CRIME — Bail — Release Application — Previous release application in the Local Court — Consideration of s 74 Bail Act — Meaning of ‘material information’ — Requirement of s 74 not met — Court declines to hear further release application
SENTENCING – fact finding – agreed facts – versions in statements tendered by defendant inconsistent with agreed facts concerning the conduct of the victim – requirement for agreed facts to be returned for reconsideration by the parties – resolution of differences by the application of sentencing principles in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 OFFENCES – s 59 Crimes Act – assault occasioning actual bodily harm – assessment of objective seriousness – offences committed with an high level of violence – purposes of sentencing – requirement of sentences to reflect the respective assessments of objective seriousness, strong need for general deterrence, denunciation, accountability and harm to the victim IMPRISONMENT – intensive correction orders – s 66 Crimes (Sentencing Procedure) Act 1999 – Stanley v DPP (NSW) [2023] HCA 3; (2023) 97 ALJR 107 – requirement to apply the common law proportionality principle notwithstanding beneficial findings under 66(2) – court is entitled to take into account the leniency of an ICO in determining whether it should be imposed – sentences of full-time imprisonment appropriate
Parole — Breach of Parole — Revocation of Parole — Untried Charges for offences alleged to have been committed while on Parole — Whether inappropriate to set Non-Parole Period
Two loaded pistols in a public place - traversal of guilty pleas following Court’s refusal to accept inappropriate Form 1 – withdrawal of previously substantive charges – guilty pleas to certain charges on earlier version of Form 1 – further Form 1 prepared – retribution and personal deterrence – general deterrence – protection of community – supervisory role accorded by s 33(2)(b) Crimes (Sentencing Procedure) Act - jurisdictional limit – partial accumulation – sentence to reflect seriousness of totality of conduct – objects and principles of Firearms legislation – only full-time custody appropriate
Appropriateness of Form 1 – guideline judgment re Form 1 matters — effect of Form 1 where substantive offence reaches or exceeds jurisdictional limit – Form 1 incapable of increasing sentence for substantive offence where jurisdictional limit reached – whether Form 1 matters prevent ultimate sentence from reflecting seriousness of the totality of conduct – inability to give effect to the need for retribution and personal deterrence– Court’s supervisory role accorded by s 33(2)(b) Crimes (Sentencing Procedure) Act
Aggregate sentence – dangerous driving under the influence of a drug occasioning grievous bodily harm – cause bodily harm by misconduct of motor vehicle – record amounting to common law aggravation – conditional liberty for drive under the influence of drugs – steps towards rehabilitation – promote rehabilitation of offender - general deterrence – specific deterrence – protection of community – denunciation – make offender accountable for actions - objective seriousness – guideline judgment – abandonment of responsibility – high moral culpability – consideration of ICO – attitude of victim
Sentencing – s 117, Road Transport Act – negligent driving occasioning death – second and subsequent offence – negligent driving established where the defendant drove a motor vehicle in a manner involving a departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances – assessment of objective seriousness – degree of departure from the standard of care expected of the ordinary prudent driver in the circumstances informs the assessment of objective seriousness – purposes of sentencing – requirement of sentence to reflect the objective seriousness, general and personal deterrence, the need for rehabilitation, denunciation, accountability and harm to the victim – subjective matters – guilty plea – principle of proportionality – intensive correction orders – proportionality principle required a sentence of full-time imprisonment – appellate cases of Bonsu v R [2009] NSWCCA 316, R v Dodd (1991) 57 A Crim R 349, Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154, R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 and Quinn v Cth DPP [2021] NSWCA 294 applied.
ANIMALS — Animal cruelty — Application for disposal under s 31 of the Prevention of Cruelty to Animals Act 1979 (NSW) — Whether order for disposal or order for payment of care and maintenance costs by accused person should be made
CRIME – allegation of failing to comply with reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW) – internet service provider information – whether provision of incorrect or inaccurate relevant personal information to police by a registrable person constitutes an offence under s 17 of the Act – whether the Act permits a registrable person to notify a change in personal information in advance of the change coming into effect – whether ‘reasonable excuse’ established under s 17(2) of the Act
CIVIL - Res judicata - cause of action estoppel - issue estoppel - Anshun estoppel - Abuse of process - earlier NCAT proceedings - subsequent Local Court proceedings
Obtain financial advantage by deception – history of dishonesty offences an aggravating factor – offences occurred on conditional liberty pending appeal to NSWCA for dishonesty offences – degree of planning – need for both general and specific deterrence – totality of sentence – misleading and false submissions
Supply prohibited drug to school children – defendant in position of trust as teacher – serious offending – longstanding mental health issues – discretionary judgment – protection of community – sentencing discretion – purposes of sentencing
CIVIL — plaintiff’s notice of motion for summary judgment for unliquidated statement of claim — plaintiff’s application for change of venue — plaintiff’s application to disqualify for actual or apprehended bias — plaintiff’s affidavits in support likely fraudulently affirmed — referral to NSW Police Force for investigation and consideration as to whether charges should be laid for likely impropriety regarding plaintiff’s making, using and filing false document
CIVIL — notice of motion for default judgment for unliquidated statement of claim — interests of justice best served by hearing on the merits — justiciable issues — arguable defence — registrar’s referral of notice of motion to magistrate in chambers
Crime – sequence 1: enter inclosed lands - whether accused had implied consent or a lawful excuse to enter land – existence of implied licence at common law to enter land – availability of ‘claim of right’ defence – sequence 2: malicious damage – whether evidence sufficient to sustain proof of the offence – prosecutor concedes charge not sustainable - sequence 3: intimidation – whether accused intended to cause fear of physical or mental harm – whether accused’s conduct amounted to ‘intimidation’ – availability of ‘claim of right’ defence
Crime – allegations concerning inmate at Clarence Correctional Facility – sequence 1: possession of prohibited drug – buprenorphine strips – direct evidence from correctional officer and close circuit television and body worn video footage - circumstantial evidence arising from DNA testing - whether accused had possession of buprenorphine strips – sequence 2: possession of offensive weapon – prison-made ‘shiv’ – whether accused had possession of shiv - circumstantial evidence arising from DNA testing
Crime – hinder police in execution of duty – whether breach of s 10 of Law Enforcement (Powers and Responsibilities) Act 2002 – whether accused’s actions constitute a ‘hinderance’ – possession of gel blaster pistol – whether accused had control of pistol
CRIME — Bail — Appeal bail — Whether s 22B of the Bail Act 2013 applies in circumstances where an appeal against a sentence of the Local Court is lodged in the District Court STATUTORY INTERPRETATION — Legislative purpose — Interpretation Act 1987 (NSW), s 33
COMMITTAL PROCEEDINGS – application by media for access to court documents – material played in open court - uplift and copy access sought – broadcast for purpose of giving a fair report of proceedings – potential for prejudice to fair trial of accused
Civil claim – Collision between unmanned marine vessels – Negligence – Non-delegable duty of care – Breach of duty – Damages – Expert evidence in the Local Court – Joint Reports – Costs
Contract for sale of goods and services – work done – contributory negligence – breach of duty of care in defence to a claim in contract - apportionment of liability – cybercrime – fault – public policy or interest
Carriage by sea and land; bailment; sub-bailment; contract; bailment on terms; Bill of Lading; time bar clause; estoppel; liability limitation clauses; Himalaya clause; whether delivery included to plaintiff’s warehouse; Hague Visby Rules; implied terms; applicable contract of carriage; breach of contract; interaction between the concurrent contracts, exclusion clauses in contracts, Himalaya clause, and bailment; estoppel in relation to time bar in contract; intersection of bailment and contractual law principles
CRIME — Violent Offences —Stalking or intimidation — criminal history of serious sexual offences — high objective seriousness — need for specific deterrence — need for general deterrence — need for protection of the community
Civil claim – Residential building work – Whether builder in breach of contract - Defective building work – Method of rectifying defective works – Cost of rectification works – Contributory negligence –Apportionable contributory negligence – Appropriate remedy – Quantum of damages - Costs
Practice and Procedure – Defendant’s motion for summary dismissal of claim – principles to be applied – whether no reasonable cause of action – whether abuse of process
Biodiversity Conservation Act 2016, ss 2.5(c), 13.9 offence of procuring an offence of dealing in a protected animal (kangaroo) – whether offence under s 2.5(c) is an offence of absolute or strict liability – whether common law ground of exculpation of honest and reasonable mistake of fact is available to the alleged principal and also secondary participant – CTM v The Queen (2008) 236 CLR 440 applied – s 13.9 – application of common law doctrine of accessorial liability of aid abet, counsel and procure to a charge laid under s 13.9 – ingredients of offence that the prosecution must prove where the offence allegedly committed by principal is a strict liability offence – Giorgianni v The Queen (1985) 156 CLR 473 applied – requirement of prosecution to prove knowledge and intention on part of secondary participant – defendant not guilty on basis that prosecution failed to prove the ingredient of knowledge
Extradition Act 1988 (Cth), s 15 – remand – application for bail – s 15(6) – whether there are special circumstances justifying the remand of the applicant on bail – applicant placed in protective custody – onerous conditions of incarceration – likelihood of conditions exacerbating pre-existing mental health conditions – hardship to third parties –applicant’s co-dependent relationship with parents – circumstances relied upon do not constitute special circumstances either individually or in combination – applicant is a real risk of flight
CONTRACT – Civil claim – Implied contract terms – Whether term to be implied by previous course of dealings between parties – Whether Defendant in breach of contract – Estoppel by convention – Whether Defendant suffered detriment – Costs
CRIMINAL LAW - affray - prosecution statements of two complainants tendered but no oral evidence given by all three principal complainants - direct evidence - circumstantial evidence - good character - defendants each gave record of interview - inconsistencies between police statements and oral evidence
CIVIL - Hire car agreements - whether the defendant liable to pay actual cost of that hire - general damages for the loss use - whether defendant only required to pay hypothetical cost of reasonable replacement vehicle
HIGH RISK OFFENDERS — Extended supervision orders — Breach of Conditions — Unacceptable risk of committing a serious offence SENTENCING — Relevant factors on sentence — Deterrence — Specific deterrence – Breach of extended supervision order – condition of Order not to use illicit drugs – risk of committing further serious violence offence due to substance abuse – whether contravention of Order is an uncharacteristic aberration or a continuing attitude of disobedience of the law – whether the criminal record is an aggravating factor – issues of specific deterrence and protection of society – deprived upbringing – drug addiction from early age – ongoing need for rehabilitation – protection of community paramount consideration
SENTENCING – Particular Offences – Domestic violence – Contravene AVO – Common Assault – Indecent Assault - repeat domestic violence offender – contravention of domestic violence orders involving acts of violence – need for both specific and general deterrence – need to protect the community – recognition of harm to the victim – poor prospects of rehabilitation
CRIMINAL LAW - indecent assault - standard of proof - onus of proof - cautionary criminal trial directions applicable in summary prosecution - defence case - whether Defendant’s act intentional or accidental
CRIMINAL LAW - supply prohibited drug - deemed supply - where prosecution case based in part on direct evidence and in part on circumstantial evidence - possess prohibited drug - proceeds of crime - possess prohibited weapon - mace - elements of offences - unexplained wealth
CRIMINAL LAW - common assault - defence case - whether Defendant’s conduct intentional - whether Defendant’s conduct without lawful excuse - self-defence - where Defendant was a carer and disability support worker in a group home - where Defendant’s conduct was alleged to be a common assault on two autistic and cognitively impaired residents - where alleged victims were young adult females - whether the Defendant’s conduct was a breach of the criminal law or whether he performed his duties poorly or negligently - whether Defendant’s actions constituted excessive force - where Defendant physically restrained the alleged victims - Held: lawful excuse established - Held: self-defence established
SENTENCING – particular offences – commit act of aggravated cruelty upon animal – fail to provide vet treatment – dog starved to death - discount for utilitarian value of guilty plea – high range objective seriousness – no prior criminal record - difficult to conclude offender displays contrition or remorse given attempts to mislead investigators – moral culpability towards highest level - need for retribution and general deterrence call for significant sentence – no other sentence than term of imprisonment appropriate – special circumstances
SENTENCING - Intimidation – Stalking – anonymous threatening letters – conduct over protracted period of time – escalating nature of threats – physical threats – sexual threats – recognition of harm done to the victim – need for specific and general deterrence – lack of remorse
CRIMINAL PROCDURE – search warrants – Law Enforcement (Powers and Responsibilities) Regulation 2016 – clause 14 (1) certificate issued by Registrar - certified records not available for inspection by occupier – application to revoke the certificate – whether certificate should be revoked on the basis disclosure of documents is not likely to jeopardise any person’s safety or seriously compromise the investigation of any matter – jurisdiction – “eligible issuing officer” – public interest immunity – matters of state
COSTS – Solicitor/ Client – Costs agreement – Bill of costs - Recovery of legal bill of costs issued by solicitor to client – Statutory requirements – Effect of non-compliance with statutory requirements
EVIDENCE – Discretions – Exclusion of evidence – Improperly or illegally obtained evidence – validity of search warrant – mis-description of premises to be searched – matter which affects the substance of warrant in a material particular
CRIMINAL PROCEDURE – stay of proceedings - permanent – cognitive impairments – whether defendant fit to be tried – Presser Test – whether defendant suitable for diversion under s 32, Mental Health (Forensic Provisions) Act 1990
APPLICATION - Appeal to Local Court against decision of RMS to extend interlock compliance period - extension of interlock licence condition – positive alcohol readings caused by prescribed medication – appealable decision – appeal upheld
SENTENCING – particular offences – supply prohibited drug – guilty plea prior to committal – statutory sentencing discount for guilty plea – mid-range objective seriousness- impact of prior criminal record as aggravating factor – deprived of leniency on sentence - relevant to prospects of rehabilitation – drug addiction – participation in treatment and rehabilitation programs – no other alternative than sentence of imprisonment – aggregate sentence – to be served by way of intensive correction order
CRIMINAL LAW - Application for annulment convictions, s 4 Crimes (Appeal and Review) Act 2001 – circumstances in which applications are to be granted – whether applicant hindered by accident, illness, misadventure or other cause – whether application should be granted in the interests of justice – evidentiary standard of proof – meaning of the word “satisfied” for the purposes of s 8 Crimes (Appeal and Review) Act (NSW) 2001
CRIME- Summary offences - Inclosed lands – relevant area open to public as thoroughfare – banning notice – time limitations on banning notice – move on direction – powers of licensee to ban person
CONTRACTS - whether works were residential building work or supply of related services in relation to construction work - terms of contract – applicable legislation CIVIL PROCEDURE - pleadings – striking out
CRIMINAL PROCEDURE – commencing proceedings - whether Attorney General’s consent validly given to prosecution of the particular offences before the court - whether delegation by Attorney General to Solicitor General was invalid - whether instrument of delegation invalid on the words of instruments for lack of specificity - whether authorisation of the prosecution validly made - whether proceedings not validly commenced by Attorney General such that there is no jurisdiction
CRIMINAL PROCEDURE – Application under section 45 of Crime Commission Act 2012 – Application for access to confidential transcripts of compulsory evidence given by witnesses to Crime Commission - whether evidence given before the Crime Commission should be provided to the parties in a criminal trial – whether interests of justice so require – relevant considerations – where Crime Commission objects – submissions taken in the absence of accused persons and their lawyers - in camera submissions taken from lawyers for interested parties (witnesses before the Commission)
CONTRACT - Formation of contract – offer and acceptance – terms contained in attachment to an email – whether terms brought to attention of recipient – whether a legally binding agreement
CRIMINAL LAW - filming person in private act without consent - using carriage service to transmit material that was offensive - word on word allegations
RESTITUTION - Funeral expenses - claim for travel costs for transport of deceased ashes - executor’s legal rights and obligations - executor’s duties to the deceased body and funeral arrangements - dispute between former wife and adult daughter
APPLICATION – Special Jurisdiction – application for removal of drive licence disqualification period – meaning of relevant offence free period – offence committed outside relevant period - date to be used for calculation of relevant threshold for making application - whether date offence committed or date of conviction applies – date of conviction not impediment to making of application, however date of conviction relevant to whether Local Court can exercise power to remove disqualification
CRIMINAL – Sentence – Commonwealth offences - providing false and misleading information to a Commonwealth agency – using a false document to mislead a Commonwealth agency – electoral roll - consequences of offending – top of scale of criminality – extra-curial punishment – media notoriety – injury, loss or damage – loss suffered by community - contrition or plea – partial admission of guilt and apology for some offences - mental illness – diagnosis of bi-polar disorder – unclear whether disorder had developed at time of offending – yet to obtain treatment – satisfied only full-time custodial sentence appropriate
CRIME- Sentencing – Radiation Control Act 1990 (NSW) - section 6(6) – nine offences of corporation failing to ensure regulated material is used by licenced person – regulated material used on children – objectives of Radiation Control Act 1990 (NSW) – proportionality – assessing objective seriousness of each crime against the maximum penalty – role of jurisdictional maximum of Local Court in sentencing exercise – totality –offences committed for financial gain – purposes of sentencing – requirement of sentence to reflect general and specific deterrence and denunciation
CRIME – Sentencing – incite an aggravated act of indecency – aggravated indecent assault – victim under age of 16 - historical child sex offences – offender victim’s stepfather at time of offending - committed in victim's home – breach of trust – vulnerable victim - offending behaviour above mid-range of objective seriousness - utilitarian value of guilty plea – court required to sentence according to current community standards – special circumstances – offender’s age and health - sentence of imprisonment imposed
CRIME – Sentence – Assault Occasioning Actual Bodily Harm in Company – Possess Prohibited Drug – utilitarian value of guilty plea – previous criminal record - substance abuse – possible underlying mental health issues – no medical report - section 5 threshold crossed – Intensive Corrections Order not appropriate – sentence of full-time imprisonment imposed
CRIMINAL LAW – Particular offences – Driving offences – Driver license disqualification in another jurisdiction – Cancellation of driver license in NSW – Operation of section 207 Road Transport Act 2013 – whether a “decision” by Authority – whether “appealable decision” - whether right of appeal to Local Court under section 267 of Road Transport Act 2013
CRIMINAL LAW – Particular offences – Miscellaneous offences and matters – Disrespectful behaviour in court - meaning of disrespectful behaviour in court - whether failure to stand for Judge in District Court proceedings is disrespectful behaviour in court according to established court practice and convention - freedom of political communication implied by Commonwealth Constitution - whether effectively burdened - if the freedom is burdened, whether law valid - whether law invalid pursuant to Chapter III of the Commonwealth Constitution - whether law inconsistent and invalid pursuant to section 109 of the Commonwealth Constitution
CRIMINAL – Sentence – Commonwealth offences - providing false and misleading information to a Commonwealth agency –above mid-range of seriousness - reliability of electoral roll affected - damage flow to democratic electoral system - guilty plea - utilitarian value - sincere remorse and contrition - reduced need for personal deterrence - custodial sentence appropriate - probable effect of sentence on family - exceptional hardship made out - health conditions of young children - ordered to enter in to recognizance
CONSUMER CREDIT - Credit hire agreement – claim for hire costs of replacement vehicles – actual and temporal loss - type of vehicle - entitled to recover the cost of hiring a replacement vehicle to the extent reasonable to incur expenditure – what is reasonable to meet needs - rate of hire – credit hire agreement does not represent market rate
DAMAGES - Motor vehicle collision - assessment of damages - diminution of value - plaintiff seeks award for diminution of value in addition to the cost of repairs – assessment of diminution
CRIMINAL LAW - Particular offences – Property offences - Dishonestly obtain property by deception – false workers compensation claims – offender not employed – offender not injured – degree of planning – course of criminal conduct – further criminal conduct to dishonestly obtain benefit from second insurer – quantum of loss – consideration of parity issues – need for general deterrence – need for specific deterrence – assumption of sentencing outcome by parties – suspended sentence inappropriate sentencing option
CONTRACTS – Terms - exclusive jurisdiction clause – plain meaning of words within an exclusive jurisdiction clause to operate in commercial contracts – purpose of an exclusive jurisdiction clause the determination of all disputes in a single jurisdiction
CRIMINAL LAW – Sentence – Dishonestly obtain financial advantage by deception - relevant factors – prior history criminal offending – abuse of position of trust – offence involved a degree of planning – committed for financial gain - defendant diagnosed with substance abuse disorder, addictive disorder, and adjustment disorder – impact on former employer – discount for utilitarian value of guilty plea – no other sentence other than imprisonment appropriate – appropriate sentence exceeds jurisdictional limit - effectively removes alternatives to full-time imprisonment from consideration - fact Court determined a sentence beyond the general applicability of alternatives but is constrained by the jurisdictional limit does not re-activate their respective applicability - not appropriate to adjust sentence to bring within parameters of a legislative option if conduct and circumstances would not otherwise justify such an outcome – special circumstances – compensation for loss
CRIMINAL LAW – Sentence – Recklessly inflict grievous bodily harm – domestic violence offence – ferocious violence - excess consumption of alcohol - subjective factors – defendant no memory of offence - psychological reports – speculative conclusions – offender otherwise person of good character – offending behaviour out of character – good prospects rehabilitation – contrition and remorse – mid-range objective seriousness – DPP chose not to elect to have matter dealt with in District Court where full range of sentencing powers available – appropriate sentence exceeds jurisdictional limit of Local Court – general deterrence – adequacy of punishment – accountability – denunciation of domestic violence offence – no other alternative than sentence of imprisonment
CRIMINAL LAW – Procedure – Leave to dispute agreed facts – plea bargain - Evidence Act not applicable – offender bound by conduct of counsel – offender aware of factual issues for years – disputed facts not raised in timely manner – interests of justice – procedural fairness – desirability for finality of proceedings– evidence not given by defendant – difficulty in assessing untested assertions – onus of proof on party seeking leave – leave refused
CRIMINAL LAW – Miscellaneous powers of courts and judges - application for dismissal following withdrawal pursuant to s 208 of the Criminal Procedure Act 1986 – whether abuse of process – accused’s submissions misconceived and must fail CRIMINAL LAW – Costs – whether the investigation has been conducted unreasonably or there has been an unreasonable failure to investigate a relevant matter suggesting the accused might not be guilty - whether it is otherwise “just and reasonable” to award costs – application refused
CRIMINAL LAW – Sentencing – assault with an act of indecency – historical offences – offender juvenile at time offending – committed in victim's home – breach of trust – towards upper level of objective seriousness - prior good character - unlikely to reoffend – good prospects of rehabilitation – utilitarian value of guilty plea – mistake to assume proceedings would have been dealt with in children’s jurisdiction – at odds with current authority – court must approach sentencing on basis of penalties which existed at time of offending, and prevailing sentencing patterns and procedures – sentence of imprisonment imposed - suspended on condition that offender enter bond for each conviction
CRIMINAL LAW - Fitness to plead or be tried - cognitive impairments - sexual offending - Local Court jurisdiction - appropriate order - permanent stay - diversion pursuant to section 32
CRIMINAL LAW – sentencing – cybercrime –offences committed while subject to an intensive correction order for other offences - effect of delay on sentencing – weight to be given to self-serving and untested statements in psychologist report
EVIDENCE – tendency evidence – allegations of indecent assault upon children and possession of child abuse material – whether possession of child abuse material demonstrates a tendency to be interested in children in a sexual manner and obtain sexual gratification from children
CRIMINAL LAW – self-administer drug with intent to procure own miscarriage – s 82, Crimes Act 1900 – whether miscarriage or abortion a necessary outcome to ground the element of intention STATUTORY INTERPRETATION – meaning of ‘miscarriage’ and ‘abortion’
CRIMINAL PROCEEDINGS – drive with illicit drug present in blood – positive test to cannabis – defence of honest and reasonable mistake of fact – availability
CIVIL PROCEEDINGS – Debt recovery – jurisdiction of Local Court when cause of action or defendant out of state – whether material part of cause of action arose in New South Wales – assignment of debt merely passing interest to assignee – no jurisdiction to determine proceedings
CRIMINAL LAW - Particular offences - Driving offences - Dangerous driving – Grievous bodily harm – furious driving part of dangerousness – exceeding the speed limit – abandonment of responsibility as a driver – not momentary inattention – multiple victims – conditional liberty – poor driving record – matters on Form 1 – bonds revoked – need for general deterrence – need for specific deterrence – severe injury requires retribution in sentencing – special circumstances
CRIMINAL LAW – Sentencing – particular offences – dangerous driving occasioning death – failure to keep a proper lookout – negligence more than momentary inattention - factors relevant to sentencing – degree of moral culpability – impact on community and victim – need for general deterrence- prior good character - plea of guilty – remorse – sentence other than imprisonment appropriate – suitable for community service
SENTENCING - intimidation – remain in building with intent to commit an indictable offence – armed with intent to commit an indictable offence – home invasion – objective seriousness – drug addiction not mitigating factor other than in exceptional case – intensive correction order – suitable for order but order not appropriate – purposes of sentencing – special circumstances
CRIMINAL LAW – sentence – dishonestly obtaining financial advantage by deception – assessment of objective seriousness – victim organisations role in offending – assistance to authorities – voluntary disclosure of guilt – treatment by media as extra curial punishment – disposition without recording a conviction.
CONTRACTS - rental agreement - failure of consideration - Australian Consumer Law - acceptable quality - fitness for purpose - sale of goods by sample.
APPLICATION PROCEEDINGS – disposal of property seized by police - competing applications for disposal of motor vehicle – s 219, Law Enforcement (Powers and Responsibilities) Act 2002
SENTENCE – possess unauthorised firearm – possess prohibited weapons – possess prohibited drug – Form 1 offences – general principles regarding sentencing for firearms and prohibited weapons offences - discounts for plea of guilty and assistance to authorities - weight not given to self-serving and untested out of court statements - suitable for intensive correction order but order not appropriate - purposes of sentencing - need for general and specific deterrence - no finding of special circumstances
CRIMINAL LAW – driving while disqualified – meaning of “road” and “road related area” – Aboriginal Land Council land – open to and used by public – express or implied invitation to enter
CIVIL PROCEEDINGS – notice of motion - setting aside judgment entered by consent – splitting a cause of action – insurance – subrogation - Morganite principle – good faith
CRIMINAL LAW – applications – disqualification for apprehended bias – hearing following preliminary hearing where magistrate exposed to material said to be prejudicial – link to potential for bias in decision-making not identified
CRIMINAL LAW – driving with an illicit drug present in blood – availability of defence – honest and reasonable mistake of fact EVIDENCE – expert evidence – contradictory evidence of two experts
CIVIL PROCEEDINGS – guarantee - whether guarantee for trade credit application applies to subsequent contract for supply of goods and services between same parties
CRIMINAL PROCEEDINGS – offences relating to publishing gambling related advertising - gambling activity – credit – reward – inducement STATUTORY INTERPRETATION – construction of Racing Administration Act and regulations – whether punitive or beneficial in nature
CIVIL PROCEEDINGS – small claims – motor vehicle accident – damages - loss of use - income producing chattels - claim by corporation - assessment of damages based on market rate for replacement - need for replacement
CRIMINAL LAW - Arson - Fraudulent insurance claim - Dishonestly, for gain, destroy property by fire - Dishonestly obtain financial advantage by deception (attempt)
CORONIAL LAW – application of public interest immunity – claim of public interest immunity made by Commissioner of Police (NSW) in respect of documents EVIDENCE - privilege – claim of public interest immunity made by Commissioner of Police (NSW) in respect of documents – public interest in effective law enforcement – public interest in the administration of justice – whether public interest immunity attaches to post-incident debrief documents
CIVIL PROCEEDINGS – applications - leave to institute civil proceedings - person convicted of serious indictable offence - Felons (Civil Proceedings) Act 1981 - disposal of property in police custody
CRIMINAL LAW – sentence - negligent driving occasioning death – offence at or just above mid-range of objective seriousness – powerful subjective case – exceptional hardship to family – no alternative to custodial sentence – regard to be had fact that offence resulted in loss of life - suspension of sentence of imprisonment
CRIMINAL PROCEEDINGS – prosecution statute barred - disposition of proceedings – papers to be marked ‘no jurisdiction’ - power to award costs where proceedings invalid
CIVIL PROCEEDINGS – motor vehicle accident claim – hire of replacement vehicle – assessment of damages – identification of market rate – need of plaintiff – duty to mitigate loss
SENTENCING - supply prohibited drug - subjective factors - factors in mitigation - primary consideration of general deterrence and denunciation - discount for assistance to authorities and guilty plea
CIVIL PROCEEDINGS – practice and procedure – restitution- moneys paid under garnishee order following default judgment – default judgment set aside – power of Local Court to order restitution of garnisheed moneys in substantive proceedings – civil contempt of court
CRIMINAL PROCEEDINGS – application for mental health diversion – s 32 Mental Health (Forensic Provisions) Act 1990 - assault – assault occasioning actual bodily harm – intimidation – whether acts impulsive – inadequacy of psychological report – generic treatment plan – submissions contrary to facts re extent of injury - use of a weapon – escalating level of violence – pre-conditions of s 32(1)(a)(iii) not met
CIVIL PROCEEDINGS – discontinuance – costs – ordinary rule that plaintiff is to pay defendant’s costs unless court orders otherwise – ordinary rule not a fetter to general discretion to order costs - displacement of the ordinary rule - principles
CRIMINAL LAW – sentencing – domestic violence offences – contravention of ADVO with violence - aggregate sentence – Local Court jurisdictional limit - general deterrence – specific deterrence – denunciation – protection of community – principle of totality – special circumstances
CIVIL PROCEEDINGS – motor vehicle accident – damages – cost of repairs – loss of use – hire of replacement vehicle – requirement for plaintiff to demonstrate need
SENTENCE – negligent driving occasioning death – failure to keep proper lookout – sentencing considerations – harm to victim and community – prior good character – exemplary driving record – demonstrated remorse – general deterrence – licence disqualification – automatic period – discretion to reduce disqualification period
CRIMINAL PROCEEDINGS – sentence – dishonestly obtain financial advantage for another person by deception – defendant a police officer - De Simoni principle – assistance to authorities – disposition without conviction – section 10(1)(b) bond
CRIMINAL LAW – sentence – correction of sentencing error – re-opening of proceedings – function and limits of s 43, Crimes (Sentencing Procedure) Act 1999 – ‘contrary to law’ – drive while licence suspended and mid-range PCA offences - automatic period of licence disqualification upon conviction
CIVIL PROCEEDINGS – registration of certificate of judgment – whether judgment creditor entitled to money paid into court – competing security interest – registration of security interest – attachment to collateral – perfection of security interest as condition of enforceability – effect of late payment of stamp duty on security deed – priority
CRIMINAL PROCEEDINGS – application for annulment of conviction – referral by minister – no contest as to facts – opportunity for mental health discharge if application granted
CRIMINAL PROCEEDINGS – mental health diversion – s 33(1)(b) Mental Health (Forensic Provisions) Act 1990 – Mental Health Act 2007- Local Court jurisdiction
CRIMINAL LAW – deal with property the proceeds of crime – sentence – assistance to authorities – offender a foreign national – relevance to sentencing of possible deportation – need for deterrence – suspended sentence inappropriate
CRIMINAL LAW – sentence – sexual intercourse with person aged over 14 years but less than 16 years – moral culpability of offender – vulnerable victim -disregard for ADVO in place at time of offence - impact of pre-existing and ongoing social disadvantage and mental health issues – risk of re-offending – suspended sentence imposed
CRIMINAL PROCEEDINGS - meaning of “committal proceedings” - meaning of “end of committal proceedings” COSTS - jurisdiction of Local Court for costs in committal proceedings
CRIMINAL LAW – environmental offences – pollute waters – planning consent requirement – water management plan – harm to environment - foreseeable harm – actual harm – general deterrence – specific deterrence – failure to disclose matter in licence variation application – principle of even-handedness – parity of sentence – publication order – consideration of assistance to authorities – aggregation of fines – totality principle
CRIMINAL LAW – high range PCA – drive while suspended – application of guideline judgment - 2 offences within 24 hours - danger to public - prior good character - excellent traffic record - serious alcohol abuse – rehabilitation - general deterrence - custodial sentence required - consideration of ICOs and suspended sentences as alternatives to full-time imprisonment - full-time imprisonment imposed
CIVIL PROCEEDINGS – assault – plaintiff detained by police under s 22 Mental Health Act 2007 – lawful justification for police action - whether use of Taser was reasonable and not excessive
CIVIL – Building and Construction Industry Security of Payments Act - whether payment claim made in accordance with Act - need for strict observance with requirements of Act - assignment - effect of s 553C Corporations Act 2001 (Cth)
CRIMINAL LAW – drive with mid-range PCA and other motor vehicle offences – admissibility of expert evidence – zolpidem intoxication – voluntariness – sane or insane automatism
COSTS - plaintiff's claim for less than $20,000 dismissed - defendant's application for indemnity costs or ordinary costs - discretion under s 98, Civil Procedure Act 2005 - effect of Part G "Maximum Costs Order", Local Court Practice Note Civ 1 - Calderbank offer - proportionality of costs
COMMITTAL PROCEEDINGS – firearms offences – whether court attendance notices (CANs) “embarrassing” and should be dismissed – proof in regard to licence or permit to possess firearms – evidential onus of absence of lawful authority to possess firearm – whether firearms “sold” where forfeited to the Crown
NOTICE OF MOTION - strike out application - whether statement of claim disclosed reasonable cause of action - breach of privacy - negligence - stay application upon provision of security for costs - application to set aside subpoena for production - whether issuing of subpoena constituted abuse of process
CRIMINAL LAW - remittal from Supreme Court - election out of time - correct statutory test to allow prosecution to proceed on indictment - WORDS AND PHRASES - "special circumstances" - Criminal Procedure Act 1986 (NSW), s 263
CRIMINAL LAW - Discharge of accused for prosecutor's failure to appear - Whether the Commonwealth Director of Public Prosecutions had the power to carry on proceedings on behalf of the NSW Director of Public Prosecutions WORDS AND PHRASES - "carry on" - Director of Public Prosecutions Act 1983 (Cth), ss 6(1)(m) and 17
CRIMINAL LAW - particular offences - practice protections - manipulation of the cervical spine - chiropractic WORDS AND PHRASES - "manipulation of the cervical spine" - "high velocity, low amplitude thrust" - Health Practitioner Regulation National Law (NSW), s 123(2)
APPLICATION PROCEEDINGS - recovery of premises under the Landlord and Tenant Act 1899 and the Landlord and Tenant Act 1948 - jurisdiction - service of the application notice - waiver of service requirements upon appearance in proceedings or failure to object
CRIMINAL LAW - application for an annulment of a conviction and sentence pursuant to s 4 of the Crimes (Appeal and Review) Act 2001 (NSW) - prior application for an annulment of conviction found to have been withdrawn - whether leave is required
CIVIL LAW - application for credit - whether contract binds the defendant - whether plaintiff entitled to assume application was duly executed by the defendant - whether goods ordered
SENTENCING - reckless inflict grievous bodily harm - importance of general deterrence - character references and victim impact statement - little use of supervision - contrition and remorse - guilty plea - no prior
CRIMINAL LAW - particular offences - habitually consorting with convicted offenders after warning WORDS AND PHRASES - "consort" - Crimes Act 1900 (NSW), ss 93W and 93X - "chance encounter"
SENTENCING - unathorised access to restricted data - recording a conviction - low objective seriousness - guilty plea - no prior - good character - community concern
CRIMINAL LAW - particular offences - offences against the person - assault occasioning actual bodily harm - common assault - whether police used reasonable force in arresting person suspected of offence - use of taser and capsicum spray - good character