CRIME – APPEALS – SEVERITY OF SENTENCE – Conviction recorded under pet regulatory scheme – Whether recording of a conviction and an 18 month Conditional Release Order too severe – Whether Appellant entitled to the benefit of their prior good character - Sophie the “menacing” Chihuahua-cross.
COSTS - plaintiffs discontinue proceedings for defamation in the course of lengthy interlocutory argument as to the particulars of the defence - plaintiffs seek costs of their challenges to the particulars despite having discontinued - defendants seek costs on an indemnity basis - costs of discontinuing under UCPR rr 42.19 and 42.20 - defendants entitled to costs orders in their favour - whether costs on an indemnity basis should be ordered - no issue of principle
CRIME – RELATED OFFENCES – S 166 CERTIFICATE – Related offences to that charged in Decision Restricted [2022] NSWDC 285 of breach of an ADVO – Whether the Provisional ADVO was replaced by later ADVO not served on the accused – Provisional ADVO withstands – Verdict in respect of the breach of the related offence.
CRIMINAL LAW – Sentence – Aggravated sexual assault in company – Victim alleged to have stolen drugs and secreted in body – Offender Murray part of joint criminal enterprise with 2 other women – Attempts to recover stolen drugs by cavity search and forced – Offender Murray not physically present during cavity search or forced self-manipulation - No sexual connotation but nonetheless within definition of sexual intercourse without consent – Co offender concealed knowledge of this serious indictable offence but low objective criminality
CRIMINAL PROCEDURE — Suppression and non-publication orders — Grounds JUDGMENTS AND ORDERS — Application to have judgment restricted until expiration of term of imprisonment
CRIME – Intimidation - Aggravated Break and Enter CRIMINAL PROCEDURE - Trial - Judge alone - Reasons of trial judge - conflict of evidence - reasons for accepting prosecution witness – reasons for rejecting accused’s evidence - each element proved beyond reasonable doubt CRIMINAL PROCEDURE - Trial - Judge alone - domestic violence - fundamental principles applied - assessing witness in “one and one” evidence cases – pattern of domestic violence behaviour- tendency reasoning – intimidation- intention - knowledge that conduct is likely to cause fear – break - consent or implied permission to enter
CRIME — Appeal and review — Appeal from Local Court to District Court — By person convicted against conviction CRIME — Appeal and review — Appeal from Local Court to District Court CRIME — Violent offences — Assault occasioning actual bodily harm CRIME — Violent offences — Common assault
APPEAL - Appeal against conviction - did Magistrate err - need to review all evidence from the Local Court - need for precise application of judicial directions - assessing complainant’s credibility given there was an acquittal of a count in the Local Court - reviewing credibility findings on an appeal - challenge to Magistrate’s credibility findings - can a judge ignore a Magistrate’s credibility findings - resolving “oath on oath” domestic violence on appeal- “self-serving evidence” CRIME – Common assault - Intimidate intending to cause fear - Sexually touch another without consent - Domestic violence related
CRIME — Drug offences — Ongoing supply — methylamphetamine — Detain for advantage — Circumstances of aggravation — Detain for advantage offences arose because offenders thought person had stolen drugs from them — Each offender involved in a drug supply network —Charges range from below the mid-range of objective seriousness to the middle of the range — Offenders 33 and 47 at the time of offending — Both offenders have criminal records — One offender committed offences whilst regularly using drugs — Both offenders have mental health issues — Both offenders have history of drug use from young age — Both offenders express remorse and contrition — No victim impact statements provided — Excessive charges and delays caused by EAGP scheme negotiations discussed.
CRIME – sentence – possess or control child abuse material – use carriage service to access child abuse material – use carriage service to transmit child pornography material – use carriage service to produce child abuse material with intention that the material by used by another person to commit an offence against 474.22 – s16BA schedule offence
COSTS – claim for unpaid wages and entitlements under a federal award – successful application to amend pleadings – whether unreasonable conduct by the plaintiffs caused the defendant to incur costs – whether discretion should be exercised to award costs – policy underlying costs orders under FW Act and reconciling that policy with case management objectives in ordinary civil proceedings – significance of costs application for interlocutory procedural applications - Fair Work Act 2009 (Cth), s 570(2)
CRIME — Driving offences — Dangerous driving occasioning grievous bodily harm — Circumstances of aggravation— Intoxication — Causing bodily harm by misconduct — Offender drove vehicle whilst under the influence of methylamphetamine and delta-9-THC ACID — Offenders ability to drive was substantially impaired — Offender was 39 at the time — offences committed whilst returning from a Local Court appearance on prior driving matter — Offender drove on wrong side of road and caused collision involving two other vehicles — Four victims — Three victims sustained very serious injuries — One victim sustained life-threatening injuries — Some victims have ongoing physical complications as result of accident — Youngest victim was 13 years old — Offender voluntarily told police she had taken drugs prior to the incident — Offender has criminal record involving traffic offences commencing in 2003 — Offender has significant history of mental illness — Offender has history of drug use — Offender expressed genuine remorse and contrition — Prospects of rehabilitation reasonable but dependant on her remaining free of drug use.
CIVIL PROCEDURE – torts – motor accidents – plaintiff represented by tutor – defendant alleged fraud or misleading statements by the plaintiff and the tutor - long delay in prosecution of the proceeding – default by the plaintiff in compliance with order for her to attend medical examinations without explanation – whether proceeding should be dismissed for such default or (alternatively) for want of despatch
Sentence – Specially Aggravated Detain for Advantage – Wounding on Form 1 – Breach of Parole for Manslaughter – totality – whether “Bugmy” factors enlivened.
CRIME - child sex offences - sexual intercourse with child 11 years old - offender was 16 or 17 years old - half siblings - digital penetration - reported 8 years later - plea of guilty SENTENCING - no hierarchy of seriousness of sexual intercourse offences - age of offender and immaturity at time of offence to be taken into account - whether offence committed in home of victim can be factor of statutory aggravation - vulnerability of victim - criminal history of the offender - delay - Bugmy factors - dysfunctional background - effect of COVID-19 on incarceration
CONSTITUTIONAL LAW – Federal Jurisdiction – Judicial power - proceedings before State tribunal involved matter between parties of different States – Necessity Principle - Inability of administrative tribunal to determine matters where federal judicial power is being exercised – whether the Personal Injury Commission a Court of the State -
CRIME – Terrorism offences – Intentionally advocate the doing of a terrorist act SENTENCING – Relevant factors on sentence – Moral culpability SENTENCING – Subjective considerations on sentence – Age of offender
CRIME – SENTENCE – DRUG OFFENCES – Numerous charges for the deemed supplies of Heroin, Cocaine, and Methylamphetamine. CRIME – SENTENCE – MATTERS TAKEN INTO ACCOUNT ON THREE FORM 1’S – Firearms offence for the possession of pen-gun with ammunition. CRIME – SENTENCE – MENTAL ILLNESS – De La Rosa considerations.
Accessorial liability; admissibility of Certificate of Conviction of principal offender of a felony; whether Evidence Act 1995 abrogates a common law rule.
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – injury to worker - death of worker SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors –appropriate penalty SENTENCING PRINCIPLES - no record of previous convictions - 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 –penalty SENTENCING PRINCIPLES - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities
CRIME – Supplying less than the commercial quantity of drug - Knowingly deal with proceeds of crime - Participate criminal group SENTENCING - Relevant factors on sentence -early pela- past offending of a similar nature - role in supply minimal- role in criminal group- purposes of criminal group – care needed as not charged with ongoing drug supply
CRIME — Child sex offences — Using a carriage service to access child pornography — Possessing child abuse material — One Commonwealth offence — One NSW State offence — Over 10,000 child pornography images and videos found — Images and videos range from category 1 to category 6 on the CETS classification scale — Police identified offender when monitoring child pornography websites — Wide range of child exploitation material found on electronic devices belonging to offender — Middle of the range in terms of objective seriousness — No prior convictions — Early plea of guilty — Offender cooperated with police and assisted them in their investigation — relatively good prospects of rehabilitation.
CRIME — Child sex offences — Maintain unlawful sexual relationship with child under – max penalty life imprisonment — Aggravated sexual assault of a child under the age of 16 — Aggravated indecent assault of a person under 16 years — Three substantive offences — Four Form 1 offences — Two victims aged between 10 and 13 years old — Offender was about 42 years old — Offender was the biological father of the victims — Offender engaged in a course of sexual-offending conduct against the two victims over relatively short period of time — Offences not one-off events — Offences occurred on a remote and decrepit rural property surrounded by bushland — Offender engaged in a wide range of sexual acts with victims and used manipulation and a degree of planning to commit offences — Offences in the middle of the range of objective seriousness — VIS provided and taken into account — Both victims have suffered serious psychological sequelae — Offender has criminal record but no sex offences — Early guilty plea — Actuarial assessment of recidivism assessed as low but real risk of re-offending is not low — Prospects of rehabilitation guarded.
CRIME – criminal liability – absolute liability – strict liability – availability of defence of honest and reasonable mistake of fact TRAFFIC LAW AND TRANSPORT – traffic law – offences – liability for offences – drive with a prescribed illicit drug in oral fluid
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 - 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 – penalty SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities
CIVIL PROCEDURE – dispute about sale of canine supplier business – miscellaneous procedural applications – application to amend – whether on such (contested) application, the plaintiff must demonstrate prima facie case or triable issue – application to transfer proceeding to Supreme Court – whether the District Court lacks, or may lack jurisdiction to hear and dispose of proceeding – Civil Procedure Act 2005 (NSW), s 144
CRIME — Money laundering — Dealing with money suspected of being proceeds of crime — 6 substantive offences with maximum penalty of 10 years imprisonment — 4 Form 1 offences — Offending discovered following police strike force operation — Offender involved in money laundering syndicate involving other co-offenders — Early plea of guilty — No prior criminal record — Section 23 issues considered.
CRIME — Child sex offences — Commonwealth offence — Use carriage service to procure child for unlawful sexual activity — Maximum penalty of 12 years imprisonment — One substantive offence — Convicted by a jury — Offender was in his late thirties — Offender was approached online by an assumed identity created by police that was a 15-year-old-boy — Offender believed the assumed identity was an underage boy — Offender wanted to meet 15-year-old boy and he engaged in sexually explicit communication with that assumed identity — No prior criminal record — Offender does not admit guilt — low to medium risk of reoffending.
WORK INJURY DAMAGES – COSTS – Costs in respect of a claim for work injury damages – Where two sets of proceedings on foot and one set of proceedings was dismissed.
WORK INJURY DAMAGES – PRACTICE & PROCEDURE – NOTICE OF MOTION – Application to dismiss proceedings – Failure to comply with procedural requirements for Work Injury Damages claim – Attempt to remedy procedural deficiencies.
CRIME — Child sex offences — Child abuse material — Using carriage service to transmit child pornography material — Procuring or grooming child for unlawful sexual activity — Two substantive offences — One Form 1 offence — Commonwealth Offence with maximum penalty of 15 years¬ — NSW State offence with maximum penalty of 15 years — Early Plea of guilty — More charges before the District Court than necessary due to EAPG Scheme — Offender was about 57 at time of offending — Offending discovered during covert online police investigation — Police used fictitious identity of a mother and child to engage the offender online — Offender believed mother and child were real people — Offender believed the fictitious child was 8 years old — Offender expressed explicit intentions to engage in sex acts with 8-year-old child — offender travelled to Sydney by train to meet the fictitious woman and child to engage in sexual contact with the child — Offender was in possession of over 4000 child pornography images — Objective seriousness of offending is around middle of the range — Offender has psychiatric issues — Static 99R assessment provides average risk of re-offending — Small criminal record — No history of similar offending — Good prospects of rehabilitation if he accepts counselling and treatment.
CRIME — Sexual offences — Aggravated sexual assault — In company — Maximum sentence of 20 years — Found guilty by a jury on one count — penile vaginal intercourse — Victim was either 16 or 17 years old at the time the offence was committed — Co-offender is the sister of the victim and was the partner of the offender — Co-offender gave evidence at trial — Objective criminality falls below the mid-range — Offender does not demonstrate remorse or contrition — Offender maintains his innocence — Victim Impact Statement provided and taken into account.
CRIME — Historical child sex offences — 26 counts — 12 victims –Indecent assault — sexual assault of boys aged between 10 and 14 — unlawful sexual intercourse — Offences committed between 1982 and 1989 — offender was a priest and boarding house master — victims were in his care as pupils at Chevalier College — Offender found guilty following trial — Victims have suffered a range of serious emotional sequelae — Ten Victim Impact Statements provided and taken into account — Offender has no prior criminal record — Offender is 80 years old — very low likelihood of reoffending.
BUILDING CONTRACTS – determination of disputed items in Scott Schedule concerning alleged defective building works – whether report by Referee appointed pursuant to UCPR r 20.14 concerning the defendant’s cross-claim should be adopted
TORT – defamation – validity of concerns notice – Defamation Act 2005 (NSW), ss 12A and 12B – assessment of adequacy of information provided as to serious harm to reputation – relevance or significance of publisher’s omission to request further particulars notice when determining adequacy of concerns notice – alternative application to strike out certain pleaded imputations on basis not referred to in the concerns notice
CRIME — Complicity — Accessory after the fact — Serious Indictable offence — Enter dwelling house with intent to intimidate — Principle offender was armed with a machete — Offender drove principle offender away from scene of crime in vehicle — Offender was 20 at time of offence — Offender did not initially have knowledge of the principle offenders intentions to commit principle offence — Objective seriousness toward the bottom of the range — Good prospects of rehabilitation — Evidence of offenders remorse and contrition.
CRIME — Drug offences — Manufacture prohibited drug — Large commercial quantity — Maximum penalty of life imprisonment — methylamphetamine oil — One substantive offence for each offender — Six Form 1 offences for one offender — Two Form 1 offences for other offender — Excessive charges and delays created by the Early Appropriate Guilty Plea Scheme — Offending behaviour discovered during police strike force operation — Manufacture of drugs occurred on remote rural property — One offender had larger role and was the cook and had chemical engineering qualifications — Other offender had lesser role but was not a mere labourer — Non-exculpatory duress not accepted — Both offenders have good prospects of rehabilitation — Both offenders have prior criminal history.
CRIME — Child sex offences — Sexual intercourse with child <10 — Three victims — Four substantive offences — Three Form 1 offences — Offender is now aged 55 — Offender was in his early-to-mid-thirties at the time of offending — Offender was a family relation to two victims — Offender was in a relationship with the mother of one victim — Offences range from below to the middle of the range of objective seriousness — Offender diagnosed with depression and has other medical issues — Offender has problem with alcohol and was likely intoxicated during some of the offending behaviour — Offender pleaded guilty at earliest opportunity — Assessed as a medium risk of reoffending generally, but a below average risk of sexual reoffending — Relatively good prospects of rehabilitation — Two victim impact statements provided and taken into account.
CRIME — Child sex offences — Using carriage service to groom person <16 years for sexual activity — Admissibility of evidence — s 138 Evidence Act — Accused application to exclude Crown evidence — Facebook messages and recorded telephone calls between accused and person claiming to be 15 years old — Accused submits Facebook messages and recorded telephone calls were obtained improperly —Accused submits police had no reason to suspect him of child grooming — Accused worked as teacher at school — Two students at the school where accused worked made complaint about the accused — One student was 16 and the other was 17 — Police assumed identity of 15 year old online and started communicating with accused – Accused had no criminal history — Probative value of evidence not insignificant.
CRIME – Judge alone trial – Judgment - Two counts on indictment – Wounding with intent to cause GBH – Cause GBH being reckless as to causing ABH – Victim and accused in domestic relationship – Victim suffered deep wound to her neck by a knife – Wound caused by accused who had knife in his hand when he pushed victim out of the way and where the knife made contact with victims neck - Medical evidence finds it is reasonably possible that the wound was created unintentionally when accused pushed past victim.
CRIME – CRIMINAL TRIAL BY JUDGE ALONE – Indictment containing 8 counts (see [92]) against 2 accused – Charges included manufacture of a commercial quantity of cocaine; knowingly take part in the manufacture (supply precursor); supply of drugs; and failure to inform police of serious indictable offence – Crown case on all counts purely circumstantial – Assessment of the evidence adduced by the Crown.
CRIME — Appeal against sentence imposed in Local Court — Further matters to be dealt with on sentence following appeal — 10 offences in for appeal — 3 offences in for sentence — Assault occasioning ABH — Choking without consent — Drive disqualified — Break enter steal — Goods in custody — Larceny — Habitual traffic offender — never held car license — Stealing offences committed to obtain clothes, food and drugs — Offences of violence occurred in context of offenders domestic relationship with long-term partner — Victim Impact Statement provided and taken into account — Offender has long history of drug use from childhood — Offender had unstable upbringing and was subject to physical abuse — Offender has lengthy criminal record — Prospects of rehabilitation are guarded.
CRIME — Drug offences — Knowingly take part in supply of large commercial quantity of prohibited drug cocaine — One substantive offence — One related offence of supply prohibited drug alprazolam — Offender pleaded early and entitled to full discount — Drugs found during execution of police search warrant — DNA and fingerprint evidence obtained — Offender was involved in offence for financial gain — Offender was in the low level of drug supply hierarchy — Offending toward bottom of the range — Offender’s criminal history is not significant — Offender has good prospects of rehabilitation — Offender has demonstrated genuine remorse and contrition — Issues created by multiple charges referred via EAGP scheme — Legislative amendment suggested to enable changes to charge certificate in District Court for minor amendments.
CRIME – APPEAL – SEVERITY OF SENTENCE – Whether Appellant received Court Attendance Notice – Whether Appellant had sufficient reason for not attending Court when required to do so.
CRIME — Historical child sexual assault offences — Sexual intercourse with child <10 — Circumstances of aggravation — Aggravated act of indecency towards a child <10 — Aggravated indecent assault of a child <10 — Sexual intercourse with child >10 <14 — Digital penetration — Penile/vaginal intercourse — 5 female victims — Significant age disparity between victims and offender — 26 separate offences — Guilty pleas on 14 counts — 12 separate Form 1 offences — Offender in position of authority — Offender in relationships with mothers of victims — A degree of cruelty and manipulation — Threatened victims into staying silent –— Offender has no history of mental health problems — Offender has no prior criminal history — Offender has no history of illicit drug use — Offender denied having sexual attraction to young girls — Assessed as having a moderate risk of reoffending.
CRIME — Child sex offences — Historical child sex offences — Production/Possession of child abuse material – Aggravated sexual intercourse with a child <10; >10 <14; >14 <16 — Indecent assault — Bestiality — 27 substantive offences — 4 Form 1 offences — Grooming of child — Persistent sexual abuse of a child — Two complainants — Offender in position of trust and authority — Offender was father and step-grandfather of victims — Offender had penile/anal intercourse with family dog and neighbour’s dog — Offender blindfolded victim and took photos — Bondage/restraints used — Guilty pleas after trial had commenced — Reasonable prospects of rehabilitation due to age and poor health.
CRIME – COSTS IN CRIMINAL CASES – Both Applicants found not guilty on all counts in the indictment – No reasonable prospects of success in prosecution – Whether Applicants entitled to their costs in defending the prosecutions.
CRIME – SENTENCE – DRUG OFFENCES – Section 166 Certificate – The Defendant already served a term of imprisonment and has dealt with the ongoing prosecution on indictment for several years – The inexpediency of further punishment – Favourable antecedents and personal considerations of the Defendant.
EVIDENCE — Tendency evidence — Criminal proceedings — Sexual intercourse with a child under 10 — Sexually touch child aged between 10 and 16 — Indecent Assault — Accused observed by witness interacting with children at social events — Accused would often put children on his lap and would drag hand over groin of child sometimes grasping to readjust child’s position on his lap — Evidence not found to demonstrate unfair prejudice to the accused — Evidence found admissible as tendency evidence.
CRIME — Child sex offences — Historical child sex offences — Sexual intercourse with child >14 <16 — Indecent assault of a child >14 <16 — Circumstances of aggravation — Homosexual intercourse with a child >10 <18 — Sexual intercourse without consent – Offender incited victim to commit an act of gross indecency — Two victims — Offender was in a position of trust as Scouts leader of one victim — Offender offered victims drugs and alcohol — Offender made verbal threats to prevent victim from reporting assault — Fellatio — Anal rape — Guilty pleas on all counts after trial had commenced – Prior criminal history — Offender suffered from substance abuse disorder — Offender has achieved complete rehabilitation — Low risk of reoffending — No further criminal offending since 2001 — No further drug use since 2001 — Victim Impact Statement tendered for one victim and taken into account.
CRIME — Supply prohibited drug — Two substantive offences — 2.077 kilograms of methylamphetamine — 270.4 grams of heroin — Large commercial quantity — Four Form 1 offences — Pleaded guilty in Local Court — Drugs supplied to undercover police in exchange for money several times over one-month period — Police surveillance captured meetings between police and offender — Total of $141,000 provided in exchange for drugs — Offender provided mobile device to undercover police for purpose of drug transactions — Purity of methylamphetamine relatively high — Offender had significant role in supply of illegal drugs — Offender not at top of drug hierarchy — Objective seriousness at the top of the bottom range – offender is 24 years old — Offender has no prior convictions.
CRIME – SENTENCE – DRUG OFFENCES – Finding of a statutory alternative to a count on the indictment – The Defendant already served a relatively significant term of imprisonment on remand – The inexpediency of further punishment – Favourable antecedents and personal considerations of the Defendant.
CRIME — Child sex offences — Sentence following guilty verdicts — Eight counts of sexual touching three children aged between 10 and 16 years old — Two counts fall in the bottom of the range of objective seriousness — Five counts slightly below midrange of objective seriousness — One count falling in the midrange of objective seriousness — Offences took place in the Bega area and in the Kosciuszko National Park area — Offender was 64 at the time of the offending — Victims were friends with offender’s daughters — Offending behaviour was opportunistic and occurred when the victims were either visiting one of the offenders daughters at offenders home or when victims attended camping trips with the offender and one of his daughters — Offender has lack of significant convictions on criminal record — Victim impact statements received and impact on victims considered — Offender has good prospects of rehabilitation and little likelihood of reoffending — Extra Curial punishment per public opprobrium via disproportionate and sensational media reporting — Some hardship to family likely after incarceration being increase of current hardship to teenage daughters.
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury OTHER – blockages affected the operation of an ink holding tank and mill – side access hatch was removed before anchor blade was electrically isolated – contractor became trapped between side of the tank and anchor blade – other workers suffered injuries when they entered the tank to assist – electrical isolation procedure inadequate – absence of an external interlock switch or emergency stop – confined space entry permit had only been partially completed – inadequate job safety analysis and confined space entry permit procedures
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCING – plea of guilty – plea to elements of offence – disputed facts – reasonably practicable ways to eliminate or minimise the risk
CRIME — Child sex offences — Indecent assault — Circumstances of aggravation — Two substantive counts and one Form 1 offence — One count below midrange of objective serious — One count at middle of the range of objective seriousness — Sole victim was 12-year-old male — Offender was almost 50 years old — Offending behaviour occurred in a men’s toilet cubical in the public toilets at a shopping plaza — Offender was cruising for a sexual encounter and followed victim into toilet block — Victim not physically injured but suffers an emotional impact — Victim Impact Statement taken into account — Offender comes from traditional family and has opened and operated a number of restaurants and food retailers — Offender has experienced prior physical health issues and existing mental health issues — Offender has no prior criminal convictions — Offender has very good prospects of rehabilitation.
CRIMINAL PROCEDURE – application for stay of proceedings until prosecutor elects whether it will withdraw two of the summonses – where summonses plead different dominant reasons for the same conduct – what are the elements of each offence – what evidence would be sufficient to procure a legal conviction – what must be proved to establish commission of each of the offences – whether charges can be brought in the alternative
MOTOR ACCIDENT LEGISLATION – late claims – whether claimant has a full and satisfactory explanation for delay in commencing proceedings – whether a reasonable person in the position of the claimant would have been justified in experiencing the same delay CIVIL PROCEDURE – commencement of proceedings – application for leave to commence action COSTS – party/party – exceptions to general rule that costs follow the event – party seeking indulgence or dispensation of the court
CRIMINAL LAW – sentencing - federal online child exploitation offence - offender with mild intellectual disability and depression – consideration of causal nexus of these mental conditions to offending – offender subject to stringent bail conditions – whether and to what extent offender subject to ‘quasi-custody’ through experience of bail conditions
CRIME – SENTENCE - Assault causing grievous bodily harm to 14 year old step son – recklessness as to causing actual bodily harm – serious and substantial harm to victim -Plea of guilty – Prior good character – General deterrence – Contest between Intensive Correction Order or full time imprisonment.
CRIME - sentencing - charges of sexual assault and other offences relating to six difference victims, three of whom were children - threats to disseminate images - Bugmy factors - low IQ
All grounds appeal – possess child abuse material – application to adduce fresh evidence - statutory interpretation – consideration of what constitutes “offensive” material in context of child abuse material as per s91FB – standards of morality, decency and propriety.
BUILDING AND CONSTRUCTION – contract - delay of subcontractor - liquidated damages clause - head contractor entitled to take over works – impact of head contractor taking over works on rights of the parties – variations – assessment of value - damages
COSTS – party/party – exceptions to general rule that costs follow the event – party seeking indulgence or dispensation of the court – whether offer was a genuine offer of compromise – whether it unreasonable for the plaintiff not to accept the offer
MENTAL HEALTH – federal offence – child sex offence – previous finding of accused being unfit to be tried – whether he will likely become fit in next 12 months – whether accused objects to being detained in hospital – significance of such objection – whether he should be detained in hospital – approach to setting term of detention – consideration of factors affecting length of term of detention
CRIME – use/consume/waste electricity without authority – theft of electricity – illegal bypass – use of metered versus unmetered electricity – intention - duress
CRIMINAL LAW – sentencing of multiple co-offenders – extensive drug supplies in ice in syndicates in Tamworth and the Central Coast – involvement in distribution and street level supplies - consideration of role of each offender – application of parity principle
CRIMINAL LAW – sentencing – supply of large commercial quantity offence – gravity of offending – significance of mental health conditions – weight to psychologist’s unchallenged evidence – significance to rehabilitation prospects
Judgment of
Woods KC ADCJ (21- 22 April 2022) Abadee DCJ (12 October 2022)
COSTS — application for indemnity costs - whether offer was a genuine offer of compromise – whether it unreasonable for the plaintiff not to accept the offer
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty COSTS – prosecution costs OTHER – defendant involved in installation of formwork on construction project – three workers on a roof preparing to install formwork – worker stepped backwards and fell through an uncovered penetration beside the lift shaft – worker fell 19 metres to the concrete floor below – failure to undertake adequate risk assessment – failure to securely cover penetration – failure to install perimeter guard rails around penetration – failure to prohibit workers from undertaking work on roof until adequate protection against risk had been installed – failure to implement and enforce adequate safe work method statement – failure to provide information, training and instruction to workers – failure to provide adequate supervision to workers
Alleged historical sexual offending by accused who was under 14 at the time of the allegation – doli incapax – issues of maturity – home life of offender – medical records demonstrating violence when accused was a child
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – vulnerable worker SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – discount of 25% for the utility of the plea – general deterrence – specific deterrence – remorse and contrition – capacity to pay COSTS – prosecutor’s costs
EVIDENCE – identification evidence – warnings – inferences – circumstantial evidence – whether evidence sufficiently identified driver vehicle and date of the offence TRAFFIC LAW AND TRANSPORT – traffic law – offences – dangerous driving – driving at excessive speed
CIVIL PROCEDURE – building dispute - dispositive orders after publication of reasons – subcontractor succeeds with claim on debt – contractor succeeded in claim for damages for breach of subcontract – whether judgments should be set off COSTS – whether disentitling conduct by the party which succeeded overall – contractor’s success arising from late amendment – application for partial indemnity costs order
CRIMINAL LAW - defendant not fit to plead because of mental or cognitive impairment – special hearing - defendant found guilty, on limited evidence, of multiple ‘historical’ counts of indecent assault or sexual assault against children – whether sentence of imprisonment would have been imposed – limiting term
TORT - defamation - plaintiff serves concerns notices for a publication on Facebook - defendant’s solicitors seek further and better particulars - plaintiff commences proceedings - defendant brings an application for dismissal of the proceedings on the basis that the concerns notice is invalid - whether the particulars of serious harm were specified with sufficient particularity - whether the notice failed to specify a location where the matter could be accessed whether reasonable answers to a request for particulars had been provided - whether, if the concerns notice was valid, the statement of claim should be struck out for insufficient particularisation of serious harm and/or failure to provide particulars of downloading - proceedings struck out and dismissed
MOTOR ACCIDENT LEGISLATION – late claims – whether claimant has a full and satisfactory explanation for delay in making claim and for delay in commencing proceedings – whether a reasonable person in the position of the claimant would have failed to comply with the duty or would have been justified in experiencing the same delay CIVIL PROCEDURE – commencement of proceedings – application for leave to commence action CIVIL PROCEDURE – application for dismissal of proceedings – where statement of claim commenced without leave – where claim form served outside requisite period COSTS – party/party – general rule that costs follow the event – exceptions to general rule that costs follow the event – party seeking indulgence or dispensation of the court
CIVIL PROCEDURE – pleadings – application for leave to file cross claim out of time – whether prejudice will be suffered by potential cross defendant by late joinder – whether defendant has provided an explanation for the failure to comply with time limits and for the delay in bringing forward the application for an extension CIVIL PROCEDURE – pleadings – cross claim against third party – whether the relief relates to, or is connected with, the subject of the first proceedings
TORT - defamation - plaintiffs bring proceedings for 12 social media posts on their Church website by a former Church member saying they are devils running a satanic cult - plaintiffs’ concerns notice sets out serious harm and imputations collectively rather than on a publication by publication basis - whether particulars capable of amounting to serious harm - whether the “consensus” of modern public opinion means that the imputations pleaded are incapable of defamatory meaning let alone serious harm - whether serious harm in the statement of claim adequately particularised - application for summary dismissal dismissed
SENTENCING – cause grievous bodily harm with intent to prevent lawful arrest or detention – victim a police officer – whether the victim was vulnerable by virtue of his employment as a police officer – whether the offending is aggravated because the victim was a police officer – substantial injuries – injuries caused by a single kick – strong subjective case for the offender – no previous convictions – young age of the offender – excellent prospects of rehabilitation – low risk of reoffending – genuine contrition and remorse – first time in custody – special circumstances – only a sentence of full-time imprisonment appropriate
PROCEEDURAL RULINGS – Equitable Jurisdiction of the District Court of NSW PROMISORY ESTOPPEL – s 134(1)(h) District Court Act 1973 (NSW) REASONABLE NOTICE OF TERMINATION – Fair Work Act 2009 (Cth) Ss 12; 117; 539; 562
LEASES AND TENANCIES — rent and outgoings — recovery of rent and interest – damages for cleaning and painting CIVIL PROCEDURE – judgment when defendant is absent – dismissal when plaintiff is absent
CRIME — Driving offences — Dangerous driving occasioning death – pedestrian crossing – momentary inattention or misjudgement SENTENCE – early guilty plea – no prior offences – low end of the range – low level of moral culpability – high level of contrition – mild intellectual disability
CRIME - SPECIAL HEARING – defendant became unfit to be tried after offending and before trial – ‘special hearing’ under Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – limited evidence, offence committed - determination by judge alone
CRIME — appeal and review — appeal from Local Court to District Court — by person convicted against conviction – wilful and obscene exposure in a public place – intentional exposure – proof beyond reasonable doubt
COSTS – plaintiff successful in obtaining summary judgment on substantial part of its claim – parts of defence struck out – plaintiff awarded costs to date – costs follow the event – circumstances of partial success – discretion
SENTENCING – aggravated break and enter – steal motor vehicle – vehicle a classic car – lengthy criminal history – previous convictions for like offences – planning and sophistication in the offence – Bugmy principles enlivened – some contrition and remorse – risk of institutionalisation
TRAFFIC LAW AND TRANSPORT — Traffic law — Motor accident legislation — Time limits CONSTITUTIONAL LAW — The Judiciary — Federal jurisdiction — Diversity jurisdiction
Crime – Sentence – Assault occasioning actual bodily harm – Inflict actual bodily harm with intent to have sexual intercourse – Offences occurred in a custodial setting.
CRIME — appeal and review — appeal from Local Court to District Court — by person sentenced against sentence – refuse/fail to comply with direction – s 10 – fine – whether trivial – whether serious – relevance of antecedents
CRIME — appeal and review — appeal from Local Court to District Court — appeal against conviction – refuse/fail to comply with a direction – whether authorised public assembly – whether obstructing traffic – whether belief on reasonable grounds – whether appellants “persisted”
CRIME – Supply prohibited drug over commercial quantity - Possess prohibited drug SENTENCING - Relevant factors on sentence – low level drug dealers – sometimes operating together- early guilty pleas - rolled up offences - reasons for the uptake of drugs explained- drug addiction does not excuse drug dealing – first custodial sentences – some promise of rehabilitation - parity – special circumstances found
CRIME – Indecent assault person under 16 years of age (DV) - Sexual intercourse with child under the age of 10 years (DV) - Intentionally carry out sexual act with child under 10yrs (DV) SENTENCING - Relevant factors on sentence – multiple child victims – father offends against daughter and stepdaughters - victim impact when child too young to understand what had occurred - pleas of guilty - disclosure of unknown guilt – significant reduction in sentence - moral culpability - no special circumstance finding
APPEALS — leave to appeal — appeal from Local Court to District Court – Small Claims Division - procedural fairness – lack of jurisdiction - delay in commencing appeal – 12 month-delay – lack of explanation
CONTRACTS — formation — acceptance of offer – not pursued – new offer – accepted – effect on prior executed documentation – dispute – without prejudice letter – executed - whether parties had entered into binding contract to settle dispute
CIVIL PROCEDURE – appeal from the Small Claims Division of the Local Court – Local Court decision to strike out plaintiff’s claim - application for summary dismissal of appeal proceeding – limited nature of an appeal from decision of the Small Claims Division – whether there was a failure to give reasons
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – vulnerable worker SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – discount of 25% for the utility of the plea – general deterrence – specific deterrence – remorse and contrition – capacity to pay COSTS – prosecutor’s costs
SENTENCING – intentionally sexually touch child under 10 years (DV) – use child under 14 years to make child abuse material – intentionally carry out sexual act with child under 10 years (DV) – sexual intercourse without consent (DV)
CRIME – using a carriage service to transmit indecent communications to a child under the age of 16 SENTENCING - Relevant factors on sentence –impact on children of internet offences considered - offending on one night - a relationship of trust with the child victim was broken - early guilty plea- aberrant behaviour – offender otherwise has no convictions - drug use - steps toward rehabilitation - impact of delay - is full time custody required?
TORT - defamation - two videos of abusive and threatening content accusing the plaintiff of paedophilia and racism - defendant challenges capacity and serious harm but raises no substantive defences - defendant fails to attend hearing and solicitors granted leave to withdraw - imputations conveyed and serious harm established - damages including aggravated damages - interest - permanent injunction granted
CRIME – Take/detain in company with intent to get advantage occasion actual bodily harm - Dishonestly obtain financial advantage etc by deception – Breach Community Corrections orders SENTENCING - Relevant factors on sentence - late guilty plea - joint criminal enterprise – humiliation of the victim - background of hardship and trauma – disadvantaged childhood - both parent’s gaoled- lesser moral culpability
BUILDING AND CONSTRUCTION – dispute between head contractor and sub-contractor – whether there was a defect in the appearance of bowing on stairs after works - whether sub-contractor failed to comply with direction to repair defect within a stipulated timeframe – whether right to issue a direction was an essential term or intermediate term in the subcontract - whether any such failure gave rise to an express right in the contractor to terminate or amounted to a repudiation – whether contractor’s termination lawful – whether sub-contractor elected to terminate for contractor’s repudiation by wrongful termination DAMAGES – contractor claim for damages for breach of contract – compensation for cost of rectifying defective work – whether, upon termination of the contract, contractor entitled to retain sums withheld under contract – whether contractor entitled to keep monies accrued under provision for retention and damages for breach by sub-contractor PRACTICE AND PROCEDURE – building disputes – the Court’s expectations of practitioners to consider and raise with the Court the desirability of orders for joint expert conferences and reports well in advance of hearing
CRIMINAL - Commonwealth offences – Sentence - use carriage service to access, possess and transmit child abuse and child pornography material – including aggravated offence - sharing child abuse/ pornographic material in internet chat groups involving two or more people – aggregate sentence
COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion - Orders when proceedings involve multiple parties – Parties with same interests
CRIME - sexual intercourse without consent – sexual touching - Judge-alone trial – pre-trial issues concerning admissibility of accused’s ERISP and deceased complainant’s recorded police statement
CRIME – Have sexual intercourse with child aged 14 to16 years - Intentionally incite child aged 14 to16 years to sexually touch - Stalk/intimidate intend fear physical etc harm (personal) SENTENCING - Relevant factors on sentence – early guilty plea - practical remorse and acceptance of responsibility - multiple offences - two victims- - course of conduct - objectively serious offending persistent - victim impact- offender has a background of hardship- lesser moral culpability - deterrent sentence still required – ill health - assaulted in custody - impact of COVID -special circumstances
CRIME — Drug offences — Supply prohibited drug — Large commercial quantity CRIME — Money laundering — Dealing with money suspected of being proceeds of crime SENTENCING — Aggravating factors — Breach of conditional liberty SENTENCING — Mitigating factors — No record of previous convictions — Rehabilitation — Remorse — Unlikely to re-offend SENTENCING — Relevant factors on sentence — Form 1 offences — General principles — Maximum penalty — Multiple offences — Accumulation, concurrency and totality — Aggregate sentences — Objective seriousness — Sentencing statistics SENTENCING — Sentencing procedure — Use of statistics SENTENCING — Subjective considerations on sentence — Age of offender — Drug addiction — Health issues — Special circumstances
CRIME — Child sex offences — Child abuse material — Production/Dissemination/Possession CRIME — Child sex offences — Sexual intercourse with child <14 – Circumstances of aggravation
CIVIL PROCEDURE – summary judgment – whether defendant demonstrates the existence of a triable issue – whether there is no real question to be tried – whether the ultimate outcome turns upon the resolution of disputed issue or issues of fact CIVIL PROCEDURE – pleadings – striking out – no reasonable defence – whether the defence is so obviously untenable that it cannot possibly succeed
PRACTICE AND PROCEDURE - defendant fails to communicate with her pro bono lawyers, who do not file an amended defence conformably with a timetable - prior history of unsatisfactory pleading by both the plaintiff’s previous lawyers and the defendant’s lawyers - history of delay on both sides - whether entry of default judgment warranted - whether a defence on the merits was made out - no issue of principle
TORT - defamation - application pursuant to s 10A(5) Defamation Act 2005 for the serious harm element of the plaintiff’s claim to be determined before the trial - whether separate determination of issues should be seen as an “exceptional course” - whether there was a need to identify a clearly severable question - whether there was a possibility of inconsistent credit and quantum issues - whether the nature and extent of the evidence was suitable for a separate hearing - s 10A(6) factors of costs, resources and overlap - whether special circumstances warranted the refusal of the application - whether the defendant should be required to file a defence prior to this issue being determined - defendant’s application for the serious harm element of the plaintiff’s claim to be determined separately before trial granted
CRIME – Aggravated enter dwelling with intent - knowing people there - Contravene prohibition/restriction in AVO (Domestic) - Assault occasioning actual bodily harm (DV) - Stalk/intimidate intend fear physical harm (domestic) SENTENCING - Relevant factors on sentence – early guilty plea - objectively serious offending offence involved gratuitous cruelty - breach of AVO - victim impact - mentally ill offender- offender needs continuing and detailed mental health supports – offender would best be treated in a mental hospital
TORTS – negligence – occupiers liability – plaintiff injured following trip over uneven margin of sunken utility pit lid on footpath – findings on negligence and contributory negligence – rejection of defence of obvious risk – plaintiff unsuccessful in claim against first defendant – plaintiff successful in claim against fourth defendant; DAMAGES – assessment of claimed heads of damage