Recent decisions for all Courts and Tribunals, Criminal

Catchwords:

CRIMINAL PROCEDURE – suppression and non-publication orders – closed court orders – restricted retention orders – where orders sought protect disclosure of monetary amounts paid to witnesses for co-operation – public interest in open justice a primary objective of the administration of justice – meaning of “necessary” – whether reasons for orders sought contained in confidential affidavit should be protected – reasons disclosed – orders made CRIME – murder – destroy or damage property intending to endanger life of another – maliciously wound – maliciously inflict grievous bodily harm

Catchwords:

CRIME — Violent offences — Assault causing death SENTENCING — Mitigating factors — Plea of guilty — Remorse — Mental disorders — Childhood trauma and neglect — Sexual abuse in Juvenile Detention — Sole parental custody of child —Hardship to child — Unlikely to re-offend SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Moral culpability — Objective seriousness — Hardship to third parties SENTENCING — Sentencing procedure — Fact finding from CCTV — Instinctive synthesis

Catchwords:

LAND LAW — Option to purchase residential property — Where plaintiff (as prospective purchaser), defendants/cross-claimants (as owners and prospective vendors) and cross-defendants (as guarantors) entered into deed of put and call option — Where plaintiff paid a call option fee of $600,000 to the defendants in accordance with the deed — Where the deed stated that the put option was granted by the plaintiff to the defendants in consideration for the call option and a put option fee of $1.00 — Where deed provided that the call option fee would be retained “absolutely” by the defendant in the event that neither option was exercised — Where the proposed contract for sale of land attached to the deed did not include particulars of the purchase price — Where, prior to the expiry of the period in which it could exercise the call option, the plaintiff issued a notice of rescission of the deed, relying on s 66ZI of the Conveyancing Act 1919 (NSW) — Whether the statutory right of rescission under s 66ZI entitled the plaintiff to rescind the deed ab initio

Catchwords:

Trial by judge alone – expert evidence – whether the expert for the accused is qualified to give the opinion he purports to give – driving under the influence occasioning grievous bodily harm – BAC at time of impact

Catchwords:

CRIME – Violent offences – Domestic violence – Substantive Offence – Wound with intend to cause grievous bodily harm – Stabbing – Injuries to victim requiring surgery – Serious weapon – 20cm knife Form 1 Offences – Reckless wounding – Serious domestic violence offence against partner – Almost amputated finger Contravene apprehended domestic violence restriction x 3 – 2 related to main offences and 1 later – Phone calls to victim from gaol in contravention of non-contact order EAGP scheme negotiations criticised – contravene ADVO involving same facts and 2 main offences unnecessary – but very serious Form 1 offence of reckless wounding means no proper sentence able to be imposed for that offence SENTENCING — Extensive criminal history – Largely break and enter type offending – History of violence against same victim – General deterrence – On conditional liberty at the time of offending SENTENCING – Subjective considerations on sentence – Childhood sexual abuse in juvenile custody – Poor education – Disrupted employment history – Frequent incarceration – Substance abuse issues

Catchwords:

SENTENCING – murder – where offender previously found guilty by a jury and sentenced for murder – where offender successfully appealed against the conviction – where offender pleaded guilty to murder before retrial – application of the ceiling principle – discount to reflect utilitarian value of plea – objective seriousness of offending – where moral culpability reduced by reason of youth and background of disadvantage – where offender has made progress toward rehabilitation in custody

Catchwords:

CRIME — Drug offences — Cultivate prohibited plant — Possess prohibited plant — Enhanced indoor cultivation — Knowingly take part in enhanced indoor cultivation — Commercial quantity — Supply prohibited drug CRIMINAL PROCEDURE — Trial — Voir dire —Pretrial hearing — Firearms Prohibition Order — Police powers— allegations of impropriety EVIDENCE— Admissibility of illegally obtained evidence

Catchwords:

CRIME – appeals – appeal against sentence – fraud offences – where the sentencing judge erred in finding that there was no evidence of the quantum of the debt the applicant intended to extinguish by committing the offences – whether the error was material – whether the error had the capacity to affect the sentencing exercise – whether the sentencing judge may have taken a more adverse view of the applicant’s offending as a result of the factual error – appeal allowed – applicant resentenced SENTENCING – where the applicant is to be sentenced for overlapping offences of dealing with the proceeds of his own crime – principles of accumulation and concurrency

Catchwords:

CRIME – Bail – Variation application – Detention application – Large commercial drug supply, manufacture of prohibited drug, possession of proceeds of crime and other serious drug offences –– Bail Act 2013 (NSW) s 30A – Private electronic monitoring – Power of Supreme Court of NSW to hear detention application – Whether revocation within scope of power to vary a bail decision – Whether bail risks could be mitigated by conditions other than electronic monitoring – Bail revoked.

Catchwords:

CRIMINAL LAW – sentence appeal – assault occasioning actual bodily harm in company – applicant already in custody for other offences – fixed term of imprisonment of 6 months imposed – whether proper discount for plea of guilty awarded – whether sentencing judge entitled to impose a fixed term sentence – whether sentence imposed was unreasonable and plainly unjust – appeal dismissed.

Catchwords:

Crime – Sentence – Choking – Recklessness as to rendering unconscious – Intimidation – Contravene ADVO

Catchwords:

Crime – Sentence – Armed robbery in company – Specially aggravated break enter and commit serious indictable offence

Catchwords:

CRIMINAL LAW – PROCEDURE – costs – application for costs certificate – Costs in Criminal Cases Act 1967 – ss 2, 3, 3A – principles – not reasonable to institute proceedings – inconsistent identification evidence – unreliable evidence of victim witnesses – alibi evidence not investigated – reasonable alibi evidence

Catchwords:

Crime – Sentence – Aggravated break and enter – Enter dwelling house with intent – Choke – Common Assault – Contravene ADVO

Catchwords:

CRIME — Appeals — Appeal against sentence — Where applicant convicted of Commonwealth offences relating to child abuse material — Whether sentencing judge has acted on a wrong principle with respect to the applicant’s mental health and its connection to the offending behaviour — De La Rosa principles

Catchwords:

CRIME — Sentence – Child sex offences — Child abuse material — Using carriage service to solicit, access, and transmit child abuse material CRIME – Sentence – Bestiality material – Possession or dissemination of bestiality material an offence under s 547E of Crimes Act 1900 (NSW)

Catchwords:

CRIME - SENTENCE - Aggravated break and enter a dwelling house and commit serious indictable offence - drive conveyance without consent of owner.

Catchwords:

CRIME – Appeals – Crown appeal against sentence – Commonwealth offences of importing and trafficking controlled drugs – State offence of supplying prohibited drugs – matters placed on schedules – whether aggregate Commonwealth sentence was manifestly inadequate – whether sentence for State offence was manifestly inadequate – whether effective total sentence was manifestly inadequate – whether the sentencing judge erred in making a factual finding as to hierarchy – residual discretion not exercised – re-sentence

Catchwords:

CRIME — appeals — appeal against sentence — allegation of error in assessment of offender’s subjective case — allegation of manifest excess — error in determination of indicative sentence — aggregate sentence not unreasonable or plainly unjust

Catchwords:

CRIME - Judge Alone trial - robbery whilst armed with a dangerous weapon - robbery whilst armed with an offensive weapon - deal with proceeds of crime.

Catchwords:

CRIMINAL LAW — work health and safety — offences — category 2 — case management —whether the Court should order preliminary disclosure — interests of justice — matter at more complex end of the spectrum — orders sought by prosecutor will avoid disruption — no unfairness to defendant — orders made

Catchwords:

CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of PCBU to other persons – risk of death or serious injury – injury of worker SENTENCING – objective seriousness – aggravating factors – mitigating factors – parity COSTS – vacation of hearing date – preparation of expert report

Catchwords:

CRIME — Sexual offences — Sexual touching CRIME — Violent offences — Assault occasioning actual bodily harm — In company — Detain for advantage SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions SENTENCING — Mitigating factors — Late plea of guilty — Considerable steps towards rehabilitation SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — General principles — Moral culpability — Objective seriousness SENTENCING — Sentencing procedure — Findings of fact — Extent of reduction for guilty plea SENTENCING — Subjective considerations on sentence — Drug addiction — Mental illness — Mental disorders — Significant progress on remand

Catchwords:

SENTENCING – Crown appeal against sentence – where offender deployed taser in course of responsibilities as police officer – where offender convicted of manslaughter – non-custodial sentence for manslaughter conviction – whether sentence manifestly inadequate – whether sentence imposed unreasonable or plainly unjust – where a number of grounds raised, on proper analysis, went only to weight given to role of general deterrence and assessment of objective seriousness – strong subjective circumstances – honest error of judgement – no ongoing risk posed to the community – no malice – extra-curial punishment – loss of employment – inability to continue to reside in local community – sentence lenient but not manifestly inadequate – where no relevant error in sentencing disclosed SENTENCING – Crown appeal against sentence – Court of Criminal Appeal’s discretion to intervene – s 5D(1) of the Criminal Appeal Act 1912 (NSW) – residual discretion – purposes of Crown appeals against sentence – unusual circumstances of offending – inapt vehicle for laying down general principles – inapt vehicle for ensuring consistency in sentencing – where offender’s health deteriorated since sentence – where offender already undertaken not insubstantial part of sentence imposed – residual discretion not exercised in favour of Crown

Catchwords:

CRIME – Appeals – Appeal against sentence – Assistance to authorities – Whether sentencing judge failed to take into account the applicant’s disclosure to the police immediately after the subject offence as evidence of assistance to authorities and as evidence of remorse – Discount under s 23 Crimes Sentencing Procedure Act 1999 (NSW) – Appeal allowed – Applicant resentenced

Catchwords:

CRIME – appeals – costs – interlocutory appeal – appeal against granting of costs certificate to defendant under s 2 of the Costs in Criminal Cases Act 1967 (NSW) – construction of “before the proceedings were instituted” in s 3(1)(a) of that Act – institution of proceedings referred to is limited to the institution of proceedings by filing of a court attendance notice or other permitted means of setting the criminal justice process in motion and does not include steps in proceedings such as committal for trial or commencement of trial STATUTORY INTERPRETATION – construction of “before the proceedings were instituted” in s 3(1)(a) of the Costs in Criminal Cases Act 1967 (NSW) – institution of proceedings referred to is limited to the institution of proceedings by filing of a court attendance notice or other permitted means of setting the criminal justice process in motion and does not include steps in proceedings such as committal for trial or commencement of trial

Catchwords:

CRIME – evidence – murder – application to release evidence given before the Crime Commission – Crime Commission Act 2012 (NSW) s 45(5) – where material relevant to murder trial – whether disclosure ‘may’ be desirable in the interests of justice – where witness is protected – where Crown given a summary of coerced evidence given before Crime Commission – procedural fairness in pre-trial disclosure

Catchwords:

Crime – Sentence – Indecent assault – Sexual intercourse without consent – Attempted sexual intercourse without consent – Act of indecency towards – Dissociative Identity Disorder

Catchwords:

BAIL – release application – detain for advantage – aggravated sexual assault – sexual assault in the alternative – show cause test – unacceptable risk test – Crown case very strong – unrelated charge of sexual touching – delay – recent birth of applicant’s child – residence away from where offences allegedly committed – no prior criminal record – cause shown – bail granted with conditions BAIL – evidence – where almost entirety of alleged offences captured by closed circuit television (CCTV) – where Crown proposed to tender and play CCTV – exposure to footage of serious crimes potentially damaging for persons engaged within court and victims – significant responsibility of courts to take care in determining necessity for viewing such footage – assessment of necessity dependent on nature of matter and issues footage said to address – bail application not a “mini trial” – issues dealt with based upon Crown Case Statement alone – tender of CCTV rejected

Catchwords:

CRIME – murder – special verdict – where defence and prosecution agree mental health impairment defence is available – a total of 30 knife stab wounds to neck, chest, arms and legs – schizoaffective disorder – psychiatric evidence – where forensic psychiatrists agree the accused suffers from a mental health impairment – whether the evidence satisfies that the defence is established – verdict of act proven but not criminally responsible entered

Catchwords:

CRIME — Drug offences — Commonwealth offences —Import border-controlled prohibited drug

Catchwords:

CRIME – Firearm offences – Drug offences

Catchwords:

CRIMINAL PROCEDURE — Evidence Act 1995 (NSW), s 137 — Where trial judge excluded recognition evidence — Where evidence had high probative value — Whether respondent would have to adduce unfairly prejudicial evidence to challenge recognition evidence — Whether directions to the jury would be sufficient to cure prejudice — Appeal allowed

Catchwords:

EVIDENCE – tendency evidence – exclusion of tendency evidence – where Crown served tendency notice shortly before trial – trial judge held that reasonable notice had been provided for the purposes of s 97(1)(a) of the Evidence Act – where late service caused no prejudice or unfairness to the accused – reasonable notice was provided CRIME – appeals – appeal against sentence – manifest excess – child sexual assault offences – where indicative sentences are said to be manifestly excessive – neither the indicative sentences nor the aggregate sentence manifestly excessive

Catchwords:

CRIME – sentence – murder – intent to kill – firearms offence – deceased was shot twice – plea of guilty – disputed facts – several aggravating features –reduced moral culpability – limited evidence of remorse – aggregate sentence

Catchwords:

CRIME – appeals – appeal against sentence – supply not less than the commercial quantity of methylamphetamine – deal with proceeds of crime – Form 1 offences – allow premises to be used as drug premises – supply methylenedioxymethamphetamine – advanced age – whether failure to take into account utilitarian discount – whether error in including “the presence of children” as aggravating factor – whether failure to include remorse and age as mitigating factors – whether sentence manifestly excessive – s 25D(2)(a) Crimes (Sentencing Procedure) Act not applied – s 25F(7) Crimes (Sentencing Procedure) Act not complied with – failure to take into account applicant’s remorse – leave to appeal granted – appeal allowed – sentence quashed – resentence

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

CRIME – Appeals – Appeal against conviction – Where appellant was convicted of murdering his girlfriend – Where tendency evidence as to the appellant’s tendency to act aggressively when motivated by jealousy – whether probative value substantially outweighed prejudicial effect CRIME – Appeals – Appeal against conviction – Where Crown case was wholly circumstantial – Whether dedicated inferences direction should have been given to the jury in addition to a circumstantial case direction CRIME – Appeals – Appeal against conviction – Where defence proposed former partner of deceased as alternative theory for death of deceased – Where trial judge did not permit defence to cross examine deceased’s former partner regarding alleged dishonest conduct CRIME – Appeals – Appeal against conviction – Where deceased’s cause of death was blunt force trauma – Whether trial judge erred in not leaving manslaughter by unlawful and dangerous act to the jury CRIME – Appeals – Appeal against conviction – Unreasonable verdict CRIME – Appeals – Appeal against sentence – Where Crown closing relied upon intention to cause grievous bodily harm – Whether sentencing judge erred in determining there was intention to kill CRIME – Appeals – Appeal against sentence – Whether sentencing judge erred in assessment of objective seriousness of offending CRIMES – Appeals – Appeal against sentence – Whether sentence manifestly excessive

Catchwords:

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Where the appellant was convicted of being an accessory after the fact to murder of the principal offender’s girlfriend – Where Crown case wholly circumstantial – Whether the jury was not adequately directed as to the elements of the offence – Whether the evidence admissible against the appellant did not support his conviction – Whether there was a substantial miscarriage of justice EVIDENCE – Admissions – Criminal Proceedings – Where the trial judge admitted the principal offender’s certificate of conviction in the appellant’s trial – Whether the certificate can be admitted under the Evidence Act 1995 (NSW) in the appellant’s trial EVIDENCE – Criminal Proceedings – Appeals – Failure to object – Where the principal offender’s interviews with police were admitted during the appellant’s trial – Where the trial judge admitted evidence of sexual interactions between the principal offender and another – Where the trial judge admitted text messages sent by the appellant as admissions – Where no objections were made at trial – Where leave required to challenge admissions –Whether the jury was misdirected as to the use of the statements made by the principal offender

Catchwords:

CRIME – Appeals – Appeal against conviction – Incompetence of counsel – Where applicant charged with single count of sexual intercourse without consent – Where sole issue in trial was whether the sexual intercourse was consensual – Where applicant’s trial counsel consented to the admission of inadmissible evidence contained within the body worn videos of police and ERISP – Unfair prejudice to the applicant through admission of evidence contained in body worn video established – Slight forensic advantage to the applicant outweighed by significant forensic disadvantage – Miscarriage of justice established – Conviction and sentence quashed

Catchwords:

CRIME – two accused charged with murder – pretrial objection to admission of audio recordings and transcripts – CCTV recording of conversations on 22 April 2017 – recordings of conversations under surveillance device warrants on 26 and 27 July 2018 – Crown relies upon audio recordings as admissions – objection to parts of conversations upon the basis that recording inaudible – whether transcripts of alleged words prepared by police officer admissible – inaudible recordings of conversations on 26 and 27 July 2018 not to be admitted – transcripts of those recordings not to be admitted – partly audible recording of conversation on 22 April 2017 to be admitted – transcript of alleged words in that recording not admitted

Catchwords:

CRIMINAL LAW – release application – show cause – extremely serious allegations – chilling – offence allegedly committed where warrant existed – flight to Western Australia – where applicant pregnant through period of remand – where applicant gave birth days before bail application – where applicant unable to access programmes – separation of mother and infant – Bugmy Bar Book – cause shown – whether risk “unacceptable” – family support – strict conditions – conditional bail granted

Catchwords:

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

Catchwords:

CRIME — Appeals — Appeal against conviction — Liberato direction — following altercation between two groups of men in two vehicles, one man was killed by a shotgun discharged by a man in the other vehicle — man who discharged shotgun gave evidence that shot was accidental — other aspects of his evidence implausible or incorrect — trial judge made reference in summing up to competing evidence — joint application for Liberato direction refused by trial judge — whether error in failing to give direction — whether proviso applicable

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 – no extra-curial punishment COSTS – prosecution costs OTHER – sunken yacht salvage – crane lift failed – mast struck worker on head – failure of director to exercise due diligence – director did not put appropriate processes in place – director provided no appropriate resources – failure to verify PPE was in use

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 – sunken yacht salvage – crane lift failed – mast struck worker on head – failure to conduct an adequate risk assessment – failure to develop and enforce a Safe Work Method statement – failure to prohibit workers from exceeding safe working limits of the crane – failure to prohibit workers from using inadequate load lifting points – failure to provide adequate training, instruction and supervision – PPE not in use

Catchwords:

Crime – Sentence – Choking – Aggravated robbery – Contravene Apprehended Domestic Violence Order

Catchwords:

CRIME – sentencing – driving at a dangerous speed occasioning death – victim impact statements – whether appropriate to treat harm to deceased’s family members as an aspect of harm to the community – significance of offender’s asserted childhood sexual abuse – significance of traits of PTSD after offending – offender’s injuries from collision as extra-curial punishment

Catchwords:

CRIMINAL LAW – Application for further and better particulars – Application to quash indictment – Application for permanent stay of proceedings – Negligent manslaughter -Dangerous driving causing death – Drive manner dangerous – Accessory before the fact to the offence of dangerous driving causing death - Aid and abet- failure to take reasonable care – Criminal negligence – Recklessness – Negligent loading – Securing load

Catchwords:

CRIME — Sentence – Child sex offences — Child abuse material — Using carriage service to solicit, access, and transmit child abuse material CRIME – Sentence – Bestiality material – Possession or dissemination of bestiality material an offence under s 547E of Crimes Act 1900 (NSW)

Catchwords:

EVIDENCE – admissibility of disputed clips within a compilation of audio-visual footage from various sources – probative value of indecipherable utterances of the accused – where the clip was admissible as res gestae or evidence of the accused’s state of mind

Catchwords:

CRIME — child sex offences — child abuse material — using carriage service for child pornography material or child abuse material — possess bestiality material SENTENCING — federal offenders — sentence by State court for offence against Commonwealth law SENTENCING — penalties — recognisance

Catchwords:

CRIME – Proper construction of s 110(c) LEPRA and s 139(2) of Evidence Act – Meaning of “the person has been informed that they are free to leave” for the purpose of s 110(c) of LEPRA and “an investigating officer who does not have the power to arrest” for the purpose of s 139(2) of the Evidence Act – s 99 LEPRA – s 138 Evidence Act – Evidence obtained in contravention of improprieties – Admissibility – Balancing exercise

Catchwords:

CRIME – Application for costs following not guilty verdict

Catchwords:

CRIME – SENTENCE – murder – guilty verdict after Judge alone trial – where the deceased was assaulted by the offender and died from head injuries – where the deceased suffered 71 injuries to his body – where motive for assault was to elicit information – mid range objective seriousness – moral culpability – criminal history – facilitation of administration of justice – aggregate sentence

Catchwords:

EVIDENCE – admissibility of evidence – ruling on summary of DNA table – s 50 Evidence Act not satisfied – where the evidence can be given by reference to expert certificate and/or oral evidence – where crime scene evidence already given sufficiently establishes the basis for various matters contained in the expert's report.

Catchwords:

CRIME: Judge alone trial - accessory before the fact to attempted robbery in company

Catchwords:

EVIDENCE – expert evidence – application to exclude expert evidence – s 79 Evidence Act – opinion within area of expert’s specialised knowledge of bloodstain pattern analysis – where the expert conducted technical review of secondary materials generated in the investigation – HELD expert formed own independent opinion

Catchwords:

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

Catchwords:

EVIDENCE – admissibility – photographic evidence admissible for limited purpose of illustrating witness evidence – where photographs have been digitally enhanced and zoomed in – where photographs taken some 19 months after the event – jury direction regarding limited purpose of evidence

Catchwords:

EVIDENCE – fairness to a witness – directions to jury – where the matter of a witness having seen video evidence in the trial was elicited in cross-examination – where re-examination as to that matter was put to the witness – where direction made to jury regarding the practice of legal representatives’ conferring with witnesses – HELD no further jury direction required EVIDENCE – fairness to a witness – directions to jury – where the witness cross-examined on the state of mind of another person – questions asked outside rulings on cross-examination – objection to questions upheld – where direction made to jury to disregard exchange between counsel and witness – HELD no further jury direction to be made as proposed

Catchwords:

EVIDENCE – Crown application to cross-examine unfavourable witness – s 38(3) Evidence Act – where the Crown raised the proposition the witness has tailored evidence and/or not told the whole truth – where the witness has not had the opportunity to respond to the proposition

Catchwords:

CRIME – procedural ruling – non-publication order -

Catchwords:

EVIDENCE — witness evidence — warnings — unreliable evidence — whether s 165(1)(d) warning required — whether witness might reasonably be supposed to have been criminally concerned in events giving rise to the proceedings — whether “events giving rise to the proceedings” includes criminal activity that makes up the background to the alleged crime

Catchwords:

CRIME – SENTENCE – Found guilty by jury – Attempt to possess border controlled drug – Marketable quantity of heroin – Package containing drug intercepted and substituted – Accepted by offender from UCO posing as delivery man – Whether offender knew drugs in delivery – Inferences to be drawn from electronic evidence (mobile phones and computer tower) – Prior conviction in New Zealand – Claimed need to care for elderly parents – Whether further attempts at education (university degree) realistic.

Catchwords:

CRIME – SENTENCE – Import commercial quantity of border controlled drug – 4.618kg pure methamphetamine – Foreign national – Offender elected not to give evidence to explain discrepancies in subjective evidence – Consideration of effect of sentence on family and dependents – Good prospects of rehabilitation.

Catchwords:

CRIME – Appeal from Local Court – Charges under s 58 Crimes Act 1900 – Whether first stop unlawful under LEPRA – Whether evidence flowing from stop should be excluded if stop was unlawful – Whether first search classified as strip search.

Catchwords:

CRIMINAL LAW — Work health and safety — Offences — Category 2 — Sentencing — Gate overrunning its supports and falling — No adequate end stop — Faulty design and installation of gate — Low to mid-range of objective seriousness

Catchwords:

CRIMINAL LAW – interpretation – fraud and dishonesty offences – offence of fraudulent embezzlement by clerk of servant – whether ‘fraudulent’ is equated to the test for dishonesty in s 4B of the Crimes Act 1900 (NSW) – significance of earlier High Court authority on offences concerning fraudulent conduct which do not have dishonesty as an essential element of the offence

Catchwords:

CRIMINAL LAW – Murder – trial by judge alone – verdict – where deceased was assaulted by accused and died from head injuries – where accused denies that he intended to inflict grievous bodily harm on the deceased – where accused admits he is guilty of manslaughter but not murder – assault witnessed by two persons – crime scene evidence – delayed post-mortem examination – where deceased suffered 71 injuries to his body – where motive for assault was to elicit information – relevance of acts of gratuitous cruelty to ultimate issue – whether reasonable possibility that the accused did not intend to inflict grievous bodily harm – accused guilty of murder

Catchwords:

CRIME — bail — variation application — detention application — terrorist offences — “exceptional circumstances” — Bail Act 2013 (NSW) s 30A — private electronic monitoring — variation granted CRIME — bail — release application — child abuse material offences — bail granted

Catchwords:

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

Catchwords:

APPEALS — appeal against interlocutory judgment — 7 counts on indictment — counts 1-4 (sexual offences against the complainant) relate to one accused — count 5 (offence of violence against the complainant) relates to both accused — counts 6-7 (one sexual offence and one offence of violence) relate to the other accused — refusal by primary judge to sever indictment — whether House v The King error — Criminal Appeal Act 1912 (NSW), s 5F APPEALS — standard of appellate review for interlocutory decision to sever indictment — House v King error or correctness standard — current authority is that House v King error is applicable standard but unnecessary to decide EVIDENCE — cross-admissibility of evidence — mischaracterisation of evidence as admissible for a non-tendency purpose — Evidence Act 1995 (NSW), ss 97, 101, 135, 137 CRIMINAL PROCEDURE — joinder of counts — severance of counts on indictment — whether primary judge made an error in exercise of discretion — whether joinder results in positive injustice to accused

Catchwords:

CRIME — murder — plea of not guilty — elements of murder — causation — circumstantial evidence — inferences — where medical mechanism of death is not straightforward — where experts disagree on cause of death — whether assault by accused caused death — cause of death versus mechanism of death — methadone overdose — commotio medullaris — positional asphyxiation — axonal injury — domestic violence — requisite intention not found — verdict of not guilty to murder but guilty of manslaughter CRIME — manslaughter — alternative to murder — unlawful killing — plea of not guilty — elements of manslaughter — verdict of guilty CRIME — violent offences — assault occasioning actual bodily harm — guilty plea CRIMINAL PROCEDURE — trial — judge alone — Criminal Procedure Act 1986 (NSW) s 133

Catchwords:

CRIME – Sentence – basis of liability “constructive murder” – attempted armed robbery as the foundational offence – discharge of firearm causing fatal wound – multiple disputes of fact – admissibility of voice recognition evidence – ad hoc expertise – repeated listening to telephone intercept product and CCTV footage – confirmation bias – whether reliability a relevant factor to admissibility under s 79 – significantly lesser role than the co-accused –background of deprivation and disadvantage – youth – mental health conditions – interrelatedness of deprived background, mental health conditions and substance abuse – reduced moral culpability – finding of special circumstances

Catchwords:

CRIME – SENTENCE – PLEAS OF GUILTY Commonwealth Offences: Furnish authority with document containing false or misleading statements – Mid-range objective seriousness. Obtain travel documents dishonestly – Low-range objective seriousness. Conceal had been known by any other name and had been convicted of offence – above mid-range objective seriousness. Minimal criminal history – Historical crimes – Low risk of reoffending – High prospects of rehabilitation – Remorse. Effect of sentence on child in kindergarten – Offender sole parent.

Catchwords:

CRIME – appeals – appeal against conviction – historical sexual offending – six complainants – where offender was a teacher and swimming coach – admission of evidence at trial – whether warrants authorising the recording of the conversations containing admissions were defective – whether there is a miscarriage of justice occasioned by the Crown not calling witnesses – whether emotional outbursts and unresponsive answers caused a substantial miscarriage of justice – whether documents relied on by Applicant amount to “fresh evidence” – whether the jury verdict was unreasonable – special advantage enjoyed by the jury of seeing and hearing witnesses – where there are discrepancies in accounts between or among witnesses CRIME – appeals – appeal against conviction – forensic disadvantage – whether delay in prosecution caused offender to suffer an irreparable forensic disadvantage – whether offender received a fair trial – application for permanent stay of proceedings at trial – where direction was issued by trial judge about delay – competing considerations in exercise of judicial discretion – public interest – presumptive prejudice caused by delay – where forensic disadvantage did not significantly or adversely affect conduct of the defence CRIME – appeals – appeal against sentence – whether the COVID-19 pandemic was a matter which the sentencing judge was required to deal with in sentencing – where offender was sentenced before commencement of the pandemic

Catchwords:

CRIME – appeals – appeal and application for leave to appeal – notice of appeal filed out of time – where a proposed ground of appeal raises a constitutional issue so as to attract the operation of s 78B of the Judiciary Act 1903 (Cth) – prior to leave being granted to make appeal or application for leave to appeal no “cause pending” – whether appropriate to deal with application for extension of time for appeal before hearing the substantive appeal where s 78B notices would be required – appropriate to hear application for leave to make the appeal out of time before hearing the appeal CRIME – appeals – appeal and application for leave to appeal – notice of appeal filed out of time – release application under s 49 of the Bail Act 2013 (NSW) – proposed conviction and sentence appeal – no “proceedings…pending” before the Court – no jurisdiction to hear application before leave to appeal out of time granted – appropriate to hear application for leave to make the appeal out of time before hearing the release application CRIME – appeals – appeal and application for leave to appeal – notice of appeal filed out of time – where there is satisfactory explanation for delay – where proposed grounds of appeal sufficiently arguable – no relevant prejudice to proposed respondent if leave to appeal granted – where leave to appeal is in the interests of justice – application to make appeal and leave for appeal out of time granted

Catchwords:

CRIME – appeals and reviews – appeal against refusal to annul convictions entered in Local Court – accused person is deliberately disruptive in proceeding – the judicial officer determined that he was not ‘present’ and proceeded to hear the matter in his absence CRIME – interpretation – whether accused person ‘present’ – Criminal Procedure Act 1986, s 196

Catchwords:

CRIME – Sentence – murder – violent assault – offence committed in the home of the deceased – plea of guilty at the first opportunity – childhood deprivation and disadvantage – childhood exposure to extensive drug use in extended family – reduction in moral culpability – genuine remorse – difficulty in predicting prospects of rehabilitation and likelihood of reoffending – progress in custody – special circumstances

Catchwords:

CRIME – Notice of Motion – application to remit the matter to the Local Court for further committal hearing – where technological difficulties with the audio visual link hampered the proceedings – whether the magistrate ascertained whether or not the accused pleads guilty to the offence – whether the magistrate accepted the plea of guilty in committal proceedings for the offence – application dismissed

Catchwords:

EVIDENCE – admissibility – hearsay evidence – exceptions – criminal proceedings if maker not available – s 65 Evidence Act 1995 – where witness has been issued a subpoena to give evidence – whether the witness is mentally or physically unable to give the evidence – where the witness does not have a recognised psychiatric illness or psychiatric history – where it is reasonably practicable for witness to overcome manifestations of trait anxiety

Catchwords:

CRIMINAL PROCEDURE – application to discharge the jury – where there is disputed admission of enhanced photoshopped crime scene photographs – where meeting the additional evidence may require independent expert opinion – whether there is a real risk the jury will form an unreasonable view that the defence seek to challenge the crime scene investigation unfairly – HELD Crown may meet defence challenges during the presentation of the Crown case – application refused

Catchwords:

EVIDENCE – application made under s 18 Evidence Act 1995 (NSW) – defacto granddaughter of accused objects to give evidence – where witness is a child per Pt 2 Dictionary to Evidence Act – where witness is concerned about familial conflict – where witness was present throughout the whole of the central events – where the desirability of the evidence outweighs risk of harm – HELD application refused

Catchwords:

CRIMINAL PROCEDURE – application to discharge the jury – where jury cautioned pursuant to s 165 Evidence Act 1995 (NSW) – where the witness was cross-examined in relation to crime scene photographs taken by other officers – where the witness had no direct knowledge of circumstances related to the photographs – hearsay evidence – whether the challenge to the hearsay evidence was the subject of agreement between counsel

Catchwords:

CRIMINAL LAW – Evidence – Cross-examination of witness – credibility rule – where counsel for the accused cross-examined witness as to credit – where the witness has a criminal history of traffic offences – s 103 Evidence Act exception satisfied – cross-examination question objected to is allowed

Catchwords:

CRIMINAL LAW – procedure – admissibility of ISRAPS evidence of crime scene and blood staining – where blood stain experts will give evidence – where a proper direction can be given to the jury

Catchwords:

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

Catchwords:

EVIDENCE – admissibility of crime scene photograph – misleading or prejudicial evidence – where photograph depicts significant amount of bloodstaining – where bloodstaining has been diluted by rain – whether evidence is relevant to a central fact in dispute

Catchwords:

EVIDENCE – admissibility of evidence – where the parties seek to tender a selection of enhanced still photographs of CCTV and dashboard camera footage central to the fatal incident – where the footage depicts a degree of violence and use of makeshift weapons by the accused and the deceased – no forensic purpose found – where the stills present a skewed view of the circumstances – where the jury have access to the entirety of the footage

Catchwords:

CRIMINAL PROCEDURE – pre-trial hearing – ruling on admissibility of late served additional material served – no identified forensic disadvantage in the conduct of the trial arising EVIDENCE – s 146 Criminal Procedure Act – application for exclusion for non-compliance with pre-trial disclosure requirements – where late served evidence included is in Amended Crown Case Statement – non-compliance waived

Catchwords:

CRIMINAL PROCEDURE – practice and procedure – trial – change of venue – trial aborted on second day – limited availability of court space in Wollongong in 2025 – accused in custody since December 2022 – interests of justice – “expedient” in the interests of justice to fix the trial to commence in Sydney in May 2025

Catchwords:

EVIDENCE – credibility evidence – accused – ERISP evidence denying the use of a baseball bat – where accused admits to using the baseball bat in the same interview – whether prior inconsistent statement – probative value of evidence – not unfairly prejudicial – evidence allowed

Catchwords:

EVIDENCE – documentary evidence – dash-cam footage – where the Crown superimposed red squares on the accused’s and deceased’s hands to draw the jury’s attention to contents or otherwise – permissible for the purpose of assisting the jury

Catchwords:

CRIMINAL PROCEDURE – trial – jury – application to discharge jury – discharge of whole jury – Crown’s service of lay witness and expert statements on the second day of trial – where parties have already opened their cases – where the new materials are at odds with the accused’s case theory based on evidence previously served – interests of justice to discharge the jury and adjourn the trial

Catchwords:

EVIDENCE – tendency evidence – tendency rule – murder – self-defence – accused’s reliance on the deceased’s tendency evidence – tendency to opportunistically deploy as a weapon any object readily available – tendency insufficient to provide significant probative value as to the deceased’s tendency to arm himself with a knife under s 97(1)(b)

Catchwords:

EVIDENCE – tendency evidence – tendency rule – murder – defence of self-defence – accused’s reliance on tendency evidence of the deceased – whether the tendency evidence has “significant probative value” under s 97(1)

Catchwords:

CRIME – Appeal – unreasonable verdict – applicant convicted on two counts of detaining and occasioning actual bodily harm – where two complainants – when second complainant was herself involved in detention and assault of first complainant – whether any inconsistency between evidence of complainants incapable of resolution by a properly instructed jury – jury’s advantage when both complainants cross-examined at length – whether any material inconsistency between evidence of complainants – whether verdicts in respect of both complaints were open to the jury.

Catchwords:

CRIME — complicity — accessory before the fact — joint indictment — two persons to stand trial on one count of attempt to possess unlawfully imported border controlled drug — Crown alleged both accused persons were liable as principals — alternative Crown case that one accused procured the conduct of the other in attempting collect package at post office and that her conduct was attributed to the first accused as a proxy under s 11.3 of Commonwealth Criminal Code — whether s 11.3 applied to proxy who was charged as a principal — whether Crown could advance alternative cases — whether alternative case required amendment to indictment or further particulars — whether Commonwealth Director of Public Prosecutions v Brady [2016] VSC 334; 346 FLR 1 should be followed — whether s 11.3 confined to proxies who lack sufficient knowledge

Catchwords:

CRIME – aggravated break and enter and specially aggravated break and enter. CRIME - Judge Alone hearing - verdicts “act proven but not criminally responsible” - consequential orders MENTAL HEALTH - Criminal proceedings — Special hearing – defence of cognitive impairment established – orders finding conditional release appropriate in light of current medical evidence – referral to the Mental Health Review Tribunal.

Catchwords:

CRIME — Citizenship and migration offence – Furnishing false and misleading information to a migration official in connection with entry into Australia and application for a visa – Arrival on tourist visa with intention of staying – False personal details provided for both protection visa and citizenship application – Failure to declare relevant matters for both protection visa and citizenship application – Previous denial of protection visa SENTENCING — Penalties – Recognisance SENTENCING — Unexplained delay – Stale offences – Offences committed 10-14 years previously SENTENCING — Subjective considerations on sentence – Childhood hardship – Poverty – Abuse – Arrest and abuse in China for violation of One Child Policy

Catchwords:

PROCEDURAL – Motion to dismiss because the proceedings were brought out of time – past alleged offences were observed outside limitation period – new, distinct and different alleged offences were observed within limitation period – defendants are not immunised from risks and breaches of duty because they are guilty of an earlier alleged offence – object of the WHS Act would be defeated – present proceedings brought within limitation period

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty COSTS – prosecution costs OTHER – fall through void – failure to undertake adequate risk assessment – failure to enforce defendant’s control to use scissor lift – inadequate information, training and instruction to workers about hazards and controls – failure to provide adequate supervision to ensure compliance with SWMS – failure to prohibit work near voids and penetrations through which a person could fall

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 - parity COSTS – prosecution costs OTHER – fall from height – roofing work – worker fell through roof soffit – no fall prevention system – worker had no qualification or experience working at height – inadequate training, instruction and supervision

Catchwords:

CRIME – bail – release application – further release application – change of circumstances – where trial date was vacated – conspiracy to import a commercial quantity of a border controlled drug – AN0M devices – admissibility of AN0M evidence – strength of prosecution case – very strong Crown case – where substantial delay – lengthy period of time in custody – stringent bail conditions – where substantial security offered – combination of circumstances – cause shown – unacceptable risk test – bail concerns – where risk of flight – strong evidence of association with international criminal syndicates – where applicant committed present offence whilst on parole – non-compliance with parole – unacceptable risks of failure to appear and committing further serious offence – bail refused

Catchwords:

CRIMINAL LAW – murder – application by accused for trial by judge alone – pre-trial publicity – whether in the interests of justice to make order for judge alone trial – application refused

Catchwords:

CRIMINAL LAW – appeals and reviews – appeal against conviction – sexual offences – carrying out sexual act without consent – domestic violence offences – stalking or intimidation offence – whether the accused knew that the complainant was likely to suffer physical or mental harm

Catchwords:

CRIMINAL LAW – Judgement – Costs application – complainant’s evidence contradicted by evidence of others -

Catchwords:

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

Catchwords:

ENVIRONMENT AND PLANNING – Consent – Construction – Whether certain conditions of development consent required compliance prior to undertaking work comprising part of the approved development – Whether work related to the approved development prevented its lapse – s 95 of the Environmental Planning and Assessment Act 1979 (NSW) — Whether work could be said to have physically commenced – Conditions required compliance prior to the work undertaken – Modification, revocation or review — s 4.55(3) of the Environmental Planning and Assessment Act 1979 (NSW) – Forming state of satisfaction that development was substantially the same — Whether decision to approve modification was manifestly unreasonable – Discretion

Catchwords:

CRIMINAL LAW - Evidence - admissions made by accused to police - whether admissible - not tape recorded or referred to in subsequent video recorded interview - accused not a suspect at the time - whether he could reasonably have been suspected - lies - not relied on as showing consciousness of guilt - whether Zoneff direction necessary or desirable - Rule 4 - proviso - whether miscarriage of justice - CRIMINAL LAW - Sentencing - 2 murders and 3 other offences involving attempt to murder - life sentences for murder - whether excessive - whether other offences relevant in considering sentences for murders

Catchwords:

SENTENCE - asserted inadequacy of a number of non-custodial sentences in relation to objective seriousness of the offences

Catchwords:

CRIMINAL PROCEDURE – Discharge of jury – Application for Suitors’ Fund Certificate – Where the NSW Police disclosed a substantial volume of documents on the sixteenth day of the trial – Trial adjourned through no fault of accused or his lawyers – Certificate granted

Catchwords:

COSTS — Costs assessment — Determination — Self-represented litigant

Catchwords:

CRIMINAL PROCEDURE – Trial – Adjournment – Vacating of hearing date – Where NSW Police first disclosed to the DPP and the accused, 37.3 gigabytes of data by way of a Cellebrite download two weeks before trial - A misleading affidavit erroneously identifying that all documents had been disclosed – Where counsel failed to allocate sufficient time for trial preparation – Where the DPP continued to serve material which necessitated consideration and contextualisation before agreements on proposed edits could occur

Catchwords:

CRIMINAL PROCEDURE – Trial – Jury – Discharge of whole jury - Where the NSW Police disclosed a substantial volume of documents on the sixteenth day of the trial – Whether late disclosure of documents has prejudiced the accused’s right to a fair trial

Catchwords:

CRIME – appeals – crown appeal – offences of specially aggravated break and enter and commit the serious indictable offence of intimidation in company and armed with a dangerous weapon and specially aggravated kidnapping with intent to hold for ransom in company and occasioning actual bodily harm – whether the offender’s subjective case warranted the sentence – where the sentence was clearly lenient but was not an affront to the administration of justice and did not risk undermining public confidence in the criminal justice system – no manifest inadequacy

Catchwords:

CRIME – appeals – crown appeal – offences of specially aggravated break and enter and commit the serious indictable offence of intimidation in company and armed with a dangerous weapon and specially aggravated kidnapping with intent to hold for ransom in company and occasioning actual bodily harm – whether the offender’s subjective case warranted the sentence – where the sentence was clearly lenient but was not an affront to the administration of justice and did not risk undermining public confidence in the criminal justice system – no manifest inadequacy CRIME – appeals – appeal against sentence – where applicant diagnosed with PTSD – whether sentencing judge failed to engage with contention that there was a link between diagnosis and the offending – where primary judge rejected this contention SENTENCING – appeal against sentence – co-offenders – where co-offenders received the same sentence – where there was comparable criminality between co-offenders – no basis for interference with sentences

Catchwords:

PRACTICE AND PROCEDURE – application for leave to appeal – interlocutory decision – decision to grant freezing orders – whether primary judge erred in determining that the Court had jurisdiction to grant freezing orders against the appellant – whether ‘ordinary course of business’ transactions can ground the requisite danger for the purpose of Uniform Civil Procedure Rules 2011 r 25.14 – whether application raised a point of general principle

Catchwords:

CRIME — Drug offences — Supply prohibited drug CRIME — Driving offences — Failure to stop — Police pursuit — Drive while licenced cancelled SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offences — Moral culpability — Objective seriousness SENTENCING — Subjective considerations on sentence — Drug addiction — Mental illness — Borderline Personality Disorder — Childhood trauma

Catchwords:

CRIME – appeal and review – application to Supreme Court under Part 7 – Crimes (Appeal and Review) Act 2001 (NSW) – conspiracy to murder – where co-conspirator found not guilty of conspiracy and acquitted – whether doubt or question as to applicant’s guilt – whether verdict unsustainable as a matter of law – principle of incontrovertibility of an acquittal – broader claim of inconsistency – impact of “fresh” evidence led at co-conspirator’s trial – responses of each accused to Crown case of conspiracy substantially different – conviction of applicant consistent with acquittal of co-conspirator – abundant evidence at applicant’s trial to support guilt – discretion under s 79(3) – application refused

Catchwords:

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

Catchwords:

CRIME – Sentence – Judge alone trial – not guilty of murder but guilty of manslaughter – fatal stab wound to the chest – cousins – where the offender and the deceased were slapboxing and “mucking around” minutes before the fatal stabbing – where the offender’s anger escalated quickly “zero from a hundred” – no planning – youth – sexual assault as a child – Bugmy Bar Book “Childhood Sexual Abuse” – mental health condition of PTSD – reduced moral culpability – guarded prospects of rehabilitation – little acceptance of responsibility – offer to plead guilty to manslaughter rejected

Catchwords:

CRIME – Appeal and review – Appeal from Local Court to District Court – By person convicted against conviction – Conviction by Local Court Magistrate – From finding of fact – Credibility of witnesses – Failure to give appropriate directions of law – Weight to be given to medical opinions tendered by the Crown without objection – Onus of proof – Undesirability of rhetorical questions as to why a witness may give false evidence

Catchwords:

CRIME – Drug offences – Manufacture prohibited drug – Large commercial quantity – Alleged non-exculpatory duress – Weight to be given to untested assertions by offender on contested matters of fact to third parties and by letter to the Court – Objective seriousness of offender coming to Australia for sole purpose of manufacturing large quantity of methamphetamine – Subjective case – Deprived childhood in Iran – Bugmy principles – Payment of gambling debt motivated offending – Opinion of psychologist as to clinical diagnosis of C-PTSD – Drug and gambling addictions

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – injury to worker SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine - penalty SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities

Catchwords:

CRIME — Child sex offences — Child abuse material — Possession CRIME — Bestiality material — Possession SENTENCING — Mitigating factors — Good character — No record of previous convictions — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offences — Objective seriousness SENTENCING — Sentencing procedure — Instinctive synthesis — Advanced age — Health issues — Time in custody onerous

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict – whether jury’s verdicts in relation to specific counts on the indictment were unreasonable and inconsistent – whether unreasonableness of verdicts for those specific counts renders the verdict for a separate count unreasonable

Catchwords:

CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employer – risk of death or serious injury WORK HEALTH AND SAFETY

Catchwords:

CRIMINAL LAW – Murder – application for judge alone trial – retrial – where the matter has a protracted and unusual history – where the Crown case relies on constructive murder by way of joint criminal enterprise – whether it is in the interests of justice to grant the order sought – whether the complexity of the issues are such that it is in the interests of justice that the order be granted – where there is a strong interest in efficiencies and finality in the trial – whether a jury is better placed to assess credibility – application for a judge alone trial granted

Catchwords:

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

Catchwords:

CRIMINAL LAW – sentencing – reckless infliction of grievous bodily harm – appeal against sentence – uncontested evidence of frontal lobe damage, cognitive impairment and post-traumatic stress disorder and/or depressive illness – submissions made on relevance to moral culpability and general deterrence – robust exchange but submissions not withdrawn – where sentencing judge found on balance that mental health issues played some role in commission of the offence – absence of engagement with relevant principles conspicuous – appeal upheld and offender re-sentenced

Catchwords:

SENTENCING – appeal against sentence – co-offenders – parity principle - disparity between sentences – where the applicant pleaded guilty to aiding and abetting the importation of a commercial quantity of a border controlled precursor – where a co-offender was sentenced by a different judge in respect of a related offence of attempting to import a commercial quantity of border controlled precursor – whether there was error in the sentencing judge’s sentence having regard to parity principles – where his Honour made appropriate findings about the applicant's offending and circumstances – where those findings were compared to the offending and circumstances of the co-offender – where the imposed undiscounted starting point took into account the differences between the applicant and the co-offender – where the applicant received a lower sentence than the co-offender – no error in his Honour’s sentence having regard to parity principles

Catchwords:

CRIME – SENTENCING – five counts of embezzlement by clerk – offender was manager of a community bowling club and embezzled funds over a period of five years through fake invoices and unsupported expenses – total amount embezzled was $1,788,805 – offender made admissions when confronted by club board – offender suffered from gambling addiction – offender disputed total amount embezzled on sentence – late guilty plea – assessment of objective seriousness of fraud-like offences – breach of trust – strong prospects of rehabilitation – offender subsequently employed as counsellor with Lifeline and assisted others with gambling addiction – remorse and contrition – finding of special circumstances – need for general and specific deterrence in cases of white collar crime – sentence of full-time imprisonment warranted

Catchwords:

SENTENCING - aggravated dangerous driving causing death – application of Whyte guideline - fulltime custody – history of alcohol abuse – no remorse or insight. Tension between a reduction of moral culpability for cognitive impairment and mental health issues and s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 for intoxication.

Catchwords:

CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation — Assault occasioning actual bodily harm knowing that people were there SENTENCING — Aggravating factors — Home of victim — In company — Planned or organised criminal activity SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Relevant factors on sentence — Co-offenders — Joint criminal enterprise — Care not to impose a crushing sentence — Deterrence — Form 1 offence — Moral culpability — Objective seriousness — Proportionality SENTENCING — Subjective considerations on sentence — Drug addiction — Mental disorder — Childhood trauma

Catchwords:

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

Catchwords:

CRIME – sentencing – specially aggravated break and enter – larceny – two co-offenders and third unidentified co-offender – joint criminal enterprise – youth – mental health and disability – deprived background

Catchwords:

Robbery; schizophrenia

Catchwords:

CRIME – appeals – appeal against sentence – dishonestly obtain financial advantage by deception – contravention of section 192E(1)(b) Crimes Act 1900 (NSW) – whether breach of De Simoni principle – where advantage particularised was the obtaining of loan facilities – where sentencing judge assessed objective seriousness by reference to quantum and period of drawdowns of facilities – whether objective seriousness assessed by reference to criminality comprising a more serious offence CRIME – appeals – appeal against sentence – whether sentencing judge failed to take into account “risk management” – whether sentencing judge failed to take into account absence of loss – where applicant sought to rely on loan facilities as security for the amount drawn down CRIME – appeals – appeal against sentence –whether sentence manifestly excessive

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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