Recent decisions for all Courts and Tribunals, Criminal

Catchwords:

CRIME – Special hearing – previous trial – retrial ordered by Court of Criminal Appeal – subsequent finding of unfitness – Director elected special hearing – historical allegations said to have occurred between 1973 and 1991 – tendency evidence – allegations that the accused in part used hypnosis (or relaxation therapy involving massage) on complainants – expert evidence on memory and hypnosis – accused gave evidence in original trial – three further complainants subsequent to grant of re-trial

Catchwords:

Robbery; schizophrenia

Catchwords:

CRIMINAL LAW – appeal – conviction – where the trial was conducted with a judge sitting alone – where the trial judge failed to adequately direct himself – where the trial judge failed to observe the requirements of s 133 of the Criminal Procedure Act – where the conviction is quashed – where a new trial is ordered

Catchwords:

CRIME – Appeals – Appeal against sentence – whether sentencing judge failed to take into account mitigating factor of provocation on sentence – findings of fact open to sentencing judge – no error established CRIME – Appeals – Appeals against sentence – whether offender was entitled to discount for the facilitation of justice pursuant to s 22A Crimes (Sentencing Procedure) Act 1999 (NSW) – factors said to facilitate justice not identified by defence counsel at hearing – no further discount beyond 25% for guilty plea warranted – no error established

Catchwords:

CRIMINAL LAW - bail - Crown appeal - s 45(1)(b)

Catchwords:

CRIMINAL LAW - appeal - conviction - sexual offences - Judge alone trial - whether verdicts inconsistent - time an essential element of the offences - difference in verdicts rationally explained and not inconsistent

Catchwords:

CRIMINAL LAW - bail - manufacture not less than commercial quantity of prohibited drug - whether bail should not be refused

Catchwords:

CRIMINAL LAW – sentencing – aggravated sexual intercourse with a child – two counts – whether aggregate sentence manifestly excessive – penile/vaginal intercourse – offender of good character – findings of remorse and prospects of rehabilitation – early pleas of guilty – comparison with past sentencing cases – use of statistics – helpful and thorough submissions – sentence imposed not manifestly excessive – sentence not plainly wrong or unjust

Catchwords:

CRIME — appeals — appeal against sentence — application for leave to appeal — whether the sentencing judge erred in the determination of objective seriousness — whether the sentencing judge erred in her determination that the s 17A threshold was crossed thus necessitating the imposition of a full-time custodial term of imprisonment — whether the sentencing judge erred in the application of the parity principle — whether the overall sentence was manifestly excessive — Commonwealth and State offences — appeal allowed — applicant resentenced

Catchwords:

CRIME – appeals – appeal against sentence – where the applicant and co-accused drove a stolen vehicle in a police pursuit whilst in possession of a firearm – where the vehicle was abandoned and set on fire – whether the sentencing judge failed to properly assess the applicant’s role in the offending – where the sentencing judge made no distinction between being liable for an offence as part of a joint criminal enterprise and the culpability of a participant by reason of that person's role – where, as a result, the applicant’s moral culpability was not given consideration – where the sentencing judge rejected the submission that there was a reasonable possibility that the co-offender started the fire – where a finding against the applicant needed to be made beyond reasonable doubt – where there was a reasonable possibility that the co-offender lit the fire – where the submission should not have been rejected to the applicant’s detriment

Catchwords:

SENTENCING - drive manner dangerous causing death – drive manner dangerous causing grievous bodily harm - application of Whyte guideline - fulltime custody required for a drive manner dangerous - availability of ICO when Offender in custody on other matters bail refused

Catchwords:

SENTENCING — environmental offences — use of place as waste facility without lawful authority —s 144(1) of the Protection of the Environment Operations Act 1997 (NSW) — guilty plea — potential for significant environment harm — capacity to pay a fine — s 6 of the Fines Act 1966 (NSW) —moiety — restoration order — s 245 of the POEO Act

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict – where applicant found guilty of murder as an accessory before the fact – whether it was open to the jury to be satisfied of the guilt of the applicant beyond reasonable doubt on all the evidence – circumstantial Crown case – where the appeals of the co-accused have been allowed – whether certain inferences can be drawn from communications between the applicant and the co-accused where evidence of the content of those communications is unavailable or limited – whether other reasonable possibilities remain available – whether the applicant ‘procured’ the assault to cause really serious injury to the deceased – leave to appeal granted – appeal allowed – verdict quashed – applicant acquitted

Catchwords:

SENTENCE- cannabis supply SENTENCE- relevant factors on sentence -courier- multiple transactions- first time in custody- strong pro-social support- used time on remand to advantage- - excellent prospects of rehabilitation - intensive correction order appropriate and in community interest

Catchwords:

CRIME — Bail — Release application — Where two previous bail applications have been refused — Shooting with intent to murder and discharging a firearm with intent to cause grievous bodily harm as the alternative charge — Show cause provisions — Whether the applicant has shown cause why his detention is not justified — Youth, first time in custody, 15 months on remand, no record of prior convictions and delay — Where co-accused was granted bail — Dispute as to whether the Crown case has inherent fatal weaknesses — Whether proposed conditions of bail mitigate bail concerns to an acceptable level

Catchwords:

CRIMINAL APPEALS – sentence appeal – miscarriage of justice – asserted conflict of interest in counsel acting at first instance – no evidence to establish conflict – no rule that the same advocate cannot appear for two offenders in sentencing proceedings – fact that a different submission conjured by appellate counsel “could” have been made establishes little or nothing – invariably the case – no waiver of privilege – reliance on record of court below – no evidence tendered on appeal – no merit in ground – no evidence of practical injustice – appeal dismissed

Catchwords:

SENTENCING - Juvenile offender - To be dealt with “according to law”. SENTENCING - Non-parole period - special circumstances – principles to be applied. SENTENCING - Relevant factors on sentence – youth – immaturity – deprived background – long history of offending – drug use – intellectual disability – serious offending - aggravated break and enter – aggravated take and drive vehicle- knife used – on parole – aggregate sentence – totality – parity adult and child.

Catchwords:

CRIME - Sexual intercourse without consent - Intentionally record intimate image w/o consent (DV) SENTENCING - Relevant factors on sentence – late guilty plea- some early admission- no-consensual sexual intercourse during a relationship – sleeping victim - no” means “no” - offender expresses regret and remorse but has difficulty accepting the wrongness of his actions- strong subjective case – purposes of sentencing - rehabilitation and retribution considered - need for custodial sentence

Catchwords:

CRIME — Property offences — Break and enter and steal — Larceny — Possess housebreaking implements — Take and drive a conveyance — Police pursuit — Use offensive weapon to prevent detention CRIME — Summary offences — Custody of knife in public place TRAFFIC LAW AND TRANSPORT — Traffic law — Offences — Failure to give particulars SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions SENTENCING — Guidelines for sentencing SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Specific deterrence — Form 1 offences — Moral culpability — Multiple offences —Objective seriousness — Purposes of sentencing — Proportionality SENTENCING — Subjective considerations on sentence — Drug addiction — Traumatic brain injury — Traumatic childhood — Poverty — Childhood sexual abuse — Institutionalisation —Motivation to rehabilitate — Avoiding a crushing sentence

Catchwords:

CRIMINAL LAW - Conviction Appeal - Sentence Appeal - Possession of a knife (not a prohibited weapon) in Court premises – Dominion and control over the knife – Mental intent for possession

Catchwords:

EVIDENCE – criminal proceedings – exclusion of prejudicial evidence – where representations made in prior proceedings are unfairly prejudicial and contain information of marginal relevance EVIDENCE – criminal proceedings – admissions – whether previous representations are adverse to the accused’s interest in the outcome of the proceeding – where previous representations made by accused are prima facie exculpatory – where contradictory evidence may be adduced at trial

Catchwords:

CRIME – appeals – appeal against sentence – Commonwealth and State offences - whether a mathematical error made when considering or applying the totality principle – whether sentence for the State offence is manifestly excessive – leave to appeal granted – resentence

Catchwords:

CRIME – appeals – appeals against sentence –Commonwealth offences of transmitting soliciting and possessing child pornography – alleged failure to assess objective seriousness – alleged statement of agreed facts – alleged as application of s 16A(2AAA) of the Crimes Act 1914 (Cth) concerning sentence of sufficient duration to permit a rehabilitation program – all grounds dismissed – no point of principle

Catchwords:

CRIME – appeals – appeal against sentence – pleas of guilty - whether the sentencing judge erred by discounting the aggregate sentence rather than the indicative sentences or whether the sentencing judge’s remarks are insufficient in disclosing how the discount was applied – whether the sentence was manifestly excessive

Catchwords:

CRIME – appeals – failure to leave to the jury alternative verdict of manslaughter based on excessive self-defence in s 421 Crimes Act 1900 (NSW) – whether failure caused a miscarriage of justice – where applicant pleaded guilty to manslaughter and not guilty to murder in front of the jury – applicant convicted of murder as part of a joint or extended joint criminal enterprise – where no expert evidence proving which of the accused committed the act causing death – whether evidence capable of supporting an alternative verdict of manslaughter – whether evidence capable of supporting formation of a tacit agreement to act in concerted self-defence – whether failure to leave excessive self-defence caused substantial miscarriage of justice CRIME – appeals – statutory interpretation – excessive self-defence – meaning of “force that involves the infliction of death” in s 421 Crimes Act 1900 (NSW) – whether something less than a direct causal connection is required to raise the partial defence – whether distinction between the use of force that involves the infliction of death and force that causes death

Catchwords:

JUDGMENTS AND ORDERS – Appeal raising issue materially indistinguishable from co-accused’s earlier appeal – No compelling reason shown for departure from the earlier decision APPEALS – Procedure – Time limits – Delays not to be held against applicants in the circumstances

Catchwords:

CRIME – Sentencing – Intentionally recording intimate images without consent – Creation of child abuse material – Later possession does not inform creation – Prosecutors must ensure not to lead a judge into error – Unusual case of reckless creation of child abuse material – Gross breach of trust of Airbnb guests

Catchwords:

CRIME – sentence – murder – son and mother party to a joint criminal enterprise to drive a Triton dual cab ute at the deceased and hit him from behind to exact revenge in context of ongoing feud – where the driver of the ute had intention to kill – where the passenger in the ute was a party to a joint criminal enterprise to cause grievous bodily harm or to kill the deceased – mitigating subjective circumstances – need for denunciation and general deterrence for revenge motivated offending

Catchwords:

Stay of proceedings – conduct of hearing – whether use of remote room to control proceedings constituted an abuse of process – defendant persistently speaking over his lawyer and interrupting the proceedings including evidence given by a witness – defendant given warning that the remote room would be used but failed to desist – use of remote room consistent with the approach taken in Eastman v The Queen (1997) 76 FCR 9 – discussion of the notion of fairness – requirement to afford natural justice and procedural fairness extends to the prosecution – DPP (NSW) v Chaouk [2010] NSWSC 1418 and The Queen v Lewis (1988)165 CLR 12 applied – fair trial principle does not entitle a defendant to talk over his or her lawyer during the proceedings – Henskens v Rudd [2020] NSWSC 533 applied Cross-examination – requirement of the Court to intervene, control and sometimes cease cross-examination – defendant persistently failed to follow judicial directions as to the limits of cross-examination – defendant continued to interrupt and commentate instead of framing questions – the decision to cease cross-examination was not an abuse of process and was consistent with appellate authority of the subject – Let’s Go Adventures Pty Ltd v Barrett [2017] NSWCA 243 and Libke v The Queen (2007) 230 CLR 559 applied Application for a stay to pursue causes of action in the Federal Court against judicial officers – judicial officers of courts referred to in s 77(iii) of the Commonwealth Constitution are immune from a civil suit – State of Queensland v Mr Stradford (a pseudonym) [2025] HCA 3 applied

Catchwords:

CRIME — Child sex offences — Sexual intercourse with child >10 <14 CRIME — Child sex offences — Child abuse material — Production — Aggravated use child <14 CRIME — Drug offences — Supply prohibited drug — Adult supply SENTENCING — Mitigating factors — Plea of guilty to Count 1 — Prior good character SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Moral culpability — Multiple offences — Aggregate sentence — Objective seriousness — Proportionality SENTENCING — Sentencing procedure — Instinctive synthesis — sentence after trail — full benefit of acquittals — fact finding SENTENCING — Subjective considerations on sentence — Drug use — Voyeuristic Disorder — Health issues

Catchwords:

CRIME — Domestic violence — Detain for advantage — Aggravated offence — Choking, suffocation or strangulation — Common assault — Stalking or intimidation — Destroying or damaging property CRIME — Apprehended Violence Orders — Contravene Apprehended Violence Order SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions SENTENCING — Mitigating factors — Plea of guilty for some matters — Limited remorse SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Specific deterrence — General deterrence — Form 1 offences — Moral culpability — Multiple offences — Accumulation, concurrency and totality — Aggregate sentences — Crushing sentence — Objective seriousness SENTENCING — Sentencing procedure — Disputed facts — Findings of fact separate judgment — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Age of offender — Drug addiction — Mental illness and disorders — Trauma, violence and disadvantage in childhood — Intergeneration trauma — Childhood sexual abuse

Catchwords:

CRIMINAL LAW – sentencing – totality – stated intention to depart from statutory ratio of non-parole period – need for adjustment in overall sentence – relationship between totality of criminality and totality of sentences.

Catchwords:

CRIME – appeals – appeal against conviction – miscarriage of justice – where the applicant pleaded guilty to the murder of his sister – where the applicant was under the influence of drugs at the time of the offending – where the applicant was diagnosed with schizophrenia – where the applicant entered his plea on the basis of advice that the applicant did not meet the definition of “mental health impairment” – whether the advice was wrong and thus constituted a miscarriage of justice – whether the applicant’s impairment at the time of the offending was “solely caused” by drug ingestion – where none of the expert evidence engaged with the “caused solely by” test – the advice given to the applicant was wrong – conviction set aside STATUTORY INTERPRETATION – whether the Crown bears the onus of demonstrating that s 4(3) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) applies – where s 4(3) provides an exception or a qualification to what is contained in s 4(1) – where the Crown asserts no mental health impairment by reason of ingestion of drugs or substance use disorder the Crown bears the onus of proof under s 4(3)

Catchwords:

CRIME — appeals — appeal against conviction — Liberato direction — application of proviso — trial judge made reference in summing up to competing evidence — appeal by co-accused upheld on the basis of failure to give Liberato direction — majority in co-accused’s appeal declined to apply the proviso — whether earlier appeal decision should be followed in relation to the Liberato direction and the proviso on the basis of the principle outlined in Kwu v R [2024] NSWCCA 199 — whether any evidence only applicable against applicant constitutes material distinction between applicant and co-accused’s case CRIME — appeal against conviction — extension of time in which to appeal — co-accused’s appeals not heard jointly — delays in preparing appeal — unnecessary judgments of the court — wastage of resources

Catchwords:

SENTENCING – offences – environment and planning – non-compliance with clean-up notice and prohibition notice – ss 91(5) and 102 of the Protection of the Environment Operations Act 1997 (NSW) – defendant convicted after not guilty pleas – totality – limited capacity to pay fine – s 6 of the Fines Act 1996 (NSW) – fine imposed – investigation costs – legal costs – moiety

Catchwords:

CHILDREN — CRIME — on bail; on parole; post and boast; knife

Catchwords:

SENTENCING – Commonwealth offences – transmitting child abuse material – possessing child abuse material using a carriage service - imprisonment

Catchwords:

CRIMINAL LAW - interlocutory appeals - appeal by accused under s 5F Criminal Appeal Act - application to sever assault charges from indictment charging accessory after the fact to manslaughter

Catchwords:

CRIME — Appeals — Appeal against sentence — Manifest excess — where no indicative sentence was excessive — where sentence required to reflect significant criminal history, maximum penalties, general deterrence and form 1 matters — where sentence demonstrated no immunity from prosecution for providing assistance to authorities — where aggregate sentence not manifestly excessive

Catchwords:

EVIDENCE – criminal proceedings – discretions – exclusion of evidence – hearsay – video walkthrough – positioning of vehicles – exception to hearsay rule – where maker available – whether representations concern identity of a person, place or thing for the purpose of s 66(3) of the Evidence Act 1995 (NSW)

Catchwords:

EVIDENCE – criminal proceedings – discretions – exclusion of evidence – text messages between co-accused – “half done job” – competing inferences – where inference is available that the sender of text messages was party to an agreement to harm persons seeking revenge for earlier attack – whether probative value outweighed by danger of unfair prejudice

Catchwords:

CRIME — Appeals — Appeal against conviction — whether trial judge erred in failing to take into account evidence relevant to the issue of the date sexual intercourse occurred other than with respect to the credibility of the complainant — where trial judge did not so err CRIME — Appeals — Appeal against conviction — whether trial judge erred regarding application of burden and standard of proof — where trial judge was satisfied beyond reasonable doubt of the applicant’s guilt — where trial judge did not so err CRIME — Appeals — Appeal against conviction — Unreasonable verdict — whether verdict of guilty of one charge of carnal knowledge by a teacher following trial by judge alone was reasonable — where evidence as a whole sufficient in nature and quality to eliminate any reasonable doubt as to the applicant’s guilt — where verdict not unreasonable

Catchwords:

CRIME — appeals — appeals against convictions — offences of publishing or broadcasting the name of a child with respect to whom proceedings before the Children’s Court were brought — posts uploaded to Facebook referring to child by name — self-represented appellants — whether indictment invalid — whether failure to leave alleged defences to jury — whether error in instructing jury of effect of removing Facebook posts — whether error in directions to jury about time of the offences — whether failure to dismiss matter where no harm to child allegedly shown — whether failure to allow the appellant Katelaris to inform jury of right to acquit even if offence had been proved — where grounds 1, 2 and 7 raised a question of law alone and did not require leave — leave to appeal on grounds 3, 4, 5 and 6 granted — appeal dismissed

Catchwords:

CRIME — Appeals — Appeal against conviction — miscarriage of justice — where Crown concedes breach of prosecutorial duty of disclosure — consideration of appropriate orders to be made CRIME — Appeals — Appeal against conviction — fresh evidence — nature of task to be undertaken by appellate court — whether fresh evidence establishes innocence of applicant or a reasonable doubt as to his guilt such as to warrant the entry of a verdict of acquittal in accordance with the principle stated in Ratten — consideration of probative value of fresh evidence

Catchwords:

CRIMINAL LAW – appeal – appeal against conviction – persistent sexual abuse – whether verdict of guilty unreasonable – whether trial judge erred by failing to direct jury regarding the requirement for an “unlawful sexual relationship” in the s 66EA offence

Catchwords:

CRIME – appeals – appeal against sentence – offence of supply prohibited drug not less than commercial quantity – offence of deal with property reasonably suspected to be proceeds of crime – self-represented applicant – complaints with respect to backdating, cumulation, parity – further issues – manifest excess – failure to specify non-parole period in indicative sentence for offence with standard non-parole period – grounds of appeal not established – leave to appeal granted – appeal dismissed

Catchwords:

APPEALS — Leave to appeal — leave required — no issue of principle, question of public importance, or reasonably clear injustice going beyond something that is merely arguable — leave refused

Catchwords:

CRIME – appeals – appeal against sentence – whether sentencing judge erred by not providing reasons for how onerous bail conditions were taken into account – whether sentencing judge erred by not backdating the sentence to account for pre-sentence quasi-custody – whether the sentence imposed was manifestly excessive

Catchwords:

CRIME — Appeals — Appeal against sentence — Where applicant convicted of supply a large commercial quantity of methylamphetamine —Whether sentencing judge erred in assessing the seriousness of the applicant’s conduct — Whether assumptions about criminal organisations unrelated to the offence in question were made — Whether a denial of procedural fairness CRIME — Appeals — Appeal against sentence — Where applicant convicted of supply a large commercial quantity of methylamphetamine — Prospects of rehabilitation — Whether sentencing judge failed to take into account that applicant had good prospects of rehabilitation — Resentencing exercise

Catchwords:

CRIME – SENTENCE – supply large commercial quantity of methylamphetamine – where offender only participated in offence for one minute – strong subjective case – good prospects of rehabilitation and low risk of reoffending – whether Intensive Correction Order available – term of ICO adjusted to take pre-sentence custody into account

Catchwords:

CRIME – appeals – appeal against sentence – penetrative child sexual assault – sentence after trial – [REDACTED] – whether assessment of objective seriousness was incorrect – impracticality of plotting precisely objective seriousness along spectrum – whether error was made in failure to find special circumstances – discussion of role of sentencing statutes in finding or not finding special circumstances – whether aggregate sentence was manifestly excessive – discussion of current sentencing patterns for repeated offences of penetrative child sexual assault – appeal dismissed

Catchwords:

CRIME – Sexual offences – Sexual assault – Consent – Section 61HE of the Crimes Act 1900 (NSW) – Relevance of complainant’s substantial intoxication to issue of consent – Confusing drafting of statutory provision – Whether no free and voluntary agreement taking account of all circumstances – Not necessary to show what was said and done indicating consent was caused by intoxication APPEALS – From jury verdict – Misdirection – Real chance that the misdirections could have affected the jury verdict – Miscarriage of justice established

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – risk of death or serious injury – duty of worker - death of worker

Catchwords:

CRIME — Crown appeal against sentence — respondent pleaded guilty to dealing with funds reasonably suspected of being proceeds of crime under s.1 93C(1) Crimes Act 1900 (six counts), attempt to obtain financial advantage by deception under s.192E(1)(b) Crimes Act 1900 (one count) and dealing with money reasonably suspected of being proceeds of crime under s.400.9(1) Criminal Code (Cth) (one count) — two further s.193C(1) offences taken into account on sentence — aggregate sentence imposed for s.193C(1) and s.192E(1)(b) offences — total effective sentence of imprisonment for five years and six months with minimum term of two years and eight months — offences involved total of about $103 million over 15-month period — first ground asserted error by failing to assess individually the objective seriousness of each of the s.193C(1) offences — same indicative sentences nominated for four offences despite very significant differences between amount of money and number of transactions involved in each count — each s.193C(1) charge a rolled-up count—approach to assessment of objective seriousness of rolled-up counts - capacity to consider challenge to indicative sentences as components of aggregate sentence — first ground of appeal established — second ground asserted that overall sentence manifestly inadequate— error concerning s.193C(1) indicative sentences contributed to imposition of manifestly inadequate sentence — significant objective gravity of offences — combined 40% discount for pleas of guilty and assistance to authorities — other strong subjective factors — held overall sentence manifestly inadequate — consideration of residual discretion — substantial ongoing assistance to authorities in new areas since imposition of sentence in District Court — earliest release date imminent — function of Crown sentence appeals — exceptional and unusual case — held Court should not resentence — Crown appeal dismissed

Catchwords:

SENTENCING — Sentence after Guilty pleas – Child sex offences — Procuring or grooming child for unlawful sexual activity – Fail to comply with reporting obligations under the Child Protection (Offenders Registration) Act 2000 – Child Exploitation Internet Unit – Prior similar offending –– Strong subjective circumstances

Catchwords:

Crime – Sentence – Aggravated break and enter with intent to commit assault occasioning actual bodily harm – Reckless driving failing to stop in the course of a police pursuit – Driving whilst disqualified.

Catchwords:

CRIME – appeal against conviction – unreasonable verdict – whether open to jury to accept Crown case that applicant contemplated use of knife to cause death or really serious injury – verdict not unreasonable – breach of prosecution’s duty of disclosure – conceded materiality of breach – appeal allowed, conviction quashed and retrial ordered

Catchwords:

CRIME — Child sex offences — Child abuse material — Using carriage service for child pornography material or child abuse material — Fail to comply with child protection reporting obligations SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Maximum penalty — Moral culpability — Objective seriousness SENTENCING — Sentencing procedure — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Childhood sexual abuse and trauma — Mental disorders

Catchwords:

CRIME – Sexual intercourse without consent - Assault with act of indecency SENTENCING — Relevant factors on sentence —sentence after trial - victim impact - young offender - strong subjective case

Catchwords:

CRIMINAL PROCEDURE — Trial — Jury — Discharge of individual juror — Where juror has engaged in misconduct CRIMINAL PROCEDURE — Trial — Jury — Discharge of whole jury — Whether to continue the trial with the remaining jurors would give rise to the risk of a substantial miscarriage of justice — Where strong inference that discharged juror was the dissident juror — Whether the accused has lost the sole voice standing against a conviction — Whether discharged juror’s misconduct has contaminated the remaining jurors

Catchwords:

CRIMINAL PROCEDURE — Trial — Jury — Access to transcript — Where request is not opposed

Catchwords:

EVIDENCE — Witness evidence — Unfavourable witnesses — Where application is opposed — Ex-tempore judgment

Catchwords:

EVIDENCE — Opinion evidence — Exceptions — Expert opinion — telecommunications and cell tower evidence — objection to parts of expert evidence and two expert reports — dispute as to the location of the accused — whether expert was qualified to express an opinion that the antenna that a mobile phone connected with was in fact the closest antenna and cell tower to its location — whether expert was qualified to express an opinion as to whether two mobile phones were in the same specific location

Catchwords:

EVIDENCE — Discretions — Exclusion of evidence — Improperly or illegally obtained evidence — where the accused participated in two electronically recorded police interviews and body worn videos — whether the accused was a “protected suspect” when questioned by police — whether police believed that there was sufficient evidence that the accused committed the offences in question — statutory construction — whether the desirability of admitting the evidence outweighed the undesirability of admitting evidence — where balancing exercise undertaken — whether advantage taken of vulnerable person

Catchwords:

EVIDENCE — Witness evidence — Compellability — Spouses, parents and children — where Crown witness is in a de facto relationship with the accused — where evidence is likely to adversely affect relationship — whether there is a likelihood that harm will be caused to witness and children if required to give evidence

Catchwords:

CRIMINAL PROCEDURE – Costs – Costs in Criminal Cases Act 1967 – where applicant’s defence largely funded by legal aid – whether a legally aided applicant can recover costs pursuant to the Costs in Criminal Cases Act 1967 CRIMINAL PROCEDURE – Stay of proceedings – where applicant sought a Mosely stay during proceedings – whether a legally aided applicant can seek a Mosely stay where the Crown was at fault in relation to matter that led to termination of proceedings

Catchwords:

EVIDENCE – Tendency evidence – Significant probative value – Evidence of tendency of conduct and tendency of state of mind of the accused – Whether the tendency evidence has a significant probative value that substantially outweighs the risk of prejudice

Catchwords:

CRIMINAL LAW – appeals – appeal against conviction – unreasonable verdict not supported by the evidence – whether the evidence adduced at trial was capable of proving guilt beyond reasonable doubt – jury’s advantage in seeing and hearing the evidence – verdict not unreasonable – appeal dismissed CRIMINAL LAW – appeals – appeal against conviction - whether trial miscarried because of Crown’s closing address – whether it was improper for the Crown to invite the jury to “jettison” the evidence of a witness – no complaint made at trial – no miscarriage established – appeal dismissed CRIMINAL LAW – appeals – appeal against conviction – whether the trial miscarried because evidence which was audible but not transcribed resulted in the trial being conducted as though it had not been adduced – miscarriage established – appeal allowed – retrial ordered

Catchwords:

CRIME – appeals – application for leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW) – application for separate trials – alleged home invasion – where case against each applicant is weak – where not established that there will be any evidence led at a joint trial which will be inadmissible as against the applicants – leave granted – appeal dismissed

Catchwords:

APPEALS — CRIME — appeal against conviction — sexually touching a child — 16 offences against 5 complainants — guilty verdicts returned in respect of 12 counts against 3 complainants — unreasonable verdict — whether it was open to jury to be satisfied of the applicant’s guilt in respect of those counts — discrepancies and conflicts in evidence of complainants — open to jury to resolve evidentiary issues — counts proved beyond reasonable doubt

Catchwords:

CRIMINAL LAW – appeal against conviction – tendency evidence – proper directions – where accused relied on tendency of the alleged victim – jury wrongly directed it should exercise caution in drawing inferences that tendency established – jury directed to enquire where it ”more likely than not” that the alleged victim had the tendency alleged – directions apt to reverse onus or proof – where prosecution concedes error in directions – appeal grounds sustained CRIMINAL APPEALS – whether no substantial miscarriage occurred despite erroneous directions – application of proviso – nature of error – assessment of prosecution case – case rebutting self-defence not overwhelming – accused case not “glaringly improbable” – where appellate court did not see witnesses – conflict in evidence – proviso should not be applied – appeal allowed – re-trial ordered

Catchwords:

CRIME — Appeals — Appeal against conviction — Historical sex offences — Application for permanent stay — whether trial judge erred in refusing to permanently stay proceedings due to delay — forensic disadvantage — whether forensic disadvantage directions were inadequate CRIME — Appeals — Appeal against conviction — Judge alone trial — Tendency evidence — whether trial judge erred in holding evidence of complainants had been corroborated CRIME — Appeals — Appeal against conviction — Judge alone trial — Coincidence evidence — whether trial judge erred in using coincidence reasoning when not relied on by prosecution CRIME — Appeals — Appeal against conviction — Judge alone trial — Evidence — whether trial judge erred by taking into account excluded evidence — whether trial judge erred in assessing demeanour of accused in the dock — whether evidence of complainants and tendency witnesses contaminated — whether trial judge reversed onus of proof for contamination of evidence

Catchwords:

EVIDENCE — Tendency evidence — Multiple complainants — Significant probative value — Need for a sufficient link between distinct events — No need for link to be peculiar — Evidence of tendency of accused to adopt particular kind of persistence in the pursuit of his sexual interests — Whether relevant evidence is proposed tendency evidence upon which primary judge ruled or evidence as actually admitted CRIME — Appeals — Appeal against conviction — Unreasonable verdict — No issue of principle CRIME — Appeals — Appeal against sentence — Failing to make any proper assessment of the objective seriousness of the offending

Catchwords:

BAIL – release application – breaches of ESO – s 17 bail risks – unacceptable risks – bail refused

Catchwords:

BAIL – application for bail pending appeal and for pending trial in the District Court – applicant convicted of perjury and perverting the course of justice – appeal against conviction and sentence from judge-alone trial pending in Court of Criminal Appeal – necessity to demonstrate “special or exceptional circumstances” – show cause requirement applicable for charges at pending trial – special or exceptional circumstances not demonstrated – burden of showing cause not discharged – history of non-compliance with bail conditions – significant bail concerns – bail refused

Catchwords:

CRIMINAL PROCEDURE – application for leave to appeal from decision refusing to vacate trial – whether decision was a judgment or order within the meaning of s 5F of the Criminal Appeal Act 1912 (NSW) – where applicant unrepresented due to his withdrawal of instructions from Legal Aid funded senior counsel and solicitors shortly before trial – where neither submitted nor shown that conduct of legal team was incompetent or otherwise warranted termination of services – whether refusing to vacate trial in the circumstances was “relevantly unfair” to the applicant – consideration of Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57

Catchwords:

CRIMINAL LAW – Procedure – permanent stay – stay granted by court below on basis of unfairness and oppression to the accused – whether primary judge misapplied the correct test – where third trial on two counts after jury in second trial unable to agree but delivered not guilty verdicts on two other counts – exceptional nature of jurisdiction – whether permanent stay should be set aside

Catchwords:

CRIMINAL LAW – sexual assault – appeal against conviction – alleged incompetence of counsel – whether significant possibility that incompetence affected outcome of trial – failure to adduce good character evidence before jury – failure to seek direction as to good character – good character evidence shown to be available – no explanation for course taken – concessions by Crown accepted – appeal allowed, conviction quashed and retrial ordered

Catchwords:

CRIMINAL LAW - sentencing - appeal against sentence - challenge to discount for plea and assistance - no question of principle - appeal dismissed.

Catchwords:

CRIMINAL LAW – appeal against conviction – multiple counts of sexual assault and indecent assault on complainants who were detained at Reiby Juvenile Justice Centre at the relevant time – where the accused was a youth worker at Reiby when offences allegedly committed – where Crown relied on evidence of Dr Lennings to buttress credibility of complainants – where evidence of Dr Lennings extended beyond evidence of behavioural responses by children under orders to sexual assault – where evidence of Dr Lennings included opinion about qualities attributed to youth workers in detention centres – whether the evidence was relevant and admissible pursuant to s 108C of the Evidence Act – whether Dr Lennings’ evidence was within his area of specialised knowledge – where trial Counsel failed to object to evidence of Dr Lennings in its entirety – where the evidence in so far as it related to opinion about youth workers was irrelevant and highly prejudicial – requirement of material irregularity – whether the irregularity could realistically have affected the reasoning of the jury to the verdicts of guilty – whether admission of the evidence occasioned a miscarriage of justice – appeal allowed

Catchwords:

CRIMINAL PROCEDURE – applications for trial by judge alone – whether trial by judge alone in the interests of justice – where no evidence was led to explain delay in application – where context evidence of other offence necessary – where proposed expert evidence is not particularly complex – where courts proceed on the basis that juries are presumed to follow directions not to access internet materials relating to the event and the earlier trial – not in the interests of justice to order a trial by judge alone – applications refused

Catchwords:

CRIME – Appeals – appeal against sentence – child sexual offences – where child was under the applicant’s authority at a care home – domestic violence offences – whether sentencing judge erred in application of Bugmy principles – whether sentencing judge erred in failing to take into account the applicant’s own history of child sexual abuse – correct approach to application of Bugmy principles – childhood deprivation – moral culpability – purposes of sentencing – giving “full weight” to background of deprivation – appeal allowed – applicant re-sentenced

Catchwords:

CRIME — bail — release application — private electronic monitoring — new legislation — Bail Amendment (Ban on Private Electronic Monitoring) Bill 2025 — three month transition period — prohibits courts allowing private electronic monitoring

Catchwords:

CRIMINAL LAW – Evidence – When objection was taken to evidence of conversation between two co-conspirators - Conversation recorded by listening device – Primary objection on the basis of relevance – Where counsel for the accused sought that the determination of admissibility be made without the aid of a transcript – Where the conversation was played on several occasions – Court unable to determine what was said – Evidence not relevant – Evidence excluded

Catchwords:

CRIME – murder – wounding with intent to cause grievous bodily harm – Judge alone trial – question as to whether the Court should be closed – where accused was a child at the time of the alleged offending – where accused no longer a child – little in the way of authority on the question – bound by a decision of a superior court – Court to be open

Catchwords:

CRIME – murder – wounding with intent to cause grievous bodily harm – Judge alone trial – accused a young person at the time of alleged offences EVIDENCE – objection by the accused - relevance – video evidence – file taken from accused’s phone as a result of a Cellebrite examination – failure by Crown to disclose this evidence – evidence relevant to provide further background with respect to issues relating to the accused’s state of mind – significant evidence already available – evidence excluded and not admitted

Catchwords:

CRIMINAL PROCEDURE – impending murder trial – alleged stabbing by one juvenile of two others, one fatally – foreshadowed reliance on self-defence and substantial impairment – application for trial by judge alone of accused opposed by Crown – leave permitting late application not opposed – whether in the interests of justice to make the order – recent notorious fatal and non-fatal knife attacks in NSW – very recent homicide by multiple stabbings in Coffs Harbour – perpetrator still at large – apparent inability for trial to be conducted elsewhere, or at a later time – finely balanced competing considerations – application granted

Catchwords:

CRIMINAL LAW – murder – wounding with intent to inflict grievous bodily harm – trial by judge alone – where the accused a young person at the time of the alleged offences – stabbing – Beef Week – melee at a KFC restaurant – numerous young persons involved – where the event is captured by CCTV and mobile phone – where the deceased exhibited significant animus towards the accused – where the accused suffers from a cognitive impairment – Foetal Alcohol Spectrum Disorder (FASD) – defence of substantial impairment – self-defence – knuckledusters – guitar capo – whether the accused believed his conduct was necessary in order to defend himself – whether the conduct of the accused was a reasonable response to the circumstances as he perceived them – excessive self-defence – accused not guilty of murder but guilty of manslaughter on the basis of excessive self-defence – accused not guilty of wounding with intent to cause grievous bodily harm – orders made

Catchwords:

CRIME – sentence – manslaughter – excessive self-defence – offender a young person at the time of the offence – trial by judge alone – fatal stabbing – confrontation between young people – KFC restaurant – melee – tragic loss of life – where deceased exhibited hostility towards offender –deceased armed with knuckledusters – offender did not initiate confrontation – offender had no interest in fighting the deceased - offender outnumbered by adversaries – offender believed he was going to be killed – chaos – clamorous noise – extreme situation – real threat to the offender – no intention to kill – where offender suffers from cognitive impairment – FASD – ADHD – youth and lack of maturity – moral culpability significantly reduced – unblemished criminal record – very good prospects of rehabilitation – whether sentence to be served as a juvenile offender – convicted – sentence imposed

Catchwords:

CRIME — Appeals — Appeal against conviction — sexual assault — multiple complainants — whether Crown’s closing address on a recorded conversation required further directions from the trial judge — rule 4 of the Criminal Appeal Rules — no objection or request for further directions at trial — forensic choice by the appellant’s counsel — whether miscarriage of justice — whether verdicts in respect of counts concerning PW and JW unreasonable

Catchwords:

CRIMINAL LAW – release application – appeals bail – where previous applications dismissed by the Court of Criminal Appeal – statutory prohibition on multiple applications – whether grounds established for further application – whether material information to be presented that was not presented on earlier applications – whether circumstances relevant to the grant of bail had changed – self-represented applicant – indulgent approach to filing of evidence and submissions in contravention to Registrar’s directions and after the hearing – whether “more settled” grounds appeal amounted to grounds under s 74(3) of the Bail Act – changes to grounds cosmetic – whether imminence of applicant’s release a relevant change of circumstance – release date known on two previous release applications – provisional decision to grant parole – review hearing pending – relevance to release application where no outstanding charges – grounds for further release application not established – application dismissed – decision should not impact on decision of Parole Authority

Catchwords:

CRIMINAL LAW — application seeking the leave of the Court to retry a person in respect of two charges of murder — respondent to application seeking orders to produce documents comprising legal advice to various Attorneys General — whether legitimate forensic purpose established for production of documents — no such purpose in relation to legal advices — reasons for decisions by Attorneys General relevant — letters setting out reasons should be produced.

Catchwords:

CRIME – appeals – appeal against sentence – child sexual offences – where offender pleaded guilty to two offences against s 66EA of the Crimes Act 1900 – where complainants are the offender’s cousins – guilty plea in District Court – where offender denied certain particularised unlawful acts – where disputed facts hearing proceeded before the sentencing judge – aggregate term of imprisonment imposed CRIME – appeals – appeal against sentence – whether the sentencing judge erred in determination of objective seriousness – where sentencing judge concluded objective seriousness of the offences was “towards the bottom” and “at the very lowest end” of the range for a s 66EA offence – assessment of objective seriousness for “new” s 66EA – assessment of “ingredient offences” – where sentencing judge expressly relies on sentencing factors set out in Burr v The Queen – whether focus on ingredient offences and Burr v The Queen factors was a limited approach – whether it can be inferred the sentencing judge did not consider “other matters” – whether use of the term “opportunistic” affected the assessment of the objective seriousness CRIME – appeals – appeal against sentence – whether the sentence is manifestly inadequate – where Crown submits aggregate sentence is “so far below the range of sentences” which could be imposed – where complaint about “weight” given to sentencing considerations does not assist in the resolution of the adequacy – where sentencing judge nominated indicative sentences – where sentence imposed was not plainly unjust

Catchwords:

Criminal law — Sentencing — Sexual Offences — Aggravated Sexual Assault — Section 61J(1) of the Crimes Act 1900 (NSW) — Where complainant under the age of 16 years — Whether Offender was in a position of “authority” or “trust” — Whether Offender’s continuing claim of innocence prevents a finding of positive prospects of rehabilitation — Whether continuing claim of innocence affects assessment of recidivism risk

Catchwords:

CRIME — Costs Application — whether to grant Certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) — application of s 3(a) of the Costs in Criminal Cases Act 1967 (NSW) — question of credibility of Complainant — whether an issue for determination by judge or jury

Catchwords:

CRIMINAL LAW – murder – sentence for murder – where offender is found guilty of murdering his mother with a pot-plant – contested factual issues – whether the offence was motivated by a need for money to purchase heroin – whether pressure was applied to mother’s neck – whether offender acted with an intention to kill – where victim’s death was the tragic and unintended consequence of the offender’s actions – lower end of objective seriousness – subjective case – where generalised anxiety disorder, COVID and drug withdrawal affected offender’s decision making capabilities and his capacity to control himself – whether the offender’s moral culpability is reduced – where emphasis upon general deterrence is not appropriate – limited risk of re-offending – whether the offender was truly remorseful – victim impact statement – difficulty coping with the prison environment

Catchwords:

Criminal Law — Special Hearing — section 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) — Defendant unfit to be tried — judge alone trial — sexual Offences — section 66DC(a) of the Crimes Act 1900 (NSW) — sexual act towards a child under the age of 10 years — section 66A(1) of the Crimes Act 1900 (NSW) — sexual intercourse with a child under the age of 10 years — section 293A of the Criminal Procedure Act 1985 (NSW) — where Complainant states a lack of memory about alleged offending — where there are inconsistencies between Complainant evidence and complaint evidence

Catchwords:

EVIDENCE – Course of evidence – Evidence before trial – Admissibility of evidence – Affidavit evidence – Assessment of relevance of evidence to criminal proceedings – Whether probative value is outweighed by the danger of unfair prejudice to the defendant under s 137 of the Evidence Act 1995 EVIDENCE – Admissions – Criminal proceedings – Admissibility of a guilty plea where plea subsequently withdrawn – Admissibility of an affidavit written by the defendant prior to the withdrawal of a guilty plea – Discretion to exclude evidence of an admission under section 90 of the Evidence Act 1995

Catchwords:

CRIME — Child sex offences — Child abuse material — Using carriage service for child pornography material or child abuse material

Catchwords:

CRIME – appeals – appeal against sentence – application for extension of time – constructive murder – joint criminal enterprise – assault with intent to rob in company while armed with a dangerous weapon – possession of a shortened firearm – agreed facts – whether departure from agreed facts – whether denial of procedural fairness – whether error in assessment of objective gravity of offence – whether failure to find special circumstances – cumulation and concurrence – parity – where difference between starting point of sentences of applicant and co-offender – whether justifiable sense of grievance – marked and unjustified disparity – re-sentence

Catchwords:

CRIME – Sentence – Pleas of Guilty – 4 offences of sexual intercourse with child under the age of 10 years, namely 8 and 9 years, against s 66A(1) Crimes Act 1900 (NSW) – 4 offences of sexual intercourse with child under the age of 14 years, namely 10 and 11 years against s 66C(2) Crimes Act 1900 (NSW) – 1 offence of common assault against s 61 Crimes Act 1900 (NSW) – aggravation of abuse of position of authority by action in breach of position of trust – principles – s 66C(2) – aggravation by abuse of position of trust or authority s 21A(2)(k) Crimes (Sentencing Procedure) Act 1999 (NSW) – Form 1 offences and uncharged acts – principles of approach – indicative sentences – aggregate sentence – where offender was victims’ mother’s partner and offended when she was absent

Catchwords:

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

Catchwords:

CIVIL PROCEDURE – review of procedural decisions of Registrar – where applicant filed notice of motion seeking extension of time to file notice of appeal – extension refused by Registrar – where applicant filed notice of motion seeking access to unedited transcript – no demonstration why transcripts were required – application refused

Catchwords:

BAIL – detention application by prosecutor – show cause offence – whether cause shown – whether respondent poses unacceptable risk

Catchwords:

CRIME — bail — detention application — application made following conviction and before sentencing — consideration of section 22B of the Bail Act 2013 — whether the accused person will be sentenced to imprisonment to be served by full-time detention — standard to be applied

Catchwords:

CRIME – bail – release application pending determination of applicant’s appeal against his convictions – whether there are “special or exceptional circumstances” under Bail Act 2013 (NSW) s 22

Catchwords:

CRIME – appeals – appeal against conviction – embezzlement by clerk or servant – statutory construction of ss 155 and 157 of the Crimes Act 1900 (NSW) – definition of “clerk or servant” – meaning of “employed” and “collector of moneys” – where complainant had contractual relationship with a company controlled by applicant CRIME – appeals – appeal against conviction – miscarriage of justice – closing address to jury by Crown Prosecutor – prohibition on comment on the accused’s failure to give evidence – references to “no evidence” or a lack of “explanation” – reversal of onus of proof – further improprieties – whether improprieties could be redeemed by trial judge’s directions – whether proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) applied

Catchwords:

SENTENCING – Powers of court – Penalties - Intensive Correction Order (ICO) – No power to impose ICO if the offender resides outside NSW SENTENCING – Mitigating factors - Hardship to a third party – exceptional circumstances SENTENCING – Relevant factors on sentence - Relevance of a finding that the offence was committed while the subject of a coercive relationship

Catchwords:

CRIMINAL LAW - application for leave to appeal under s.5F Criminal Appeal Act 1912 from refusal of Dietrich stay - applicant charged with tax fraud and money laundering - complex and lengthy trial - applicant failed to establish that he was indigent - whether error demonstrated in findings of primary Judge - no error demonstrated - whether interests of justice warranted - grant of leave to appeal - observations made concerning absence of provisions in Proceeds of Crimes Act 2002 (Cth) permitting release of restrained assets to fund a person’s defence - contrast with State confiscation legislation - leave to appeal granted - appeal dismissed

Catchwords:

CRIMINAL LAW – release application – show cause requirement – bail concerns mitigated by conditions

Catchwords:

CRIMINAL LAW – sentence appeal – supply a commercial quantity of prohibited drug – participate in a criminal group – domestic violence and common assault offences – shortened firearm and possess more than three unregistered firearms, including a prohibited weapon – indicative sentences set out and aggregate sentence imposed – whether the notional starting point for some of the indicative sentences was manifestly excessive so as to indicate error in the aggregate sentence – whether an appropriate discount allowed for assistance to authorities – two co-offenders sentenced after applicant – whether differences between indicative sentences proposed for co-offenders and applicant offended the parity principle – if so whether such a discrepancy demonstrated error in the aggregate sentence – leave to appeal granted but appeal dismissed.

Catchwords:

CRIMINAL PROCEDURE – trial – closing address to jury by Crown Prosecutor – where the applicant was found guilty of multiple counts of intimidation, sexual intercourse without consent, and assault occasioning actual bodily harm – where the complainant and the applicant were in a relationship and lived together – where evidence was led of the applicant threatening self-harm after the non-consensual sex – whether there was a miscarriage of justice due to the introduction of consciousness of guilt evidence by the Crown – where it was clear that the Crown was not relying on consciousness of guilt as past of its case – where the only rational inference left to the jury was that the self-harm behaviour was related to the applicant’s manipulation of the complainant – no miscarriage of justice from anything in the Crown’s closing address CRIMINAL PROCEDURE – trial – directions to jury – where the trial judge said in her summing up that the Crown submitted that the sexual activity was nonconsensual and was supported by what followed, being the breakup “coupled with” the threats of self-harm – whether there was a miscarriage of justice from any direction or failure to give a direction by the trial judge to the jury not to use this evidence as consciousness of guilt evidence – where r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 applied – where any decision by the applicant’s trial counsel not to object to the trial judge’s summing up was a forensic one – where a reading of the proceedings as a whole shows that consciousness of guilt from the self-harm incident was not contemplated by either side or the trial judge – where it would have been wrong of the trial judge to give a consciousness of guilt direction in the absence of its being sought – no miscarriage of justice

Catchwords:

MENTAL HEALTH – criminal proceedings – fitness to be tried – where defendant suffering from severe chronic and treatment resistant mental health and cognitive impairments – where experts agree that the defendant is unfit to be tried under s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) and will not become fit to be tried within 12 months – finding that the defendant is not fit to be tried and will not become fit to be tried within 12 months

Catchwords:

SENTENCING — Sentence following judge-alone trial — Drug offences — Supply prohibited drug — Deemed supply – Commercial quantity — Methylamphetamine — Firearms offences — Possess unauthorised prohibited firearm — Acquire ammunition subject to prohibition order — Bugmy considerations — Extensive criminal history

Catchwords:

CRIMINAL PROCEDURE — Trial — Judge-alone — Reasons of trial judge — 6 counts on indictment — Possession of commercial quantity of methylamphetamine; possession of .22 long rifle calibre cartridges; possession of prohibited firearms — Extended definition of possession in the deeming provision s 4A of the Firearms Act 1996 — Common law definition of possession.

Catchwords:

CRIMINAL LAW – conviction – substantial delay in complaint of alleged sexual offences – direction did not satisfy the requirements of Longman v the Queen.

Catchwords:

CRIMINAL APPEAL – applicant convicted of four offences of sexual slavery and two offences of money laundering – Crown contended that applicant enslaved two sex workers from Thailand – alleged to have seized passports and made them work off debt – whether jury direction concerning applicant’s prior good character inadequate because jury not told that good character made it less likely that applicant committed offences charged – error not established – whether miscarriage of justice occasioned by failure of applicant’s counsel to adduce good character evidence from various witnesses – miscarriage not established – failure to adduce evidence objectively justified – applicant’s good character peripheral to true factual dispute in the trial – tendency direction – alleged tendency corresponded with every particular alleged against applicant in relation to both complainants – direction misleading – miscarriage of justice established - proviso – critical part of complainants’ evidence challenged – proviso not capable of being applied – convictions set aside – new trial ordered.

Catchwords:

Police pursuit subsequent offence – 3rd pursuit in 4 years – driving disqualified – subsequent offence – drive under the influence of drug subsequent offence – defendant only ever held learner licence – use offensive weapon to avoid lawful detention – objective seriousness – special circumstances – submission re low objective seriousness of disqualified driving rejected – possession of taser and extendable baton contrary to Weapons Prohibition Orders – totality – eligible drug defendant referral

Catchwords:

CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employer – risk of death or serious injury – injury to worker

Catchwords:

CRIME – Appeals – Crown interlocutory appeal – murder – robbery with wounding – 4 counts on indictment – severance of counts 3 and 4 – whether ruling substantially weakens Crown case – whether O’Leary principle applies – whether evidence in severed counts is relevant to facts in issue – whether evidence unfairly prejudicial – assessment of probative value – whether House v The King error

Catchwords:

CRIME – s21(2) CPA Application for severance of indictment into 5 different trials – 9 counts, including counts of larceny, break and enters and a take and drive conveyance without consent – Granted in part.

Catchwords:

PROCEDURAL RULINGS – environment and planning – offences – prosecution objection to defendants’ tender of expert report during trial

Catchwords:

CRIME – SEVERITY APPEAL – 40 Offences in Local Court – Combined aggregate sentences amounting to 29 years and 3 months – Appellant sentenced to 5 years imprisonment with no parole period – Personal circumstances considered on appeal – Parole period fixed. SENTENCE – For 3 offences – Aggregate sentence on top of non-parole period fixed on Severity Appeal – Special circumstances.

Catchwords:

PROCEDURAL RULINGS – environment and planning – offences – objection to admissibility of certificate under s 60F(5) of the Local Land Services Act 2013 (NSW) – application for voir dire – admissibility of defendant’s expert evidence served during trial – application dismissed

Catchwords:

BAIL – property offences – racist hate crime – role of s 21A(h) Crimes (Sentencing Procedure) Act 1999 (NSW)

Catchwords:

CRIME – bail – release applications – murder – where convictions had been appealed – where orders made quashing convictions and ordering retrial – show cause – unacceptable risk – strong Crown case – display of significant violence in CCTV footage – previous membership of Rebels Outlaw Motorcycle Gang – where applicants had served in excess of half of non-parole period imposed – where retrial eight years after events in question – strong bail proposal – bail granted with conditions

Catchwords:

CRIME – SENTENCE – Knowingly take part in supply of prohibited drug – Large commercial quantity of cocaine (3.164kg) – Remorse shown – Good prospects of rehabilitation – Low to moderate prospects of recidivism – Special circumstances found.

Catchwords:

ENVIRONMENTAL OFFENCES — Prosecution where defendant did not appear in Court — Defendant charged with 20 offences under the National Parks and Wildlife Act 1974 (NSW) and the Biodiversity Conservation Act 2016 (NSW) — Allegation of clearing of native vegetation on land — Offences of harming or picking plants and damaging habitat of threatened species, endangered populations or endangered ecological communities — Where defendant did not obtain the required development consent in activity resulting in damage to habitat — Defendant found guilty of all 20 offences — Proceedings listed to obtain sentence hearing date and directions

Catchwords:

CRIMINAL - SENTENCE - robbery in company - dishonestly obtain a financial advantage by deception - expert witnesses - non compliance the Expert Code of Conduct - consequences - Parity - Special circumstances.

Catchwords:

CRIME – Sentencing – murder – plea of guilty – domestic violence offence – where special circumstances

Catchwords:

Environmental offences – sentencing after findings of guilt at hearing – offences under the Water Management Act 2000 by a corporate land owner and director of company pursuant to executive liability provisions – commercial farming business cultivating tomato, cucumber and ginger crops – use of dams without approval – construction (extension) of dams without approval – carrying out of controlled activities without approval – assessment of objective seriousness of offending conduct – consideration of subjective circumstances of offender – instinctive synthesis approach to sentencing – deterrence, denunciation and retribution for environmental offences – totality principle – consistency in sentencing – capacity to pay a fine – restoration and remediation orders – publication orders – costs

Catchwords:

CRIME — Historic child sex offences — Assault and act of indecency of a girl CRIME — Appeal and review — Appeal District Court to Supreme Court — Matter remitted to District Court for resentence RESENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Multiple offences — Totality — Not impose a crushing sentence SENTENCING — Subjective considerations on sentence — Chronic health issues — Advanced age — Mobility issues — Vulnerable in custody

Catchwords:

Aggravated break and enter - robbery in company - stealing - carried in conveyance without consent of owner - assault occasioning actual bodily harm - joint criminal enterprise - legal and moral culpability - parity in sentencing co-offenders - "... it is in the highest degree desirable that co-offenders be sentenced by one judge…"

Catchwords:

CRIMINAL LAW – prosecution – work health and safety- duty of persons undertaking business – risk of death or serious injury – maximum penalty COSTS – costs

Catchwords:

CRIME — appeal against sentence — manifest inadequacy — where offender convicted of 12 counts of child sex offences which occurred over a period of 15 years against four child victims — where the offending involved a significant age disparity, skin-on-skin contact with the genitals, sexual intercourse, planning, use of a position of trust, persistence, and escalation in seriousness over time — where the offender’s subjective case focused on his good character, experience in custody, and mental health history — whether the indicative sentences and non-parole periods failed to reflect the objective seriousness of the offending CRIME — appeal against sentence — residual discretion — relevance of the offender’s experiences in custody — whether maintenance of public confidence in the administration of justice required re-sentencing

Catchwords:

JUDGMENTS AND ORDERS – Appeal raising issue materially indistinguishable from co-accused’s earlier appeal – Principles as to whether to depart from previous decision of this Court – Whether established “plainly wrong” threshold applies – Principle of equality before the law requires that differently constituted bench of the same court should follow the earlier decision unless compelling reason to depart APPEALS – Procedure – Time limits – Significant delay – Extension of time granted given reasonable explanations and merit in appeal

Catchwords:

SENTENCING — Child sex offences, 11 counts — Sentence following jury trial — Elderly offender — Offences committed by offender between his late 60s to early 80s — Two complainants — No contrition or remorse for offences to which offender pleaded Not Guilty at trial — No prior criminal history — Abuse of position of trust between complainants and offender — Element of grooming — Offender paid one complainant for sexual acts — Offender provided other complainant with gifts — Significance of general deterrence for child sexual abuse offences.

Catchwords:

CRIME – armed robbery – take and drive conveyance - successful appeal of co-offenders. EVIDENCE – tendency evidence – whether trial judge erred in admitting tendency evidence. CRIME – Appeals – Appeal against conviction - Extension of time in which to appeal.

Catchwords:

CRIMINAL LAW – Evidence – Propensity, tendency and coincidence – Evidence Act 1995 (NSW) ss 97(1)(b) and 101(2) – armed robbery – bank robbery committed with substantially same co-accused over 9 years ago – some differences and some similarities with charged conduct – whether single prior bank robbery is evidence of a tendency or propensity to commit bank robberies in a particular manner – whether evidence has significant probative value – effect of Hughes v The Queen [2017] HCA 20

Catchwords:

CRIME – Appeals – Appeal against conviction – armed robbery of bank – inadmissible and prejudicial material heard by jury – whether refusal to discharge jury a miscarriage of justice – whether substantial miscarriage of justice – test to be applied – appeal upheld.

Catchwords:

CRIME – SENTENCE - Attempt import commercial quantity of border controlled drug - N,N-Dimethylamphetamine – Offender on tourist visa – Impact of language and cultural differences on whether incarceration onerous.

Catchwords:

CRIME – appeals – appeal against conviction – where the appellant was found guilty of one count of using a carriage service to groom a person under 16 years of age – where the jury was directed that in the absence of evidence to the contrary it was established that the appellant believed the person to be under 16 years of age – where the jury was directed that it was a defence to the charges if the appellant established a reasonable possibility that he believed the recipient was at least 16 years of age – whether the trial judge erred in his directions to the jury – where s 474.28(3) of the Criminal Code (Cth) was found to be means of proof only in the event there is no evidence to the contrary – where the appellant gave evidence that he believed he was talking to someone over the age of 18 years – where the appellant’s evidence was held to be “evidence to the contrary” – where s 474.28(3) was found to involve a question of law to be determined by the trial judge not the jury – where the impugned directions should not have been given– where leave was granted under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) due to the error resulting in a miscarriage of justice – appeal allowed, conviction quashed and new trial ordered

Catchwords:

CRIME – Appeals – interlocutory appeal – appeal from decision ordering temporary stay of proceedings – where order was conditional stay of potentially permanent effect – where only proper basis for ordering conditional stay of potentially permanent effect would be that the respondents’ trial would otherwise have been so unfair as to be inconsistent with the requirements of a fair trial – correctness standard of appellate review applies

Catchwords:

PROCEDURAL RULINGS – evidence in one trial tendered in another trial – ss 59 and 190 of the Evidence Act – consent of defendants – dispensing with hearsay rule

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — work health and safety — offences — category 2 — hot work — sparks from grinder mixed with oil to cause an explosion — no hot work permit system — mid-range of objective seriousness SENTENCING — relevant factors on sentence — objective seriousness — deterrence — aggravating factors — mitigating factors — capacity to pay a fine — appropriate penalty SENTENCING — mitigating factors — assistance to law enforcement authorities — principles

Catchwords:

CRIME – SENTENCE – Larceny – Circumstances of aggravation – Offensive weapon – Foreign national – Disadvantage due to language and cultural differences while incarcerated.

Catchwords:

CRIME – Evidence – Proper construction of s 138 of the Evidence Act 1995 (NSW) – Causation between identified contravention/impropriety and evidence – Limitation on “but for” test – Objective expectation of subsequent offending the subject of evidence required as outer limit of “but for” enquiry

Catchwords:

CRIME – appeals – appeal against conviction – child sexual offences – tendency evidence – whether trial judge erred in admitting tendency evidence – whether miscarriage of justice EVIDENCE – tendency evidence – complainant 13 years old – no dispute that sexual intercourse took place – where applicant’s case was of an honest and reasonable belief that the complainant was 16 years or older – where applicant’s previous relationship with a female child aged between 9 and 10 and 13 and 14 admitted by the trial judge as tendency evidence to rebut the applicant’s case of an honest and reasonable mistake EVIDENCE – tendency evidence – where tendency evidence presented to the jury by way of agreed facts under s 191 of the Evidence Act 1995 (NSW) – where material difference between the evidence placed before the trial judge and the agreed facts – consideration of the relevant evidence for determination of the grounds of appeal EVIDENCE – whether s 97A of the Evidence Act applied – where applicant had made clear that sexual intercourse was not in issue – whether sexual intercourse remained a “fact in issue” – whether “fact in issue” includes all the elements of the offence EVIDENCE – whether error in admitting tendency evidence – adjectives “intimate” and “consensual” – whether error by trial judge in concluding that sexual relationship with other female child was of long-standing commencing when that child was aged between 9 to 10 years – whether description of previous relationship as “intimate” and “consensual” and “it is known” in agreed facts gave rise to a real risk that evidence would be used in an unfair way EVIDENCE – tendency directions to jury – whether direction required that relationship with the female child was not sexual before she turned 13 years old – whether the probative value outweighed the danger of unfair prejudice CRIME – appeals – appeal against conviction – where no objection made to tendency direction at trial – whether application of r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) CRIME – appeals – appeal against conviction – where miscarriage of justice – whether proviso applicable

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict – where applicant found guilty of six sexual offences – whether it was open to the jury to be satisfied of the guilt of the applicant beyond reasonable doubt on all the evidence – whether the apparently ‘consistent’ evidence from the applicant should have been preferred by the jury – where knowledge of consent was the issue at trial – where the applicant sent suggestive and unrelenting messages to the complainant before and after the offending – where the complainant was affected by prescription medication and alcohol – where the complainant had no memory of the offending – where the complainant had established her ‘boundaries’ – leave to appeal granted – appeal dismissed

Catchwords:

SENTENCING — Penalties — Intensive correction order COSTS – costs in criminal cases - declined

Catchwords:

CRIME - appeals - appeal against conviction - where the appellant was convicted of multiple counts of assault with the act of indecency – where the appellant was convicted of sexual intercourse in circumstances of aggravation (under authority) – where the appellant was convicted of common assault – whether the trial judge’s reasons on the subject of consciousness of guilt were inadequate and failed to comply with s 133(2) of the Criminal Procedure Act 1986 (NSW) – whether the trial judge erred by applying consciousness of guilt reasoning in relation to each count on the indictment when it was not open to do so. CRIME - appeals - extension of time in which to appeal – where the appellant seeks an extension pursuant to s 10(1)(b) of the Criminal Appeal Act 1912 (NSW) to appeal from his convictions – where the notice of appeal was filed six months after the expiry of the notice of intention to appeal

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – work health and safety – where employee may have contracted silicosis as a result of carrying out work for the Applicant – where SafeWork NSW brought prosecution for an offence under s 32 of the Work Health and Safety Act 2011 arising from breach of health and safety duty under s 19(1) – where Applicant plead guilty in District Court – where Applicant now contends SafeWork commenced prosecution outside of time limit under s 232 of the Work Health and Safety Act 2011 (NSW) – whether prosecution brought in time – when did SafeWork have sufficient information to infer the offence had been committed – prosecution commenced in time APPEALS – appeal out of time – whether leave should be granted to bring appeal out of time – appeal futile – leave refused

Catchwords:

Crime – alleged offences under the Water Management Act 2000 by a corporate land owner – commercial farming business cultivating tomato, cucumber and ginger crops – alleged use of dams without approval – alleged construction (extension) of dams without approval – alleged carrying out of controlled activities without approval – alternative charges of alleged construction of dams without approval – power of Natural Resources Access Regulator to institute and maintain prosecution proceedings – whether certain charges commenced after statutory time limitation had expired – consideration of rebuttable presumptions under s 367B of the Water Management Act 2000 – consideration of executive liability provisions for company directors under s 363 of the Water Management Act 2000 – consideration of deeming provision in s 91L of the Water Management Act 2000 – consideration of admissibility of evidence on voir dire relating to statutory notices issued to corporation and director under the Water Management Act 2000

Catchwords:

CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation CRIME — Violent offences — Offensive weapon CRIME — Domestic violence — Intimidation MENTAL HEALTH — Criminal proceedings —Defence of mental illness — Special verdict of not guilty by reason of mental illness — Referral to Mental Health Review Tribunal

Catchwords:

CRIME — Appeals — Firearms offences — Appeal against sentence — Sentence appeal dismissed CRIME — Domestic violence — Stalking or intimidation CRIME — Property offences — Break, enter and steal — Take and drive a conveyance CRIME — Firearms offences — Possess unregistered / unauthorised firearm in a public place — Possess loaded firearm in a public place SENTENCING — Aggravating factors — Record of previous convictions SENTENCING — Guidelines for sentencing — Role of guidelines SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offences — Moral culpability — Multiple offences — Totality — Objective seriousness SENTENCING — Subjective considerations on sentence — Identifies as Indigenous — Drug addiction — Mental health — Childhood trauma — Childhood sexual assault

Catchwords:

CRIMINAL LAW – Appeal – Appeal against decision of primary judge to vacate the applicant’s trial on the application of the Crown – Where applicant had been in custody for a period of 19 months awaiting trial – Where vacation of the trial would likely result in the applicant being in custody for more than 2 years awaiting trial – Where applicant’s family and a witness had made arrangements to travel to Australia from Taiwan for the trial - Where Crown wished to serve further material in support of its case – Where primary judge exercised his discretion on the basis that the estimated length of the trial was now in excess of the estimate which was given at the time of setting the trial date – Where primary judge gave primacy to that fact over the consequences to the accused – Exercise of discretion unreasonable and plainly unjust - Error established – Orders of primary judge quashed - Observations as to the importance of the District Court having the capacity to finalise criminal cases in a timely manner

Catchwords:

CRIMINAL LAW – appeal against conviction under Criminal Code (Cth), s 307.2(1) – appeal against conviction on the basis of fresh evidence – whether miscarriage of justice such that conviction should be quashed and new trial ordered – whether “fresh” evidence available – whether evidence credible – whether the evidence would have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused

Catchwords:

Sentence – access of child abuse material – access child abuse material – state and federal offending – “Bugmy factors” – causal connection between “Bugmy factors” and offending – whether exceptional circumstances are made out in respect of federal offending

Catchwords:

CRIME — Fraud — Victim a Commonwealth entity – Crime of submitting false claims to the NDIA purporting to be legitimate claims under NDIS – Total attempted financial gain of $214,973.93 – Total lost to Commonwealth of approximately $30,000 – Objective seriousness of crimes of fraud against the Commonwealth – Strong subjective case

Catchwords:

CRIME — drug offences — supply prohibited drug — indictable quantity SENTENCING — relevant factors on sentence — Form 1 offences SENTENCING — subjective considerations on sentence — drug addiction — personal use CRIME — summary offences — custody of knife in public place or school

Catchwords:

CRIMINAL APPEALS – interlocutory judgment or orders – sexual assault communications privilege – leave to issue subpoena – whether material sought “will have substantial probative value” – where District Court failed to consider documents or make orders to facilitate production for that purpose – standard of review – “House error” or “correctness standard” – standard different depending on ground of appeal and power exercised – whether Judge applied the wrong test to decision to facilitate inspections – whether irrelevant considerations taken into account – directions to be provided to jury not relevant to evaluation of probative value of evidence – orders made in District Court vacated – orders facilitating production of documents to District Court made CRIMINAL LAW – constraints on lawyers appearing for protected confiders who lack capacity to consent or provide instructions – important questions raised – issue not raised in present case – largely questions of ethics – advisory opinions not provided by appellate courts

Catchwords:

EVIDENCE – Hearsay – exceptions – admission – where hearsay evidence of representations by third parties in the absence of the applicant was admitted against the applicant under s 87(1)(c) of the Evidence Act 1995 (NSW) – where the applicant objected to most of this evidence being admissible against him – whether error in admitting evidence pursuant to s 87(1)(c) of the Evidence Act CRIME – Appeals – appeal against conviction – miscarriage of justice – application of proviso APPEALS – From jury verdict – misdirection or non-direction – whether the trial judge failed to direct adequately – whether the trial judge erred in his Honour’s directions as to the use which could properly be made of representations made in the absence of the applicant and admitted pursuant to s 87(1)(c) of the Evidence Act CRIME – Appeals – appeal against conviction – unreasonable verdict

Catchwords:

CRIME — Appeals — Appeal against conviction CRIME — Appeals — Appeal against sentence — Re-sentence – “false fact” SENTENCING — Appeal against sentence — Severity SENTENCING — Relevant factors on sentence — Co-offenders — Factual basis for sentence — Quasi custody — Objective seriousness — Proportionality SENTENCING — Sentencing procedure — Findings of fact SENTENCING — Subjective considerations on sentence

Catchwords:

CRIME — appeals — appeal against sentence — statutory mandatory minimum sentence prescribed — proper construction of s 16AAC of the Crimes Act 1914 (Cth) — reduction of mandatory minimum where provisions in s 16AAC(3) apply — error by treating provision as capping maximum discount as a proportion of the mandatory minimum, as opposed to provision setting a minimum floor SENTENCING — federal offenders — sentence by State court for offence against Commonwealth law — whether aggregate sentencing under s 53A of Crimes (Sentencing Procedure) Act 1999 (NSW) can be applied to federal offences — whether s 53A is capable of being picked up by s 68(1) of the Judiciary Act 1903 (Cth) — whether there is a conflict between Pt 1B of the Crimes Act and s 53A(2)(b) — whether there is a conflict between s 16AAA of the Crimes Act and s 53A(2)(b) — s 53A is capable of being picked up as federal law and does not conflict with Pt 1B or s 16AAA of the Crimes Act

Catchwords:

CRIME – SENTENCE – Forgery – Two charges – Investment manager in financial world – Forged auditor’s reports of his investment scheme used by his principal to entice its customers to invest with the principal – Sums invested by customers (over $14 million) reimbursed by offender within one month of offender’s principal’s learning of the forgeries – Crimes caused offender severe personal hardship – Aggregate sentence – ICO.

Catchwords:

CRIMINAL LAW – appeal – Crown appeal – s 5F(3A) of the Criminal Appeal Act 1912 – dangerous navigation causing death contrary to s 52B(1)(c) of the Crimes Act 1900 – where trial judge excluded evidence from experts concerning likely impairment caused by intoxication – exclusion of evidence of blood alcohol content and speed of jet ski – where rulings would substantially weaken Crown case – whether experts entitled to offer opinions of specialised knowledge based on training, study or experience – Evidence Act 1995 s 79

Catchwords:

SENTENCING – sentence following guilty verdict CRIME — violent offences — recklessly cause grievous bodily harm — defence of self-defence rejected SENTENCING — relevant factors on sentence — circumstances of offence – street violence – lack of regard for victim’s wellbeing — substantial harm, injury, loss or damage suffered by victim — traumatic brain injury suffered by victim SENTENCING — mitigating factors — insignificant record of previous convictions — offender’s submissions on remorse not accepted by court – mental health – impact of upbringing — quasi custody SENTENCING — subjective considerations on sentence — drug addiction

Catchwords:

CRIME — Drug offences — Commonwealth offences — Traffic controlled drug CRIME — Firearms offences — Unauthorised use/possession of firearm SENTENCING — Federal offenders — Relevant considerations SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation SENTENCING — Sentencing procedure — Agreed facts SENTENCING — Relevant factors on sentence — Circumstances of offence — Form 1 offences — Maximum penalty — Multiple offences — Totality — Objective seriousness — Purposes of sentencing SENTENCING — Sentencing procedure — Agreed facts SENTENCING —Sentencing delays — Unrealistic hearing estimates given to court

Catchwords:

CRIME – Appeals – interlocutory appeal – sexual assault communications privilege – application for leave to appeal against a refusal of leave to the accused to access documents counsellors had produced to Court under subpoena – Criminal Procedure Act, Ch 6, Pt 5, Div 2 – whether trial judge erred by not determining the probative value of the documents to which access was sought – whether trial judge erred by not engaging in the weighing exercise required by s 299D(1)(c) of the Act

Catchwords:

SENTENCING – Commonwealth offence – use carriage service to transmit communications to a child under 16 with intention of making it easier to procure the child to engage in sexual activity – imprisonment

Catchwords:

SENTENCING — appeals — appeal against sentence — offence of having sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW) — plea of guilty – whether sentencing judge erred in providing a 10% discount as opposed to a 25% discount to reflect the applicant’s plea of guilty — Crimes (Sentencing Procedure) Act 1999 (NSW), s 25D — leave granted — appeal dismissed

Catchwords:

CRIME – appeals – appeal against convictions – sexual offences – distinction between second and third limbs of s 6(1) of the Criminal Appeal Act 1912 (NSW) – wrong decision on any question of law – miscarriage of justice – leave to appeal granted – appeal allowed in part – convictions quashed – whether Court should enter verdicts of acquittal or order new trial – verdicts of acquittal entered – resentenced for pervert the course of justice offence CRIME – appeals – appeal against sentence – successful conviction appeal – aggregate sentence quashed – not necessary to determine sentence appeal EVIDENCE – admissibility – tendency – whether trial judge erred by admitting tendency evidence – whether miscarriage of justice occasioned – tendency to intentionally touch body of unconscious female – where tendency suffered from degree of generality – where Crown relied on significantly less serious conduct alleged by tendency witness to prove offence – where evidence did not directly support tendency – weighing of probative value against prejudicial effect EVIDENCE – tendency directions to jury – whether omission to direct jury occasioned miscarriage of justice – whether direction involved error – where jury directed to make anterior findings as to charged and uncharged conduct – standard of proof undermined – real risk jury deflected from fundamental task

Catchwords:

CRIME – application for request to sheriff for investigation of potential juror impropriety pursuant to s 73A of Jury Act 1977 (NSW) – application dismissed by judge – whether application could be renewed in appellate court on same basis – where judge who presided over trial had already investigated the matter – where previous investigation took place 18 months ago in immediate aftermath of incident – where previous investigation obtained evidence on oath – prospects of second investigation resulting in different evidence speculative – application refused JURISDICTION – nature of decision by Supreme Court judge to refuse application for request for sheriff to conduct investigation – nature of purported appeal from refusal of such application – availability of appeal under s 5F or s 22 of Criminal Appeal Act 1912 (NSW) – whether right of appeal under s 101 of Supreme Court Act 1970 (NSW) excluded by s 17 – whether decision judicial or administrative – whether decision amenable to judicial review

Catchwords:

SENTENCING – murder – domestic violence – brutal and frenzied stabbing of former domestic partner – intent to kill – objectively serious offending – background of deprivation and disadvantage – childhood exposure to domestic violence and sexual abuse – significant mental illness – youth – moral culpability diminished – general and specific deterrence

Catchwords:

CRIMINAL PROCEDURE – Indictment – Amendment – Appeal where application by the Crown to amend the dates on an indictment previously refused – Amendment to the dates specified on an indictment to capture a period of offending in which time all offences took place – Whether there is irreparable prejudice and, as a consequence of that prejudice, a fair trial cannot occur in circumstances where an amendment to an indictment is requested by the Crown – Where leave of the Court is required to amend an indictment where the accused has not consented – Whether an amendment to an indictment which provided a date range which encompassed the dates earlier pleaded constitutes a new Crown case

Catchwords:

Participate in a criminal group whose activities were organised and ongoing; deal with proceeds of crime; by deception did cause financial disadvantage; possession of false documents with intention to induce a person to accept them as genuine thereby causing financial disadvantage; deal with ID information to facilitate commission of an indictable offence

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty COSTS – prosecution costs OTHER – fall from roof – failure to install fall prevention devices around the perimeter of the roof – failure to properly assess anchor point requirements and develop and document an anchor point plan – failure to develop, implement and enforce a site-specific Safe Work Method Statement

Catchwords:

CRIMINAL PROCEDURE – alleged offences committed by two accused persons arising out of the same circumstances – whether there should be separate trials or a joint trial – joint trial does not give rise to injustice or forensic unfairness – separate trials increase inconvenience to witnesses – separate trials increase costs upon the prosecutor and court – competing considerations of cost and inconvenience to defendants – separate trials are not required in the interests of justice

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury CRIMINAL LAW – prosecution – work health and safety – duty of officers – due diligence – risk of serious injury or death OTHER – sunken yacht salvage – crane lift failed – mast struck worker on head – failure of director to exercise due diligence – director put in place no appropriate processes – director provided no appropriate resources – failure to verify PPE was in use

Catchwords:

PROCEDURAL – amendment of Summons – whether Summons fails to disclose an offence known to the law – defendant to know the charge it has to meet – consideration of entire Summons including particulars required – whether there was a slip or clumsiness in drafting – costs of seeking an indulgence necessary as a result of need to amend

Catchwords:

COSTS — WHS criminal prosecution —When a prosecutor has withdrawn charges — Application of principles concerning costs in WHS prosecutions from Nash v Resource Pacific Pty Ltd (No 4) — Defendants filed and then abandoned Motions arguing that the proceedings were brought outside the limitation period — Defendants subsequently pleaded guilty — Prosecutor and defendants continued litigation on a common erroneous understanding of the law — Not just and reasonable for the prosecutor to pay all of the defendants’ costs

Catchwords:

CRIME – appeals – Crown appeal against sentence – federal offences of procuring or attempting to procure persons believed to be children to engage in sexual activity outside of Australia – federal offences of persistent sexual abuse of children outside of Australia – State offence of failing to comply with reporting obligations – guilty pleas – aggregate sentence less than 50 percent of mandatory minimum sentences – nominated indicative sentence less than 75 percent of mandatory minimum sentence for sequence 9 – manifest inadequacy – where respondent conceded all grounds of appeal were established – appeal allowed – resentence SENTENCING – resentence – where it appeared that the persons the subject of the offences were not in fact children – where the Director conceded that it could not be proved they were in fact children – where the concession was wrongly made with respect to certain sequences – respondent’s plea of guilty to some offences not admission of fact with respect to other offences – the Court should do no more than to act on the pleas – offences all objectively serious – offences committed remotely – respondent’s advanced age and health – aggregate sentence imposed pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) – discount for pleas of guilty – equal justice

Catchwords:

CRIME — Drug offences — Supply prohibited drug — More than indictable quantity less than commercial quantity — More than commercial quantity — Participate in criminal group — Deal with property reasonably suspected of being the proceeds of crime SENTENCING — Aggravating factors — Breach of conditional liberty — Planned or organised criminal activity — Record of previous convictions SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Co-offenders — Joint criminal enterprise — Parity SENTENCING — Relevant factors on sentence — Form 1 offences — Form 1 assessment intrinsic to offences for sentence — Moral culpability — Objective seriousness — Purposes of sentencing SENTENCING — Sentencing procedure — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Drug addiction — Mental disorders —Refugee — Childhood sexual assault – Multiple childhood traumas — Strong family support TRAFFIC LAW AND TRANSPORT — Traffic law — Offences — Drive vehicle with menaces CRIME — Appeals — Appeal against sentence

Catchwords:

CRIME – appeals – Crown interlocutory appeal – sexual offences – whether trial judge erred in refusing Crown application to discharge jury – where discharge application based on directions given by trial judge – where trial judge relied on R v Wilkie, R v Burroughs, R v Mainprize [2005] NSWSC 794 – directions inconsistent with s 294B(7) of the Criminal Procedure Act 1986 (NSW) – directions carried real risk of elevating importance of demeanour – wrong principle – error in determination of application – appeal allowed – matter remitted to be determined according to law EVIDENCE – witness evidence – evidence in sexual offence proceedings – evidence given by alternative arrangements – impact of evidence given by audio visual link – judicial attitudes – research – not equivalent to testimony in courtroom – weaker standard of communication – may affect opposing or calling party – beneficial or detrimental to witness – Kennedy Nixon presidential debate – impact may not be ascertainable EVIDENCE – directions to jury – evidence given by audio visual link – directions in ordinary case likely to contravene s 294B(7) – s 294B(7) cannot convert poor evidence into clear evidence – available direction where impact of audio visual link capable of being identified – direction as to particular quality of evidence – example direction provided

Catchwords:

CRIME – SENTENCE – appeal against sentence – attempt to import commercial quantity of border-controlled drug – application for leave to appeal out of time – sole ground of appeal based upon Totaan v R [2022] NSWCCA 75 – sentencing judge did not accept hardship to family as exceptional – “Totaan error” - where resentence process undertaken, but no lesser sentence warranted in law – where structure of sentence did not comply with s 19AB of the Crimes Act – where sentence is to be served concurrently for each count

Catchwords:

CRIME — Child sex offences — Child abuse material — Using carriage service for child pornography material or child abuse material

Catchwords:

CRIME – property offences – aggravated break and enter commit serious indictable offence - aggravated break and enter with intent to commit serious indictable offence - enter land with intent to commit serious indictable offence - enter building with intent to commit serious indictable offence SENTENCE – multiple offences over a number of properties – juvenile co-offenders – past brain injury – no overt evidence of an intellectual disability, but deficits in executive functioning – principles in Bugmy enlivened – parity has little work to do in this case

Catchwords:

CRIME – appeals – appeals against conviction – admissibility of tendency evidence – where matters in issue at time of pre-trial ruling not significantly different from matters in issue at close of evidence at trial – where tendency evidence still had significant probative value at close of evidence and probative value outweighed danger of unfair prejudice – where tendency direction given – no error established CRIME – appeals – appeals against conviction – miscarriage of justice – jury directions – tendency directions – content of tendency directions and standard of proof – where directions and summing up when considered as a whole would not deflect jury from their proper task of determining whether elements of offences proved beyond reasonable doubt – no miscarriage of justice EVIDENCE – tendency evidence – significant probative value – where asserted tendency is broad – where there is a gap in period where tendency is asserted – given matters in issue the tendency evidence had significant probative value – where probative value outweighed the danger of unfair prejudice – no error in pre-trial ruling STATUTORY INTERPRETATION – definition – definition of “under authority of” in s 61H(2) Crimes Act 1900 (NSW) – whether person receiving treatment from an osteopath is “in the care of” and thus “under the authority of” the osteopath – no error in so directing jury

Catchwords:

CRIME – SENTENCE – ATTEMPT TO POSSESS UNLAWFULLY IMPORTED SUBSTANCE – Commercial quantity 2.1034kg heroin - Plea of guilty – Good prospects of rehabilitation.

Catchwords:

PROCEDURAL RULINGS – Environment and Planning – offences – s 60N of the Local Land Services Act 2013 (NSW) – s 12 of the Native Vegetation Act 2003 (NSW) – objection to admissibility of certificate under s 60F(5) of the Local Land Services Act 2013 (NSW) – whether certifier had delegation to issue the certificate – whether the certificate was validly issued – objection dismissed

Catchwords:

EVIDENCE – admissions – pre-trial hearing to determine admissibility of evidence of admissions – where accused made admissions to undercover operative in police custody – where improperly and unfairly obtained information used to elicit admissions – evidence of admissions excluded

Catchwords:

CRIME – application for presence of a witness intermediary – use of witness intermediary while giving evidence – Complainants under the age of 16.

Catchwords:

CRIMINAL LAW – murder – application by Crown to tender transcript of evidence from previous trials – where witness cross-examined previously by counsel for the accused to suggest he was the shooter – where accused now alleges that a different person shot the deceased – where Crown mindful that it not split its case – whether unfair to accused to receive the material – tender rejected.

Catchwords:

CRIMINAL LAW – murder – joint criminal enterprise EVIDENCE – admissibility – evidence of former co-accused regarding conduct of remaining accused in dock – where Crown seeks to adduce as evidence of consciousness of guilt – whether an unfair admission – whether otherwise unfairly prejudicial

Catchwords:

CRIMINAL LAW – murder – joint criminal enterprise murder - application to discharge jury following the entry of pleas of guilty by one of two co-accused – whether remaining accused prejudiced – whether jury possibly influenced by co-accused’s acceptance of guilt