends to the harm so caused DAMAGES – non-economic loss – past and future out of pocket expenses – future domestic assistance OTHER – trip in hole in nature strip – council had actual knowledge