Catchwords:
CRIME — Child sex offences — Child abuse material — Possession CRIME — Possession of bestiality material
Catchwords:
CRIME – Appeals – Admission of hearsay and tendency evidence – Whether the admission could have realistically affected the jury’s verdict – Where clear directions were given by the trial judge about how the evidence could be used CRIME – Appeals – Appeal against conviction – Whether evidence would be misused as consciousness of guilt evidence CRIME – Appeals – Whether a miscarriage of justice arose from trial counsel’s failure to deploy material – Whether a miscarriage of justice arose from trial counsel’s failure to cross-examine a witness on matters relevant to their credibility and reliability – Where the use of (or failure to use) the material was a legitimate forensic decision – Where the jury’s attention was repeatedly drawn to issues relevant to the witness’ credibility and reliability CRIME – Appeals – Whether the prosecutor shifted from reliance upon joint criminal enterprise to extended joint criminal enterprise – Where the trial judge correctly directed the jury on the basis of joint criminal enterprise CRIME – Appeals – From jury verdict – Whether the jury’s verdict was unreasonable – Where it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty
Catchwords:
CRIME – appeals – appeal against sentence – shooting with intent to murder – reckless wounding and firearms supply offences – where co-offender re-sentenced on appeal in Person 1 (a pseudonym) v R [2025] NSWCCA 132 – whether error in application of totality principle – where issue materially distinguishable to co-offender’s appeal – whether sentence manifestly excessive – where mathematical approach not required – parity – whether justifiable sense of grievance between applicant and co-offender – applicant re-sentenced CRIME – sentencing – observations as to sentencing of “contract crimes”
Catchwords:
CRIME — Work health and safety — Sentence — Category 2 offences — Worker and other persons exposed to risk of falling into excavation pit — Inadequate edge protection — Failure to enforce exclusion zone — Failure to provide instruction to worker to maintain safe distances from vehicles or plant — Substantial mitigating factors — Mid-range of objective seriousness — Two offences — Significant overlap between offences
Catchwords:
EVIDENCE — Witness evidence — refreshing memory — witness unable fully to recall events forming charged offenses — witness referred to written statement previously made to police pursuant to s 32 of Evidence Act 1995 (NSW) — meaning of “at such a time” in s 32(2)(b)(ii) — meaning of “fresh in the memory” in s 32(2)(b)(i) EVIDENCE — Hearsay — relation of ss 32, 38 and 43 to rule against hearsay — machinery provisions which concern how evidence is adduced, not admissibility — evidence read out by witness pursuant to s 32(3) treated as part of oral testimony and is therefore not hearsay EVIDENCE — Witness evidence — unfavourable witnesses — meaning of “unfavourable” — witness unfavourable where fails to come up to proof — discussion of preferable method of cross-examining such witness — admission of evidence of prior inconsistent statement for credibility purpose — reliance on statement for its truth once admitted for credibility purpose
Catchwords:
CRIME — Work health and safety — Offences — Category 2 — Offender an individual sole trader — Victim fatally crushed between clamping jaws of harvester machine — No risk assessment, safe work procedure, or exclusion zone SENTENCING — Penalties — Fine — Application for adverse publicity order rejected — Where offender disseminated details of remedial steps taken after incident SENTENCING — Relevant factors on sentence — Specific deterrence — Where offender no longer involved in specific business — Diminished significance of specific deterrence
Catchwords:
CRIME — appeals — interlocutory appeal — appeal brought after guilty verdict by jury but prior to sentence — whether interests of justice warrant grant of leave to appeal CRIME — appeals — interlocutory appeal — where applicant convicted of perverting course of justice contrary to s 319 Crimes Act 1900 (NSW) — where impugned conduct related to offer of reward and threats made in respect of Federal Court proceedings — consideration of territorial reach of Crimes Act — consideration of text and legislative context of Part 7 of Crimes Act — whether ‘course of justice’ should be confined to course of justice ‘in and of’ or ‘in and for’ New South Wales
Catchwords:
CRIME — Federal offences — Intentionally provide material support to an organisation — Reckless as to whether provision of support aided organisation to engage in conduct constituting an offence — Relevant offence being attempting to import a border controlled precursor — Reckless as to whether organisation’s aim or activities included engaging in conduct constituting any offence which would benefit the organisation CRIME — Federal offences — Delay — No criticism of offender waiting for High Court decision in CD v Director of Public Prosecutions (SA) — Use of ANOM communication platform SENTENCING — Federal offenders — Relevant factors on sentence — Circumstances of offence — Breach of employer’s trust — Where offender in unique position at airport to provide valuable and specific assistance to criminal enterprise SENTENCING — Federal offenders — Relevant considerations — Subjective case — Where offender is someone who has worked hard and been law abiding but is perhaps somewhat naïve — Where offender also has background of deprivation and social disadvantage SENTENCING — Relevant factors on sentence — Quasi custody — Onus on offender to prove that bail conditions amounted to quasi custody — no particular time period but taken into account generally SENTENCING — Mitigating factors — Plea of guilty — Significant utilitarian benefit
Catchwords:
SENTENCING — appeal against sentence — parity principle — where co-offender was sentenced subsequently to applicant — where co-offender is 20 years older than the applicant — where sentencing judge held that applicant’s youth was an “important” consideration — justifiable sense of grievance arising from minimal disparity with co-offender’s sentence — appeal upheld
Catchwords:
CRIME – appeal – appeal against sentence – dishonestly causing financial disadvantage by deception – impact of mental conditions on sentencing exercise – material contribution – moral culpability – general deterrence – obligation of the sentencing judge – whether submission in relation to general deterrence made at first instance – reliance on transcript of proceedings to establish error
Catchwords:
CRIME — Appeals — appeal against sentence — applicant discharged pistol seriously injuring his wife — applicant pleaded guilty to offences of causing grievous bodily harm recklessly and using a pistol without authorisation — whether sentencing judge erred in failing to consider the wife’s evidence concerning continuing harm suffered by her as a result applicant’s imprisonment — where no such submission made to sentencing judge — where applicant’s counsel disavowed such a submission — where no evidence that applicant had ever assisted his wife as a paraplegic despite periods when released from custody — whether s 3A(g) of Crimes (Sentencing Procedure) Act 1998 (NSW) refers to harm suffered by victim consequent upon imprisonment of offender — appeal dismissed
Catchwords:
CRIME — appeals — appeal against conviction — murder — where Crown case at trial was advanced on the basis of a joint criminal enterprise or extended joint criminal enterprise — where alternative Crown case was a joint criminal enterprise to assault and/or intimidate — where trial judge did not direct the jury that manslaughter by unlawful and dangerous act was available — where counsel at trial did not seek such a direction — whether viable basis for manslaughter — where viable basis found — where trial judge made a wrong decision on a question of law CRIME — murder — joint criminal enterprise — extended joint criminal enterprise — where viable basis for manslaughter by unlawful and dangerous act — where unlawful and dangerous act the discharge or dangerous thrusting of a loaded firearm
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:
CRIME - Violent offences – Wound with intent to cause grievous bodily harm – public toilets – left facility, purchased knife and hoodie then returned SENTENCING – plea of guilty – disputed facts – may have perceived comment that caused offender to ruminate over childhood experiences SENTENCING – aggravating features – use of a weapon – on conditional liberty at time of offending SENTENCING – subjective considerations – Bugmy factors – post traumatic stress disorder – special circumstances – longer period of supervision to allow for psychological treatment and treatment and counselling for substance abuse issues SENTENCING – relevant factors – moral culpability – remorse – partial accumulation and totality
Catchwords:
CRIME – appeals – appeal against sentence – recklessly deal with proceeds of crime – where applicant already serving two sentences when the sentence under appeal was imposed – principle of totality – unintentional extension of total effective non-parole period
Catchwords:
CRIME – Appeals – appeal against conviction – where trial judge refused to discharge jury after three witnesses gave prejudicial evidence – whether miscarriage of justice – whether to apply proviso
Catchwords:
CRIME — Appeals — Appeal against conviction — Unreasonable verdict — whether verdicts are unreasonable, or cannot be supported, having regard to the evidence — where applicant raised nine challenges to the reliability and credibility of the complainant — whether challenges provide basis for rejecting or doubting complainant’s evidence as to offences of which applicant was found guilty — whether cumulative impact of applicant’s contentions impugns complainant’s credibility as to offences of which applicant was found guilty — caution as to assumptions or preconceptions about how a victim of sexual assault might behave in given circumstances — where complainant’s evidence was supported by independent evidence in many respects — where complainant’s motives to lie or mislead others could be explained or quarantined such that incursions on credibility did not infect evidence as to offences of which applicant was found guilty — advantages of jury — whether it was open to jury to return a verdict of guilty to counts 3 and 4 CRIME — Appeals — Appeal against conviction — Unreasonable verdict — where applicant charged on four counts — where counts 1 and 2 occurred close in time to counts 3 and 4 and involved alleged conduct of a similar nature — whether jury’s guilty verdicts with respect to counts 3 and 4 were inconsistent with not guilty verdicts with respect to counts 1 and 2 — where complainant provided inconsistent accounts in respect of count 2 — where counts 3 and 4 were substantiated by comprehensive complaint evidence — whether it was reasonably open to the jury not to accept complainant’s account in respect of counts 1 and 2, but accept her account in respect of counts 3 and 4
Catchwords:
CRIME — appeals — appeal against conviction — judge alone trial — where applicant convicted of murder — whether unreasonable verdict by reason of trial judge’s rejection of applicant’s claim of self-defence — whether trial judge’s reasons as to “first limb” of self-defence were inadequate and failed to comply with s 133(2) Criminal Procedure Act 1986 (NSW) — whether to extend time within which to file amended notice of appeal
Catchwords:
CRIME — appeals — appeal against conviction — unreasonable verdict — no issue of principle CRIME — appeals — appeal against conviction — unreasonable verdict — sexual intercourse without consent — verdicts not unreasonable
Catchwords:
CRIMINAL LAW – sentencing – gun supply and murder – where victim sold fake weapon to associate of offenders – where victim died of shotgun wound to the chest the next night – fact finding after trial – intention to kill on the part of shooter – extended joint criminal enterprise on the part of co-offenders – enterprise to intimidate with a loaded gun – where shooter went beyond the scope of the agreement – assessment of objective seriousness – aggravating factors – shooting in victim’s home – where wife witnessed victim die – use of weapon – planning – plot carried out with a high degree of ineptitude CRIMINAL LAW – sentencing – complicated question of totality – where offender sentenced to two other gaol terms for offending around the time of present offence and after going into custody – concertina effect of multiple sentences – avoiding crushing sentence – avoiding appearance of offender receiving discount for multiple offending – acknowledgment that commencement date and finding of special circumstances results in one sentence being wholly concurrent with other sentences
Catchwords:
CRIME — appeals — interlocutory appeal — doubts as to desirability of determining limitation questions in advance of trial CRIME — continuing offences — amorphous nature of term “continuing offence” — categories of continuing offence — relevance of issues of duplicity, double jeopardy, and limitation periods — nature of offence is an issue of legislative intention and facts of case — broad statements as to correct approach of limited utility — considerations relevant to characterisation exercise EMPLOYMENT AND INDUSTRIAL LAW — work health and safety — offences — characterisation of offence against ss 19(1) and 33 of Work Health and Safety Act 2011 (NSW) — distinct offence may be committed whenever duty not complied with at any time “while the workers are at work in the business or undertaking”
Catchwords:
CRIME — Child sex offences — Child abuse material — Using carriage service for child pornography material or child abuse material CRIME — Child sex offences — Child Protection (Offenders Registration) Act — Registrable offences — Length of reporting period — Relevant considerations SENTENCING — Relevant factors on sentence — Deterrence — General deterrence of particular importance when sentencing for offences involving child abuse material given the difficulty of detection and the substantial public interest in the promotion of the protection of children from sexual exploitation SENTENCING — Relevant factors on sentence — Objective seriousness — considerations when sentencing for matters involving child abuse material SENTENCING — Relevant factors on sentence — Contrition — Where offender gives evidence showing genuine remorse
Catchwords:
ADMINISTRATIVE LAW — Judicial review — Police powers — Search warrant — Whether invalid due to non-compliance with the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) — Where warrant nominated a motor vehicle with certain registration plates as a search object — Where a vehicle bearing different registration plates was searched — Warrant application material not placed before the Court — Invalidity of a search warrant not established by subsequent conduct by police in executing it — Discretionary nature of judicial review — Lack of practical utility where criminal charges have been resolved in the Local Court COSTS — Party/Party — Exception to general rule that costs follow the event
Catchwords:
CRIMINAL PROCEDURE – costs – application for certificate under Costs in Criminal Cases Act 1967 (NSW) – acquittals – where the Crown case was dependent upon the credibility of a witness whom the police investigation had proven to be unreliable in respect of key matters – otherwise vague circumstantial case based on suspicion – institution of proceedings unreasonable
Catchwords:
CRIME — appeals — appeal against conviction — alleged denial of procedural fairness and miscarriage of justice — where applicant convicted of corruptly receiving a benefit as a reward for facilitating business opportunities and aiding and abetting such activity — where primary judge reasoned towards guilt on a basis that had not been put by the Crown and had been expressly eschewed by the prosecutor CRIME — appeals — proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) — nature of error relevant to assessment of applicant’s credibility — proviso inapplicable as nature of error does not enable the Court to be satisfied that there has been no substantial miscarriage of justice
Catchwords:
SENTENCING — appeal against sentence — proceeds of crime offence — De Simoni error — whether sentencing judge took into account facts which would have amounted to a more serious offence — where facts were referenced in the context of mitigation and not aggravation of sentence — no error SENTENCING — appeal against sentence — supply of prohibited drug offence — whether sentencing judge made appropriate findings of fact and assessment of objective seriousness — where Agreed Facts were brief — no error
Catchwords:
CRIMINAL PROCEDURE — Application for separate trial with multiple co-accused refused — “co-conspirator” rule — Voluminous material “Threema” messages between various co-accused — Substantially less “Threema” material relating to the Accused than co-accused CRIME — Complicity — Conspiracy to murder — co-conspirators rule — hearsay material potentially admissible against Accused
Catchwords:
CRIMINAL LAW — work health and safety — offences — category 2 — where both a company and a director prosecuted — where workers and other people exposed to risk — where existing safety systems not adequate SENTENCING — relevant factors on sentence — objective seriousness — mitigating factors — plea of guilty — general deterrence — specific deterrence — remorse — post incident remedial steps OTHER — construction on masonry brick wall — inadequate ties and bracing — no exclusion zone — wall collapsed in gusting wind — no one injured
Catchwords:
CRIMINAL PROCEDURE — Trial — Voir dire – pre-trial ruling on admissibility of hearsay statements EVIDENCE — Hearsay — Exceptions - s 66A Evidence Act –contemporaneous representations about intention, knowledge, or state of mind – relationship evidence – hearsay representations made by deceased in murder trial in which the deceased and the accused were in a relationship – statements made by deceased as to her fear of the accused – statements made by deceased of intention to end the relationship
Catchwords:
CRIMINAL LAW — Work health and safety — Offences — Category 3 — Risk of workers being exposed to high levels of nitrogen in a confined space — No risk assessments undertaken — No SWMS for task of detecting leak in transformer — Failure to provide safety data sheet for nitrogen SENTENCING — Relevant factors on sentence — Above mid-range of objective seriousness — No aggravating factors — Substantial mitigating factors — No role of specific deterrence
Catchwords:
CRIME — Appeals — Appeal against sentence — Sentencing for federal offences — Denial of procedural fairness — Utilitarian value of guilty plea — 20% discount open to the sentencing judge CRIME — Appeals — Appeal against sentence — Sentencing for federal offences — Remorse CRIME — Appeals — Appeal against sentence — Sentencing for federal offences — Manifest excess
Catchwords:
CRIMINAL LAW — work health and safety — offences — category 2 — demolition work— where falling object struck worker — worker died — failure to properly implement and enforce existing safety and risk control measures — failure to adequately enforce exclusion zone — failure to remove object at risk of falling SENTENCING — relevant factors on sentence — objective seriousness — circumstances of mitigation — relevance of another duty holder's culpability and established safety measures to objective seriousness — high end of low range of objective seriousness
Catchwords:
EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – Offences – Category 2 – Where the defendant breached duty to take care that his or her actions or omissions did not adversely affect the health and safety of other persons EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – Offences – Category 2 – Where the defendant was responsible for providing directions and instructions to the injured worker and failed to direct the injured worker to not approach the rotating components of a drilling development rig in a mine EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – Offences – Category 2 – Where the defendant exited the cabin of a development rig in the course of mine development drilling without disengaging the rotation control lever – Where the immobiliser switches were not activated EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – Penalty – Capacity to pay – Where the defendant is of modest means and any pecuniary penalty will be difficult for the defendant
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 – category 1 offence – category 2 offence for officer – s 155(5) offence SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine - appropriate penalty
Catchwords:
CRIME – SENTENCE – Bugmy principles applied – Parity, 2 co-accused previously sentenced – Time served taken into account – Aggregate sentence imposed – 25% discount for plea of guilty at earliest available opportunity – Aggravated, breaking and entering and committing serious indictable offence – Offences below the mid-range of objective seriousness
Catchwords:
CRIME — Appeals — Appeal against sentence — Misapplication of principle — whether sentencing judge erroneously applied s 56 of Crimes (Sentencing Procedure) Act 1999 (NSW) — whether public policy underlying provision should still be taken into account on re-sentence CRIME — Appeals — Appeal against sentence — Misapplication of principle — where sentencing judge discerned special circumstances warranting a non-parole period less than 75% of the head sentence — whether sentencing judge erred in sentencing applicant to an overall non-parole period that comprised 83.75% of the combined total sentence CRIME — Appeals — Appeal against sentence — Re-sentence — where applicant sought departure from sentencing judge’s findings without bringing grounds of appeal in relation to those matters — findings made by sentencing judge were reasonably open — re-sentence on basis of sentencing judge’s findings — fresh evidence received on usual basis taken into account CRIME — Appeals — Appeal against sentence — Extension of time in which to appeal — where plaintiff’s explanation for delay unsatisfactory — where Crown did not contest presence of errors — where Crown did not point to any particular prejudice arising from grant of extension — extension granted
Catchwords:
CRIME — Appeals — Appeal against conviction — Admission of expert opinion — Whether decision to admit opinion evidence involved procedural unfairness — Whether witness lacked specialised knowledge — Whether opinion not based on specialised knowledge — Opinion evidence properly admitted CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Where applicant convicted by judge alone of dangerous driving occasioning death and grievous bodily harm — Critical finding that head-on collision caused by applicant crossing centre line was open — No reasonable doubt about verdict of guilty CRIME — Appeals — Appeal against sentence — Dangerous driving occasioning death and grievous bodily harm — Whether judge erred in assessment of objective seriousness — Scalar classification not an error where all circumstances bearing upon objective gravity taken into account CRIME — Appeals — Appeal against sentence — Manifest excess — Dangerous driving occasioning death and grievous bodily harm — Sentence not manifestly excessive
Catchwords:
CHILDREN – Criminal proceedings – prescribed sexual offence complainant under 16 years at date of alleged offences – Children’s (Criminal Proceedings) Act 1987 (NSW) – s 31AA – request by prosecutor for offences to be dealt with according to law s 31AB - committal proceedings sufficiency of evidence
Catchwords:
ENVIRONMENT AND PLANNING – Offences – s 60N of the Local Land Services Act 2013 (NSW) – s 12 of the Native Vegetation Act 2003 (NSW) – native vegetation clearing – three separate trials – single judgment – whether clearing was carried out – whether aerial imagery interpretation evidence was generally reliable – whether observations of aerial imagery obvious to the lay eye – whether clearing was of native vegetation – whether ecological evidence was generally reliable – whether clearing was in a regulated rural area within the meaning of s 60N of the Local Land Services Act 2013 – whether prosecutor could rely on evidentiary certificate issued pursuant to s 60F(5) of Local Land Services Act 2013 – whether defendants legally responsible for clearing – whether evidentiary provisions in s 44 of Native Vegetation Act 2003 and s 13.29 of Biodiversity Conservation Act 2016 (NSW) apply in circumstances where prosecutor has not proven manner in which alleged clearing took place or activity constituting alleged offence – whether clearing caused by persons other than defendants without defendants causing or permitting the clearing – whether defendants have established any available defences – whether clearing was for routine agricultural management activities within the meaning of s 11 of the Native Vegetation Act 2003 – meaning of “imminent risk” in s 11(1)(i) of the Native Vegetation Act 2003 EVIDENCE – admissibility – whether evidence in one trial admissible in other trial – rule in Browne v Dunn – whether expert witnesses given opportunity to respond to criticisms of methodology – whether expert witnesses given opportunity to respond to criticisms of specific observations
Catchwords:
EVIDENCE — terrorism trial — preliminary issues — where the accused seeks to rely on psychiatric evidence for dual purposes — whether s 7.3(6) of the Criminal Code Act 1995 (Cth) limits the use of psychiatric evidence to the mental impairment defence only — whether the refences to ‘intention’ in the definition of a ‘terrorist act’ in the Criminal Code Act 1995 (Cth) are fault elements of the relevant offences EVIDENCE — terrorism trial — preliminary issues — where the psychiatric evidence suggests the accused did not have the ‘intentions’ within the definition of a ‘terrorist act’ under the Criminal Code Act 1995 (Cth) — where the Crown contends the evidence is not relevant as the ‘intentions’ are to be proved by the objective character or manifest purpose of conduct — where the Crown contends that subjective evidence is not relevant — whether the subjective evidence is relevant
Catchwords:
EVIDENCE — terrorism trial — preliminary issues — where the accused objects to a discrete part of body-worn-video from the time of his arrest — where the accused’s representations concern his state of mind — where state of mind evidence is of significant importance — whether the accused’s representations amount to an admission — whether the use of the evidence would be unfair to the accused — whether the danger of unfair prejudice from allowing the evidence outweighs its probative value
Catchwords:
CRIME – sentence – manslaughter on basis of excessive self-defence – stab wounds with a hunting knife to the left buttock, left hip and left shoulder – where the offender was confronted by the deceased over an affair the offender had with the deceased’s partner – where the deceased was the initial aggressor, but was unarmed – where the offender’s anger escalated quickly after being punched – no planning – diagnoses of ADHD, social anxiety disorder, generalised anxiety disorder and trauma-related disorder – conditions likely to have contributed to heightened state of anxiety and fear and impulsive aggression – reduced moral culpability – good prospects of rehabilitation – genuine remorse and acceptance of responsibility
Catchwords:
SENTENCE – Maintain unlawful sexual relationship with child – s66EA of the Crimes Act 1900
Catchwords:
CRIME — Appeals — Appeals against conviction
Catchwords:
SENTENCE – Commonwealth offences – Fail to comply with s3LA order – Multiple offences of using carriage service to menace, harass or offend – Offence pursuant to s80.2H(1) of the Code, did display a Nazi Salute – Importance of general deterrence
Catchwords:
CRIME — Appeals — Appeal against sentence —Aggravating factors in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) — Attribution of aggravating factors generally to all offending — Double counting of aggravating factor that is an element of an offence — No lesser sentence warranted
Catchwords:
CRIMINAL LAW — Work health and safety — Three offences — Duty of persons undertaking business — Director’s failure to exercise due diligence — Failure to consult, co-operate and co-ordinate activities with other duty holders — Fall from height — Ice machine compressor fell through roof while seven workers were attempting to move it — Failure to ensure roof was structurally capable of supporting compressor and workers — No safe work method — Ad hoc procedure adopted — No adequate risk assessment SENTENCING — Relevant factors on sentence — Objective seriousness — Aggravating factor —Mitigating factors — Plea of guilty — General deterrence — Specific deterrence — Extra-curial punishment — Appropriate penalties
Catchwords:
CRIMINAL PROCEDURE — application to vacate a criminal trial — right to a fair trial — Defendant seeking legal representation — previous pro bono assistance terminated by Defendant
Catchwords:
CRIMINAL LAW – proceeds of crime – restraining orders – property owned as tenants in common
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:
CRIME – appeals – appeal against conviction – whether miscarriage of justice occurred – where prosecution breached its duty of disclosure – whether proviso should be applied – appeal allowed
Catchwords:
CRIME — Appeals — Appeal against sentence — Failure to take into account a relevant consideration — where applicant advanced evidence of ‘childhood-origin substance use’ and childhood deprivation — whether sentencing judge failed to take into account De La Rosa and Bugmy considerations — whether sentencing judge erred in treatment of applicant’s mental illness — whether sentencing judge erred by failing to find that the applicant had shown remorse CRIME — Appeals — Appeal against sentence — Manifest excess — whether Court should have regard to sentencing statistics of aggregate or effective sentences for the same offence — whether sentence was manifestly excessive CRIME — Appeals — Appeal against sentence — whether sentencing judge erred in failing to apply 25% discount under Pt 3, Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW)
Catchwords:
CRIMINAL LAW – sentencing – manslaughter – excessive self-defence – single stab wound – history of domestic violence – where victim of domestic violence kills perpetrator – childhood trauma and dysfunction – psychiatric conditions – diminution of moral culpability CRIMINAL LAW – sentencing – dismembering of corpse and dumping body parts – application of authorities – whether relevant to objective seriousness of offence – distinction from murder cases – impact on family victims
Catchwords:
SENTENCING — Crown appeal — intensive correction order — federal offence — whether intensive correction order available sentencing option — where federal offence had a “corresponding case” under State law — where corresponding State offence was subject to a disentitling provision — error conceded — concession accepted SENTENCING — Crown appeal — inadequacy of sentence — manifest inadequacy — where material error resulted in imposition of a sentence not available at law SENTENCING — Crown appeal — power to remit matter for resentencing — appropriateness of remittal — matter remitted to sentencing court
Catchwords:
EVIDENCE – pretrial ruling – joint trial – charges of murder and assault with intent to rob, with wounding and armed – elderly couple subject to robbery in their home – attacked by one of the intruders – admissions said to be made to undercover police officer/s by one of the two accused during a covert “scenario investigation” – no admissions to murder actually made – Crown relies on implausibility of aspects of exculpatory account which implicates co-offender – attempt to distinguish this operation from others – objections under Evidence Act 1995 (NSW) on bases of admissions made as result of oppressive conduct (s 84), unfairness (s 90), improperly obtained evidence (s 138), and unfair prejudice (s 137) – evidence excluded under s 137
Catchwords:
CRIMINAL PROCEDURE – suppression and non-publication orders – grounds – orders made
Catchwords:
CRIMINAL LAW — SENTENCING — Accessing and possessing child abuse material — Transmitting indecent material to a child under the age of 16 — Video streaming encounter with underage person — History of child sex offending — Fail to report per obligations under a Registerable Person Order — Guarded prospects of rehabilitation — Medium to high risk of reoffending — Registerable Persons Order for life SENTENCING — PRE-RELEASE PERIOD — Approach to sentencing for a combination of Commonwealth and State offences SENTENCING — NON‑PAROLE/PRE-RELEASE — Sentence structure of by setting shorter fixed term State sentence to commence prior to commencement of longer aggregate sentence for Commonwealth offences SENTENCING — PRE-RELEASE PERIOD — Appropriate to consider in a practical way the “effective aggregate” sentence for both the State and Commonwealth offending when determining an appropriate pre-release period for the Commonwealth offending in circumstances where as a matter of law there is no such “effective aggregate sentence” SENTENCING — Disconformity between Commonwealth and State sentencing regimes causes practical difficulties and confusion
Catchwords:
SENTENCING – State crime – Conspiracy – Drug supply; plea discount – quasi- custody - parity
Catchwords:
SENTENCING — appeal against sentence — manifest excess — use of statistics — where the sentenced imposed is the highest recorded in statistics for offences under s 112(3) of the Crimes Act 1900 (NSW) — where the next highest sentence imposed was for significantly more serious offending than that for which the applicant was convicted — sentence imposed wholly disproportionate to offending — error found and applicant re-sentenced
Catchwords:
SENTENCE – Supply a prohibited drug not less than the large commercial quantity
Catchwords:
SENTENCE – Attempt to possess a commercial quantity of an unlawfully imported border controlled drug
Catchwords:
SENTENCE – Attempt to possess a commercial quantity of an unlawfully imported border controlled drug
Catchwords:
CRIMINAL LAW – non-publication order – names of adult children – where six of eight children provided affidavits – exposure to ongoing domestic violence – important evidence in sentencing hearing – where facts include salacious features – dismemberment and disposal of corpse – test of necessity – public interest in open justice – public interest in witnesses providing important information – minimal interference with open justice – order made
Catchwords:
APPEALS — From jury verdict — jury misconduct — application to discharge jury — juror undertook internet research — juror found to have informed other members of jury about research — whether jury irregularities gave rise to a miscarriage of justice — whether decision by trial judge not to discharge the jury gave rise to a miscarriage of justice APPEALS — From jury verdict — jury misconduct — application to discharge jury — juror made allegation of incentives offered to provide a not guilty verdict — whether jury irregularities gave rise to a miscarriage of justice — whether decision by trial judge not to discharge the jury gave rise to a miscarriage of justice CRIMINAL PROCEDURE — Trial — jury — investigation by sheriff — where jurors interviewed by sheriff’s officer — where jurors given criminal caution at commencement of interviews — miscarriage of justice
Catchwords:
SENTENCING — guideline judgment — dangerous driving offences contrary to Crimes Act 1900 (NSW), s 52A — whether Whyte guideline judgment should be revoked — where guideline judgment conflated concepts of moral culpability and objective seriousness — impact of sentencing developments including the statutory discount scheme and standard non-parole periods — guideline judgment revoked and replaced SENTENCING — guideline judgment — new guideline judgment for dangerous driving offences contrary to s 52A — statement of relevant sentencing principles — no numerical guideline — consideration of the purposes of sentencing — matters relevant to the objective seriousness of dangerous driving offences — findings of reduced moral culpability — role of past decisions and sentencing statistics SENTENCING — appeal against sentence — two offences of dangerous driving occasioning grievous bodily harm — assessment of objective seriousness — whether sentencing judge conflated matters relevant to the assessment of objective seriousness with those relevant to subjective case — error found — no lesser sentence warranted — appeal dismissed
Catchwords:
SENTENCING — appeal against sentence — where applicant pleaded guilty to two counts of the same offence — whether sentencing Judge erred in elevating the objective seriousness of the second count by the fact of the first count having been committed earlier that day — error found — whether error could have affected the reasoning which led to the ultimate sentence imposed SENTENCING — resentencing — sentence arrived at not lower than that imposed by the sentencing Judge — appeal dismissed
Catchwords:
CRIME — murder — defence of mental health impairment — joint application of Crown and accused pursuant to s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) — whether evidence in the proceedings establishes defence of mental health impairment
Catchwords:
CRIMINAL LAW — Work health and safety — Offences — Category 2 — Elevated working platform (EWP) inside of truck trailer tipped — Worker ejected from EWP — No risk assessment — No safe system of work for maintenance and repair of truck trailers SENTENCING — Relevant factors on sentence — Mid-range of objective seriousness — Aggravating factor — Serious injuries — Mitigating factors — Remorse — Early plea of guilty — Modest discount due to reduced capacity to pay a fine
Catchwords:
EVIDENCE — public interest immunity — public interest immunity claims made by Commonwealth entities — no issue of principle
Catchwords:
Firearm supply - Non exculpatory duress – Childhood disadvantage - Refugee status -Acculturation
Catchwords:
CRIMINAL LAW — work health and safety — offences — category 2 — where a young worker’s arm became entangled in a conveyor belt of a mobile screen — high objective seriousness SENTENCING — relevant factors on sentence — circumstance of aggravation — vulnerable victim — avoiding double counting
Catchwords:
CRIME – appeals – appeal against sentence – where sentencing judge found that aggravated sexual intercourse with child involved “unprotected sex” – whether finding “reasonably open” – whether finding made beyond reasonable doubt CRIME – appeals – appeal against sentence – manifest excess – whether aggregate sentence manifestly excessive by reference to indicative sentences or notional accumulation – reference to sentencing statistics
Catchwords:
CRIME — appeals — appeal against sentence — applicant sentenced to aggregate term of imprisonment for various enter and steal offences — where applicant contended specific errors on the part of the sentencing judge — where applicant failed to demonstrate alleged errors because substance of complaints were matters within the discretion of the sentencing judge — whether sentence otherwise manifestly excessive
Catchwords:
CRIME — appeal against convictions — unreasonable verdict — where applicant convicted by trial judge of dangerous driving occasioning death and grievous bodily harm — where defence case was that applicant experienced an epileptic seizure at the time of collision — whether having regard to the whole of the evidence it was reasonably possible that the applicant’s driving could be explained by a seizure CRIME — alleged reversal of onus of proof by trial judge — whether trial judge erred by reversing the onus of proof by requiring the applicant to prove he experienced a seizure immediately prior to the collision — where trial judge made clear in the verdict judgment that the Crown bore the onus of proof CRIME — procedural fairness at trial — whether trial judge failed to accord the applicant procedural fairness by making particular findings of fact germane to the guilty verdicts — whether trial judge ought to have given a running commentary of the reasoning process during the trial
Catchwords:
CRIMINAL APPEAL – release application – bail – where Court allows appeal on the day of hearing – re-trial ordered – power to grant bail – “show cause” offence – cause shown in not breaching bail in period of remand and period in custody since conviction set against length of non-parole period – bail concerns – whether risk mitigated by conditions – no unacceptable risks in the circumstances – bail granted
Catchwords:
EVIDENCE – Accused’s application for evidence of Crown witness to be excluded
Catchwords:
EVIDENCE – Notice of Motion – Application to give evidence by audio visual link – Section 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
Catchwords:
SENTENCING – Five counts of fraud on the National Disability Insurance Agency, and one money-laundering count
Catchwords:
HIGH RISK OFFENDERS — preliminary hearing — application for Interim Supervision Order — index offences relating to violent extremist material — whether defendant poses an unacceptable risk of committing a serious terrorism offence if not kept in detention under a supervision order
Catchwords:
CRIME — Recklessly destroy property by fire EVIDENCE — Identification and opinion evidence — Multiple CCTV footage — Identification by walking gait — Circumstantial case JUDGE ALONE TRIAL — Charge of recklessly destroy a home by fire — Introduction [[1]-[10]] — The charges [[11]-[12]] —Judge-alone trial [13] — Overview of Crown case [[14]-[16]] — Structure of reasons [17] — Method of delivery of oral reasons partly summary of written reasons [[18]-[23]] — Directions of law [[24]-[81]] — The evidence [[82]-[313]]— The Accused’s account [[299]-[302]] — The elements of the offence [314]— The competing submissions [[315]-[342]] — Consideration [[343]-[358]] — Verdict [358]
Catchwords:
CORPORATIONS — Directors and officers — Disqualification — Where disqualification found to be extra curial punishment for criminal offence under Corporations Act CRIME — Fraud — Dishonestly obtain financial advantage by deception — Corporations Act offences CRIME — Fraud — Dishonestly obtain financial advantage by deception — where offender established company which offered Sharia Law compliant lending — company ultimately went into Administration — funds belonging to company diverted and not made available to investors and customers — significant financial losses not recovered by those investors or customers. SENTENCING — Federal offenders — Relevant considerations — Position of trust in community — where offender used community standing to facilitate offending SENTENCING — Mitigating factors — Plea of guilty — Significant utilitarian benefit
Catchwords:
CRIME — sentence — manslaughter by excessive self-defence — offender stabbed deceased with knife once in the chest in a public place following verbal threat of the deceased — assessment of objective seriousness of offending having regard to the extent to which the actions of the offender in self-defence were unreasonable or excessive — consideration of offender’s subjective circumstances — deprived background — serious criminal history — chronic mental health issues — assessment of moral culpability involving Bugmy and De La Rosa factors — early plea of guilty — evidence of remorse — poor prospects of rehabilitation — risk of institutionalisation — finding of special circumstances
Catchwords:
SENTENCING — murder — domestic violence — stabbing of former partner after she made allegations of sexual assault and domestic violence to police —assessment of objective seriousness — planning — motive of retribution for police report — element of public justice — no callousness after murder — objective seriousness in high end of the range SENTENCING — murder — domestic violence — consideration of subjective case — reduction in moral culpability due to depressive illness and adverse childhood events — breach of bail conditions and apprehended domestic violence order — reasonable prospects of rehabilitation — genuine remorse — reduction of discount for early guilty plea — hardship in custody — reference to comparative cases — finding of special circumstances
Catchwords:
SENTENCING — Appeal against sentence — Sexual offending against two child nieces — Finding of reduced moral culpability due to dysfunctional background — No finding as to whether general and/or specific deterrence should be moderated as a result
Catchwords:
CRIME — appeals — appeal against conviction — unreasonable verdict — whether it was open for the jury to find beyond reasonable doubt that the applicant knew, or believed, he was aiding or abetting an offence of the type that the co-offenders committed SENTENCING — appeal against sentence — co-offenders — disparity between sentences — where co-offenders sentenced on different factual basis
Catchwords:
CRIMINAL LAW — Work health and safety — Offences — Category 3 — Mobile scaffold blown from rooftop by high winds and fell onto glass roof of neighbouring building — Deficient installation of the mobile scaffolds — Governance failures SENTENCING — Relevant factors on sentence — Mid-range of objective seriousness — No aggravating factors — Mitigating factors — Remorse — Plea of guilty — General deterrence — Application for order pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) — Order not appropriate given seriousness of offending — Insufficient evidence for offender to make a capacity to pay submission
Catchwords:
SENTENCING — appeal against sentence — sentence manifestly excessive — where the sentencing judge’s factual or other findings were unchallenged — index offence of wounding with intent to cause grievous bodily harm — tension between reduced moral culpability and the need for community protection — applicant’s moral culpability found to be reduced on Bugmy, De La Rosa, and Henry principles — sentence imposed was unreasonable and plainly unjust in all the circumstances of this case — appeal allowed — resentence
Catchwords:
CRIME – Appeal from Local Court – Intent to cause complainant to fear physical or mental harm – Mental element successfully established
Catchwords:
CRIME – appeals – appeal against conviction – unreasonable verdict – aggravated break and enter and commit serious indictable offence of intimidation – circumstantial Crown case – where CCTV footage depicted applicant drinking from Toohey’s New beer can and discarding that beer can on the grass verge outside the home – where applicant’s partial DNA profile recovered from mouthpiece of the beer can – whether reasonable alternative hypothesis for the presence of applicant’s DNA on mouthpiece of beer can – whether it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt
Catchwords:
CRIME — Appeals — Appeal against sentence — legal principles with respect to miscarriage and receipt of additional evidence — error asserted because of failure of sentencing judge to consider facts not in evidence — Farrugia v The King handed down by High Court before determination — ground of appeal is whether sentencing exercise caused vitiating procedural irregularity — not necessary to characterise as House v The King error — further evidence should be admitted where doing so would avoid practical injustice — admission of further evidence exceptional — key factors include whether compelling explanation given for evidence not being adduced at sentence, and whether evidence could realistically have affected reasoning of sentencing judge to sentence imposed in a not insignificant way — evidence cannot be admitted if it relates to events that occurred purely subsequent to sentencing — sentencing appeal under ss 5(1)(c) and 6(3) of Criminal Appeal Act does not fit neatly into pre-existing categories of appeal CRIME — Appeals — Appeal against sentence —admission of further evidence — evidence related to applicant’s experience of child sexual abuse — provided compelling reason for not disclosing abuse during sentencing proceedings — potential for long delays and piecemeal disclosure in relation to child sexual abuse well-recognised — evidence had potential significance to sentencing — vitiating procedural irregularity established CRIME — Appeals — Appeal against sentence — Re-sentence — further evidence somewhat reduced applicant’s moral culpability for some offences and established some prospects of rehabilitation — protection of community remained of particular importance
Catchwords:
CRIME – Appeals – appeal against sentence – where applicant injected infant daughter with insulin, causing life-threatening hypoglycaemia – whether diagnosis of Factitious Disorder imposed on another bore upon objective seriousness – whether certain post-offence conduct capable of being taken into account in aggravating objective seriousness – whether sentencing judge failed to determine extent to which applicant’s moral culpability was reduced by factors demonstrated by evidence, compared to that which would otherwise substantially correspond with the offending – where sentencing judge considered moral culpability by reference to three other cases which were not relevant – on resentence additional evidence regarding hardship in custody taken into account – sentence reduced
Catchwords:
CRIME — appeals — appeal against sentence — where applicant pleaded guilty to relevant charges on first day of pre-recorded evidence hearing — whether applicable discount on sentence under s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW) is 5% or 10% STATUTORY INTERPRETATION — legislative purpose — whether ‘first day of the trial’ in child sexual offence proceedings means the first day of the pre-recorded evidence hearing or the day listed for the empanelment of the jury
Catchwords:
CRIME — Appeals — Interlocutory appeal — Where primary judge refused to order a separate trial — Whether primary judge failed to address the Middis principles or give adequate reasons for refusal — no error established
Catchwords:
SENTENCING – indecent assault – historical offending – where the offender made general admissions to the offending in 1971 – where the offender served a sentence for similar and related offending
Catchwords:
CRIMINAL LAW — Work health and safety — Offences — Category 2 – Where cyclist collided with edge of road plate and died – Failure to properly install road plate — Where the offender had been warned about the hazard
Catchwords:
CRIME — manslaughter — unlawful and dangerous act — intoxication SENTENCING — manslaughter — findings of fact — where Bugmy factors are accepted to reduce moral culpability — where offender had made early offer to plead guilty
Catchwords:
CRIMINAL LAW – Sentence – Indecent assault – Special Hearing – Penalty pursuant to s59(1) Mental Health and Cognitive Impairment Act 2020 NSW – Offender suffering from Alzheimer disease causing dementia – Proper construction of s65(2) “may make orders”, “place of detention” – Court has power to order detention at nursing home facility.
Catchwords:
CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Multitude of circumstances of aggravation — Vulnerable victim — Offences committed while victim at home — Take and drive a conveyance SENTENCING — Objective seriousness — vulnerable victim — Property stolen of significant sentimental value — Subjective factors — Balund-a program as quasi-custody — Offender has history of substance abuse and mental health conditions — Bugmy principles
Catchwords:
CRIMINAL PROCEDURE — Application for permanent stay of Summons — Duplicity — Section 233 of the Work Health and Safety Act 2011 (NSW) — Whether there are one or two pleaded risks — Connection between two potential manifestations of the risk — Application dismissed
Catchwords:
CRIMINAL LAW — Work health and safety — Offences — Category 2 — Worker’s right hand pulled into mill roller — Absence of adequate safety systems to minimise or eliminate risk of workers coming into contact with the moving parts of plant SENTENCING — Relevant factors on sentence — Upper mid-range of objective seriousness — Aggravating factor — Serious injuries — Mitigating factors — Good corporate character — Remorse — Early guilty plea — General deterrence — Adverse publicity order
Catchwords:
CRIME — Firearms offences — Unauthorised use/possession of firearm SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences
Catchwords:
CIVIL PROCEDURE – urgent ex parte asset preservation application – where defendants generally on notice of criminal investigations and civil proceedings – where risk of dissipation of funds CRIME – confiscations – restraining orders and custody and control orders – Proceeds of Crime Act 2002 (Cth), ss 18, 19, 38 – where alleged effective control of corporate accounts – Commonwealth money laundering offences – where authorised officer held reasonable grounds for suspecting money or other property is proceeds of crime – statutory prerequisites satisfied
Catchwords:
PROCEEDS OF CRIME — whether there are reasonable grounds for suspicions — threshold for suspicion to be held on reasonable grounds is not particularly high — orders granted
Catchwords:
CRIME — appeals — appeal against sentence — parity principle — parity between sentences of applicant and co-offender — where applicant and co-offenders pleaded guilty and sentenced on basis of participation in joint criminal enterprise — where Form 1 matter taken into account on sentence of co-offender — significant differences in subjective cases — whether justifiable sense of grievance
Catchwords:
SENTENCING — Commonwealth crime — Drug offence — Attempted possession — Joint attempt — Commercial quantity — Lower end of objective seriousness — Different drugs — Dry run — Concealed in a pump — Bottom of the hierarchy — Highly supervised — Controlled delivery — Limited role — To take delivery — Drug debt and payment — Low moral culpability — Strong subjective case — Punishment — Deterrence — Harm to the community — Severe harm to third party arising from incarceration — Drug addiction — Risk of reoffending considered — Low risk of reoffending — Rehabilitation — No prior record — Genuine remorse — Family in crisis — Counselling and psychological treatment — Future imprisonment would jeopardise treatment — Leniency justified
Catchwords:
CRIMINAL LAW – murder – hearing under s 31 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – where psychiatrists agree accused was suffering from schizophrenia at time of killing – Professor Greenberg considered accused also suffering chronic substance use disorder and so possibility of drug-induced psychosis cannot be excluded – exception under s 4(3) to mental health impairment does not apply because impairment not caused solely by substance use disorder or intoxication – accused unable to reason with a moderate degree of sense and composure – did not know her act was wrong – special verdict entered CRIMINAL LAW – victim impact statements – complexity of grief – remarkable courage in preparing and presenting these intensely private and difficult responses
Catchwords:
CRIMINAL LAW — sentencing — convicted by jury — murder — circumstantial case — love triangle — intent to kill — use of a knife — disposal of body — flight to Indonesia for several years — long delay between commission of offence and sentence — no remorse and continuing denial of culpability
Catchwords:
CRIMINAL PROCEDURE – Subpoenas – Where prosecuting authority disclosed materials in accordance with obligations – Where applicant obtained leave to issue a subpoena for related materials – Whether a “legitimate forensic purpose” existed for material sought – Whether there was a connection between material sought and applicant’s case at trial
Catchwords:
CRIMINAL LAW — Work health and safety — Offences — Category 2 — Worker’s hand drawn between two rollers and crushed SENTENCING — Relevant factors on sentence — Reduced moral culpability — Substantial mitigating factors — Specific deterrence substantially diminished — Reduced capacity to pay
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 – gate fell on worker – worker opened gate manually – end stop had recently broken – gate ran beyond the vertical guideposts – informal and undocumented system for manual gate operation – no system to ensure gates were regularly inspected by a competent person SENTENCING – relative culpability of “conduit entities” – where each company has an identical capacity to “influence and control” – each company is a separate legal entity which enjoys rights and is subject to duties and obligations – WHS duties are not transferrable and multiple persons can concurrently hold the same duty –– companies should not be able to benefit from the separate legal entity doctrine but disavow it when it operates to their disadvantage SENTENCING – whether “double punishment” arises when two corporate defendants have common ownership and control – each company has a non-delegable duty SENTENCING – whether CSP Act s 10 dismissal is appropriate where an offender has an unblemished record and exemplary character but the circumstances of the case are not extraordinary or exceptional
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 – defence costs OTHER – person struck by moving plant – person walking on walkway struck by a reversing reach stacker – failure to conduct adequate risk assessment – failure to develop, implement, and enforce a traffic management plan
Catchwords:
Coercive control offence – Parliaments’ rationale for enacting the offence – offence involved a course of conduct of psychological harm to the victim – Form 1 containing 7 contravene AVO offences attached to principal offence of coercive control – sentence of imprisonment is appropriate – appropriate term of sentence exceeds the jurisdictional limit of the Local Court – sentence adjusted downwards to jurisdictional limit of 2 years imprisonment – Park v The Queen [2021] HCA 37 applied
Catchwords:
CRIME – murder – defence of mental health impairment – where parties agree defence is available – hearing pursuant to of the s 31 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – Court satisfied defence is available – special verdict entered – act proven but accused not criminally responsible – victim impact statements
Catchwords:
SENTENCE – use a carriage service to transmit communications to recipient under 16 years of age, with the intention of procuring the recipient to engage in sexual activity – transmitting, accessing or soliciting child abuse material
Catchwords:
CRIME — Drug offences — Supply and manufacture prohibited drug cannabis and cannabis oil — Firearm offences — Possession of replica pistol — Unrelated to drug offending SENTENCING — Supply of cannabis and manufacture cannabis oil mostly for personal use but with some supply — Indictable quantity — Low objective seriousness — Strong subjective case
Catchwords:
COURTS AND JUDGES – apprehended bias – conduct of Judge part heard in criminal proceedings – prosecutions in name of NSW Director of Public Prosecutions – Judge made submission to Committee of Legislative Council of NSW Parliament critical of NSW Director of Public Prosecutions – Judge participated in ex parte communications with lawyers acting for accused persons in other proceedings brought in name of NSW Director of Public Prosecutions in which Judge was reserved on imposing sentence – some communications related to submission made by Judge concerning Director of Public Prosecutions – some communications not disclosed until delivery of judgment on applications for disqualification – concessions of error concerning aspects of Judge’s decision not to disqualify herself – whether reasonable apprehension of bias from Judge’s submission or making of communications or non-disclosure of communications – test for apprehended bias established
Catchwords:
CRIMINAL LAW – murder – hearing under s 31 Mental Health and Cognitive Impairment Forensic Provisions Act – where psychiatrists agree accused suffering from delusional disorder and/or schizophrenia at time of killing – accused thoughts disordered and delusional – delusional belief in partner’s infidelity – accused unable to reason with a moderate degree of sense and composure – did not know his act was wrong – special verdict entered CRIMINAL LAW – victim impact statements – where family members travelled hundreds of miles to attend hearing – bewildered at outcome and finding of “not criminally responsible” – language described by family member as “bullshit” – understandable approach to language of statute – dignified and respectful vigil over proceedings – courageous reading of victim impact statements – statements to remain in Court’s archives as enduring testament to a remarkable woman
Catchwords:
EVIDENCE — standard of proof — criminal cases — exercise of discretion to exclude admissions under s 90 of the Evidence Act 1995 (NSW) — whether it would be unfair to use evidence of an admission — correctness standard applies EVIDENCE — admissions — criminal proceedings — whether to exclude pretext call under s 137 of the Evidence Act 1995 (NSW) EVIDENCE — admissions — criminal proceedings — whether to exclude pretext call under s 90 of the Evidence Act 1995 (NSW) APPEALS — from jury verdict — misdirection or nondirection regarding pretext call CRIME — appeals — appeal against conviction — unreasonable verdict — whether jury verdict of guilty on two charges of sexual intercourse without consent was unreasonable
Catchwords:
CRIME — appeals — appeal against conviction — miscarriage of justice — whether interventions by trial judge were excessive — whether by reason of judicial interventions the applicant was denied a fair trial — number of problematic interventions — not productive of unfairness rising to the level of miscarriage CRIME — appeals — appeal against conviction — unreasonable verdict — whether complainant evidence established beyond reasonable doubt acts alleged to constitute offences — whether reasonable possibility of truthfulness of applicant’s account had been excluded — verdict not unreasonable
Catchwords:
CRIME — appeals — appeal against conviction — multiple offences of possession of drugs and firearms at unoccupied house — unreasonable verdicts — inconsistent verdicts — circumstantial case — where Crown case contended applicant part of a joint criminal enterprise — where possession an essential element of each offence of which the applicant was convicted — whether inference of guilt the only available inference having regard to the whole of the evidence
Catchwords:
CRIME — child sex offences — persistent sexual abuse of a child — sexual intercourse with child >14 <16 — circumstances of aggravation — under special care — special care — sexual intercourse with child >16 CRIME — child sex offences — persistent sexual abuse of a child — sexual touching of a child older than 10 and younger than 16 CRIME — sex offences — attempted sexual intercourse with person under care older or equal to 16 and younger than 17 CRIME — child sex offences — child abuse material — production /possession CRIME — child sex offences — repeated abuse over several years — increasing depravity in offending SENTENCING — aggravating factors — abuse of position of trust or authority in relation to the victim SENTENCING — mitigating factors — plea of guilty — no record of previous convictions SENTENCING — further reduction in penalty for facillitation of the course of justice — applicability of s 22A of the Crimes (sentencing procedure) Act 1999 where facts for sentencing are agreed SENTENCING — principles of totality in determining aggregate sentence EXPERT EVIDENCE — absence of evidence from the offender — weight to be attached to expert opinion absent evidence from the offender — expert’s overriding duty to the court
Catchwords:
CRIME — appeal against conviction — offence of supplying a commercial quantity of a prohibited drug — trial judge’s directions as to deemed supply and possession — whether trial judge was required to direct as to the availability of the Carey defence — where applicant’s case at trial was that he did not know drugs were in his “missus’ bag” and did not possess them — where Carey defence applies to an accused in possession of drugs but who intends to return them to owner — where trial judge gave a Liberato direction — where no direction sought by trial counsel — no miscarriage of justice established
Catchwords:
CRIMINAL LAW – application for trial by judge alone – where first trial ended in hung jury – jury unable to agree – where four-year delay between alleged offence and trial – desirability for finality – no issues raising community standards – some prejudicial publicity – finely balanced – where Court able to facilitate immediate listing – no suggestion of judge shopping – application granted
Catchwords:
CRIME — Child abuse offences — Soliciting child abuse material — Possessing child abuse material — Transmitting indecent material to a child — ADJOURNMENT — Application to adjourn sentencing hearing to allow Offender to participate in treatment program refused — SENTENCING — Commonwealth child sexual abuse material offences — Objective seriousness — Strong subjective case — s 17A threshold satisfied — Period of full-time custody appropriate to be released after a period on a Recognizance Release Order to promote rehabilitation and therefore community safety
Catchwords:
CRIMINAL APPEAL – sentencing – aggravating circumstances – forgery – 33 counts involving single act – where sentencing Judge accepted prosecution’s submission that offence comprised a series of criminal acts – s 21A(2)(m) – conceded error – resentencing – whether sentence of imprisonment only appropriate sentence – unusual circumstances including completion of community service and partial service of intensive correction order – community correction order imposed
Catchwords:
CRIME — murder — defences — self-defence — where deceased harboured a grievance with the accused over the purchase of drugs — where deceased went to premises at which the accused was present to ventilate said grievance — where accused stabbed the deceased twice and quit the scene — no direct evidence of altercation absent the account of the accused — Liberato applicable — largely uncooperative and unsatisfactory civilian witnesses — where Crown case reliant on inferences
Catchwords:
CRIMINAL LAW — Work health and safety — Offences — Category 2 — Sentencing — Crane fitted on truck operated by unlicenced worker — Contact with live overhead powerlines — Offender a small business — Whether payment of prosecutor’s costs is relevant to penalty SENTENCING — Relevant factors on sentence — Co-offenders — Parity — Whether principal contractor at construction site and supplier of cement products engaged in common criminal enterprise — Where culpability of offenders was comparable — Different sentences imposed to reflect principal contractor’s substantially reduced capacity to pay fine
Catchwords:
CRIMINAL LAW – contested application for accused to appear by audio visual link – whether hearing under the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) is a “physical appearance proceeding” – legislation unclear – Court proceeds on basis that it is – wishes of victim’s family – desire to read Victim Impact Statements in physical presence of the accused – where accused on South Coast and inquiry in Central NSW – where accused mentally unwell – opinion of psychiatrist – difficult decision – AVL order made – matters relevant to interests of the administration of justice
Catchwords:
CRIMINAL LAW – Crime Commission – where provisional indication provided that transcript would be made available to parties – where interested person provided opportunity to be heard – provisional view confirmed in one case – provisional view changed upon submissions from one of the interested parties – matter may be re-evaluated during trial
Catchwords:
CRIMINAL LAW – application to release confidential material notified by Crime Commission – where evidence given under compulsion and with assurances that it would not be published should be available to parties – relevant considerations – provisional indication material should be released – interested parties to have opportunity to be heard
Catchwords:
CRIMINAL LAW — Bail — release application pending determination of appeals against conviction and sentence — whether special or exceptional circumstances established — consideration of merit of proposed grounds for severity appeal — whether unacceptable risks — consideration of prospect whether substantial part of non-parole period will be served prior to determination of appeals — consideration of bail conditions
Catchwords:
Crime – Judge alone trial – Verdict - Discharge firearm with intent to cause grievous bodily harm - Fire firearm at a dwelling-house with reckless disregard for the safety of another person
Catchwords:
CRIME – SENTENCE – Supply a prohibited drug not less than the large commercial quantity
Catchwords:
CRIME — SENTENCING — Child sexual abuse material — Possession of child sex dolls — Creation and possession of AI generated child sexual abuse material — History of previous similar offending — Diagnosis of paedophilic disorder and autism spectrum disorder — Discussion of objective seriousness of offending — Subjective case includes mental health issues with a nexus to the offending — Paedophilic disorder is not of itself a mitigating factor for child sexual abuse offending — Approach to sentencing for a combination of Commonwealth and State offences
Catchwords:
HIGH RISK OFFENDERS — interim supervision orders — application for interim supervision order — whether an express requirement of reasonableness is appropriate in supervision order conditions.
Catchwords:
CRIME — Multiple offences involving threats, robbery and assaults, some involving knives — Mini crime spree in lower Clarence valley area over a period of approximately one month in 2025 involving various victims and circumstances SENTENCING — Significant objective seriousness of offending — Subjective case deprived upbringing mental health and drug addiction strong — Those same factors mean Offender’s prospects of rehabilitation are low and prospect of reoffending significant — Protection of the community paramount
Catchwords:
CRIMINAL LAW — Work health and safety — Offences — Category 2 — Worker fell three metres through void — Inadequately covered skylight penetrations — Failure to maintain exclusion zone — Mid-range of objective seriousness
Catchwords:
APPEALS – criminal appeals – Crown appeal – from pre-trial rulings excluding evidence pursuant to Evidence Act 1995 (NSW), s 137 – whether applicable standard of review is as set out in House v The King or the so-called “correctness standard” – where relevant authority is not settled – applicable standard of appellate review neither necessary nor appropriate to decide in the circumstances CRIME – appeals – interlocutory appeal – by Crown against ruling on evidence – pursuant to Criminal Appeal Act 1912 (NSW), s 5F(3A) – whether pre-trial rulings “eliminate or substantially weaken the prosecution’s case” – where the impugned evidence is of considerable probative value CRIME – appeals – interlocutory appeal – by Crown against ruling on evidence pursuant to Criminal Appeal Act 1912 (NSW), s 5F(3A) – where trial judge excluded evidence under Evidence Act 1995 (NSW), s 137 – whether probative value of evidence is outweighed by the danger of unfair prejudice to the accused – where evidence assumed to be accepted by jury and taken at its highest – where probative value assessed in context of other evidence to be admitted – where probative value not to be assessed by consideration of reliability of evidence and/or credibility of witness – where simple fact that witness cannot be cross-examined is not decisive of unfair prejudice – where forensic necessity that accused may have to give evidence does not of itself involve unfair prejudice – significance of a direction or warning to jury regarding use of evidence to ameliorate potential unfair prejudice CRIME – federal offences – complicity – conspiracy – oral and documentary evidence as to existence, nature and scope of alleged conspiracy – oral and documentary evidence of acts and communications in furtherance of alleged conspiracy – probative value – where probative value assessed in context of other evidence to be admitted – where evidence pre-dating accused’s participation in conspiracy still relevant to existence, nature and scope of conspiracy EVIDENCE – application to exclude evidence pursuant to Evidence Act 1995 (NSW), s 137 – trial judge excluded evidence on basis that probative value outweighed by risk of unfair prejudice to accused – whether trial judge erred in that assessment – where evidence assumed to be accepted by jury and taken at its highest – where probative value assessed in context of other evidence to be admitted – where probative value not to be assessed by consideration of reliability of evidence and/or credibility of witness –where simple fact that witness cannot be cross-examined is not decisive of unfair prejudice – where forensic necessity that accused may have to give evidence does not of itself involve unfair prejudice – significance of a direction or warning to jury regarding use of evidence to ameliorate potential unfair prejudice
Catchwords:
CRIME — manslaughter — offender unfit to be tried and found at a special hearing to have committed the offence of manslaughter — offender subsequently became fit to be tried — plea of guilty to manslaughter owing to substantial impairment SENTENCING — violent offending — substantial impairment — Bugmy factors — victim impact statements — remorse — prospects of rehabilitation — where previous non-compliance with release conditions affected by external stressors — ceiling principle not applied
Catchwords:
CRIME — murder — defences — mental illness — procedure where Crown and accused agree on availability of mental health impairment defence — consideration of whether evidence establishes defence — no issue of principle
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:
CRIMINAL LAW – Fraud – Commonwealth offences – Use position as officer of company to dishonestly gain advantage/cause detriment – Offender was liquidator, voluntary administrator and/or deed administrator of five separate companies –Transferred funds beyond agreed or reasonable remuneration for administration of companies – Transfer from administration accounts to personal and business accounts not for benefit of companies – Total of approximately $2,518,483.31 dishonestly obtained by offender – Offending over the course of several years from 2016-2022 – Offending detected by ASIC after offender failed to lodge relevant returns – Offender to attend examination pursuant to s 19 of the Australian Securities and Investments Commission Act 2001 (ASIC Act) – Some transfers at the end of the period made by the offender after giving an undertaking to ASIC not to deal with funds of companies – Offender used false descriptors of transfers – The amounts transferred significantly exceeded any amounts which could have been charged or agreed for unremunerated work. SENTENCING – Sentence after pleas of guilty – Subjective factors on sentence – Significant assistance to authorities – Early plea of guilty – General deterrence very important for white collar crime – Mental health issues – Extra curial punishment – Reputational damage – Loss of marriage – Suicide attempts – Excellent prospects of rehabilitation but overall sentence too high for ICO – Only full time custody appropriate with low 50% NPP.
Catchwords:
CRIME — Appeals — Appeal against sentence — Reduction of moral culpability by reason of youth and background — Impact on purposes of sentencing
Catchwords:
CRIME — appeals — appeal against conviction and sentence — offences taken into account on a schedule pursuant to s 16BA Crimes Act 1914 (Cth) — whether sentencing judge erred in the treatment of the schedule offences — where s 16BA schedule not signed by a delegate of the Director of Public Prosecutions — where applicant arraigned and convicted of the schedule offences — where separate punishment imposed for the schedule offences — appeal allowed and proceedings remitted
Catchwords:
CRIMINAL LAW — trial by judge alone — accused solicitor acted for a neighbour whose property adjoined a deceased’s (who died in 1995) real property and who was interested in claiming a debt against the deceased estate — solicitor’s retainer includes searches for beneficiaries and next of kin — solicitor unable to locate next of kin despite inquiries — solicitor’s legal services to neighbour cease following death of client (in 2003) — the solicitor’s (co-accused) wife sets about improving, maintaining and leasing the property — some years later the solicitor’s (co-accused) son (and his partner) enter occupation of real property — co-accused wife and co-accused son of the solicitor apply for title by adverse possession — primary application granted — whether statements in documents made in support of the application for title by adverse possession were deceptive — whether mental element of deception established — whether the accused obtained property belonged to deceased estate — whether the property was obtained by dishonesty CRIMINAL LAW — fraud offence — whether property obtained ‘by deception’ — consideration of causal connection where identified decision-maker gives evidence — relevance of decision-maker belonging to agency of government — whether in case where multiple deceptions are relied upon, it is necessary to prove causation for each individual deception CRIMINAL LAW — joint criminal enterprise — foundational offence of fraud — significance of the scope of the agreement as alleged by the Crown
Catchwords:
SENTENCING — offence of fraud following verdict of guilty – joint claim by co-offenders of adverse possession of real property — real property belonged to a deceased estate with the executrix and beneficiaries unable to be located — co-offenders learnt about the property since a family member acted as solicitor for neighbour to the deceased — objective seriousness — absence of proof of value of property obtained — consideration of whether State was a victim, or whether this was a ‘victimless’ crime — hardship to third parties
Catchwords:
CRIME — Appeals — Appeal against sentence — Application of De Simoni and Josefski principles — Where the sentencing judge took into account co-offender’s possession and use of a firearm in sentencing Mr Zahab. CRIME — Appeals — Appeal against sentence —Where the offender’s liability and culpability for the offence by reason of his conduct and role were not distinguished. CRIME — Appeals — Appeal against sentence — Reduced moral culpability — Impact on purposes of sentencing. CRIME — Appeals — Appeal against sentence — Where the sentencing judge took into account prior convictions that did not appear in the offender’s criminal history.
Catchwords:
CRIMINAL LAW — Work health and safety — Offences — Category 3 — Unguarded grain auger — Risk of body part coming into contact or becoming entangled — Absence of a guard — Inadequate safe work system — Inadequate instruction or training — Inadequate supervision — Person conducting business or undertaking uninvolved in day-to-day operations of business SENTENCING — Relevant factors on sentence — High objective seriousness — Offender had regard for duty to ensure safety of workers — Duty of a person conducting a business or undertaking when operating business remotely — General deterrence — No aggravating factors — Mitigating factors — Remorse — Early guilty plea — Whether sufficient evidence of cooperation with authorities — Adverse publicity order — Application for no conviction recorded — Relevant factors on no conviction application — Adverse publicity order
Catchwords:
CRIME – Appeals – appeal against sentence imposed by Drug Court – appeal as of right pursuant to s 5AF(1) of the Criminal Appeal Act 1912 (NSW) – whether error in final sentencing judge commencing sentence on date different to that nominated by initial sentencing judge – all periods of time since arrest accounted for as required by Drug Court Act 1998 (NSW) and the Crimes (Sentencing Procedure) Act 1999 (NSW) – no requisite error of law or wrong principle – whether sentencing judges did not take account of s 58 of the Crimes (Sentencing Procedure) Act – s 58, if it applied to Drug Court judge exercising Local Court jurisdiction with respect to certain offences, did not constrain sentencing exercise as appellant not serving existing sentence of imprisonment
Catchwords:
SENTENCING — Appeal against sentence — Severity — Sentence manifestly excessive — Domestic violence offences with no physical violence — Principles of totality — Reduction for reduced moral culpability on Bugmy and De La Rosa factors — Appeal upheld SENTENCING — Appeal against sentence — Fresh or new evidence — Whether failure to provide a report to sentencing judge constitutes a miscarriage of justice — Where the report gave a “more detailed and more graphic account” of sexual abuse suffered by the applicant already in material before the sentencing judge — Where the sentencing judge had accepted the sexual abuse occurred — No miscarriage of justice
Catchwords:
CRIMINAL PROCEDURE — sexual assault communications privilege — application for leave — meaning of “protected confidence” — meaning of “protected confider”
Catchwords:
ENVIRONMENTAL OFFENCES: sentencing – unlawful clearing of vegetation resulting in the commission of three offences – pleas of guilty – sentencing principles – mental state of defendant at time of commission of the offences – criminal negligence – commission of offences objectively serious – not part of any organised criminal activity – assistance to authorities – remorse and contrition expressed – means to pay – publication order made.
Catchwords:
CRIMINAL LAW — Work health and safety — Offences — Category 2 — Fall from height — Worker sustained minor facial injuries — Grossly deficient construction of scaffold — Failure to have scaffold inspected by a competent person — Workers not appropriately licensed — Absence of documentation — No training provided to worker SENTENCING — Relevant factors on sentence — Objective seriousness — No aggravating factors — Mitigating factors — No prior convictions — Pleas of guilty — Assistance to authorities — General deterrence — Reduced significance of specific deterrence — Moderation of fine for principal contractor — Limited capacity to pay a fine — Insufficient financial evidence before Court
Catchwords:
SENTENCING – specially aggravated kidnapping
Catchwords:
CRIME – SENTENCE – murder based on joint criminal enterprise – assault of deceased over four days – pleas of guilty – youth, deprived backgrounds and mental health impairments reduced moral culpability – punitive, denunciatory and general deterrent purposes of sentencing reduced – finding of special circumstances
Catchwords:
Crime – Sentence – Break enter and steal – Enter land with intent to commit indictable offence – Steal from dwelling and break out – Drive under influence of drugs – Police pursuit – Possession of taser – Possess child abuse material
Catchwords:
EVIDENCE — discretions — exclusion of evidence — improperly or illegally obtained evidence — whether ‘clandestine recording’ was made in a manner reasonably necessary to protect maker’s lawful interests — assessment of desirability of evidence being admitted against circumstances of obtaining it
Catchwords:
Crime – Sentence – Aggravated sexual intercourse with child 10-14 years – Under authority – Incest – Intentionally record intimate image without consent
Catchwords:
CRIME – appeals – appeal against sentence – appropriate test to be applied to challenges to factual findings in criminal sentence appeals – test from R v O’Donoghue inconsistent with House v The King test and should no longer be followed CRIME – appeals – appeal against sentence – meaning of “mistake of fact” within meaning of House v The King – whether finding of sentencing judge “reasonably open” CRIME – appeals – appeal against sentence – whether sentencing judge erred in finding that the offences took place against a background of similar offending – no “mistake of fact” within House v The King test – no error established CRIME – appeals – appeal against sentence – whether sentence manifestly excessive – no misapplication of principle by sentencing judge – no error established
Catchwords:
CRIMINAL PROCEDURE – subpoena – application for bench warrant – where subpoena to attend and give evidence not personally served – whether witness has actual knowledge of the subpoena and its requirements – whether witness will probably be able to give relevant evidence
Catchwords:
EVIDENCE — exclusion of prejudicial evidence in criminal proceedings — unfair prejudice said to arise from late disclosure and inherent unreliability of hearsay
Catchwords:
EVIDENCE — witness evidence — compellability — spouses, parents and children — where witness is not a biological child of the Accused — whether witness is a ‘child’ of the Accused within the extended definition of the term — relevance of Indigenous identity of the witness and the Accused as to nature of the relationship between them — balancing exercise between likely harm and desirability of having evidence given
Catchwords:
EVIDENCE – exclusion of prejudicial evidence in criminal proceedings – where probative value of the evidence is slight – offensive and aggressive language
Catchwords:
CRIMINAL LAW — sentencing — environmental offences — construction of dam without Approval — unlawful clearing of native vegetation on waterfront land — actual environmental harm — pleas of guilty — no intention to act unlawfully — whether Defendant should be named in publication notice
Catchwords:
CRIME – SENTENCING – Providing material support to a criminal organisation – Section 390.4(1) Criminal Code Act 1995 (Cth) – Criminal organisation involved in conspiracy to the knowledge of the offender involved in a conspiracy to import border‑controlled drugs into Australia – Discussion as to the mental element of offence – Discussion as to the proper approach to sentencing for the offence of providing material support to a criminal organisations in circumstances where the offender is not charged with being a party to the conspiracy or aiding and abetting the conspiracy – Proper approach to sentencing where the agreed facts disclose offender involved in a “drug related crime” – Approach to be taken to sentencing to determine objective seriousness in circumstances where there is no judicial guidance SENTENCING – Federal offence offenders – Objective seriousness – Delayed caused by AN0M appeals – Strong subjective case – Remorse – Rehabilitation – Prospects of reoffending low RECOGNIZANCE RELEASE ORDER – Appropriate that term of imprisonment be served in the community pursuant to a Recognizance Release Order which will promote the offender’s prospects of further rehabilitation and thus reduce the chances of reoffending to the benefit of the community
Catchwords:
APPEALS — Nature of appeal — necessity to show error for both appeals stricto sensu and by way of rehearing — correctness and House v The King standards of review — need to identify error does not determine standard of review — whether House v The King standard can apply differentially in different contexts CRIME — Appeals — Appeal against sentence —standard of review for findings of fact in sentence appeals — discretionary judgments involved in fact-finding during sentencing — distinctive aspects of fact finding in sentencing — House v The King requires asking whether a finding of fact reasonably open in sentencing appeals under ss 5 and 6 of the Criminal Appeal Act 1912 (NSW) — variable significance of “reasonably open” test based on evaluative character of finding and advantages held by trial judge CRIME — Appeals — Appeal against sentence — whether finding that applicant intended to kill deceased reasonably open — whether sentencing judge gave adequate reasons for finding — resentence of applicant SENTENCING — Relevant factors on sentence — objective seriousness — excessive self-defence — whether anterior conduct relevant to objective seriousness
Catchwords:
Crime – Sentence – Sexual intercourse with child under 14 years
Catchwords:
Crime – Sentence – Commonwealth offences – Cause child abuse material to be transmitted – Possess child abuse material
Catchwords:
CRIMINAL LAW — Prosecution for environmental offences — Pollution of land — Pollutant of prescribed kind — Alleged dumping of asbestos waste — Alleged dumping of processed and unprocessed building and demolition material — Whether pollution caused or likely to cause potential harm to humans and degradation of the environment —Transporting of waste to a place that cannot lawfully be used as a waste facility — Unlawful use of land as a waste facility — Whether First Defendant “caused” land to be polluted — Whether First Defendant is an “occupier” of the land — Failure to comply with a Clean-Up Notice — Whether First Defendant had a “reasonable excuse” not to comply with a Clean-Up Notice — Whether First Defendant had management or control of Second Defendant — Defendants found guilty on all charges
Catchwords:
SENTENCING – murder – sentence following trial – whether the offender inflicted the fatal stab wound to the deceased – where the offender has poor prospects of rehabilitation – where the offender has not shown remorse − application of Bugmy principles – application of the principle of totality
Catchwords:
EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – Offences – Category 2 – Where a construction worker fell through void in circumstances of inadequate fall control measures and supervision EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – Offences – Category 2 – Where a construction worker suffered serious injuries to his lower limbs including multiple spiral fractures, comminated intra-articular fractures, disruptions of the ankle mortise, and avulsion fracture of the dorsal navicular bone PRACTICE AND PROCEDURE – Obligation upon legal practitioners to give proper consideration to the nature and extent of documentary evidence to be tendered to the Court
Catchwords:
EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – Offences – Category 3 – Where a worker was unknowingly exposed to chlorine gas poisoning – Lack of training and signage – Defendant otherwise a safety-conscious company with a strong subjective case
Catchwords:
CRIME — Appeals — Interlocutory appeal — By accused against interlocutory judgment or order — where business-owner applicants charged with manslaughter by criminal negligence — where load being transported by truck alleged to have been inadequately restrained leading to a death on the road — where Crown case asserted duty of care owed by the applicants in their capacity as managers of business transporting the load — alleged negligence by omission or failure to implement safety procedures — whether primary judge erred in ruling that Crown case could proceed against the applicants on the basis of a duty of care in connection with applicants’ involvement in management of their business — whether facts alleged by Crown capable of establishing a duty of care that might form the basis of conviction for manslaughter by criminal negligence — principles for establishing duty of care in such circumstances considered CRIME — Appeals — Interlocutory appeal — By accused against interlocutory judgment or order — leave to appeal — where Crown concession in oral submissions meant no dispute between parties about principal legal question raised by second ground of appeal — whether utility in granting leave to appeal in respect of second ground
Catchwords:
CRIME — SENTENCING — Convicted at trial by jury of 19 offences against four victims over a period of approximately 20 years — Offending occurred within the home of the offender and of the victims — Abuse of trust and abuse of authority of step-parent and step-grandparent role — Varying degree of objective gravity in offending — Application of approach taken in R v RJ [2023] NSWCCA 273 where section 5 Crimes (Sentencing Procedure) Act 1999 threshold not crossed for some offences — Subjective factors — Application of Bugmy principles — No mitigation on account of the offender's self-induced intoxication — Aggregate sentence of imprisonment imposed
Catchwords:
CRIME – appeals – appeal against conviction – whether jury’s verdict unreasonable – applicant convicted of one count of maintaining unlawful sexual relationship with child under the age of 16 contrary to Crimes Act 1900 (NSW), s 66EA(1) – applicant some 12 years older than complainant – applicant long-time friend of family – applicant assumed a paternal role in complainant’s family – applicant and complainant regularly shared a bed – evidence of complaint many years after the event – no other direct evidence of offending – whether complainant’s lies made verdict unreasonable – whether uncorroborated evidence, lacking detail and years after the event made verdict unreasonable – whether unlikelihood of alleged conduct being undetected made verdict unreasonable – appeal dismissed
Catchwords:
CRIME – Appeals – appeal against conviction – unreasonable verdict – judge alone trial – dishonestly cause financial disadvantage by deception – proper characterisation of joint criminal enterprise alleged at trial – whether global joint criminal enterprise or multiple individual joint criminal enterprises – whether evidence capable of establishing the applicant’s participation in the joint criminal enterprise alleged – whether open to trial judge to reject the applicant’s evidence – where advantages of the trial judge were significant CRIME – Appeals – appeal against conviction – judge alone trial – whether insufficient reasons for verdict – whether trial judge failed to deal with the case put by the Crown at trial – where Crown case at trial was circumstantial CRIME – Appeals – appeal against conviction – unreasonable verdict – dishonestly cause financial disadvantage by deception – where indictment particularised Westpac Bank as the loss-bearing entity – where fraudulent loan applications submitted to St George Bank – whether separate legal entities – whether evidence capable of establishing interconnectedness between St George Bank and Westpac Bank – whether evidence capable of establishing the particularised financial disadvantages were occasioned CRIME – Appeals – appeal against conviction – unreasonable verdict – knowingly deal with the proceeds of crime – meaning of “deals with” in s 193A of the Crimes Act 1900 (NSW) – whether “deals with” includes an attempt to transfer funds and/or possession or receipt of funds – whether evidence excluded reasonable possibility that the funds were received by accident CRIME – Appeals – appeal against conviction – unreasonable verdict – deal with identification information with intent to commit indictable offence – where trial judge found offence proven on basis of possession only – error conceded – appeal allowed and conviction quashed CRIME – Appeals – appeal against sentence – where challenge to factual finding of sentencing judge – finding that applicant committed offences whilst on bail – where finding relied upon as an aggravating factor – no material error established CRIME – Appeals – appeal against sentence – whether sentencing judge erred in assessment of moral culpability CRIME – Appeals – appeal against sentence – whether sentencing judge erred in assessment of objective seriousness – finding that some of the funds used to repay loan application were derived from proceeds of crime – whether finding reasonably open to sentencing judge CRIME – Appeals – appeal against sentence – extra-curial punishment – where challenges to findings made by sentencing judge – finding that adverse publicity did not involve misogyny or racial vilification – finding that there was no evidence in mitigation that public denigration affected the applicant’s mental health – whether findings reasonably open to sentencing judge – no material error established CRIME – Appeals – appeal against sentence – whether sentencing judge erred in assessment of delay – no error established
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 – appropriate to consider medical evidence in relation to whether injury was “substantial” per s 21A(2)(g) of Crimes (Sentencing Procedure) Act 1999 (NSW) COSTS – prosecution costs OTHER – bucket elevator conveyer maintenance – conveyer went into an uncontrolled free run – fluid coupling failed – explosion of metal debris – debris stuck worker on head – failure to confirm instructions were being followed – failure to make reasonable enquiries that an adequate risk assessment was taken after changes to work process – failure to confirm whether mechanical engineer was consulted about relevant job features
Catchwords:
SENTENCING — Federal offenders — Sentence by State court for offence against Commonwealth law SENTENCING — Relevant factors on sentence — Multiple offences — Accumulation, concurrency and totality CRIME — Child sex offences — Child abuse material — Using carriage service for child pornography material or child abuse material CRIME — Child sex offences — Procuring or grooming child for unlawful sexual activity
Catchwords:
SENTENCE – totality – where sentence accumulated on an existing sentence – where result of accumulation was to impose a non-parole period of 80.2% of total sentence – whether result of accumulation inadvertent – youth not only relevant to objective seriousness of offending – youth and immaturity requires pervasive, specific and thorough consideration in relation to moral culpability and the potential for it to modify specific deterrence, general deterrence and denunciation
Catchwords:
CRIMINAL LAW — sentencing — environmental offences —construction of dam without Approval — unlawful clearing of native vegetation on waterfront land — actual environmental harm — pleas of guilty — whether deliberate offending — no financial gain — determination of objective seriousness — totality principle and married couple
Catchwords:
CRIME — Property offences — Break, enter and commit serious indictable offence CRIME — Motor vehicle offences — knowingly be carried in a stolen conveyance SENTENCING — Relevant factors on sentence — Co-offenders — Parity — Subjective considerations on sentence — Bugmy Principles — Walama List – Special circumstances — Childhood deprivation — Extensive criminal history – Institutionalisation
Catchwords:
CRIME – appeals – appeal against sentence – sexual offences – where applicant had a background of extreme disadvantage and deprivation – no requirement for causal link between background of disadvantage and subject offending – moral culpability – resentence
Catchwords:
CRIME – SENTENCING - child sex offences – adult maintain an unlawful sexual relationship with child under 16 – victim offender’s step-daughter – relationship of over five years - plea of guilty on day of trial – no subjective material tendered – above mid-range
Catchwords:
CRIMINAL APPEAL – sole ground of appeal that prosecutor did not have power to commence prosecutions under the Water Management Act in Local Court by court attendance notice – appeal dismissed
Catchwords:
CRIME — SENTENCING — Use carriage service to engage in sexual activity with a child against Commonwealth Criminal Code s 474.25A(1) — Taking other offence into account — Yardstick of mandatory minimum sentence — Consideration of offender's subjective case — Positive prospects of rehabilitation — Extended parole/supervision period appropriate — 25% discount on account of early plea of guilty — 8% discount on account of assisting authorities
Catchwords:
CRIME – appeals – appeal against sentence – sexual intercourse without consent – where the applicant accepted that the complainant was asleep during commencement of the sexual intercourse in the agreed facts – whether reasonably open to sentencing judge to find beyond reasonable doubt that the applicant had actual knowledge the victim was asleep at the commencement of the sexual intercourse – where sentencing judge rejected applicant’s out of court statements – whether sentence manifestly excessive
Catchwords:
CRIME — Appeals — Appeal against conviction — Incompetence of counsel — whether reasonable explanation for conduct at trial — whether miscarriage of justice occurred — no miscarriage of justice demonstrated — leave to appeal granted — appeal dismissed
Catchwords:
CRIMINAL LAW - charge of blackmail under s.249K(2) Crimes Act 1900 - pretrial hearing - AFP take draft incomplete and unsigned statement from co-accused to allow decision whether co-accused to be called by Crown at trial of accused - statement not completed as AFP consider co-accused not being truthful - Crown not to call co-accused at trial - whether draft statement subject to prosecution disclosure requirements - if not, whether draft statement ought be produced by AFP under subpoena issued for accused - legitimate forensic purpose - claim of public interest immunity made by co-accused - held prosecution disclosure principles do not require production of draft statement - accused should be granted access to draft statement under subpoena subject to conditions
Catchwords:
CRIME — SENTENCING — Convicted at trial of offence against Commonwealth Criminal Code s 474.26(1) - Use carriage service to procure a person under the age of 16 for sexual activity — Communications to a police assumed online identity — Police assumed online identity SMS description of 14 years and photographs of aged 20 real female — Subjective factors — Cognitive deficits — Finding of significantly reduced moral culpability — Good prospects of rehabilitation — Sentence to term of imprisonment of 1 years and 4 months — Release on recognizance after 3 months
Catchwords:
CRIMINAL PROCEDURE — Stay of proceedings — Permanent — Whether prosecutor's pleaded case identifies measures alleged to be "reasonably practicable" within the meaning of s 18 of the Work Health and Safety Act 2011 (NSW) — Distinction between particulars and evidence or inferences drawn from evidence — Whether continuation of the proceedings would result in an unfair trial – Motion dismissed CRIMINAL PROCEDURE — Stay of proceedings — Temporary stay — Application for further and better particulars — Whether defendant entitled to further and better particulars of how the prosecutor will seek to prove an essential element of the offence — Where prior response to request for further and better particulars sufficiently reveals boundaries of the case the defendant must meet at trial — Motion dismissed — Prosecution directed to provide amended particulars