Public Defenders

Short Notes 2004

 

 

1

RIVKIN, Rene Walter - CCA, 5.2.2004 - 59 NSWLR 284 (reported in part)
Mason P, Wood CJ at CL, Sully J
Citation: R v Rivkin [2004] NSWCCA 7
Conviction and sentence appeal.
Insider trading.
9m PD + fine of $30,000.
Appellant was found guilty of contravening s.1002G(2) Corporations Act 2001. Appellant traded in Qantas shares after being informed by the Executive Chairman of Impulse Airlines that his company was awaiting ACCC approval for the merger of Impulse with Qantas. The Executive Chairman of Impulse said the reason he told the appellant was that he was interested in buying the appellant's residence in Rose Bay but would have to make a conditional offer while waiting for the merger to go through. He gave evidence that he told the appellant that because the appellant had been told this information, the appellant would not be able to trade in Qantas shares.
Whether miscarriage of justice - actual or ostensible bias of trial judge - former professional association - whether 'personal animosity'involved in sentence - whether trial judge erred in not directing verdict of acquittal - meaning of 'information'- admissibility of evidence - prejudicial/probative value - medical evidence as to witness' capacity to give reliable evidence - whether summing up unfair - judicial comment/warning - whether verdict unreasonable - expert evidence - mental element of offence - fresh evidence of undiagnosed meningioma - relevance on appeal to issues of fitness to stand trial.
Appeal dismissed.
2

O'BRIEN, Donald George - CCA, 19.12.2003
Grove J, Smart & Davidson AJ
Citation: R v O'Brien [2003] NSWCCA 400
Application for leave to withdraw pleas of guilty.
31 x fraud offences (4 counts contrary to s.29D Crimes Act 1914 (Cth); 3 counts contrary to s.178A Crimes Act 1900; 24 counts contrary to s.178BA Crimes Act 1900).
Total of 3*y with NPP of 2y 8m
All offences arose from the one criminal enterprise whereby appellant falsely represented himself as a registered customs agent to 4 companies & lodged Nature 10 documents to the Customs Department which fraudulently represented the nature of the imported cargo so that a Customs duty exemption was claimed. Appellant gave each company a Nature 10 form showing the correct duty payable. Payments were made by the companies to the appellant or Customs. The payments made to appellant were pocketed by him & the cheques made payable to Customs were fraudulently endorsed to an account in appellant's brother's name. The first 4 counts on the indictment represented a total of 93 such fraudulent acts. In all, $479,093 was obtained by the appellant over a 3 year period. Appellant initially pleaded not guilty to all charges & the trial proceeded to a point where the only material outstanding in the Crown case was evidence of 4 witnesses, one of whom was appellant's brother. Counsel for appellant then informed the trial judge that he had instructions to enter pleas. Appellant was re-arraigned & pleaded guilty to all counts. At the sentence hearing, the judge sought confirmation from appellant as to the his understanding of the effect of pleading guilty & appellant said he understood completely. There was no suggestion that the pleas were other than voluntary.
Whether pleas entered under undue pressure - whether sentences excessive.
Leave to withdraw pleas of guilty refused.
3

TRAN, Donny Minh - CCA, 5.2.2004
James & Buddin JJ
Citation: R v Tran [2004] NSWCCA 6
Sentence appeal.
1 x robbery with corporal violence; 1 x attempted robbery with corporal violence; + Form 1 matters (robbery in company, attempt robbery in company).
Total sentence of 6y with NPP of 4y.
The robbery with corporal violence & the Form 1 matters were committed by applicant in the company of 3 juveniles. The attempt rob with corporal violence was committed by applicant acting alone. The victims of all offences were aged 14 or 15 at the time. Each of the victims was injured, although not seriously.
Aged just under 20 at time of offences - guilty pleas - born in Australia of Vietnamese parents - strict upbringing by father which included infliction of violence - heroin dependency - contrition - assistance to authorities - special circumstances - totality.
Whether sentences manifestly excessive - whether insufficient weight given to subjective features.
Appeal allowed only in respect of count 1. New total sentence of 5*y with NPP of 3*y.
4

FITZGERALD, Brett James - CCA, 6.2.2004 - 59 NSWLR 493; 144 ACrimR 316
Sully & Barr JJ, Newman AJ
Citation: R v Fitzgerald [2004] NSWCCA 5
Crown appeal.
1 x indecent assault; 6 x sexual intercourse (all offences committed upon a child).
6y 9m with NPP of 3*y.
All offences were perpetrated upon the same victim. The respondent was in a relationship with the victim's mother for 10 years & stayed at her home on a regular basis. During that time, he assumed the role of step-father to the victim. The victim was aged between 14 years 9 months & 15 years 4 months at the time of the offences.
The appeal raised various issues in connection with s.66EA of the Crimes Act 1900 (NSW). Section 66EA was inserted into the Crimes Act by the Crimes Legislation Amendment (ChildSexual Offences) Act 1998 (NSW).
Whether sentence manifestly inadequate.
Appeal dismissed.
5

PITT, David John - CCA, 16.12.2003
Sully , Greg James & Adams JJ
Citation: R v Pitt [2003] NSWCCA 408
Sentence appeal.
Maliciously inflict GBH with intent.
8y with NPP of 5y.
A beer bottle was thrown through the window of a house & the occupants went outside. A number of people gathered & a brawl started. During the brawl, the victim was knocked to the ground & kicked. A rock was dropped on his head & he was kicked in the head. The victim suffered a fractured skull & brain damage. The applicant was sentenced upon the basis that his intent to inflict GBH was not premeditated.
Aged 25 at time of offence - no remorse or contrition - slim prospects of rehabilitation - prior violent offences.
Parity - whether justifiable sense of grievance.
Appeal dismissed.
6

GAO, Zhen Yu Michael - CCA, 16.12.2003
Sully, Greg James & Adams JJ
Citation: R v Gao [2003] NSWCCA 390
Conviction and sentence appeal.
1 x knowingly concerned in the importation of a commercial quantity of heroin.
12y with NPP of 8y.
Appellant was charged with the above offence following a police surveillance operation.
Voice identification - speech in intercepted telephone calls in Cantonese - police officer hears calls - later identifies voice of speaker from Cantonese speech at interview with police - whether evidence rightly admitted.
Appeal dismissed.
7

JMP - CCA, 18.12.2003
Barr J, Miles AJ
Citation: R v JMP [2003] NSWCCA 369
Sentence appeal.
Count 1: sexual intercourse with person under 16 (10 or 11);
Count 2: sexual intercourse with person under 16 (10 or 11);
Count 3: sexual intercourse with person under 16 (10 or 11);
Count 4: sexual intercourse with person under 16 (10, 11 or 12);
Count 5: sexual intercourse with person under 16 (10, 11 or 12);
Count 6: sexual intercourse with child under 10 (6 or 7);
Count 7: sexual intercourse with child under 10 (6 or 7);
Count 8: sexual intercourse with child under 10 (6, 7 or 8); + 4offences on a Form 1.
Total sentence of 9y 7m with NPP of 7y 2m.
Applicant & her male co-offender committed the offences upon applicant's children. These offences occurred over a period of 3* years. The co-offender received a total sentence of 8y with a NPP of 5*y.
History of offences - assistance to authorities - parity of sentences of co-offender - concurrency of sentences - totality principle.
Appeal allowed on counts 6, 7 & 8: resentenced to total of 8y with NPP of 5*y.
8

LI, Wu - CCA, 23.12.2003
Spigelman CJ, Dunford & Hidden JJ
Citation: R v Li [2003] NSWCCA 407
Conviction appeal.
Detain for advantage; common assault.
The complainant was appellant's former wife. They had been divorced in the same month as the date upon which the offences occurred. They had one child who was aged 5 at the time. There was evidence of complainant's unhappy relationship with the appellant, including prior incidents of appellant being violent towards her. Complainant gave evidence of appellant gaining entry to her unit on the night of the offences, of assaulting her & threatening her with a knife & preventing her from leaving the unit. She went out onto the balcony & tried climbing over the railing to the level below in order to obtain help, however, she slipped & fell 2 storeys onto a concrete driveway & suffered severe injuries, resulting in quadriplegia.
Evidence of prior incidents of violence - whether wrongly admitted - relationship evidence - tendency evidence - probative value - unfair prejudice - whether directions adequate.
Appeal allowed: new trial ordered.
9

WILSON, Linda - NSW SC, Miles AJ, 23.12.2003
Citation: R v Wilson [2003] NSWSC 1257
Remarks on Sentence.
Manslaughter.
Offender went to trial on a charge of murder, however, the jury returned a verdict of not guilty of murder but guilty of manslaughter.
The prosecution case was that the offender, who was the foster mother of the 2 year old deceased, had inflicted injuries upon the child with intent to cause GBH & that the child had died from those injuries. There was medical evidence of the child having suffered multiple serious injuries.
Extent of culpability & seriousness - whether sentence should exceed usual range - relevance of deterrence.
Sentenced to 9y with NPP of 6y 11m.
10

ARRIAZA, Rodrigo - CCA, 5.2.2004
James & Buddin JJ
Citation: R v Arriaza [2004] NSWCCA 4
Sentence appeal.
3 x armed robbery; 1 x armed assault with intent to rob; + three Form 1 offences.
Total of 7y with NPP of 3*y.
On each occasion, applicant produced a knife & threatened his victim in order to obtain money.
Guilty pleas - genuine remorse - mental condition - rehabilitation - special circumstances.
Whether sentences manifestly excessive - insufficient weight given to subjective features.
Appeal allowed only on count 3 (armed robbery). New total sentence of 6y with NPP of 3y.
11

HOANG, Dinh Ba - CCA, 3.12.2003
Wood CJ at CL, Smart AJ
Citation: R v Hoang [2003] NSWCCA 380
Sentence appeal.
1 x B&E dwelling and commit serious indictable offence (armed rob) in circumstances of aggravation (in company); 1 x kidnap with intent to hold for advantage (obtain money); 1 x sexual intercourse without consent in company.
Total of 15y with NPP of 11y 3m.
Armed with a shotgun, knife & small machete, applicant & 2 co-offenders broke into a dwelling occupied by 2 males & a female. They made demands for money, jewellery & watches. The victims were then taken to another location. The female victim was tied to a bed & raped by at least 2 offenders. There were threats of violence & demands were made for the PIN numbers of bank accounts. The offending was described as highly organised.
Aged 18 at time of offences - guilty plea - eldest of 4 children - arrived in Australia from Vietnam with family at age 2 - unmarried - in employment since early age due to father's illness - stable, happy home life - drug abuse - depression - contrition - no priors.
Whether sentencing judge took account of applicant's youth & prospects for rehabilitation as constituting special circumstances - whether sentences manifestly excessive.
Appeal allowed only in relation to NPP: new total NPP of 9y 3m.
12

BRANDT, Daniel Clifford - CCA, 3.2.2004
James & Buddin JJ
Citation: R v Brandt [2004] NSWCCA 3
Sentence appeal.
Dangerous drive occasioning GBH; + various summary offences.
3*y with NPP of 2y.
Applicant drove his car through a red light & hit a pedestrian. He did not stop or slow down, but drove to a motel, abandoned his vehicle & caught a taxi home. The following morning, he phoned police & falsely claimed his car had been stolen. He then attended the police station & provided a statement to that effect. Applicant was arrested several days later & fully admitted his involvement in the offence. It was raining heavily at the time of the offence & visibility was poor. The victim suffered serious injuries.
Guilty plea - unlicensed at time of offence - difficult family life - problem with drugs & alcohol - 90% loss of vision in one eye after being hit by pellet from airgun in childhood - pellet still lodged at base of brain, causing migraines & affecting capacity to work - distress at time of offence as a result of family problems - special circumstances.
Whether sentence manifestly excessive - application of guideline judgments - procedure relating to Form 1 offences
Appeal dismissed.
13

PHILLIPE, Joseph - CCA, 3.2.2004
James & Buddin JJ
Citation: R v Phillipe [2004] NSWCCA 2
Application for extension of time within which to appeal against sentences.
7 x armed robbery; 1 x receive stolen property.
Total sentence of 4y with NPP of 2y 9m.
Each of the armed rob offences was committed in company. A knife, a replica handgun & a wooden baton were used during the course of the first 4 armed robberies. A knife & pistol were used during the other armed robberies.
Aged 17 at time of offences - dealt with in accordance with provisions of Children (Criminal Proceedings) Act 1987 - guilty pleas - remorse - good character, excellent school reports, commitment to productive work as apprentice plumber - excellent prospects of rehabilitation - no priors - adversely affected by father's behaviour - father a violent man & an 'inveterate gambler'.
Whether sentences manifestly excessive - subjective features - concurrency.
Extension of time granted.
Appeal dismissed.
14

BOWTELL, Sidney Justin - CCA, 9.2.2004
Sully, James & Hulme JJ
Citation: R v Bowtell [2004] NSWCCA 17
Sentence appeal.
2 x aggravated sexual assault (inflict ABH); 1 x detain for advantage and cause injury; 2 x robbery in company; 1 x steal motor vehicle; 1 x escape from lawful custody.
Total effective sentence of 19y 9m with NPP of 15y 9m.
At the time of sentencing, appellant was subject to a sentence of 21y with a NPP of 15y.
Applicant & his co-offender escaped from prison. At a beach, they saw the victim walking towards her car. They grabbed her, covered her mouth with tape & tied her hands with cord. They then drove off in the victim's car, with the co-offender driving & the applicant holding the victim in the rear seat. They found $20 in the victim's wallet, bought some petrol, then drove into bushland, where they placed the victim on the boot, stripped her naked & took turns having penile/vaginal intercourse with her 4 or 5 times. She was also digitally penetrated & forced to have oral intercourse. They then re-entered the car. This time, the applicant drove the car at high speed, while the co-offender had sexual intercourse with the victim in the rear seat. They stopped at another location where the applicant & the co-offender again had intercourse with the victim. The victim was later taken to an ATM & forced to withdraw $50. The offenders eventually released the victim. The physical injuries suffered by the victim were abrasions & bruises, as well as a dislocated knee & 3 splits to her genital area.
Aged 30 at time of offences - early guilty plea - prior serious offences - in prison since age 17.
Parity - double jeopardy - totality.
Appeal allowed in part: new total sentence of 14y with NPP of 11y.
15

SALAZAR, Dario Antoneo - CCA, 4.2.2004
Grove, Sully & Bell JJ
Citation: R v Salazar [2004] NSWCCA 13
Sentence appeal.
1 x supply prohibited drug (cocaine); + Form 1 offence taken into account (deemed supply).
2y 8m with NPP of 2y.
Applicant had parked his car & while he was at the boot of the vehicle, police spoke to him & searched it. Inside a jewellery bag found adjacent to the passenger's seat were 4 small plastic resealable bags, each containing white powder. The powder was subsequently identified as cocaine with a total net weight of 17.9 grams. Later in the day, a search warrant was executed on applicant's home. A waterproof PVC container containing a block of white powder was found in the barbeque area, as well as a pink-handled teaspoon & resealable plastic bags similar to those found in the car. The net weight of the cocaine was 50.8 grams (75% pure).
Colombian national, born in 1947 - had been a police officer in Colombia for 7 years - unemployed in Australia since 1984 due to injury suffered in an industrial accident - priors - previous imprisonment.
Whether errors in sentencing - whether sentence excessive.
Appeal dismissed.
16

HOOPER, Steven Ronald - CCA, 11.2.2004
James & Howie JJ, Smart AJ
Citation: R v Hooper [2004] NSWCCA 10
Sentence appeal.
Aggravated armed robbery; maliciously discharge loaded firearm; aggravated assault with intent to rob armed with dangerous weapon; aggravated robbery armed with dangerous weapon.
Total of 16y with NPP of 12y.
Applicant & his co-offender were involved in the robbery of a newsagency. Applicant waited in the getaway car while his co-offender, wearing a balaclava & armed with a sawn-off rifle, fired a shot over the head of the victim & threatened to 'blow him away'Approx $1,500 was taken. A police patrol car saw the getaway car enter a street with a 'No Entry'sign & a high-speed pursuit ensued, against the flow of oncoming traffic. The co-offender fired 2 shots at police.
The offenders were involved in the robbery of another newsagency. The applicant again drove the getaway car. During this robbery, 2 victims were threatened. As the female victim was loading money into a plastic bag, the male victim grabbed the gun, a struggle took place & the co-offender fired a shot, wounding the female victim near the left breast.
Wearing a balaclava & carrying a sawn-off shotgun, applicant drove with his girlfriend to a petrol station, demanded money & fired a shot in the direction of the console operator. $300 was taken in the robbery.
Aged 30 at time of 1st offence - guilty plea - 15% discount - never had a job - drug addiction - supportive family - on protection - no contrition - long criminal history - escalation in criminal conduct - previous imprisonment.
Whether errors in sentence - De Simone principle - culpability - disparity - whether justified sense of grievance - whether adequate weight given to rehabilitation - whether sentence excessive.
Appeal dismissed.
17

NGUYEN, Van Nam - CCA, 13.2.2004
Giles JA, Hulme & Adams JJ
Citation: R v Nguyen [2004] NSWCCA 16
Conviction appeal.
Deemed supply of trafficable quantity of heroin.
The Crown case was that the appellant & a man by the name of Nghia were jointly in possession of heroin found in a video case The heroin was in the physical custody of Nghia when the van in which they were travelling was stopped by police. The hypothesis in the Crown's address to the jury was that the appellant had flown to Sydney to obtain heroin, had obtained it at Cabramatta & was using Nghia to take it to Brisbane by road. From appellant's fingerprints found inside the video case, he had at some stage handled the video case. It was suggested that the fingerprints, plus the evidence of the way in which appellant & another man by the name of Lam flew to Sydney, the appellant's subsequent movements which included contact with Nghia whilst in Sydney & the telephone calls between appellant's mobile phone & Nghia's phone, of appellant's possession of a substantial amount of cash & of appellant's possession of a piece of paper listing names & amounts of money, together supported the hypothesis & warranted the conclusion that the appellant & Nghia were jointly in possession of the heroin.
Circumstantial evidence - sufficiency of evidence of joint possession - evidence incapable of justifying verdict.
Appeal allowed: verdict of acquittal entered.
18

PUTLAND, HC 12.2.2004 - 218 CLR 174;78 ALJR 440
Citation: Putland v The Queen [2004] HCA 8
Sentencing - offences against laws of the Commonwealth - where offender tried in Territory court for indictable offences against laws of the Commonwealth - Judiciary Act 1903 (Cth) - where territory legislation permitted aggregate sentences for indictable offences - whether aggregate sentences were permissible in the case of Commonwealth offences.
Constitutional law - discrimination - whether territory legislation permitting aggregate sentencing resulted in constitutionally impermissible discrimination between federal offenders.
19

WILLIAMS, Anthony Thomas - CCA, 9.2.2004
Sully, James & Hulme JJ
Citation: R v Williams [2004] NSWCCA 18
Sentence appeal.
1st indictment - (all offences in company) steal from a MV goods including computer software, electrical goods, telephones, nutritional products, pyjamas & bed linen; dispose of the property; steal 6 fax toner cartridges; attempt dispose of property; steal Canon printer & feeder, Apple computer & 10 printer toners; attempt dispose of property; steal computer docking station, computer mouse, computer power pack, folders & documents.
2nd indictment - (all in company) dishonestly obtain 8 bottles of bourbon whiskey by deception by falsely pretending a credit card was genuine, valid & co-offender was the cardholder; by similar deception obtain computer printer & monitor; by similar deception obtain television set.
Total sentence of 18m with NPP of 8m. An 18m GBB was imposed for one of the offences.
The total value of the property stolen was $19,200. The period over which the offences in the 1st indictment occurred extended from 30.6.2001 - 9.8.2001. The offences the subject of charges in the 2nd indictment occurred on 30.8.2001.
Guilty plea - conscious, deliberate criminality for reward.
Whether error in objective criminality - whether error in failure to give weight to fact that more than 2 years had elapsed since applicant's arrest & that during that time nothing adverse had emerged against him - whether offences could have been dealt with in the LC - whether sentences excessive.
Appeal dismissed.
20

FRASER, Steven Anthony - NSW SC, Howie J, 13.2.2004
Citation: R v Fraser [2004] NSWSC 53
Remarks on Sentence.
3 x murder.
Offender was convicted on 3 counts of murder arising from the deaths of his 3 young children, aged 7, 5 & 4 years. The offender killed the children to spite his estranged wife who had become involved with another man. At the outset of the trial, the offender pleaded guilty to a count of manslaughter in respect of each of the killings on the basis of the defence of substantial mental impairment under s.23A of the Crimes Act. The Crown refused to accept the pleas & the trial proceeded. The only issue for the jury to determine was whether they were satisfied on the balance of probabilities that the defence under s.23A had been made out by the offender.
Sentenced to total of 32y with NPP of 27y.
21

ERCEG, Leon Maurice - CCA, 10.2.2004
James J, Smart AJ
Citation: R v Erceg [2004] NSWCCA 15
Sentence appeal.
Robbery in company
4y 4m with NPP of 3y.
Applicant & his co-offender both received the same sentence. There was conflict between the judge'ss remarks on sentence & the dates recorded on the warrant for imprisonment (s 51A warrant). It was unclear whether the NPP was 3 years or 16 months. Attempts to clarify the ambiguity resulted in further confusion, causing the applicant & his co-offender to seek intervention by the Court of Appeal. The Court of Appeal declared the sentence contrary to law & was of the opinion that the matter should be remitted to the DC.
Aged 22 at time of offence - guilty plea.
Ambiguity as to the length of NPP imposed - whether sentence contrary to law or failing to impose a penalty so as to attract the jurisdiction to reopen under s 43 of the Crimes (Sentencing Procedure) Act.
Matter remitted to DC for further consideration pursuant to s.43 Sentencing (Criminal Procedure) Act, and in accordance with the reasons for judgment of the Court of Appeal of 19.12.2003.
22

PUTLAND - HC, 12.2.2004
Citation: Putland v The Queen [2004] HCA 8
Appeal from NT CCA.
Applicant pleaded guilty to multiple Federal offences of defrauding the Commissioner of Taxation, disposing of property with intent to defraud his creditors during bankruptcy, & carrying on business as an undischarged bankrupt. The sentencing judge imposed an aggregate sentence of 4y, ordering that applicant be released after serving 12m upon entering GBB.
Sentencing - power of superior courts to impose aggregate sentences - whether Crimes Act 1914 (Cth), Part 1B & common law impliedly excluded aggregate sentencing upon conviction for multiple Federal offences - whether Sentencing Act (NT), s 52 which permitted Northern Territory courts to impose aggregate sentences upon conviction for more than one offence could be 'picked up'by operation of Judiciary Act 1903 (Cth), ss 68(1) or 79 in this case - whether recognition of a power to impose an aggregate sentence upon Federal offenders by the Supreme Court of Northern Territory would lead to unequal treatment of equals throughout Australia giving rise to discrimination contrary to the Constitution.
Appeal dismissed.
23

STOCKDALE, Michael Alan - CCA, 26.2.2004 - 142 A Crim R 448
Grove, Sully & Bell JJ
Citation: R v Stockdale [2004] NSWCCA 1
Sentence appeal.
Solicit to murder.
6y with NPP of 3y 9m.
Appellant was in a relationship with a woman. After several months, she told him she had met someone special & no longer wanted to see him. After unsuccessfully trying to rekindle the relationship, appellant told a friend that he wished to dispose of the woman's new boyfriend so that he could re-establish his relationship with her. The friend eventually contacted police & an undercover operative contacted the appellant under the guise of being a person interested in killing the intended victim. Appellant agreed to pay him $5,000 for the murder & provided the officer with details about the boyfriend. He later accompanied & directed the officer to the woman's house & to the boyfriend's workplace. Appellant & the officer had discussions about ways & times the murder could be committed & appellant paid the officer $500 to cover expenses.
Aged 51 at time of sentence - stable family, supportive wife & children - stable employment history - offence out of character - very low disposition towards recidivism - remorse, contrition - no relevant priors.
Subjective circumstances - utilitarian value of guilty plea - entrapment.
Appeal dismissed.
24

ALLISON, Lorraine Rachel - CCA, 6.2.2004
Dunford & Greg James JJ
Citation: R v Allison [2004] NSWCCA 11
Sentence appeal.
B&E with intent; assault with intent to rob whilst in company; + Form 1 offences (detain for advantage; being carried in a conveyance without consent of owner).
Total of 5y with NPP of 3y.
Applicant & her 2 co-offenders (her son & daughter) approached the victim who was parked in his vehicle. The daughter, disguised & carrying a knife, forced the victim to move over & then drove off with the applicant & the son in the back seat. The son threatened the victim with a knife telling him he would be stabbed unless he withdrew the maximum on his cards from an ATM. The victim escaped following a collision with another car at an intersection. Applicant & her co-offenders drove off with the victim's mobile phone & wallet & later unsuccessfully attempted to use his credit cards to buy jewellery. Some 8 months later patrolling police saw the applicant in the driveway of industrial premises. She alerted a male co-offender who emerged from the building through a side window which had a glass panel missing & they then drove off in a van after colliding with the police car. Following a pursuit during which the police car was seriously damaged, the applicant was pursued into a paddock & arrested. The co-offender escaped.
Aged 42 at time of 1st offence - multiple priors - on bond at time of above offences - previous imprisonment
Whether sentences excessive - concurrency - parity.
Appeal dismissed.
25

EUSTICE, Thomas James - CCA, 5.2.2004
Giles JA, Hulme & Adams JJ
Citation: R v Eustice [2004] NSWCCA 14
Crown appeal.
1 x AOABH; 1 x common assault.
100 hours CSO.
Respondent had originally pleaded not guilty to 2 charges of aggravated robbery, however, 3 days before the trial the prosecution accepted his plea of guilty to 2 alternative charges of assault on the indictment. The AOABH occurred in the early hours of the morning. Two young males & a female were walking along a street in Mosman when they were approached by the respondent & a co-offender. The co-offender demanded that the victim give him a cigarette. Five unidentified males joined the respondent & the co-offender. One of the unidentified males punched the victim, who fell to the ground where he was continually punched & kicked. An unidentified male then took the victim's backpack, which contained clothing & personal items. He also removed a silver necklace, bracelet & ring from the victim's body. The victim tried to escape but was caught & dragged to the ground where he was kicked & punched by the group of men, including the respondent & the co-offender. The common assault occurred when the respondent chased the other young male who was standing some distance away. When he caught him, he threw him to the ground, whereupon the victim struck his head. The 1st victim managed to get to his feet but as the respondent ran to join the other offenders he knocked the victim to the ground. All offenders then left the scene. The 1st victim was taken to hospital suffering from multiple superficial abrasions, bruising & swelling to his head & body.
Aged 18 at time of offences - on bond at the time - employed at the time - offer to assist authorities (not taken up) - difficult & disruptive early family life - supportive mother & stepfather - unlikely to re-offend - prior common assault but no conviction recorded - no previous imprisonment.
Error in determining that guilty plea was an indicator of contrition when the plea was entered only a few days prior to hearing of trial - error in stating respondent had no criminal record when he was on a bond at the time of the offences - whether sentence manifestly inadequate.
Appeal allowed: sentence increased to total of 250 hours CSO.
26

TELFER, David William - CCA, 26.2.2004 - 142 A Crim R 132
Grove, Sully & Bell JJ
Citation: R v Telfer [2004] NSWCCA 27
Conviction appeal.
Detain for advantage.
4y with NPP of 1y 10m.
The victim stole a wallet belonging to her de facto partner, then went to stay with her mother in another town. The following day, appellant met her & asked her to help him obtain drugs, to which she agreed. The victim got into the appellant's car with her young son. Her de facto partner came out of the boot area of the car where he had been hiding, grabbed her hair & demanded to know where his wallet was. The appellant struck the victim across the face. She told him the whereabouts of the wallet, whereupon appellant agreed to take the victim's son home while the victim remained. Appellant returned a short time later. The victim admitted she had used the money to buy drugs. Following further threats, she was allowed to leave. After walking a short distance, the victim was offered a lift by the appellant, which she accepted. He dropped the victim off near her mother's home. The victim reported the matter to police & photographs were taken of her injuries & clothing the following day. The victim's de facto partner gave evidence against the appellant at trial.
The issue at trial was whether appellant was party to a joint enterprise with victim's de facto partner.
Evidence of good character - whether directions adequate.
Appeal dismissed.
27

CHEW, Kon Lim - CCA, 25.2.2004
Sully, James & Hulme JJ
Citation: R v Chew [2004] NSWCCA 26
Sentence appeal.
Import trafficable quantity of heroin.
6y with NPP of 4y.
Appellant, a Malaysian national, was arrested at Sydney airport upon his entry into Australia. He had ingested 59 packages of heroin, containing 226.5 grams of the drug. The weight of the pure drug was 71.8 grams. Appellant attempted to negotiate with authorities, hoping that if he led them to the persons to whom he was to deliver the drugs he would be allowed to return to Malaysia without being prosecuted.
Aged 38 at time of offence - priors not stated.
Role in importation - assistance to authorities - rehabilitation.
Appeal dismissed.
28

GUTIERREZ, Karl Anthony - CCA, 24.2.2004
Meagher JA, Kirby & Shaw JJ
Citation: R v Gutierrez [2004] NSWCCA 22
Knowingly concerned in the importation of a trafficable amount of cocaine; money laundering; conspiracy to import trafficable amount of cocaine.
Total of 13y 9m with NPP of 8y.
Conviction, sentence & Crown appeals.
The evidence against offender for the knowingly concerned offence consisted mainly of evidence from an accomplice. The cocaine was imported into Australia in a liquid state suspended inside a large cask of wine. The offender played an important role in converting the liquid into a white crystalline form. The sentencing judge found that approx 3 kgs of cocaine was obtained with 55-60% purity. The accomplice testified that $194,000 was given to the offender.
The money laundering offence involved the offender exchanging cash for blank travellers cheques totalling $44,950. These were obtained with the assistance of a person in the Singapore Money Exchange. That person gave evidence against offender.
The conspiracy charge related to offender using funds obtained in the above importation to arrange for a further importation of cocaine into Australia.
Taking care of interests of principals in Australia - sufficiently senior in hierarchy to share in proceeds - 15% discount for assistance to authorities - priors not known.
Admissibility of identification evidence in re-examination - warning on mental illness - use of word 'accomplice' in warning - whether unreliability warnings adequate - fresh evidence - whether Crown breached its duty of disclosure.
Whether sentence manifestly inadequate.
Conviction and sentence appeal dismissed.
Crown appeal dismissed.
29

PERCIVAL, Kevin Ernest - CCA, 18.12.2004
Sully, Greg James & Adams JJ
Citation: R v Percival [2003] NSWCCA 409
Conviction appeal.
Indecent assault upon female under 16 (1st complainant, aged 10); carnal knowledge of female under 16 (2nd complainant, aged 10/11).
There was a delay of 16 years between the date of the indecent assault charge & the date of the trial. The evidence for the prosecution relied upon the uncorroborated testimony of the 1st complainant.
There was a delay of 25 years from the date of the last offence of carnal knowledge & the date of complaint. The case for the Crown on this charge rested upon the uncorroborated testimony of the 2nd complainant.
Effect of long delay - sufficiency of directions.
Appeal allowed: verdict of acquittal entered.
30

CAMPLIN, Rhys Martin Price - CCA, 24.2.2004
Levine, Simpson & Barr JJ
Citation: R v Camplin [2004] NSWCCA 29
Sentence appeal.
Supply prohibited drug (methylamphetamine) - 10m FT;
Ongoing supply of prohibited drug (amphetamine) - 2y 8m with NPP of 2y consecutive;
Form 1 offences (possess cannabis, possess methylamphetamine, goods in custody, possess equipment for administering prohibited drug).
Total sentence of 3*y with NPP of 2y 10m.
Within a 30 day period & on 3 separate occasions, applicant sold a quantity of amphetamine to an undercover police officer from premises in a caravan park in suburban Sydney. The quantities involved were 1, 0.50 & 1 gram for $200, $100 & $200 respectively. The supply methylamphetamine offence occurred when the undercover police officer returned to the premises & purchased 3 bags of 'ice' for $50 (total weight 0.5 grams).
Aged 45 at time of offences - unemployed - custody of 3 of 7 children - income from sale of drugs & supporting parent benefit - on bond at time of offences - priors include possess prohibited drug, goods in custody, assault, larceny, knife/cutting instrument offences, weapon offences, driving offences - no previous imprisonment.
Accumulation of sentences - totality.
Appeal allowed for ongoing supply count: resentenced on that count to 2y 8m with NPP of 1y 9*m.
Total new sentence of 3*y with NPP of 2y 7*m.
31

TRUONG - HC, 4.3.2004 - 223 CLR 122; 78 ALJR 473
Citation: Truong v The Queen [2004] HCA 10
Extradition to Australia from other countries — Extradition Act 1988 (Cth), pt IV (ss 40-44) — extradition for conspiracy to kidnap & murder — conviction for kidnapping & murder — appeal against decision of Victorian Court of Appeal dismissing application for leave to appeal against conviction for kidnapping & murder — appellant Vietnamese national & resident of London.
Whether offences of murder & kidnapping were offences of which appellant could be convicted on proof of conduct constituting offences of conspiracy to commit murder & conspiracy to kidnap.
Speciality arrangement between Australia & the United Kingdom — speciality arrangement under Extradition Act 1989 (UK) — whether breach of speciality arrangement.
Appeal dismissed.
32

PILTZ, Jeremy Kenneth - CCA, 26.2.2004 - 59 NSWLR 538
Levine, Barr & Buddin JJ
Citation: R v Piltz [2004] NSWCCA 34
Conviction and sentence appeal.
2 x indecent assault; detain for advantage; possess loaded firearm so as to endanger life.
Total sentence of 9y with NPP of 6y.
Victim went to appellant's home on an errand. When she entered, appellant locked the door & produced a gun with which he threatened her. He forced the victim into the bedroom, threatened her with a knife & a brief struggle ensued. Appellant demanded that victim remove her clothing. He then handcuffed her & began touching her on the legs, buttocks, breasts & vagina. The victim was released when appellant's mother returned home. Appellant declined to be interviewed by police when he was arrested later that day.
Aged 21 at time of offences - prior weapons offences - no previous imprisonment.
Whether proof of a charge that a loaded firearm was possessed 'so as to'endanger life required proof of an intent to endanger life - defence asserted that complainant lied - theory posited why complainant lied as asserted - whether direction like that suggested in R v Jovanovic (1997) 98 A Crim R 1 necessary.
Appeal dismissed.
33

AMBROSI, Gary Esteve - CCA, 26.2.2004 - 144 A Crim R 67
Levine, O'Keefe & Whealy JJ
Citation: R v Ambrosi [2004] NSWCCA 23
Conviction and sentence appeal.
Assault with intent to rob.
6*y with NPP of 4y.
Appellant, who was armed with a knife, & a co-offender, armed with a screwdriver, entered a shop & demanded money from the shopkeepers. They were driven away by the shopkeepers without any money.
Aged 23 at time of offence - false alibi given to police - lack of contrition - heroin addict - priors (obtain money by deception, make/use false instrument, enter enclosed lands, take & drive conveyance, DUI, multiple driving offences, state false name/address, B&E - previous imprisonment.
Parity - application of Henry guideline - special circumstances.
Appeal dismissed.
34

COLLINS, Tania Lee - CCA, 1.3.2004
Levine, Simpson & Barr JJ
Citation: R v Collins [2004] NSWCCA 30
Crown appeal.
Ongoing supply of prohibited drug (cocaine).
3y with NPP of 2y PD.
Respondent & her co-offender were involved in the above offence. On 4 occasions, they supplied cocaine to an undercover officer (total combined weight less than 1 gram). Following respondent's arrest, police discovered a number of bags containing a total of 2.6 grams of cocaine concealed in her underclothes, resulting in the total weight of the cocaine being approx 3.5 grams. Respondent gave evidence at sentence of becoming involved in the supply of drugs when her co-offender lost his licence & forced her to drive him to various locations where he sold drugs. She said she only participated in the supply of drugs because she was afraid of her co-offender. She said he had threatened her with violence & she was frightened of being alone because of being emotionally & socially dependant upon him. She said she was afraid to leave him.
Aged 19- disrupted upbringing - father deserted family when respondent aged 3 - lived with grandparents from age 15 - in a de facto relationship with co-offender for 2 years - exceptional circumstances.
Whether sentence manifestly inadequate.
Appeal dismissed.
35

SHEIKH, Tayyab - CCA, 4.3.2004 - 144 A Crim R 124
Mason P, Wood CJ at CL, Sully J
Citation: R v Sheikh [2004] NSWCCA 38
Conviction and sentence appeal.
Detain with intent to hold for sexual advantage; aggravated sexual assault without consent and in company.
Total of 15y with NPP of 9y (to be served in a Juvenile Justice institution until age 21).
The offences took place in a toilet block when the victim was raped by 4 of 5 youths, including appellant. Appellant's alleged sexual assault was one of oral/penile assault. After a series of assaults at this location, the victim was passed on to other groups of assailants. Appellant was not charged with any offence related to any of a further 4 episodes of serial rape & no evidence of those episodes of rape was led at appellant's trial. A pre-trial application for a separate trial was refused. A separate trial was ordered on appeal. By the time appellant's trial was to commence, the jury of the joint trial (the 1st trial) was considering its verdicts. Appellant's counsel raised perceived problems in relation to media coverage of that trial & its impact on the fairness of appellant's trial, as well as media coverage of appellant's trial, & made an application seeking suppression of the 1st trial's verdicts until appellant's trial had concluded on the basis of a common factual mix, i.e. events which occurred in the car park. The trial judge refused the application, reasoning that whilst he had the power to direct the 1st trial's verdict be given in-camera, he did not have the power to permit the publication of it at some later time. He said that he would take steps during appellant's trial to protect his rights to a fair trial. He also contemplated whether he should conduct appellant's trial in-camera, but rejected this, although he made certain other orders. When the victim had completed her evidence in appellant's trial, cross-examination began. On this day, the trial judge announced that there were verdicts in the 1st trial. He excused appellant's jury until the Tuesday, giving them a warning about making early judgments or discussing the trial. On the Tuesday, appellant's counsel applied for a discharge & a 6 month delay of appellant's trial because of media coverage of the verdicts in the 1st trial. The trial judge was troubled by the situation & referred in detail to some coverage, however, he refused the application. Two days later, appellant's counsel made a 2nd application for a discharge of the jury & a temporary stay, based on 2 newspaper reports, both purporting to be a fair report of the Crown's opening address in appellant's trial. The trial judge ultimately refused the 2nd application, reasoning that the media coverage had not caused prejudice by any unfair linking of the 1st trial with appellant's trial. If the coverage conveyed something that was not part of the Crown case, any risk of a compromised trial could be dealt with by appropriate directions.
Aged 16* at time of offences - youth - general deterrence - joint criminal enterprise - objective criminality.
Trial held back to back with related trial - sensational media reporting of guilty verdict in other trial - inappropriate comments made by Crown prosecutor to media - whether fair trial - whether trial judge should have granted application to vacate or stay hearing date.
Conviction appeal allowed: new trial ordered.
36

ZAITER, George - CCA, 25.2.2004
Ipp JA, Sully & Adams JJ
Citation: R v Zaiter [2004] NSWCCA 35
Conviction appeal and application for leave to appeal against sentence.
Knowingly take part in supply of methylamphetamine and ecstasy. Sentence not stated.
The critical issue at trial was whether appellant knew that a man by the name of Pedavoli was using a flat (appellant was a lessee) to keep drugs for supply. The case was fought essentially on the basis of whether the requisite knowledge had been proved beyond reasonable doubt.
Knowledge - intermediate fact that was an indispensable basis for an inference of guilt - trial judge did not give a direction that such fact must be proved beyond reasonable doubt - whether new trial should be ordered - probability that Crown would run case in different manner - whether a reasonable jury would be able to return a guilty verdict.
Appeal allowed: judgment of acquittal entered.
37

FURSEY, Noel David - CCA, 23.2.2004
Ipp JA, Sully & Adams JJ
Citation: R v Fursey [2004] NSWCCA 44
Crown appeal.
2 x supply commercial quantity methylamphetamine; + Form 1 offences (possess silenced .22 shortened rifle; possess semi-automatic pistol; possess self-loading pistol).
Total sentence of 4y with NPP of 3y.
No facts of offences supplied.
Aged 39 at time of offences - priors - previous imprisonment.
Whether sentence manifestly inadequate.
Appeal dismissed.
38

CHARTERS, Craig - CCA, 6.2.2004
Dunford & Greg James JJ
Citation: R v Charters [2004] NSWCCA 40
Sentence appeal.
1 x ongoing supply of prohibited drug (type of drug not mentioned).
2y with NPP of 18m.
Applicant was originally sentenced to 2y, which was partially suspended upon him entering into a GBB subject to conditions (pursuant to s.12 Crimes (Sentencing Procedure) Act). Applicant was released following sentence but repeatedly breached the s.12 bond & was taken into custody 6* months after being sentenced. His s.12 bond was revoked & the above sentence was imposed, however, applicant had already served (or was deemed to have served) almost 6 months of the sentence & the unexpired portion of such sentence was 18 months and 2 weeks.
Suspended sentence subject to bond - breach of bond - re-sentencing - limited to unexpired portion of original sentence - R v Hyde [2003] NSWCCA 154 referred to.
Failure to make an order for offender's release at end of NPP.
Appeal allowed: applicant resentenced to 18m 2w with NPP of 12m 2w. Order made that applicant be immediately released.
39

ANDERSON, Robert Wallace - CCA, 6.2.2004
Dunford & Greg James JJ
Citation: R v Anderson [2004] NSWCCA 39
Sentence appeal.
Aggravated B&E and commit serious indictable offence (steal, in company).
3y with NPP of 18m.
Applicant & his brother entered a property & broke into a shed. They searched the shed but failed to find money which they had expected to find. They then stole a large TV set, some food, a coin collection, numerous parts of an aeroplane, a camera & other items. They hid the goods on an adjoining property & later returned with applicant's son in a 4-wheel drive with a trailer, bolt & wire cutters & gloves. Their intention was to remove any items of value & further search for the money. Applicant was confronted by police on their return. He made full admissions.
Aged 36 at time of offence - early guilty plea - left school at 14 - illiterate - dyslexic - clinical depression - 18 year stable relationship - father of 4 children - debts of $40,000 at time of offence - had assumed care of sister's 5 children after sister was murdered by her de facto husband - on parole at time of offence - priors include stealing, drive speed dangerous, BE&S, firearm offences, goods in custody, dispose of poison with risk to public, assault, cultivate prohibited drug, supply prohibited drug - previous imprisonment.
Special circumstances - assistance to authorities - matters to be taken into account.
Appeal allowed insofar as NPP reduced to 12m.
40

PENALOSA-MUNOZ, Ronal - CCA, 26.2.2004 - 143 A Crim R 594
Levine, Barr & Buddin JJ
Citation: R v Penalosa-Munoz [2004] NSWCCA 33
Crown appeal.
Robbery.
18m with NPP of 1m.
Early in the morning, the victim left his home to withdraw cash from a nearby ATM in order to purchase medication for his sick partner. He saw a group of 5 men cross the road ahead of him & allowed them to pass before carrying out the transaction. Before the cash appeared from the machine, respondent came up behind the victim, put his arm around his neck & asked the victim if he had any money, whereupon the victim replied that he did not. The victim began to move around, hoping the security camera would capture an image of the respondent, but the camera was not in operation at the time. The respondent took the two $20 notes that were issued from the ATM & walked away.
Aged 25 at time of offence - turbulent, violent childhood, including murder of family members & friends in Colombia because of their opposition to the government - homosexual - HIV positive - fled to Australia, was granted refugee status, then citizenship - no direct contact with family - gainful employment - history of alcohol abuse - good prospects of rehabilitation - unlikely to re-offend - contrition - full restitution - voluntary surrender to police with confession of guilt - no priors.
Whether sentence manifestly inadequate.
Appeal dismissed.
41

TOMAN, William John - CCA, 27.2.2004 - 144 A Crim R 171
Grove, Sully & Bell JJ
Citation: R v Toman [2004] NSWCCA 31
Crown appeal.
Multiple BE&S offences.
Total sentence of 4y with NPP of 12m.
The respondent appeared before the Drug Court where "initial sentences" pursuant to s4 Drug Court Act 1998 were imposed in relation to some of the offences. On the same day, after taking drugs given by an acquaintance, he broke & entered premises & stole a credit card. He was detained by security at a shopping centre when he tried to use the stolen card. Subsequent police investigations identified respondent as the perpetrator of a B&E some 17 months earlier, where cash & goods to the value of $2,550 were stolen & damage estimated at $1,000 caused. Respondent appeared for sentence before the Drug Court judge who exercised the jurisdiction of both the Drug Court & the District Court in imposing final sentences for all the offences.
Aged 25 at time of 1st offence - disrupted childhood - alcoholic father - excessive use of alcohol since age 15 - drug use since age 17, progressing from cannabis to heroin & injecting cocaine by age 25 - lengthy criminal history - multiple priors - previous imprisonment.
Dual exercise by judge of Drug Court and District Court jurisdiction - constitution of CCA to hear Crown appeal from Drug Court - observations on constitution of Court differing on appeal against final sentence in Drug Court brought by Crown from appeal brought by offender - initial and final sentences pursuant to Drug Court Act - statutory limitation on increase of initial sentence when imposing final sentence - alleged inadequacy of sentence - some imposition subject to Drug Court Act restriction other not so subject - approach to sentence in those circumstances discussed - circumstances of offender and offences - discretion to dismiss Crown appeal.
Appeal dismissed.
42

MERRITT, Craig Andrew - CCA, 3.3.2004 - 59 NSWLR 557; 146 A Crim R 309
Tobias JA, Wood CJ at CL, Hidden J
Citation: R v Merritt [2004] NSWCCA 19
Sentence appeal.
3 x murder.
Sentenced to life imprisonment on each count.
Appellant suffocated his 3 children (aged 6y; 11m; 11w). Each child had a different mother. Appellant had access to the children every 2 weeks. The murders occurred when the children were staying with him over the Fathers day weekend. The sentencing judge found that appellant had ingested a substantial quantity of alcohol at the time of the killings. He was also depressed & suffering from feelings of self-doubt & frustration. Although the sentencing judge found that there was a low risk of appellant re-offending, he determined that the objective circumstances of the crime overwhelmed whatever subjective considerations there may have been, including prospects of rehabilitation. In imposing the 3 life sentences, the sentencing judge placed importance on the lack of any apparent reason provided by appellant for his conduct. Appellant turned himself in to police following the offences & pleaded guilty at the earliest opportunity.
Aged 30 at time of offences - remorse - good prospects of rehabilitation - low risk of re-offending - likely to spend much of his sentence on protection - relatively minor priors - no previous imprisonment.
Whether worst category case - interpretation of s.61 Crimes (Sentencing Procedure) Act - relevance of mental state in assessing culpability - community interest - whether sentences excessive.
Appeal allowed: life sentences quashed; resentenced to total of 34y with NPP of 27y.
43

JADA, Issa Mousa - CCA, 12.2.2004
Mason P, Hidden J, Smart AJ
Citation: R v Jada [2004] NSWCCA 12
Conviction appeal.
Defraud the Commonwealth.
Sentence not stated.
The Crown case was that appellant evaded payment of import duty upon a large quantity of cigarettes which arrived by sea in a container. Also in the container was a large quantity of plastic household goods. Appellant was said to have been responsible for the shipment, as well as for the preparation of an Australian Customs document which disclosed the arrival of plastic goods but not the cigarettes. It was alleged that he intended to evade payment of duty on the cigarettes.
Whether evidence supported the charge as particularised in the indictment - whether verdict unreasonable.
Appeal dismissed.
44

DUNN, Peter Allan - CCA, 5.3.2004 - 144 A Crim R 180
Ipp JA, Sully & Adams JJ
Citation: R v Dunn [2004] NSWCCA 41
Crown appeal.
Specially aggravated B&E and commit serious indictable offence (malicious wounding); AOABH; + Form 1 offence (contravene AVO).
Total sentence of 3y 9m with NPP of 21m.
Respondent & the female victim had previously been in a relationship. Armed with a Stanley knife, respondent broke into the female victim's home & inflicted 3 lacerations to her ear, neck & breast. Her new boyfriend attempted to protect her, whereupon the respondent lunged at him with the Stanley knife. A struggle ensued, however, the boyfriend managed to disarm the respondent after receiving 2 small lacerations. Respondent fled the premises but was eventually arrested. The offence was carefully planned.
Aged 49 at time of offences - on GBB at the time - 1st offence in breach of AVO - suffers from Addison's disease - contrition - good progress with rehabilitation - priors - previous imprisonment.
Delay in Crown appeal - whether sentences manifestly inadequate.
Appeal allowed: resentenced to total term of 4y 11m with NPP of 3y.
45

TREVENNA, Leeanne (aka HARRIS) - CCA, 4.3.2004 - 149 A Crim R 505
Santow JA, James & Barr JJ
Citation: R v Trevenna [2004] NSWCCA 43
Crown appeal and sentence appeal.
Manslaughter on the basis of excessive self-defence.
7*y with NPP of 4*y.
The deceased died from a gunshot wound to the head following a violent domestic argument. Evidence at sentence suggested that deceased was infatuated with offender & wanted to control her. He was angry because he had been unable to contact her & felt she was avoiding him. When offender accused deceased of having sexually abused her child, the argument escalated. Deceased said he was going to kill her & attempted to strangle her. During the struggle, offender managed to grab deceased's gun from its hiding place. Offender said deceased threatened to bash & kill her with a cricket bat, whereupon she shot him in the back of his head. This was a spontaneous & unplanned offence. Deceased was a large, intimidating man with a criminal record that contained convictions for assault, AOABH & contravention of AVO's. He had a history of inflicting violence upon women with whom he was closely associated.
Aged 32 at time of offence - circumstances of offence suggest a 'measure of provocation'based on deceased's conduct & offender's belief he had sexually abused her son - offender under influence of amphetamines, suffering from lack of sleep at the time - remorse - offence out of character - good rehabilitation prospects - history of drug abuse - need for supervision following release - priors (minor drug & property offences) - no previous imprisonment.
Exhaustive examination on the use of excessive self-defence. This was the 2nd CCA decision on the issue of excessive self-defence, the 1st being R v Cioban [2003] NSWCCA 304.
Special circumstances - use of Judicial Commission statistics.
Crown appeal: Whether sentence manifestly inadequate - appeal dismissed.
Sentence appeal: Whether sentence excessive - appeal dismissed.
46

NEWTON, Timothy Adam - CCA, 3.2.2004
James & Buddin JJ
Citation: R v Newton [2004] NSWCCA 47
Sentence appeal.
Malicious damage; assault police officer; use offensive weapon (knife) to avoid apprehension; + Form 1 offences (assault police, common assault, breach AVO).
Total sentence of 5y with NPP of 3y.
Appellant's girlfriend had applied for a domestic violence order against applicant. When he learned of this, applicant became angry & smashed the windscreen of his girlfriend's car with a baseball bat. When the AVO was granted, police officers sought to serve the order upon applicant, however, he refused the service & threw a lighted firework at the police, which exploded. Applicant was arrested & bailed. Eight months later, police were called by applicant's girlfriend to their home when she complained of assault & the applicant's breach of the AVO. In attempting to enter the house, an officer was met by the applicant who was armed with a knife. After a brief struggle, applicant was disarmed & arrested.
Aged 29 at time of the offences - dysfunctional childhood - impaired mental functioning - personal deterrence - lack of remorse - priors not stated.
Totality - whether sentence excessive.
Appeal dismissed.
47

PORTER, Christopher Mark - CCA, 20.2.2004 - 141 A Crim R 593
Spigelman CJ, Barr & Kirby JJ
Citation: R v Porter [2004] NSWCCA 32
Appeal by way of a stated case.
Goods in custody.
Appellant flew from Perth to Sydney, arriving at Mascot airport. NSW Police, acting on information received, searched his luggage & found $150,000 in Australian currency. Appellant was arrested & charged pursuant to s.527C Crimes Act 1900 with having currency in his possession which was reasonably suspected of being stolen, or otherwise unlawfully obtained. He was convicted before a magistrate, after which he lodged an appeal to the DC in relation to jurisdiction. The appeal was determined adversely to him: R v Porter (2001) 53 NSWLR 354.
The issues in the stated case arose in the course of an 'all grounds'appeal. The 4 issues raised were:
1. Whether s.4(1) of the Commonwealth Places (Application of Laws) Act 1970 had the effect of incorporating s.3A of the Crimes Act 1900 into the Federal law.
2. Whether, if the answer to the 1st question was 'yes', there was a sufficient nexus between the custody of the goods & the State of NSW.
3. Whether the fact that the aircraft must have passed through NSW airspace was sufficient to establish the necessary territorial nexus with the State of NSW for the charge, as laid, to be proven.
4. Whether, on the facts before the DC, the goods may reasonably be suspected of being stolen or otherwise unlawfully obtained.
Questions answered: 'Inappropriate to answer'Appellant to pay half respondent's costs.
48

MEHMET, Ginter Osman - CCA, 24.2.2004
Levine, O'Keefe & Whealy JJ
Citation: R v Mehmet [2004] NSWCCA 24
Conviction & sentence appeal.
Murder.
18y with NPP of 13*y.
Appellant was convicted of the murder of his wife: see R v Mehmet[2002] NSWSC 1154. The issue at trial was whether he was entitled to the partial defence of provocation. At the time of the killing, deceased was said to have told appellant that she had had sexual relations with another man. The deceased died of multiple stab wounds. Appellant initially told police deceased had swung a knife at him, cutting his wrists & that she had then killed herself. However, appellant had in fact stabbed his wife & placed the knife in her hand & had then deliberately cut his own wrists. This was done in order to suggest the deceased had committed suicide. The sentencing judge described the attack upon the deceased as ferocious & sustained.
Aged 36 at time of offence - person of good character - no relevant priors - no previous imprisonment.
Whether error in ruling SMS text messages inadmissible - threshold of relevance.
Appeal dismissed.
49

MIDDLEBROOK, Kimberley Wayne - CCA, 5.2.2004
James & Buddin JJ
Citation: R v Middlebrook [2004] NSWCCA 49
Sentence appeal.
Possess prohibited firearms; + Form 1 offences (cultivate prohibited plant; possess prohibited drug; 5 further firearm offences).
4y with NPP of 3y.
After receiving information about cannabis plants & unregistered firearms, police executed a search warrant on applicant's rural property. They found 9 cannabis plants at various locations on the unattended property. When they entered a cabin through an unlocked front door, they found 4 firearms mounted on the wall (a pump-action 12-gauge shotgun, a single shot 12-gauge shotgun & two .22 calibre rifles). A PVC spud cannon was leaning against the wall. A loaded assault rifle magazine was found on a shelf above the firearms rack. A silver foil containing 3 grams of cannabis seed was found in a drawer in the bar area.
Aged 44 at time of offence - part-time mechanic, otherwise receives unemployment benefits - provides financial support for 2 sons living interstate with their mother - positive pre-sentence report - no drug or alcohol problems - little risk of re-offending - prior drive with prescribed concentration of alcohol - no previous imprisonment.
Whether sentencing judge overstated objective criminality - special circumstances - whether sentence excessive.
Appeal allowed: resentenced to 2y with NPP of 12m.
50

McCANN, Robert John - CCA, 3.2.2004
James & Buddin JJ
Citation: R v McCann [2004] NSWCCA 48
Sentence appeal.
4 x aggravated sexual assault (maliciously inflict ABH); 1 x indecent assault.
Total sentence of 8y with NPP of 4y 9m.
The victim was an overseas student who was renting a room in appellant's apartment. On the evening of the offences, appellant & the victim were watching TV. Appellant repeatedly asked the victim to take off her clothes & on each occasion she refused. Appellant told the victim she would have to move out that night if she did not comply with his requests. Victim went to her room to pack her belongings & appellant followed her, telling her if she did not take off her clothes he would rape her. Appellant punched the victim a number of times, then forced her onto the bed, pulled off her pants & performed various sexual acts upon her.
Aged 36 at time of offences - exposed to parental alcohol abuse & violence - long-standing alcohol abuse - overweight & suffering from sleep apnoea - stable relationship - regular employment - some prospects or rehabilitation - attending AA meetings - medium to low-risk of re-offending - prior offences (9 x violent offences; 2 x larceny; 2 x property offences; firearm & driving offences) - previous imprisonment.
Common elements of offences - conditions of custody - whether sentences excessive.
Appeal dismissed.
51

McNAMARA, Noel David - CCA, 5.3.2004
Grove, Sully & Bell JJ
Citation: R v McNamara [2004] NSWCCA 42
Crown appeal.
Manslaughter.
9y with NPP of 6*y.
Respondent pleaded not guilty to murder. The trial went ahead & the jury returned a verdict of not guilty of murder, but guilty of manslaughter. In his remarks on sentence, the sentencing judge proceeded on the basis that the jury's verdict indicated that appellant stood for sentence on the basis that he killed his mother by an unlawful & dangerous act. Respondent did not give evidence at trial or at sentence. His case was that he arrived home to find his 70-year-old mother severely beaten. He took her to hospital, but she died from the multiple injuries to most parts of her body, including broken ribs & sternum, as well as haemorrhaging to the brain. Appellant claimed he & his mother had been harassed by members of 'bikie'gangs.
Aged 29 & on bail at the time of offence - no acknowledgment of guilt after conviction - multiple priors, including offences of violence - previous imprisonment.
Standard of proof to be applied in making finding of offender's future dangerousness to the community - Judicial Commission statistics - whether sentence manifestly inadequate.
Appeal dismissed.
52

FILITIS, Michael - CCA, 11.2.2004
Sully, James & Hulme JJ
Citation: R v Filitis [2004] NSWCCA 68
s.5F Crown appeal against a ruling upon evidence.
Assault; wound with intent to murder (malicious wounding with intent to do GBH in the alternative).
Respondent's trial for the above offences was proceeding in the DC. In the course of taking evidence in chief from the victim, the Crown produced 2 video recordings of identifications made by the victim on 2 separate days. In the 2nd video, the victim identified the respondent as his assailant. Counsel for the respondent did not raise any objection to that evidence until after it had actually been taken & the video recordings marked for identification & placed before the jury. Counsel then applied to the judge to withdraw the identification evidence from the jury before he proceeded with the cross-examination of the victim. After a lengthy exchange, the presiding judge decided not to deal with any such objection until cross-examination had concluded. The matter was not dealt with again until the balance of the Crown case had been completed. A substantive application was then made to withdraw the evidence from the jury which they had seen & heard. The presiding judge made a ruling as follows:
'I am satisfied that the probative value is outweighed by its prejudicial effect and, exercising the discretion pursuant to ss135 and 137, propose to withdraw the evidence of identification procedure, conducted by Detective Senior Constable Scott on 15 October 2002 where the complainant identified the photograph numbered 3 from the jury'.
It was that ruling which gave rise to the s.5F appeal.
Identification evidence - directions - obligation - discretion - Domican v The Queen (1992) 160 CLR 583 cited.
Appeal allowed: ruling of trial judge vacated, matter remitted to DC.
53

HENNESS, Marc - CCA, 9.2.2004
Sully, James & Hulme JJ
Citation: R v Henness [2004] NSWCCA 50
Sentence appeal.
Malicious wounding with intent to do GBH.
8y with NPP of 6y.
Appellant knew the victim. Appellant approached the victim in a nightclub & threatened him in the presence of 2 witnesses. Appellant struck the victim to the right side of the face with a glass, as a result of which the victim suffered severe facial injuries, including the loss of his right eye & permanent scarring of his cheek.
Aged 29 at time of offence - vicious, unprovoked, unjustified & cowardly act - long-term depression - mental state played no part in offence - priors - previous imprisonment.
Pre-sentence custody - whether special circumstances - whether sentence excessive.
Appeal allowed insofar as sentence backdated by 2 days to take pre-sentence custody into account.
54

COOK, Daryl Norman Stanley - CCA, 12.3.2004
Ipp JA, Simpson & Adams JJ
Citation: R v Cook [2004] NSWCCA 52
Conviction appeal.
Threaten to inflict ABH by means of offensive weapon with intent to have sexual intercourse.
12y with NPP of 9y.
Appellant was alleged to have asked the complainant to have sex with him, which she declined. Shortly thereafter, appellant followed the complainant to a toilet, climbed through the window & held a knife to her throat. He then walked her out, still holding the knife & said she would have to do it in the park, whereupon the complainant screamed & her friend came to her assistance. Appellant was in possession of a police scanner over which a voice was heard warning him that the police were coming. He then fled. Five days later, appellant went to business premises to pick up a plastic bag. Two police arrived & the appellant fled on foot. On that same day, appellant went to the premises of a female, even though there was an ADVO against him not to approach her. The police arrived, appellant hid in a ceiling cavity, however, police found him & arrested him. At trial, the Crown sought to use appellant's flight from police on the 2 occasions as evidence of consciousness of guilt. A voir dire was conducted & appellant gave evidence. Appellant's case was that in order to give an explanation for his conduct, he would have to reveal the existence of the ADVO, his previous breach of it, as well as an assault. This would expose him as a person with a criminal record as well as a person with a history of violence against women. The trial judge did not believe the appellant's explanation in the voir dire & made adverse findings as to his credit. Appellant did not give evidence before the jury.
s.237 Evidence Act - error in ruling evidence of flight admissible - evidence unfairly prejudicial - failure to balance prejudicial effect of explanation for flight against probative value of evidence - whether miscarriage of justice.
Appeal allowed: new trial ordered.
55

REYNOLDS, Wayne Bradley - CCA, 12.3.2004
Levine, Simpson & Barr JJ
Citation: R v Reynolds [2004] NSWCCA 51
Crown appeal.
Armed robbery (knife); + Form 1 offence (larceny).
4y with NPP of 2y.
Respondent went into a post office & approached the counter to exchange some coins. When the victim (a staff member) opened the cash drawer, respondent rushed behind the counter & produced a knife. He pushed and struck the victim, removed $536 from the drawer, then fled, dropping the knife.
Aged 22 at time of offence - guilty plea - subjective circumstances - protective custody - on parole at time of offence - exposed to violence & abuse during childhood - seriously dysfunctional family - behavioural problems with referral to adolescent residential unit & incarceration as a juvenile & as an adult - drug use since age 14 - most of adult life spent in prison - expressed regret, desire to be rehabilitated - undertaken drug & rehabilitation course.
Whether sentence manifestly inadequate.
Appeal dismissed.
56

SYDNEY, James Glenden - CCA, 22.3.2004
Beazley JA, O'Keefe & Bell JJ
Citation: R v Sydney [2004] NSWCCA 63
Crown appeal.
1 x aggravated armed robbery; + 5 matters on a Form 1.
6y with NPP of 3y (special circumstances found).
Respondent & a co-offender, who was armed with a loaded shotgun, approached a security guard at a warehouse in the early hours of the morning. They told him not to press the alarm button. When the guard pushed the alarm button, the offenders kicked him in the stomach then tied his arms & feet together. Respondent, who had previously cut the locks off the gates of the warehouse with bolt cutters, then drove 2 vehicles (stolen) through the gates. Two other co-offenders gained access to the warehouse through the roof & helped load a large quantity of mobile phones & accessories into the vehicles. Before they left, one co-offender came back & removed the guard's wallet & warned him not to give any description to the police as he knew the guard's identity. Respondent was arrested at Sydney Airport 5 days later in the company of one of the co-offenders. Total value of property stolen was approx $161,000. Telephone intercepts revealed a significant degree of planning, including arranging for the obtaining of bolt cutters, a ladder & a radio scanner to access the police radio network.
Aged 19 & on a bond at time of offence - had committed an earlier offence whilst on the same bond - valuable assistance to authorities - long-standing drug problem - good prospects of rehabilitation - priors dating back to 1999 - no previous imprisonment.
Objective seriousness - whether matters on Form 1 properly taken into account - discount for utilitarian value of guilty plea - whether 'double discount'allowed - whether sentence manifestly inadequate.
Appeal dismissed.
57

TJ - CCA, 17.3.2004
Hodgson JA, Shaw J, Smart AJ
Sentence appeal.
Buggery; sexual intercourse with child under 10; sexual intercourse with child between 10 & 16; + Form 1 offences (2 x sexual intercourse with child between 10 & 16).
Total sentence of 8y with NPP of 4y.
Appellant's son was aged 9 when appellant committed an act of buggery upon him. The other 2 offences were committed upon his daughter & involved penile/vaginal intercourse & anal intercourse. The anal intercourse offence involved the use of a knife to threaten the victim. Some 9 years passed before police were notified of the offences, because the appellant's wife told police she did not wish to pursue the complaints by her children because she would not be able to cope financially if her husband went to gaol.
Aged 31 at time of 1st offence - violation of trust - need for strict protection - need for long-term supervision upon release - priors for B&E & malicious damage - previous imprisonment.
Conditions of imprisonment - stale offences - admission of report making reference to offences not in the indictment - whether sentence excessive.
Appeal dismissed.
58

SMITH, Kevin John - CCA, 16.3.2004
McColl JA, Studdert & Howie JJ
Citation: R v Smith [2004] NSWCCA 69
Conviction and sentence appeal.
Escape from lawful custody.
2y with NPP of 18m.
Appellant was serving a term of imprisonment for serious offences arising from his violent marriage. The CCA dismissed his appeal against conviction & sentence: see Smith [2003] NSWCCA 53. Appellant had a sense of grievance about the convictions & for over 12 months planned his escape from prison with the intention of buying a computer, setting himself up in a flat & making representations protesting his innocence. Appellant escaped from prison by forcing open the bars of his cell window with a device he made in the metal workshop. He used a rope in order to climb down to the ground, then scaled a chain wire fence by using hooks made from a bucket handle in order to lift the barbed wire at the top of the fence. Appellant was arrested in a church 5 days later.
Aged 51 at time of escape - married with 6 children - violence towards wife - wife left & moved to secret location - several AVO's obtained by children because of appellant's threats of violence - supportive parents & brother - successful in business - chronic fatigue syndrome - depression - long-standing personality disorder - not a mental illness defence - multiple priors - previous imprisonment.
Whether error in sentencing judge determining offence well-planned - subjective features - whether sentence excessive.
Appeal dismissed.
59

KM, Van Nguyen, Nguyen, Tran - CCA, 18.3.2004
Santow JA, James J, Miles AJ
Citation: R v KM; R v Linh Van Nguyen; R v John Nguyen; R v John Tran [2004] NSWCCA 65
Crown appeal.
KM: 2 x detain for advantage; 2 x rob whilst armed with offensive weapon (pistol); maliciously inflict GBH with intent; AOABH - total of 3*y, NPP 18m.
Aged 16 - Indian ethnic background - drug & gambling habit - remorse - supportive family.
Linh Van Nguyen: 2 x detain for advantage; 2 x rob whilst armed with offensive weapon (pistol); maliciously inflict GBH with intent; AOABH - total of 5y, NPP 3y.
Aged 19 - born in Vietnam - heroin addiction - sporadic unskilled employment - de facto wife & daughter - need to maximise rehabilitation.
John Nguyen: 2 x detain for advantage; 2 x rob whilst armed with offensive weapon (pistol); maliciously inflict GBH with intent; AOABH - total of 5y, NPP 3y.
Aged 19 - born in Vietnam - comparatively limited role in offences - under influence of heroin at the time - need to maximise rehabilitation.
Tran: 2 x detain for advantage; 2 x rob whilst armed with offensive weapon (pistol); maliciously inflict GBH with intent; AOABH - total sentence of 5y, NPP 3y.
Aged 20 - born in North Vietnam - claim of being affected by heroin at time of offences - above average intelligence - need to maximise rehabilitation - prior offence of assault.
Respondents, in a joint criminal enterprise with other co-offenders, lured two victims to a house & detained them there until they obtained various personal property from them & the use of a credit card belonging to one of the victims to withdraw $2,000. The victims were kept overnight & their families made aware they were being held captive. Both victims, whilst bound, were repeatedly assaulted & threatened. One of the victims was repeatedly kicked & suffered a fractured sternum. The other victim suffered substantial injuries, although less serious. The victim who had sustained a fractured sternum was taken to his home to get the registration papers for his car, then taken to the Motor Registry & forced to sign a document transferring his car to John Nguyen.
Whether sentences manifestly inadequate.
KM: Appeal dismissed.
Tran: Appeal allowed - new total sentence of 7y with NPP of 4y.
Linh Van Nguyen: Appeal allowed - new total sentence of 7y with NPP of 4y.
John Nguyen: Appeal allowed - new total sentence of 6y 3m with NPP of 3*y.
Note: Corrected in R v KM; R v Linh Van Nguyen; R v John Nguyen; R v John Tran (No.2) [2004] NSWCCA 173.
60

RAZZAK, Bilal - CCA, 19.3.2004
Levine, O'Keefe & Bell JJ
Citation: R v Razzak [2004] NSWCCA 62
Conviction and sentence appeal.
Malicious wounding with intent to do GBH; possess firearm without licence or permit.
Total of 8y with NPP of 5y.
A group of people approached the victim & his 4 or 5 companions as they were walking along a street at Darling Harbour. One of the men in the approaching group 'shoulder charged' one of the victim's companions. The victim went over to talk to the man who had done this to his companion. While he was talking to him, the appellant approached the victim & stabbed him in the right side of the abdomen. The victim was taken to hospital, underwent surgery & was discharged 4 days later. Appellant refused to participate in an identification parade. The firearm offence was disclosed at the time of appellant's arrest for the malicious wound offence.
Aged 19 at time of offences - on bond & bail at the time - pistol carried for protection - no remorse regarding firearm offence - imprisonment more onerous because of physical disabilities as a result of a shooting - prior property offence - no previous imprisonment.
Identification - whether error in admitting resemblance evidence - other circumstantial evidence - video of accused said to be 're-enactment'of offence - whether error in directions - whether sentence excessive.
Appeal dismissed.
61

KELLY - HC, 10.3.2004 - 218 CLR 216;78 ALJR 538
Citation: Kelly v The Queen [2004] HCA 12
On appeal from the SC of Tasmania.
Murder.
Evidence - admissibility of statement made to police after video-recorded interview was completed - where statement was not made in response to any police question - whether statement 'made in the course of official questioning'within the meaning of s.8(1)(b) Criminal Law (Detention and Interrogation) Act 1995 (Tas).
Appeal dismissed.
62

WILLIAMS, Brett Robert - CCA, 22.3.2004
Beazley JA, O'Keefe & Bell JJ
Citation: R v Williams [2004] NSWCCA 64
Crown appeal.
(1) Aggravated B&E with intent to commit a serious indictable offence (steal, in company) - sentence deferred for 12m pursuant to s.11 order under Crimes (Sentencing Procedure) Act 1999 to enable respondent to attend drug treatment programme.
(2) B&E and commit serious indictable offence (steal) - sentence deferred concurrent with (1).
(3) B&E and commit serious indictable offence (steal) - sentence deferred concurrent with (1).
(4) B&E with intent to commit serious indictable offence (steal) - sentence deferred concurrent with (1).
Form 1 offences: take & drive conveyance; BE&S; 2 x goods in custody; possess prohibited drug; possess house-breaking instruments.
The sentencing judge indicated a sentence as follows: '... with discounts the head sentence is in the vicinity of 2 years and 10 months with a non-parole period in the vicinity of 2 years and 2 months'Respondent had already served 5m pre-sentence custody at the time the s.11 order was made.
Respondent & his co-offender broke into & ransacked a house with the intention of stealing property.
Respondent entered a house 6 weeks later & stole a computer & 2 fax machines (total value $1,300).
Respondent broke into office premises & stole equipment, including electrical equipment, VCR's & printers (value in excess of $15,000).
Respondent jemmied open the front sliding door of business premises. At the time, he had in his possession a backpack containing a number of house-breaking implements.
Aged 32-33 at time of offences - on bail at time of arrest - early guilty plea - serious drug problem - extensive criminal record - previous imprisonment.
Whether error in granting an adjournment of sentence proceedings to facilitate respondent'ss rehabilitation - whether order under s.11 manifestly inadequate because it was not made clear to respondent that a custodial sentence was still appropriate at the end of the period of adjournment.
Appeal dismissed. R v Palu (2002) 134 A Crim 174; R v Trindall (2002) 133 A Crim R 119 referred to.
63

WM - CCA, 12.3.2004
Grove, Sully & Bell JJ
Citation: R v WM [2004] NSWCCA 53
Crown appeal.
Malicious shooting with intent to avoid apprehension; detain for advantage; fire firearm in public place; aggravated armed robbery (assault rifle); possess firearm; + Form 1 offences (10 x armed robbery; 2 x robbery in company; AOABH; 5 x be carried in conveyance).
Total sentence of 5y with NPP of 2*y to be served in a juvenile detention centre until age 21.
Armed with a shotgun, respondent & his 2 companions attempted to rob a sushi restaurant. A restaurant staff member managed to disarm them, whereupon the offenders fled the scene. Some weeks later, respondent & others, armed with a military assault rifle, robbed a hotel ($26,000 cash taken). Some 3 weeks later, respondent, in company & armed with a military rifle, robbed a TAB. In response to an alarm, police arrived on the scene & called out to offenders to drop their weapon & surrender. A confrontation took place & respondent placed a TAB staff member in a headlock & used her as a 'human shield'The woman was released after some minutes & the offenders fled on foot, pursued by police. While the offenders were being chased, respondent turned & fired shots at the pursuing police officers.
Aged 17 at offences - appalling level of criminality - contempt for law & public safety - brazen amorality - claim of remorse to be treated with caution - prior similar offences - Children's Court convictions - previous imprisonment.
Objective criminality - totality - limited value of youth in mitigation - extraordinary & unsustainable leniency in sentencing - manifest inadequacy of sentences.
Appeal allowed: resentenced to total of 9y with NPP of 6y to be served in a juvenile detention centre until age 21.
64

WM - CCA, 19.3.2004
Grove, Sully & Bell JJ
Supplementary judgment to judgment given in R v WM [2004] NSWCCA 53, correcting discrepancy in dates.
65

CROMARTY, Ian Ross - CCA, 22.3.2004
Simpson, Kirby & Bell JJ
Citation: R v Cromarty [2004] NSWCCA 54
Crown appeal.
Unauthorised possession of firearms in aggravated circumstances; possess unregistered firearms; possess firearms with defaced identification marks; unauthorised possession of prohibited weapons; possess shortened firearms; + offences on a Form 1 (possess significant quantity of ammunition without licence or permit, failure to keep safe a firearm).
Total sentence of 3y with NPP of 2y, with an order that firearms be forfeited.
Firearms Crimes Squad officers executed a search warrant upon respondent's home where they discovered what was described as the largest cache of weapons ever taken from a private individual in Australia. These weapons were found in the house and concealed in a false ceiling. There were 4 machine guns, 4 sub-machine guns, 24 self-loading rifles, 3 self-loading shotguns, 45 rifles, 58 pistols, 10 defaced pistols, a mortar bomb, 7 grenades, an inoperative rocket launcher, 7 silencers, a cross-bow, 2 shortened self-loading rifles and 2,850 cartridges of ammunition. Apart from a back-to-base alarm, there was limited security in the home.
Respondent entered a guilty plea in the LC.
Objective seriousness - whether sentence manifestly inadequate.
Appeal allowed: new total sentence of 4y with a NPP of 2y.
66

JLC-H - CCA, 22.3.2004
Santow JA, Hulme & Hidden JJ
Citation: R v JLC-H [2004] NSWCCA 70
Application for leave to appeal against sentence.
1 x aggravated sexual intercourse without consent (infliction of ABH); + offences on a Form 1 (2 x sexual intercourse without consent taken into account.
10y with a NPP of 7y, to be served in a children's detention centre until age 21.
The victim was having consensual sexual intercourse with the applicant & another man. All had been drinking & smoking marijuana. When the victim went to the toilet, the applicant followed her. He entered the toilet & threw the victim to the floor, then performed non-consensual sexual acts upon her, including penile-vaginal intercourse, anal intercourse & inserting his fist into her vagina. The victim suffered extensive bruising & abrasions, injuries to the jaw & teeth, as well as severe injuries to the perineum, which required surgery.
Aged 16y 9m at time of offences - aged 18y 2m at time of sentencing - guilty plea at earliest opportunity - 25% discount - on bond at time of offence - father of 3 year old child - well behaved in detention centre - priors include driving offences, contravene AVO, malicious damage - no previous imprisonment.
Whether sufficient weight given to applicant's youth - whether too much emphasis placed on general deterrence.
Appeal against severity of sentence allowed: after applicant has had the opportunity to file any further evidence relied upon and the Crown to respond, there is to be a further hearing, limited to sentence only.
67

DI GREGORIO, Guiliano - CCA, 19.3.2004
Beazley JA, O'Keefe & Bell J
Citation: R v Di Gregorio [2004] NSWCCA 9
Crown appeal.
BE&S; carried in conveyance without consent; + Form 1 offence (make false statement).
Sentence proceedings adjourned to 25.6.2004 pursuant to s.11 Crimes (Sentencing Procedure) Act 1999.
The Crown's appeal against the order adjourning proceedings was brought pursuant to s.5D Criminal Appeal Act 1912.
After jemmying open a window, respondent entered a house & ransacked it. He stole a camera & 2 lenses (value $1,550). He subsequently accepted a lift in a car in order to visit his de facto partner, knowing that the car had been taken without the consent of the owner. Respondent later pawned the stolen goods by signing a false statement of ownership.
Aged 32 at time of offences - guilty plea on day of trial - on parole & GBB at time of offences - drug use from early age - unsuccessful attempts at rehabilitation - never been employed - low cognitive skills - intended to complete trade course started whilst in custody for previous offences - lengthy criminal history dating back to age 13 - most of adult life spent in custody.
Whether sentence manifestly inadequate.
Appeal dismissed.
68

SPEER, Allan James - CCA, 22.3.2004
Beazley JA, O'Keefe & Bell JJ
Citation: Speer v R [2004] NSWCCA 118
Sentence appeal.
Import commercial quantity heroin (gross weight 3.4687 kgs producing 2.5411 kgs pure heroin).
16y with NPP of 10y.
Applicant was arrested at Mascot Airport following the discovery of heroin concealed within the walls of his suitcase. Applicant pleaded guilty on the 1st day of his trial (11.11.2002). He was remanded for sentence but the sentence hearing did not take place until 14.2.2003. This hearing was not before the judge before whom he pleaded guilty, but before another judge. In the interval between the entry of the guilty plea & the sentence hearing, the Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act 2002 (Cth) was assented to. The effect of this Act was to provide for the repeal of s.16G of the Crimes Act 1914 (Cth) effective from 16.1.2003.
Aged 25 at time of offence - no previous convictions.
Whether sentencing discretion miscarried - sentence outside permissible & appropriate range - error in finding s.16G Crimes Act 1914 had no application in sentencing procedure - whether sentence excessive.
Appeal allowed: resentenced to 9y with NPP of 6y.
69

CHRISTOU, Rebecca Elizabeth - CCA, 17.12.2003
James & Howie JJ
Citation: R v Christou [2003] NSWCCA 415
Sentence appeal.
Receiving.
2y with NPP of 1y.
Applicant & co-offender were arrested whilst attempting to pawn goods stolen from a house earlier that day. The co-offender received the same overall sentence as the applicant, despite being convicted on additional charges, including BE&S & stealing a motor vehicle.
Aged 25 at time of offence - drug addict - on GBB at time of offence - poor prospects of rehabilitation - multiple priors - previous imprisonment.
Parity.
Appeal allowed: resentenced to 15m with NPP of 7m.
70

SABBAH, Henry Aaron - CCA, 19.3.2004
Ipp JA, Sully & Adams JJ
Citation: R v Sabbah [2004] NSWCCA 28
Conviction and sentence appeal.
2 x detain for advantage; 2 x robbery.
Total sentence of 10*y with a NPP of 7y.
Applicant was found guilty on the above counts and not guilty in respect of a further count of robbery. His co-offender faced trial on the same counts. The jury was unable to reach agreement as to the verdicts in respect of the co-offender.
Consistency of differing verdicts for different counts - reasonableness of verdicts - warnings - directions on accused not giving evidence - claim of right - acting on behalf of another - whether sentence manifestly excessive - approach to be taken in sentencing - totality.
Appeal dismissed.
71

EL-HAYEK, Nakle - CCA, 27.2.2004 - 144 A Crim R 90
Hodgson JA, Grove & Howie JJ
Citation: R v El-Hayek [2004] NSWCCA 25
Conviction and sentence appeal.
Robbery armed with dangerous weapon.
5y 4m with NPP of 4y.
Appellant & 2 co-offenders were charged with 6 offences contained on one indictment. Appellant was convicted on one count. Defence counsel had made an earlier unsuccessful application for offences relating to incidents occurring at an oval to be separated from offences relating to incidents at hotels.
Aged 20 at time of offence - born in Lebanon - migrated to Australia with family at age 3 - no contrition - no remorse - no priors.
Whether miscarriage arose from joint trial - whether conduct of Crown caused miscarriage - failure to discharge jury - summing-up - adequacy of directions on uncharged criminal conduct - whether sentence excessive.
Appeal dismissed.
72

CAMPTON, Sean Leigh - CCA, 24.3.2004
Simpson, Kirby & Bell JJ
Citation: R v Campton [2004] NSWCCA 56
Crown appeal.
Dangerous drive occasioning GBH.
2*y with NPP of 1*y to be served by way of PD.
Respondent & his girlfriend had an argument whereupon respondent went to a hotel & consumed alcohol. He drove to another hotel & continued drinking. Respondent & a passenger then drove to yet another hotel. They went through a red light & collided with a vehicle driven by the victim. Respondent fled from his car with the passenger & hid until he was eventually found by police. At the time of the offence, respondent was unlicensed & his vehicle uninsured & unregistered. He had a blood alcohol reading of 0.14. The victim was trapped in his car & had to be rescued by emergency workers. He sustained injuries to his sternum & collarbone, a haematoma to his hamstring, seatbelt burn, as well as a macerated injury to his forearm. He remained in hospital for 3 weeks.
Aged 29 at time of offence - guilty plea at 1st available opportunity - sentenced 2 years after offence - left school at early age - leading apprentice jockey - administration of drugs whilst in hospital for gangrenous leg led to later drug addiction - polysubstance use & heroin addiction - remarkable steps toward own rehabilitation - poor driving record - multiple prior driving offences - no previous imprisonment.
Application of guidelines - delay - discretion on Crown appeal.
Whether sentence manifestly inadequate.
Appeal dismissed.
73

HORNE, Jason Leslie - CCA, 19.3.2004
Beazley JA, O'Keefe & Bell JJ
Citation: R v Horne
Crown appeal.
Escape; aggravated BE&S (in company); + 13 offences on a Form 1.
Total sentence of 3y with NPP of 2y 4m.
Respondent & his de facto wife broke into private homes & stole property & ransacked the premises. When respondent was taken into custody for unrelated offences & sentenced to 15m imprisonment, this criminal activity ceased. Respondent escaped within one month of being imprisoned. Respondent & his de facto were arrested 8 days later whilst travelling in a stolen vehicle.
Aged 31 at time of offences - he & de facto addicted to amphetamines - previous marriage - father of 3 - had overcome addiction whilst in prison - need for continued support - multiple priors - previous imprisonment.
Appeal dismissed on escape offence.
Appeal allowed in respect to counts 2, 3, 4 & 5: resentenced on counts 2, 3 & 4 to 4*y with NPP of 2y 8m; resentenced on count 5 to 6y with NPP of 3y 4m.
New total sentence of 6y 8m with NPP of 4y.
74

HUNYH, Simon - CCA, 22.3.2004
Studdert, James & Dunford JJ
Citation: R v Hunyh [2004] NSWCCA 79
Conviction appeal.
Detain for advantage; armed robbery with a dangerous weapon.
Total sentence of 3y with a NPP of 2y, backdated to date of arrest.
Appellant faced trial on 9 counts. After a 3 week trial, the jury acquitted him of 7 of those counts and found him guilty on 2 counts.
The 2 victims were invited to a house to play cards for money. As the game was about to start, a group of armed men entered the room. They assaulted, threatened & robbed the victims, each victim sustaining bodily harm. They were tied up overnight & threatened. The following morning, 2 of the offenders took one victim to his home to obtain registration papers for his vehicle. He was then forced to accompany them to a motor registry where one of the offenders effected a transfer of the registration of the victim's car. Identification of the appellant by the victims was the primary issue at trial.
See also: R v KM; R v Linh Van Nguyen; R v John Nguyen; R v John Tran [2004] NSWCCA 65.
Verdicts unreasonable & not supported by evidence - reasonable doubt on identification - victim taken to registry gave evidence appellant did not accompany him there - reasonable doubt as to guilt.
Appeal allowed: verdicts of acquittal entered.
75

KANE, Jason Michael - CCA, 19.3.2004
Studdert, Sully & Dunford JJ
Citation: R v Kane [2004] NSWCCA 78
Conviction and sentence appeal.
1 x armed robbery.
8y with NPP of 6y.
The Crown case was a circumstantial one. The applicant, wearing a balaclava & carrying a knife, burst into a TAB agency, forced the victim to open a door into the office & took $2,389 from a tray, then left. The victim recognised the general demeanour & physical characteristics of the assailant as one of a regular customer to the agency. She also took notice of his above-average height. Applicant threw away the balaclava a short distance from the premises & it was recovered by police. Remnants of skin above the eyeholes in the balaclava were tested for DNA & a successful profile obtained. This was compared with DNA from a cigarette later discarded by the applicant & a hair sample taken after his arrest. Forensic testing revealed an identical profile in all the DNA samples.
Aged 27 at time of offence - early cannabis, amphetamine & alcohol use - started using heroin from age 22 - no remorse - series of previous breaches of CSO's, recognizances, PD - extensive criminal record - previous imprisonment.
Whether verdict 'unsafe and unsatisfactory'- whether wrongful admission into trial of certain DNA evidence - whether error in not directing verdict of acquittal at close of Crown case - whether case fell substantially within Henry- whether sentence excessive.
Appeal dismissed.
76

HUTTON, Anthony Kendall - CCA, 19.3.2004
Sully, Simpson & Sperling JJ
Citation: R v Hutton [2004] NSWCCA 60
Sentence appeal.
21 offences contravening s.31(1) Financial Transaction Reports Act 1988 (Cth).
Total sentence of 3*y with a NPP of 2y 1m.
The offences involved 299 transactions over a 17 month period totalling $2,741,160.73. Applicant used different names & details & attended a number of banks in person. The offences, which were systematically well planned & efficiently executed, involved each transaction being less than $10,000 in order to avoid paying a financial transaction tax. The applicant was subject to various surveillance operations over the period of time the offences were committed. His wife was charged with 2 offences & received a sentence of 12m with a NPP of 6m.
Aged 42 at time of 1st offence - guilty plea - commenced offending when unemployed, depressed - highly intelligent - good prospects of rehabilitation - no priors.
Whether error in partly & fully accumulating sentences - whether total sentence excessive - whether error in failure to give sufficient credit for guilty plea.
Appeal allowed insofar as the NPP reduced to 18m.
77

JJM - CCA, 17.3.2004
Hodgson JA, Shaw J, Smart AJ
Citation: R v JJM [2004] NSWCCA 71
Sentence appeal.
Armed robbery with offensive weapon in company and wounding.
5y with NPP of 3y.
The applicant (armed with a toy gun) & his co-offender (armed with a knife & a toy gun) entered a general store. Applicant remained near the front door while the co-offender threatened the female owner with a knife & demanded money. A struggle took place & the victim received a laceration to the hand. The co-offender then took $294. The victim received a further laceration to her hand when she went to her father's assistance as he tried to block the co-offender's escape from the store. Both offenders managed to get away. A short time later, the applicant went to a clinic in the grounds of a nearby hospital & admitted the offence to staff.
Aged 27 at time of offence - early surrender - on bond for high range PCA at the time- valuable assistance to authorities - genuine contrition - paranoid schizophrenia - mental condition not a factor in offending behaviour - drug & alcohol abuse - need for long-term rehabilitation & psychiatric support - unemployed - probably a pathological gambler - motive to obtain money - co-offender the dominant party - continuing serious health problems - prior traffic offences - no previous imprisonment.
Joint criminal enterprise - special circumstances - mitigating factors.
Appeal allowed: resentenced to 4y with a NPP of 2y.
78

JOHNSON - HC, 30.3.2004 78 ALJR 616
Citation: Johnson v The Queen [2004] HCA 15
On appeal from the SC of WA.
Appellant was convicted of 2 counts of attempting to obtain possession of prohibited imports (s.233B Customs Act 1901, Cth).
11*y with NPP of 5*y.
Whether sentencing judge applied peculiarly WA sentencing principles - whether express reference to relevant considerations in s.16A(2) Crimes Act 1914 (Cth) necessary - totality principle where sentencing for commission of several offences - whether sentencing judge must fix sentence for each offence and aggregate them before determining questions of totality or concurrence - whether sentencing judge may in some circumstances lower each sentence before aggregation - instinctive or intuitive synthesis approach to sentencing - effect of factual errors made by CCA where 2 offences contain common element - whether factual errors made in dismissing appeal necessarily leads to conclusion that sentencing judge erred - whether sentence properly reflects consideration of whether defendant was truly engaged upon one multi-faceted course of criminal conduct.
Sentencing in accordance with Pearce (1998) 194 CLR 610.
Appeal allowed: matter remitted to the CCA of WA for consideration and determination in accordance with reasons of the HC.
79

BALOGUN, Muri Junior - CCA, 26.3.2004
Sully, James & Hulme JJ
Citation: R v Balogun [2004] NSWCCA 72
Conviction and sentence appeal.
Attempt possess commercial quantity MDMA (ecstasy).
8y with NPP of 5y.
Customs officials intercepted a package sent from London. Inside the package were 3 packages of tablets containing a pure weight of 1.323 kgs of methylenedioxymethamphetamine (MDMA) & 8.5 grams of methylamphetamine. A controlled delivery was made to an address, where the package was accepted by a woman. Several phone calls took place between the woman & the appellant. Shortly thereafter, the appellant collected the package. He was seen taking it to a park & was later seen leaving the park without it. He was arrested & the package was found in the park under fallen leaves near a flight of steps. At trial, appellant gave evidence of having no knowledge of the contents of the package. He claimed to have only picked it up as a favour for a friend.
Identification evidence - whether error in directions - role that of 'internal'courier - whether sentence excessive.
Appeal dismissed.
80

MJJ - NSW SC, Barr J, 18.2.2004
Citation: R v MJJ [2004] NSWSC 57
Reasons for verdict.
Count 1: wound with intent to murder;
Count 2: malicious wounding with intent to do GBH - guilty plea;
Count 3: throw explosive substance with intent to do GBH;
Count 4: malicious wounding with intent to do GBH;
Count 5: use prohibited weapon - guilty plea.
The accused fired a cross-bow at the 1st complainant. The bolt passed through the complainant's chest, then hit a 2nd complainant in the legs, pinning them together. The accused then lit & threw a homemade bomb at the 1st complainant, however, the bomb did not explode. The accused & the 2 victims were under 16 years of age.
Whether relevant intent - whether possibility that bolt could have changed direction in air after firing - whether accused of good character.
Count 1: not guilty verdict.
Count 2: convicted pursuant to guilty plea.
Count 3: not guilty verdict.
Count 4: guilty verdict.
Count 5: convicted pursuant to guilty plea.
81

PROMIZIO, Alberto - CCA, 31.3.2004 - 142 A Crim R 592
Sully, James & Hulme JJ
Citation: R v Promizio [2004] NSWCCA 75
Conviction appeal.
Import trafficable quantity cocaine.
9y with NPP of 4*y.
Appellant arrived at Sydney on a flight from Argentina. Customs officers noticed that one of his suitcases had an excessively thick base & there was a strong smell of glue emanating from within. When Federal Police broke away part of the base, they discovered 12 packages of cocaine (50% purity with bulk weight of 1981.3 grams, pure weight of 966.8 grams). Appellant claimed to have borrowed the suitcase from a friend. He said he had been "tricked". Tests were carried out on appellant'ss passport & a document purse which revealed high readings for the presence of cocaine.
Argentinian - little knowledge of English - no legal representation - application of Dietrich v The Queen (1992) 177 CLR 292.
Appeal dismissed.
82

PAVICEVIC, Dusan - CCA, 27.2.2004 - 144 A Crim R 163
James J
Citation: R v Pavicevic [2004] NSWCCA 80
Sentence appeal.
Multiple offences (BE & commit serious indictable offence; B&E with intent; receiving; goods in custody; possess prohibited weapon; possess housebreaking implements; possess carbreaking implements; malicious damage).
Total FT of 15m.
Appellant had been sentenced in the Drug Court. The sentences were suspended on the condition that he undertook a programme as ordered by the Drug Court. Appellant eventually abandoned the programme & committed a further 14 offences. In sentencing appellant for both the original offences & 13 of the further 14 offences, the Drug Court judge exercised the jurisdiction of the LC.
Aged 25 at time of offences - major depressive illness - multiple priors - previous imprisonment.
Sentencing principles.
Appeal dismissed.
83

YOUKHANA, John - CCA, 6.4.2004
Studdert, James & Dunford JJ
Citation: R v Youkhana [2004] NSWCCA 87
Conviction appeal.
Count 1: affray;
Count 2: maliciously inflict GBH;
Count 3 (alternative to count 2): assault;
Count 4: maliciously inflict GBH upon a police officer acting in the execution of his duty;
Count 5 (alternative to count 4): assault upon the police officer;
Count 6: resist police officer in execution of his duty;
Count 7: escape lawful custody.
The jury returned verdicts of guilty on counts 1, 2, 4, 6 & 7.
Total sentence of 4y with NPP of 2*y.
Appellant appealed only in respect of his conviction in relation to count 4.
The appellant & 5 other men were standing in the vestibule of a train when a passenger boarded the train. The men blocked the passenger's access to the compartments & threatened him. The passenger left the train & sought help from State Rail employees. When they approached the men, the appellant struck the passenger in the face. This was seen by an off-duty police officer who was standing on the platform at the time. The police officer grabbed the appellant from behind, informed him that he was a police officer & told him that he was under arrest, whereupon appellant struck the police officer on the side of the face. The police officer was knocked to the ground semi-conscious & was further assaulted whilst on the ground. The appellant then fled from the scene. The police officer suffered a fractured maxillary sinus & the severance of a nerve in his cheek. The passenger suffered serious dental injuries.
Aged 25 at time of offence - multiple priors - previous imprisonment.
Joint criminal enterprise - extended joint criminal enterprise - directions - whether verdict supported by evidence.
Conviction appeal on count 4 upheld: conviction & sentence relating thereto quashed, new trial ordered in relation to count 4.
84

BRADLEY, Lisa Maree - CCA, 6.4.2004
Studdert, James & Dunford JJ
Citation: R v Bradley [2004] NSWCCA 88
Application for leave to appeal against sentence.
Supply prohibited drug (methylamphetamine); + 4 further drug offences on a Form 1 (cannabis, amphetamine, ecstasy).
2y with NPP of 1y (special circumstances found).
Police conducted a search of applicant's home. Applicant took a red plastic container out of a bedside cupboard, inside of which were 5 resealable plastic bags containing vegetable matter. She told police it was cannabis for her own personal use. Analysis revealed 10.8 grams of cannabis leaf. Also in the container were 5 resealable bags containing white powder. She admitted to police that this was amphetamine & said it was also for her own use. Analysis of the white powder confirmed it to be .42 grams amphetamine. A further 2 plastic bags were found in the container, each containing a capsule. Applicant said she believed the capsules to be ecstasy which she had purchased for her & her friends to share. Analysis confirmed them to be .23 grams MDMA (ecstasy). Applicant admitted supplying methylamphetamine & cannabis as well as supplying amphetamine on a regular basis over a 2 month period, selling 1 gram per day on behalf of another person in order to finance the purchase of a pound of cannabis for her own use. She said she broke up 1 gram of amphetamine into .1 gram deals, which she sold for between $40-$60, depending on the quality of the drug. She said she earned $2,000-$5,000 per week for the person supplying her with the drug. She told police that she stopped selling the amphetamine because she thought she had been ripped off by her supplier. The sentencing judge found applicant was dealing to a substantial degree.
Street dealer - health a relevant factor in sentencing - R v Smith (1987) 44 SASR 587 - whether counsel's failure to present medical evidence resulted in miscarriage of justice - R v Goodwin (1990) 51 A Crim R 328.
Leave to appeal refused.
85

BALDWIN, Wayne - CCA, 22.3.2004
Levine, O'Keefe & Bell JJ
Citation: R v Baldwin [2004] NSWCCA 21
Conviction appeal & application for leave to appeal against sentence.
7 x assault; 3 x indecent assault; 6 x buggery; 2 x sexual intercourse without consent; 2 x accessory before the fact to sexual intercourse without consent; accessory before the fact to buggery.
Total sentence of 20y with a NPP of 15y.
The complainant, who was in the care of DOCS, went to live with appellant, believing he had been appointed his guardian. Complainant was aged 15 at the time. Over some 2* years, a number of sexual & indecent assaults were alleged to have been perpetrated upon the complainant by the appellant. There were also offences which involved appellant procuring others to perform sexual acts upon the complainant, as well as assault offences involving the slapping, punching & kicking of the complainant on numerous occasions. All offences were alleged to have occurred between 1981-1984. During cross-examination, the complainant made various references to ongoing acts of sexual assault that were not charged, as well as reference to "rough sex" occurring between the appellant & the complainant'ss half-brother, although the complainant was unable to say whether this was consensual or not. Neither counsel called for a direction on relationship evidence relating to uncharged acts of anal intercourse.
Aged approx 36 at time of 1st offences - multiple priors, including attempt indecent dealing with child under 16 & 5 x indecent assault - previous imprisonment.
Stale offences - delay - relationship evidence - evidence of uncharged acts - jury directions - miscarriage of justice - no evidence to support one of the assault charges.
Appeal allowed: judgment of acquittal directed in relation to the one assault charge; new trial directed with respect to the balance of the indictment.
86

HAGARTY, Kenneth James - CCA, 2.4.2004 - 145 A Crim R 138
Simpson, Sperling & Bergin JJ
Citation: R v Hagarty [2004] NSWCCA 89
Conviction appeal.
5 x sexual intercourse with child under 10; 4 x sexual intercourse with child between 10 & 16; 2 x indecent assault.
The principal evidence on which appellant was convicted was that given by the complainant (14 at time of trial) & that given by her father. However, the critical evidence was that of the complainant herself. During the course of giving evidence, the complainant gave evidence of sexual conduct on the part of the appellant which was not the subject of any one or more of the charges.
Admissions - use of relationship evidence otherwise than as evidence of tendency - standard of proof - adequacy of directions.
Appeal dismissed.
87

McLELLAN, Traceylee Joy - CCA, 17.3.2004
Hodgson JA, Shaw J, Smart AJ
Citation: R v McLellan [2004] NSWCCA 73
Sentence appeal.
Multiple fraud offences (make false statement; make false instrument; provide document with intent to pervert course of justice; obtain money by deception).
Total sentence of 5*y with NPP of 4*y.
Applicant committed 108 dishonesty offences over a period of 16 months involving $247,000. She obtained identity documents such as a birth certificate or a concession card & photocopied them. After making alterations to copied documents, she used the altered documents to obtain credit cards & open accounts with various financial institutions. The offences revealed widespread dishonesty & serious criminality. Whilst on bail & prior to being sentenced, she obtained a letter from her doctor which described her medical condition. She used the letterhead & the signature but added to the contents of the letter a number of other matters, including statements that she was suffering from cancer & other serious complaints, with a view to influencing the sentence she would receive.
Aged 27 at time of 1st offence - unhappy childhood - long-standing gambling problem - unhappy marriage - 4 children, only one living with applicant at time of offences - in a stable relationship for past 3 years - volunteer at child care centre - demonstrated remorse - personality disturbance - need for extended treatment & supervision upon release - prior multiple dishonesty offences - previous imprisonment.
Attention not paid to special circumstances warranting shorter NPP.
Appeal allowed insofar as NPP for 7 counts each reduced to 2y 3m.
New total term of 5*y with NPP of 3y 9m.
88

WILSON, Frank Malcolm - CCA, 6.4.2004
MURPHY, Sharon Lee
Handley JA, Dowd & Greg James JJ
Citation: R v Wilson; R v Murphy [2004] NSWCCA 94
Sentence appeals.
Murphy: steal from the person; + Form 1 matter taken into account (receiving) - 3*y with NPP of 1y. This sentence was entirely cumulative upon a 12 month FT imposed for another offence.
Wilson: steal from the person; + 3 Form 1 offences (stealing) - 3*y with NPP of 2y.
Applicants were apprehended going through the contents of a handbag, after one of them was seen to steal it from a victim seated at a food stall in a shopping mall. All but one of the items in the handbag were returned to the owner.
Both applicants have an appalling criminal record - at time of offence Wilson aged 22, Murphy aged 33 - both addicted to drugs.
Special circumstances - Aboriginality - general and personal deterrence - objective criminality not of the most serious type.
Appeals dismissed.
89

MM - CCA, 31.3.2004 - 145 A Crim R 148
Levine & Howie JJ, Smart AJ
Citation: R v MM [2004] NSWCCA 81
Conviction and sentence appeal.
6 x indecent assault upon male; 2 x buggery.
Total sentence of 8y with NPP of 6y.
Appellant was found guilty of the above offences & not guilty of a further offence of indecent assault upon a male.
Appellant was a teacher at Scots College from 1.6.1981 until the end of the school year in 1982. From early 1983 until 1986 he lived & worked in Victoria. The complainant was a pupil at Scots College from Year 6 until he left at the end of 1983 after completing Year 10. He was aged between 14 & 16 years at the time of the offences. Appellant was the complainant's tutor master for one period in 1982 & was also in charge of the school naval cadets. The complainant first spoke to police about the allegations in January 1999. From 3.2.1999 to 20.4.1999 a 'comprehensive statement' was taken from the complainant by police & the appellant was charged on 16.9.1999.
Delay in complaint- complainant's credibility - whether error in failure to adequately warn - Longman direction - sufficiency - warning - comment - counsels' addresses - propriety - s.159 Criminal Procedure Act - whether verdicts unreasonable - whether sentence excessive.
Appeal dismissed.
90

SKAF, Bilal - CCA, 7.4.2004
GHANEM, Mohamed
HAJEID, Belal
Mason P, Wood CJ at CL, Sully J
Citation: R v Skaf, Ghanem & Hajeid [2004] NSWCCA 74
Conviction appeals.
Kidnapping; sexual assault in company.
The complainants, who were year 12 students, were at a Chatswood shopping centre where they met a group of 8 males (including appellants). Skaf offered to give them marijuana & a lift home. The complainants accepted & travelled with 4 of the males in a white van, one of the males being Skaf. According to the complainants' evidence, 4 other males (including Ghanem & Hajeid) followed in a red car. They ended up at Northcote Park in Greenacre, where the complainants were forced to participate in numerous acts of oral intercourse. Other males joined in the assaults at the park. The complainants were repeatedly threatened & hit by the appellants & others. This was a joint criminal enterprise where the offenders took turns in forcing each of the complainants to perform oral sex upon them & watched as the 2 complainants were assaulted by their co-offenders. Skaf was charged with an additional charge of sexual intercourse against the 1st complainant, as well as with 2 other sexual assaults & an additional assault upon the 2nd complainant. After the assaults, the offenders left the complainants in the park. The complainants then phoned the police.
Separate trial applications - evidence of prior convictions - whether good character had been raised - identification evidence - directions - whether defence submissions unsupported by evidence impacted upon fair trial for co-accused - judicial response thereto - whether warning about unreliability of evidence of co-accused appropriate - directions in relation to failure to testify - whether comment infringed s.20(2) Evidence Act - whether address of counsel for one defendant caused co-accused's trial to miscarry - whether verdicts unreasonable - evidence that medical examination of complainants was 'consistent'with their history of assaults.
Appeals dismissed.
91

MILAT - HC, 24.2.2004 78 ALJR 672
Citation: Milat v The Queen [2004] HCA 17
Application for special leave to appeal.
7 x murder; 1 x detain for advantage.
Presentation of oral argument - summons seeking order that applicant be brought before Court for hearing of special leave application or that applicant be heard by video link - status of applicant for special leave - discretionary factors.
Summons and application dismissed.
92

MOSTYN, John Joseph - CCA, 15.4.2004 - 145 A Crim R 304
McColl JA, Studdert & Howie JJ
Citation: R v Mostyn [2004] NSWCCA 97
Conviction and sentence appeal.
Indictment 1: Use offensive weapon with intent to avoid lawful apprehension; + Form 1 firearm offences - guilty plea.
Indictment 2: Maliciously inflict GBH; assault.
Total sentence of 6y 8m with NPP of 5y.
The appellant & the victim were married. There was a history of violence on the part of the appellant. After a night spent drinking with a friend, appellant arrived home & an argument took place, during which appellant injured the victim's back, kicked her in the head, ribs & stomach & grabbed her hair. The victim ran out of the house & got into her car, whereupon the appellant broke the window & threatened to kill her. The victim finally escaped & hid in the garden. Appellant went looking for her with a rifle in his hand & what appeared to be a pistol & bayonet. When police arrived, he threatened them with the rifle, however, police managed to arrest him. One police officer suffered a post trauma distress disorder as a result of the offence, which left him permanently disabled.
Protective custody - assistance to authorities - not on anti-depressant medication at time of offence because victim had hidden prescription - uncharacteristically intoxicated at time of offence - reasonable prospects of rehabilitation - remorse - prior firearm offences & breach of DVO - previous imprisonment.
Conviction appeal dismissed.
Sentence appeal allowed: new total sentence of 5* y with NPP of 4y.
93

TEASDALE, Brett Robert - CCA, 16.4.2004 - 145 A Crim R 345
Tobias JA, Adams J, Smart AJ
Citation: R v Teasdale [2004] NSWCCA 91
Conviction appeal.
Inflict GBH.
18m suspended sentence.
The Crown case was that in the early hours of the morning at a hotel in Hamilton, appellant threw a schooner glass at the victim, which struck him in the face & caused serious injuries. At the time, appellant was an off-duty police officer who was at the hotel with 10 to 12 other off-duty police officers.
Closing address to jury - where Crown invites jury to disbelieve witness evidence when no basis for making invitation - there was no cross-examination of the witnesses the jury was invited to disbelieve - trial judge'ss duty to direct jury to ignore unsubstantiated & improper assertions - whether trial miscarried - s.8(1) Criminal Appeal Act 1912 (NSW - whether jury ought to have entertained reasonable doubt - whether unsafe or unsatisfactory verdict - whether evidence contained discrepancies or lacked probative force - whether significant possibility that innocent person convicted - s.6(1) Criminal Appeal Act 1912 (NSW) - whether order for new trial appropriate.
Appeal allowed: verdict of acquittal entered.
94

KEEN, Dane - CCA, 15.4.2004
Sully, Simpson & Sperling JJ
Citation: R v Keen [2004] NSWCCA 86
Sentence appeal.
1 x robbery in company; 2 x robbery whilst armed with offensive weapon; 1 x drive conveyance without consent.
Total of 5y 11m with NPP of 4y 5m.
Three men, wearing novelty masks, entered a pharmacy & demanded money from a male pharmacist & a female employee. One co-offender produced a kitchen knife with a 25 centimetre blade. A female doctor was in the pharmacy at the time & managed to escape into an adjacent surgery where she dialled the emergency number, then hid. The men demanded more money & one was led to a back office where he was given some bags containing the proceeds of that & previous days. The 3 men then ran off to a vehicle in which the applicant was waiting nearby. It was his own vehicle, registered in his name. The registration number was taken by an observer who communicated it to police. A total of $3,829.95 was taken which was not recovered. The applicant was arrested 3 days later.
Two days after being arrested, 3 males, all wearing masks, robbed a liquor outlet. After the robbery, the 3 men were driven off by the applicant in a stolen car. The applicant parked the car at a nearby McDonalds restaurant & wiped the vehicle to erase fingerprints. When interviewed about this robbery, the applicant identified 2 of the co-offenders. The co-offenders apparently have never been arrested or charged with this offence. A total of $1,455.00 was taken during this robbery. The applicant received $150.00.
Another robbery was committed one week later at night. Applicant & 4 co-offenders, wearing masks, robbed a video store. One of the men held a knife & told the female attendant to give him the money, which she did. The proceeds of this robbery came to $520.00.
Guilty pleas - subjective circumstances - gambling addiction - parity - concurrence - totality - special circumstances - protective custody - rehabilitation.
Appeal allowed: resentenced to total of 5y with NPP of 3y.
95

JOHNSTON, Mark Anthony - CCA, 18.3.2004
Santow JA, James & Whealy JJ
Citation: R v Johnston [2004] NSWCCA 58
Application for leave to withdraw abandonment of appeal against conviction.
Murder.
Applicant was convicted of murder in a joint trial with 3 co-accused. A co-accused who had also been charged with murder was found not guilty. The remaining 2 co-accused were charged & found not guilty of being an accessory before the fact to murder, however, one of those co-accused was found guilty of soliciting to murder.
The Crown case was that the applicant was party to a joint enterprise to kill the deceased & that the applicant performed the actual act of stabbing.
Need for applicant to demonstrate meritorious grounds of appeal - various grounds of appeal asserted - whether grounds sufficiently meritorious to warrant withdrawal of abandonment of appeal.
Leave to withdraw abandonment of appeal against conviction refused.
96

MAKO, Keri Damon - CCA, 7.4.2004
Studdert , James & Dunford JJ
Citation: R v Mako [2004] NSWCCA 90
Sentence appeal.
Maliciously inflict GBH.
3y with NPP of 2y.
Applicant & his brother had consumed a considerable amount of alcohol & marijuana at a party. An argument developed between them as they were driving home. The car was stopped, they alighted from it, had a fight, then continued their journey. The argument started up again, whereupon the applicant picked up a pair of scissors from the seat next to him & cut the throat of the victim (his brother's girlfriend). The victim was sitting in the front seat at the time. The applicant then fled but was arrested a short time later. He told police that he was angry with his brother for not taking him home. The victim suffered a 10 centimetre long laceration to her throat which required 10 sutures, resulting in some disfigurement.
Aged 25 at time of offence - guilty plea - alcohol use since age 15, commenced heavy use of marijuana shortly thereafter - left school at age 17 - loving & supportive family - acknowledged problem with alcohol/drugs - remorse - prior offending related to alcohol abuse - previous imprisonment.
In sentencing, the sentencing judge erred in pronouncing the NPP first, followed by the term of sentence: s.44 Crimes (Sentencing Procedure) Act as it applied to offences committed before 1.2.2003 required him to set the term of sentence first, followed by the NPP.
Appeal allowed insofar as sentence quashed & pronounced correctly as a sentence of 3y with a NPP of 2y.
97

FRANCIS, Vincent - CCA, 7.4.2004 - 145 A Crim R 233
Mason P, Dunford & Simpson JJ
Citation: R v Francis [2004] NSWCCA 85
s.5F appeal against interlocutory judgment.
Applicant & 4 co-offenders were charged with conspiracy to import prohibited drugs. Solicitors for the applicant served a subpoena upon the Australian Customs service. On the 7th day of trial, an application was made on behalf of the Commonwealth to have part of the subpoena set aside. This application was successful & the subpoena was set aside on the basis of public interest privilege: s.130 of the Evidence Act 1995 (NSW). Applicant challenged that finding in the CCA. At trial, confidential submissions were made & a confidential affidavit was provided to the trial Judge. The same confidential evidence was before the CCA.
Objection to production of documents - public interest privilege - conduct of governmental functions - conflicting aspects of public interest.
Leave to appeal granted, appeal dismissed.
98

MATTHEWS, Rhonda Christine - CCA, 23.4.2004 - 145 A Crim R 445
Wood CJ at CL, Sperling & Hislop JJ
Citation: R v Matthews [2004] NSWCCA 112
Sentence appeal.
BE&S in circumstances of special aggravation (wounding); + Form 1 offence (possess 4.96 grams cannabis leaf).
11y with NPP of 7y.
The victim had assisted the applicant & applicant's co-offender in pawning some electrical goods & was given $50 for that assistance. Later that night, applicant & her co-offender broke into the victim's home in order to recover the $50. At the time, the co-offender was armed with an iron bar & the applicant with 2 knives. The victim was clubbed with the iron bar then stabbed 7 times. She suffered life-threatening injuries & severe blood loss. The applicant & her co-offender stole money, jewellery & other items.
There was no agreement as to the facts upon which applicant was to be sentenced. Evidence was called from the victim & from applicant's co-offender. Applicant was not called to give evidence, however, her electronically recorded interview was tendered. The sentencing judge found that neither the victim nor the co-offender were truthful witnesses.
Aged 46 at time of offence - reluctant participant in unprovoked attack - early guilty plea - 20% discount - intellectual impairment - long history of psychosocial problems - criminal history at lower end of spectrum - no previous imprisonment.
Specific deterrence - general deterrence.
Appeal allowed: resentenced to 9y with a NPP of 5*y.
99

MJM - CCA, 12.3.2004
Grove, Simpson & Sperling JJ
Citation: R v MJM [2004] NSWCCA 66
Sentence appeal.
9 x BE&S; 1 x enter enclosed land with intent to steal; 1 x use weapon to resist arrest (tomahawk); + Form 1 (drive in manner dangerous; possess prohibited drug).
Total sentence of 6y with NPP of 4y.
All offences involved applicant breaking into homes & stealing personal property. Most of the property was recovered. The 9 BE&S offences were committed in a single day & applicant was in the process of committing a further offence when he was interrupted by a neighbour. In an attempt to avoid apprehension by police, he fled to a nearby property, threatened police with a tomahawk & struck a police dog.
Aged 24 at time of offences - Aboriginal descent - deprived background - dysfunctional family - drug & alcohol abuse - had used drugs & alcohol at time of offences - itinerant lifestyle - some effort at rehabilitation whilst in prison - multiple priors - previous imprisonment.
Subjective circumstances - remarks on sentence - fresh evidence - assistance to authorities about a crime that occurred after applicant was sentenced - whether error in sentencing process.
Appeal dismissed.
100

LOGAN, Paul Jason - CCA, 16.4.2004
Wood CJ at CL, Sperling & Kirby JJ
Citation: R v Logan [2004] NSWCCA 101
Appeal against verdict of not guilty by reason of mental illness.
Aggravated robbery (use of corporal violence).
Appellant stole the victim's wallet containing $150 after striking him on the head & knocking him to the ground. He admitted the elements of the offence at trial, however, the trial judge was not satisfied that the necessary mental element in the offence charged had been established because he was not satisfied that the appellant was able to control his actions or understand that what he was doing was wrong in either a moral or legal sense. The trial judge returned a special verdict of not guilty by reason of mental illness & ordered that the appellant be detained in the psychiatric ward at Long Bay Correctional Centre or such other place as the Mental Health Review Tribunal should direct until his release was approved in accordance with the law.
Aged 26 at time of offence - priors - previous imprisonment.
Unfit to be tried - verdict of not guilty by reason of mental illness amply supported by medical evidence - application without merit.
Appeal dismissed.
101

UYRUN, Mustafa - CCA, 16.4.2004
Wood CJ at CL, Sperling & Hislop JJ
Citation: R v Uyrun [2004] NSWCCA 103
Crown appeal.
Multiple offences, including possess prohibited drug, BE&S, attempt BE&S, steal from a dwelling, state false name, goods in custody, larceny.
Total sentence of 26m with NPP of 8m.
This appeal was against the 'final'sentences as well as an additional sentence imposed by the Drug Court of NSW. Respondent spent a substantial period of time in custody before entering the Drug Court Programme & for sanctions imposed during the programme.
The respondent had engaged in a series of property & drug offences over a 7 month period, including a B&E during which he stole property in excess of $8,000 & another offence when he stole jewellery valued at more than $5,000. He subsequently broke into a house but was arrested by police. This matter was dealt with on indictment & despite the breach, the respondent was allowed to remain in the programme. Respondent subsequently stole a bus driver'ss wallet & two cheque books from the luggage compartment of a bus. He made full admissions to police. This matter was dealt with summarily.
Aged 18 at time of 1st offence - suffered from depression - lower than average intelligence - easily led - family support - remorse - prior matter dealt with in Children's Court - no previous imprisonment - special circumstances - rehabilitation - discretion - delay in Crown appeal.
Whether sentence manifestly inadequate.
Appeal dismissed.
102

MERLINO, Mario Joseph - CCA, 21.4.2004
Wood CJ at CL, Sully & Hislop JJ
Citation: R v Merlino [2004] NSWCCA 104
Conviction appeal.
2 x armed robbery.
8y with NPP of 5y.
When the 1st victim stopped his car at a red light, appellant, armed with a knife, entered through the passenger side. He drove off in the victim'ss car after stealing cash & the victim's mobile phone. Some hours later, he robbed the 2nd victim who had stopped his car at the same intersection. He told that victim that he had a problem with his own vehicle, whereupon the victim offered to give the appellant & his female companion a lift to his car. The appellant directed the victim into a poorly lit lane, where another car approached at high speed from behind. When the victim stopped his car, appellant & the female companion got out of the car & the appellant moved to the driver'ss side door. He was armed with a knife. The victim was robbed of his wallet, mobile phone & phone charger, as well as his car. The female companion drove off in the other car. The appellant & 2 females were later apprehended in the 2nd victim's car. A search of the car revealed a knife, the keys to the first victim'ss car, the 2nd victim'ss wallet & some syringes.
Whether trial judge erred in directions to jury on circumstantial evidence - whether prejudice caused by trials being run together - whether miscarriage due to jury being made aware that appellant & his alibi witness had been in prison - whether cross-examination by Crown invited adverse inferences relating to onus of proof & right to silence.
Appeal dismissed.
103

NEWMAN, Craig John - CCA, 23.4.2004
Wood CJ at CL, Simpson & Bell JJ
Citation: R v Newman [2004] NSWCCA 113
Sentence appeal.
2 x BE&S; + Form 1 (2 x goods in custody).
Total of 4y 11m with NPP of 3y 5m.
During daylight hours, appellant broke into dwelling houses. He stole computer equipment, electrical items, jewellery & a carton of cigarettes totalling $15,500 in value. On each occasion, he cut himself & left blood at the scene, the DNA profile of which matched his own profile to a high degree. When interviewed, he claimed to have no memory of the matters. At various points during the interview, he indicated that if DNA found at the scene matched his DNA, then he was not disputing that fact, but would not say anything until he knew. He also said that he did not want to answer any further questions, saying it was "over and done".
Aged 30 at time of 1st offence - long history of substance abuse - unsuccessful at rehabilitation - history of overdosing - deprived background - long criminal history, starting at age 12 - multiple priors - previous imprisonment.
Whether sufficient weight given to utilitarian value of guilty pleas.
Appeal dismissed.
104

GRUJEVSKI, Trajce - CCA, 22.3.2004
Beazley JA, O'Keefe & Bell JJ
Citation: R v Grujevski [2004] NSWCCA 117
Conviction appeal.
1 x detain with intent to obtain advantage (sexual gratification, aggravated, occasioning ABH).
3y with NPP of 18m.
Applicant was acquitted on 2 further counts (1 x assault; 1 x attempt sexual intercourse without consent).
The complainant, who had been drinking heavily at a club, was approached by the appellant. During the evening, a bar attendant saw the complainant trying to pull her arms away as the appellant held them. Although the complainant left with the appellant in the appellant'ss car, the appellant refused to allow her to get out of his vehicle when she requested to do so. He restrained her & punched her in the head & face several times when she tried to escape. He then drove her to an unoccupied house & dragged her inside as she screamed & struggled. There were 2 witnesses who heard the complainant screaming & saw the appellant struggling with her outside the house. There was no corroboration regarding what occurred in the house, although there was evidence of drag marks & footprints consistent with the shoes worn by both the appellant & the complainant. Also found at the house was a hairclip worn by the complainant, as well as traces of her hair & blood.
Aged 44 at time of appeal - prior low PCA - no previous imprisonment.
Inconsistent verdicts - principles to be applied - logic, reasonableness and commonsense.
Appeal dismissed.
105

JACKSON, Glen Alan - CCA, 21.4.2004
Wood CJ at CL, Sully & Hislop JJ
Citation: R v Jackson [2004] NSWCCA 110
Conviction appeal relating to count 1.
Sentence appeal relating to count 2.
Count 1: supply prohibited drug (amphetamine) on 3 or more separate occasions over a period of 30 consecutive days for financial or material reward - 3*y with NPP of 18m.
Count 2: BE&S - 18m.
There was a partial accumulation of the sentences, resulting in a total of 4y with a NPP of 2y.
Appellant entered pleas of guilty & was committed for sentence. At the commencement of the sentence proceedings, it was indicated to the sentencing judge that the original charge sheet had wrongly nominated amphetamine as the proscribed drug in connection with the supply charge, whereas subsequent analysis had shown the drug to be methylamphetamine. In order to rectify that error, the appellant was formally arraigned before the judge upon an indictment containing a count preferred pursuant to s.25A(1) Drug Misuse & Trafficking Act & another count pursuant to s.112(1) of the Crimes Act. Property stolen during the BE&S offence was described as 'a quadrunner motor cycle, a generator, a welder, a trailer and a quantity of tools'Appellant pleaded guilty to each of the 2 counts, was formally convicted & then sentenced.
Guilty plea - test to be met by applicant to reverse plea on appeal - s.25A(1) Drug Misuse and Trafficking Act 1985 - meaning of "financial or material reward to that person" - offence directed at person who gained a financial & material reward from the 3 or more transactions.
Conviction appeal allowed in connection with count 1: new trial ordered on that count.
Sentence appeal allowed in connection with count 2: resentenced on that count to 18m with a NPP of 12m 26d, with an order that the applicant be released to parole on 22.4.2004, being the day after the CCA judgment was handed down.
106

X - CCA, 8.4.2004
Grove, Sully & Bell JJ
Citation: R v X [2004] NSWCCA 93
Crown appeal.
Conspiracy to supply commercial quantity heroin.
2y suspended sentence.
Respondent was part of a well organised & effective drug syndicate. She employed a manager to run the business under her direction & paid couriers $200 per trip to collect & smuggle the heroin using hired vehicles. On 20 occasions between 1.5.2004 & 4.6.2004 respondent purchased heroin in1 ounce lots (28 grams) at a price ranging between $6,800-$8000 per ounce from her supplier in Cabramatta. The total amount purchased during this period was 618 grams at an estimated cost of between $150,085-$176,571. The heroin was packaged in 0.1 gram deals priced at $50 & was sold in & around the Newcastle area for an estimated return of $309,000. The sentencing judge found "[o]bjective criminality of a very high order."
Aged 31 at time of offence - ill health - chronic asthma & depression - not a drug user - life of violence & abuse - dysfunctional family - poor social supports - single mother of 5 children ages ranging from 3 weeks to 14 years - remorse - priors unknown.
Assistance to authorities - parity - hardship to family.
Whether sentence manifestly inadequate.
Appeal allowed: resentenced to 2*y with NPP of 1*y to be served by way of PD.
107

HALL, Timothy James - CCA, 30.4.2004
Handley JA, Dowd & Greg James JJ
Citation: R v Hall [2004] NSWCCA 127
Sentence appeal.
Supply prohibited drug (ecstasy).
2y with 1y NPP to be served by way of PD.
Applicant was observed by police to be sitting in a car with 4 other youths. A set of scales was on applicant's lap & he was holding a small plastic bag. When police stopped & searched the car, applicant attempted to dispose of a bag of what was thought to be cannabis as well as 2 bags containing ecstasy tablets. Also in his possession were 96 small empty plastic bags & 3 'tick sheets' detailing names, amounts & payments relating to drug transactions.
Applicant pleaded guilty & was sentenced. He sought leave to appeal against his sentence & was admitted to bail pending the hearing of his appeal.
Aged 18 at time of offence - early guilty plea - psychiatrically fragile state - depression - assistance to authorities - no priors.
Bail pending CCA appeal - sentence dates to reflect time spent on bail - statutory power to alter dates.
Appeal dismissed.
108

DANDACHLI, Moustafa - CCA, 16.4.2004
Sperling , Hidden & Howie JJ
Citation: R v Dandachli [2004] NSWCCA 100
Sentence appeal.
Dangerous drive occasioning death; dangerous drive occasioning GBH.
Total sentence of 4y with NPP of 3y, licence disqualified for 5y.
Applicant was driving a car carrying 4 passengers. He was seen driving on a freeway at speeds of up to 160 kph & was also seen changing lanes & overtaking traffic on numerous occasions. Although applicant's passengers had asked him to slow down on 4 separate occasions, he ignored their requests except for a short period when he saw a marked police vehicle. While attempting to overtake a truck, applicant manoeuvred his vehicle into the breakdown lane while driving at excessive speed. A 2nd truck was stopped in the breakdown lane having a blown tyre replaced. In the ensuing collision, a female passenger was killed & another suffered serious injuries. The applicant suffered some lesser injuries to his neck and back.
Aged 20 at time of offence - supportive family - no drug or alcohol problems - good record of education - poor driving record, numerous fines - prior suspension of licence - 2nd licence suspension was to commence 12 days after offence occurred - genuine contrition - unlikely to re-offend.
Manner of determining NPP - whether lesser sentence warranted.
Appeal dismissed.
109

OHAR, Adam - CCA, 23.4.2004 - 59 NSWLR 596;145 A Crim R 453
Studdert, James & Dunford JJ
Citation: R v Ohar [2004] NSWCCA 83
Crown appeal and application for leave to appeal against sentence.
4 x goods in custody; breach of recognisance; malicious damage; carried in conveyance without consent of owner; BE&S; possess housebreaking implements; aggravated carjacking (maliciously inflict ABH); 2 x use offensive weapon to prevent lawful apprehension; larceny; drive in manner dangerous.
Total of 6y with NPP of 4y 3m.
The above offences were divided into 3 groups. When sentencing for the 1st group of offences, the judge exercised the jurisdiction of the LC in accordance with s.12 Drug Court Act. In sentencing for the 2nd group of offences, he exercised the jurisdiction of the DC pursuant to s.24(1)(a) Pt.3 of the Drug Court Act & was therefore not subject to the provisions & restrictions of s.12. In sentencing for the 3rd group, the judge exercised the jurisdiction of the LC pursuant to s.24(1)(b) & was subject to the restrictions applying to the LC, although not subject to the provisions of s 12. The aggravated carjacking offence was committed whilst offender was on conditional liberty, having absconded from a rehabilitation programme. When he entered the vehicle, he was unaware of the presence of a child in the vehicle. When he became aware of the child's presence, he drove on for some time before stopping the car & pushing the child from the vehicle. While pushing the child out, the child hung onto the door handle & the offender shut the door on his arm. The child then pulled his arm free, the offender shut the door, then sped off at high speed, leaving the child unattended beside the Pacific Highway. The child suffered bruising & swelling to his left wrist.
Aged 29 at time of 1st offence - long history of drug abuse - alcohol abuse from early teens - appalling criminal history - assaulted twice whilst in custody - protective custody - previous imprisonment.
Sentencing principles - Drug Court - competency of appeals - constitution of CCA - delay in instituting Crown appeal - statutory NPP.
Crown appeal dismissed.
Sentence appeal dismissed.
110

SMITH, Brian Michael - CCA, 31.3.2004
Sperling, Hidden & Howie JJ
Citation: R v Smith {[2004] NSWCCA 95
Sentence appeal.
Demand money with menaces with intent to steal.
3y with NPP of 2y.
Applicant approached the victim & they began walking together. After a short distance, applicant seized the victim by the shirt & demanded money. He took the victim to a nearby park & searched his bag. He found the victim'ss keycard & asked for the PIN number. Applicant then searched the victim'ss pockets, removed his shoes & instructed him to accompany him to a nearby ATM, however, the victim managed to escape.
Aged 21 at time of offence - lived on streets & in refuges since age 15 - drug habit - offence committed to feed habit - some efforts at rehabilitation - offences committed whilst on conditional liberty - sentence to be served on protection - multiple convictions, commencing at age 16 - previous imprisonment.
Reference to an irrelevant guideline judgment - whether breach of De Simoni principle - whether any lesser sentence should have been imposed.
Appeal dismissed.
111

LIVINGSTONE, Robert Andrew - CCA, 30.4.2004
Sully & Dowd JJ, Smart AJ
Citation: R v Livingstone [2004] NSWCCA 122
Conviction and sentence appeal.
Count 1: fire weapon (.22 calibre rifle) into building - 4y with NPP of 2*y.
Count 2: maliciously discharge rifle with intent to do GBH - 7y with NPP of 2*y, partly consecutive.
Total sentence of 8y with NPP of 4y.
In the alternative to count 2, appellant was charged with firing a gun into a building (count 3).
Relations between appellant & his neighbour had deteriorated a few months before offences occurred. The victim was at home when he heard a series of gunshots, one of which hit the roof. He called police. When interview, appellant admitted to the offence contained in count 1. About a week later, there were more gunshots, after which the phone rang, however, there was no answer on the other end of the line. Police evidence showed that this call was made from appellant's house. When the victim got onto his roof to do some work, a further 4 shots were heard. One of these shots hit the roof about a metre in front of the victim. The victim saw the appellant standing in a paddock in the direction from where the bullets seemed to come. The victim phoned his brother & told him about the incident, then contacted police. The brother gave a slightly different version of the conversation at trial. When police inspected the victim's property, they found numerous bullet holes consistent with the bullets being fired from the same direction. A search warrant was executed on appellant's property which revealed a .22 calibre rifle with a telescopic sight attached, as well as ammunition. Further investigation revealed the bullets were fired from appellant's rifle.
Aged 42 at time of offences - depressed, fragile - priors - no previous imprisonment.
Directions re maliciously discharge firearm - reckless indifference cannot establish an intent to do GBH.
Conviction appeal dismissed.
Appeal against sentence for Count 2 allowed: Verdict on that count substituted with a verdict of guilty of the alternative offence charged in Count 3; new sentence imposed for that count of 4*y with NPP of 2*y.
New total sentence of 6*y with NPP of 4*.
Appeal against sentence for Count 1 dismissed.
112

NEWMAN, Mitchell - CCA, 19.4.2004 = 145 A Crim R 361
SIMPSON, Kaylene
McColl JA, Howie & Shaw JJ
Citation: R v Newman, R v Simpson [2004] NSWCCA 102
Sentence appeals.
Specially aggravated B&E with intent to commit serious indictable offence (steal); + Form 1 (take & drive conveyance without consent of owner).
Each received sentences of 8y with NPP of 5y.
Heavily Intoxicated after drinking all night, applicants & a male co-offender decided to steal property in order to obtain money to purchase alcohol. Simpson knew the 67 year-old victim personally, having received counselling as well as spiritual & material support from him. She said he was a suitable victim & drew a detailed sketch map of his premises. The 3 offenders went to the victim'ss premises & while Simpson distracted him, her 2 male co-offenders, disguised with balaclavas, entered the victim's bedroom. The victim returned to his bedroom & was thrown to the bed. One male co-offender punched him in the face & held a knife under his nose. The victim managed to pull off the co-offender's balaclava & recognised him as Simpson's de facto partner. Newman left the room & Simpson & the remaining male offender kicked & punched the victim & demanded money & other valuables. A DVD player, a video player, a tin containing foreign money & the victim'ss motor vehicle were stolen. The victim suffered lacerations to various parts of his head, resulting in nerve damage to his face. He also suffered a fractured cheekbone, fractured ribs & a bruised kidney.
Simpson: Aged 22 at time of offence - Aboriginal descent - mother of 2 young children - on GBB at time of offence - drug & alcohol abuse - priors - no previous imprisonment.
Newman: Aged 23 at time of offence - no stable employment - heroin user - use of alcohol from age 13, cannabis from age 14, amphetamines from age 17 - significant criminal record - previous imprisonment.
Application of Fernando principles - commencement date of sentences - time spent in custody - backdating of sentence where pre-sentence custody time broken - victim's opinion as to appropriate sentence.
Appeals dismissed.
113

CHEW, Poh Hwa - CCA, 23.4.2004
Simpson, Bell & Shaw JJ
Citation: R v Chew [2004] NSWCCA 132
Sentence appeal.
Import trafficable quantity heroin.
6*y with NPP of 4*y.
Applicant arrived at Kingsford Smith International Airport aboard a Malaysian Airways flight from Kuala Lumpur. His co-offender travelled with him on the same flight. On arrival the Australian Customs Service referred both men to the Department of Immigration. The applicant admitted to officers of that department that he was carrying objects internally & that he had been paid to do so. He was at that time suffering from abdominal pain. The Australian Federal Police attended the airport & applicant agreed to an internal examination by medical staff. He was taken to the St George Hospital at Kogarah where a CT scan revealed numerous foreign objects in his digestive system. Applicant admitted swallowing 111 pellets. Over a 2 day period, he passed 111 foreign objects containing heroin, the gross weight of which was 421.7 grams. The pure weight was later found to be 303.5 grams. During the course of being interviewed by police, applicant gave details relating to the overseas organiser of the importation, however, police were not able to identify that person or take the investigation further in that respect.
Aged 22 at time of offence - Malaysian citizen - elderly parents in poor health - guilty plea at 1st available opportunity.
Early guilty plea - parity.
Appeal allowed: resentenced to 5y 3m with NPP of 3y 3m.
114

SKAF, Bilal - CCA, 6.5.2004 - 60 NSWLR 86
SKAF, Mohammed
Mason P, Wood CJ at CL, Sully J
Citation: R v Skaf & Anor [2004] NSWCCA 37
Conviction appeals.
Bilal Skaf: 2 x aggravated sexual intercourse without consent (in company) - 20y with NPP of 9y.
Mohammed Skaf: accessory before the fact to aggravated sexual intercourse without consent - 15y with NPP of 9y.
Mohammed Skaf had driven the victim to Gosling Park. A while later, a number of other males arrived, including Bilal Skaf. The Crown case was that Bilal Skaf had dragged the victim by the hair to another part of the park where he sexually assaulted her while surrounded by the other males. One of the other males also sexually assaulted her. The victim eventually managed to run away. Telephone calls & SMS messages from Mohammed Skaf to the complainant & the police after the date of the offences were used to prove his involvement. The complainant identified both appellants from photo boards & later identified Bilal Skaf in a crowd at a Local Court.
As to Mohammed Skaf, because of the nature of his charge, the Crown had to prove that he knew his brother intended having sexual intercourse without consent & in company of at least one other person. In addition, the Crown had to prove that he encouraged & assisted Bilal Skaf to carry out that crime. The Crown case was that Mohammed Skaf's part in his brother's crime was to entice the victim to accompany him in a car, then take her to Gosling Park, then seek to induce her to engage in sexual activity & then, when she proved unwilling to do so, to persuade her to remain in the park until Bilal Skaf & the other men, with whom he had been in constant communication by mobile phone, arrived in the park to seize her. On the Crown case, his part in the crime was complete when he left her in the company of Ibrahim (his friend) & then left the vicinity. There was little or no dispute as to Mohammed Skaf's conduct. The critical issue was his state of knowledge & his intent in bringing the victim to the park & leaving her (at least temporarily) shortly before she was sexually assaulted. Before they could convict, the jury had to be satisfied beyond reasonable doubt that Mohammed Skaf'ss intention was to make the victim available to his brother & that he was doing this so that his brother could have non-consensual sexual intercourse.
Identification - directions as to meaning of beyond reasonable doubt - directions on refusal to answer questions in ERISP - directions on lies, consciousness of guilt - juror misconduct - jurors attending scene of alleged crime -Conviction appeals allowed, new trial ordered.
The Court exercised its power under s 59 Crimes (Sentencing Procedure) Act 1999 to vary the commencement date of the other sentences imposed.
Note: The Court added a number of new instructions which are to be given to juries by trial judges. These include instructions about private viewings of crime scenes, experiments, asking other jurors to participate in making inquiries & a juror's responsibility to advise the trial judge of inappropriate juror behaviour (see para.284 of judgment).
115

HAKIM, Joe - CCA, 3.5.2004
Hidden & Kirby JJ
Citation: R v Hakim [2004] NSWCCA 124
Sentence appeal.
Accessory before the fact to BE&S.
2y PD.
Late at night, police observed the applicant in an industrial estate area. When they approached him, he admitted that he was acting as a lookout for 2 other men who were breaking into one of the premises to steal air-conditioning units. Applicant had made his van available for the commission of the offence. The total value of the air-conditioners & tools stolen was $77,000.
Aged 18 at time of offence - previous good character - full employment - good education record - no priors.
Periodic detention - failure to set NPP.
Appeal allowed: 2y with NPP of 15m, to be served by way of PD.
116

COMERT, Gazi - CCA, 6.5.2004
Sully, Hidden & Hislop JJ
Citation: R v Comert [2004] NSWCCA 125
Conviction and sentence appeal.
Aggravated sexual assault.
8y with NPP of 6y.
The above offence was committed by the appellant upon his wife at their home. This was a violent attack wherein the complainant suffered a number of injuries. When police examined the scene of the offence, they found clumps of the complainant's hair on the carpet, consistent with her evidence of being dragged by the hair.
Having been granted legal aid for the purpose of pursuing only his application for leave to appeal against sentence, appellant was represented by Senior Counsel in his appeal against sentence & appeared for himself in his appeal against conviction. The appellant advanced a number of grounds of appeal, asserting that not all the evidence was presented at trial & that the complainant had made inconsistent statements.
Whether miscarriage - whether sentence manifestly excessive - whether irrelevant matter taken into account.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to 6y with NPP of 4*y.
117

HOPKINS, Luke Graham - CCA, 10.5.2004
Spigelman CJ, Wood CJ at CL, Simpson J
Citation: R v Hopkins [2004] NSWCCA 105
Crown appeal.
Aggravated sexual assault (maliciously inflict ABH).
2y with NPP of 6m.
The complainant was the respondent's former girlfriend with whom he had had a long-term relationship. This was an offence that was both degrading & humiliating to the complainant, which involved the respondent committing a course of violent & bizarre sexual behaviour upon her. A medical report outlined the significant extent of injuries the complainant suffered.
The reason the sentencing judge imposed such a light sentence was because of the respondent's mental state. The complainant gave evidence that the respondent's conduct on the day in question was completely out of character.
Medical evidence - bipolar disorder - most recent episode manic - prior to offence had been treated for both manic/hypomanic & major depressive episodes - since imprisonment has been diagnosed with bipolar disorder & has responded to treatment.
Whether sentence manifestly inadequate.
Appeal dismissed.
118

SLACK, Shane Robert - CCA, 7.5.2004 - 139 A Crim R 314
Grove, Simpson & Sperling JJ
Citation: R v Slack [2004] NSWCCA 128
Conviction and sentence appeal.
2 x aggravated sexual intercourse without consent (victim under age of 16).
Total sentence of 5y with NPP of 3y.
Appellant was the father of the complainant's close friend. Complainant was sleeping over at her friend's home at the time of the offences, which involved digital penetration of the complainant's vagina. Complainant gave evidence that she was on school holidays at the time & that on the 1st Wednesday after her return to school, she phoned the Kids Helpline & spoke to a male counsellor. Evidence was given by a Kids Helpline counsellor at trial regarding the data he had recorded at the time of the call. There were a number of inconsistencies in the features recorded & evidence given by the complainant in relation to the call.
Whether verdicts unreasonable & not supported on the evidence - whether sentence manifestly excessive.
Conviction appeal dismissed.
Sentence appeal allowed: resentenced to total of 3y with NPP of 18m.
119

LE, Marion Rose - CCA, 7.5.2004 - 60 NSWLR 108; 146 A Crim R 179
Giles JA, Hulme & Adams JJ
Citation: R v Le [2004] NSWCCA 82
Stated case
2 x use listening device to record private conversation with another to which appellant was a party.
The offences were heard summarily in the LC. The learned magistrate found the appellant guilty of both charges, but made orders directing that the charges be dismissed without proceeding to conviction, pursuant to s.10 Crimes (Sentencing Procedure) Act 1999.
Appellant & the Crown both appealed to the DC, in the case of the appellant against the findings of guilty, and in the case of the Crown against the adequacy of the sentences. The appeals were by way of a rehearing of evidence given in the LC. The DC judge did not finally determine either appeal. She heard submissions on 2 of the appellant's 3 grounds & gave reasons at that point for deciding the grounds adversely to the appellant. At the appellant's request, she then made a 'formal finding'in relation to the 3rd ground of appeal. The Crown's appeal was not dealt with. The DC judge submitted 3 questions of law to the CCA for determination:
'26. Did I err in law in holding that, in the circumstances of these alleged offences, the microphone was a listening device within the meaning of section 3(1) of the Act, having regard to the fact that the microphone of itself was incapable of recording a private conversation.
27. Did I err in law in holding that the appellant, in using the microphone in the circumstances of these alleged offences, used a listening device within the meaning of section 5(1)(b) of the Act to record private conversations.
28. Did I err in law in holding, in the circumstances of these alleged offences and the factual findings as to the Appellant's conduct, that the Appellant had not established the statutory defence contained in section 5(3)(b)(i) of the Act'.
Listening devices - microphone transmitting to recording device - whether microphone alone a listening device - interpretation of Listening Devices Act 1984.
Questions posted in the stated case answered: (1) No; (2) No; (3) Yes.
120

MAGUIRE, Nathan - CCA, 5.5.2004
McColl JA, Levine & Hidden JJ
Citation: R v Maguire [2004] NSWCCA 142
Sentence appeal.
1 x supply ecstasy - 20m with NPP of 15m to date from 11.2.2003;
1 x possess shortened firearm - 8m with NPP of 6m, to date from 11.2.2004
Overall total sentence of 20m with NPP of 18m.
No details of offences.
Effective NPP of 18m is 90% of overall sentence of 20m - need for longer period of rehabilitation.
Appeal allowed insofar as sentence for possess shortened firearm backdated by 3m, giving an overall effective term of 20m with NPP of 15m.
121

KBM - CCA, 3.5.2004
Tobias JA, Kirby & Bell JJ
Citation: R v KBM [2004] NSWCCA 123
Sentence appeal.
Sexual intercourse with person under age of 10.
3y with NPP of 12m to be served in a juvenile detention centre.
The applicant was 3 weeks short of his 14th birthday at the time of the offence.
Applicant followed the victim (aged 9) on her way home after school. He grabbed her from behind, placed his hand over her mouth to stop her screaming & dragged her behind a brick wall. He pushed her to her knees & forced his penis into her mouth. He then forced her onto her back, pulled her skirt around her waist & her pants down around her legs. He straddled her, pinned her to the ground, then attempted to insert his penis into her mouth. The victim tried to resist & the applicant threatened to break her fingers if she continued resisting. The victim'ss mother, who had been looking out for her daughter, heard her screaming. When the mother arrived at the scene, she saw the applicant with his penis in the victim'ss mouth. The mother yelled & the applicant fled. The victim was taken to hospital where an examination revealed abrasions to her nose, back & left breast, as well as scratches to her right arm. The victim knew the applicant & his nickname as they went to the same school. She was able to identify him to police. The applicant agreed to take part in identification parades & was separately identified by both the victim & her mother.
Aboriginal descent - unhappy, deprived background - nomadic existence - sexually abused at age of 11 by trusted family friend - marijuana user since age 13 - experimented with LSD - tried to hang himself 7 months prior to offence - diagnosed with ADD - severely emotionally disturbed - deep shame & remorse - at risk in custody - no priors.
Error in first pronouncing NPP followed by the term of sentence - sentencing a child - R v WRK (1993) 32 NSWLR 447 per Hunt CJ at CL at 449 - ss. 6 (c) and (d) Children (Criminal Proceedings) Act 1987 - R v GDP (1991) 53 A Crim R 112 applied - rehabilitation rather than deterrence and denunciation.
Appeal allowed: NPP reduced to 5m; order made for applicant's immediate release into the custody of his sister.
122

BUCHANAN, Sharon Maree - CCA, 12.5.2004
McColl JA, Levine & Hidden JJ
Citation: R v Buchanan [2004] NSWCCA 141
Sentence appeal.
Aggravated dangerous drive causing GBH.
2*y with NPP of 15m.
The applicant pleaded guilty to the above offence. The circumstance of aggravation was constituted by a blood alcohol concentration of 0.25 to 0.28.
When approaching an intersection, applicant was required to negotiate a right, upward curve. As she did so, she crossed the double unbroken separation lines & collided with a vehicle being driven in the opposite direction by the 19 year old victim. The sentencing judge accepted the applicant's explanation that she was driving her car in an attempt to escape her boyfriend's violence, however, there was no evidence that the boyfriend had pursued her in any way. The sentencing judge went on to say that her claim to have been escaping from her boyfriend did 'not explain her driving in that state'It was submitted on appeal that in coming to that view, the sentencing judge's findings represented some form of 'conflict'in approach.
Whether error in characterising offence as involving 'a very high degree of moral culpability'- whether sentence excessive.
Appeal dismissed.
123

RIK - NSW SC, Kirby J, 24.2.2004
Citation: R v RIK [2004] NSWSC 75
Remarks on Sentence.
Manslaughter.
In an attempt to get away from the offender, who was behaving in an aggressive manner towards the deceased at a railway station, the deceased jumped down onto the railway lines in order to gain the safety of another platform. Unfortunately, as he was crossing to the other platform, he was hit by a train & killed.
Young offender - no provocation - whether custodial or non-custodial sentence - unusual circumstances of death - previous good character.
Sentenced to: 3y with NPP of 12m.
124

NIASS, Barry John - CCA, 14.5.2004
Hodgson JA, Levine & Hidden JJ
Citation: R v Niass [2004] NSWCCA 149
Crown appeal.
BE&S; + Form 1 offence (possess prohibited drug - amphetamine).
Suspended sentence of 2y with NPP of 15m.
Respondent & 2 other men broke into a factory through a side door, having removed a padlock from a perimeter fence. They then broke through an inner wall & opened a roller-door. They 'hot wired'a Bobcat loader (valued at about $45,000) then drove it through the roller-door & onto a truck, using heavy metal ramps. Police then arrived, having been contacted by a person who saw the truck. At the time of their arrival, the Bobcat was on the back of the truck & the truck's motor was running. The respondent was arrested but his co-offenders got away.
Aged 36 at time of offence - disturbed background - drug use - behavioural problems - need for anger management - multiple priors, some dealt with in Children's Court - previous imprisonment.
Whether sentence manifestly inadequate.
Appeal dismissed.
125

JOHNSON, Leigh Robert - CCA, 11.5.2004
Spigelman CJ, Wood CJ at CL, Simpson J
Citation: R v Johnson [2004] NSWCCA 140
Crown appeal.
BE&S in circumstances of aggravation; B&E a place of divine worship with intent to steal; + Form 1 (2 x BE&S).
Total sentence of 5y with NPP of 3y.
Respondent broke into a house & stole a workbag & 3 wallets containing $130.00. The bag & wallet, but not the money, were subsequently recovered (Form 1). Some days later, respondent broke into the office of the Mary Immaculate Church at Wetherill Park & stole a handbag containing personal papers & a key ring (Form 1). Two months later, respondent & another male broke into a Croatian Catholic Church at St John's Park but were unsuccessful in their attempt to open a safe. They then broke into a rear office, forced open a shop within the church, then ransacked the shop. Almost 2 months later, respondent & his brother broke into a house, ransacked 2 bedrooms, threw drawers & other items onto the floor & removed jewellery & $30.00 which was in a lotto pack. Police arrived while they were still in the premises. Respondent & his brother then smashed another window in order to escape. Respondent was arrested later in the day & interviewed.
Aged 22 at time of offences - personality disorder - anti-social, depressive characteristics - above average predisposition for substance abuse - lacks insight - negative self-image - multiple priors starting at age 16 - previous imprisonment.
Whether sentence manifestly inadequate.
Appeal dismissed.
126

WAY, Colin James - CCA, 11.5.2004 - 60 NSWLR 168
Spigelman CJ, Wood CJ at CL, Simpson J
Citation: R v Way [2004] NSWCCA 131
Sentence appeal.
1 x supply commercial quantity methylamphetamine; 1 x ongoing supply of methylamphetamine; + Form 1 offence (possess 1.17 grams methylamphetamine).
Total of 13y 4m with NPP of 10y.
Applicant was the subject of a controlled operation in relation to the supply of drugs in the Coffs Harbour area.
Discount - whether error when considering utilitarian value of guilty plea - whether error in characterising offence as 'middle range'- whether ss.21A & 54B Crimes (Sentencing Procedure) Act erroneously applied - whether sentences manifestly excessive.
Appeal allowed: resentenced to total of 9y 4m with NPP of 7y.
127

KAY, Bradley Tristran - CCA, 5.5.2004
McColl JA, Levine & Hidden JJ
Citation: R v Kay [2004] NSWCCA 130
Sentence appeal.
1 x BE&S.
2y 9m with NPP of 1*y.
Applicant broke into the Marrickville Metro Shopping Centre & forced his way into the City International Duty Free store. He smashed a number of glass cabinets & stole 10 digital cameras (total value $19,300). None of this property was ever recovered. When police attended the scene, they found drops of blood on one of the glass cabinets. Swabs were taken & sent for DNA testing. A little over 4 months later, while applicant was in custody for another matter, a DNA sample was obtained from him which was matched to the DNA swab taken at the scene of the BE&S offence.
Whether failure to allow discount in sentence having regard to delay in prosecution & steps towards rehabilitation in the interim - where delay attributable to applicant's failure to volunteer his guilt - whether such circumstances attract principles in Todd [1982] 2 NSWLR 517; Mill (1988) 166 CLR 59.
Appeal dismissed.
128

SHI, Zi Pei - CCA, 11.5.2004
Spigelman CJ, Wood CJ at CL, Simpson J
Citation: R v Shi [2004] NSWCCA 135
Crown appeal.
Supply commercial quantity methylamphetamine; + Form 1 offence (possess false driver's licence).
4y with NPP of 2y.
Following upon information received as to the possible presence of drugs at certain premises, police carried out observations on those premises. Respondent & another man were seen to leave the premises & enter a taxi. Police followed & stopped the vehicle. Respondent, carrying a shoulder bag, ran away but was detained after a short chase. The shoulder bag, which respondent had tried to conceal under a parked car, was recovered & searched. Drugs found inside the bag were subsequently analysed (992.2 grams of methylamphetamine with purity of 84.5%).
Aged 19 at time of sentence - mother emigrated to Australia when respondent aged 5 - at age 14 he emigrated to Australia with his father - commenced schooling, dropped out a year later - became associated with older Mandarin-speaking men who introduced him to use of illicit drugs - habit increased to point of spending up to $500 per week on ice, ecstasy & marijuana, using money provided by parents - parents unaware of his drug use until his arrest.
Whether sentence manifestly inadequate.
Appeal allowed: resentenced to 6y with NPP of 3y.
129

RONEN, Ida - CCA, 22.3.2004 - 62 NSWLR 707
RONEN, Nitzan
RONEN, Izhar
Spigelman CJ, Mason P, Kirby J
Citation: R v Ronen & Ors [2004] NSWCCA 67
s.5F appeal against an interlocutory judgment.
1 x conspire to defraud Commonwealth - s.86A Crimes Act 1914 (Cth);
1 x conspire to defraud Commonwealth - s.86(2) Crimes Act 1914 (Cth).
The s.5F appeal followed upon the trial judge dismissing an application by appellants which sought to set aside certain subpoenas that had been served on 4 corporations. At a preliminary hearing, the companies' payroll clerk had given evidence that, on the instructions of the appellants, a number of employees were paid in cash for overtime & that these payments were not recorded in the payroll. The payroll clerk indicated that old payroll records kept at the companies' premises might assist in showing the frequency & extent of the practice. The Crown served 4 subpoenas on the companies, seeking the production of all payroll reports for the period October 1991 to February 2001. The appellants sought to set aside the subpoenas on the basis that they were oppressive & an abuse of process because they required the accused, as the sole director & secretary of the company, & therefore its directing mind, to search for or direct others to search for & produce documents sought by the Crown to be used against each accused.
Whether the proper officer of a company can claim privilege against self-incrimination where a subpoena duces tecum is served on the corporation - meaning of 'proper officer'- whether requires express authority of the company to answer the subpoena - whether oppressive on the accused or an abuse of process for a corporation to comply with a subpoena where accused the sole director & secretary of the corporation - whether accused being asked to assist in preparation of Crown case - whether process of gathering documents an exercise of executive or judicial power.
Appeal dismissed.
130

CAO, Van Teo - CCA, 22.3.2004
Spigelman CJ, O'Keefe & Greg James JJ
Citation: R v Cao [2004] NSWCCA 61
Conviction appeal.
Murder.
15y with NPP of 10*y.
During a domestic argument, the appellant struck his partner on the head with a TV antenna with such force that the antenna entered her brain & she died 9 days later (see R v Cao [2003] NSWSC 715).
Certificate by trial judge - whether conviction unsupported by evidence or unreasonable - tests to be applied by appellate court - whether inference of necessary intent for murder available - whether power to substitute conviction for manslaughter.
Appeal allowed: conviction & sentence for murder quashed; order made for acquittal on that charge; order made for new trial limited to the charge of manslaughter.
131

FORBES, Warren Alan - CCA, 12.3.2004
Grove, Simpson & Sperling JJ
Citation: R v Forbes [2004] NSWCCA 55
Application pursuant to s.5F Criminal Appeal Act for leave to appeal against an interlocutory ruling.
The application was made when the trial was nearing completion. The application sought that the CCA grant leave & intervene in respect of 2 rulings made by the trial judge, in each of which he refused to discharge the jury.
Potentially prejudicial material published in newspaper of limited circulation in place of trial & prior to its commencement - further material in local newspaper during trial - change of venue - whether circumstances warrant intervention by appeal court.
Leave to appeal refused.
132

MA - CCA, 23.4.2004 - 145 A Crim R 434
Studdert, James & Dunford JJ
Citation: R v MA [2004] NSWCCA 92
Crown appeal.
Murder.
13*y with NPP of 8*y.
The 18 year old deceased & his 18 year old friend had been drinking at a number of hotels & both were affected by liquor. Witnesses described the deceased as behaving in a "drunk & obnoxious" manner as he walked home. He kicked parked cars & shouted & waved at passing traffic. The respondent & a friend parked their car near where the deceased & his friend were walking & a confrontation developed between the 4 men. The deceased swung a punch at the respondent, who retaliated by shooting him in the chest with a handgun at a range of 2 metres. The respondent & his friend then drove away in their car.
Aged 17 at time of offence - guilty plea during trial - irrational act - no premeditation - contrition - good character - unlikely to re-offend - good prospects of rehabilitation - no priors.
Error in setting NPP - 25% discount - quantification of discount for plea excessive.
Appeal allowed: sentence increased to 16y with NPP of 11y.
133

FINNIE, Sydney Thomas - CCA, 17.5.2004
Spigelman CJ, Dunford & Howie JJ
Citation: R v Finnie (No.2) [2004] NSWCCA 150
Application for sentencing proceedings to be re-opened pursuant to s.43 Crimes (Sentencing Procedure) Act 1999.
On 12.12.2002, the CCA allowed a Crown appeal against sentence, as a consequence of which a new sentence was imposed, consisting of a head sentence of 4y 4m with a NPP of 2y 10m: R v Finnie [2002] NSWCCA 533. The sentences included a period of 10m pre-sentence custody. An application to the HC for special leave to appeal against this decision was unsuccessful: Finnie v The Queen [2003] HCA 401.
The question raised by the instant application was whether the CCA has jurisdiction to resentence the respondent.
Whether sentence imposed after Crown appeal contrary to law - whether new material indicates that Court acted erroneously when determining commencement date of sentence.
Application refused.
134

TUNCBILEK, Tarkan - CCA, 11.5.2004
Spigelman CJ, Wood CJ at CL, Simpson J
Citation: R v Tuncbilek [2004] NSWCCA 139
Sentence appeal.
Assault with intent to rob whilst armed with offensive weapon - FT of 7y;
Aggravated assault with intent to take or drive a motor vehicle (aggravated car-jacking, committed in company) - 7y with NPP of 4*y, partially concurrent.
Total sentence of 10y with NPP of 7*y.
The 1st offence was committed in the early hours of the morning as the victim, a Star City Casino employee, was walking to work. The applicant produced a small silver-coloured pistol, pointed it at him & asked him for money. The victim told him he had no money, whereupon the applicant asked for $20. The victim repeated that he had no money. The applicant told the victim not to tell anybody what had happened, then left the scene. The applicant was arrested a month later when the victim saw him in a retail store & contacted police.
The 2nd offence involved applicant pulling a 54 year old woman from her car. In struggling over the keys, the co-offender punched the victim in the head a number of times. The applicant managed to get hold of the keys & the offenders drove off in the victim's car, the applicant in the driver's seat. DNA evidence obtained from some items left in the car linked the offence to the applicant. When interviewed by police, applicant admitted his involvement.
Aged 25 at time of offences - pleas of guilty - born in Sydney of Turkish parents - father a violent man - disrupted childhood - significant behavioural problems from early age - diagnosed with ADD - some time spent in adolescent psychiatric unit, thereafter a good deal of time in juvenile detention centres - attempted suicide during a previous incarceration - drug use - mild intellectual disability - undertaken rehabilitative courses: anger management, conflict resolution, violence prevention.
Special circumstances - parity - proportion between NPP and total sentence.
Appeal allowed: Count 1 - resentenced to 5y 4m with NPP of 3*y.
Count 2 - resentenced to 5y with NPP of 3y, partially concurrent.
Total sentence of 7y with NPP of 5y.
135

FERNANDO, Steven Rodney Craig - CCA, 13.5.2004
Tobias JA, Kirby & Bell JJ
Citation: R v Fernando [2004] NSWCCA 147
Sentence appeal.
B&E dwelling house and commit serious indictable offence (act of indecency).
9*y with NPP of 7y 1m 16d.
The complainant, a 29 year old woman living alone, went to bed after locking the doors & windows of her home. At approx 3.30 am, she woke up as the applicant placed his hand across her mouth. With his other hand, he groped for her vagina, later moving his hand towards her buttocks. The complainant resisted & tried to place her attacker in a headlock. She attempted to gouge his eyes & grabbed at his earring. During the struggle, she fell off the bed & upset a glass of water on her bedside table. The glass & the bedside lamp fell to the floor & broke. The complainant fell onto the broken glass. Her attacker fell on top of her & grabbed at her genital area. The complainant took a sliver of glass from the floor & threatened her attacker, who got up & left the premises. He had gained entry to the home by forcing a window. DNA was obtained from the attacker's earring which he had lost during the struggle, as well as from a pair of scissors which he had left behind. Some 10 months later, the complainant told police of her suspicion that the applicant may have been her attacker. Police spoke to the applicant & obtained a buccal swab, which was analysed & found to match the DNA obtained from both the scissors & the earring. At the time of sentencing, the complainant had scarring from lacerations she sustained from the broken glass & still had glass embedded in her back.
Aged 21 at time of offence - guilty plea - Aboriginal - on parole at time of offence - cannabis & alcohol use since early age - priors, including offences dealt with in Children's Court.
Offer of DNA sample - whether need for specific discount - utilitarian value of guilty plea - assistance to authorities - mistake by sentencing judge in respect of offence - different maximum penalty - mistake corrected by mathematical adjustment - whether error.
Appeal dismissed.
136

KNIGHT, John Adrian - CCA, 14.5.2004
Grove, Simpson & Howie JJ
Citation: R v Knight [2004] NSWCCA 145
Sentence appeal.
12 x defraud the Commonwealth;
18 x dishonestly obtain financial advantage from a Commonwealth entity ;
3 x lodging false document with intent to obtain dishonestly a gain from a Commonwealth entity.
Total sentence of 8y with NPP of 5y.
The offences arose from a course of fraudulent activity engaged in by the applicant over a 4* year period. During that time, applicant obtained financial benefits from the Commonwealth by using 23 false identities, At the time of his arrest, he was in receipt of 18 benefits in false names. A total of $362,997.24 was fraudulently obtained by the applicant.
In sentencing the applicant, the sentencing judge failed to impose a sentence for count 25.
Whether cumulative sentences warranted - whether sentencing discretion affected by the number of offences - whether sentence excessive.
The Crown submitted that the matter be remitted to the DC for sentencing on count 25.
Appeal dismissed. Matter remitted to the DC only for the purpose of sentencing the applicant in respect of count 25.
137

LEAHY, Darren - CCA, 13.5.2004
Hodgson JA, Levine & Hidden JJ
Citation: R v Leahy [2004] NSWCCA 148
Crown appeal.
1 x armed robbery.
Wearing a balaclava & armed with a tomahawk, respondent entered a Subway restaurant & demanded money. After he was given $600 from the cash register, he left. At the time of the offence, the restaurant was staffed by 2 young women, aged 17 & 18. Also present in the restaurant were some patrons, including children.
Respondent pleaded guilty to the above offence, whereupon the sentencing judge determined that the appropriate course was to adjourn the proceedings pursuant to s.11 Crimes (Sentencing Procedure) Act & gave reasons for his decision that day. On the following day, he adjourned the proceedings to 12.3.2004 & allowed the respondent bail, conditional that he submit himself to the supervision of the Probation and Parole Service & undertake the drug rehabilitation programme provided by WHOS. The DPP appealed against that order.
Serious offence - unfavourable record - prospects of rehabilitation - full-time custodial sentence still likely.
Appeal dismissed.
138

WESTERMAN, Justin David - CCA, 17.5.2004
Spigelman CJ, Hulme & Adams JJ
Citation: R v Westerman [2004] NSWCCA 161
Sentence appeal.
Maliciously inflict GBH; + Form 1 offence (AOABH).
7y with NPP of 5y.
The victim was the 5 year old son of the woman with whom appellant was living. There was evidence that the child had been severely & extensively beaten. The injuries suffered by the child included multiple bruises on his face, both ears, neck, arms, shoulders, back & buttocks, many of them being associated with what was described as 'significant soft tissue swelling'There was an 8 centimetre 'tender boggy swelling'over the centre of the child's forehead which extended down the nasal bridge, as well as petechial haemorrhages inside the right side of his mouth. There was extensive bruising over the entire left cheek & multiple abrasions above & below both eyes, extending onto the cheeks & onto one side of the victim's nose. The child was also the victim in the Form 1 offence, which involved the appellant kicking the child in the lower back as the child walked down the street with his mother & the appellant.
Aged 30 at time of sentencing - drug addict - prior driving & dishonesty offences - no prior offences of violence recorded - previous relatively short periods of imprisonment.
Utilitarian value of guilty plea - whether sentence excessive.
Appeal allowed: resentenced to 4y with NPP of 3y.
139

MUIR - HC, 2.4.2004 - 78 ALJR 780
Citation: Muir v The Queen [2004] HCA 2.4.2004
On appeal from the Court of Appeal of the ACT.
Applicant, a prisoner being held at Goulburn Correctional Centre, filed an application for special leave to appeal to the HC against orders dismissing his appeal against sentences imposed on him for certain Federal offences. Applicant was told by a manager at the Correctional Centre that without an order of the Court, the prison authorities would not deliver him to the Court for him to make oral submissions in support of his application. McHugh J directed that the application for special leave be determined on the papers, after which the applicant filed a Notice of Motion seeking an order that he be produced from prison & further, or alternatively, that the application for special leave be adjourned.
Notice of Motion dismissed. Application for special leave to appeal refused.
140

GAS - HC, 19.5.2004 - 217 CLR 198;78 ALJR 786
SJK
Citation: GAS v The Queen; SJK v The Queen [2004] HCA 22
On appeal from the SC of Victoria.
The manslaughter offence arose out of the brutal killing of a 73 year old woman during the course of a robbery at her home. The appeals to the HC were against a decision of the Court of Appeal of Victoria which had allowed prosecution appeals against sentences for manslaughter imposed by the primary judge & fixed higher sentences. The sole ground of appeal to the HC was that the Court of Appeal had erred in permitting the Crown to conduct its case in a manner said to be contrary to a plea agreement reached at first instance & in dealing with the appeal in a manner contrary to such agreement.
Appeals dismissed.
141

PINKSTONE - HC, 20.5.2004 - 219 CLR 444; 78 ALJR 797
Citation: Pinkstone v The Queen [2004] HCA 23
On appeal from the SC of WA.
Count 1: supply methylamphetamine (725 grams);
Count 2: attempt supply cocaine (449 grams).
Conviction appeal against count 1 only.
Appellant sent 2 packages by air courier from Sydney to Perth. The packages were intercepted by police at Perth & an undercover police officer delivered one of the packages to the intended recipient. Appellant's appeal to the CCA of WA against his conviction for supply was dismissed.
The appellant's argument to the HC was that, properly understood, his offence was not one of supply but of attempted supply. This argument was not raised at trial.
Appeal dismissed. HC judges ruled that the definition of "supply" included forwarding, sending or delivering and did not require acceptance by an intended recipient.
142

SIULAI, Toai Tess - CCA, 14.5.2004
Sperling, Kirby & Bell JJ
Citation: R v Siulai [2004] NSWCCA 152
Conviction appeal.
Appellant & his brother stood trial on two counts: aggravated BE&S (in company); assault with intent to rob (in company). The offences were described as constituting a 'home invasion'.
In the course of evidence, an alibi notice was admitted against each accused. Counsel objected to the tender of the alibi notice. The trial judge, in her judgment, decided that it should be admitted as evidence going to the credit of the accused, but not as consciousness of guilt on the understanding that both accused would be giving evidence. Immediately following the judgment, counsel indicated he could not give an assurance that the accused would be called. The judge's response was that if the accused were not called the jury would be instructed that the notice could be used as evidence of consciousness of guilt. When the time came for tender of the notice, counsel said that at least one of the accused would be called. That left open the possibility that one would not. It was in these circumstances that her Honour then admitted the notice into evidence but deferred the question of what directions the jury would be given concerning its use. The co-accused gave evidence, the appellant did not. No further submissions in relation to the alibi notice were made or invited before the summing-up.
Admissibility of alibi notice - lies - denials - whether consciousness of guilt or credibility - whether notice should have been excluded - directions - Rule 4 - forensic advantage.
Appeal dismissed.
143

DO, Thi Bach Tuyet - CCA, 13.5.2004
Sully, Hidden & Hislop JJ
Citation: R v Do [2004] NSWCCA 137
Conviction appeal.
Import trafficable quantity heroin.
Appellant travelled from Australia to Vietnam, returning almost a month later. Upon arrival at Sydney Airport, Customs officers found heroin concealed in her shoes. When interviewed, she told the officers she had bought the shoes at a market in Vietnam & did not know there was anything secreted in them. Australian Federal Police officers were called & she gave them the same account. In a later recorded interview at AFP headquarters, she gave a detailed account of the circumstances in which she had to discard the shoes which she had been wearing & of her purchase of the new shoes. She took part in a further recorded interview some months later in which she retracted that account.
Appellant did not give evidence at trial, relying upon her account to police in the 2nd recorded interview. The only issue at trial was the mental element of the offence.
Admitted lies by appellant to Customs officers & police - not relied upon as evidence of consciousness of guilt - whether trial judge's directions appropriate - whether evidence of good character relevant to credibility of appellant's account to police in recorded interview.
Appeal allowed: new trial ordered.
144

STUDENIKIN, Alexander - CCA, 21.5.2004 - 60 NSWLR 1; 147 A Crim R 1
Grove & Howie JJ, Newman AJ
Citation: R v Studenikin [2004] NSWCCA 164
Sentence appeal.
Import commercial quantity MDMA (ecstasy); make false statement on entry into Australia (s.234(1)(b) Migration Act).
12y with NPP of 7y.
In the early hours of the morning, applicant arrived at Kingsford Smith Airport on a flight from Frankfurt, carrying a passport in a false name. Customs officers searched applicant & his luggage. They located a false bottom in his suitcase & found approx 8.8 kgs of ecstasy tablets in the lining of the suitcase. They also found an item wrapped in gift paper, inside of which was a toy construction set containing tablets weighing 6.114 kgs. Applicant told investigating officers he had been approached to bring the suitcase into Australia by a person who supplied him with the passport & who paid for his airline ticket.
Sentencing - error in increasing sentence from that which was otherwise appropriate following repeal of s.16G Crimes Act (Cth) - whether repeal should affect current sentencing range - relevance of absence of transitional provisions - Speer v R [2004] NSWCCA 118 - whether sentence manifestly excessive.
Appeal allowed: resentenced to 10*y with NPP of 7y.
145

SNIDER, Jye - CCA, 11.5.2004
Wood CJ at CL, Sperling & Kirby JJ
Citation: R v Snider [2004] NSWCCA 134
Crown appeal.
Count 1: aggravated B&E with intent to commit serious indictable offence with use of violence;
Count 2: steal from the person;
Count 3: common assault;
Count 4: robbery whilst armed with offensive weapon.
Total sentence of 3y with NPP of 1*y.
The respondent entered a plea of guilty to count 4 & acknowledged that he was in breach of 3 bonds which had been imposed some 7 months previously (counts 1-3). The sentencing judge was therefore called upon to sentence in respect of all offences.
The count 4 offence occurred when 3 masked men, one being the respondent, robbed a jewellery shop. Each offender was armed, one with a tomahawk, another with a machete & the respondent with a baton. When the offenders made their escape from the store, a person from the hairdressing salon across the road & a butcher tripped & tackled the respondent, then wrestled him to the ground & held him there. The getaway car sped off with the other offenders. Police arrived soon after & the respondent was still on the ground, his mask & the bag containing the jewellery beside him. The value of the jewellery was $74,079.
Aged 20 at time of offence contained in count 4 - only child of mother of Greek heritage & Aboriginal father - parents separated when respondent very young because of father's violence towards him - disrupted schooling - drug use since age 11 - alcohol use since age 15 - unemployed - criminal record, both in Queensland & in NSW.
Whether sentence manifestly inadequate - error in failure to apply R v Henry guideline - insufficient consideration given to fact that offences committed whilst on bail - failure to correctly apply Pearce.
Appeal allowed: resentenced to a total term of 5*y with a NPP of 3y.
146

HANSLOW, Renee Catherine - CCA, 21.5.2004
Dunford, Adams & Howie JJ
Citation: R v Hanslow [2004] NSWCCA 163
Sentence appeal.
6 x dishonestly obtain money by deception; 10 x make false statement to obtain financial advantage; 3 x dispose of stolen property; 26 x make false instrument; + Form 1 (3 x make false statement with intent to obtain money; 34 x use false instrument; 3 x goods in custody; 8 x make false instrument; 11 x obtain money by deception; 1 x have false instrument).
Total sentence of 3y 10m 6d with NPP of 2y 4m 6d.
The offences were committed over a 5 month period, arising from what the sentencing judge described as 'a prolonged, repeated and sophisticated, well planned series of frauds', which involved the fraudulent obtaining of money from a variety of victims, including the Hospital Contribution Fund, banks, mobile phone companies, retailers & Medicare. Applicant used a number of fraudulent identities to obtain various types of financial benefits.
Discount for guilty plea - relevance of matters on Form 1 to total criminality of offences for which sentence was passed - whether sentence excessive.
Appeal dismissed.
147

NKS - CCA, 11.5.2004
Grove & Howie JJ, Newman AJ
Citation: R v NKS [2004] NSWCCA 144
s.5F appeal by Crown against ruling on admissibility of evidence.
4 x indecent assault; 2 x carnal knowledge; 1 x sexual intercourse without consent.
Respondent pleaded not guilty to the above offences, which were committed upon his natural daughter. The trial commenced & the Crown completed its case 2 days later, except for evidence which it proposed to call from a psychologist concerning 2 conversations she had had with the respondent. During the first conversation he told her of sexual thoughts he had for his daughter & in the second conversation he admitted to engaging in mutual masturbation with her. Defence counsel had notified objection to this evidence & the evidence was taken on a voir dire. The trial judge ruled that the evidence of both conversations was inadmissible. The Crown appealed to the CCA, seeking the vacation of the order made by the trial judge.
Appeal allowed: The CCA held that the evidence of the 2 conversations was admissible & should not have been rejected under s.137 Evidence Act. A certificate pursuant to the Suitors Fund Act 1951 was granted in respect of respondent'ss legal costs incurred in the appeal.
148

CUFF, Damian John - CCA, 11.5.2004
Dunford, Adams & Howie JJ
Citation: R v Cuff [2004] NSWCCA 157
Crown appeal.
1 x aggravated armed robbery - 11y with NPP of 8y, to date from 22.2.2003;
1 x detain with intent to hold for advantage - FT of 4y to date from 22.2.2002.
Total of 12y with NPP of 9y.
No details of offences stated.
The Crown's submission on appeal was not that the sentence of 4 years' imprisonment imposed for the count of detain with intent to hold for advantage was inadequate, but that it was imposed on the basis of a mistake of fact by the sentencing judge as to the sentences imposed on a co-offender. The co-offender was convicted & sentenced for 2 offences: detain with intent to hold for advantage (10y with NPP of 7y) & assault with intent to rob in circumstances of aggravation (4y). The sentences were partly concurrent (no starting dates given). The Crown's submission was that as a result of being given the wrong information in relation to the sentences imposed upon the co-offender, the sentencing judge imposed on the respondent the longer term for the offence of aggravated armed robbery, whereas he should have imposed the longer term for the offence of detain with intent to hold for advantage. The Crown did not submit that the overall sentences imposed on the respondent should be varied in any way but sought a 'tidying up'of the sentences to make them more consistent with the sentences imposed on the co-offender. It was conceded that if the Court were to interfere & increase the sentence for detain with intent to hold for advantage, it would be appropriate to reduce the sentence for the aggravated armed robbery in accordance with s 7(1)(a) of the Criminal Appeal Act 1912.
Appeal dismissed.
149

SULLIVAN, Warwick Ross - CCA, 19.5.2004
Tobias JA, Kirby & Bell JJ
Citation: R v Sullivan [2004] NSWCCA 99
Sentence appeal.
Dangerous driving occasioning death, whilst under the influence of alcohol.
3*y with NPP of 18m.
Applicant's vehicle collided heavily with a pedestrian who subsequently died as a result of the injuries he sustained. Applicant was breath tested, returning a blood alcohol reading of 0.120. Applicant admitted to police that he had been drinking the previous day & night, saying he had 2 or 3 middis of beer & had shared a bottle of red wine. This was clearly an understatement.
Aged 37 at sentence - qualified electrician, history of employment - lengthy history of poly-substance abuse from age 14 - daily alcohol abuse - on methadone to control heroin habit - major depressive disorder, moderate anxiety - dysfunctional family background - mother emotionally unstable, verbally & emotionally abusive towards applicant when a child - psychiatric illnesses suffered by both parents when applicant aged between 6 & 8 - parents underwent deep-sleep therapy at Chelmsford Private Hospital.
Failure to give proper discount for guilty plea - failure to give proper discount for quasi-custody - whether sentence manifestly excessive.
Appeal dismissed.
150

MAESSEN, William Peter - CCA, 15.3.2004
Tobias JA, Adams J, Smart AJ
Citation: R v Maessen [2004] NSWCCA 160
Sentence appeal.
3 x supply methylamphetamine (.74; 1.11 & .48 grams); + Form 1.
Total of 2y 9m with NPP of 1y 9m.
When first arrested, applicant denied involvement in the offences but otherwise pleaded guilty at the first practical opportunity. The objective seriousness of the offences was very much at the lower end of the scale. There was no evidence that applicant would have supplied any amphetamine had he not been requested to do so by his friend. There was also no evidence that justified a conclusion by the sentencing judge that he was standing in the marketplace supplying amphetamines & that the 3 offences constituted a continuing trade.
Special circumstances - discount for utilitarian value of guilty plea - Thomson & Houlton - whether sentence excessive.
Appeal allowed: resentenced to total of18m with a NPP of 12m 4d and an order made that applicant be released on the day of the CCA judgment (15.3.2004).
151

HICKLING, Darryl Ernest - CCA, 7.5.2004
AVERY, Kenneth Cecil Eric
Grove & Howie JJ, Newman AJ
Citation: R v Hickling; R v Avery [2004] NSWCCA 168
Crown appeals.
Avery: Use offensive weapon to prevent lawful apprehension; + Form 1 (assault officer in execution of his duty) - 18m with NPP of 9m.
Hickling: Use offensive weapon to prevent lawful apprehension of another (Avery) - 18m with NPP of 9m.
There was a disturbance at a hotel, whereupon police were called & a police sergeant attended. The respondents, both well affected by liquor, were well known to the sergeant. When he arrived, the sergeant saw Avery wielding a mattock & told him to put it down, but he refused. The sergeant was prevented from alighting from his vehicle by Hickling, despite telling him that he did not intend arresting Avery but merely wanted him to put down the mattock. Eventually he was able to get out of his vehicle, whereupon the confrontation escalated. Avery picked up a stubby of beer & threatened to use it on the sergeant, then Hickling came between them, which enabled Avery to run to a nearby tree. He returned wielding a broken branch. Avery attacked the sergeant with the branch. Hickling also attempted to disable the sergeant, who suffered injuries to his wrist, back & neck. He struck Hickling on the knee with his baton & used capsicum spray. The sergeant suffered soft tissue damage to his back & neck, as well as bruising to his left wrist.
Both respondents aged 19 at time of offending - both Aborigines - Hickling on parole for other offences at the time - Avery on a GBB at the time.
Real effect of sentences having regard to concurrent custody - specific social & economic handicaps - discretion of appellate court - R v Fernando (1992) 70 A Crim R 58.
Whether error in discretion to backdate sentences - whether sentences manifestly inadequate.
Appeals dismissed.
152

JLA - CCA, 18.5.2004
Tobias JA, Adams J, Smart AJ
Citation: R v JLA [2004] NSWCCA 159
Sentence appeal.
Multiple sexual offences against children under 10
Total of 9y with NPP of 6y.
All of the offences were committed upon 2 female children. A number of the offences were videotaped by the applicant. The offences only came to light some years after their commission when the applicant's wife saw the screened videos that applicant had taken of the children during the commission of the offences.
Aged in mid to late 20's at time of offences - difficult childhood due to hostility between parents & domestic violence - both maternal & paternal grandfathers were sex offenders - at age 13-15, mother's boyfriend committed felatio on applicant - at age 17 applicant's father took him on a sex trip to the Philippines.
Inadequate weight given to subjective features - rehabilitation - necessary counselling strongly recommended by judge whilst applicant in prison not given - accumulation of sentences - whether sentences excessive.
Appeal allowed: resentenced to total of 7y 9m with NPP of 5y.
153

JOHNSON, Keith William - CCA, 13.5.2004
Tobias JA, Wood CJ at CL, Hidden J
Citation: R v Johnson [2004] NSWCCA 121
Conviction and sentence appeal.
Aggravated sexual intercourse without consent.
The offence alleged the penile penetration of a young man without his consent. The complainant's evidence was that on the night of the alleged offence, appellant came into his bedroom, threatened him with a knife & had penile-anal intercourse with him. Appellant was aged 61 at the time of the alleged offence. Upon legal advice, he did not give evidence at trial, nor were there any witnesses called on his behalf. In an electronically recorded interview with police, he denied the allegation of anal intercourse. He said that the complainant had had anal intercourse with him in a consensual encounter, adding that he could not have had anal intercourse with the complainant because for some years he had been unable to achieve an erection.
Fresh evidence - evidence suggesting appellant was impotent.
Appeal allowed: new trial ordered.
154

LAVENDER, Wayne Kelvin - CCA, 21.5.2004
Giles JA, Hulme & Adams JJ
Citation: R v Lavender [2004] NSWCCA 120
Conviction appeal and Crown appeal.
Manslaughter (by criminal negligence).
4y with a NPP of 18m.
The appellant was employed at a sand mine. His job was to drive a front-end loader, moving unprocessed sand to the washing plant & processed sand from the plant. The deceased (aged 13) & 3 friends (aged 11, 14 & 15) went to the sand mine to play. They had gone there on previous occasions & had on a previous occasion been told by a mine employee not to go to where sand was being taken. The appellant saw the boys as he was coming out of the lunch room. He said he had on other occasions told boys to get off the site. The appellant drove the loader towards the sand pile. The boys saw him & ran into an area of thick vegetation. The appellant followed, driving the loader on a disused track through the scrub at approx 4 kph. He lost sight of the boys & continued on to where he could turn around. He then went back into the scrub. He saw 2 of the boys running away from him through the scrub. He left the track & followed them. The other 2 boys, one of whom was the deceased, were hiding behind trees. As the appellant drove the loader through the scrub, it came into contact with the deceased, causing the injuries from which he died.
Whether falling short of reasonable person's standard of care objectively assessed - what mens rea required - relevance of accused's belief in safety of acts - whether defence of honest and reasonable mistake - effect of s.18(2)(a) Crimes Act - consideration of other aspects of summing up - consideration of adequacy of sentence.
Crown appeal dismissed.
Conviction appeal allowed: conviction and sentence quashed, verdict of acquittal entered.
The DPP (NSW) application for special leave to appeal to the High Court against the decision inR v Lavender[2004] NSWCCA 120 was granted on 30 November 2004.
155

PEARSON, David Wayne - CCA, 7.5.2004
Sperling, Kirby & Bell JJ
Citation: R v Pearson [2004] NSWCCA 129
Sentence appeal.
3 x detain with intent to obtain advantage; + Form 1 (12 x detain with intent to obtain advantage; possess knife).
Count 1 (+ Form 1): 8*y with NPP of 5*y;
Counts 2&3: 6y with NPP of 4y (concurrent with above sentence).
Total sentence of 8*y with NPP of 5*y.
This was a very strong Crown case. Applicant was in a custody dispute with his de facto over access to their 12 month old daughter. This was a siege-type offence in which applicant went to a school, barricaded a classroom & detained a number of students & their teacher for approx 1 hour 10 minutes. He said he wanted to see his daughter & that was the only way anyone would listen to him. Although he allowed some of the more distressed children to leave & bought drinks & food for the remaining children, stating he would not harm them, he continued to demand that his daughter be brought to him. He had petrol & a knife inside a bag & threatened to set himself alight. He appeared irrational, with frequent mood swings. Following ongoing negotiations with the principal & police officers, he eventually walked out of the classroom & was arrested. The children & their teacher received counselling for about a year after the offence.
Aged 25 at time of offence - plea entered on morning matter fixed for trial - major depressive illness - had suffered viral meningitis requiring hospitalisation, resulting in incapacity to work, financial difficulties & relationship conflict - admitted to psychiatric hospital for 3 weeks - attempted suicide - substantial mental disturbance - had ceased taking medication for mental condition before offence - prior common assault offence - no previous imprisonment.
Objective seriousness - assessment of utilitarian value of plea, contrition - disturbed mental state - insufficient weight given to mental illness - protective custody - rehabilitation - prior good character - whether sentence excessive.
Appeal allowed: resentenced to 5y with NPP of 3y.
156

PEARSON, David Wayne - CCA, 13.5.2004
Sperling, Kirby & Bell JJ
Citation: R v Pearson [2004] NSWCCA 151
Sentence appeal.
See R v Pearson [2004] NSWCCA 129 for details.
Failure to recognise appeal was against 3 concurrent sentences, rather than against one sentence.
Appeal allowed, applicant resentenced as follows:
Count 1 (+ Form 1): 5y with NPP of 3y;
Counts 2&3: 3y with NPP of 2y (concurrent with above sentence).
157

FAJKA, Sebastian - CCA, 26.5.2004
Hulme, Simpson & Howie JJ
Citation: R v Fajka [2004] NSWCCA 166
Sentence appeal.
1 x affray.
2y with NPP of 18m.
Applicant, his brother & others were involved in a fracas at a hotel. Applicant's brother was a major participant & was charged with a number of offences, including affray & AOABH. The allegation against the applicant was that he was a participant in the various brawls that took place, usually close to his brother. In particular, it was alleged that he struck a male patron before becoming involved in a scuffle with a number of men, ultimately being rescued by his brother. Applicant & his brother then left the premises, but before doing so, the brother threatened a hotel employee & obtained the security tape. The security tape was later found in a nearby garden.
Aged 31 at date of sentence - married with 2 young children - full-time employment - cannabis & alcohol abuse - completed a 16 month rehabilitation programme at Odyssey House - consumed alcohol occasionally - priors (obtain property by false pretences, driving offences, negligent driving causing death, assault) - no previous imprisonment.
Scope of liability of offender for conduct of co-offender - breach of De Simoni principle - findings unsupported by evidence - failure to take into account guilty plea - whether sentence manifestly excessive.
Appeal allowed: ordered to perform 100 hours community service.
158

KEIR, Hugh Francis William - CCA, 19.5.2004
Dunford, Greg James & Buddin JJ
Citation: R v Keir [2004] NSWCCA 106
Sentence appeal.
Defraud Commonwealth.
2y with an order for release on recognizance after serving 6m.
Applicant was involved in a lengthy course of pension fraud over some 27 years. The total amount he fraudulently obtained over that period was $165,575.53. The payments, however, continued. A pecuniary penalty order was finally made in the sum of $182,663.71.
Applicant elderly & in ill-health - full-time custody called for - sentencing judge expected custody in hospital or not in maximum security - put in maximum security to be out of hospital but close to it - suffered consequential heart attacks, requiring removal to hospital - suffered further heart attack when taken to CCA for handing down of judgment - necessity to re-sentence to accord with sentencing judge's expectations.
Fresh evidence - exceptional circumstances - need for CCA to intervene.
Appeal allowed insofar as recognizance release order varied to the extent of ordering applicant be released after serving 2m 21d upon entering into recognizance specified by sentencing judge.
159

NGUYEN, Tam Van - CCA, 12.5.2004
Hodgson JA, Levine & Howie JJ
Citation: R v Nguyen [2004] NSWCCA 155
Crown appeal.
Supply large commercial quantity heroin; supply cocaine.
Total sentence of 5y with a NPP of 2*y.
Respondent was part of a large drug syndicate operating in Sydney. They obtained bulk quantities of heroin & cocaine in block form. Evidence was given that a block weighed approx 350 grams & that each block of heroin had a retail value at the time of about $120,000 to $160,000, depending on the purity, & that a block of cocaine had a retail value of up to $120,000. The drugs were either on-sold in block form or cut down & mixed with a cutting agent, then compressed & on-sold. Eight offenders were ultimately convicted & sentenced for their part in the enterprise. The issue relating to the respondent was one of identification, which issue became a non-issue upon respondent pleading guilty to the alternative charge of supply heroin, which plea was not accepted by the Crown. The sentencing judge noted in his remarks on sentence that the respondent's primary role in the enterprise was to store drugs at designated premises & assist in the recompression of heroin & as a runner for the syndicate in deliveries & the collection of monies. There was no evidence that he was engaged in the syndicate's activities other than during a one month period.
Serious commercial drug dealing enterprise - role of respondent - parity - whether sentence manifestly inadequate - whether basis for intervention.
Appeal dismissed.
160

TOLLEY, Stuart William - CCA, 26.5.2004
Hodgson JA, Levine & Howie JJ
Citation: R v Tolley [2004] NSWCCA 165
Crown appeal.
Knowingly take part in the manufacture of methylamphetamine; + Form 1 (knowing take part in manufacture of methylamphetamine; possess 2 unregistered firearms).
2y suspended sentence upon entering into 2y GBB.
Police executed a search upon premises where respondent lived with his parents. In a shed on those premises, the respondent was found in the presence of 5 other persons. There were a number of items in the shed which were indicative of the manufacture of methylamphetamine. Those items included laboratory glassware, a water-recycling system, a drum & a burner. There were 246 tablets of pseudoephedrine manufactured from non-prescription drugs such as Codryl & Telfast. Police also found 2 rifles in a locked metal safe at the back of a shed.
Aged 36 - guilty plea - minor prior offences - no previous imprisonment.
Whether sentence manifestly inadequate - error in failure to take into account seriousness of firearms offences & in having regard to parity with co-offender on Form 1 matter - discussion as to the effects of revocation of bond under s.12.
Appeal allowed: resentenced to 2y with NPP of 1y, conditional upon being placed under the supervision of the Probation and Parole Service.
161

JOHNSON, Raymond - CCA, 13.4.2004
Simpson, Kirby & Bell JJ
Citation: R v Johnson [2004] NSWCCA 76
Sentence appeal.
Resist officer in execution of duty; possess housebreaking implements; possess unlicensed firearm; possess unlicensed firearm; possess prohibited weapon without authorised permit; + Form 1 (goods in custody, custody of knife in public place).
Total sentence of 7y with NPP of 4y.
Police stopped a 4-wheel vehicle in which applicant was a passenger. At the time, a bench warrant existed for the applicant's arrest for failing to appear in the DC in 1997. Police asked applicant to alight from the vehicle with his hands in the air. When he failed to comply, he was arrested, however, a struggle ensued & the applicant suffered head injuries, resulting in him being taken to hospital. The applicant was searched at the time of arrest & lock picking implements, a stun-gun, a knife & a NSW police identity badge (rank of inspector) were found in his possession. Later that evening, police executed a search warrant at the home of applicant's son, where the applicant was temporarily residing. In the applicant's bedroom they found a 9mm pistol & a shotgun.
Aged 55 at time of offences - hardship in custody due to age & fear of violence - high level of criminality - lengthy criminal record, dating back to 1956 - priors offences of stealing, possess housebreaking implements - previous imprisonment.
Meaning of s 21A(2)(d) Crimes (Sentencing Procedure) Act 1999 - whether sentences excessive.
Appeal allowed: new total sentence of 6y 8m with NPP of 3y 8m.
162

BOICUIC, Jon - CCA, 12.5.2004
McColl JA, Levine & Hidden JJ
Citation: R v Boicuic [2004] NSWCCA 146
Sentence appeal.
2 x supply heroin; + Form 1 (3 x goods in custody).
4*y with NPP of 2y 9m.
Police arrested appellant after observing him engaged in what was described as "suspicious conversation" in Hyde Park. During a search, he was found to be in possession of 0.13 grams of heroin in rock form, 27.4 grams of heroin in powder form with 11% purity, & a further 0.45 grams of heroin in powder form. Police subsequently executed a search warrant & located 3.21 grams of heroin in rock form packaged in 8 small bags, as well as 23.9 grams of powder containing heroin of less than 1% purity. When interviewed, appellant admitted the drugs were his, saying that he was a heavy user. He did not admit to supply.
Aged 44 at time of offences - arrived in Australia from Romania in 1984 - became addicted to drugs following a motor accident - no use of drugs whilst in custody - prior offences of supply drugs.
Failure to give sufficient discount for guilty plea - during period in custody, found cellmate after he had hanged himself - need for additional time for rehabilitative counselling.
Appeal allowed: resentenced to total of 4y with NPP of 2y.
163

ALLAN, Corey Anthony - CCA, 29.4.2004
Tobias JA, Kirby & Bell JJ
Citation: R v Allan [2004] NSWCCA 107
Sentence appeal.
B&E with intent to commit a serious indictable offence (sexual intercourse without consent); assault and commit act of indecency; attempt to have sexual intercourse without consent.
Total sentence of 5y with a NPP of 2*y.
Applicant was drinking in a hotel with the female victim & the victim's male & female friend. They left the hotel together & went to the victim'ss friend'ss flat, where the victim had consensual sexual intercourse with her male friend. During this time the female friend went to sleep & the applicant waited in the lounge room. The applicant tried to persuade the victim to engage in sexual activity with him but she refused. The applicant & the male friend then left the flat, however, a little while later, the applicant returned, broke in, seized the victim, threw her to the floor, fondled & sucked her breasts & attempted to have sexual intercourse with her. She screamed, whereupon the applicant fled.
Aged 21 at time of offences - disrupted childhood - affected by considerable amount of alcohol at time of offences - no prior convictions.
Whether error in ordering sentences for counts 2 & 3 should be entirely cumulative on the sentence for count 1 - failure to adequately address principle of totality.
Appeal dismissed.
164

MERCY, Beryl Anne - NSW SC, Adams J, 19.4.2004
Citation: R v Mercy [2004] NSWSC 472
Remarks on Sentence.
Manslaughter.
Offender pleaded guilty to the manslaughter of her de facto partner. She stabbed him with a kitchen knife. Offender & the deceased had known each other for almost 20 years. They had a brief relationship when the offender was 19 & had a daughter together. Thereafter, they had a platonic, casual friendship until approx 9 months prior to the death of the deceased when they commenced living together in a de facto relationship. The offender had left a long-standing relationship with another man, to whom she had 4 children, in order to live with the deceased.
Aged almost 40 - Aboriginal - both offender & deceased affected by alcohol at time of killing.
Sentenced to 4y 11m with NPP of 2y 3m
165

DALTON, Dennis James - NSW SC, Adams J, 19.4.2004
Citation: R v Dalton [2004] NSWSC 446
Remarks on Sentence.
Manslaughter.
Offender pleaded guilty to the manslaughter of a young child by an unlawful & dangerous act. There was a history of the offender's mistreatment of the child. The day before the child died, he was admitted to hospital in an unconscious state, suffering from severe injuries, including brain injury, & was placed on life support. When the child died, he was just 5 days short of his 2nd birthday. A post mortem examination disclosed multiples bruises over the child's body, especially the face, chest, right forearm & right thigh. There were also head injuries, spinal injuries & various fractures of different ages.
Aged just over 18 at time of offence - Aboriginal - easily aroused to anger - marijuana & alcohol use since early teens.
Sentenced to 10y 3m with NPP of 3y 3m.
166

FRAZER, Scott James - CCA, 15.4.2004
Sully & Dowd JJ, Smart AJ
Citation: R v Frazer [2004] NSWCCA 111
Sentence appeal.
Supply amphetamine on an ongoing basis; + Form 1 (1 x supply pseudoephedrine (1 kg); 3 x supply cannabis; 1 x assault; 1 x goods in custody).
5y with NPP of 3y.
Applicant was arrested following a police investigation, during the course of which telephone intercepts of applicant's phone disclosed incoming calls from persons seeking to obtain amphetamine from the applicant. The Crown asserted that there was a joint criminal enterprise between applicant & a co-offender. That co-offender was found to be acting on the directions of the applicant & was sentenced to 2*y, NPP 15m.
Parity.
Appeal dismissed.
167

EL HANI, Antoun - CCA, 21.5.2004
Simpson, Bell & Howie JJ
Citation: R v El Hani [2004] NSWCCA 162
Sentence appeal.
1 x knowingly concerned in the importation of commercial quantity MDMA (ecstasy).
15y with NPP of 10y.
Applicant & others were involved in the importation into Australia of approx 480,000 ecstasy tablets (gross weight 123 kgs, pure weight 34.4 kgs). The tablets originated from the Netherlands & arrived in Australia concealed in 48 plastic pipes which were inside a shipping container. Customs officers inspected the container & discovered the tablets. Most of the tablets were replaced with substitute tablets, leaving only 13,000 ecstasy tablets (3.3 kgs) in the pipes by way of a controlled delivery. A number of telephone conversations between applicant & the principal co-offender in Australia were intercepted by police. The sentencing judge described the applicant as being a senior person in the organisation with a managerial role.
Aged 50 at time of offence - assistance to authorities of limited value - guilty plea - offer to give evidence for the Crown not taken up - no contrition.
Discounts for guilty plea & assistance - impact of assistance on offender's family - whether disparity with sentence for co-offender.
Appeal dismissed.
168

FIDOW, Dion Imila - CCA, 19.5.2004
Spigelman CJ, Hulme & Adams JJ
Citation: R v Fidow [2004] NSWCCA 172
Sentence appeal.
Robbery in company causing GBH; + Form 1 (7 dishonesty offences involving loan & credit applications).
11y with NPP of 8y.
Applicant & others were involved in a conspiracy to rob the victim. When the victim left his place of work carrying a bag containing $11,855, which represented the weekend takings, the offenders deliberately collided with his vehicle. The victim & the offenders parked their cars in order to discuss the situation, whereupon the victim was violently assaulted & 'left for dead'on the roadside. The victim suffered permanent brain damage & paralysis of the left arm, was placed on life support & remained in a coma for a number of months. Sentencing judge found that it was the co-offender who had inflicted the injuries & did not find to the requisite standard that applicant was involved in the infliction of those injuries.
Aged 27 at time of offence - offence towards top of range in criminality - special circumstances found in setting NPP - offence out of character - need for rehabilitation - no priors.
Parity - concept of special circumstances.
Appeal dismissed.
169

GORDON, Stephen Andrew - CCA, 11.5.2004
Simpson, Kirby & Bell JJ
Citation: R v Gordon [2004] NSWCCA 45
Conviction and sentence appeal.
2 x robbery while armed with dangerous weapon.
8y with NPP of 3y.
The sentences were accumulated upon sentences for other offences for which appellant had pleaded guilty.
Armed with a shortened firearm, appellant entered a bank, threatened 2 bank tellers & demanded money. He escaped with $12,000. A number of witnesses gave descriptions of the appellant. Although security cameras captured footage of the robbery, this footage was not clear enough to allow the robber to be identified. Appellant was later identified by witnesses from a selection of police photographs.
Aged 28 at time of offences - dysfunctional background - lengthy criminal record - on parole at time of offences - priors include assault, AOABH, malicious damage, larceny, steal from person, robbery, BE&S, goods in custody, steal MV, driving offences, possess implements, escape from lawful custody, assault officer - previous imprisonment.
Admission of photographic identification evidence - ss.135 & 137 Evidence Act 1995 - whether trial miscarried - special circumstances - pre-sentence custody - accumulation of sentences - whether sentence excessive.
Appeal dismissed.
170

NGATIKAURA, Bullwark - CCA, 21.5.2004
Tobias JA, Hulme & Adams JJ
Citation: R v Ngatikaura [2004] NSWCCA 175
Sentence appeal.
Robbery in company.
5y with NPP of 3y.
The victim was in his shop at the time of the offence. The co-offender grabbed the victim & held him against the wall. The applicant then told the victim to take his money out. When the victim refused, the applicant searched his pants pocket & removed the victim's car keys, wallet (containing about $800) & a black notebook. Prior to making their escape, the co-offender pushed the victim against the wall & pointed a short-bladed knife at him. The appellant & his co-offender were arrested shortly thereafter & all of the stolen goods recovered.
Aged 19 at time of offence - marijuana & heroin addiction - 'spur of the moment decision'to commit offence to finance drug habit - completed a number of courses whilst in custody - relatively minor criminal history consisting of 1 count of shoplifting & 2 minor drug offences.
Whether sentence excessive - appellant unaware of presence of weapon until it was produced as he & his co-offender made their escape - significant reduction in culpability - R v Henry - qualification of reason for departure from guideline judgment - subjective circumstances - Thomson & Houlton.
Appeal allowed: resentenced to 3*y with NPP of 2y.
171

CK - CCA, 29.4.2004
Wood CJ at CL, Sperling & Hislop JJ
Citation: R v CK [2004] NSWCCA 116
Sentence appeal.
Manslaughter.
7*y with NPP of 4y to be served in a detention centre until age 21.
Special circumstances were found, resulting in the NPP being equivalent to 53% of the overall sentence.
Agreed statement of facts.
Applicant was present during a series of confrontations between Asian youths & Australian youths (who were assisted by a large group of Pacific Islander youths) that took place throughout the evening of the killing. Applicant threw a solid metal bar at a car, which penetrated the skull of the 17 year old male driver.
Aged 16 at time of offence - employed - intention to complete secondary schooling - remorse - contrition - no priors.
Whether sentence manifestly excessive - whether sentencing judge failed to consider or take properly into account all of the relevant circumstances at the time applicant committed the offence.
Appeal dismissed.
172

CHAMI, Mahmoud - CCA, 7.4.2004
SKAF, Mohammed
GHANEM, Mohamed
SKAF, Bilal
Mason P, Wood CJ at CL, Sully J
Citation: R v Chami, M. Skaf, Ghanem, B.Skaf [2004] NSWCCA 36
Conviction appeals.
Detain for sexual advantage; aggravated sexual assault without consent; aggravated indecent assault.
The offences involved gang raping an 18 year old female. The appellants were aged between 17 & 18 at the time. The Crown case was that the gang rapes occurred at 3 different locations in south-western Sydney. Chami made a telephone call to Ghanem, which was intercepted by police. During the call, Chami made self-incriminating statements. The trial judge directed that the transcript was admissible against Chami as demonstrating consciousness of guilt but inadmissible against Ghanem & also directed that the transcript demonstrated a close association between the 2 men.
Identification - consciousness of guilt - whether error in allowing evidence of telephone intercepts - whether directions adequate - whether error in refusing separate trials - 'guilt by association'- prosecutor's comments on failure to give evidence - directions on standard of proof - complainant's reliability - directions on lies - whether verdicts unreasonable.
Chami: Appeal dismissed.
Skaf, B: Appeal dismissed.
Skaf, M: Appeal dismissed.
Ghanem: Appeal allowed - new trial ordered.
173

DRR - CCA, 7.5.2004
Sperling, Hidden & Howie JJ
Citation: R v DRR [2004] NSWCCA 126
Sentence appeal.
Detain for advantage.
4*y with NPP of 2y 3m.
The victim asked the applicant to help her move some heavy items from her flat into her car. The applicant agreed provided she gave him a lift. Once the car was loaded, the victim drove him to his nominated destination. The applicant began acting strangely. He told the victim to drive to a number of different locations. He then told her to stop the car, whereupon he drove the car with the victim in the front passenger seat. He drove in an erratic & dangerous manner, hitting a number of sign posts & median strips. On a number of occasions he said he was going to rape the victim & possibly kill her. He eventually stopped the car, dragged the victim from the car, forced her to the ground & lay on top of her to restrain her. A short time later, he dragged her to her feet, took hold of a handful of flesh on her stomach & walked her around the nearby streets, all the time making threats. He then forced her to the ground on a driveway, sat behind her, wrapped his legs & arms around her & told her to interlock her arms into the sleeves of her jacket. While this was happening, police arrived. The applicant only released the victim after seeing police produce capsicum spray.
Aged 23 at time of offence - guilty plea - drug-induced psychosis, involving paranoid & delusional behaviour - drug use since early age - dysfunctional upbringing - priors include assault, dishonesty, drugs & driving offences.
Whether insufficient weight given to mental illness.
Appeal dismissed.
174

KAIN, Morgan Paul - CCA, 12.5.2004
McColl JA, Levine & Hidden JJ
Citation: R v Kain [2004] NSWCCA 143
Sentence appeal.
Trial 1: steal MV; aggravated armed robbery armed with dangerous weapon (handgun);
Trial 2: steal MV; aggravated armed robbery armed with dangerous weapon (handgun);
+ Form 1 offence (aggravated armed robbery armed with dangerous weapon - handgun).
Total sentence of 12y with NPP of 8y.
Applicant was on bail for alleged BE&S matters at the time of the commission of the above offences.
The matters dealt with in the 1st trial involved the stealing of a Holden Commodore & the subsequent robbery of a bank (proceeds $9,965).
The 2nd trial dealt with the theft of a Ford Falcon & the subsequent robbery of a Credit Union (proceeds $7,639).
Likelihood of protective custody - relevant factors - whether sentence unduly harsh & severe - whether failure to take into account objective role - parity.
Appeal dismissed.
175

BARBER, Lee William - CCA, 7.6.2004
Dunford, Adams & Howie JJ
Citation: R v Barber [2004] NSWCCA 153
Sentence appeal.
1 x assault police in execution of duty; 2 x BE&S; + Form 1.
Total term of 6y 9m with NPP of 4y 9m.
Applicant made a series of offensive comments to police officers who were on patrol. The police were not wearing uniforms & told applicant to move on. He ran towards them with his right arm extended, holding a silver object. Police identified themselves & used capsicum spray, whereupon applicant ran away. Police chased him & again used capsicum spray to subdue & arrest him. The silver object was found to be a 26 cm screwdriver. Applicant was released to bail. All the other offences were committed whilst on bail.
Aged 37 at time of sentencing - born in NZ - settled in Australia with family at age 7 - completed School Certificate - completed an apprenticeship - some fulltime employment - drug addiction - 2 failed relationships (one a marriage), child from each - in a 3rd relationship, partner pregnant - extensive criminal record - previous imprisonment.
Whether overall sentences manifestly excessive.
Appeal allowed: resentenced to overall term of 5y 9m with NPP of 4y.
176

GNK - CCA, 27.4.2004
Spigelman CJ, Kirby J, Smart AJ
Citation: R v GNK [2004] NSWCCA 114
Conviction appeal.
Count 7: attempted homosexual intercourse with minor;
Count 8: homosexual intercourse with minor.
Sentence not stated.
Appellant tutored the 14 year old male complainant in mathematics. It was alleged that the offences took place during a period of approx 2 months. The appellant faced 9 sexual offence counts involving the complainant. He was acquitted on one count of homosexual intercourse & the jury returned verdicts of not guilty on 5 other counts. Because of the guilty verdict on count 8, the jury was not required to return a verdict on count 9, which was in the alternative. During the time the offences were occurring, the complainant told his girlfriend about them. He also told his school counsellor, but in vague detail. At the close of the Crown case, counsel for the defence made an application to further cross-examine the complainant, which the trial judge refused.
Whether error in refusal to allow further cross-examination - whether defence case properly put by judge - complaint evidence - credibility - whether inadequate directions.
Appeal dismissed.
177

MIODUSZEWSKI, Josef - CCA, 28.5.2004
Grove, Dunford & Howie JJ
Citation: R v Mioduszewski [2004] NSWCCA 154
Sentence appeal.
Malicious wounding with intent to do GBH; + Form 1 (possess unauthorised firearm).
6y with NPP of 4y (special circumstances found).
The victim was applicant's wife. During an argument, applicant threatened her with a pistol, repeatedly pulling the trigger, however, the weapon did not discharge. The victim struggled with the applicant & a shot was eventually fired, the bullet hitting the victim in the head. When the victim tried to flee, the applicant beat her with a wooden stake. The victim underwent surgery to remove the bullet from her skull. At the time of his arrest, applicant had taken an overdose of drugs & was bleeding profusely from self-inflicted wounds.
Failure to sufficiently vary the ratio between NPP & head sentence - general deterrence - prior good character - psychological fragility & poor health - new evidence regarding applicant's medical condition - evidence showing deterioration in applicant's condition since sentencing.
Appeal dismissed.
178

ROBINSON, Harry - NSW SC, Greg James J, 28.5.2004
Citation: R v Robinson [2004] NSWSC 465
Remarks on Sentence.
Murder.
This was a retrial following a successful conviction appeal. Offender originally sentenced to 22y, NPP 15y.
Deceased was serving a sentence for sexual offences committed upon schoolchildren in his charge when inmates within the gaol began to suspect him. They obtained papers from his cell which confirmed their suspicion & a discussion took place about giving the deceased a hiding & getting him out of that part of the gaol. The offender volunteered to do it. He & another inmate went to the deceased's cell & punched & kicked him, with the offender concentrating on the deceased's head, delivering a large number of kicks. The cause of death was blunt force head injury. There were fractures to the right side of the jaw-bone & to the nose, as well as extensive bruising of the skin over the right cheek & jaw. There was a tear beneath the upper lip, teeth were broken & there was bleeding on the inside of the skull & over the surface of the brain. At the time of the attack, the offender had an injured knee & afterwards said he was sorry he hadn't been able to stomp harder on the deceased's head because of his knee injury.
Both parties submitted original sentencing appropriate, subject to subsequent circumstances - application of policy in Gilmore (1979-80) 1 ACR 416 - reduction in NPP to reflect additional prospects of rehabilitation.
Sentenced to 22y with NPP of 14y.
Note: A successful appeal followed in 2006 and a new trial was ordered (seeRobinson v R[2006] NSWCCA 192).
179

VONGSOUVANH, Katty - CCA, 19.5.2004
NAMALAUULU, Fialelei Loretta
Simpson, Bell & Howie JJ
Citation: R v Vongsouvanh; R v Namalauulu [2004] NSWCCA 158
Crown appeal.
Manslaughter.
Each respondent was sentenced to 6y 9m with a NPP of 4y.
Respondents were charged with murder, however, the Crown accepted their pleas of guilty to manslaughter. Respondents were drug addicts & were in Cabramatta in order to obtain cocaine & heroin. They met up with another woman at or near Cabramatta Railway Station. During the evening, respondents obtained cocaine but persisted in their attempts to also obtain heroin. The 3 women went to a block of units where they believed they could obtain some heroin from a dealer, but their attempts to contact him were unsuccessful. They waited for his return in the garage area beneath the block of units. At this point, the victim arrived & joined the women. As the respondents were using the cocaine they had earlier obtained, an altercation erupted between the other woman & the victim. The respondents assisted the woman by holding the victim by the arms & restraining him. All 3 women then became involved in a fight with him, during which a knife was produced & the victim stabbed a number of times. While he was lying seriously injured on the ground, the other woman removed his right shoe, took some object from it, then all 3 women ran off. The victim was taken to hospital but died. The women returned to Cabramatta Railway Station, still trying to obtain heroin. They attacked another male. This attack was captured on closed circuit TV & the women were arrested & subsequently convicted of an offence of AOABH.
Finding of fact consistent with conviction for manslaughter - knowledge of the presence of a knife - separate convictions for AOABH - continuing course of events - discount for pleas of guilty - aggravating features - mitigating factors - accumulation - concurrence - range of sentences for manslaughter - parity.
Seriousness of offence of manslaughter - whether sentences manifestly inadequate.
Appeal dismissed.
180

GERSTELING, Aden - NSW SC, Adams J, 8.4.2004
Citation: R v Gersteling [2004] NSWSC 502
Remarks on Sentence.
Accessory after the fact to murder.
Offender pleaded guilty to the above offence, which involved the murder of the deceased by Jessie Irvine. Offender was 1 month short of his 16th birthday at the time & Irvine was 17. The 24 year old deceased was shot in the chest by Irvine in a Macksville street in the early hours of the morning. They did not know one another. It was not alleged that the offender was either criminally or morally implicated in or responsible for the deceased's death. The case against him was that he saw Irvine shoot the deceased from about 25 or 30 metres away & that he picked up the gun when it was discarded by Irvine, in part to protect Irvine from detection & in part to ensure that Irvine did not use it again. The offender's concealment of the gun was the essence of his crime. Events surrounding the offence were not in dispute.
Sentence: conditional 3y GBB.
181

MAHONEY, Robert Bradley - CCA, 23.4.2004
Simpson, Bell & Shaw JJ
Citation: R v Mahoney [2004] NSWCCA 138
Crown appeal.
2 x perjury - FT 12m & FT 15m (concurrent). No NPP set because sentences subsumed by sentences being served on other matters.
The aggravating feature of the charges was that the perjury was committed with the intention of procuring an acquittal.
During a trial in relation to charges of supply & manufacture commercial quantity methylamphetamine, respondent claimed to have purchased the drugs & said he was using 5-6 grams per day. The trial subsequently aborted & at a new trial, he gave sworn evidence that he had obtained the drugs during an armed robbery. He claimed the robbery occurred in late June or early July 1999 & that he had told police about his role in manufacturing the drug because of coercion on the part of another man who would 'get him'if he told the truth. Evidence later emerged that the other man had died of a drug overdose on 19 May 1999. During the 2nd trial, it also emerged that respondent had lied about having bought the drugs. Respondent was convicted on the supply charge & acquitted on the manufacturing charge, resulting in a sentence of 4y with a NPP of 2y. The sentences for the perjury offences were not only concurrent with each other but entirely concurrent with the NPP of the sentence already being served for the drug offence.
Aged 40 at time of sentencing - guilty pleas at earliest opportunity - 25% discount allowed on each count - criminal history described as relating to 'relatively minor offences'(possess prohibited drug, driving offences, offensive behaviour, possess unlicensed firearm, supply commercial quantity prohibited drug) - previous imprisonment.
Specific & general deterrence - concurrence - whether sentences manifestly inadequate.
Appeal allowed: resentenced to total term of 2y with NPP of 12m.
182

HAYES, Robert John - CCA, 19.5.2004
Hodgson JA, Levine & Hidden JJ
Citation: R v Hayes [2004] NSWCCA 156
Sentence appeal.
Sexual intercourse without consent; + Form 1 offence (AOABH);
Indecent assault; + Form 1 (larceny);
Enter building with intent to commit indictable offence (assault); + Form 1 (assault).
Total sentence of 12y with NPP of 9y 3m.
Early in the morning, applicant approached a 28 year old female Czechoslovakian tourist on a street in Surry Hills. On the pretext of taking her to a better location to hire a taxi, he took her into a side street, physically assaulted her then had forcible penile/vaginal sexual intercourse with her. He was identified as the perpetrator by DNA matching. The matter was listed for trial & a plea negotiated. Seventeen months later, whilst on bail, applicant committed the indecent assault offence. He approached a prostitute in Kings Cross. Purporting to take her to his home, he took her into a laneway where he grabbed her, swung her around, causing her to fall to the ground. He then pulled down her singlet, exposing her breast, & sucked it. Neighbours heard the victim's cries for help & called out, whereupon the applicant fled the scene, taking the victim's handbag with him. He was identified as the perpetrator by DNA matching. Six months later, applicant entered a block of units at the same time as a female occupant early in the morning. He tried to force his way into her unit but she managed to keep him at bay. Police were called & the applicant was arrested at the scene. This offence was committed whilst on bail for the previous charges.
Separate sentences for separate offences ordered to be served consecutively - totality - whether total sentence manifestly excessive.
Appeal dismissed.
183

PARKER, Benjamin - CCA, 6.4.2004
Handley JA, Dowd & Greg James JJ
Citation: R v Parker [2004] NSWCCA 115
Sentence appeal.
2 x BE&S; + Form 1 matter.
Total of 5y with NPP of 3y.
Both offences involved breaking into residential premises. Applicant acted alone in the 1st break-in & the 2nd break-in was carried out in the company of a female. A fax machine & video cassette recorder were stolen during the 1st break-in. Applicant's fingerprints were found on a tin in the victim's bedroom. During the 2nd break-in, applicant stole a power drill, an electric rotor, a hammer drill, a camera with a zoom lens & a backpack in which he placed the other items. The victim recognised the backback as the applicant walked from the premises & chased the applicant. All goods were recovered, except the camera lens which was pawned a short time later. Applicant left an amount of blood at the entry to the premises where he broke into a window & his DNA was identified. He was also identified from photographs.
Aged 25 at time of sentencing - guilty pleas - long-standing heroin addiction - had come from a dysfunctional family environment with a history of alcoholism - priors - placed under bonds - had breached a condition of residence - voluntary placement into methadone programme.
Taking guilty pleas into account - Thompson 49 NSWLR 383 - matter could have been dealt with in LC - special circumstances - manifest severity.
Appeal allowed: resentenced to total term of 4y with NPP of 2*y.
184

FORBES, Warren Alan - NSW SC, Hulme J, 7.5.2004
Citation: R v Forbes [2004] NSWSC 421
Remarks on Sentence.
2 x manslaughter.
The 1st offence occurred when an altercation took place outside a hotel during which the deceased was fatally stabbed. The 2nd offence occurred when the offender shot a man in his caravan.
Guilty plea - drug addiction - poor self-esteem - personality disorder - antisocial traits - multiple priors.
Sentenced to total of 19y with NPP of 15y.
185

GIRARD, Andrew John - CCA, 12.5.2004
GIRARD, Tessa Maree
Hodgson JA, Levine & Howie JJ
Citation: R v Girard; R v Girard [2004] NSWCCA 170
Sentence appeals.
1 x supply prohibited drug (cannabis leaf).
Each sentenced to 3y with NPP of 18m.
Applicants supplied cannabis leaf to drug users & suppliers in the Moree area. Evidence tendered at trial included legally intercepted telephone calls & visual surveillance (sometimes videotaped) of a number of supplies. The amounts supplied ranged from 2.2 grams to 1.8 kgs. The agreed statement of facts described applicants as 'being heavily involved in the large scale supply of cannabis'& as having supplied about 8 kgs during the period of the charge. The value of the drugs was about $68,000. When police searched their home, they found 2 pounds of cannabis & $4,640 in cash in a videotape case & a money tin. Both applicants pleaded guilty.
Whether sentences manifestly excessive - relevance of family circumstances, good character.
Appeals dismissed.
186

ACHURCH, Brian John - CCA, 9.6.2004
Dowd & Bell JJ, Smart AJ
Citation: R v Achurch[2004] NSWCCA 180
Sentence appeal.
1 x AOABH - 2y with NPP of 18m.
Applicant banged on victim's caravan door & entered the caravan. He stood next to the victim's bed holding a bottle of beer in his hand. He then head-butted the victim & poured beer from the bottle onto the victim & the victim's female companion. The female kicked out & struck the applicant in the groin area. The applicant then left the caravan & the victim contacted police. Applicant had previously threatened the victim.
Early guilty plea - long history of drug & alcohol abuse - disrupted childhood - parents declared unfit to care for him due to their alcoholism - raised in foster homes - lacked familial support - lengthy criminal history starting age 17 - previous suspended sentence, CSO & bonds.
Whether sentence manifestly excessive.
Appeal allowed: resentenced to 12m with NPP of 9m 12d (expiring on date of appeal).
187

DERBAS, Fadi - CCA, 4.6.2004
Wood CJ at CL, Simpson & Bell JJ
Citation: R v Derbas [2004] NSWCCA 174
Sentence appeal.
1 x supply cannabis; + goods in custody.
5*y with NPP of 3y 4m.
Evidence tendered by the Crown consisted of statements of witnesses, recordings & transcripts of recordings of telephone intercepts, surveillance records & statements, videotapes & photographs. The Crown case was that, over the period identified in the indictment, an organised commercial enterprise took place involving the sale & supply of cannabis & that the applicant had a central role in the operation. Although applicant pleaded guilty to the charge of supply, there was significant dispute as to the role he played. A number of witnesses were called to give oral evidence. The sentencing judge was taken through a body of videotape evidence, in some of which the applicant was depicted. Evidence was also called on behalf of the applicant.
Level of involvement - utilitarian value of guilty plea - parity - whether sentence could properly be increased by reason of summary offence on Form 1 - whether sentence manifestly excessive.
Appeal dismissed.
188

WICKHAM, Sydney - CCA, 17.6.2004
Bell, Howie & Hislop JJ
Citation: R v Wickham [2004] NSWCCA 193
Sentence appeal.
Offences contrary to s.66F(3) Crimes Act 1900: 2 x sexual intercourse with person with intellectual disability.
Total sentence of 4y with NPP of 3y.
The above offences were committed upon a 50 year old intellectually impaired male who was mentally disabled as a result of brain damage at birth. A psychiatrist wrote of him that 'almost everything about his manner and presentation suggest marked problems with his intellectual functioning'The complainant lived alone in a set of units. The applicant was a neighbour in the block of units & would sometimes visit the complainant & talk with him or watch TV. On occasions the complainant would visit the applicant in his unit. On the day of the offences, the applicant asked the complainant to fellate him & the complainant complied. This gave rise to the 1st count. The applicant then told the complainant to lie down on some pillows, applied cream to his anus & had intercourse with him. The complainant told police that it was sore but he was too scared to ask the applicant to stop. When he was satisfied, the applicant told the complainant to roll over onto his back & proceeded to fondle the complainant's penis but was unable to arouse him. The applicant participated in a recorded interview with police but denied the offences.
Aged 63 at time of offences - poor health - chronic asthma - ischemic heart disease - series of prior sexual offences committed upon his children - previous imprisonment.
Whether error in considering vulnerability of victim & the intention of the applicant as aggravating factors under s.21A(2)(1) Crimes (Sentencing Procedure) Act - failure to take into account applicant's ill-health.
Appeal dismissed.
[Useful summary of application of aggravating factors - subject to statutory provisions & common law rules - eg criminal record cannot aggravate offence - eg damage caused by offence subject to Previtera (1997) 94 ACrim R 76 & requirement of foreseeability - De Simoni (1991) 147 CLR 383 applies - burden & onus of proof. In this case judge erred in finding vulnerability of victim was an aggravating factor where vulnerability already an element of offence.]
189

HOERLER, Christopher - CCA, 11.6.2004 - 147 A Crim R 520
Spigelman CJ, Hulme & Adams JJ
Citation: R v Hoerler [2004] NSWCCA 184
Crown appeal.
Manslaughter.
11y with NPP of 8y 3m.
Respondent was arraigned on a charge of murdering a 7 month old baby. Following the close of the prosecution case, respondent entered a plea of guilty to manslaughter, which was accepted in full discharge of the indictment. A post-mortem examination conducted upon the deceased found widespread abrasions & bruises to the head & face, petechial haemorrhages of the face, torn frenulum of the lip, penetrating injuries to the hard palate by the lower teeth, lacerated liver, bruised pancreas & small bowel, blood in the peritoneum, crush injuries to the toes, multiple rib fractures, inhalation of vomitus. All injuries were fresh.
Gratuitous cruelty - sentencing range - relationship between sentence for murder & sentence for manslaughter - whether sentence manifestly inadequate.
Appeal allowed: resentenced to 14y 4m with NPP of 10y 9m.
190

CJP - CCA, 16.6.2004
Hulme, Simpson & Howie JJ
Citation: R v CJP [2004] NSWCCA 188
Application for leave to appeal against sentence; and
Crown appeal.
5 x sexual intercourse with child under 16 (13); + Form 1 offences (incite person under 16 (13) to perform act of indecency; aggravated sexual intercourse with child under 16 (10); attempt homosexual intercourse with child under 16 (13); 2 x aggravated sexual intercourse with child under 16 (13)).
Offender was convicted for the above offences & sentenced to a total of 9y with a NPP of 6y. Following a successful Crown appeal against the leniency of those sentences, the matter was remitted to the DC for sentencing: see R v CJP; R v CAD; R v MES [2003] NSWCCA 187 and R v CJP; R v CAD; R v MES [2003] NSWCCA 363. The offender was resentenced in the DC to 11y with a NPP of 7y. It was against those sentences that both the offender & the Crown appealed.
Sentence appeal:
Whether sentence excessive.
Leave to appeal against sentence refused.
Crown appeal:
Whether sentence manifestly lenient - accumulation - criminality - R v Way [2004] NSWCCA 131.
Appeal allowed: resentenced to total of 11y with NPP of 8*y.
191

MAHER, Raymond Austin - CCA, 10.6.2004
Tobias JA, Hidden & Kirby JJ
Citation: R v Maher [2004] NSWCCA 177
Sentence appeal.
1 x B&E with intent to commit felony (steal); 1 x BE&S; 2 x receiving.
Total sentence of 6y with NPP of 4*y.
Applicant & 2 co-offenders broke into an 82 year old woman's house & tried to remove a safe but found that it was bolted to the floor. They later returned to the victim'ss house & removed the safe. On 2 separate occasions, a service station & car service centre were broken into & cartons of cigarettes, clothing & a computer were stolen, which were then taken to the applicant'ss residence.
Aged 32 at time of offences - disturbed, deprived background - abandonment & neglect from earliest years - suffered significant abuse & violence - poor prospects of rehabilitation - multiple priors - no previous imprisonment.
Factors enhancing seriousness - effect upon quantum - repeated incursions - value of stolen properly - professional planning - elderly victim - damage to property.
Whether error in finding applicant more culpable than co-accused - proportionality in sentences - whether sentence manifestly excessive.
Appeal allowed in part: Sentences adjusted to take account of 11 days' pre-sentence custody.
192

NEWELL, David - CCA, 11.6.2004
Bell, Howie & Hislop JJ
Citation: R v Newell [2004] NSWCCA 183
Sentence appeal.
Detain with intent to obtain advantage (kidnapping); possess prohibited weapon (side-handled baton).
Total sentence of 8y with NPP of 5y.
Whilst driving home from work, applicant picked up the victim, who was hitch-hiking. When she asked applicant if he wanted to buy some drugs from her, applicant stopped the car & consumed several beers & what he believed to be LSD, which he had bought from the victim for $50. The victim performed oral sex on the applicant, for which he paid a further $50. They then engaged in consensual sexual intercourse. The victim asked for more money, at which point the applicant became angry. The victim got out of the vehicle & tried to run away. Applicant pursued her, caught her & dragged her back to the vehicle. He tied her up & put a tarpaulin over her. He then drove the car until it stopped due to a mechanical fault. Applicant got a tow truck to take the car to his property. The victim tried several times to escape. She finally succeeded & managed to flag down a passing motorist. The victim suffered severe swelling to her hands & cuts & abrasions over most of her body.
Aged 32 at time of sentencing - early guilty plea - problem with alcohol, drugs, pornography - long-term relationship with mother of his child ceased by time of sentencing - no prospects of reconciliation - minor criminal record - no previous imprisonment.
Whether error in calculating discount - whether error in assessing criminality as middle-range of seriousness - whether sentence manifestly excessive.
Appeal dismissed.
193

DILLON, Michael John - CCA, 26.5.2004
Hulme, Simpson & Howie JJ
Citation: R v Dillon [2004] NSWCCA 169
Sentence appeal.
BE&S; use offensive weapon to prevent lawful apprehension; + 2 offences on a Form 1.
Total of 6*y with NPP of 5y.
Applicant broke into an unoccupied house & stole a TV set & other items which he placed in his car. He had triggered an alarm system & by the time he was leaving the house a 2nd time with more stolen goods the owner had arrived in response to the alarm. The tenant of the premises also returned at this time & took the keys from the applicant'ss car to prevent him leaving. The applicant armed himself with a screwdriver & demanded the return of his keys. After a brief scuffle, he recovered his keys & left, in the process damaging both the house owner'ss & the tenant'ss cars.
Aged 32 at time of offences - on conditional liberty at the time - difficult upbringing - learning difficulties - barely literate - short-term casual employment - disability benefit - drug addiction - serious depression - appalling criminal record - doubtful prospects of rehabilitation.
Whether sentence excessive.
Appeal dismissed.
194

SJD - CCA, 10.6.2004
Mason P, Levine & Kirby JJ
Citation: R v SJD [2004] NSWCCA 182
Sentence appeal.
1 x ongoing supply of MDMA (ecstasy); supply commercial quantity MDMA (ecstasy); + Form 1 (goods in custody, supply prohibited drug, possess prohibited drug).
Total sentence of 3*y with NPP of 2*y.
Applicant supplied ecstasy tablets to an undercover police officer on 3 occasions. Small numbers of ecstasy tablets were involved. Applicant & a co-offender arranged to supply a further1,100 tablets with a value of $27,500. Applicant was arrested after this transaction, although only 597 tablets were in fact supplied. An analysis of the tablets supplied showed that most of them contained no MDMA at all, while 89 of the tablets contained a drug purity of only 1%. The sentencing judge found that the applicant was not a principal in the enterprise.
Aged 21 at time of offences - drug addict - signed undertaking to give evidence against co-offenders - no priors.
Parity - special circumstances.
Appeal allowed insofar as NPP reduced, resulting in a total of 3*y with NPP of 2y.
195

EL-ANDOURI, Mohamed - CCA, 18.6.2004
Tobias JA, Kirby & Bell JJ
Citation: R v El-Andouri [2004] NSWCCA 178
Sentence appeal.
1st indictment:
Count 1: assault with intent to rob whilst armed with offensive weapon 5y with NPP of 2*y.
Count 2: affray - 2y FT (concurrent).
2nd indictment:
Count 1: steal MV - 5y, NPP 3y (partially accumulated upon sentence for count 2, 2nd indictment).
Count 2: robbery in company & inflict GBH upon victim of robbery - 16y, NPP 9y (accumulated upon NPP for count 1, 1st indictment).
Overall sentence of 18*y with NPP of 13*y.
Sentences imposed for offences on 1st indictment not appealed against.
Applicant pleaded guilty to the 2 counts in the 1st indictment. The matter was stood over for sentence. Whilst on bail, he committed the offences the subject of the 2nd indictment. Applicant pleaded guilty to those offences.
Aged 19 at time of offences - left school in Year 8 - barely literate - left employment at age 15 after meeting homeless girl - began using drugs (ecstasy, marijuana, cocaine) - some prospect of rehabilitation - prior larceny offence - no previous imprisonment.
Relevance of purpose for which vehicle taken - general & particular deterrence - special circumstances.
Appeal against sentence in respect of count 2 on 2nd indictment dismissed.
Appeal against sentence in respect of count 1 on 2nd indictment allowed - resentenced on that count to 4y with NPP of 2y 3m, concurrent with sentence for count 2.
New total sentence of 18*y with NPP of 11*y.
196

MILTON, Paul Steven - CCA, 18.6.2004
Tobias JA, Hidden & Greg James JJ
Citation: R v Milton [2004] NSWCCA 195
Conviction and sentence appeal.
6 x homosexual intercourse with male aged between 10 & 18; 2 x act of indecency towards person aged under 16; 1 x detain for advantage.
Total sentence of 16y with NPP of 12y.
Various sexual acts were performed upon each complainant. Neither complainant made complaint until some years later. Both had been employed by appellant at different times. Complainants gave unchallenged evidence that they had never met one another.
Aged 29 at time of 1st offence - generally responsible, industrious lifestyle - no priors.
Tendency evidence - whether evidence relating to each complainant admissible in the case of the other as evidence of sexual attraction - ss 97 & 101 Evidence Act - whether other evidence available - directions on confirmatory evidence - corroboration - whether sentence excessive .
Appeal dismissed.
197

REARDON, Michael Leonard (No.2) - CCA, 23.6.2004 - 60 NSWLR 454;146 A Crim R 475
Hodgson JA, Simpson & Barr JJ
Citation: R v Reardon (No.2) [2004] NSWCCA 197
Application to re-open after disposal of appeal.
On 4.6.2002, the Court dismissed an appeal by the applicant against his conviction: see R v Reardon, Michaels and Taylor [2002] NSWCCA 203. In that judgment, the Court dealt with all issues raised by the grounds of appeal of all appellants & all issues identified in a previous judgment of 1.3.2002. However, the judgment did not deal with a suggestion, advanced by applicant's counsel, that certain running sheets were relevant to the applicant's defence that he never intended to import cocaine, but rather intended to defraud the witness W of the money that W was to provide for the supposed importation of cocaine (the 'rip-off'defence). On appeal, the applicant argued that entries in running sheets kept by the NCA should have been disclosed by the Crown prior to the trial & that the Crown's failure to do so caused a miscarriage of justice, because the applicant was denied support to his 'rip-off'defence that those running sheets could have provided.
Denial of procedural fairness - Crown's duty of disclosure - whether breached - what use could have been made of the material at trial - whether miscarriage of justice.
Application to re-open dismissed.
198

MORGAN, Vincent - CCA, 17.6.2004
Dowd & Hislop JJ, Smart AJ
Citation: R v Morgan [2004] NSWCCA 194
Sentence appeal.
1 x sexual assault; 2 x indecent assault.
Total sentence of 5y 2m with NPP of 3y 11m.
This was an appeal against sentences of imprisonment imposed upon applicant on 6.6.2003, being a revision of the sentences imposed on 5.6.2003. The judge purported to act under the slip rule. The effect of the revision was to extend the overall length of the head sentences by 9 months.
Applicant had been drinking at the complainant's house with the complainant's de facto & another person. The de facto & the other person left the house, leaving the complainant & the applicant alone. The complainant walked the applicant across the road to the applicant's house. Once inside the house, a struggle took place when applicant tried to have sexual intercourse with the complainant. Applicant threw complainant onto a bed & attempted to pull down her shorts & insert his tongue into her vagina. Applicant pushed the complainant against a door, demanding to have sexual intercourse. Complainant managed to escape & ran to a friend's house where she told the friend what had happened. Complainant then returned to her home & fell asleep. Some time later she woke to find applicant having penile/vaginal intercourse with her. As complainant was getting dressed, applicant came up behind her, assaulted her & committed an act of indecency upon her.
Aged 44 at time of offences - alcoholic - disadvantaged childhood & teenage years - protective custody - special circumstances - priors include manslaughter, malicious wounding, assault occasioning GBH & other less serious offences - previous imprisonment.
Whether misconception of slip rule - whether cumulative sentences should be imposed in the order that the counts appear on the indictment - whether parole period too short.
Appeal allowed: new total sentence of 4y 5m with NPP of 3y 3m.
199

WIGNEY, Shane John - CCA, 2.6.2004
Grove, Dunford & Howie JJ
Citation: R v Wigney [2004] NSWCCA 171
Crown appeal.
Murder; robbery armed with dangerous weapon.
Total sentence of 16y 8m with NPP of 11*y.
Respondent, armed with a pistol, & another male, armed with a knife, held up a hotel. Both were disguised at the time. During the course of the robbery a male patron hit the respondent over the head with a stool. A manager of the hotel pursued the offenders as they fled & eventually managed to catch the respondent. A struggle took place & the respondent fired 2 shots at the manager. The 2nd shot hit the manager in the chest. He died the same day. The offenders escaped but respondent was identified from DNA evidence found on a pistol & glove, which offenders discarded as they fled. The robbery offence occurred when respondent, armed with a pistol & in company with another male, entered a shop & stole jewellery & money. When offenders fled the store, respondent fired a shot into the air.
Aged 36 & on parole at time of offences - long-time user of drugs - hepatitis - on protection - remorse, contrition - bad criminal records in NSW, Vic & Qld - multiple priors - previous imprisonment.
Whether sentences manifestly inadequate - challenge to sentencing judge's findings that respondent fired weapon in 'some reflex fashion'& that the Crown accepted that it was a fact that the respondent did not intend to kill or do GBH to the victim.
Appeal allowed: resentenced to total of 21y 9m with NPP of 16y 8m.
200

BARRI, Omar Sharif - CCA, 6.7.2004
Beazley JA, Dowd & Greg James JJ
Citation: R v Barri [2004] NSWCCA 221
Sentence appeal.
1 x supply cocaine; 1 x supply ecstasy; 1 x knowingly take part in manufacture of methylamphetamine; + Form 1 (drug offences).
Total of 7y with NPP of 5y.
Acting on information that applicant & other family members were involved in the supply & manufacture of prohibited drugs, a telecommunications warrant was issued for the applicant's mobile phone. As a result of that warrant, police were able to identify that the applicant was involved in the supply of cocaine, ecstasy & amphetamines & in particular the supply of cocaine to a particular female. Police obtained & executed a search warrant for the drug house premises. Warrants were also obtained for premises occupied by a co-participant of the applicant & the co-participant's de facto.
Aged 29 at time of offences - psychological condition such as to lead to rehabilitation & avoidance of further offending - no priors.
Material taken into account in addition to agreed facts - totality - role of offender - special circumstances - parity.
Appeal dismissed.
201

WILLIAMS, William Patrick - CCA, 6.7.2004
Studdert, Dunford & Howie JJ
Citation: R v Williams [2004] NSWCCA 224
Appeal against finding of not guilty by reason of mental illness.
Malicious wounding with intent to do GBH.
Appellant believed that the victim was "casting demons" upon him & attempting to possess his spirit. He confronted the victim about this, saying "Now I am going to kill you". The appellant produced a fishing knife & stabbed the victim who suffered a deep wound to the hand. Psychiatric evidence established that at the time of the offence the appellant was suffering from a schizophrenic delusional disorder & a verdict of not guilty by reason of mental illness was returned.
On appeal, appellant submitted that the defence of mental illness was raised by his legal representatives contrary to his instructions in that the defence was not set up by him so much as it was set up for him by his legal representatives.
Aged 36 at time of offence - schizophrenic illness - auditory hallucinations - severe delusions - prior common assaults - no previous imprisonment.
Effect of s.5(2) Criminal Appeal Act 1912 - conduct of solicitor - acting contrary to instruction - right to appeal limited by statute.
Appeal dismissed.
202

MILAKOVIC, Sinisa - CCA, 21.6.2004
Grove, Dowd & Sperling JJ
Citation: R v Milakovic [2004] NSWCCA 199
s.5F appeal by Crown.
Wound with intent to murder (in the alternative malicious wounding with intent to inflict GBH)
During the course of the trial, the trial judge refused the Crown leave to cross-examine a prosecution witness as an unfavourable witness, pursuant to s.38 Evidence Act 1995. The Crown appealed this interlocutory ruling pursuant to s.5F(3A) Criminal Appeal Act 1912, contending that this was a decision or ruling on the admissibility of evidence & that it eliminated or substantially weakened the prosecution case. The trial judge discharged the jury & the accused was further remanded for trial.
Whether ruling could not be characterised as one relating to the admissibility of evidence.
Appeal dismissed.
203

P - CCA, 30.6.2004
Ipp JA, Hulme & Hislop JJ
Citation: R v P [2004] NSWCCA 218
Sentence appeal.
Robbery with wounding armed with offensive weapon; robbery armed with offensive weapon; Form 1 (2 x armed robbery; assault with intent to rob whist armed).
Total of 11y with NPP of 6y.
Applicant (armed with a meat cleaver) & 2 co-offenders (one armed with a baseball bat) approached 3 men walking along the street. Applicant held one of the men in a headlock, placed the meat cleaver against his throat & demanded his wallet. The victim gave the wallet to him (containing $300 in cash) & some personal items. All 3 men were then ordered to face the fence & one co-offender patted down one man before running away with the other co-offender. Before fleeing the scene, applicant slashed the man whose wallet he had taken with the meat cleaver, causing a deep laceration to his chin (requiring 16 stiches) & a 10cm long laceration to his wrist that extended down to the bone. A short time later applicant & his 2 co-offenders approached 2 men walking along the street. One co-offender pushed one of the men against a car with the baseball bat & demanded money. Applicant held the meat cleaver against the man'ss throat & threatened to cut him. The victim handed over his watch & the applicant removed the victim'ss wallet from the victim'ss pants. The other man called out & the applicant started to walk towards him, swinging the meat cleaver. The co-offender then hit the victim with the baseball bat, rendering him unconscious.
Aged 17 at time of offence - immature - poly-drug & alcohol abuse since age 12 - left school during Year 10 - anti-social, self-damaging behaviour - anger - depression - attempts at suicide - sought professional assistance & continued with education whilst in custody - some potential for rehabilitation - prior common assault - no previous imprisonment.
Error in setting immutable NPP - departure from standard NPP - youth - guilty plea - special circumstances.
Appeal allowed: new total of 7y 3m with NPP of 4y.
204

SUTTON, Geoffrey Nelson - CCA, 1.7.2004
Studdert, Dunford & Howie JJ
Citation: R v Sutton [2004] NSWCCA 225
Sentence appeal.
Aggravated dangerous driving occasioning death.
6*y with NPP of 4*y.
At 4:00pm applicant left the hotel where he had been drinking for most of the day & began driving home. The deceased & her de facto partner were riding bicycles in single file. The de facto partner was wearing a bright yellow cycling vest & was riding in front of the deceased. Applicant'ss vehicle swerved suddenly across the road, narrowly missing the male cyclist & hitting the female cyclist, who later died from the injuries she sustained. The applicant failed to stop at the scene of the accident & continued to his home where he was found by police officers slumped in the driver'ss seat of the stationary vehicle. The applicant was grossly intoxicated, having a blood alcohol concentration of at least 0.268. On the day of the accident, it was overcast but fine & the road surface was dry. Applicant was unlicensed at the time as a result of earlier driving offences.
Aged 43 at time of offence - separated from wife - unemployed - alcoholic - priors include attempt steal, 2 x high range PCA, DUI, fail to stop after accident, 3 x licence/registration offences - no previous imprisonment.
Guilty plea - utilitarian value - strength of Crown case not relevant to utilitarian value - failure to specify discount.
Appeal allowed: resentenced to 6*y with NPP of 4y.
205

AH-SEE, Douglas Keith - CCA, 28.6.2004
Bell, Howie & Hislop JJ
Citation: R v Ah-See [2004] NSWCCA 202
Sentence appeal.
Aggravated BE&S; resist/hinder police in execution of duty; assault police officer in execution of duty.
Total of 4y with NPP of 3y.
Applicant broke into a house in which the victim & her young son were sleeping. He removed property from the drawers & the victim'ss bag with the intention of stealing it. However, he fell asleep on the victim'ss bedroom floor. When the victim woke up, the applicant was still asleep. While the victim was contacting police he awoke, then rummaged around the house for 20 minutes before the police arrived & arrested him.
Aboriginal - aged 40 at time of offence - fairly good childhood - close relationship with mother - no learning or disciplinary problems at school - completed Year 10 - completed 3 years of carpentry apprenticeship - long history of poly-substance abuse - excessive use of sleeping pills to cope with chronic ear infection - lengthy criminal record (106 convictions) - priors include offences of violence, property & drug offences - previous imprisonment.
Fernando principles - whether applicable - specific & general deterrence - protective custody.
Appeal dismissed.
206

PELL, William - CCA, 8.4.2004
Beazley JA, Dowd & Greg James JJ
Citation: R v Pell [2004] NSWCCA 205
Sentence appeal.
3 x indecent assault upon female under 16.
Total of 3y 9m with NPP of 2y 9m.
In 1977, applicant committed indecent assaults upon a young female aged 9 or 10. In the same year he indecently assaulted another young female of about the same age.
Aged 35 at time of 1st offence - aged 61 at time of sentence - on protection - previous conviction in WA - prior possess child photography - no previous imprisonment.
Totality - delay in complaint - failure to give effect to finding of special circumstances - Pearce (1998) 194 CLR 610 applied.
Appeal allowed: new total sentence of 3y 6m with NPP of 2y 3m.
207

TR - CCA, 1.7.2004
Dunford, Adams & Howie JJ
Citation: R v TR [2004] NSWCCA 187
Sentence appeal.
Maliciously inflict GBH.
3* with NPP of 1*y (to be served in juvenile detention centre).
A group of teenagers had been standing on a street corner drinking when an argument developed. They had consumed a substantial quantity of alcohol & the applicant & several others were well intoxicated. Applicant & 2 co-offenders singled out the victim who had made racist remarks & punched & kneed him. The applicant stomped on his head several times & kicked him in the ribs. He also hit the victim about the head with a chain a number of times before the victim'ss 15-year-old female friend intervened & kicked the applicant on the hip. The applicant & his co-offenders then walked away, leaving the victim seriously injured on the footpath. The victim suffered injuries requiring very long-term treatment, including almost complete blindness in his right eye, memory impairment, forgetfulness, dull headaches, nightmares, difficulty sleeping, poor concentration & a tendency to anger easily.
Aged 16 at time of offence - Scottish/Pacific Islander parentage - dysfunctional upbringing- mother died when applicant aged 9 - experienced racial vilification from stepmother - psychological problems - sexually abused at age 15 - symptoms of post-traumatic stress disorder - short periods of casual employment - attempts at rehabilitation - remorse - no priors.
Juvenile offender - general deterrence -value of quantifying discount for guilty plea - delay - sentencing judge'ss inappropriate questioning of witness & speculation about Crown'ss acceptance of guilty plea.
Appeal dismissed.
208

LAMERI, Ross Allan - CCA, 18.6.2004
COHEN, Phillip Barry
Mason P, Tobias JA, Howie J
Citation: R v Lameri; R v Cohen [2004] NSWCCA 217
s.5F appeal by Crown against ruling on admissibility of evidence.
4 x obtain valuable thing by deception; 3 x money laundering.
The Crown case was that respondents represented to a finance broker that finance was needed by a 3rd party to purchase saw-milling equipment. The bank approved the loan subject to guarantees. The Crown alleged that a false invoice was created & was used to procure the funds & the bank'ss cheque. It was proposed that a witness (main Crown witness) would give evidence that having obtained the cheque, he endorsed it. This witness was the leg-man acting on respondents' instructions. The other 3 offences were broadly the same. The critical issue in the case was whether he was acting alone or whether, as he contended, he was acting with & on behalf of the 2 accused. Prior to the Crown opening & after the jury had been empanelled, counsel for each accused objected to the admission of evidence subsequent to the time when the cheques were issued & delivered by the bank. The trial judge rejected the evidence on the basis that "what the Crown is trying to present before the jury is other illegal acts and then to ask the jury to reason back from that activity that the accused were acting dishonestly." Alternatively, s.137 of the Evidence Act precluded the admission of the evidence because its probative value was outweighed by the danger of unfair prejudice to the defendants.
Whether ruling eliminated or substantially weakens prosecution case - ss.55, 137 Evidence Act - whether evidence relevant - whether probative value outweighed by danger of unfair prejudice - identification of challenges to Crown case before commencement of trial.
Appeal allowed: ruling of trial judge vacated.
209

LEE, Jim - CCA, 7.5.2004
Sully & Dowd JJ, Smart AJ
Citation: R v Lee [2004] NSWCCA 133
Conviction appeal.
Aggravated sexual intercourse without consent (inflict ABH).
Appellant was acquitted of 2 other charges, namely taking the complainant without her consent with the intention of obtaining an advantage & a further charge of having sexual intercourse without consent in circumstances of aggravation.
Inconsistent verdicts - whether verdict of guilty reasonably supported by evidence - directions - R v Markuleski (2001) 52 NSWLR 82.
Appeal dismissed.
210

LTP - CCA, 1.7.2004
Dunford, Simpson & Howie JJ
Citation: R v LTP [2004] NSWCCA 109
Conviction and sentence appeal.
Count 4: sexual intercourse with person under 10 (12y with NPP of 9y);
Count 5: sexual intercourse with person aged between 10 & 16 under authority (8y with NPP of 6y, concurrent).
Total of 12y with NPP of 9y.
Appellant was charged with 8 offences. The Crown withdrew 2 charges during the trial. Appellant was subsequently acquitted of 4 offences & convicted for the above 2 offences. The complainant is appellant's natural daughter. She said she was aged 9 at the time of the count 4 offence & 12 at the time of the count 5 offence. The count 4 offence allegedly occurred on the complainant'ss 9th birthday. In support of that proposition the Crown tendered a photograph of a birthday cake containing 8 candles. The complainant testified that it was nevertheless her 9th birthday. The offence involved the appellant asking the complainant for oral intercourse. She said she complied with the direction & then returned to her birthday party. The count 5 offence involved penile-vaginal intercourse. The complainant testified that the appellant frequently had sexual intercourse with her & that he had also video-taped them on one occasion. He had also used a "big black rubber thing". This item was recovered by police. When confronted, appellant made admissions of a general nature to his wife.
Aged 52 at time of offence - worked for railways for 28 years - early retirement due to work-related injuries - previous good character - no expression of contrition - no priors.
Delay in complaint - Kilby direction inadequate ( Kilbyv The Queen (1973) 129 CLR 460) - fresh evidence.
Appeal allowed on count 4: verdict of acquittal entered.
Appeal against conviction on count 5 dismissed.
Sentence appeal allowed on count 5: resentenced to 6y with NPP of 4*y.
211

BARAKAT, Nadar - CCA, 23.6.2004
Beazley JA, Dowd & Greg James JJ
Citation: R v Barakat [2004] NSWCCA 201
Sentence appeal.
Supply heroin; supply cocaine.
Concurrent sentences totalling 4y with NPP of 3y.
Applicant directed & controlled an extensive network of drugs supply for a period of over 3 months. He & others organised the preparation, packaging & storage of heroin & cocaine which were sold in street deals on a daily basis in different suburbs. The applicant played a significant & leading role & acted as an overseer of the runners who delivered the drugs. The operation used a relatively sophisticated contact system, utilising coded references & mobile phones. During this time the applicant supplied 120 grams of heroin & 120 grams of cocaine.
Aged 24 at time of offences - 47% discount for assistance to authorities - applicant the chief Crown witness in murder trial of 5 defendants in relation to the murder of applicant'ss cousin in custody - has strong fears for his life in custody & when released - in Long Bay Special Purposes Centre for incarcerated Crown witnesses - wife & 3 young children in witness protection - suffering depressive thoughts, anxiety & intrusive recollections about the murder of cousin - prior offence of manslaughter - no previous imprisonment but served a control order as a juvenile.
Whether further allowance should be made when fixing NPP for factors taken into account when fixing full term - necessity for proper reasons in such a case - necessity for NPP to reflect objective gravity of offence.
Appeal dismissed.
212

CHEBAT, Mark - CCA, 28.6.2004
Bell, Howie & Hislop JJ
Citation: R v Chebat [2004] NSWCCA 211
Sentence appeal.
Aggravated robbery (maliciously inflict ABH).
2*y with NPP of 15m.
Applicant & 2 others approached the area where the victim was seated on a bench waiting for a lift. Applicant walked up to the victim, stood with his right leg between the victim'ss legs & said "I'sm going to take your wallet". He then took the victim by the throat & squeezed with both hands, cutting the victim'ss air supply. He forced the victim'ss head back, causing the victim'ss head to strike a brick wall. The victim punched & kicked, managing to force the applicant off him. The 2 other males encircled the victim & began punching him. One of the males took his backpack. The applicant punched the victim in the face & then the victim was tripped to the ground. The victim was continually kicked to the torso & head areas, however, he managed to stand up & hit one of the males. The victim was again thrown to the ground. The attack only ceased when police officers arrived on the scene. The victim received a split lip, loose teeth, stiff jaw & body, sore ribs, arms & back.
Aged 18 at time of offence - permanent employment - good prospects of rehabilitation - disruptive upbringing - remorse - involved in car accident, suffered significant brain trauma & head injuries - injuries left him less able to control angry responses & more susceptible to being led by others - no priors.
Departure from Henry guideline - special circumstances - application of s.44 Crimes (Sentencing Procedure) Act 1999.
Appeal dismissed.
213

McBURNEY, John James - CCA, 17.6.2004
Grove, Dowd & Sperling JJ
Citation: R v McBurney [2004] NSWCCA 203
Sentence appeal.
Cultivate prohibited plant (cannabis).
4y 3m with NPP of 9m.
Applicant cultivated 250 cannabis plants, ranging from seedling height to 2 metres. There was a degree of sophistication in the enterprise, with seedlings being raised hydroponically & subsequently planted out.
Aged 72 at time of offence - prior good character - married with family - poor health - low-grade tumour on spinal cord, partly removed, with residual paralysis of legs & deteriorating - unlikely to re-offend - excellent prospects of rehabilitation - no priors.
Hardship in custody - special circumstances.
Appeal allowed: resentenced to 3y with NPP of 6m 10d.
214

ENSBY, Raymond John - CCA, 24.6.2004
Bryson JA, James & Kirby JJ
Citation: R v Ensby [2004] NSWCCA 196
Sentence appeal.
Use offensive weapon with intent to commit indictable offence of assault ; + Form 1 offence (possess shortened firearm without authority).
5y with NPP of 3y 9m. Sentence backdated to take account of 102 days in custody before being given bail.
The matter proceeded upon the basis of an agreed statement of facts & a number of documents from the Crown which included statements from eye-witnesses & a transcript of an interview with applicant by police. Whilst acknowledging his guilt, applicant disputed the victim's account of the circumstances giving rise to his offending behaviour. Applicant & the victim had been living together for approximately 18 months. The relationship soured & the victim claimed that the respondent had assaulted her on several occasions. She took out an AVO against him. When she went to applicant's premises to collect some shoes, he threatened her with a baton. She wrestled the baton from him, whereupon applicant produced a shortened .22 calibre rifle & pointed it at her. She escaped from the house & ran down the street. Applicant caught up with her & pushed the firearm into her neck. A policeman heard her screams & arrested the applicant.
Aged 55 at time of offence - history of alcohol & drug abuse, including at time of offence - limited insight into offending - tendency to minimise his contribution to his circumstances - significant gaps in criminal record suggesting applicant capable of law-abiding behaviour - priors include stalking & intimidation with intent to cause fear; other offences in different states mainly for dishonesty, including larceny & housebreaking - previous imprisonment.
Whether sentence excessive - subjective circumstances - health - whether appropriate weight given - special circumstances.
Appeal dismissed.
215

KEVENAAR, Theodorus - CCA, 28.6.2004 - 148 A Crim R 155
DEDOES, Marinus
PAN, Jin Rong
Hulme, Simpson & Howie JJ
Citation: R v Kevenaar & Ors [2004] NSWCCA 210
Crown appeal.
Kevenaar: Attempt possess commercial quantity MDMA (ecstasy) - 3y with NPP of 21*m.
Aged 23 at offence - guilty plea - Dutch national - placed in children's home until age 18 following death of father & illness of mother - poorly educated - commenced work as garbage-man at 18 - genuine contrition - not much more than peripheral involvement on very edge of operation - rehabilitation well advanced - significant assistance - criminal record in Holland - prior BE&S - no previous imprisonment.
Dedoes: Attempt possess commercial quantity MDMA (ecstasy) - 4y with NPP of 28*m.
Aged 22 at offence - guilty plea - Dutch national - in children's home from ages 10-17 - lived on streets for several months, then with Salvation Army for approx 2 years - left school at age 16 - continuous labouring work for some 6 years - smoked cannabis (legal in Holland) several times a day by age 20 - demonstrated genuine contrition - de facto wife & 2 children - criminal record in Holland - on probation at time of offence - similar role to that of Kevenaar - likely to serve entire sentence on strict protection - prior stealing - previous imprisonment for one week in Holland.
Pan: Attempt possess commercial quantity MDMA (ecstasy) - 6*y with NPP of 3y 7*m.
Aged 23 at offence - guilty plea - Dutch national - harsh early life, particularly from age 13 - no alcohol or cannabis use - occasional ecstasy user - genuine contrition not demonstrated - criminal record in Holland - on probation at time of offence - significantly more involved in criminal enterprise than co-offenders, but "slightly less than a middle man - prior offence of blackmail - previous imprisonment for one month in Holland.
Respondents came to Australia to facilitate the distribution of ecstasy being imported into Australia. Dutch authorities notified the Australian authorities about the drugs & the Australian authorities intercepted the packages of drugs on their arrival & carried out a controlled delivery. One of the respondents took delivery of the packages. All 3 respondents were arrested when they met in a hotel room. The packages contained some 48,828 ecstasy tablets containing 5987.7 grams pure MDMA (accepted street value approx $50 per tablet).
General deterrence - role of offenders - effect of repeal of s.16G of Crimes Act (Cth).
Appeals allowed & respondents resentenced as follows: Kevenaar: 7y with NPP of 4*y;
Dedoes: 7y 9m with NPP of 5y;
Pan: 11y with NPP of 7y.
216

HEMSLEY, Mashell Joy - CCA, 7.7.2004
Grove, Dowd & Sperling JJ
Citation: R v Hemsley [2004] NSWCCA 228
Sentence appeal.
Armed robbery.
6y with NPP of 4*y.
The victim was cutting the hair of a client when the applicant entered the hairdressing salon, holding a syringe filled with a red substance. She demanded money from the victim, yelling "I'sve got AIDS". When the applicant moved towards the victim with the syringe held out, the victim went to the rear of the store & took $460 in cash from her handbag & gave it to the applicant. The applicant took the money & ran from the store. She was apprehended at the nearby railway station a short time later. When interviewed by police, she made no meaningful reply to any of the questions.
Aged 29 at time of offence - dysfunctional family life - physical & sexual abuse by father - ran away from home at 14 - became involved in prostitution - use of drugs & alcohol since 14 - diagnosed with cancer at 21 - School Certificate & TAFE hairdressing course - lifelong asthmatic - strongly influenced by partner of 14 year homosexual relationship prior to offence - borderline personality disorder/depressive illness made it impossible to exercise rational & sound judgment with regard to participating in offence - considerable effort & progress in rehabilitation whilst in custody - willingness to change patterns of behaviour - priors include 29 x prostitution offences; 6 x possession/ use of drugs; 6 x property offences;11 x breach bail/probation order/fine option - no previous imprisonment.
Mental health - deterrence - discount for guilty plea not given - error in taking into account strength of Crown case.
Appeal allowed: resentenced to 3y with NPP of 2y.
217

BROWN, Peter - CCA, 28.6.2004
Ipp JA, Hulme & Hislop JJ
Citation: R v Brown [2004] NSWCCA 215
Sentence appeal.
Robbery armed with offensive weapon (sledge-hammer); robbery with infliction of ABH (sledge-hammer); armed with intent to commit indictable offence (armed rob); Form 1 offences (common assault, larceny, carried in conveyance, possess means of disguising face).
Total of 8y with NPP of 5y (to be served in juvenile detention centre.
No details of offences given.
Aged 17 at time of offences - living at home with family - unemployed - no priors.
Offences had extremely serious consequences for victims - young accused with no prior convictions - parity - whether error in not taking regret & remorse of accused into account - importance of serious criminality of offences.
Appeal dismissed.
218

AYOUB, Brian Nicholas - CCA, 28.6.2004
Grove & Howie JJ, Newman AJ
Citation: R v Ayoub [2004] NSWCCA 209
Conviction appeal.
Maliciously inflict GBH with intent to do GBH: + Form 1 (possess knife in public place; possess cannabis; larceny).
8y with NPP of 5y 10m.
Appellant & a friend went to a flat & banged loudly on the door. The victim told them to go away but then opened the door & a scuffle took place. Appellant's friend went to the bathroom, the victim followed & another scuffle took place. It was alleged that the appellant then intervened & stabbed the victim. During the course of the trial, an issue arose as to who it was who had stabbed the victim. The victim & appellant's friend identified the appellant as being the assailant. However, there was evidence from a prison informer that appellant's friend had told him that it was he who had stabbed the victim & not the appellant. During his closing address, defence counsel said "You may find there is a real possibility that it was someone other than'the appellant who had stabbed the victim. The trial judge interrupted & told counsel not to refer to "possibility" as it confused the question of reasonable doubt.
Identification - standard of proof - negative identification - rule in Browne v Dunn - judicial intervention - warning concerning potential unreliability of defence witnesses - applicability of s.165 Evidence Act to defence witnesses.
Appeal allowed: new trial ordered.
219

HOWCHER, Mohamad - CCA, 21.6.2004 - 146 A Crim R 371
Grove & Hulme JJ, Smart AJ
Citation: R v Howcher [2004] NSWCCA 179
Sentence appeal.
Aggravated dangerous drive occasioning death.
3*y with NPP of 2y.
In 1996, applicant purchased a car that had been specially modified to increase its performance. He was demonstrating the capabilities of his car to some friends by giving them rides in it. Whilst on one such joy-ride, the applicant lost control of the car & it collided with a tree, killing his passenger. The modifications that had been made to the car increased its maximum speed capability & its acceleration capacity. The speed limit in the area where the accident occurred was 60kph & it was estimated that the applicant was travelling at approximately 120kph. At the time, he was affected by cannabis to the extent that his driving ability would have been impaired. The weather was fine, the road surface was dry & in a good state of repair & the visibility was excellent. When applicant was bailed, he fled to Lebanon. In 2002, he returned to Australia & surrendered himself to authorities.
Aged 20 at time of offence - guilty plea - heroin, cocaine, amphetamine & cannabis abuse - breach of existing bond - breach of bail in flight from country - poor driving record with numerous offences - priors include multiple driving & motor vehicle offences, conspiracy to rob, possess weapon - no previous imprisonment.
Delay of several years caused by offender fleeing country - sentencing regime changes - whether adverse to offender.
Appeal dismissed.
220

McKEON, Glen Peter - CCA, 12.7.2004
Studdert, Kirby & Hislop JJ
Citation: R v McKeon [2004] NSWCCA 232
Conviction and sentence appeal.
7 x aggravated armed robbery; 1 x robbery; 4 x steal MV; + Form 1 (robbery; aggravated armed robbery).
Total of 24y with NPP of 15y.
Appellant committed a series of armed robberies, the proceeds of which amounted to $93,000. Only $21,000 was recovered. He robbed a number of credit unions & banks. On all but one occasion he used a firearm, replica firearm or handgun, & on 5 occasions a stolen vehicle was used to flee the scene. During one of the offences, the gun was discharged.
Aged 39 at time of 1st offence - on parole at the time for previous armed robbery - reasonably supportive adoptive family upbringing - drug abuse since teen years - intelligent, articulate - exceedingly dim prospects of rehabilitation - multiple priors (10 x assault; AOABH; 12 x property offences; 5 x driving offences;6 x drug offences; 9 x dishonesty offences; armed robbery; 5 x breach of parole; offensive language - previous imprisonment.
Circumstantial evidence - application for separate trials - Henry guideline judgment - totality - prejudicial material.
Appeal dismissed.
221

COX, Ian Ormond - CCA, 29.6.2004
Hodgson JA, Grove & Howie JJ
Citation: R v Cox [2004] NSWCCA 204
Conviction and sentence appeal.
Conspire to import not less than commercial quantity cocaine - 20y with NPP of 15y;
Conspire to import not less than commercial quantity cannabis resin - 14y, NPP 5y (partly concurrent).
Total sentence of 29y with NPP of 20y.
Appellant, the proprietor of a wine importing business, conspired with others to import 50 kgs of cocaine from Chile by using the wine importation business as a vehicle. He also conspired with others to import cannabis resin into Australia.
Aged 45 at offences - prior similar offence (received 14y with NPP of 8y); several summary offences.
Appellant was unrepresented on appeal & raised 13 grounds concerning alleged defects in the directions, errors in the admission of certain evidence, perceived bias, failure to discharge the jury, illegal conduct of police, admission of fresh evidence & unreasonable verdict.
Whether verdict unreasonable - parity, discount, personal deterrence - whether error - whether sentences excessive.
Conviction appeal dismissed.
Appeal against sentence allowed only for the cannabis offence: sentence reduced to 12y.
New total sentence of 23y with a NPP of 18y.
222

WALKER, Lisa - CCA, 8.7.2004
Dowd & Hislop JJ, Smart AJ
Citation: R v Walker [2004] NSWCCA 230
Sentence appeal.
Robbery in company.
3y 7m 6d with NPP of 2y 4m 15d.
Applicant, in company with a male & a female, snatched a handbag from a woman as she was waiting in the street for a friend. The applicant grabbed the woman by the neck & shoulders & the male co-offender struck the woman in the face.. When the victim gave chase, she was threatened with a stick & punched in the face by the male co-offender. Applicant'ss sentence commenced on 5.10.2002, which was at the end of a parole period for 3 other offences. Her parole for those earlier offences was revoked because of the subject offence. However, on 15.4.2002 she sought a review of the parole revocation. The Parole Board stood over the matter pending the outcome of the instant proceedings. On appeal, the applicant submitted that had the Parole Board determined the matter, she could have been released to parole for the earlier offences well before 5.10.2002, resulting in at least some of her pre-sentence custody being referable to the instant offence & the commencement date of the sentence would have been earlier.
Aged 34 & on parole at time of offence - multiple priors include malicious damage; larceny; enter prescribed premises; fail to appear; assault (ABH); steal from the person; detain for advantage; enter enclosed land without lawful excuse; carried in conveyance without consent of owner; posses prohibited drug; posses implements to enter/drive conveyance; goods in custody; breach of parole - previous imprisonment.
Revocation of parole - double punishment.
Appeal allowed: resentenced to 3y 7m 6d with NPP of 2y 4m 15d, to commence on 6.6.2002 rather than 5.10.2002.
223

HOLTON, Trevor Edward - CCA, 30.6.2004
Grove & Hulme JJ, Smart AJ
Citation: R v Holton [2004] NSWCCA 214
Conviction appeal; and
Crown appeal.
Murder.
16y with NPP of 12y.
Offender was driving a stolen MV in an attempt to escape police. A highway patrol officer was authorised to position road spikes to effect his arrest. Offender was driving at very high speed & did not stop or slow down when approaching the spikes & struck the highway patrol officer, causing fatal injuries.
An indictment was presented charging offender with murder & aggravated dangerous driving causing death, the latter contrary to s.52A(2) Crimes Act 1900. The charges were not pleaded in the alternative. At an appearance before a judge for arraignment & list directions, offender pleaded guilty to aggravated dangerous driving causing death. The presiding judge endorsed the back of the indictment to record the plea but otherwise did not record conviction. He orally expressed conviction of the offender on the count to which he had pleaded guilty. Initially all present overlooked the possible application of s.52AA(6) which inhibits 'double jeopardy'for murder & an offence contrary to s.52A(2). The Crown expressed its intention to proceed to trial on the count of murder. No objection was then raised on behalf of the offender. Subsequently, there was adversion to s.52AA(6). Motions by the offender to quash the count charging murder & by the Crown to vacate the 'order for conviction'were heard by the allocated trial judge (who had not presided at the arraignment when the plea of guilty to the other count was made). The offender's motion was dismissed & orders as sought by the Crown were made. The offender was found guilty of murder & sentence imposed.
Aged 26 at time of offence - placed into boarding school at early age for children with behavioural problems - suffering Attention Deficit Disorder - sexually assaulted as a child - lived on streets from early age - cannabis use & binge drinker from age 13 - amphetamine use from age 19 - heroin use from age 21 - unsuccessful attempts at rehabilitation - multiple priors include stealing or illegal use of MV's, BE&S, dishonesty - previous imprisonment.
On appeal, offender challenged correctness of the rulings & also the content of a direction given in response to an enquiry by the jury made during their deliberations.
The Crown appealed against the manifest inadequacy of the sentence.
Conviction appeal dismissed; Crown appeal dismissed.
224

MOULOUDI, Adam - CCA, 28.6.2004
Simpson, Sperling & Bergin JJ
Citation: R v Mouloudi [2004] NSWCCA 96
Crown appeal.
2 x possess prohibited firearm; + Form 1 (2 x possess prohibited firearm).
Concurrent sentences of 4*y with NPP of 2*y.
Police searched respondent who was found to be carrying 2 loaded pistols. During the search, respondent reached for one of the weapons but was disarmed by police. He was not authorised to own or possess any firearms. One of the firearms was stolen.
Aged 20 & on bail at time of offences - no contrition demonstrated - priors include 5 x drug offences, malicious wounding by use of firearm, goods in custody, 2 x firearms offences - previous imprisonment.
Whether sentence manifestly inadequate - whether material error of law in applying incorrect maximum penalty - whether invariable rule that sentence to be imposed for later offence should be made cumulative upon sentence for offence in respect of which prisoner was on bail applies - approach on resentencing since introduction of standard NPP's - double jeopardy principle in Crown Appeals.
Appeal allowed: resentenced to concurrent sentences of 6y with NPP of 4y.
225

NELSON, Cnantal Denise - CCA, 9.7.2004
Grove, Dowd & Sperling JJ
Citation: R v Nelson [2004] NSWCCA 231
Conviction appeal.
1 x aggravated dangerous drive causing death; 1 x aggravated dangerous drive causing GBH.
Total of 6y with NPP of 2*y.
Appellant was driving along a motorway with her de-facto partner in the front passenger seat & 3 children in the rear seat. According to witnesses, the car was speeding at over 110 kph when it fishtailed & overturned. The de facto partner died & one of the children suffered injuries amounting to GBH. A blood sample taken from the appellant shortly after the accident gave a reading of 0.194 grams of alcohol per 100 mls of blood. A police officer made a statement which claimed that when interviewing the appellant in hospital, she referred to one of the children'ss fathers & said "He might then come here and finish what I tried to do, kill myself." Appellant denied saying these words & testified that she said "my ex husband will come and kill me himself". She claimed that her de facto had seized the steering wheel & that she was therefore not the driver of the car. She also relied upon the statutory defence that the harm was not in any way attributable to the fact that she was under the influence of alcohol (s.52A(8) Crimes Act 1900). She gave differing versions as to who was in control of the car at the time of the accident.
Aged 41 at time of offences - priors unknown.
Whether miscarriage of justice in that evidence was received by the jury that should have been excluded - whether it was unfair not to exclude the comment made to the officer in the hospital, under s.90 Evidence Act 1995.
Appeal dismissed.
226

HOSKINS, Leonard William - CCA, 14.7.2004
Giles JA, Levine & Hulme JJ
Citation: R v Hoskins [2004] NSWCCA 236
Crown appeal.
Maliciously inflict GBH with intent to do GBH.
6y with NPP of 4y (to date from 14.11.2003, which is partly concurrent upon sentence already being served).
Whilst serving a sentence in prison, respondent stabbed another inmate with a screwdriver when the inmate refused to give him a smoke, resulting in a wound to the right side of the victim'ss body, around the kidney area. After the stabbing, respondent returned & punched the victim several times around the head & face. The injuries included a puncture wound & a laceration over the victim's left eye, which required sutures.
Aged 21 at time of offence - poor family upbringing involving use of excessive violence & alcohol - alcohol abuse disorder - anti-personality disorder - illiterate - had never held a job - discount for assistance - prior dishonesty & robbery offences.
Whether sentence manifestly inadequate.
Appeal allowed: sentenced to 6y with NPP of 4y, dating from 14.11.2004.
227

GRBIN, Robert Brian - CCA, 29.6.2004
Levine, Dunford & Howie JJ
Citation: R v Grbin [2004] NSWCCA 220
Sentence appeal.
Ongoing supply of methylamphetamine: + Form 1 (2 x supply ecstasy; possess methylamphetamine for purpose of supply; supply methylamphetamine; unlawful possession of prescribed restricted substance).
2y 8m with NPP of 2y.
Applicant, a security guard at Holsworthy Army Barracks, supplied amphetamines to an undercover officer on 3 occasions. On the 1st occasion, the applicant sold 2 small resealable bags containing 1.19 grams of methylamphetamine to an undercover police officer for $80. On 2 further occasions, he gave the police officer 2 resealable bags containing 1.11 grams of methylamphetamine for $80, then a bag containing 1.70 grams of methylamphetamine for $70. The applicant was arrested soon after & police found 4 white ecstasy tablets, a bottle containing testosterone steroid tablets & a resealable bag with .51 grams of methylamphetamine in his security booth. When they searched his house, they found 3 resealable bags containing 4 grams of methylamphetamine & 16 ecstasy tablets totalling 3.85 grams.
Aged 37 at time of offence - guilty plea at earliest opportunity - married for 18 years - has 3 children - in regular employment - previous convictions more than 20 years ago - time spent in juvenile institutions - special bond with son who suffers from autism, ADD & moderate developmental disability, requiring constant supervision & medication - wife suffers from clinical depression - prior offences include armed robbery; 2 x BE&S; 2 x larceny of MV - previous imprisonment.
Guilty plea - utilitarian value not related to strength of Crown case - need to specify discount allowed - special circumstances - desirability of expressing findings thereon - care & supervision of disabled child.
Appeal allowed: NPP reduced to 1y.
228

WORKMAN, Erin John - CCA, 30.6.2004 - 60 NSWLR 471
Grove, Dowd & Sperling JJ
Citation: R v Workman [2004] NSWCCA 213
Conviction and sentence appeal.
7 x sexual intercourse with child between 10 & 16; 2 x sexual intercourse with child under 10; 1 x aggravated indecent assault (victim under 10); 1 x aggravated indecent assault (victim under 16).
Total sentence of 8y 9m with NPP of 6y 3m.
Complainant was the daughter of the appellant's de facto wife & was aged between 7 & 15 at the time of the offences, which spanned a period of 8 years. Appellant's offending behaviour involved persistent predatory sexual interferences with the complainant. The complainant moved from NSW to Queensland when she was aged 16. She reported the appellant's conduct to police in Queensland. A police officer conducted a "pretext" telephone call by the complainant to the appellant, which was recorded via a speaker phone. The content of the conversation confirmed that the appellant had engaged in sexual activity with the complainant.
Aged 53 at time of 1st offence - hardship in custody due to nature of offences - medical condition, including neck & back problems, melanomas & pleurisy - no priors.
Whether evidence obtained lawfully in another state can be obtained "improperly" for the purposes of s.138 EvidenceAct 1995 (NSW) - whether sentence excessive.
Appeal dismissed.
229

LYNN, Thomas Taig - CCA, 1.7.2004
Studdert, Dunford & Howie JJ
Citation: R v Lynn [2004] NSWCCA 222
Sentence appeal.
A. 2 x indecent assault upon child under 16 - 2y FT on each count;
B. 1 x indecent assault upon child under 16 - 4y with NPP of 2y, consecutive;
Form 1 (5 x indecent assault).
Total sentence of 6y with NPP of 4y.
Applicant was the complainant's stepfather. On numerous occasions between 1987 & 1990, he committed a series of sexual offences (including Form 1 offences) against the complainant.
Aged 36 at time of 1st offence - aged 51 at time of sentence - on strict protection - no priors.
Late plea of guilty - discount for utilitarian value - need for transparency - whether sentence excessive.
Appeal allowed for B: sentence reduced to 3 yrs 5m NPP of 19 mths.
New total sentence of 5y 5m with NPP of 3y 7m.
230

LAKALAKA, Soane - CCA, 4.6.2004
Hulme, Bell & Hislop JJ
Citation: R v Lakalaka [2004] NSWCCA 207
Application to withdraw pleas to 2 charges entered in the DC. Appellant made application to withdraw pleas & respondent initially consented. Respondent then filed submissions that it was a question of jurisdiction for the court.
Application for subpoena - whether an abuse of process for respondent to adopt different position than used in DC - whether court had jurisdiction to issue subpoenas - whether subpoenas oppressive.
Held: subpoenas not oppressive.
231

HOOKEY, Robert Samuel - CCA, 1.7.2004
Studdert, Dunford & Howie JJ
Citation: R v Hookey [2004] NSWCCA 223
Sentence appeal.
Intentional infliction of GBH; AOABH; stealing; + Form 1 (AOABH, threaten witness).
Total of 4y with NPP of 3y.
In company with another man & whilst armed with a knife, applicant entered the home of 2 friends & demanded money. A scuffle took place with one of the occupants, during which the applicant inflicted a minor stab wound to the victim's arm before stealing $200. Applicant returned the following morning, again in company, & demanded more money. The applicant kicked & beat the 2nd victim, inflicting serious injuries to the head, fractured bones & a collapsed lung.
Aged 26 at time of offences - Aborigine - alcoholic - substance abuse - prior offences include 2 x assault - no previous imprisonment.
Special circumstances.
Appeal dismissed.
232

ROSSER, Jennifer May - CCA, 1.7.2004
Sperling, Hidden & Howie JJ
Citation: R v Rosser [2004] NSWCCA 216
Sentence appeal.
33 x defraud body corporate as an officer (s.176A Crimes Act).
4y with NPP of 2y 3m.
Applicant was a director of a pre-school. Over a 16 month period she drew cheques on the pre-school account & paid them into her own account. The total amount defrauded exceeded $80,000. The principal offence involved a cheque for $8,200.
Aged 40 at time of 1st offence - Aboriginal - stable de-facto relationship - has daughter from that relationship; adult children from previous relationships - deprived background - in teens & in early adulthood was involved in a number of violent relationships with men - untimely deaths of 3 siblings - schooling to hear 10 - held a number of responsible positions in Aboriginal organisations - drug & alcohol problems, gambling addiction - late expressions of remorse - good prospects of rehabilitation - no priors.
Special circumstances.
Appeal dismissed.
233

CROWTHER-WILKINSON, Simon - CCA, 27.7.2004
Wood CJ at CL, Dowd & Kirby JJ
Citation: R v Crowther-Wilkinson [2004] NSWCCA 249
Conviction appeal.
Murder.
20y with NPP of 15y.
Appellant was a silent partner in a partnership with the deceased in a security company. The deceased's body was found floating in the Hawkesbury River wrapped in plastic, metal 3/8 inch steel galvanised chains & 12 mm D-shackles. The Crown case was that he had been shot once in the back of the head, consistent with a .22 calibre bullet having been fired by either the appellant or appellant's co-accused, with the other present & assisting or encouraging the killer. The deceased's body had then been transported to the Hawkesbury River & dumped from a small aluminium boat.
Circumstantial case - beyond reasonable doubt - whether error in failure to direct - publication on internet before & during trial of 2 interlocutory judgments - whether miscarriage of justice.
Appeal dismissed.
234

VAN OOSTERUM, Edward Henry - NSW SC, Greg James J, 18.6.2004
Citation: R v Van Oosterum [2004] NSWSC 532
Remarks on Sentence.
Manslaughter.
Unlawful & dangerous act - no intent to kill or injure - carrying loaded shotgun to coerce person believed to be wife's lover - weapon discharged during struggle - previous good character - remorse - early guilty plea - co-operation with authorities - gravity of crime.
Sentenced to 7y with NPP of 4y.
235

NEWBIGGING, Angus McLean - CCA, 29.7.2004
Wood CJ at CL, Adams & Kirby JJ
Citation: R v Newbigging [2004] NSWCCA 239
Crown appeal.
1 x indecently assault person under 10 (8).
18m with NPP of 9m.
Respondent stood trial on 5 counts of indecently assaulting a person under 10. The jury returned verdicts of not guilty on 4 counts & guilty on only one count.
Respondent was released at the expiration of his NPP on 7.5.2004 & was present throughout the hearing of the appeal.
Complainant was respondent's step-daughter. The complainant alleged that the respondent had touched & rubbed her vagina.
Whether sentence manifestly inadequate.
Appeal dismissed.
236

CURRAN, Matthew - CCA, 9.7.2004
Sheller JA, Sperling & Adams JJ
Citation: Attorney-General v Curran [2004] NSWCCA 234
Stated case - question of law - application for extension of time.
On 8.11.2002, respondent was convicted of assaulting an 11 year-old girl & at the time of the assault committing an act of indecency on her (licking her breasts). The assault occurred in circumstances of aggravation in that at the time of the offence the victim was under 16. Respondent appealed this conviction to the DC & on 27.2.2003, despite finding the facts of the assault proved, the trial judge allowed the appeal & dismissed the charge on the grounds that, by reason of his self-induced intoxication, her Honour was not satisfied that he had formed an intention to commit the offence charged. On 15.4.2004, at the request of the Attorney General & over 13 months later, the judge stated a case pursuant to s,5B Criminal Appeal Act 1912, submitting for determination to the CCA the question as to whether she had erred in taking into account, in considering mens rea, the respondent's self-induced intoxication.
Extension of time refused.
237

FELL, James Andrew - CCA, 14.7.2004
Giles JA, Hulme & Adams JJ
Citation: R v Fell [2004] NSWCCA 235
Crown appeal.
14 x dishonestly obtain money by deception; + Form 1 (70 x dishonestly obtain money by deception).
22m suspended sentence.
Respondent fraudulently credited funds into his personal account from WES Components. The 14 charges related to transactions between 5.3.2001 & 17.7.2001 in amounts varying between $11,250 & $31,600. The total amount involved was $326,324. Also taken into account were 70 further offences occurring between 14.5.2000 & mid-July 2001. As time went on, the amounts involved in the offending tended to increase - firstly $30, then $50 & then $70. By about mid-July, there was an offence involving $650. The largest of these offences involved an amount of $9,681. The total amount involved in these 70 additional offences was $216,349.50.
Aged 32 at time of 1st offence - guilty plea - diagnosed with Bipolar Affective Disorder with both hypomanic & depressive episodes, Schizoid Personality Disorder & Panic Disorder with Agoraphobia together with a sub-clinical low non-verbal IQ - also suffered from medical neurological condition giving rise to frequent seizures (up to 9 a day) - major steps taken towards rehabilitation, including psychological & psychiatric treatment & medication - no priors.
Whether sentence manifestly inadequate.
Appeal dismissed.
238

BARTON, Neil Francis - CCA, 8.7.2004
Grove, Dunford & Kirby JJ
Citation: R v Barton [2004] NSWCCA 229
Conviction appeal.
Multiple sexual assault charges, including aggravated indecent assault by person in authority; sexual intercourse without consent by person in authority on male under 16; indecent assault; indecent assault by person in authority on male under 16; sexual intercourse without consent.
Total sentence of 18y with NPP of 13y.
Appellant was employed as a youth worker at an institution where young males were detained. The charges alleged sexual misconduct involving 7 youths between 1985 & 1991.
Whether error in refusing separate trials - evidence received from 2 witnesses concerning uncharged acts - error in admitting evidence (over objection) that appellant had told his supervisor he had shaved the public area of one of the detainees in preparation for the removal of a testicle which had no relevance to the charges - failure by defence counsel to lead & cross-examine on important evidence as to complainants having been sought out by police - error in summing up - failure to lead evidence of good character - whether miscarriage of justice.
Appeal allowed: new trial ordered.
239

TATARINOVA, Irina - NSW SC, Kirby J, 30.7.2004
Citation: R v Tatarinova [2004] NSWSC 676
Judgment.
Murder.
Judge alone trial. Accused stood charged with having murdered her daughter (aged 14) by inflicting a single stab wound to the chest. Accused pleaded not guilty, raising the defence of mental illness.
Aged 38 at time of judgment - Russian - in 2003 arrived in Australia with daughter to join her husband who had migrated here - experienced depression some months later - withdrew socially - acute panic attack - began experiencing hallucinations, hearing voices she took to be the voice of God - saw vision of daughter with black circle around her head, interpreting it as an indication she had been taken over by an evil spirit - thought that if she killed her she may have been able to save her & she would then become an angel - believed she had no choice.
Mental illness - defect of reason - M'Naghten's case - special verdict - s.38 Mental Health (Criminal Procedure) Act 1990.
Found not guilty of murder by reason of mental illness. Order that Mrs Tatarinova be detained in the Bunya Forensic Unit at the Cumberland Hospital, or such other place as may be determined by the Mental Health Review Tribunal, until released by due process of law.
240

RAHME, Charbel - 14.7.2004
Sully, James & Hulme JJ
Citation: R v Rahme [2004] NSWCCA 233
Conviction appeal.
Count 1: sexual intercourse with child between 10 & 16;
Count 3: coerce to participate in act of child prostitution;
Count 4: obtain benefit from child prostitution;
Count 5: premises used for child prostitution;
Count 7: detain with intent to hold for advantage.
Total sentence of 8y with NPP of 5y 4m.
Appellant was found guilty on the above counts & not guilty on 2 further counts (supply cocaine to complainant; AOABH). The Crown case was that the 15yearold victim ran away from home & travelled to Sydney where she met the appellant & his father & sister who persuaded her to live at their family home. It was also alleged that the victim was subsequently seduced by the appellant, introduced to cocaine & forced to work in a brothel. It was alleged that the appellant prevented the victim from leaving by assaulting her & striking her over the head with a gun & threatening her & her parents. Eventually the victim left with the assistance of a man who worked at the brothel & returned to her home.
Error in exclusion of evidence of complainant's prior sexual experience & that complainant had worked as a prostitute - error in failure to allow cross-examination - witness evidence - probative value.
Appeal against convictions on counts 1, 3 & 7 allowed - convictions set aside, verdicts of acquittal entered;
appeal against convictions on counts 4 & 5 allowed - new trial ordered on counts 4 & 5.
241

MELAS, Joshua - CCA, 17.6.2004
Grove, Dowd & Sperling JJ
Citation: R v Melas [2004] NSWCCA 198
Sentence appeal.
Drive in manner dangerous occasioning death.
3y with NPP of 15m.
The victim (aged 17) was on a bicycle attempting to cross the road using a pedestrian refuge marked by metal barricades in the centre of the roadway, as well as metal barricades towards either side of the roadway. When the victim was at the centre of the traffic lane, the applicant's vehicle hit him & he was thrown approx 50 metres beyond the pedestrian refuge. He died instantly from his injuries. At the time of the offence, the road was dry & it was a sunny day. There was some dispute concerning the speed at which the applicant approached the pedestrian refuge, however, it was ultimately agreed that he was travelling at between 90 & 100 kph.
Aged 20 at time of offence - guilty plea at earliest opportunity - priors (2 x negligent driving; possess prohibited drug) - no previous imprisonment.
Whether excessive weight given to driving record - whether sentence excessive.
Appeal dismissed.
242

MANNERS, Andrew Robert - CCA, 2.7.2004
Bell, Howie & Hislop JJ
Citation: R v Manners [2004] NSWCCA 181
Crown appeal.
Persistent sexual abuse of child.
6y with NPP of 4y 3m.
The offences occurred over a period of 8 months with the same complainant (aged 9 or 10 at time of offences). The respondent kissed the complainant on her lips & rubbed her buttocks inside her pants on 2 separate occasions. On a later occasion, he exposed & photographed the complainant'ss external genitalia & then showed her the photographs. On several occasions, he kissed the complainant on her lips & inserted his hand under her pants & rubbed her genitalia & bottom. On one occasion, he sat the complainant on his lap & inserted one of his hands inside her pants & rubbed her genitalia. At the time of the offences, the respondent was a "prohibited person" within the meaning of the Child Protection (Prohibited Employment) Act 1998 & therefore was prohibited from teaching children & was required to disclose employment to authorities where it brought him into contact with children. Upon his release from gaol for a previous sexual offence, respondent began working as a Scottish dancing teacher of children, intentionally not informing authorities. The complainant was one of his students.
Protection of the community - s.3A Crimes (Sentencing Procedure) Act 1999 - sentencing for representative counts & isolated incidents - whether sentence manifestly inadequate.
Appeal dismissed.
243

STRBIK, Peter - CCA, 8.7.2004
Dowd & Hislop JJ, Smart AJ
Citation: R v Strbik [2004] NSWCCA 212
Sentence appeal.
Counts 1, 3, 5, 6, 7, 8, 10, 14 & 15: steal MV;
Counts 2, 4, 9 & 11: dispose of stolen property;
Count 12: attempt steal MV;
Count 13: possess stolen property outside state of NSW.
Total sentence of 6y 6m 29d with NPP of 6y.
Applicant played a significant role within a car re-birthing gang involved in the stealing of cars & the changing of their identities by substituting compliance plates from wrecked vehicles. Engine numbers were ground off & replaced. Accessories & fittings taken from other vehicles were then attached & the vehicles were then sold.
Aged 20 at time of offences - principal in relation to 4 of the 5 steps involved in the re-birthing - stable family background - drug use - accepted into drug rehabilitation programme - priors (drive while licence cancelled; possess implements to enter/drive conveyance; larceny; 2 x goods in custody; possess unauthorised pistol). No previous imprisonment.
Appeal against sentence on counts 1, 2, 3, 4, 8, 9 & 10 + Form 1 dismissed.
Appeal against sentence on counts 5, 6, 7, 11, 12, 13, 14 & 15 allowed.
New total sentence of 6y 6m 29d, NPP of 5y 3 m 29d.
244

BUGMY, Steven Wayne - CCA, 3.8.2004
Bryson JA, James & Kirby JJ
Citation: R v Bugmy [2004] NSWCCA 258
Sentence appeal.
Count 2: affray - 9m;
Count 1: AOABH - accumulated sentence of 2y (suspended upon entering into a conditional bond).
The applicant was one of 3 individuals involved in a brawl at a caf* at the Shell Service Station at Wilcannia, which occurred shortly after 8:00pm as the caf* was about to close. During the affray, one of the co-offenders produced a knife that had been concealed in his trousers. The applicant did not see him do so. The shopkeeper responded by arming himself with a baseball bat in order to frighten off the intruders. The video showed the men leaving the shop, however, they soon returned. One co-offender hurled a garbage tin lid at the shopkeeper & the applicant tackled him in a 'rugby style tackle', resulting in the shopkeeper being pushed along the floor, out of sight of the camera. The co-offender who had produced the knife then stabbed the shopkeeper. One of the offenders then struck the shopkeeper with the baseball bat, however, there was no evidence as to who it was. The offenders were affected by alcohol at the time of the offences, having consumed a number of casks of wine during the day.
One of the conditions of the bond was that the applicant not enter Wilcannia for a period of 2 years.
Whether sentence excessive - whether error in wholly accumulating sentences - whether condition (4) of bond not to enter Wilcannia without judge's permission valid - test to be applied in determining validity of conditions of a bond.
Appeal allowed in respect of condition (4) of bond: condition quashed.
Sentence otherwise confirmed.
245

RAHME, John Claude - CCA, 11.6.2004
EL-HAYEK, Nakhle
Dowd & Hislop JJ, Smart AJ
Citation: R v Rahme; R v El-Hayek
Sentence appeal.
Rahme - 4 indictments:
2 x aggravated armed rob (gun); demand money with menaces; 2 x sexual intercourse with child between 10 & 16; supply methylamphetamine; possess firearm; do act with intent to influence witness; Form 1 (3 x sexual intercourse with minor). Total sentence of 11y with NPP of 10y.
El-Hayek - 2 indictments:
2 x aggravated armed robbery (gun); sexual intercourse with child between 10 & 16; Form 1 (sexual intercourse with child under 16; assault). Total sentence of 8y 9m 16d with NPP of 7y 3m 16d.
Application of principles of totality to setting of NPP when sentences accumulated - need to allow adequate periods on parole when serving long sentences.
Rahme: Appeal allowed in part - sentences restructured, resulting in overall total of 11y with NPP of 7*y.
El-Hayek: Appeal allowed in part - sentences restructured, giving overall total of 8y 9m 16d with NPP of 6*y.
246

TURNER, Darren James - CCA, 30.6.2004
Ipp JA, Hulme & Hislop JJ
Citation: R v Turner [2004] NSWCCA 260
Sentence appeal.
B&E with intent to commit serious indictable offence (stealing); + Form 1 (possess housebreaking implements).
3y 4m with NPP of 2*y.
Applicant was at his father's home & was assisting in handling some food for other persons when he touched his mouth. His father told him to be careful in handling other people's food by not putting his fingers to his mouth & told him to wash his hands. Applicant said this took him back to his childhood when his father was a dominating figure. He said he had experienced difficulties in handling that, so he left his father's home, went to a house nearby, found a screwdriver & used it to force a lock to a window & gain entry into the house. The female occupant of the house returned home at this time & upon entering the premises she saw the applicant run out the back door. She chased him to his father's home, the police were called & the applicant was arrested.
Guilty plea - on parole at time of appeal.
Utilitarian value of guilty plea not qualified by strength of Crown case - double jeopardy.
Appeal allowed: resentenced to 3y with NPP of 2y 3m.
247

BONAT, Stephen - CCA, 19.7.2004
Sheller JA, Sperling & Adams JJ
Citation: R v Bonat [2004] NSWCCA 240
Conviction appeal.
Appellant was convicted on 6 of 10 charges of sexual offences against his stepdaughter:
Count 2: sexual intercourse with person under 16 (10);
Count 4:indecent assault on person under 16 (10);
Count 6:sexual intercourse with person under 16 (12);
Count 8:sexual intercourse with person under 16 (13);
Count 9:sexual intercourse with person under 16 (15);
Count 10:sexual intercourse with person under 16 (15).
The jury returned verdicts of not guilty on counts 1, 3, 5 & 7.
The alleged offences spanned a period of approx 5 years. The 1st complaint was made to police more than 10 years after the last alleged offence when the complainant was aged 26. A further statement was made to police some 4 months later & it was following that statement that the appellant was interviewed & charged, which was something over 17 years after the 1st of the alleged offences. At the time of the 1st offence, appellant was aged 43.
After the jury had returned its verdicts & during argument on an application for bail, the trial judge expressed some misgivings about the verdicts as a whole. He made further reference to this in his remarks on sentence & also made an observation concerning relationship evidence.
Whether inconsistent verdicts - whether verdicts of guilty unreasonable - beyond reasonable doubt - appropriateness of verdicts having regard to evidence available at trial.
Appeal allowed: convictions under counts 2, 4, 6, 8, 9 & 10 set aside & verdicts of acquittal entered.
248

BONAT, Stephen - CCA, 19.7.2004 (No.2)
Sperling J
Citation: R v Bonat (No.2) [2004] NSWCCA 242
Application for order pursuant to s.59 Crimes (Sentencing Procedure) Act 1999 to vary date of commencement of a sentence imposed on 10.10.2003, following a successful appeal against conviction for other matters (see R v Bonat [2004] NSWCCA 240).
Application allowed: sentence backdated.
249

WILLIAMS, Steven Brian - CCA, 29.7.2004 - 148 A Crim R 325
Bryson JA, James & Kirby JJ
Citation: R v Williams [2004] NSWCCA 246
Sentence appeal.
1st indictment:
Count 2: affray - 1*y from 16.04.02 to 15.10.03 with NPP of 6m from 16.04.02 to 15.10.02;
Count 1: maliciously wound with intent to do GBH - 7*y from 16.10.02 to15.04.10 with NPP of 4y from 16.10.02 to15.10.06.
2nd indictment:
2 x AOABH - concurrent sentences of 9m from 16.03.06 to 15.12.06.
Total effective sentence 8y with NPP of 4y 8m.
The applicant was one of 3 men involved in a brawl at a caf* at the Shell Service Station at Wilcannia: see R v Bugmy [2004] NSWCCA 258. During the affray, applicant produced a knife that had been concealed in his trousers. The shopkeeper then armed himself with a baseball bat to frighten off the intruders. The video showed the men leaving the shop, however, they soon returned. One co-offender hurled a garbage tin lid at the shopkeeper & another tackled him in a 'rugby style tackle', resulting in the shopkeeper being pushed along the floor, out of sight of the camera. The applicant then stabbed the shopkeeper. One of the offenders struck the shopkeeper with the baseball bat but there was no evidence as to who it was. The offenders were affected by alcohol at the time of the offences, having consumed a number of casks of wine during the day.
The assaults on the 2nd indictment occurred in prison.
Malicious wounding with intent - whether sentence excessive - whether sentences on other counts inadequate, or should have been accumulated - s.7(1A) Criminal Appeal Act 1912 - whether power to adjust sentences not the subject of appeal.
Appeal allowed: In respect of count 1 of 1st indictment (malicious wounding with intent) sentence quashed, resentenced to 6y from 16.10.02 expiring on 15.10.08, with 3y 2m NPP expiring on 15.12.05. On counts 1 & 2 of 2nd indictment (assaults) concurrent terms of 9m in each case varied to commence on 16.05.05 & expire on 15.02.06.
250

PHAM, Vu Ngoc - CCA, 16.7.2004
Spigelman CJ, Hulme & Adams JJ
Citation: R v Pham [2004] NSWCCA 190
Conviction appeal.
Murder.
20y with NPP of 14y.
Appellant was one of 3 people convicted of murder. The prosecution case was that the deceased was taken to an oval at night & was killed by 3 gunshot wounds to his head in the presence of the appellant, whose role as an accessory was disclosed by the shooter (Thuc Ngoc Tran) & another man. The reason for the killing was that the deceased was associated with a rival gang & thus constituted a threat to the offenders.
Appellant's 2 co-offenders received sentences of 16y with NPP of 11y; & 17y 38w with NPP of 11y 38w.
The shooter (the Crown's main witness) received 14y with a NPP of 9y.
Aged 20y & almost 5m at time of murder - below average intelligence, in lowest 18% of general population - poor self-image, esteem - marked dependence on others - previous drug use - maintained innocence, hence issues of remorse could not be canvassed at trial.
Joint trial - whether separate trials should have been ordered - whether miscarriage resulted - relevant principles.
Appeal allowed: verdict quashed, new trial ordered.
251

HOLLAND, Bradley John - NSW SC, Dowd J, 16.7.2004
Citation: R v Holland [2004] NSWSC 653
Remarks on Sentence.
Murder.
Some days prior to the murder, the prisoner & the victim had escaped from Bathurst Gaol & were in the company of a Toni Cordwell, one of the 2 women who had assisted the escape. They camped for some time on a riverbank & there was a growing antipathy between the victim & the prisoner. The victim made an insulting remark to the prisoner's girlfriend, whereupon the prisoner set upon the victim & stabbed him a number of times. There were at least 32 cuts counted from the damage to the victim's shirt that were consistent with knife wounds. There were multiple knife wounds to the neck above the shirt line. The main Crown witness was Ms Cordwell, who gave a detailed account of the offence.
Aged 21 at time of offence - immature - socially dysfunctional - absence of premeditation - spontaneous, although grossly disproportionate, reaction to trivial insult of prisoner's girlfriend - community protection & deterrence - seriousness of offence - gratuitous cruelty - vicious & violent act - intent to kill - prior offences of aggravated assault with intent to rob & assault police occasioning ABH - previous imprisonment.
Sentenced to 30y with NPP of 23y.
252

GALEA, Raymond - CCA, 28.7.2004 - 148 A Crim R 220
Ipp JA, Hulme & Hislop JJ
Citation: R v Galea [2004] NSWCCA 227
Conviction appeal.
Accessory after the fact to murder.
5y with NPP of 2*y.
Appellant's co-offender was found guilty of murder: see R v Yeo [2003] NSWSC 315. Appellant & his co-offender had been in a de facto relationship, however, the co-offender left the appellant & entered into a sexual relationship with the deceased while working as a nurse in a psychiatric hospital. The deceased was a patient in that hospital. The co-offender obtained a pistol from the appellant & shot the deceased in the head & neck, killing him. She told the appellant about the killing & both she & the appellant dismembered the body for disposal.
Motivated by infatuation with co-offender - no priors.
Where defence case was that a known person had, to the exclusion of the accused, committed the offence - directions to jury regarding onus of proof - directions to jury regarding standard of proof - directions to jury regarding possible deficiencies in police investigation - effect of Rule 4 Criminal Appeal Rules (NSW) - expert opinion evidence regarding effect of drug use generally - whether going to fact in issue - s.55 Evidence Act 1995 (NSW) - credibility evidence - tendency evidence - refusal to allow cross-examination of witness regarding criminal conviction - admissibility of digital audio tape recordings - ad hoc expert - where some recordings indistinct & unintelligible.
Appeal dismissed.
253

RONEN, Ida - CCA, 11.6.2004
RONEN, Nitzan
RONEN, Izhar
Ipp JA, Grove & Howie JJ
Citation: R v Ronen & Ors [2004] NSWCCA 176
Appeal against decision of trial judge disallowing names & occupations of potential jurors to be disclosed to accused.
Income tax fraud.
Whether Jury Act 1977 (NSW) prohibits names & occupations of potential jurors in a criminal trial from being disclosed to accused - whether statute prohibiting the supply to an accused in a criminal trial of the names & occupations of potential jurors inconsistent with s.80 Commonwealth Constitution - whether accused has right to names & occupations of jurors as part of the right of challenge - whether any such right has existed in England & NSW - variability of the right of peremptory challenge - importance of integrity of trial by jury.
Appeal dismissed.
254

ELD - CCA, 16.7.2004
Bell, Howie & Hislop JJ
Citation: R v ELD [2004] NSWCCA 219
s.5F appeal by Crown against rulings made by the trial judge at the conclusion of a voir dire hearing by which she rejected evidence tendered by the Crown at respondent's trial.
Respondent was indicted on 3 counts of aggravated indecent assault. Each offence was alleged to have been committed on the same complainant (CD). Prior to this, respondent was charged with the commission of sexual offences against 5 complainants & separate trials were ordered. The complainant & 2 other complainants (SW & SAH) each made allegations during video-recorded interviews with police of having been indecently assaulted by respondent at his home & on trips to the beach.
Appeal allowed: set aside judge's ruling that complainant may not give evidence of presence of SW & SAH respectively on the occasions charged in the indictment; set aside that part of judge's ruling by which she rejected evidence of uncharged indecent assaults committed on complainant as evidence of relationship between complainant & respondent.
255

CROWLEY, Kim Peter - CCA, 30.7.2004
Wood CJ at CL, Hidden J, Smart AJ
Citation: R v Crowley [2004] NSWCCA 256
Crown appeal.
1. AOABH (in company) - 6m FT;
2. AOABH (in company) - 1y with NPP of 3m;
3. Enter building with intent - 2y GBB.
The appeal was primarily concerned with the assault offences.
The sentencing judge regarded the "Agreed Facts'tendered by the Crown as inadequate & relied substantially on statements contained in the Crown brief which was admitted in evidence. That brief fleshed out & elucidated the agreed facts. Neither party called any oral evidence & the hearing proceeded on the documentary material. The Crown complained that the sentencing judge departed from the agreed facts in a number of respects &, in so doing, erred. The Crown contended that in each instance the departure favoured the offender. The sentencing judge did not tell the Crown prior to delivering his remarks on sentence that he was proposing to depart from the agreed facts & the Crown complained of a breach of the rules of procedural fairness.
Need for counsel to check agreed facts carefully - need for differences & other material to be resolved adequately - avoidance of complaints of procedural unfairness - whether sentences for AOABH offences manifestly inadequate.
Appeal dismissed.
256

PHAM, Vu Ngoc - CCA, 28.7.2004
Spigelman CJ, Hidden & Buddin JJ
Citation: R v Pham [2004] NSWCCA 263
Sentence appeal.
Appellant was successful in his appeal against a murder conviction R v Pham [2004] NSWCCA 190. However, he was convicted for an unrelated matter after the murder conviction & the sentence for that matter was to be partially cumulative upon the sentence for murder.
Variation of commencement date of sentence - s.59 Crimes (Sentencing Procedure) Act 1999.
Appeal allowed: commencement date of sentence adjusted to date of arrest.
257

DIAZ, Salvador Alex - CCA, 26.7.2004
Spigelman CJ, Hidden & Buddin JJ
Citation: R v Diaz [2004] NSWCCA 251
Conviction and sentence appeal.
Aggravated sexual intercourse without consent.
8y with NPP of 5y 11m (pre-sentence custody taken into account).
Appellant's 17 year old co-offender was found guilty of 2 charges arising from the same incident & was sentenced to a total of 6y with a NPP of 3y.
The appellant, his co-offender & the 15 year old complainant were at Darling Harbour at night. They had been drinking wine & all 3 became intoxicated. The complainant gave evidence that the appellant had forcible intercourse with her while the co-offender held her down, over her screams of protest. She said that, despite her protests, the co-offender then had intercourse with her. This gave rise to the 2nd charge against the co-offender. The 2 men then left & the complainant made prompt complaint to a security guard & to a police officer who attended at the scene. There was DNA evidence consistent with the appellant & the co-offender having had sexual intercourse with her.
Aged 25 at time of offence - immature - low intelligence - unfavourable criminal record, including armed robbery - previous imprisonment.
Adequacy of directions about intoxication of complainant & appellant - parity - whether special circumstances.
Appeal dismissed.
258

DANG, Quoc Phong - CCA, 28.7.2004
Spigelman CJ, Hidden & Buddin JJ
Citation: R v Dang [2004] NSWCCA 265
Sentence appeal.
Attempt possess prohibited imports (trafficable quantity heroin).
7*y with NPP of 5y.
A package from Vietnam, addressed to the applicant & intercepted by Customs officers, was found to contain 2 hardcover books in which 4 packages of heroin were concealed (gross weight little over 125 grams, pure weight 92 grams, potential street value between $176,400 & $223,440). The heroin was replaced with an inert substance in 4 plastic bags & the package was reconstructed & delivered to the applicant at his home unit. Upon entering the unit a little later, police found that the package had been opened & the plastic bags had been removed. There were a number of small freezer bags next to the package. Police also found $10,500 in cash in a wardrobe in the main bedroom & a set of electronic scales in a garden bed adjacent to the balcony.
Aged 25 at offence - guilty plea at earliest opportunity - Vietnamese national in Australia on student visa - visa expired, probably will be deported after release - under financial pressure - limited financial assistance from parents - some heroin use - genuine remorse - good rehabilitation prospects - undertaken IT course whilst in prison - well behaved & industrious in prison - undertaken course in English as 2nd language.
Whether sentence manifestly excessive.
Appeal dismissed.
259

DANG, Van Ich - CCA, 30.7.2004
Spigelman CJ, Hidden & Buddin JJ
Citation: R v Dang [2004] NSWCCA 269
Sentence appeal.
Import trafficable quantity heroin.
6*y with NPP of 4y 4m.
Following a trip to Vietnam, applicant returned to Sydney carrying a quantity of heroin concealed in his shoes (gross weight just under 400 grams; pure heroin content 45% to 70%; net weight of pure heroin 218.6 grams; estimated street value $97,000 to $780,000). Applicant told police that he had been engaged by unknown persons in Vietnam to bring the drugs to Australia & that he was to have received $5,000. He later told a probation officer & a psychologist that he committed the offence to raise money for the medical treatment of his nephew in Vietnam, who was seriously ill & who had died by the time of sentence proceedings. The sentencing judge accepted this explanation & was satisfied that the applicant's role was that of a courier.
Aged 40 at time of offence - born in Vietnam - background of poverty - limited education - migrated to Australia in 1981 - satisfactory employment history - 3 failed marriages - financial pressures - prior driving offences.
Repeal of s.16G Crimes Act (Cth) - sentencing judge's approach to appropriate starting point - guilty plea - assistance - whether sentence excessive.
Appeal dismissed.
260

LENTHAL, Trent John (aka Michael York) - CCA, 5.8.2004
Wood CJ at CL, Hidden J, Smart AJ
Citation: R v Lenthall [2004] NSWCCA 248
Sentence appeal.
Aggravated B&E with intent to steal: + Form 1 (possess housebreaking implements, take & drive conveyance, larceny of licence plates).
5y 3m with NPP of 2y 6m.
Applicant was also ordered to pay compensation to the owner of the MV that was damaged during the B&E.
A co-accused was subsequently sentenced for aggravated B&E with intent, taking into account offence of knowingly being conveyed, to 3y with a NPP of 2y 3m, to be served by way of periodic detention.
The B&E offence arose from driving a vehicle 'ram raid'style into a service station.
In November 2003, applicant was sentenced in the Hornsby LC for driving while disqualified & reckless driving, resulting in fixed terms of 9m, directed to be served concurrently with the sentence under appeal.
In December 2003, applicant was sentenced in the Blacktown LC to concurrent sentences, each of 4 months, for maliciously destroying property, AOABH & assault, which were directed to commence upon the expiry of the NPP for the B&E offence, effectively extending it by 4m. The result was that he faced a head sentence of 5y 3m, with a minimum term of 2y 10m (a period equivalent to 54% of the head sentence).
Aged 26 at time of offence - guilty plea at earliest opportunity - 25% discount - deprived background - on protection - special circumstances - extensive criminal record - previous imprisonment.
Parity - whether sentence manifestly excessive.
Appeal allowed: resentenced to 3y 9m with NPP of 1y 10m. Commencement date of sentences imposed in Blacktown LC varied.
261

CRAMP, Gordon Reginald - CCA, 26.7.2004
Spigelman CJ, Hidden & Buddin JJ
Citation: R v Cramp [2004] NSWCCA 264
Sentence appeal.
Malicious wounding with intent to do GBH.
8y With NPP of 5y 9m.
Applicant was working as a labourer on a building site near where the victim was working. About 10am, applicant was driving & car when he saw the victim walk past. He made a U-turn, pulled up alongside the victim, took a knife from the glove box & got out of the car. When the victim saw the knife, he ran down the footpath & the applicant ran after him. An eyewitness heard applicant say 'I'm going to stab you'Applicant chased the victim into other premises & the victim tried to scale a fence. As he was climbing the fence, applicant stabbed him in the back, then reinserted the knife into the victim before pulling it from his back. The victim fell to the ground. The applicant then left carrying the knife, got back into the car & drove away. The victim suffered serious & permanent injuries.
Subjective features - rehabilitation prospects - undertaken anger management course in prison - unlikely to re-offend - prior convictions but none for offences of violence - previous imprisonment.
Whether sentence manifestly excessive - failure to properly reflect finding of special circumstances - failure to comply with s.44 Crimes (Sentencing Procedure) Act 1999 - error in sentencing exercise - error in taking into account the motivation pursuant to s.21A(2) Crimes (Sentencing Procedure) Act 1999.
Appeal allowed: resentenced to 7y with NPP of 5y.
262

WASSON, Tracey Lee - CCA, 3.8.2004
Bryson JA, James & Kirby JJ
Citation: R v Wasson [2004] NSWCCA 200
Sentence appeal.
Conspiracy to dishonestly obtain benefit by deception.
2y with NPP of 18m.
The offence related to the false reporting to police that a MV owned by Lewis (one of applicant's co-offenders) was stolen. The intention was to destroy the MV & dishonestly make a claim on the insurance company. Pursuant to the conspiracy, the applicant & the other co-offender removed the vehicle from a car park & Lewis falsely reported that it had been stolen. The offence was discovered by chance less than an hour later when police stopped the vehicle for a random breath test. The applicant was the mastermind behind the scheme.
Aged 37 - prior convictions, including one for dishonesty.
Early guilty plea - whether error in failure to give adequate weight - special circumstances - procedural fairness - whether sentence manifestly excessive.
Appeal dismissed.
263

GLAISTER, John Harwood - CCA, 22.7.2004
Sheller JA, Sperling & Adams JJ
Citation: R v Glaister [2004] NSWCCA 244
Crown appeal.
Sell firearm to person not authorised to possess firearm; possess firearm with defaced serial number; possess prohibited weapon; + Form 1 offence (possess prohibited weapon).
Total sentence of 12m with NPP of 2m.
These offences were committed in March 2002. The sentencing judge erroneously set the sentences as required for offences committed after 1.2.2003.
An associate to whom respondent felt obligated introduced respondent to a police operative & he agreed to sell a .38 Smith and Wesson revolver for $2000 to the operative. He received $400 for his part in the transaction, his associate $500 & the supplier of the pistol $1,100. During the transaction, respondent showed the police operative a silencer for a pistol. When police examined the revolver, they found that the serial number at the base of the stock had been obliterated, although there was a serial number elsewhere on the weapon. The sentencing judge found that there was a degree of planning involved in this commercial operation, but that there was no evidence of the respondent having illegally sold firearms on previous occasions. Respondent nevertheless held himself out as a person who was able to supply firearms. Respondent did not hold any relevant licence or permit under NSW law.
Some 8 months later, police raided respondent'ss residence in Queensland. He still had the silencer in his possession & was charged under Queensland law with unlawful possession of a weapon while not being authorised. He was also charged with the possession of a modified firearm (.22 calibre Beretta handgun which had been modified to take a silencer); as well as with the possession & acquiring of restricted items (a telescopic baton, 3 sets of shackles, 2 pairs of handcuffs). Respondent was extradited to NSW to face charges relating to the meeting with the police operative & remained in custody until he was released on conditional bail. He pleaded guilty to the Queensland charges & was convicted & fined $2,000 by a Queensland court.
Aged 39 at time of offence - enlisted in Navy at age 16, served 10y - prison officer with Queensland Corrective Service for 4 years - suffered injuries during prison riot - developed post-traumatic stress disorder with related paranoia - subsequent difficulty in everyday functioning - granted partial disability pension after being assessed unfit for work - worked on casual basis for labour-hire company - at time of sentencing suffered from stomach ulcers & regularly passed blood - sentence to be served in protection in NSW away from personal associations in Queensland - interstate criminal record - no previous imprisonment.
Whether sentence manifestly inadequate.
Crown responsible for error in relation to maximum penalties - special case - not to be regarded as a precedent.
Appeal dismissed.
264

HILL, Sam - CCA, 30.7.2004
Spigelman CJ, Hidden & Buddin JJ
Citation: R v Hill [2004] NSWCCA 257
Sentence appeal.
Count 1: obtain benefit by deception - 2y 8m with NPP of 2y;
Count 2: obtain benefit by deception; + Form 1 (3 x obtain benefit by deception; 1 x possess prohibited weapon) - 3y 4m with NPP of 2y 3m 21d (pre-sentence custody taken into account).
Effective total of 5y 4m with NPP of 4y 6m.
Applicant falsely represented himself to a number of persons as having access, through his contacts within the Saudi royal family, to a substantial amount of money that was available for loan. He also had documents on letterheads of various financial institutions which falsely claimed that he had funds in excess of $1 billion. When negotiating various loan contracts, applicant insisted that the loan funds had to be secured by insurance obtained through Lloyds of London & required that the premiums be paid to him or to companies under his control. The monies were in fact banked into accounts over which applicant had control & were subsequently used by him for his own purposes. Attempts by the victims to gain access to their loan funds were unsuccessful. Lloyds of London at no stage arranged any insurance, nor did it have any dealings with the applicant or anyone associated with him. No loan monies were ever made available to any of the victims. A number of the victims were fairly conversant with financial matters, but at least one lacked any sophistication in that area. That victim was an invalid pensioner who sold his home for $202,000 & gave the bulk of the proceeds to the applicant. That victim suffered an individual loss of about $120,000.
The total amount of money involved in the offences, including the Form 1 offences, was nearly $740,000.
Special circumstances - totality.
Appeal allowed in part: Count 1 - appeal dismissed, but commencement & expiry dates varied.
Count 2 - appeal allowed only against NPP - NPP of 2y substituted.
265

MACRIS, John - CCA, 3.8.2004 - 147 A Crim R 99
Studdert , Kirby & Hislop JJ
Citation: R v Macris [2004] NSWCCA 261
Conviction appeal.
Supply commercial quantity methylamphetamine; supply ephedrine.
Total of 3y 4m with NPP of 2y 6m.
Following information received from a John Christopher, police executed a search warrant at appellant's home. In a cupboard under a stairwell, they found a tin with the brand name 'Versace'printed on it, which had been owned by the appellant for some time & had his fingerprints on it. Inside the tin were bags containing various coloured tablets, crystalline powder, plastic bags & a set of scales. In a drawer in the dining room, they found $3,100 in cash together with 20 green tablets. In a bedside table in the upstairs bedroom, 3 blue tablets were found. All the tablets contained methylamphetamine. When initially asked by police, appellant denied there were any drugs on the premises & made no admissions in that regard. He did not give evidence & called John Christopher as a witness. Mr Christopher said in evidence that it was he who placed the items in the Versace tin & the drawer in the dining room. He did this because he had been arrested by police in relation to a fraud matter & he had believed at the time that it was the appellant who had provided the information to police which resulted in his arrest. He gave evidence that he told police they would find drugs at appellant's premises. He said he then went to the home of a known drug dealer where he obtained the drugs, plastic bags & scales which he then located in the 2 places where drugs were located in the downstairs area in the appellant's home. He joined police when he attended with them at the appellant's premises & engaged in a form of mock arrest in which the police feigned a bit of a struggle with him before taking him away in handcuffs. The only issue to be determined by the jury was whether appellant had been proved, beyond reasonable doubt, to be in possession of the prohibited drugs as alleged.
Witness evidence - whether directions erroneous & inadequate - appellant's failure to give evidence - inadequate directions - whether error in admitting into evidence parts of ROI conducted at time of execution of search warrant - introduction of evidence of white powder on coffee grinder - whether miscarriage.
Appeal allowed: new trial ordered.
266

DUJEU, Anthony Daniel - CCA, 3.8.2004 - 146 A Crim R 121
Dowd & Hislop JJ, Smart AJ
Citation: R v Dujeu [2004] NSWCCA 237
Sentence appeal.
Import trafficable quantity methylamphetamine.
7y with NPP of 4*y.
Applicant arrived in Sydney from Indonesia & passed through Customs. On arrival at his sister's home, he asked her to call an ambulance to take him to hospital because he believed he was suffering from an overdose of drugs. He told ambulance officers that he believed he had absorbed methylamphetamine from a large number of capsules he ingested prior to leaving Indonesia. On his 3rd day in hospital, he passed 60 capsules of very high purity methylamphetamine (303.2 grams, 242.5 grams pure). If this amount had been 'cut', it could have realized approx $1.5 million. One or more of the capsules had ruptured during the flight from Indonesia. Applicant was a regular user of methylamphetamine & understood his symptoms. The applicant was importing the drugs for reward in terms of drugs & cash. He initially told police the drugs were for himself. The sentencing judge approached the matter on the basis that the applicant was a courier & took that into account when sentencing.
Aged 22 at time of offence - employed as chef - drug user - no prior convictions.
Sentence within range - no reasons given for proportion which NPP bore to head sentence - effect of repeal of ss.16G & 19AG Crimes Act 1914 (Cth).
Appeal dismissed.
267

COONEY, Mark Anthony - CCA, 30.7.2004
Spigelman CJ, Hidden & Buddin JJ
Citation: R v Cooney [2004] NSWCCA 255
Conviction appeal.
Count 1: supply methylamphetamine (ongoing) - 3y with NPP of 2y 3m.
Count 2: supply methylamphetamine; + Form 1 (cultivate cannabis plant, possess cannabis leaf & seeds, receiving, common assault) - 2y with NPP of 18m (concurrent).
Appellant entered guilty pleas to both offences involving the supply of drugs to an undercover police operative.
Elements of offence - R v Jackson [2004] NSWCCA 110 referred to.
Appeal allowed: plea of guilty to count 1 set aside & new trial ordered; sentence on count 2 quashed & matter remitted to DC for sentence.
268

FRY, Shane Graham - CCA, 16.7.2004
Spigelman CJ, Hulme & Adams JJ
Citation: R v Fry [2004] NSWCCA 238
Crown appeal.
Robbery whilst armed with offensive weapon.
12m FT (concurrent with existing sentences being served).
Respondent entered a pharmacy wearing a balaclava and carrying a toy pistol. Staff suspected the weapon was not real, however, they handed over $660 from the till. The respondent was on parole at the time for a number of offences including 3 robberies. Since his release for those earlier offences, the Probation and Parole Service had not availed him of any supervision or drug rehabilitation services recommended by the sentencing judge. The armed robbery offence occurred 3 weeks after his release to parole. Respondent pleaded guilty on 16.3.2003 & after several adjournments sentence proceedings commenced on 12.9.2003. They were adjourned to 14.11.2003 to enable respondent to undertake a residential drug rehabilitation programme. At date of sentence, respondent had managed to completely cease his intake of methadone.
Aged 34 at time of offence - multiple priors- imprisoned for most of adult life - dysfunctional family background, including violence & crime - drug use from early age.
Parole Board failure to implement recommendation of sentencing judge - whether can be taken into account on sentence for subsequent offence - whether error of discretion - whether sentence manifestly inadequate - unexplained delay by Crown in bringing appeal - R v Hallocoglu (1992) 29 NSWLR 67 referred to.
Appeal dismissed.
269

MALONEY, Jerry Royston - CCA, 28.7.2004
Spigelman CJ, Hidden & Buddin JJ
Citation: R v Maloney [2004] NSWCCA 250
Conviction and sentence appeal.
Attempt obtain possession of trafficable quantity cocaine.
8y with NPP of 5y.
US Customs officials in Miami intercepted 2 DHL packages on their way to Australia from the Caribbean. They contacted the Australian Federal Police, who seized the packages when they arrived at Sydney Kingsford-Smith Airport. The packages contained a total of 1,966 grams of powder consisting of 1,359.7 grams of pure cocaine. AFP officers then substituted packages & made a controlled delivery to an address in Hornsby. Appellant was contacted by his co-offender & arrived at the premises the following day. In addition to videoing the appellant's arrival, an AFP officer sitting outside the premises was able to listen to what was going on inside the premises by means of listening devices that had been concealed in each of the packages. Federal police forced entry to the premises & the appellant was arrested. Appellant'ss finger & palm prints were found on material that had been in the packages.
Aged 30 at time of offence - no priors.
Whether verdict unreasonable - whether error in directions on fingerprint evidence - whether error in failure to direct jury to disregard unfairly prejudicial material in Crown prosecutor's closing address - whether sentence excessive.
Appeal dismissed.
270

BANDITT, Stephen Gary - CCA, 4.8.2004 - 151 A Crim R215
Bryson JA, James & Kirby JJ
Citation: R v Banditt [2004] NSWCCA 208
Conviction and sentence appeal.
B&E and commit serious indictable offence (sexual intercourse without consent).
5y with NPP of 3y.
Complainant was drinking in a hotel with friends when she saw the appellant, who was her cousin, with members of his family. She confronted him & complained about his previous conduct. Later that night the complainant returned home, secured her doors & windows & went to bed. She woke later to find the appellant naked on top of her attempting to penetrate her vagina with his penis. He achieved penetration for a few seconds before the complainant managed to push him off. The complainant estimated that it was only a matter of seconds between her waking up & pushing the appellant off. The complainant showered, then went to a neighbour to whom she complained of the offences. She made complaint to police the same day.
Aged 27 at time of offence - priors (4 x MV/traffic offences, assault public officer) - no previous imprisonment.
Recklessness as to consent - whether error in directions - whether sentence excessive.
Appeal dismissed.
271

MRC - CCA, 20.7.2004
Hodgson JA, Shaw J, Smart AJ
Citation: R v MRC [2004] NSWCCA 241
Conviction appeal.
1 x assault & commit act of indecency upon female under 16; AOABH (same complainant).
2y suspended sentence.
Appellant also stood trial upon a 2nd count of assault & commit act of indecency, however, the jury returned a verdict of not guilty on that count. The complainant was aged 8 & 9 at the time of the offences. Appellant was the de facto partner of complainant's mother .
Appellant appealed against his conviction on count 1 only.
Whether guilty verdict on one count unreasonable and/or inconsistent with verdict on another count.
Appeal dismissed.
272

SLD - CCA, 31.10.2003 58 NSWLR 589; 142 A Crim R 503
Handley JA, Sully & Buddin JJ
Citation: R v SLD [2003] NSWCCA 310
Sentence appeal.
Murder.
20y with NPP of 10y.
Appellant broke into a home at night, abducted a 3 year old girl & stabbed her to death with a knife some 300 metres from the home. There was no evidence of mental illness & no defence of diminished responsibility.
Aged 13* at time of offence - guilty plea.
Finding that prisoner would present significant risk of re-offending - whether finding must be made on criminal onus.
Appeal dismissed.
Note: An application for special leave to appeal to the High Court from the whole of the judgment has been filed.
273

WESTLEY, Frederick - CCA, 6.8.2004
Dunford, Hidden & Adams JJ
Citation: R v Westley [2004] NSWCCA 192
s.5F appeal against refusal to grant permanent stay of proceedings.
2 x indecent assault (female under 16); 1 x carnal knowledge (female between 10&16).
The offences were allegedly committed approx 25-30 years prior to the date of trial. At the time the offences were alleged to have occurred, the applicant was aged 46 or 47 & the complainant about 12 or 13. At the time of trial, the applicant was aged almost 77, whilst the complainant was aged 42.
Delay - uncertainty of dates - whether unfair prejudice to accused - illness of accused & his wife - prosecutions barred by statute if complainant over 14 years at time of alleged offences - whether evidence capable of satisfying jury that complainant was under 14 years at the relevant time - whether prosecutions doomed to failure.
Appeal allowed: order of the DC set aside & in lieu thereof prosecution permanently stayed.
274

SHORTEN, David Eric - CCA, 6.8.2004
Grove, Dowd & Sperling JJ
Citation: R v Shorten [2004] NSWCCA 266
Conviction appeal.
Armed robbery.
8y with NPP of 5y.
The above offence occurred at a pharmacy in Oxford Street, Sydney. The shop assistant gave evidence of the applicant pointing a knife at her & demanding that she open the cash register. When she did so, the applicant took money out of the register. The pharmacist saw this, called out & used a small ladder to fend off the applicant. The applicant ran out of the pharmacy & around the corner to a waiting taxi in which his female companion was seated. A bystander made note of the taxi's licence plate. This bystander was able to give evidence describing the applicant. The taxi driver also gave evidence. There was also closed-circuit TV video footage that showed the attack upon the shop assistant & the fending off of the applicant by the pharmacist. There was also positive fingerprint evidence obtained from a packet of condoms that the applicant had handled.
Failure to seek directions on identification evidence, circumstantial evidence - whether error in not giving such directions - competence of counsel - whether verdict unreasonable.
Appeal dismissed.
275

MS - NSW SC, Dunford J, 13.8.2004
Citation: R v MS [2004] NSWSC 730
Remarks on Sentence.
Murder.
Prisoner (aged 17) killed his girlfriend (aged 15). The cause of death was strangulation. Both the prisoner & the deceased were Aborigines. The prisoner was obsessive & there was evidence of a history of ongoing violence perpetrated by the prisoner upon the deceased.
Sentenced to 17y with NPP of 11y.
276

CAMPILLO VAQUERE, Jose Manuel - CCA, 23.8.2004
Ipp JA, Hulme & Howie JJ
Citation: R v Campillo Vaquere [2004] NSWCCA 271
Conviction and sentence appeal.
Knowingly concerned in the importation of commercial quantity cocaine.
Life imprisonment with NPP of 24y.
Agents of the Australian Federal Police, in conjunction with officers of the Australian Customs Service, seized a Boston Whaler dinghy located near the southern boat ramp of the outer harbour of Coffs Harbour. It had previously been launched from a 52 foot ketch which had been kept under surveillance for some time prior to its arrival in Australian waters from Tonga (244.8 kgs cocaine seized, 171.2793 kgs pure, estimated street value of between $40m & $50m). For some time appellant had been the subject of surveillance, both visual & electronic. Evidence showed that, in company with the principal organiser, he had inspected & rented accommodation in Taree in his name & had continued paying rent on it up until his arrest. Appellant also acquired storage facilities adapted for storage of the Boston Whaler dinghy. In company with the principal organiser, he inspected & then acquired a boat trailer & was present to take delivery of the dinghy. Various tools were found in the rented premises, including a circular saw appropriate for dismantling the boat so as to give access to the concealed drugs.
Whether error in blind acceptance of circumstantial evidence - whether error in describing case as in worst category - conduct of trial judge - alterations made to trial transcript - repeated attempts to interpret audio transcripts of recordings - failure to give adequate directions on inconsistent statements - no stenographer available for 1st half hour of trial - in-house recording system not working due to some unknown malfunction.
Appeal dismissed.
277

HAMZY, Bassam - CCA, 23.7.2004
Mason P, Levine & Kirby JJ
Citation: R v Hamzy [2004] NSWCCA 243
Conviction and sentence appeal.
Murder; wound with intent to do GBH; discharge pistol with intent to do GBH; threaten to use offensive weapon (firearm) with intent to prevent or hinder lawful apprehension; conspire to murder.
Total of 27y with NPP of 21y.
This was a strong Crown case. Following an argument between deceased & appellant'ss friends, appellant was chased by the deceased. Appellant produced a gun & began firing it, The deceased was fatally struck in the chest & buttock. Another bullet struck the deceased'ss friend. Bullets were also fired at another of the appellant'ss friends. When a policeman asked appellant to stop, appellant brandished his firearm. Appellant's criminal history involved serious drug offences, including being knowingly concerned in the importation of cocaine, which occurred while he was overseas immediately after the commission of the first 4 offences listed above. The Crown successfully appealed against the inadequacy of sentence for the drug matter & appellant was resentenced to 13*y with a NPP of 8y in place of 9y with a NPP of 5*y: see Hamzy [2001] NSWCCA 539. Appellant was in custody awaiting the disposition of the cocaine matter at the time he committed the conspiracy to murder offence.
Aged 19 at time of offences & 23 at time of sentencing - disadvantaged background - drug user - no contrition shown - little prospect of rehabilitation.
Whether similarity evidence wrongfully admitted - whether error in directions on identification evidence - whether documents wrongfully admitted - whether error in failure to recount details of criminality of witness - whether error in failure to tell jury which evidence provided corroboration - whether error in failure to fully sum-up evidence of witnesses - whether accused incompetently represented - whether miscarriage - whether unsafe - whether sentence manifestly excessive.
Appeal dismissed.
278

MATTHEWS, Rodney James - CCA, 4.8.2004
WILLIAMS, Sahrita May
Simpson, Sperling & Bergin JJ
Citation: R v Matthews; R v Williams [2004] NSWCCA 259
Conviction appeals.
1 x supply commercial quantity cannabis leaf; 1 x supply trafficable quantity methylamphetamine.
The offences came to light as a result of a police operation. Although appellants were found guilty of the above offences, each appealed only against conviction in relation to the supply of cannabis leaf.
Whether each appellant knew of the existence of cannabis in the trailer - directions - knowledge - tendency or coincidence reasoning - possession - whether verdicts unreasonable.
Appeals dismissed.
279

EMANUEL, Darren Ricky - CCA, 17.8.2004
Dowd & Bell JJ, Smart AJ
Citation: R v Emanuel [2004] NSWCCA 267
Crown appeal.
Supply large commercial quantity methylamphetamine; goods in custody ($400,000 in cash); possess cannabis (12 grams).
4y 4m with NPP of 2y 8m.
Evidence before the Court included a large number of intercepted phone calls, from which it was clear that respondent was in constant liaison with principals in the UK about the status of pending sales & problems relating to investigations by police. Respondent collected money from the proceeds of the supply of 8 kgs of methylamphetamine in Sydney & monitored the handling of 18.25 kgs of methylamphetamine controlled by a person in Perth. The methylamphetamine had a purity of between 41.4% & 50.4%. An issue arose on appeal as to the basis upon which the sentencing judge had sentenced respondent. There had been some negotiations prior to sentencing as to the charges that were ultimately to be brought against him. There was discussion during the course of the sentencing hearing about the fact that respondent had nothing to do with the handling of the 18.25 kgs of methylamphetamine in Perth, but that he simply went over to check as to whether the handling of that quantity was in order & at no stage did it come to NSW. The sentencing judge, in his remarks on sentence, referred to the 8 kgs of methylamphetamine sold in NSW & referred both to the Sydney & Perth operations, but did not make it clear as to whether it was in respect of the approximately 25 kgs or 8 kgs for which he was sentencing. Counsel for the respondent conceded that the supervision of the total operation in NSW & WA was nevertheless an indication of respondent's involvement & his involvement in the total criminality in both operations, even if it were only for the 8 kgs for which he was sentenced. The lesser amount of 8 kgs is eight times the threshold amount for an offence that carries life imprisonment.
Aged 35 at time of appeal - UK national - guilty plea - had worked from time of leaving school until age 31 when gambling addiction took over - became a full-time professional gambler - no priors.
Failure to reflect gravity of offence - whether sentence manifestly inadequate.
Appeal allowed: resentenced to 7y 3m with NPP of 4y 9m.
280

MORRIS, Michael John - CCA, 16.8.2004
Handley JA, James & Howie JJ
Citation: R v Morris [2004] NSWCCA 283
Sentence appeal.
1 x BE&S; 1 x aggravated B&E with intent.
Total of 5y with NPP of 4y 8m.
The BE&S offence was committed upon the home of a 69 year old woman. Applicant had cut himself during the commission of the offence & DNA matching his was obtained from bloodstains on the carpet. The victim claimed about $2,000 in compensation for property that was stolen & for damage to her premises. The aggravated B&E offence was committed some 6 months later when applicant entered a first-storey apartment while the occupants were asleep in bed. They awoke to find the applicant in the premises searching with a flashlight. The male occupant told the applicant to leave the premises & a struggle ensued as a result of which the applicant was detained by the householders. He was subsequently arrested by police & charged with that offence & the BE&S offence.
Aged 27 at time of sentence - on parole at the time - drug & alcohol abuse - long criminal record dating from 1993 & dealt with in Children's Court - multiple priors as an adult.
Accumulation of FT sentence on NPP of sentence first imposed resulted in NPP being 93% of total sentence - sentence imposed inconsistent with stated intention - whether NPP should be reduced.
Appeal allowed: resentenced to total of 5y with NPP of 4y.
281

RIVADAVIA, Ruben - CCA, 18.8.2004 - 61 NSWLR 63
EL AKKAOUI, Raed
AKSU, Umit
Wood CJ at CL, Adams J, Smart AJ
Citation: R v Rivadavia; R v El Akkaoui; R v Aksu [2004] NSWCCA 284
Crown appeals.
Mas Rivadavia and El Akkaoui: conspiracy to import prohibited substance (708.5 grams pure heroin) - each received 6y 9m with NPP of 4y 3m.
Aksu: attempt to have possession of a prohibited substance - 4y 3m with NPP of 2y 6m.
Respondents had been part of a wider group under police surveillance for planning to import heroin from Hong Kong to Australia through the FedEx airfreight system. Each pleaded on the dates fixed for trial.
Whether sentences manifestly lenient.
Held: Guideline decisions such as R v Wong and Leung [1999] 48 NSWLR 340 have importance in establishing general sentencing patterns but a discretion remains to allow for objective and subjective differences that may occur in different cases: R v Karacic [2001] NSWCCCA 12 and R v Whyte [2002] NSWCCA 343.
Following the decisions in R v Studenikin [2004] NSWCCA 164 and R vDujeu [2004] NSWCCA 237 there is no warrant to increase the range of sentences for Federal offences, now that s.16G Crimes Act 1914 (Cth) has been repealed, by the application of some mathematical formula. The proper approach to sentencing for a Federal offence is to determine the correct sentence without taking into account that s.16G existed and has now been repealed, save so far that, if regard is had to pre existing patterns, it should be understood that they were sentences passed after a s.16G discount.
By reference to pre s.16G and 19AG sentencing patterns and the range of sentencing suggested in Wong and Leung, and despite the respondents' favourable subjective circumstances, there was insufficient weight accorded to the punitive, retributive and deterrent elements as well as to the objective criminality of what was a well planned and substantial importation operation. A significant degree of punishment was merited: R v Wong and Ng (1988) 39 A Crim R 1 and R v Saxon (1996) 86 A Crim R 353.
Crown appeal against sentences imposed upon Aksu dismissed.
Crown appeals against sentences imposed upon Mas Rivadavia & El Akkaoui allowed. Respondents resentenced as follows:
Mas Rivadavia: 8y 3m with NPP of 5y 3m.
El Akkaoui: 8y 3m with NPP of 5y 3m.
282

ADAMS, Dennis John - CCA, 18.8.2004
Dunford, Adams & Howie JJ
Citation: R v Adams [2004] NSWCCA 279
Conviction and sentence appeal.
Armed robbery; fire firearm with disregard for safety; 2 x maliciously discharge firearm with intent to resist or prevent lawful apprehension.
Total of 12y with NPP of 8y.
A man wearing a balaclava & armed with a rifle entered a newsagency & robbed the victim of about $1,500 in cash. A rifle was discharged during the robbery. A customer saw the robber get into the front passenger seat of a stolen blue Ford Laser, which was driven off by a co-offender. The stolen car was driven down a one-way street in which police in a highway patrol car happened to be patrolling. Police pursued the stolen car. During the pursuit, shots were fired by the passenger in the direction of police. The Crown case was that it was the appellant who entered the newsagency & who got into the passenger seat. Appellant denied his involvement in the offence. The central issue at trial was identification. In order to prove its case, the Crown relied essentially upon 2 pieces of evidence. The 1st was of an admission made by appellant to a friend of his who came forward & made a statement to police. The 2nd was evidence of an identification given by one of the police involved in the pursuit of the stolen vehicle in which the offenders made their escape.
Aged 31 at time of offences - considerable part of teenage years spent in boys' homes - alcohol abuse - drug use but not considered a drug addict - multiple priors, many dealt with in Children's Court - previous imprisonment.
Evidence - relevance - probative value - unfair prejudice - identification - similarity - whether directions sufficient - special circumstances - whether sentence excessive.
Appeal dismissed.
283

RIK - CCA, 19.8.2004
Hodgson JA, Hule J, Smart AJ
Citation: R v RIK [2004] NSWCCA 282
Conviction appeal.
Manslaughter.
3y with NPP of 12m.
In an attempt to get away from the offender, who was behaving in an aggressive manner towards the deceased at a railway station, the deceased jumped down onto the railway lines in order to gain the safety of another platform. Unfortunately, as he was crossing to the other platform, he was hit by a train & killed.
Young offender - no provocation - whether custodial or non-custodial sentence - unusual circumstances of death - previous good character.
Whether evidence sufficient - whether verdict unreasonable - whether conduct of appellant dangerous - whether response of deceased reasonable or proportionate.
Appeal dismissed.
284

CAKOVSKI, Daniel - CCA, 19.8.2004 - 149 A Crim R 21
Hodgson JA, Hulme & Hidden JJ
Citation: R v Cakovski [2004] NSWCCA 280
Conviction appeal.
Murder.
The murder involved the multiple stabbing of a 53 year old man during the course of a robbery. The appellant was aged 19 at the time of the offence. Evidence was given by the appellant that he stabbed the deceased in self-defence when the unarmed deceased persisted in aggression & threats to kill the appellant. The trial judge rejected evidence that 23 years earlier the deceased had killed 3 people & that a few hours before his death he threatened to kill another person. The issue of provocation was left to the jury together with the issue of self-defence.
Whether error in permitting Crown to split its case - whether error in refusing to admit evidence that deceased had murdered 3 people - whether evidence admissible as tendency evidence or otherwise - whether directions to jury as to issue of self-defence erroneous.
Appeal allowed: new trial ordered.
285

ANTOUN, Joseph - CCA, 16.8.2004
ANTOUN, Antoine
Dowd & Hislop JJ, Smart AJ
Citation: R v Joseph Antoun; R v Antoine Antoun [2004] NSWCCA 268
Conviction and sentence appeals.
1 x demand money with menaces.
Antoine Antoun: 3*y with NPP of 2*y.
Joseph Antoun: 6y with NPP of 4*y.
The offence arose as a result of appellants demanding protection money from a nightclub owner. The nightclub owner refused to pay. After a number of visits & threats, he reported the matter to the Police Crime Agency. He was fitted with a listening device. Subsequent conversations between the appellants & the nightclub owner were recorded & admitted into evidence.
Judge alone trial - apprehension of bias - verdict on conviction - whether unreasonable - claim of right.
Appeals dismissed.
286

STANLEY, Kurt Frederick - CCA, 18.8.2004
Dunford, Adams & Howie JJ
Citation: R v Stanley [2004] NSWCCA 278
Conviction appeal.
Robbery in company.
7y with NPP of 4y.
The Crown case was that the appellant & his co-offender assaulted a man in the car-park of a bowling club. They struck the victim in the face & when he fell to the ground he was kicked to the body. During the assault, the offenders stole the victim's wallet.
Dock identification - whether error in failure to give directions - warnings - whether miscarriage.
Dock identification - failure to warn - whether directions adequate.
Appeal dismissed.
287

GOODWIN, Robert Craig - NSW SC, Howie J, 12.8.2004
Citation: R v Goodwin [2004] NSWSC 757
Remarks on Sentence.
2 x murder.
The victims were the offender's estranged wife & her then partner, who was the Sheriff in Cooma. The offender shot both of them at the deceased male's premises where the offender's wife was then residing. Shortly before the trial was to commence, a question arose as to the offender's fitness to stand trial. The basis for this issue was the offender's apparent inability to remember the facts & circumstances surrounding the killings. After a short hearing, the offender was found fit to be tried. The following day, he pleaded guilty to the 2 charges.
Sentenced to total of 27y with NPP of 21*y.
288

WAKEFIELD, Leslie John - CCA, 20.8.2004
Hodgson JA, Hulme J, Smart AJ
Citation: R v Wakefield [2004] NSWCCA 288
Conviction appeal.
Aggravated robbery (infliction of ABH).
There was no issue at trial that the victim (an elderly woman) had been robbed & that ABH had been inflicted upon her. The sole issue was whether it was the appellant who had robbed & assaulted her. The victim was assaulted in the service lift of a shopping mall & her handbag containing her purse & credit cards was taken. She was able to give a fairly comprehensive description of her attacker. The victim suffered a number of injuries & had to receive medical & dental treatment. A pair of secateurs in a pouch & a handkerchief were found in the lift. The Crown contended that these had been dropped by the attacker, who worked at a nearby TAFE college as a trainee gardener. Police interviewed him & others who worked there. An identification parade was held, however, the victim became stressed & felt intimidated as she was required to go into the same room as the men who were taking part in the parade. At the time, she said she could not be sure who had attacked her. Later, when out of the room, she said she had recognised the appellant but was frightened he would hit her again. The appellant was aged 43 at the time of the offence.
Identification - appreciation & application of DNA & directions - case fought on risk of contamination of DNA - point not raised at trial - Rule 4.
Appeal dismissed.
289

GEORGE, Phillip - CCA, 19.8.2004 - 149 A Crim R 38
Wood CJ at CL, Adams & Kirby JJ
Citation: R v George [2004] NSWCCA 247
Sentence appeal.
Manslaughter.
7y with NPP of 4y.
This case was one of manslaughter by criminal negligence arising from the gross & wilful failure of the applicant, as the primary carer of his mother, to provide her with proper nutrition, hydration, medication & medical care.
Aged 58 at mother's death - never married or had long-term relationship - unemployed for much of life.
Whether adequate weight given to applicant's psychological condition - Asperger's Syndrome or social dysfunction - personal deterrence - mitigation - whether sentence excessive.
Appeal allowed: resentenced to 3y 6m with NPP of 2y.
290

THOMAS, Brett David - CCA, 16.8.2004
Handley JA, James & Howie JJ
Citation: R v Thomas [2004] NSWCCA 291
Sentence appeal.
Maliciously inflict GBH with intent to inflict GBH; assault police officers in execution of their duty; + 6 Form 1 offences.
Total of 7y with NPP of 4*y.
The maliciously inflict GBH occurred after a New Years Eve party at which a lot of intoxicating liquor had been consumed by applicant, the victim & other persons present. Applicant entered guilty pleas on all charges. Applicant had consumed considerable quantities of alcohol & illegal drugs immediately before the commission of the offences.
Remarks on sentence - Inconsistencies between some remarks & sentences finally pronounced - failure to take into account applicant's state of mind at time of crimes - failure to take into account provocation - statutory ratio - whether sentence excessive.
Appeal dismissed.
291

SCOTT, Christopher Geoffrey - CCA, 30.7.2004
Sully, James & Hulme JJ
Citation: R v Scott [2004] NSWCCA 254
Conviction appeal.
Homosexual intercourse with male person aged 12
7y with NPP of 4y.
At the time of imposing sentence, the sentencing judge altered the commencement date but otherwise dismissed appeals by appellant against the severity of sentences imposed for convictions before a magistrate in respect of 3 charges of indecent assault on a victim under 16 & one charge of inciting a person under 16 to commit an act of indecency. He had been sentenced for those offences to concurrent terms of 18m with NPP's of 9m. The sentencing judge directed that those sentences should commence on 2.12.2005, which he took to be the conclusion of the NPP imposed for the homosexual intercourse offence. The periods were, in fact, overlapped by one day.
The homosexual intercourse offence took place at appellant's home. The mother of the 12 year old complainant & his brother had allowed them to stay at the appellant's home, even though she never really knew the appellant, having only recently been introduced to him. The only witnesses called at trial were the complainant & the appellant. Appellant's credibility was therefore important. The Crown prosecutor elected not to cross-examine him on his evidence in which he denied the offending behaviour, but did set out to demonstrate that the appellant had changed his story on other matters. The foundation for this contention lay in the terms of the cross-examination by appellant's counsel.
Whether cross-examination of appellant by Crown prosecutor created miscarriage of justice - whether failure to give full Longman warning constituted miscarriage of justice.
Appeal allowed: Conviction quashed on homosexual intercourse charge - new trial ordered.
Commencement dates of sentences for 3 indecent assault charges varied.
292

SY - CCA, 30.8.2004
Ipp JA, Simpson & Adams JJ
Citation: R v SY [2004] NSWCCA 297
Conviction appeal.
5 x sexual intercourse with person under 16; 1 x sexual intercourse without consent; 1 x indecent assault.
Total sentence of 4y with NPP of 2y.
The complainant was the appellant's niece. The offences were alleged to have occurred when she was aged 10-12. Complaint was eventually made to the complainant's mother some 5 years after the alleged offences & 2 months after that the mother took the complainant to their family doctor. His evidence was that they had brought up the possibility of a sexual molestation having occurred around the age of 12 to 13 & that he had recorded what they told him. He said that no specific allegations had been made & he suggested that they might like to explore options by contacting the Sexual Assault Group. The doctor said that because there was no indication of any recent inappropriate sexual conduct he did not consider any medical investigation or examination was warranted. After the complainant's mother had given evidence, the jury retired at the direction of the trial judge. The trial judge expressed some surprise that the prosecutor had come to an agreement with the defence regarding a couple of paragraphs in the mother's written statement & had not questioned the mother about the contents of those paragraphs. He then proceeded to direct the prosecutor to lead evidence contrary to an agreement with the defence that he would not do so & indicated that if the prosecutor did not, in effect, renege on the agreement, the trial would be aborted.
Trial judge requires Crown to call evidence - whether miscarriage - effect of delay - inadequate Longman direction.
Appeal allowed: verdict of acquittal entered.
293

SARCASMO, Michael John - CCA, 17.8.2004
Wood CJ at CL, Hulme & Bell JJ
Citation: R v Sarcasmo [2004] NSWCCA 277
Sentence appeal.
Aggravated robbery (maliciously inflict ABH).
3y with NPP of 2y.
Applicant approached the victim while walking on a footpath. He grabbed hold of her handbag & began pulling it. The victim tried holding onto her bag, however, the pulling of the bag by the applicant caused the victim to fall to the pavement. She then let go of it & the applicant ran off with her bag. While this was taking place, police patrolling the area witnessed the assault & the taking of the victim's bag.
Aged 30 at time of sentence - lengthy criminal record starting at age 18 - on bail at time of above offence - illegal drug use since teenage years - need to attend residential drug rehabilitation programme.
Whether sentence manifestly excessive.
Appeal allowed: resentenced to 3y with NPP of 18m.
294

SIDIROURGOS, Peter - CCA, 10.8.2004
James, Adams & Bell JJ
Citation: R v Sidirourgos [2004] NSWCCA 274
Sentence appeal.
Conceal serious indictable offence (knowingly take part in manufacture of prohibited drug).
8m with NPP of 4m.
Initially, applicant was charged with knowingly take part in the manufacture of a prohibited drug, however, the Crown accepted his plea of guilty to concealing a serious offence in full satisfaction of the indictment. Police were conducting surveillance upon a house when applicant was seen in the kitchen where 2 men were manufacturing a prohibited drug. Applicant did not take part in this activity. At the time, he was on bail for knowingly take part in the manufacture of a commercial quantity of methylamphetamine committed in 2000. On 23.12.2002, applicant was sentenced by Nicholson DCJ to 6y 4m with a NPP of 3*y for the knowingly take part offence & on 3.11.2003, he was sentenced by Justice Blanch to a consecutive sentence of 8m with a NPP of 4m for the conceal serious offence.
Aged 28 at time of offence - early guilty plea - multiple priors - previous imprisonment.
Delay in bringing charge - whether adequate weight given - whether sentence excessive.
Appeal dismissed.
295

CHANTHOVIXAY, Vanikone - CCA, 5.8.2004
Beazley JA, Wood CJ at CL, Hulme J
Citation: R v Chanthovixay [2004] NSWCCA 285
s.5F appeal brought by the Crown against trial judge's refusal to admit 2 areas of evidence.
Detain with intent to obtain advantage; assault with intent to take MV; armed robbery.
Orders:
1. Appeal allowed.
2. Set aside decision dealing with the topic of adhesive tape.
3. Adjudge that evidence of the finding of adhesive tape in the boot of motor vehicle DK-128 on 21 September 2002 and of that tape and of the presence of the DNA thereon and as to the comparison of that DNA with the DNA of the Respondent is admissible.
4. Set aside the decision of 24 May 2004 dealing with the topic of events occurring on 7 October 2002 in a house in Canley Vale.
5. Adjudge that evidence of the respondent's possession of a firearm on 7 October 2002 in a house at Canley Vale is admissible.
296

LEVETT, Tony Keith Robert - CCA, 19.8.2004
Hidden & Kirby JJ
Citation: R v Levett [2004] NSWCCA 276
Sentence appeal.
1 x BE&S; 2 x steal from a dwelling; 1 x larceny; 1 x receiving; 1 x AOABH; + nine matters on a Form 1.
Total of 7y with NPP of 4y.
The offences were committed over a period of almost a year.
Aged between 19 & 20 at time of offences - violent & abusive parents - made a ward of State at age 2 - several years in orphanage - foster care from age 5 until age 16 - on bail at time of offences - history of offending - matters dealt with in Children's Court & LC - good prospects of rehabilitation - no previous imprisonment.
Whether sentence excessive.
Appeal allowed: resentenced to 5y with NPP of 3y.
297

LIRISTIS, Tony - CCA, 27.8.2004 - 146 A Crim R 547
Studdert, Kirby & Hislop JJ
Citation: R v Liristis [2004] NSWCCA 287
Conviction appeal.
Perjury.
6m FT.
The offence arose as a result of appellant falsely swearing that a solicitor he had engaged on 10.7.1998 did not disclose his costs structure to him until 21.7.1998.
Misleading explanation of rule in Browne v Dunn - whether rule applies in criminal trials- improper comments by Crown in address - elements of perjury - instruction on possibility of mistake - whether new trial.
Appeal allowed: new trial ordered.
298

DAVIS, Gordon - CCA, 12.8.2004
James, Adams & Bell JJ
Citation: R v Davis [2004] NSWCCA 281
Sentence appeal.
2 x maliciously inflict GBH.
Total sentence of 4y 8m with NPP of 4y.
The 1st offence resulted in very serious injuries, some likely to be permanent, to the victim. The 2nd offence was committed 3 weeks later & although GBH was inflicted, the injuries were relatively short-lived.
The sentencing judge imposed a sentence of 4y 8m with a NPP of 3y 6m for the 1st count & a FT of 6m for the 2nd count which he accumulated upon the NPP for the 1st count, resulting in an effective NPP of a little more than 85% of the total sentence. He also did not take into account the 3 months that the applicant was then serving.
Aboriginal - criminal history includes offences of violence - limited prospects of rehabilitation.
Totality - Pearce v The Queen (1998) 194 CLR 610 - Johnson v The Queen [2004] HCA 15.
Appeal allowed: sentence of 4y 8m confirmed, new NPP of 3y 5m imposed.
299

SAENGSAI-OR, Narongchai - CCA, 19.8.2004 - 61 NSWLR 135;147 A Crim R 172
Wood CJ at CL, Simpson & Bell JJ
Citation: R v Saengsai-Or [2004] NSWCCA 108
Conviction appeal.
Import trafficable quantity heroin.
9y with NPP of 6y.
Appellant was arrested at Sydney Airport on his return to Australia from Vietnam. He was carrying 2 bottles of Remy Martin fine champagne cognac in a 'Sydney Duty Free'bag, although they were not purchased at the duty free shop. Customs officers searched the appellant's luggage. The Remy Martin bottles were examined & underneath an embossed label an officer found that a 2mm hole had been drilled in each bottle & plugged with wax sealant. Subsequent analysis of the contents of the bottles revealed that each contained heroin. The quantity of pure heroin contained in the liquid mixture amounted to 902.3 grams.
Directions concerning mental element of offence under s 233B(1)(b) of the Customs Act 1901 (Cth) - intent - unreliable witnesses - good character - whether miscarriage.
Appeal allowed: new trial ordered.
300

LOEBER, Peter John - NSW SC, Wood CJ at CL, 14.4.2004
Citation: R v Loeber [2004] NSWSC 293
Remarks on Sentence.
Murder.
Deceased told the offender that she suspected the offender's son & 2 others of having stolen some of her marijuana. The offender said he would look into it, however, he took exception to her accusation. Later that night, armed with a knife, he gained entry to the deceased's house, entered her bedroom & attacked her with the knife, inflicting in excess of 40 wounds. Many of the wounds were to the deceased's arms, indicative of defence-type injuries. The fatal wounds to the deceased's back & chest had penetrated a lung.
At first, offender pleaded not guilty to the murder charge. During the course of the trial, he changed his plea to guilty.
Aged 39 - guilty plea - remorse - no priors.
Sentenced to 18y with NPP of 13y.
301

PRASAD, Simon Sunil - CCA, 1.9.2004 - 147 A Crim R 385
Wood CJ at CL, Hidden J, Smart AJ
Citation: R v Prasad [2004] NSWCCA 293
Crown appeal.
Knowingly concerned in the importation of commercial quantity ecstasy.
14y with NPP of 8y 8m.
Customs officers intercepted an importation into Australia of 480,000 ecstasy tablets secreted in freezer panels in a container that arrived by ship from Antwerp. The total consignment of ecstasy weighed 123.74 kgs (34.401 kgs pure) with a wholesale value of between $7.2 million & $12 million. Respondent had agreed to participate in the importation in return for $50,000 & a promise that a $100,000 debt would be cleared. Respondent was in serious financial difficulties at the time.
Whether sentence inadequate.
Appeal dismissed.
302

ARGENT, Bevan John - CCA, 10.8.2004
James, Adams & Bell JJ
Citation: R v Argent [2004] NSWCCA 270
Sentence appeal.
8 x BE&S; 1 x B&E with intent to steal; + Form 1 (1 x BE&S, 1 x possess housebreaking implements, 1 x possess pair scissors).
Total sentence of 5* with NPP of 4y.
In less than a month applicant committed 5 offences of BE&S (2 restaurants, a bottle shop, clothing store & toy shop). About a month prior to the 1st of these offences, he broke into a loan office & stole property. The next month he broke into a shop & stole cash & later the same month he broke into another shop & stole cash. Some 8 months after this, he broke into a newsagency. He was arrested by police following this break-in. This offence was committed whilst applicant was on bail for the 1st BE&S offence. The Form 1 offences were as a result of police finding a screwdriver & a pair of scissors in applicant's possession, as well as applicant breaking into a photo-shop & stealing property & cash.
Aged 33 at time of 1st offence - difficult & violent upbringing - father of 6 children, one died of cancer - life dominated by drug dependency - lengthy criminal history - previous imprisonment.
Failure to take into account 33 days pre-sentence custody - failure to give effect to finding of special circumstances.
Appeal allowed: new total sentence of 5*y with NPP of 3*.
303

ARNOLD, Bradley Scott - CCA, 30.8.2004
Wood CJ at CL, Adams & Kirby JJ
Citation: R v Arnold [2004] NSWCCA 294
Sentence appeal.
1 x attempt B&E with intent to commit larceny; 1 x B&E with intent to steal; 4 x dispose of stolen property; 2 x BE&S; 13 x aggravated BE&S (depriving householder of his/her liberty); 2 x aggravated attempted BE&S with intent to commit larceny (use of corporal violence); 1 x assault with intent to rob; + 28 charges on a Form 1.
Total of 20y with NPP of 12y.
Many of the offences involved elderly victims. Applicant was on parole at the time of the offences. He claimed to have little or no recollection of the offences because of being affected by illicit drugs of one kind or another at the time of the commission of the offences.
Aged 24 at time of 1st offence - guilty plea - chaotic upbringing - parents alcoholics - emotional & behavioural problems from early age - placed in a residential unit for children - diagnosed with dyslexia & ADD - criminal history commenced at age 16 - previous imprisonment.
History of mental disturbance - effect on sentence - effect of accumulation on utilitarian discount - need to adjust overall sentence to demonstrate discount.
Appeal allowed: sentenced to total of 15y with NPP of 9y.
304

HAINES, Silas Gordon - CCA, 30.8.2004
Sheller JA, Sperling & Adams JJ
Citation: R v Haines [2004] NSWCCA 295
Sentence appeal.
Aggravated sexual assault (infliction of ABH).
6y with NPP of 4y.
Applicant was a lodger at the victim's home. Applicant & the victim had been at a tavern & were walking home when the applicant made sexual advances towards the victim, which she resisted. Applicant grabbed hold of the victim & pushed her onto the bonnet of a car. A woman in a nearby house heard the victim screaming & saw the applicant & the victim. The woman turned away briefly, heard a slap & when she looked again, she saw the victim on the ground, apparently unconscious, with the applicant standing over her. The woman then saw the applicant having sexual intercourse with the victim. The woman yelled at the applicant, whereupon he threatened to assault her. After police arrived, the victim was taken to hospital. Although she had no memory of sexual intercourse actually occurring, a medical examination revealed small grazes in her vaginal area & the applicant's semen was discovered in vaginal swabs.
Aged 25 at time of sentencing - Aboriginal - drug & alcohol use since age 13 - commenced offending at age 15 - suffered a head injury when he crashed a stolen car, resulting in occasional epileptic seizures - family history of psychotic illness - priors include 2 convictions for AOABH - no prior sexual offences - previous imprisonment.
Mental abnormality falling short of psychiatric disease - relevance - effect on sentence.
Appeal dismissed.
305

GOKTAS, Harkan - CCA, 25.8.2004
Grove, Sully & Kirby JJ
Citation: R v Goktas [2004] NSWCCA 296
Sentence appeal.
1 x possess prohibited firearm.
4y with NPP of 2*y.
Prosecution evidence was presented by way of an agreed statement of facts together with transcripts of 3 intercepted phone calls. The statement of facts revealed that during 2002-2003 a combined operation of the Australian Crime Commission & the NSW Police Force investigated the supply of illegal firearms in NSW. An undercover operative negotiated the purchase of 2 Cobray sub-machine guns from a man named Kucuk. On 23.1.2003, while these 2 men were at Kucuk's residence, one such weapon was delivered there by a man named Elrich. The weapon was carried in a toolbox. After that delivery Elrich left the premises. The applicant's participation was detailed in the statement of facts as having arrived with Elrich & telling the police operative that he could supply multiple ammunition magazines for the weapon if the operative so desired. The Crown did not rely on the fact of the sale of the weapon as constituting an aggravating factor in the case of the applicant. The applicant said that he did not know what was inside the toolbox.
Joint possession for a period with another - applicant not involved in sale - whether sentence excessive.
Appeal allowed: resentenced to 2y with NPP of 15m 20d.
306

BERG, David Raymond - CCA, 25.8.2004
Spigelman CJ, Wood CJ at CL, Howie J
Citation: R v B erg [2004] NSWCCA 300
Sentence appeal.
Aggravated dangerous drive causing death.
5y with NPP of 3y.
Applicant was driving his car in the early hours of the morning when it left the roadway & came to rest on the passenger's side of the vehicle, as a result of which the passenger was killed. The applicant was under the influence of liquor at the time of the accident & a blood sample taken a short time later showed an alcohol reading of 0.2. The sample of blood also revealed the presence of morphine & cannabis. Applicant was charged with aggravated dangerous drive occasioning death & pleaded guilty to the offence in the LC.
Aged 45 at time of sentence - drug & alcohol abuse - record for criminal offences & traffic matters dating from 1978 - previous imprisonment.
Whether error in taking into account aggravating factors when assessing seriousness of offence - whether lesser sentence warranted in law.
Appeal allowed: resentenced to 4y with NPP of 2y 3m.
307

MAKHOUL, Tarek - CCA, 10.8.2004
James, Adams & Bell JJ
Citation: R v Makhoul [2004] NSWCCA 275
Sentence appeal.
Robbery armed with offensive weapon (knife).
5y with NPP of 2*y.
Armed with a knife & wearing a balaclava & gloves, applicant & a female co-offender entered a liquor store. Applicant demanded money from the owner, who was alone in the store, & prodded him a number of times with the knife. The owner opened the till & applicant took all the notes ($150 - $250). The owner recognised the appellant'ss voice as belonging to a regular customer. A female store assistant, who had been out on a delivery, returned to find the door closed. She heard the applicant say "No we are closed." Shortly thereafter, the door opened & both offenders ran off. The applicant had removed his balaclava & was recognised by the owner & his assistant when he turned around after the owner threw a bottle of wine at offenders as they fled. Police were notified & applicant & both offenders were arrested 14 days later when police saw them at a bus stop. Applicant mounted a defence of a claim of right at trial, arguing that the owner owed him money for alcohol he had provided to him, which the jury did not accept.
Aged 33 at time of offence - left school Year 11 - began using drugs at school - by age 24 used heroin on daily basis - increasing usage resulted in unemployment - while on bail underwent lengthy course of treatment for drug dependency - reasonable prospects of rehabilitation - priors (drugs, property, violence, driving) previous imprisonment.
Parity - GAS v The Queen [2004] HCA 22 referred to - hardship to family.
Appeal dismissed.
308

WALTER, David John - CCA, 3.9.2004
THOMPSON, Michael Allan Matthew
Grove, Sully & Kirby JJ
Citation: R v Walter & Thompson [2004] NSWCCA 304
Crown appeals.
Robbery in circumstances of aggravation (infliction of ABH).
Walter: 5y with NPP of 6m.
Thompson: 3y PD with NPP of 4m.
The respondents attacked a man who was walking along a street on his way to a nightclub. Walter demanded that the victim give him his jeans. Because Walter was a much larger man than the victim, the victim thought it was a joke & laughed. The victim was then punched & kicked a number of times & lay on the ground unconscious. The victim'ss jeans & shoes were then removed. His mobile phone, his money (approximately $35), his house keys, his baseball cap & other incidentals were taken. While these items were being removed by Walter, Thompson continued kicking the unconscious victim with Walter encouraging the continued attack. The respondents then decamped, leaving the unconscious victim by the side of the road. An eyewitness gave a detailed account of the incident & a detailed description of the offenders. Although the victim suffered a number of serious injuries, there was no suggestion of any permanent disability from these injuries.
Subjective features - double jeopardy.
Whether sentences manifestly inadequate.
Appeals allowed & respondents resentenced as follows:
Thompson: imprisonment for 3y with NPP of 9m.
Walter: 4y with NPP of 12m.
309

MASTRONARDI, Fabian Mark - CCA, 23.8.2004
Sheller JA, Sperling & Adams JJ
Citation: R v Mastronardi [2004] NSWCCA 273
Sentence appeal.
Armed robbery - 4y FT; carjacking - 3y FT; aggravated robbery - 10y with NPP of 6*y; use offensive weapon to resist lawful apprehension - 2*y FT.
Total sentence of 14y with NPP of 10*y.
Armed with a knife, applicant committed a robbery at a newsagency. Three months later, he carjacked a Toyota Corolla after threatening the driver with a syringe. On the same day, he robbed a cashier of a change bag at Food for Less. While fleeing to the carpark, applicant fell & when approached by a trolley attendant, he used a syringe to resist apprehension.
Questions of accumulation & concurrence - whether aggravated robbery sentence outside range of proper exercise of sentencing discretion - effect on total sentence - assaulted whilst in prison leading to serious psychological consequences - need for strict protection - special circumstances to be taken into account.
Appeal allowed: resentenced to a total of 6y with a NPP of 4y.
310

P - CCA, 25.8.2004
Wood CJ at CL, Simpson & Bell JJ
Citation: R v P [2004] NSWCCA 136
Sentence appeal; and
Crown appeal.
2 x solicit to murder
Concurrent sentences of 6y 8m with NPP of 5y.
P & the intended female victim were caught up in a custody dispute involving their young child. During an extended custody visit & with a decision pending in the UK High Court, P abducted the child, taking her from England to Melbourne. He was subsequently arrested as an unlawful non-citizen & ultimately detained at Villawood Detention Centre. His daughter was reunited with her mother. While in detention, his friend notified authorities of P's plans to hire a hit-man to kill the mother of the child & her male friend. An undercover police operation was set up.
Whether sentence excessive: Sentence appeal dismissed.
Question of inherent criminality - whether sentence manifestly inadequate.
Sentence appeal dismissed.
Crown appeal allowed: resentenced to total of 8y 8m with NPP of 6y 3m.
311

WALSH, Bradleigh Geoffrey John - NSW SC, Howie J, 27.2.2004 142 A Crim R 140
SHARP, Kathleen
Citation: R v Walsh; R v Sharp [2004] NSWSC 111
Remarks on Sentence.
Walsh: manslaughter.
Sharp: accessory after the fact to manslaughter.
Walsh was charged with murder. He pleaded not guilty to murder but guilty of manslaughter on the basis of excessive self-defence, which was rejected by the Crown. Sharp pleaded not guilty to being an accessory after the fact to murder & not guilty to being an accessory after the fact to manslaughter. The jury convicted Walsh of manslaughter & Sharp of being an accessory after the fact to manslaughter. Walsh & the deceased had spent some time drinking at a club. They then went to the unit Walsh shared with Sharp. The deceased had earlier been aggressive towards some people, including Walsh. Sharp told Walsh she was frightened of the deceased & wanted him to leave the unit immediately. When Walsh went into the bedroom where the deceased was lying on a bed, he was attacked by the deceased, who was armed with a piece of wood. Walsh took a hammer from a bag & struck the deceased a number of times about the head, killing him. He told Sharp what had happened & she went into the bedroom to confirm that the deceased was dead. Some time later, Walsh told Sharp that they should bury the body. Sharp agreed & assisted Walsh to remove the body from the unit & load it onto her utility. She then drove Walsh to his grandmother's property where he dismembered the body & put the pieces into plastic bags. These were later thrown into a river. The evidence against both accused included material obtained by police by way of telephone intercepts.
Walsh: sentenced to 7y 3m with NPP of 5y 6m.
Sharp: sentenced to 2y PD.
312

MUCENSKI, Anthony - CCA, 3.9.2004
Wood CJ at CL, Hidden J, Smart AJ
Citation: R v Mucenski [2004] NSWCCA 299
Sentence appeal.
Ongoing supply of prohibited drug (cocaine); + Form 1 offences - 6y with NPP of 4*y;
unauthorised possession of firearm (replica pistol) - 2y with NPP of 18m (wholly concurrent).
Applicant supplied cocaine to an undercover police officer on 4 occasions within a month. On each occasion the officer arranged the purchase by calling a mobile phone, speaking to the applicant on 2 of those occasions & to applicant's female partner on the other 2. Applicant's partner drove the applicant to the location where the transaction took place. Each of the purchases was for $100, the amount supplied varying between 0.2 grams & 0.25 grams. The purity of the cocaine was 26% on the 1st occasion & between 44% & 47% on the other occasions. Both offenders were arrested in the car they had used during the drug transactions. Applicant's partner had some bags containing 2.6 grams of cocaine concealed in her underwear. Police found the replica pistol in the car, which gave rise to the 2nd charge against the applicant. The also found a quantity of cannabis & a bong, giving rise to the charges on the Form 1. Applicant's partner pleaded guilty & was sentenced to 3y with a NPP of 2y 3m to be served by way of PD.
Aged 19 at time of offences - guilty plea - on bond at time of offences - priors (possessing prohibited drug, possess prohibited weapon, custody of a knife in a public place, 2 x drive whilst suspended) - no previous imprisonment.
Parity.
Appeal allowed on charge of ongoing supply. Resentenced on that count to 4y with NPP of 2*y.
313

REID, Craig Anthony - CCA, 25.8.2004 - 148 A Crim R 425
Spigelman CJ, Wood CJ at CL, Howie J
Citation: R v Reid [2004] NSWCCA 301
s.5F application for leave to appeal against refusal of judge to disqualify himself from sentencing.
The applicant pleaded guilty to a charge of murder. When the matter came before Justice Hulme for sentencing, his Honour was asked to refer the matter to a different judge. This application was based on the fact that Justice Hulme had sentenced applicant's female co-offender for being an accessory after the fact to the murder of the deceased. Counsel for the applicant asked that Justice Hulme disqualify himself from sentencing the applicant on the basis of his remarks on sentence in the case of the co-offender. Justice Hulme refused to disqualify himself.
The applicant submitted that the judge made an interlocutory judgment or order within the meaning of s.5F.
Jurisdictional basis for an appeal from a ruling as to disqualification - grounds on which leave to appeal against sentence may be sought.
Leave to appeal refused.
314

DRE - CCA, 2.9.2004
Mason P, Sully & Sperling JJ
Citation: R v DRE [2004] NSWCCA 305
Conviction appeal.
1 x common assault; 1 x aggravated indecent assault; 2 x sexual intercourse with child under 10; 1 x attempt aggravated indecent assault.
All offences involved the same male child when aged between 6 & 9 years. Appellant was his stepfather.
Admission into evidence of sexual activity between appellant, complainant & another minor - misdirection as to appellant's guilt - failure to adequately direct on significance of delay in complaint - comments made by Crown prosecutor - whether verdicts unreasonable - whether miscarriage.
Appeal allowed: new trial ordered.
315

MSK - CCA, 6.9.2004 - 61 NSWLR 204; 148 A Crim R 453
MAK
Mason P, Wood CJ at CL, Barr J
Citation: R v MSK and MAK [2004] NSWCCA 308
Conviction appeal; and
Application for leave to appeal against sentence.
Appellants (brothers aged 23) were convicted of 5 counts of aggravated sexual assault (in company) of 2 school girls aged 16 & 17. The circumstances of aggravation included the threatened infliction of ABH by means of a knife & the deprivation of liberty prior to the commission of the offence.
The appellants were self-represented at both trial & on appeal. Appellants were not permitted to personally cross-examine the complainants at trial because of the operation of s.294A of the Criminal Procedure Act 1986 which prevents a self-represented person on trial for charges of sexual assault from personally cross-examining a complainant. A complainant, however, can be examined by a person appointed by the court. The appellants declined to have such a person appointed by the court & proceeded at trial without cross-examination of the 2 complainants.
Appellants put forward 15 grounds of appeal against conviction, all of which essentially argued that s.294A is invalid & that their trial was unfair & had miscarried because of the application of the section. It was submitted that s.294A was invalid for uncertainty as to how the provision was to be applied by the trial court & because it was discriminatory. The principal argument by which the appellants sought to have the section declared invalid was that it was said to vest functions in the Supreme Court which are incompatible with the exercise of Chapter III of the Constitution (Judicial power and Courts), thereby violating the principle espoused by the High Court in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR. The violation was submitted to arise from unfairness caused by s.294A's abrogation of the common law right of a self-represented person to cross-examine & test evidence.
Conviction appeal dismissed.
Application for leave to appeal against sentence to be heard & determined at a later date.
316

OHAR, Adam - CCA, 2.7.2004
Hulme J
Citation: R v Ohar [2004] NSWCCA 252
Sentence appeal.
Applicant had been charged with 3 groups of offences. Appeals in respect of the 2nd & 3rd groups were considered in R v Ohar [2004] NSWCCA 83.
When the offences in the 1st group (BE&S, possess housebreaking implements, being carried in a MV knowing it was stolen) were first dealt with in the Drug Court, applicant was sentenced in respect of these 3 offences to concurrent terms of imprisonment of 12m 3w. This was arrived at by taking into consideration 5m 4d pre-sentence custody. Those sentences were suspended as a consequence of applicant accepting the conditions of a drug programme. When he left the programme, his involvement in it was terminated & he was sentenced to a FT of 9m.
Guilty plea - criminal record includes numerous drug & dishonesty offences - beached recognisance.
Whether sentence manifestly excessive - whether failure to take into account pre-sentence & quasi-custody - whether initial sentence imposed in Drug Court limits length of NPP in subsequent sentence - whether failure to give adequate reasons.
Appeal dismissed.
317

DIMOSKI, Trajce - CCA, 1.9.2004
Grove, Simpson & Shaw JJ
Citation: R v Dimoski [2004] NSWCCA 309
Sentence appeal.
3 x aggravated armed robbery: + Form 1 (2 x aggravated armed robbery).
4y with NPP of 2y.
All offences relate to the same house on the same night. Applicant & his co-offenders entered the house, one offender armed with a replica pistol, the applicant with a 'wooden imitation knife.'Applicant thought the occupants of the house were drug dealers but in fact they were people entertaining guests. There was also a 7 year old boy in the house. The 2 co-offenders demanded money & took a handbag, a mobile phone & a video recorder. The offenders then left the house & drove away. Applicant's car registration number was recorded & given to police. Following inquiries from the police, applicant phoned them & they then went to his home & arrested him. He made full admissions of his involvement in the offences at an early stage & gave details of his co-offenders. He later signed undertakings to give evidence against them & gave evidence on oath at sentence to the same effect as the undertakings. Because of the information he provided, the co-offenders were arrested & they eventually entered pleas of guilty.
Early guilty plea - assistance to authorities in order to secure charges & convictions against co-offenders - sentence imposed did not reflect discount for assistance.
Appeal allowed: resentenced to 3y with NPP of 18m.
318

ALAMEDDINE, Mohammed - CCA, 1.9.2004
Beazley JA, Wood CJ at CL, Hulme J
Citation: R v Alameddine [2004] NSWCCA 286
Sentence appeal (application for leave to appeal).
1 x armed robbery; + 15 matters on a Form 1 (10 directly or indirectly associated with principal offence).
7*y with NPP of 5*y.
Applicant, in the company of others, committed a robbery at the South Western Sydney Firearms Range during which a large number of firearms & cash were stolen.
Aged 18 at time of offence - wide range of testimonials from friends, relatives, members of his community, former employers attesting to behaviour being out of character - expressions of genuine shame & remorse - below average intelligence - gullible & easily led - gambling problem - no history of substance abuse - prior offences of drive whilst suspended, larceny & possess implements - on bond at time of offence.
Parity - whether justifiable grievance - whether sentence manifestly excessive.
Leave to appeal refused.
319

SCHWENKE, George Francis - CCA, 11.8.2004
Hodgson JA, Hulme J, Smart AJ
Citation: R v Schwenke [2004] NSWCCA 289
Crown appeal.
Sexual intercourse with female aged 13.
3y GBB.
Respondent was a friend of complainant'ss brother & was staying with their family at the time of the offence. While there, respondent & the complainant (aged 13) formed a relationship. On the night of the offence the respondent fell asleep in front of the TV, the complainant woke him & walked him to his room. They started kissing & respondent asked the complainant "if it would be alright if he made the next move'She asked what he meant & he said words to the effect "do you mind if I sleep with you." She agreed. During the activity that followed she told him it hurt & asked him to stop, which he immediately did. At about that time the complainant became pregnant. Intercourse occurred on another 2 occasions. The respondent & the complainant lived together for some months after the child was born. There was no evidence of exploitation of the complainant by the respondent.
Aged 22 at time of offence - cognitive/intellectual underdevelopment - taken out of school in Year 6 - received some schooling at home - alcohol abuse since age 16 - undertaken counselling - admitted to psychiatric unit for depression - suicidal - immature - unable to cope with stress - no remorse/acceptance of wrong-doing - breached conditions of bail by contacting/approaching complainant - priors (7 x assault/hinder police, 4 x maliciously destroy/damage property, 2 x assault, possess implements to enter/drive conveyance, steal MV - previous imprisonment.
Whether sentence manifestly inadequate.
Appeal dismissed.
320

PRICE, Andrew Ian - CCA, 3.9.2004
Hulme, Simpson & Howie JJ
Citation: R v Price [2004] NSWCCA 186
Crown appeal.
2 x dangerous drive causing death.
2y with NPP of 12m.
Respondent was under the influence of liquor at the time of the accident. The Crown case was that he was driving at an excessive speed when the car left the road & hit a tree, resulting in the death of his 2 passengers.
Whether sentence manifestly inadequate - relevance of number of deaths - application of R v Whyte (2002) 55 NSWLR 252.
Appeal allowed: resentenced to 3y with NPP of 12m.
321

AZAR, Joseph Melhem - NSW SC, Kirby J, 3.9.2004
Citation: R v Azar [2004] NSWSC 797
Remarks on Sentence.
Murder.
Accused was charged with murder. He pleaded not guilty to murder but guilty of manslaughter. He acknowledged having shot the deceased but claimed that at the time of the shooting he was substantially impaired by an abnormality of mind. The jury, however, did not accept this & returned a verdict of guilty of murder. Accused claimed that when he was aged 6 or 7 & while still living in Lebanon, he was sexually assaulted by the deceased who was aged about 14 at the time. He said the assault had a profound effect upon him & made him question his own sexuality. The Crown maintained that this was a revenge-type killing.
Aged 41 at time of offence - born in Lebanon - came to Australia with family at age 9 - qualified mechanic - reunited with wife after separation - 2 children - heroin use - no evidence of contrition - reasonable prospects of rehabilitation - priors - previous imprisonment.
Sentenced to 17y with NPP of 12y.
322

DAVIS, Daniel Thomas - CCA, 3.9.2004
Wood CJ at CL, Hulme & Bell JJ
Citation: R v Davis [2004] NSWCCA 298
Conviction appeal.
2 x sexual intercourse without consent.
5y with NPP of 3y.
The 16 year old complainant left her sister's house to walk home after spending some time there with friends drinking alcohol when the appellant left the premises & caught up with her. They continued walking together. The appellant repeated his earlier wish of 'getting together'with the complainant, which she rejected. Her recall of events was not complete, however, she remembered ending up against a tree in a paddock with the appellant kissing her face & neck. She said she repeatedly told him 'no', which he ignored. He removed her clothing & had anal sex with her. A man came out of a neighbouring house to see what was going on, however, the complainant did not call out to him. The appellant then had vaginal sex with the complainant. The appellant & the complainant resumed walking together in the direction of their respective homes. On the way, they encountered one of the appellant's friends. The appellant & his friend spoke for a short time, but the complainant said nothing. Her cousin gave evidence of the complainant returning home & telling her that the appellant had raped her, although the complainant had no clear recall of events following her return home or what, if anything, she had told her cousin. She had a shower, police were called & later that evening she was examined at the Wollongong Hospital. Earlier in the evening, whilst at her sister's house, the complainant had been involved in a physical fight in the street with another female, during which the complainant sustained a black eye. She ended up pinning the other female to the ground by kneeling over her. She acknowledged in evidence that she may have grazed her knees during this confrontation.
Whether miscarriage due to opinion of examining doctor that it was highly probable that sexual assault, both anal & vaginal, had occurred & an opinion as to the cause & method of the infliction of injuries, e.g. scratches & abrasions -whether error in directions on lies.
Appeal dismissed.
323

WALSH, Peter William - CCA, 17.8.2004
Wood CJ at CL, Hulme & Bell JJ
Citation: R v Walsh [2004] NSWCCA 290
Stated Case; and Application for extension of time within which to appeal against conviction.
Larceny as a bailee.
Question of law submitted out of time.
Application refused.
324

Attorney General's Application (No.3 of 2002) - CCA, 8.9.2004 - 61 NSWLR 305; 147 A Crim R 546
Spigelman CJ, Wood CJ at CL, Grove, Dunford & Howie JJ
Citation: Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303

The Guideline:
(1) An ordinary case of the offence of high range PCA is one where:
(i) the offender drove to avoid personal inconvenience or because the offender did not believe that he or she was sufficiently affected by alcohol;
(ii) the offender was detected by a random breath test;
(iii) the offender has prior good character;
(iv) the offender has nil, or a minor, traffic record;
(v) the offender's licence was suspended on detection;
(vi) the offender pleaded guilty;
(vii) there is little or no risk of re-offending;
(viii) the offender would be significantly inconvenienced by loss of licence.

(2) In an ordinary case of an offence of high range PCA:
(i) an order under s 10 of the Sentencing Act will rarely be appropriate;
(iii) a conviction cannot be avoided only because the offender has attended, or will attend, a driver's education or awareness course;
(iii) the automatic disqualification period will be appropriate unless there is a good reason to reduce the period of disqualification:
(iv) a good reason under (iii) may include:
(a) the nature of the offender's employment;
(b) the absence of any viable alternative transport;
(c) sickness or infirmity of the offender or another person.

(3) In an ordinary case of a second or subsequent high range PCA offence:
(i) an order under s 9 of the Sentencing Act will rarely be appropriate;
(ii) an order under s 10 of the Sentencing Act would very rarely be appropriate;
(iii) where the prior offence was a high range PCA, any sentence of less severity than a community service order would generally be inappropriate.

(4) The moral culpability of a high range PCA offender is increased by:
(i) the degree of intoxication above 0.15;
(ii) erratic or aggressive driving;
(iii) a collision between the vehicle and any other object;
(iv) competitive driving or showing off;
(v) the length of the journey at which others are exposed to risk;
(vi) the number of persons actually put at risk by the driving.

(5) In a case where the moral culpability of a high range PCA offender is increased:
(i) an order under s 9 or s 10 of the Crimes (Sentencing Procedure) Act would very rarely be appropriate;
(ii) where a number of factors of aggravation are present to a significant degree, a sentence of any less severity than imprisonment of some kind, including a suspended sentence, would generally be inappropriate.

(6) In a case where the moral culpability of the offender of a second or subsequent high range PCA offence is increased:
(i) a sentence of any less severity than imprisonment of some kind would generally be inappropriate;
(ii) where any number of aggravating factors are present to a significant degree or where the prior offence is a high range PCA offence, a sentence of less severity than full-time imprisonment would generally be inappropriate.

325

HENRY, Russell James - CCA, 30.8.2004
Grove, Simpson & Shaw JJ
Citation: R v Henry [2004] NSWCCA 306
Sentence appeal.
Count 1: BE&S - 2y with NPP of 18m;
Count 2: BE&S (+ Form 1 offences) - 3y with NPP of 2y 3m.
Total of 4y with NPP of 3y 3m.
The above sentences were imposed on 17.10.2003, however, on 30.10.2002 applicant had been sentenced in relation to 9 other offences, including BE&S, larceny, malicious destruction of property & MV offences. On that occasion he was sentenced to imprisonment for 1 *y with a NPP of 9m. Shortly after his incarceration a sample of his DNA was taken & this was eventually matched with blood he had left at the scene of the 2nd set of offences. Applicant had cut himself when he smashed some glass. Although the DNA sample was sent to the forensic laboratories for analysis, a bank-up of work prevented it being analysed for some time. Applicant had already been released to parole when the DNA testing established him as the perpetrator of the 2nd set of offences. His parole was revoked & he was returned to custody on 7.7.2003. In relation to both sets of offences, applicant's total term of imprisonment (except for the month when he was on parole) was approx 4 y 8m with a NPP of approx 3y 11m.
Combination of 2 sets of offences & 2 sets of sentences - subjective circumstances - totality - accumulation - special circumstances - delay in processing DNA evidence.
Appeal allowed: sentence on count 1 reduced to 2y with NPP of 12m, sentence on count 2 (+Form 1 offences) reduced to 3y with NPP of 1*y (cumulative upon 12m NPP), resulting in a total sentence of 4y with NPP of 2*y.
326

VILLAR, Gerardo - CCA, 3.9.2004
ZUGECIC, Kristijan
Grove, Simpson & Howie JJ
Citation: R v Villar; R v Zugecic [2004] NSWCCA 302
Conviction and sentence appeals.
Villar:
1 x aggravated sexual intercourse without consent (in company) - 15y 8m; 2 x aggravated sexual intercourse without consent (in company) - 3y FT on each count; 1 x aggravated sexual intercourse without consent (in company) - 7y FT; 1 x detain for advantage - 5y FT.
Total sentence of 17y with NPP of 10y.
Aged 32 at time of offences - victim of a serious assault - mental health problems - depression - possibility of lower than average intelligence complicated by head injuries - priors (take & drive conveyance, possess prohibited drug) - no previous imprisonment.
Zugecic:
1 x aggravated sexual intercourse without consent (in company) - 14y with NPP of 8y; 2 x aggravated sexual intercourse without consent (in company) - 3y FT on each count; 2 x aggravated sexual intercourse without consent (in company) - 7y FT on each count; 1 x detain for advantage - 5y FT.
Total sentence of 16y with NPP of 10y.
Aged 25 at time of offences - priors (3 x possess prohibited drug) - no previous imprisonment.
Appellants & a co-accused were tried for a number of sexual offences (penile/vaginal intercourse, fellatio & digital anal penetration) as well as kidnapping. All offences occurred at the same premises during one night against the same female complainant, who was an acquaintance of Villar. There were numerous offences charged in the indictment. The jury were unable to agree on some, they acquitted on some & there was a verdict by direction on others. Appellants were convicted of the above offences & the co-accused of none.
Multiple offenders - joint trial - findings of fact - judge's refusal to admit evidence of complainant's sexual reputation in cross-examination - comment by Crown prosecutor on failure of accused to give evidence, other accused having done so - whether demonstrating miscarriage - whether sentence excessive.
Conviction appeals dismissed.
Sentence appeals allowed. Each appellant resentenced on 1st count of aggravated sexual intercourse without consent (in company) to 12y with a NPP of 9y; other sentences confirmed, resulting in a new total sentence of 12y with a NPP of 9y for each appellant.
327

TAUFAHEMA, Motekiai - NSW SC, Sully J, 10.9.2004
Citation: R v Taufahema [2004] NSWSC 833
Remarks on Sentence.
Murder; unlawful possession of a firearm.
Joint criminal enterprise.
The offences relate to the killing of Snr Const McEnallay (see also R v Penisini, Lagi & John Taufahema [2003] NSWSC 892). Motekiai Taufahema denied having had any knowledge, prior to the actual firing by Penisini of the 5 shots, that there had been any firearm, let alone 4 loaded firearms, anywhere in the car in which he was travelling. He gave evidence that the shooting came as a complete surprise to him, that his immediate reaction was to panic & to do what he could to get out of the car as quickly as possible & then to get away as quickly as possible from the scene of the shooting, that Penisini had tossed to him an item wrapped in cloth & that from its touch he knew at once that it was a firearm. The prisoner told the jury that he ran off in a panic, taking the wrapped firearm with him. He said he did his best to evade apprehension by the police, even to the extent of getting rid of the weapon by throwing it into the garden of a private residence not far from the scene of the shooting.
Aged 25y 9m at time of sentence - born in Tonga - eldest of 11 children - migrated with family to Australia at age 12 - cultural dislocation - reaction against previous patterns of parental discipline, leading to other inappropriate behaviour - left school at age 16 - very limited employment record - significant criminal history - previous imprisonment.
Sentence: unlawful possession of firearm - 5y FT; murder - 21y with NPP of 14y (partially concurrent).
Total sentence of 23y with NPP of 16y.
328

NEALE, James Linaker - CCA, 10.9.2004 - 148 A Crim R 493
Grove, Sully & Kirby JJ
Citation: R v Neale [2004] NSWCCA 311
Conviction and sentence appeal.
Knowingly concerned in the importation of commercial quantity MDMA (ecstasy).
Life with NPP of 21y.
Appellant was a resident of Hong Kong & was running a business importing wine. He travelled to France & arranged for 940 cases of wine to be shipped to Australia. Before the shipment left, the appellant & others packed in excess of 100 kgs of ecstasy tablets into the bottom half of 20 of the cases & covered them with wine bottles. All 940 cases were then sent to Sydney on board a container vessel. The bill of lading for the container nominated the consignee as James Neale, C/- a Sydney address.
At trial, the appellant raised the defence of duress.
Whether error in not rejecting evidence of 2 telephone conversations - whether trial miscarried by reason of Crown prosecutor suggesting appellant was discussing another importation - whether error in finding of 'worst case'simply on basis of weight of MDMA & role of appellant - whether error in refusing to admit statements into evidence - whether sentence manifestly excessive.
Aged 57 at time of appeal - born in England - qualified as solicitor - represented England in hockey at Olympics & World Cup - prior dishonesty offences - previous imprisonment - struck from roll of solicitors - no prior drug offences.
Conviction appeal dismissed.
Sentence appeal allowed insofar as NPP reduced to 15y.
329

DAVIS, Keitha Waimarie - CCA, 3.9.2004
Grove, Simpson & Shaw JJ
Citation: R v Davis [2004] NSWCCA 310
Sentence appeal.
Take and detain in company with intent to obtain advantage and occasion ABH (s.86(3) Crimes Act 1900).
4y with NPP of 9m.
The victim (applicant's cousin) left Armidale to live with a man in Inverell, leaving her 3 year old son behind in Armidale with another cousin. Applicant & her co-offenders took it upon themselves to travel to Inverell & forcibly remove the victim & take her back to Armidale. Once there, the victim was assisted in making contact with other members of the family & the police.
Aged 24 - part of close-knit community from Cook Islands - no priors.
Misguided motives - cultural mores enforceable only within legal boundaries - general deterrence - personal deterrence - low level of actual harm.
Early guilty pleas - statement by sentencing judge on aggravating factors to be taken into account - whether error - whether sentence excessive.
Appeal allowed: resentenced to 12m GBB.
330

MIRZAEE, Mohammed - CCA, 17.9.2004
Sperling & Kirby JJ, Newman AJ
Citation: R v Mirzaee [2004] NSWCCA 315
Sentence appeal.
Import trafficable quantity heroin.
9y with NPP of 6y.
Applicant arrived at Kingford Smith International Airport from Malaysia. He produced an Italian passport to Customs. Whilst inspecting the applicant's luggage, the Customs officer addressed him in Italian & it was immediately obvious that he could not speak Italian. Another officer then addressed him in Arabic, to which the applicant responded. The applicant's luggage was then closely examined. A package containing white powder (later found to be heroin) was concealed within a false compartment in one of the bags. The package weighed 1,076 grams, with a pure heroin weight of 578 grams.
The sentencing judge determined that the applicant should be regarded as a courier.
Citizen of Iran - appears to have been born in 1945, although some uncertainty as to date of birth - guilty plea entered at earliest opportunity - married with children - unemployed at time of offence - no priors.
Error through judge taking into account likelihood of deportation - whether another sentence warranted in law - error in NPP - special circumstances.
Appeal allowed insofar as NPP reduced to 4*y.
331

ATTALAH, George - CCA, 20.9.2004
Handley JA, James & Howie JJ
Citation: R v Attalah [2004] NSWCCA 318
Conviction appeal.
2 x aggravated armed robbery in company.
15m with NPP of 3m.
The Crown case depended on the evidence of a witness who had participated in the robberies. The witness & the appellant had been jointly charged with the above offences. The witness pleaded guilty & agreed to give evidence for the Crown. He received a bond conditional upon his giving evidence for the Crown against the appellant. The trial judge gave the jury directions pursuant to s.165(2) Evidence Act 1995 warning them that the evidence of the witness may have been unreliable but he did not tell the jury that the witness was at risk of having the bond cancelled & being sent to prison if he did not give evidence favourable to the Crown. Counsel for the appellant unsuccessfully sought a further direction in accordance with R v Stewart (2001) 52 NSWLR 301. By the time appellant was sentenced, he had already spent 3 months in custody since his conviction & he was released on parole.
Whether miscarriage of justice.
Appeal allowed: judgment of acquittal entered.
332

BULUT, Sayut - CCA, 20.9.2004
Spigelman CJ, Barr & Hoeben JJ
Citation: R v Bulut [2004] NSWCCA 325
Sentence appeal.
Administer stupefying drug with intent to commit indictable offence (steal); steal property in dwelling house; dispose of stolen property.
Total sentence of 7y with NPP of 5y 3m (cumulative upon sentence for other offences).
Applicant & another person met the victim at a hotel & then accompanied him home. During the evening the victim noticed that $60 had been taken from his wallet & told the applicant & the other person to leave his home. The following evening applicant contacted the victim & arranged to meet at the victim's home in order to return the $60. While the applicant was at the victim's home he put some Flunitoazepam in some tea that he prepared & which the victim drank. The victim slept until 9am the next morning. There was evidence that the drug Flunitoazepam was a hundred times more potent than Valium. While the victim slept, the applicant stole jewellery, a watch, clothing, a black leather bag, a number of men's colognes & a portable CD from the flat (value in excess of $30,000). A day or so later, the applicant, in company with 2 other men, disposed of some of the rings which he had stolen from the victim to a pawnbroker & obtained a loan of $2,500. The rings were subsequently identified as being the victim's property.
Aged 30 - drug addiction - suffered traumas early in life - history of offending starting from age 16 - assaulted whilst in prison - undertaken drug rehabilitation, also undertaken courses - no evidence of remorse.
Whether sufficient weight given to subjective factors - whether undue emphasis on general deterrence - whether sentence manifestly excessive.
Appeal dismissed.
333

GONZALES, Sef - NSW SC, James J, 17.9.2004
Citation: R v Gonzales [2004] NSWSC 822
Remarks on Sentence.
3 x murder.
The prisoner was found guilty of murdering his mother, father & sister. He was a law student, however, he was not achieving good results. His parents had warned him that unless he improved in his studies, his car would be taken away from him & he would lose other privileges. It was alleged that the prisoner's motive for the killings was to obtain control of his family's fortune.
Sentenced to 3 concurrent terms of life imprisonment.
334

KLH - CCA, 13.9.2004 - 148 A Crim R 515
Grove, Simpson & Shaw JJ
Citation: R v KLH [2004] NSWCCA 312
Sentence appeal.
3 x sexual intercourse with child under 10 (aged 7).
Total of 5*y with a NPP of 3y.
The offences occurred when the victim's mother was away & the victim was sent to stay overnight at the applicant's house. The conduct came to light later when the mother was again to be away & the victim told his mother that he did not want to go back to the applicant's house.
Offender aged 13 - no statistics for persons under 18 - sentence in middle range of sentences for adult offenders - whether sentence manifestly excessive.
Appeal allowed: resentenced to a total of 2y with a NPP of 1y.
335

CAMPBELL, Naethen James - CCA, 13.9.2004
Grove, Simpson & Shaw JJ
Citation: R v Campbell [2004] NSWCCA 314
Conviction appeal.
Offences involving 'rebirthing'of motor vehicles.
The appellant was tried on counts of stealing or, alternatively, receiving 5 motor vehicles. Crown witnesses included offenders involved in allied crimes in respect of these & other vehicles. These witnesses received significant benefits by way of reduction of their own sentences because of their co-operation in seeking to inculpate the appellant. The trial judge restricted the extent of cross-examination of those witnesses concerning the details of their crimes.
The jury found the appellant not guilty on all counts (including a count of receiving one vehicle to which he had pleaded guilty upon arraignment) & returned special verdicts of guilty of "larceny or receiving" in respect of 2 vehicles (on one of these counts he had pleaded guilty to receiving). The trial judge's directions to the jury did not convey appropriately that the jury needed to be unanimous in determining that the appellant either stole or received any particular vehicle but they could not say which & the directions left open a special verdict following compromise although one or more jurors may have been satisfied of the proof of stealing or of receiving.
Whether error in preventing appellant from establishing extent of witnesses' crimes & benefits they received - failure to direct that verdicts to be unanimous: R v Nguyen (NSWCCA unreported 20.2.1997).
Appeal allowed: Special verdicts on counts 7,8,9 & 10 set aside & sentences quashed.
336

ANDERSON, Raymond Peter - CCA, 17.9.2004
Sperling & Kirby JJ, Newman AJ
Citation: R v Anderson [2004] NSWCCA 317
Sentence appeal.
Knowingly concerned in the importation of a commercial quantity of cocaine.
14y with NPP of 8y.
The appellant & co-offender returned to Sydney on a flight from LA. Customs officers searched the aircraft on its arrival & found 20 packages of white powder weighing almost 10 kgs. Upon analysis, they were found to contain 7.5 kgs of cocaine. The appellant'ss fingerprints & DNA were found on some of the adhesive tape around the packages.
Appellant had previously appealed against his conviction, however, that appeal was dismissed: seeR v Anderson [2001] NSWCCA 488.
Whether too much emphasis placed on assessment of objective criminality relying on R v Wong & Leung (1999) 48 NSWLR 340 to the exclusion of independent consideration of all relevant factors - whether too great an emphasis placed on total weight of drug rather than actual role of applicant - failure to give proper weight to subjective features.
Appeal dismissed.
337

EAGLESHAM, Glenn William - NSW SC, Barr J, 27.8.2004
Citation: R v Eaglesham [2004] NSWSC 747
Remarks on Sentence.
Murder.
Offender was convicted of the premeditated killing of his wife by cutting her throat.
Offender destroyed evidence of the offence & presented a false alibi to police. He then changed his story & lied on oath.
Aged 33 - not guilty plea - labourer - prior conviction for assault & battery - 3 young children - inability to take responsibility - depression, anxiety - asserted sexual abuse as a child without factual basis.
Sentenced to 20y with NPP of 15y.
338

HALA, Edi (aka BLACK) - CCA, 23.9.2004
Spigelman CJ, Barr & Hoeben JJ
Citation: R v Hala aka Black [2004] NSWCCA 329
Sentence appeal.
Aggravated robbery.
3*y with NPP of 12m.
Applicant, affected by alcohol at the time, approached the 2 victims (youths aged 16 & 17) as they were walking in a street in Sans Souci. He seemed to be harbouring some resentment towards one of the young men (1st victim). He then swung his right arm & struck the 1st victim across the face with the back of his hand. He insulted him & challenged him to a fight. He then asked for a cigarette, but was refused. He asked for the 1st victim's jacket & took out a mobile phone. He said he was just going to look at it, not steal it. Once he got hold of it he said that he was going to keep it. The 1st victim told the applicant that the telephone belonged to the other youth (2nd victim). He told the applicant that he really needed the telephone back. The applicant responded by punching the 2nd victim in the face, knocking him backwards onto a fence. The conversation ended with the applicant threatening to stab both the victims, although there was no suggestion that he was armed or that he intended to carry out his threat.
Aged 19 at time of offence - early guilty plea - disrupted & abusive childhood - diagnosed with ADD - early use of alcohol - contrition - good prospects of rehabilitation - priors - no previous imprisonment.
Whether sentence excessive - setting of NPP - failure to comply with s.44 Crimes (Sentencing Procedure) Act.
Appeal dismissed.
339

BANIC, Radovan - CCA, 23.9.2004
Spigelman CJ, Barr & Hoeben JJ
Citation: R v Banic [2004] NSWCCA 322
Conviction and sentence appeal.
1 x supply methylamphetamine; 1 x supply MDMA (ecstasy).
4y with NPP of 3y.
A security officer in a nightclub in Darlinghurst received a complaint from a patron & stood watching the appellant & his 2 companions for some time. He suspected that they were dealing in drugs & called the police. A number of police attended & 2 of them paid special attention to the appellant & their colleagues to the 2 companions. Appellant was found to be in possession of the above drugs & was arrested.
Aged 31 - long & troublesome criminal history - had twice commenced rehabilitation & had twice relapsed - support of mother & de facto - doubt whether appellant had motivation to cease criminal conduct - impossible to tell whether any prospects of rehabilitation.
Bias of judge - whether miscarriage - whether sentence excessive.
Appeal dismissed.
340

TIRTABUDI, Alvin - CCA, 21.9.2004
Wood CJ at CL, Buddin & Shaw JJ
Citation: R v Tirtabudi [2004] NSWCCA 328
Sentence appeal.
1 x supply 4.56 grams MDMA (ecstasy); 1 x supply 5.42 grams methylamphetamine & 4.2 grams MDMA; + Form 1 offences (custody of knife in public place, 3 x possess prohibited drug).
Total of 3y 8m with NPP of 22m.
Applicant sold drugs to friends for a relatively modest profit in order to finance his own drug habit.
Guilty plea - not entrepreneurial or cynical drug supplier - on bail at time of 2nd offence - good prospects of rehabilitation - no priors.
Whether sentences manifestly excessive - whether special circumstances - fixing of head sentence, NPP.
Appeal dismissed.
341

WEBB, Paul John - CCA, 1.9.2004 - 149 A Crim R 167
Grove, Simpson & Shaw JJ
Citation: R v Webb [2004] NSWCCA 330
Sentence appeal.
Maliciously damage property; possess prohibited firearm (submachine gun); possess prohibited weapon (handcuffs); + Form 1 offences (possess unregistered firearm, not keeping firearm safely, possess ammunition without holding appropriate licence).
Total of 2y 8m with NPP of 16m.
Taking into account pre-sentence custody, the practical effect of the above sentence was that applicant would serve 20m 9d in custody before being released to parole.
Applicant went on a rampage at his girlfriend's home, wielding a submachine gun like a club & destroying property. He told his girlfriend that he was looking for people hiding behind the walls. After a number of hours, police were called. Applicant was shot 5 times by police before finally being subdued. Applicant gave evidence that for 4 years prior to the offences he had been working little & was heavily involved in the use of amphetamines.
Diagnosed as probably suffering from drug-induced psychosis at time of offences - at time of sentencing had made promising progress towards rehabilitation & was employed as a car salesman.
Utilitarian value of guilty plea - relevance of extra-curial punishment - other matters of mitigation for assessment - whether sentence manifestly excessive.
Appeal dismissed.
342

JOHNSTONE, Robert Gary - CCA, 10.9.2004
Mason P, Sully & Sperling JJ
Citation: R v Johnstone [2004] NSWCCA 307
Sentence appeal.
Commercial fraud offences (1 x recklessly make false or misleading statement to induce person to deal in securities; 1 x give false or misleading information to officer of Australian Securities Investments Commission; 18 x being a director, circulate a written statement known to be false with intent to deceive a creditor; + Form 1 offences.
Total sentence of 4y with NPP of 2*y.
Appellant was the finance director of a company. He was responsible for maintaining the company'ss books of accounts in his capacity as a chartered accountant & also assisted with investment decisions. In reliance upon false claims made in a brochure produced by the company & misleading verbal statements made by the appellant & the company'ss other director, investors paid money to the company & a monthly report was distributed to each investor. The appellant obtained a total of $1.9 million through these means.
Aged 33 at time of offences - priors unknown.
Failure of trial judge to explain why a 15% discount rather than a 25% discount for early guilty plea was appropriate - Thomson and Houlton (2000) 49 NSWLR 383 - proviso - discount for assistance to authorities.
Appeal dismissed.
343

STYMAN, Ian Craig - CCA, 10.9.2004
TABER, Peter David
Conviction and sentence appeals.
Murder; aggravated B&E and commit serious indictable offence (robbery).
Each received life imprisonment.
The deceased was a 71 year old woman living alone. Offenders bound & gagged her, then perpetrated the robbery. When they decamped, they left the woman bound & gagged. Ian Styman made a telephone call to the 000 emergency services number some 24 minutes later, however, the emergency services operator failed to relay the message to police. The deceased died from dehydration. See R v Taber; R v Styman; R v Styman[2003] NSWSC 93.
Effect of 000 call - whether trial judge correct in refusing to direct verdicts of acquittal - directions on murder, manslaughter - whether accompanying mental elements correctly stated - whether cause of death should have been left to the jury - whether verdicts unreasonable - whether sentences for aggravated B&E excessive.
Appeals allowed in part: verdicts of guilty of murder quashed; order for a new trial of each appellant upon the charge of manslaughter; provided that Order 3 is subject to the condition that the Crown has liberty to apply within 28 days for orders under s.7(2) of the Criminal Appeal Act 1912 substituting verdicts of guilty of manslaughter, failing which, the order is to take effect; grant leave to appeal against sentences for aggravated B&E and set aside those sentences; direct that proceedings be listed before the Registrar for directions as to the filing of further written submissions and to fix a further hearing for resentencing before the Court.
344

JAMMEH, Abou (aka Baboucar Cham) - CCA, 21.9.2004
Wood CJ at CL, Buddin & Shaw JJ
Citation: R v Jammeh [2004] NSWCCA 327
Sentence appeal.
Armed robbery; robbery; indecent assault
Total of 9y with NPP of 6*y.
While walking home alone at 2am, the victim was approached by the applicant & accused of abusing his friend. He denied this, whereupon the applicant grabbed him, forced him to the ground, pulled his shirt over his head, removed his backpack & hit him on the lip. During a struggle, the applicant took the victim'ss wallet & $10 from his back pocket. He told the victim to accompany him to his friend'ss house to ascertain if he was the person who had abused the friend. The victim hailed a taxi & asked the driver to call the police. More than a year later another male was waiting for a taxi when the applicant approached him. The victim agreed to go to a brothel with the applicant. While at the brothel, the applicant unsuccessfully tried to get hold of the wallet in the victim's trousers. The applicant & the victim travelled back to near where the victim lived. The applicant later found the victim & held a Stanley knife or similar object against his throat, took his watch & tried to take his wallet. A friend of the victim arrived & the applicant left. Months later, a female & the applicant were travelling on a coach from Newcastle to Taree. The victim told to the driver that the applicant had stolen some cigarettes, her mobile phone & her Walkman. The driver stopped & dropped off the victim & the applicant at the Taree police station. The applicant was released without being interviewed. The applicant & the victim argued outside the police station. The victim followed the applicant to a vacant house. The applicant tried to remove her jeans & forced her to the floor. A struggle took place & the victim tried to talk the applicant out of having intercourse with her. He removed her jeans & underwear & his own jeans & lay on top of her without penetrating her, then got off & apologised.
Aged 39 at time of 1st offence - on bail at time of all offences - gambling problem - drugs/alcohol abuse - considerable difficulty adjusting to life in Australia since migrating from Gambia in 1988 - likely to suffer more severely in custody in light of "cultural displacement" - priors (stealing; goods in custody; enter enclosed lands; BE&S; indecent assault; robbery; aggravated sexual assault; escape from lawful custody; hinder police; possess prohibited drug; supply heroin) - previous imprisonment.
Accumulation of sentences - finding of special circumstances not reflected in overall NPP - pre-sentence custody not taken into account.
Appeal allowed: new total sentence of 8y 3m with NPP of 6y 3m.
345

DALLAS, Mark Michael - CCA, 17.9.2004
Sperling & Kirby JJ, Newman AJ
Citation: R v Dallas [2004] NSWCCA 316
Sentence appeal.
1 x sexual intercourse without consent; + Form 1 (indecent assault).
3*y with NPP of 18m.
The applicant was employed in a medical practice as an assistant carrying out minor procedures such as bandaging. He eventually came to act as a general practitioner even though he was not qualified. He treated patients, conducted medical examinations & wrote prescriptions & referrals to specialists. The victim consulted the applicant for treatment for a gynaecological condition. The applicant had previously treated her & her children for various ailments & illnesses. On this occasion, he asked the victim to remove her lower clothing & underwear & conducted an internal vaginal examination involving insertion of a speculum. The Form 1 offence occurred when the victim attended the surgery to have a lump on her breast examined. The applicant carried out a breast examination, including palpating her breasts with his hands. On arraignment the applicant pleaded not guilty to charges of having sexual intercourse without consent & indecent assault. On the day of trial, after the jury had been empanelled, he pleaded guilty to the charge of sexual intercourse without consent on the basis that the indecent assault charge would be taken into account on a Form 1. The proceedings were adjourned & following several further adjournments the proceedings were listed before the sentencing judge some 4 months after the guilty plea. In the meantime, the applicant filed an application in the CCA seeking an extension of time to appeal & a notice of appeal against conviction & sentence. When the matter next came before the sentencing judge, a notice of motion was filed seeking leave to withdraw the guilty plea. The matter was again adjourned & 4 months later the motion was heard & dismissed. Several days later the applicant was sentenced.
Aged 42 at time of offences - no contrition - clinical anxiety & clinical depression in severe range - high suicide risk - good prospects of rehabilitation - special circumstances - priors (falsely advertise/hold self out as a medical practitioner; aid & abet in preparation of false statements; not being a medical practitioner write false certificates) - no previous imprisonment.
Sentencing judge's unduly strict view of applicant's motivation - error in not allowing 10% discount for guilty plea despite months of delay at sentence.
Appeal allowed: resentenced to 3y with NPP of 1y 4m.
346

LEW, Teck Lee - CCA, 21.9.2004
Wood CJ at CL, Kirby & Buddin JJ
Citation: R v Lew [2004] NSWCCA 320
Conviction and sentence appeal.
Accessory before the fact to murder; accessory before the fact to robbery with offensive weapon; accessory before the fact to attempted robbery with offensive weapon.
Total of 15y with NPP of 12y.
The victim was the manager of a tavern where applicant was the supervisor & the 1st co-offender had previously worked. Applicant & the 1st co-offender armed themselves with a metal pole & a knife then entered the tavern, however, when it came to the point of robbing the victim, they abandoned their plan & left the premises. A week later the 1st co-offender & another co-offender, wearing balaclavas & armed with a metal pole, knife & a gun, entered the tavern shortly after the victim arrived there & struck the victim on the back of the head with the metal pole. The victim struggled with them but was eventually killed as a result of a fatal knife wound to the throat & a bullet wound to the back of his head. The offenders stole about $50,000 in cash, then fled. Applicant admitted being an accessory before the fact to the robbery & being aware of the use of the metal pole but claimed to have tried to convince the 1st co-offender not to proceed with the robbery & said he was unaware that the offence might cause serious injury or wounding to the victim.
Aged 34 at time of offences - born in Singapore - large supportive family - father of 2 daughters - continuous employment - priors (AOABH) - no previous imprisonment.
Objective gravity of the crime - culpability of offender where joint criminal enterprise - special circumstances - whether error in not giving reasons for varying from statutory ratio of NPP.
Conviction appeal for the accessory before the fact to robbery charge allowed: verdict of acquittal entered.
Sentence appeal allowed: sentence for accessory before the fact to murder reduced to 14y with a NPP of 10y (from 14y, NPP 11y).
New total sentence of 15y with NPP of 11y.
347

NGUYEN, Ngoc Anh (aka John Nguyen) - CCA, 27.9.2004 - 149 A Crim R 343
Spigelman CJ, Barr & Hoegen JJ
Citation: R v Nguyen [2004] NSWCCA 332
Crown appeal.
Pervert the course of justice.
1y 10m suspended.
Respondent was a Detective Sergeant with the NSW Police Service. His wife arrived in Sydney on a Vietnamese airliner carrying stolen mobile phones which were discovered by Customs officers. In order to exculpate his wife, respondent organised a scheme whereby a relative of the respondent'ss wife would claim ownership of the phones. The respondent prepared fake documents & receipts & accompanied the relative to Customs premises to claim the phones. Respondent had previously assured the relative that the phones were not stolen. Local police had been investigating the matter & arrested the relative when he presented himself to Customs. He was later charged with receiving stolen property & goods in custody. Respondent then undertook to pay for the relative's legal expenses & encouraged him to plead guilty, assuring him that he would not go to jail. The relative participated in an induced statement & proceedings against him were withdrawn. The sentencing judge held that the offence did not involve corruption or misuse of the respondent'ss position as a police officer & was not motivated by personal gain or profit.
Aged 30 - guilty plea - prior good character - unlikely to re-offend - remorse - offer of reparation - need for strict protection if imprisoned owing to risk of violence from other inmates - loss of career as police officer - no priors.
Error in assessing seriousness of offence as low to mid range - error in holding offence committed in private capacity - Inappropriate weight given to subjective case.
Appeal allowed: resentenced to 1*y PD.
348

PENISINI, Sione - CCA, 29.9.2004
Spigelman CJ, Hidden & Buddin JJ
Citation: R v Penisini [2004] NSWCCA 339
Crown appeal.
Murder.
34y with NPP of 23y.
The offence relates to the killing of Snr Const McEnallay (see R v Penisini, Lagi & John Taufahema [2003] NSWSC 892). Respondent was charged with the above offence, as well as unauthorised use of firearm & attempt carjacking. He entered guilty pleas on all counts & was sentenced to a total of 36y with a NPP of 25y
Murder - whether in the worst category of the offence - whether life sentence appropriate.
Appeal dismissed.
349

JOHNSON, Shane Nathan - CCA, 27.9.2004
Wood CJ at CL, Barr & Hoeben JJ
Citation: R v Johnson [2004] NSWCCA 341
Sentence appeal.
Receive stolen property.
4y with NPP of 2y.
The property consisted of a quantity of jewellery & a knife which the applicant acknowledged having received for the purpose of sale so as to finance the purchase of drugs to feed his habit. At the time of the offence, applicant was on conditional liberty.
Guilty plea - whether utilitarian value properly considered - whether sentence manifestly excessive.
Appeal dismissed.
350

SAMUELU, Samuel - CCA, 23.9.2004
SAMUELU, Timothy
Sully, Buddin & Shaw JJ
Citation: R v Samuel Samuelu; R v Timothy Samuelu [2004] NSWCCA 331
Crown appeals.
Samuel Samuelu: 1 x robbery armed with dangerous weapon (rifle); 1 x malicious wounding with intent to prevent lawful apprehension; 3 x robbery armed with offensive weapon (screwdriver/sledgehammer); + Form 1 (3 x carried in conveyance without consent; 2 x rob in company; 4 x robbery armed with offensive weapon; 1 x robbery armed with dangerous weapon).
Total sentence of 5y 6m with NPP of 4y 6m.
Aged 20 at time of offences - brutal treatment at hands of very violent father - father imprisoned for number of years for stabbing respondent's mother - schooling to year 10 - lengthy history of drug/alcohol abuse - fairly regular employment in unskilled positions - extensive criminal history - on parole at time of offences - special circumstances - previous imprisonment.
Timothy Samuelu: 1 x malicious wounding with intent to prevent lawful apprehension; 1 x robbery armed with dangerous weapon (rifle); 1 x malicious wounding with intent to prevent lawful apprehension; 3 x robbery armed with offensive weapon (screwdriver); + Form 1 (3 x carried in conveyance without consent; 2 x rob in company; 4 x robbery armed with offensive weapon); 1 x robbery armed with dangerous weapon).
Total sentence of 7y with NPP of 5y.
Aged 19 at time of offences - brutal treatment at hands of very violent father - father imprisoned for number of years for stabbing respondent's mother - considerable learning difficulties/behaviour problems in school - left school year 8 - left home age 13 - intermittent casual work - significant history of alcohol/drug abuse from early age - at age 16 fathered child who subsequently died of SIDS - later fathered another child who lives with child's mother - on parole at time of offences - reasonable prospects of rehabilitation - special circumstances - priors - previous imprisonment.
Both respondents entered guilty pleas.
Significance of general deterrence when sentencing young offenders for armed robbery - objective gravity of offences - whether sentences manifestly inadequate.
Appeals allowed in part, respondents sentenced as follows:
Samuel Samuelu: total term of 9y with NPP of 6y.
Timothy Samuelu: total term of 9y 6m with NPP of 6y 6m.
351

ROSE, Robert Matthew - CCA, 22.9.2004
Spigelman CJ, Barr & Hoeben JJ
Citation: R v Rose [2004] NSWCCA 326
Crown appeal.
BE&S; + Form 1 offences (3 x dispose of stolen property; 3 x make false statement to pawnbroker).
Respondent pleaded guilty to the above offences. The sentencing judge deferred passing sentence for 1 year for the purposes of rehabilitation: s.11 Crimes (Sentencing Procedure) Act.
Respondent broke into the home of the victim by smashing a window. He stole approximately 40 compact discs, a video recorder, a camera, a walkman & a pair of earrings. Later that day, he sold the video recorder & compact discs to a pawnbroker, producing identification & signing a document saying he was the owner. Respondent'ss fingerprints were found on the pieces of broken glass. Before bail, he had served 4 months, 7 days of pre-sentence custody on protection without access to drug & alcohol rehabilitation.
Aged 28 & on 2y suspended sentence at time of offending - drug addiction from age 14 - genuine remorse/contrition - resolve to rehabilitate & remain drug free - obtained bail without representation - failed attempts at rehabilitation - long criminal history - priors - previous imprisonment.
The Crown submitted that the sentence was manifestly inadequate & did not reflect the seriousness of the offence, the respondent'ss previous record & that he was on conditional liberty at the time of offending.
Appeal dismissed.
352

BAKER - HC, 1.10.2004 - 223 CLR 513;78 ALJR 1483
Citation: Baker v The Queen [2004] HCA 45
Murder; conspiracy to murder.
Life imprisonment (x 2).
This was an appeal from a decision of the CCA of NSW which dismissed an appeal from a decision of Greg James J of the SC of NSW declaring that the appellant was not eligible for a determination under s.13A of the Sentencing Act 1989 (NSW) as it stood at the relevant time: see R v Baker [2001] NSWSC 412; see also R v Baker (CCA, unreported 23 May 1994).
Constitutional law (Cth) - Judicial power of Commonwealth - Vesting of federal jurisdiction in State courts - Act empowering State court to determine MT & AT for persons serving an existing sentence of life imprisonment - Act prohibiting such determination in respect of prisoners the subject of a non-release recommendation by original sentencing judge unless "special reasons" justified making the determination - Whether incompatible with State court being a suitable repository of judicial power of the Commonwealth.
Constitutional law (NSW) - Separation of powers - Power of State Parliament to confer function incompatible with exercise by State court of judicial power of the Commonwealth - Where class of affected persons closed & known - Whether judicial discretion preserved - Whether judicial function prescribed by Act compatible with State court being a suitable repository of judicial power of the Commonwealth.
Appeal dismissed.
353

TURNER, Janine May - CCA, 27.9.2004
Wood CJ at CL, Barr & Hoeben JJ
Citation: R v Turner [2004] NSWCCA 340
Sentence appeal.
AOABH; detain with intent to hold for advantage (aggravated).
Total of 8y with NPP of 3*y.
The victim was a 15 year old boy living in the applicant's home. On the day of the offences, the applicant phoned her boyfriend & asked him to interrogate the victim as to his alleged mistreatment of her cats. The boyfriend arrived with a baseball bat & promptly set about assaulting the victim by striking him with the baseball bat, his fists & by kicking him, all the time demanding that he answer various questions. The applicant & the boyfriend then went to a service station & purchased some black masking tape, returned & used the tape to secure the victim to a chair. The boyfriend continued to assault the victim, while the applicant kept questioning him. Every time the applicant asked a question, the boyfriend assaulted the victim. The assaults took place over a number of hours & the victim suffered extensive injuries, requiring him to stay in hospital for 4 days.
Exceptional circumstances - dependent children - whether sentence excessive.
Appeal dismissed.
354

GULLIFORD, Leslie John - CCA, 30.9.2004 - 148 A Crim R 558
Spigelman CJ, Wood CJ at CL, Howie J
Citation: R v Gulliford [2004] NSWCCA 338
Conviction appeal.
B&E dwelling house & commit serious indictable offence (attempt have sexual intercourse without consent).
3y 6m with NPP of 2y 8m.
Appellant was found not guilty on counts 1 & 2 and guilty on the above count, which was in the alternative to count 2.
Appellant & complainant had previously been in a relationship. On the night of the offence, appellant phoned the complainant twice, saying he wanted to see her, asking her to visit his house. She refused, took her phone off the hook & went to bed. Appellant then went to the complainant's house, she let him in & after the act that led to the 1st count took place, complainant went next door to the house of her sister & brother-in-law. The brother-in-law returned with the complainant to her house where they found her son confronting the appellant, who was told to go home. On the way home, appellant had an accident in his car, which left him with a head injury. Later that night, he returned to the complainant's house & entered the premises through the back door. He pushed the complainant onto the bed & got on top of her, holding her wrist. Her son & brother-in-law, on hearing the dogs barking, ran to the complainant's house. Complainant was somewhat inconsistent in her evidence as to whether the appellant had penetrated her or did not get beyond an attempt to do so by the time they arrived.
Offence unknown to law - requisite elements - intent, aggravation, consent, onus of proof, intoxication, bias of juror - insufficient and/or erroneous directions.
Appeal dismissed.
355

BROWN, Jarrod Christopher - CCA, 30.9.2004 - 148 A Crim R 268
TRAN, Nam Duong
Mason P, Sully & Sperling JJ
Citation: R v Brown & Tran [2004] NSWCCA 324
Conviction appeals.
2 x BE&S in circumstances of aggravation (being in company); robbery in company; malicious damage.
Trans also faced a charge of larceny of MV.
Where a person summoned to attend for jury service mistakenly attends court on an earlier date & is included in the jury - whether trial, verdicts & conviction a nullity - effect of non-compliance with mandatory provisions of the Jury Act 1977 - meaning & scope of the saving provisions.
Appeals allowed: verdicts set aside, convictions quashed.
356

LADOCKI, Peter Ferenc - CCA, 1.10.2004
Mason P, Sully & Sperling JJ
Citation: R v Ladocki [2004] NSWCCA 336
Conviction and sentence appeal.
Ongoing supply of heroin; supply heroin.
Total of 8y 6m with NPP of 7y.
The Crown case depended upon the evidence of a police informant who had effected 3 controlled purchases of the drug at appellant's car yard. These purchases were conducted under an 'Authority to Conduct a Controlled Operation'obtained from the Deputy Commissioner of Police under the Law Enforcement (Controlled Operations) Act 1997. Appellant argued that the failure of the police to disclose that the informant was addicted to heroin in the application for the Authority meant that the evidence had been obtained in consequence of an impropriety or of a contravention of an Australian law. It was submitted that the trial judge had erred in exercising his discretion under s138 of the Evidence Act 1995 to admit the evidence.
Wrongful admission of evidence - whether sentences manifestly excessive.
Appeal dismissed.
357

FALLS, Michael Arthur - CCA, 1.10.2004
Dunford, Adams & Howie JJ
Citation: R v Falls [2004] NSWCCA 335
Sentence appeal.
1 x attempt detain for advantage (sexual advantage).
8y with NPP of 6y.
Applicant followed a 12 year old girl on her way home from school. He placed a hand on the side of her neck & tried to guide her towards the driveway of a block of units, saying 'Don't do anything stupid, come with me, I want to show you something'A short time later, the young girl screamed, whereupon she & the applicant ran away from each other. The applicant was arrested 4 days later. At sentence, he denied intending to detain the complainant for sexual gratification. This was inconsistent with the agreed statement of facts & suggested that he was seeking to qualify or withdraw his guilty plea. The Crown prosecutor acknowledged that the applicant had relieved the complainant of giving evidence. In his remarks on sentence, the sentencing judge did not make reference to the evidence provided by the applicant & imposed sentence on the basis of the agreed facts.
Aged 33 at time of offence - guilty plea - mother died shortly before offence - on strict protection, no opportunity to enrol in counselling programmes - on parole for sex offence against young girl at time of offence - remorse - continuous use of cannabis despite attendance for drug & alcohol counselling - priors (assault, sexual assault, theft, B&E, aggravated sexual intercourse without consent) - previous imprisonment.
Remarks on sentence - whether error - whether sentence excessive.
Appeal allowed: resentenced to 6y with NPP of 4y 6m.
358

WJI (DPP (NT) v) - HC, 6.10.2004 - 219 CLR 43
Citation: Director of Public Prosecutions (NT) v WJI [2004] HCA 47
Sexual offences - Sexual intercourse without consent - Appeal from decision of CCA of NT upholding trial judge's directions - Accused acquitted of sexual intercourse without consent under s.192(3) Criminal Code (NT) - Trial judge's directions to jury stated that Crown should prove, as element of offence, that accused intended to have sexual intercourse with complainant without consent - Whether trial judge's directions correct - Whether in relation to ss.192(3) & 31(1) Criminal Code 'act' constituted sexual intercourse or sexual intercourse without consent.
Appeal dismissed.
359

GARNER, Andrew Glen - CCA, 1.10.2004
Dunford, Barr & Hoeben JJ
Citation: R v Garner [2004] NSWCCA 343
Sentence appeal.
2 x armed robbery (knife); + Form 1 offence (use offensive weapon with intent to prevent lawful apprehension).
Total sentence of 3y with NPP of 18m.
The 1st victim was robbed of $400, the 2nd was robbed of $185 & a quantity of cigarettes. Both victims were shopkeepers.
Aged almost 22 at time of offences - guilty plea - drug use - gambling problem - long-standing psychological problems.
Whether appropriate weight given to medical condition - exceptional circumstances - whether sentence excessive.
Appeal dismissed.
360

BALA, Nexhmedin - CCA, 5.10.2004
Grove, Simpson & Shaw JJ
Citation: R v Bala [2004] NSWCCA 345
Sentence appeal.
1 x accessory after the fact to BE&S; 5 x receive stolen property; + Form 1 (3 x goods in custody).
Total of 2y with NPP of 15m.
A police task force investigating burglaries in affluent areas identified appellant & 2 co-offenders, one being appellant's brother. The other co-offender was employed by an insurance company & used his access to confidential information to select premises without alarm systems where valuables were kept. Following surveillance of residential premises occupied by appellant & his brother, a search warrant was executed & a large quantity of stolen property seized.
Aged 38 at time of offences - guilty plea - refugee from Kosovo - no priors.
6 months, 16 days pre-sentence custody - sentence dated from imposition of sentence - incompatibility of term with finding of special circumstances & pre-sentence custody - whether sentence excessive.
Appeal allowed: resentenced to total of 18m with NPP of 10m.
361

RANDELL, Luke Anthony - CCA, 30.9.2004
McALISTER, Mark Bradley
Wood CJ at CL, Kirby & Buddin JJ
Citation: R v Randell and McAlister [2004] NSWCCA 337
Sentence appeal.
Randell: Armed robbery - guilty plea - 6y with NPP of 4y.
McAlister: Armed robbery - guilty plea - 5y with NPP of 3y.
This was a 'home invasion'type offence. Applicants went to the home of a man who was known to one of them & found the female victim there. Randell made inquiries about the man & was told that he was not at home. They then left but returned later to obtain drugs & money, although there was no clear evidence that any drugs were actually on the premises. Randell was disguised with a beanie or balaclava & had a knife. He knocked on the door, then forced his way into the premises & produced the knife. McAlister, who was not armed, entered the premises at the same time. Randell brandished the knife, scaring the victim who cried out for help, whereupon both applicants left. Randell managed to steal a mobile phone which he sold for a small amount of money. McAlister did not steal any property.
Randell: Aged 20 at time of offence - dysfunctional upbringing - priors (BE&S, enter enclosed lands, larceny, drive whilst disqualified, breach parole - previous imprisonment (PD).
McAlister: Aged 18 at time of offence - limited insight & remorse - low intelligence -criminal record includes similar offence, dealt with in Children'ss Court - subject to bond at time of offence - priors - no previous imprisonment.
Comparative sentences - joint criminal enterprise - other home invasion cases provide little guidance - co-offender knowingly joined in robbery that was planned & entered premises on 2nd attempt - whether appropriate to discount his objective criminality - guilty pleas - whether insufficient weight given to utilitarian value.
Appeals allowed, sentences reduced:
Randell: 5y 3m with NPP of 3y 6m.
McAlister: 4y with NPP of 2y 6m.
362

PATISON, David Phillip - NSWCCA, 15.7.2003 143 A Crim R 118
Giles JA, Bell J, Carruthers AJ
Citation: R v Patison [2003] NSWCCA 171
Crown appeal.
Multiple offences of corrupt conduct by a police officer, including supply heroin, solicit bribe, act with intent to pervert course of justice, knowingly take part in supply of cannabis, solicit corrupt reward; + Form 1 matters.
Total of 7y with NPP of 5y.
While serving as a Detective Senior Constable, respondent engaged in systematic corruption over almost a year, including failing to seize or disclose all prohibited drugs or cash located during the execution of search warrants, soliciting & receiving bribes from offenders, sharing bribes with other police officers, reducing the amount of drugs discovered so that offenders who paid bribes were charged with lesser offences, arranging contacts between drug dealers to facilitate their trafficking & allowing a drug dealer to continue supplying heroin in return for weekly payments.
Aged 40 at time of 1st offence - very serious degree of criminality - early guilty plea - contrition/remorse - repaid money obtained from illegal activities - unlikely to re-offend - active in community - retribution - entire sentence to be served in strict protection - assistance to authorities - special circumstances - no priors.
General deterrence - whether sentence manifestly inadequate.
Appeal dismissed.
363

BEZAN, Motjaba - CCA, 13.10.2004 - 147 A Crim R 430
Wood CJ at CL, Buddin & Shaw JJ
Citation: R v Bezan [2004] NSWCCA 342
Crown appeal.
1 x import trafficable quantity heroin.
5y 6m with NPP of 3y 3m.
Upon his arrival at Sydney Kingsford Smith Airport on a flight from Kuala Lumpur, respondent's luggage underwent examination by Customs. They examined a cardboard bag containing a stone/marble chessboard packed in foam. Customs officers examined the chessboard, which was found to have cracks across its back & had a strong smell of glue. The chessboard was ion scanned & x-rayed, then opened. Inside was a plastic bag containing brown powder. The weight of the brown powder was 490 grams. Upon analysis, the powder tested positive to heroin & was found to have a purity of 53%. The net pure weight of the heroin was 260 grams. Respondent pleaded not guilty & claimed to have no knowledge of the heroin inside the chessboard. He said he bought the chessboard in Pakistan as a gift for his son.
Aged 44 at time of trial - Australian citizen born in Iran - came to Australia as a political refugee - divorced - son lives with ex-wife - employed part-time as a wrestling coach.
Whether effect properly given to consequences of repeal of s.16G Crimes Act - seriousness of offence - whether sentence objectively inadequate - role in importation - comparable sentences passed in like cases - whether sentence manifestly inadequate.
Appeal allowed: respondent resentenced to 8y with NPP of 5y.
364

BALEISUVA, Alfred - CCA, 13.10.2004
Dunford, Barr & Hoeben JJ
Citation: R v Baleisuva [2004] NSWCCA 344
Sentence appeal.
BE&S.
6y with NPP of 3y.
Applicant & 3 other persons went in a stolen car to a body repair shop. After breaking into the premises, they stole 2 motor vehicles, then fled when a security vehicle arrived. Applicant drove one of the stolen vehicles. Highway patrol police subsequently observed 3 vehicles travelling at high speed & pursued 2 of them. At an intersection, the vehicle driven by the applicant collided with the stolen vehicle in which offenders had originally travelled to the body repair shop. Applicant was trapped in the driver's seat & was arrested by police & taken to hospital. Sledgehammers & bolt-cutters were removed from both the damaged vehicles. Although applicant entered a guilty plea at the earliest opportunity, he refused to identify the other offenders out of fear for his life.
Aged 22 at time of offence - difficulty in resisting peer pressure - psychological profile of being quiet, compliant, impressionable - in a stable & caring relationship - priors include larceny, malicious damage, carried in conveyance without consent, armed robbery - previous imprisonment.
Failure to identify co-offenders - relevance to contrition & rehabilitation - appropriateness of questions by sentencing judge - whether sentence excessive.
Appeal allowed: resentenced to 5y with NPP of 2y 6m.
365

PIPES, Richard Frederick - CCA, 8.10.2004
Studdert, Greg James & Bell JJ
Citation: R v Pipes [2004] NSWCCA 351
Sentence appeal.
1 x obtain financial advantage by deception.
3y with NPP of 2y (+ release recognizance in the sum of $2,000 upon being released to parole).
Applicant was a senior employee with the Department of Veteran Affairs. It was within his power to recommend one-off payments to ex-servicemen facing financial difficulty. Applicant managed to divert 20 of these types of payments to his own benefit, utilising the accounts of persons who might have been able to receive such payments. The total amount he obtained was $155,644.
Aged 53 - separated from wife - 2 teenage children - alcoholic - long history of alcohol abuse - gambled away all stolen money - attended AA for approx 18 months - no priors.
Recognizance release order - sentencing discretion - whether sentence manifestly excessive.
Appeal dismissed.
366

HOWARD, Kevin John - CCA, 12.10.2004
Spigelman CJ, Grove J, Smart AJ
Citation: R v Howard [2004] NSWCCA 348
Sentence appeal.
2 x sell unauthorised firearms.
3y 6m with NPP of 2y.
The offences were committed at Beerwah, Queensland where an undercover police officer from NSW met the applicant with a view to obtaining pistols. The applicant sold 2 pistols to the undercover police officer (1st charge) & subsequently offered to sell 2 other pistols, one with a silencer, to the same police officer (2nd charge). It was expressly stated in each of the charges to which the applicant pleaded guilty that the applicant knew that the pistols would be taken to NSW. The applicant was not a licensed firearms dealer in either State. When search warrants were executed at applicant's residence & place of business, firearms were found matching the description of those he had offered to sell. A number of other unregistered firearms were also located during the search & these were the subject of charges pursued in the State of Queensland.
Utilitarian value of guilty plea - whether sentence excessive.
Appeal dismissed.
367

FAKHREDDINE, Hassan - CCA, 13.10.2004 - 147 A Crim R 422
DOUDAR, Ahmad
Spigelman CJ, Grove J, Smart AJ
Citation: R v Fakhreddine; R v Doudar [2004] NSWCCA 354
Sentence appeals.
Fakhreddine: Supply commercial quantity of heroin - 12y with NPP of 8y.
Doudar: Supply commercial quantity of heroin - 9y with NPP of 6y 6m; 1 x maliciously inflict GBH -3y 9m with NPP of 4m, commencing at expiry of NPP for the supply offence. Doudar sought leave to appeal only against the sentence for the supply heroin charge.
Applicants were the principals of a highly organised drug distribution business in a Sydney suburban area. The above offences came to light as a result of controlled operations by undercover police officers. Both applicants entered guilty pleas.
Level of criminality - calculation of sentence - parity - utility of statistics/cases - whether sentences excessive.
Appeals dismissed.
368

PORTER, Christopher Mark - CCA, 13.10.2004 - 61 NSWLR 384; 149 A Crim R 112
Spigelman CJ, Barr & Hoeben JJ
Citation: R v Porter [2004] NSWCCA 353
Stated case.
Judgment on question of law.
Goods in custody.
Proper construction of words 'in accordance with their tenor'in s.4(1) Commonwealth Places (Application of Laws) Act - relationship between s.12 Interpretation Act 1987 (NSW) and s.527C Crimes Act 1900 - whether s.527C Crimes Act requires stealing or unlawful obtaining to occur in NSW.
Question answered: 'No'.
369

DEMIROZ, Muammer - CCA, 27.9.2003
Wood CJ at CL, Barr & Hoeben JJ
Citation: R v Demiroz [2004] NSWCCA 334
Sentence appeal.
2 x BE&S; 1 x drive motor vehicle without consent of owner.
Total of 5y with NPP of 3y 9m.
Applicant stole a Toyota Tarago parked outside its owner's house, then broke into another house & stole a handbag containing credit cards, cheque-books & other personal items, a set of keys & a TV receiver. He put the stolen items into the MV & drove to yet another house, broke in & stole a guitar, a DVD player, a tripod, a video recorder & a Polaroid camera. He placed these items in the motor vehicle, however, as he was about to drive away, neighbours, who had been watching him, ran up & stopped him. There was a struggle & the applicant received some injuries. The neighbours called the police. Applicant was taken to hospital & was found to be suffering from concussion. He was eventually taken to the police station & charged. He declined to be interviewed.
Aged almost 45 at time of offences - offences committed to raise money to buy drugs - addicted to drugs since school days - long history of offending - served many periods of imprisonment.
Whether erroneous findings of fact in considering prospects of rehabilitation - whether error in considering special circumstances - whether sentence excessive.
Appeal dismissed.
370

ZHANG, Shuzhi - CCA, 30.9.2004
Wood CJ at CL, Hislop J, Smart AJ
Citation: R v Zhang [2004] NSWCCA 358
Sentence appeal.
Malicious wounding with intent to do GBH.
8y with NPP of 5y.
Applicant is a Chinese national who was involved in business dealings with the victim. The victim owed the applicant a lot of money & the applicant came to Australia to sort out this problem with the victim. The victim allowed the applicant to stay at his home. There was some conflicting evidence between the versions given by the applicant & the victim, however, an altercation ensued. At some point, the victim stabbed the applicant. The applicant armed himself with a meat cleaver & pursued the victim into the street & attacked him with it.
Aged 40 at time of offence - early guilty plea - contrition - 25% discount - married with 1 child - university education - had lectured at university - had established furniture business exporting goods to Australia - had undergone surgery for stomach cancer - no English - no relatives in Australia - liable for deportation at expiry of sentence - remorse - good prospects of rehabilitation - no priors.
Whether insufficient consideration given to extent of provocation involved - whether sentence excessive.
Appeal allowed: resentenced to 7y with NPP of 4*y.
371

ADLER, Stephen Rodney - CCA, 15.10.2004 - 149 A Crim R 378
Mason P, Grove & Barr JJ
Citation: Adler v Director of Public Prosecutions [2004] NSWCCA 352
Application for permanent stay of criminal proceedings.
Appellant was a director of HIH Insurance Ltd. He was arraigned by the Cth DPP on an indictment containing 5 counts of offences under the Corporations Act 2001 (Cth) involving stock market manipulation & the making of false or misleading statements in relation to securities.
Before James J, appellant sought an order that the criminal proceedings be permanently stayed on the ground that they were an abuse of process because of exposure to double jeopardy & submitted that as a result of earlier proceedings brought by ASIC under the civil penalty provisions of the Act, he had already been punished for the conduct which is now the subject of the criminal charges brought by the DPP. The Crown submitted that there were differences between the elements of the civil causes of action & the elements of the criminal offences & that the 2 sets of proceedings had different purposes. The Crown placed reliance on s.1317P of the Act which permits criminal proceedings to be started for conduct that is substantially the same as conduct constituting a contravention of a civil penalty provision, even where a declaration of contravention has already been made. The application for a permanent stay was refused.
In the CCA, appellant sought leave to appeal from James J's orders, submitting that his Honour erred in his reasoning in a number of respects. Reliance was placed on The Queen v Carroll (2002) 213 CLR 635 as authority for the proposition that commonality of facts, & not elements of the offence, are relevant to the rule against double jeopardy. Submissions were also received as to the validity of s.1317P.
Appeal dismissed.
372

DT - CCA, 5.10.2004
McClellan AJA, Grove & James JJ
Citation: R v DT [2004] NSWCCA 349
Crown appeal.
Count 1: Armed robbery + Form 1 offences (2 x rob in company, carried in conveyance without consent) - 18m suspended upon entering GBB for 18m;
Count 2: Robbery in company - 500h CSO.
Respondent, aged just under 18 at the time, was part of a group of other youths & older men who engaged in serious criminal activity which occurred in a single day at the Liverpool Catholic Club. A group of approx 8 offenders disguised themselves & entered the club. At least 2 of them were armed with machetes. They committed numerous offences & respondent was arrested shortly thereafter.
Due to lengthy delays, respondent appeared for sentence almost 2 years 9 months after the offences had been committed. He was first brought before a court 2 days after the commission of the offences. The instant hearing in the CCA was the 38th listing in a variety of courts since then.
Unusually long delays in matters being dealt with - specific delay in instituting appeal - rehabilitation in the interim - favourable subjective features - no priors.
Whether sentence inadequate - necessity to return matter to primary sentencing court - discretion when dealing with Crown appeals - whether sentence manifestly inadequate.
Appeal against sentence on 1st count + Form 1 matters dismissed.
Appeal against sentence on 2nd count allowed: sentence quashed by reason of its invalidity - matter remitted to DC to be dealt with in accordance with law.
373

SPITERI, Mark - CCA, 20.9.2004 - 61 NSWLR 369
Grove, Simpson & Shaw JJ
Citation: R v Spiteri [2004] NSWCCA 321
Conviction appeal.
1 x aggravated sexual assault; 1 x sexual intercourse without consent.
Both offences involved the same complainant.
Complainant & friends had been drinking at a hotel. During the evening, appellant & complainant introduced themselves to one another. When the hotel closed at midnight, complainant & others agreed to go to a party nearby. Appellant, complainant & complainant's female friend walked in the direction of the party. The friend was delayed answering a telephone call. Appellant cross the road to the outskirts of a golf course, then called to the complainant to help him find a shoe he said he had lost. When the complainant joined him, he lunged at her, pushed her to the ground, removed her clothing & inserted the large end of a glass bottle into her vagina. After some time, he loosened his own clothing, sat astride her body & raped her vaginally. He then rose, adjusted his clothing & walked away. Complainant immediately contacted her friends & told them what had happened. She was then taken to hospital & examined. One of her friends described her as being hysterical.
Prosecution duty of disclosure - cross-examination of appellant on credit - s.104 Evidence Act - splitting prosecution case - case in reply by Crown where accused person raised a new factual issue - s.106 Evidence Act - whether miscarriage of justice.
Appeal dismissed.
374

KOOSMEN, Scott Robert - CCA, 30.9.2004
Wood CJ at CL, Hislop J, Smart AJ
Citation: R v Koosmen [2004] NSWCCA 359
Sentence appeal.
Drive under the influence of intoxicating liquor occasioning death; + 2 Form 1 offences.
5y with NP of 2y 6m.
Applicant & his close friend had been drinking for some hours at a hotel before being asked to leave because of making unpleasant comments to & about the female licensee. They drove away in applicant's car with the applicant driving & his friend sitting in the front passenger seat. They travelled for some distance before the car rolled for about 20 metres & came to rest on a grass verge. The deceased had been ejected from the vehicle & died at the scene. There was evidence of excessive drinking, excessive speed, violent & erratic driving.
Aged 33 at time of offence - alcohol problem - binge drinking - cannabis & amphetamine use - major depressive disorder - post-traumatic syndrome - divorced - father of 3 young sons - unemployed at time of offence - strong bond with his mother who is caring for his sons - prior motor vehicle offences, malicious damage, contravene AVO, maliciously destroy or damage property - no previous imprisonment.
Whether sentence excessive.
Appeal dismissed.
375

HOGAN, Phillip Raymond - NSW SC, Barr J, 15.10.2004
Citation: R v Hogan [2004] NSWSC 959
Remarks on Sentence.
Manslaughter by unlawful and dangerous act.
Offender was originally charged with murder. He entered a plea of not guilty of murder but guilty of manslaughter, which the Crown accepted in full discharge of the indictment.
Offender & deceased were married & had 2 daughters. The marriage was turbulent. Deceased was diagnosed as suffering from depression overlying a personality disorder. She was a chronic user of Diazepam. Despite the fact that her psychiatrist would not prescribe it because of it being addictive, she managed to get her hands on the drug from some other source. It was discovered that she was one of a small minority of people who have an adverse reaction to the drug. Rather than sedating her, it drove her into fits of anger. Deceased was on a disability pension & the offender a carer's pension. Deceased was given to episodes of attention-seeking behaviour & would harm herself. She had also tried to hang herself. On occasion, she inflicted injury upon herself & told others that the offender had done it. After a series of arguments, it was decided that the offender should take the deceased to a hostel until she began behaving herself again. Before leaving the house, the deceased consumed some Diazepam. About 1* hours later, offender took the deceased to hospital. She was in a coma. Offender told police she had jumped out of the car while it was travelling at about 100 kph. He later told police that the deceased had simply stepped out of the car while it was travelling at between 50 & 60 kph. The offender was sentenced on the basis that the deceased had opened the passenger door & attempted to leave the vehicle & that instead of immediately stopping the vehicle, offender had accelerated, hoping that the door would swing closed.
Sentenced to 4y with NPP of 2y 3m.
376

MAKISI, Manuel Arnean - CCA, 22.9.2004 - 151 A Crim R245
Spigelman CJ, Barr & Hoeben JJ
Citation: R v Makisi [2004] NSWCCA 333
Conviction and sentence appeal.
1 x rob with wounding (in company); 2 x aggravated robbery (corporal violence used).
Total sentence of 6y with NPP of 4y.
Appellant was one of a group of men who assaulted 3 men early in the morning in Burwood Park. They robbed 2 of the men & wounded a 3rd. The offenders had been drinking in the park since the previous evening.
Whether error in directions on intoxication - requisite intent - raising of good character in part - parity - whether sentence excessive.
Appeal dismissed.
377

MEHER, Chanranjit - CCA, 21.10.2004
Wood CJ at CL, Buddin & Shaw JJ
Citation: R v Meher [2004] NSWCCA 355
Conviction appeal.
Wound with intent to murder; assault; use pistol without being authorised by licence or permit; possess pistol without being authorised by licence or permit.
An AVO had been obtained against appellant after his wife left with his 2 eldest children, followed by a 3rd child. They were subsequently divorced & the youngest daughter remained with her father. She left after alleging that he had sexually assaulted her, a charge of which he was later acquitted at trial. There was bitterness on both sides: appellant believed that his ex-wife had fraudulently disposed of joint property & the expense of defending the sexual assault allegations had made him financially unstable. The children & ex-wife believed the sexual assault accusations & resented having been disinherited by the appellant. The Crown alleged that on the day in question, appellant had deliberately entered the Sikh Temple at Revesby, knowing his family would be there. He carried a dark backpack containing a Ruger firearm. Documents contained in this bag included a will & citizenship papers. One of the victims (applicant's son) said that his father took out the gun & fired a shot at his mother as she ran, injuring her in the leg. When appellant & his son wrestled over the gun, the latter was elbowed in the stomach & the gun went off a 2nd time. No other witnesses saw the incident, although there was testimony from witnesses who heard the sound of shouting & shots. The son & 2 other children testified that their father had made previous threats. No forensic evidence was retrieved from the gun or from the hands or clothing of the appellant.
Trial judge's summing up to jury unfairly balanced in favour of prosecution - error in judge including factual arguments in favour of Crown not addressed on by either Crown or defence - trial miscarried by reason of judge's frequent references to appellant as a liar and that as a result his testimony might be unreliable.
Appeal allowed: new trial ordered.
378

HAIDER, George - CCA, 15.10.2004
McClellan AJA, Studdert & James JJ
Citation: R v Haidar [2004] NSWCCA 350
Sentence appeal.
Attempt possess trafficable quantity cocaine - guilty plea.
7y with NPP of 4*y.
Australian Customs officials contacted the Australian Federal Police about a package that arrived from Brazil which they believed contained cocaine. An AFP Physical Evidence team examined the package which contained a computer, secreted in which were 498 grams of white powder (391.7 grams pure cocaine). A controlled delivery was made & applicant's co-offender accepted the package & signed a receipt for it. The police kept the co-offender under surveillance & he was seen to put the package in the boot of a car & drive it to where he had a meeting with the applicant. The package was then transferred into the boot of the car the applicant was driving. Police subsequently arrested both the applicant & the co-offender.
Whether sentence manifestly excessive having regard to quantity of drug rather than actual offence - relevance of motive for commission of offence to pay off debts owed to supplier for own drug habit.
Appeal dismissed.
379

TRAN, Thi Ngoc - CCA, 19.10.2004
Barr & Buddin JJ, M.W. Campbell AJ
Citation: R v Tran [2004] NSWCCA 366
Sentence appeal.
Count 1: malicious wounding in company; + Form 1 offence (carry cutting instrument) - 2y with NPP of 12m;
Count 2: AOABH in company - 6m FT (concurrent with 1st count).
Each sentence was ordered to commence on the same day. At time of appeal, the sentence for count 2 had expired & the NPP in respect of count 1 was due to expire on 19.1.2005.
The above charges arose out of the one incident. Applicant became involved in a brawl involving her male partner & his ex-boss, during which applicant struck the victim with a pencil. She then went to a nearby shop & purchased a knife. The victim took out a multi-tool from his pocket. He opened the 2 knife blades & held it behind his back. The applicant lunged at him with her knife, there was a verbal exchange, following which the victim folded up the blades of his multi-tool. A struggle took place, during which all 3 fell to the ground. It was during the course of this incident that the victim received 2 lacerations to his left hand & one to his head, requiring sutures. Applicant said she became involved in order to assist her partner & that she had also been concerned to protect her young daughter.
Aged 24 at time of offences - early guilty pleas - Vietnamese - came to Australia in 1988 after having spent time in a refugee camp in Thailand - mother of 2 children - father of children died in a car accident 3 years prior to above offences - intermittent work in menial labouring jobs - no priors.
Appeal dismissed in respect of count 2.
Appeal allowed in respect of count 1: resentenced on that count to 15m with NPP of 9m. Applicant released to parole on 19.10.2004 (date of appeal).
380

HUMPHRIES, Phillip John - CCA, 19.10.2004
Barr, Buddin & Campbell JJ
Citation: R v Humphries [2004] NSWCCA 370
Sentence appeal (extension of time).
2 x indecent assault upon child under 16; + Form 1 (2 x indecent assault).
Total of 2*y with NPP of 18m.
All offences involved the same complainant, who is applicant's daughter. All 4 offences were committed when complainant was aged between 8 & 10. These were not isolated offences. They were part of a series of assaults or indecent acts which applicant committed upon the complainant over a period of 5 years, beginning when she was approx 8 years old & ending when she was about 13 years old. When aged 18, the complainant told her mother what the applicant had done. The mother confronted the applicant, who admitted his misconduct. The complainant first reported the offences to police when she was aged 30. The applicant was arrested & charged a little more than 8 months later. The sentencing judge took that delay into account in imposing sentence.
Delay - whether sufficient weight given in imposition of sentence - whether sentence excessive.
Extension of time granted.
Appeal dismissed.
381

GARDINER, Tracey - CCA, 20.10.2004
Spigelman CJ, Grove J, Smart AJ
Citation: R v Gardiner [2004] NSWCCA 365
Sentence appeal.
Drive whilst under the influence of a drug causing death.
4y with NPP of 2*y.
The applicant was the driver of a prime mover with attached trailer travelling towards Sydney on the Hume Highway. As he came around a left-hand bend, he collided with the rear of a Land Rover utility travelling in the same direction & in the same lane. The force of the impact caused the Land Rover to leave the road, killing the driver.
Excessive speed - blood samples contained 0.11 milligrams per litre methamphetamine & less than 0.02 milligrams per litre amphetamine.
Aged 42 at time of appeal - commercial truck driver seeking to buy his own truck - country & interstate truck driver for many years - record limited to traffic offences - generally person of good character.
Psychological distress since accident - suffered mild stroke - remorse - fact finding - whether sentence excessive.
Need to have regard to combination of circumstances in assessing moral culpability - Jurisic and Whyte not exhaustive.
Appeal dismissed.
382

TAOUK, Simon - NSW SC, Barr J, 22.10.2004
Citation: R v Taouk [2004] NSWSC 981
Remarks on Sentence.
2 x murder.
Offender shot his wife & her brother.
Aged 55 at time of killings - employed in building industry - ill health - strong support from children - priors - previous imprisonment (2y PD).
Sentenced to total of 18y with NPP of 15y.
383

KEIR, Thomas Andrew - NSW SC, M.W. Campbell AJ, 22.10.2004
Citation: R v Keir [2004] NSWSC 964
Judgment.
Murder.
This was the 3rd trial for the above offence and followed upon the CCA decision in R v K [2003] NSWCCA 406.
Accused's first wife disappeared. It was the Crown case that the accused had murdered her & buried her body beneath the foundations of the house. The deceased was a devoted mother & there was evidence that as from the evening during which she disappeared, she had not sought access to her son, nor had she contacted her parents or used her bank account. Some bones were found which were the subject of DNA evidence.
Domestic murder - old bones - DNA - relationship evidence - prison informers.
Provocation.
Finding: Guilty of murder.
384

SO, Tony - CCA, 25.10.2004
McClellan AJA, Studdert & James JJ
Citation: R v So [2004] NSWCCA 362
Sentence appeal.
Supply commercial quantity heroin; supply commercial quantity cocaine.
Total of 13y with NPP of 10*y.
Above offences arose from the one ongoing enterprise. Applicant was one of 2 offenders sentenced for their involvement in drug supply offences. The sentencing judge found that the co-offender had a less significant role than the applicant & imposed a lesser sentence upon him. The offences came to light as a result of a Kings Cross Drug Unit operation focussed on the activities of an organised drug syndicate that was selling heroin & cocaine in the Kings Cross, Darlinghurst, Surry Hills & Redfern areas. Applicant was found to be the principal of a sophisticated enterprise distributing small quantities of heroin & cocaine to buyers. His guilt was established in substantial part from telephone intercepts.
Whether sufficient discount given for guilty pleas - NPP more than 75% of head sentence - prior good character - relative youth - prospects of rehabilitation - special circumstances - whether sentence manifestly excessive.
Appeal dismissed.
385

MM - CCA, 25.10.2004
McClellan AJA, Grove & James JJ
Citation: R v MM [2004] NSWCCA 364
s.5F appeal by Crown.
Admissibility of evidence.
Multiple sexual offences against child under 10 (act of indecency, indecent assault, sexual intercourse).
All offences involved the same complainant, who was the respondent's stepdaughter. All offences were alleged to have occurred when the complainant was aged 6, 7 & 8 years.
Whether admissions made to Probation and Parole officer improperly obtained - whether evidence that accused collected & viewed child pornography & had fantasised about sexual acts with children inadmissible tendency evidence.
Appeal allowed: orders made by Judge Maguire rejecting evidence be vacated.
386

PLEVAC, Josef - NSW SC, James J, 14.10.2004
Citation: R v Plevac [2004] NSWSC 916
Application for redetermination of life sentence.
Murder.
Applicant was found guilty of the murder of his wife, who died as a result of full thickness burns to 90% of her body after being doused in petrol & then set alight. Applicant & his wife had been estranged at the time, with the wife & young child living in an apartment block in Parramatta. Before she died, the deceased said she was unable to identify her attacker, but did say that it was neither her husband nor her boyfriend. There was, however, evidence of the applicant being in the vicinity at the time of the attack.
Objective seriousness of offence - lack of contrition - continued to maintain innocence - prospects of rehabilitation.
Application for redetermination of sentence allowed: resentenced to 25y with NPP of 19y.
387

IGLESIAS, Isidro - NSW SC, Hidden J, 13.10.2004
Citation: R v Iglesias [2004] NSWSC 944
Remarks on Sentence.
Murder.
The deceased died as a result of being stabbed by the offender. The stabbing was witnessed by a man who summoned help, but by the time police & ambulance officers arrived, the deceased had died. The offender was arrested the following day. On a previous occasion, the offender & the deceased had had an argument, during which the deceased punched the offender.
Guilty plea - stabbing in anger - some provocation, but significant lapse of time between provocative conduct & killing.
Sentenced to 15y with NPP of 11y.
388

KING, Mathew James - CCA, 20.2.2004 59 NSWLR 515; 144 ACrimR 405
Grove J, Smart AJ, Davidson AJ
Citation: R v King [2004] NSWCCA 20
Conviction appeal.
Armed robbery.
11y with NPP of 8y 3m.
The Crown case was that, whilst armed with an offensive weapon (screwdriver), appellant entered a newsagency & robbed the victim of a quantity of cigarettes & cash. He admitted taking the money & cigarettes but denied threatening the victim & challenged the assertion that he was armed. His said that what happened was no more than an unarmed snatch & grab. He did not deny he was guilty of larceny. His defence counsel urged the jury to find larceny. When the issue of directions for alternative verdicts was raised, both defence counsel & the Crown prosecutor informed the judge that robbery & larceny were alternative verdicts to the charge of armed robbery. The trial judge ruled that the appellant would have had to be charged on the indictment to entitle the jury to bring back a verdict of robbery. The jury were not directed that they could convict of robbery if they were not satisfied beyond reasonable doubt that the appellant was armed with an offensive weapon.
Directions - error in refusing to leave lesser offence of robbery - there was a "viable case" on the evidence to establish lesser offence - alternative verdicts - Pemble v The Queen (1971) 124 CLR 107 not limited to murder.
Appeal allowed: new trial ordered.
389

ABOU-CHABAKE, Andrew - CCA, 28.10.2004 - 149 A Crim R 417
Mason P, Levine & Kirby JJ
Citation: R v Abou-Chabake [2004] NSWCCA 356
Conviction and sentence appeal.
Murder.
20y with NPP of 15y.
Applicant entered pleas of not guilty to the above offence & to a charge of attempted murder. The jury returned a verdict of guilty to murder & not guilty to the attempted murder (see R v Abou-Chabake [2003] NSWSC 125).
Deceased was driving his motor vehicle in Campsie in the company of his uncle, who was seated beside him in the front passenger seat. Shortly after having entered Frederick Street from Moore Street, a person approached the MV & fired 7 shots from a handgun as the MV passed by. Three of the shots entered into the MV. One of the shots inflicted a superficial wound, grazing the deceased'ss left leg. A 2nd shot travelled through the deceased'ss back, penetrating his heart, aorta & right lung. The deceased died a short time later from these injuries. The deceased'ss uncle was uninjured. Fundamental to the Crown case was whether the applicant had fired the gun.
Fresh evidence - whether tactical decision not to call evidence - whether evidence credible - whether manslaughter open - whether excessive self-defence defence - whether sentence excessive.
Appeal dismissed.
390

KADDOUR, Kalid - CCA, 12.10.2004 - 61 NSWLR 378;148 A Crim R 597
Spigelman CJ, Buddin J, Smart AJ
Citation: R v Kaddour [2004] NSWCCA 361
Interlocutory application for access to certain material that was sealed in an envelope by order of Justice Dunford on 28.7.2004.
Appellant is to appeal against his conviction on certain charges. One of the grounds he seeks to raise on appeal concerns the identity of a juror whom he wishes to allege was a person who knew him & also knew of adverse information regarding his character & reputation.
Circumstances in which identity of juror may be disclosed - proper interpretation of s.68 Jury Act - whether word 'person'includes a court - whether circumstances listed in s.68 are exhaustive.
Disclosure permitted where necessary to establish whether or not there has been a significant miscarriage of justice.
Access granted.
391

McCORMACK, Glen Jeffrey - CCA, 15.10.2004
Grove, Buddin & Hoeben JJ
Citation: R v McCormack [2004] NSWCCA 367
Sentence appeal.
Use offensive weapon (MV) with intent to resist arrest; larceny of MV; possess unauthorised firearm (semi-automatic pistol); + Form 1 (custody of a knife).
Total sentence of 5y 5m with NPP of 4y 2m.
Applicant was also charged with murder, but was found not guilty by direction.
After being released from gaol, applicant lived with his sister & resumed a friendship with a woman who was the mother of his child. The woman had recently given birth to a child fathered by another man (the victim). The applicant assisted the woman during her pregnancy, including caring for her children. There was a history of violence by the victim against the applicant & the woman, including serious assaults on the applicant. The applicant obtained & hid a handgun in the woman's house as a safeguard against further threats of violence from the victim. On the day of the above offences, the victim entered the woman'ss residence, despite her protests. The applicant armed himself with the handgun & during a confrontation with the victim, shot & killed the victim. The applicant fled the scene & returned the weapon to the person from whom he had acquired it. He stole a car & attached false registration plates to conceal the fact that it was stolen. Two weeks later, while applicant was waiting at traffic lights, police positioned their vehicle to hinder his progress. Police officers commenced to alight from their vehicle, whereupon applicant accelerated his MV. He was unable to clear the police vehicle & collided with it, injuring one of the police officers. The police officer was treated by an ambulance officer for a laceration & was off duty for 3 days.
Aged 34 and on parole at time of offences - substantial prior record - previous imprisonment.
Partial accumulation - special circumstances - whether sentence excessive.
Appeal dismissed.
392

LABROOY, Craig Derek - CCA, 21.10.2004
Hulme & Buddin JJ, M.W. Campbell AJ
Citation: R v Labrooy [2004] NSWCCA 371
Enter dwelling in circumstances of aggravation.
Total sentence of 5y with NPP of 3y.
Applicant entered a 1st floor unit via the balcony by climbing up from the ground floor in the early hours of the morning. The applicant'ss ex-girlfriend & the male owner of the unit were asleep in the bedroom. The ex-girlfriend's sister & her 2 children were asleep in the lounge-room. The applicant entered the bedroom, placed both his hands around the throat of the sleeping male & squeezed his throat, causing him to choke. The victim managed to get to his feet & during the ensuing struggle the applicant bit his ear, tearing away a portion of it. The wound began to bleed profusely. The struggle continued & it was not until the light was switched on that the couple recognised the applicant. The victim freed himself from the applicant & confronted him. The applicant then left the unit. Police were called & the victim was taken by ambulance to hospital were he underwent surgery. The severed portion of his ear was recovered, but an attempt to reattach it was unsuccessful.
Aged 32 at time of offences - affected by alcohol - not normally a person who abused alcohol - suffering depression, anxiety, emotional turmoil at the time - prior good character - diligent & hardworking employee - father in bad health - need for applicant to care for him - prospects of rehabilitation - no priors.
Effect of incarceration on 3rd party - special circumstances - whether sentence excessive.
Appeal allowed: resentenced to total of 4y with NPP of 2y.
393

PRICE, Terrance James - NSW SC, Barr J, 23.9.2004
Citation: R v Price [2004] NSWSC 868
Remarks on Sentence.
Manslaughter.
The deceased died after being stabbed by the offender. The deceased & the offender were having an argument when the deceased punched the offender in the head. The deceased then produced a knife from his shorts & stabbed the deceased. The deceased was a drug dealer who supplied heroin to the offender.
Sentenced to 8y with NPP of 5y.
394

FARDON - HC, 1.10.2004 78 ALJR 1519
Citation: Fardon v Attorney-General for the State of Queensland [2004] HCA 46
On appeal from the Supreme Court of Queensland.
The issue in this matter was whether the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) is valid. The suggested ground of invalidity was that, contrary to the requirements of Ch III of the Constitution, the Act involves the SC of Queensland in the process of deciding whether prisoners convicted of serious sexual offences should be the subject of continuing detention orders on the ground that they are a serious danger to the community. The contrariety is said to lie in the attempt by the Queensland Parliament to confer on the SC a function which is incompatible with the Court'ss position, under the Constitution, as a potential repository of Federal jurisdiction, the function being repugnant to the Court'ss institutional integrity. The repugnancy was claimed to be similar to that identified in Kable v Director of Public Prosecutions (NSW) 189 CLR 51.
Constitutional law (Cth) - Judicial power of Commonwealth - Vesting of Federal jurisdiction in State courts - Act empowering State court to order continuing detention of persons convicted of serious sexual offences after expiry of their sentence where there is an "unacceptable risk" of the prisoner committing a serious sexual offence in the future - Whether criterion for order of continuing detention devoid of content - Whether order for continuing detention to protect the community an exercise of judicial power - Whether powers conferred by Act on State court incompatible with State court being a suitable repository of judicial power of the Commonwealth - Whether powers conferred by Act on State court compromise the institutional integrity of State court.
Constitutional law (Qld) - Powers of State Parliament - Separation of powers - Act empowering State court to order continuing detention of persons convicted of serious sexual offences after expiry of their sentence where there is an "unacceptable risk" of the prisoner committing a serious sexual offence in the future - Whether a law - Whether incompatible with State court being suitable repository of federal judicial power - whether public confidence in integrity or impartiality of judiciary compromised.
Matter B104 of 2003: Appeal dismissed.
Matter B105 of 2003: 1. Declare that section 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) is not beyond the legislative power of the State of Queensland.
2. Remit the case to the Court of Appeal for hearing and determination of the remaining issues on the appeal to that Court.
395

LEWIS, Daniel Stephen - CCA, 5.11.2004
Giles JA, Buddin J, Smart AJ
Citation: R v Lewis [2004] NSWCCA 383
Sentence appeal.
Robbery in company.
3y 2m with NPP of 2y 2m.
The victim & a colleague were on their way to the bank to deposit the weekend takings from the nightclub where they worked when they were confronted by the applicant & his companion. The applicant threatened the victim, claiming to have a blood-filled syringe & saying that he was HIV positive. The applicant's companion prevented the victim's colleague from going to the victim's aid. The applicant was apprehended some short time later. His companion has never been brought to justice & the applicant refused to provide any information about him, saying that he feared for his safety should he do so. The total amount taken was $61,764.60. All but $150 was recovered.
Aged 26 at time of sentence - guilty plea, although not at earliest opportunity - drug & alcohol abuse - good prospects of rehabilitation - supportive background - previous good character - no priors.
Applicability of guideline judgment - R v Henry (1999) 46 NSWLR 346 - duress - whether sentence manifestly excessive.
Appeal dismissed.
396

ATTARD, Heather May - CCA, 1.11.2004
Giles JA, Buddin J, Smart AJ
Citation: R v Attard [2004] NSWCCA 376
Sentence appeal.
Count 1: supply commercial quantity methylamphetamine - 4y with NPP of 3y;
Count 2: supply methylamphetamine - concurrent sentence of 3y with NPP of 2y 9m;
Count 3: ongoing supply of methylamphetamine (supplied on 3 or more occasions within 30 day period) - 5y with NPP of 3y 9m (partially cumulative).
Total sentence of 6y with NPP of 4y 9m.
Count 1: Police executed a search warrant upon applicant's premises & found 266.42 grams of methylamphetamine & $2,900 in cash in her bedroom, a large quantity of resealable plastic bags containing traces of methylamphetamine & a set of electronic scales. Applicant was charged with supplying the drugs by reason of the deeming provisions of the Drug Misuse and Trafficking Act 1985.
Count 2: 1* months later, police found a further quantity of methylamphetamine in applicant's home.
Count 3: Police obtained a warrant to intercept calls made on applicant's mobile phone. Those calls were monitored for a 30 day period. Transcripts revealed that she was supplying methylamphetamine to truck drivers on a regular basis. When applicant was arrested, police found $4,160 in cash in her home.
Aged 47 at sentence - guilty plea - long-standing respiratory problems including asthma & emphysema - oldest son suffers paranoid schizophrenia & has extensive criminal record - applicant has no priors.
Relevance of strength of Crown case to plea of guilty - utilitarian value of guilty plea - accumulation of sentences - special circumstances.
Appeal allowed in part: Counts 1&2 - sentences confirmed;
Count 3 - NPP reduced to 3*y.
397

LO, Yeung - CCA, 1.11.2004
OUYANG, Jui Giles JA, Buddin J, Smart AJ
Citation: R v Lo; R v Ouyang [2004] NSWCCA 382
Crown appeals.
2 x defraud Commonwealth.
Respondents each received 18m home detention, plus $30,000 fine for each offence.
Respondents, who are husband & wife, were directors of an autoglass supply company, the principal activity of which was the wholesaling of automotive windscreens. Over a period of 2 years 3 months, 30 shipments of windscreens were imported from China. Although respondents had been correctly invoiced by the supplier & had paid those invoiced amounts, they had obtained false invoices from the supplier for customs declaration purposes. The false invoices were ultimately relied upon in preparing declarations to the Australian Customs Service in order to obtain clearance of the windscreens. Customs duty & GST were calculated on the amounts on the false invoices. When customs duty & GST were ultimately calculated on the correct invoiced amounts, there was a shortfall of $167,268.35 in customs duty & $96,423.81 in GST, totalling $263,692.16. When respondents were confronted about the discrepancies almost 2 years later, they co-operated fully. A bank loan was taken out & the underpaid customs duty & GST were paid in full.
Sole carers of 2 young children aged 3 years & 1* years - no relatives in Australia.
Deterrence - whether sentences manifestly inadequate.
Appeal dismissed.
398

DAWES, Daniella - CCA, 5.11.2004
Dunford, Barr & Hoeben JJ
Citation: R v Dawes [2004] NSWCCA 363
Crown appeal.
Manslaughter.
5y GBB.
Respondent was initially charged with murder following the death of her 10 year old autistic son. Her plea to manslaughter, which was accepted by the Crown, was based on substantial impairment of her capacity due to an abnormality of mind arising from a major depressive illness. The child was first diagnosed as suffering from autism when he was about 18 months old, however, his parents were unable to obtain appropriate intervention until he was about 6 years old, at which time they were advised that his progress had been jeopardised by the delay.
Full admissions - early guilty plea - attempted suicide after son's death - marriage breakdown - family problems - respondent's stepfather indecently assaulted her daughter - daughter had self-harmed - respondent's father died after long illness - disputes with stepmother - grandmother taken to hospital seriously ill, although subsequently recovered - respondent receiving treatment for depression & taking prescribed medication.
Whether sentence manifestly inadequate.
Court's discretion - double jeopardy - Crown's failure to seek custodial sentence at first instance - respondent's progress in rehabilitation since given bond.
Appeal dismissed.
399

ROMANO, Vicent Joseph - CCA, 4.11.2004
Dunford, Adams & Howie JJ
Citation: R v Romano [2004] NSWCCA 380
Sentence appeal.
Multiple offences of inducing children to participate in child prostitution; attempt to pervert course of justice.
Total sentence of 13y 9m with NPP of 11y.
Applicant induced two children, one aged 13 years & the other 15 years, to participate in acts of child prostitution & to hand over to him much of the money paid to them by their customers. When these crimes came to the attention of police & the applicant was charged, he solicited a person who was an undercover police officer to injure or kidnap the girls in order to prevent them from giving evidence against him.
Accumulation of charges - significance of utilitarian discount for guilty pleas where accumulating sentences - significance of prior good character - special circumstances where accumulating sentences.
Appeal allowed: resentenced to total of 11y 3m with NPP of 8y.
400

ARNOLD, Bradley Scott [No.2]- CCA, 2.11.2004
Wood CJ at CL, Adams & Kirby JJ
Citation: R v Arnold [No.2] [2004] NSWCCA 323
Application seeking orders to correct error in sentencing dates.
For details of case, see R v Arnold [2004] NSWCCA 294.
Error in sentencing dates corrected.
401

ALLER, Noeline Marie - CCA, 5.11.2004
Hulme & Buddin JJ, MW Campbell AJ
Citation: R v Aller [2004] NSWCCA 378
Crown appeal.
Defraud Commonwealth; obtain financial advantage by deception.
2y suspended sentence conditional upon entering into recognizance to be of good behaviour for 5y.
Respondent received a number of Social Security payments in her own name as well as receiving a number of payments in another name.
Aged 77 - long history of ill-health - suffers from a variety of illnesses, some of which cause severe pain - lives with 40 year old invalid son in Housing Commission house - sole carer of invalid son.
Impact of imprisonment of mother on invalid son - whether suspended sentence justified - importance of general deterrence - whether sentence manifestly inadequate.
Appeal dismissed.
402

SELSBY, Kenneth William - CCA, 9.11.2004
Hodgson JA, Hulme & Hidden JJ
Citation: R v Selsby [2004] NSWCCA 381
Conviction appeal; and
Crown appeal.
Multiple sexual assaults upon minors (act of indecency; sexual intercourse).
Total sentence of 8y with NPP of 5*y.
There were 2 separate trials involving 2 complainants (a girl & a boy). The complainants were under the ages of 10 & 16 at the time of the offences.
The children's mother was involved in a relationship with the appellant at the time the sexual offences were committed upon them. The mother took an active part in the sexual assaults. The young boy was aged about 9 when he was first sexually assaulted & the young girl was aged about 6 or 7 when she was first sexually assaulted.
The children's mother faced trial & was found guilty on a number of counts. She was sentenced to a total of 9y 7m with a NPP of 7y 2m. On appeal, that total was reduced to 8y with a NPP of 5*y: see R v JMP [2003] NSWCCA 369.
Conviction appeal: evidence of complaint - evidence of alleged assaults - probative value - cross-examination - prior consistent statement.
Conviction appeal dismissed.
Crown appeal: whether sentence manifestly inadequate.
Crown appeal dismissed.
403

SUBRAMANIAM - HC, 10.11.2004
Citation: Subramaniam v The Queen [2004] HCA 51
On appeal from the NSW CCA: see R v Subramanian [2002] NSWCCA 372.
Appellant was charged with 2 counts:
(1) give false evidence in DC proceedings with intent to pervert course of justice (not guilty verdict); &
(2) make false statutory declaration with intent to pervert course of justice (guilty verdict).
3y GBB.
Appellant falsely swore a statutory declaration that she was the driver of a vehicle owned by her solicitor employer that was photographed by a red-light camera whilst proceeding through a red light. Appellant had agreed with the solicitor to make the false declaration that she was the driver.
Unfitness to be tried - Attorney-General directed that a special hearing be conducted pursuant to the Mental Health (Criminal Procedure) Act (NSW) 1990 - application for stay of proceedings based on appellant's medical condition - evidence of a covertly taped conversation between appellant & another person admitted - whether hearing conducted pursuant to Mental Health (Criminal Procedure) Act should have been more readily stayed than ordinary criminal hearing - whether trial judge erred in choosing not to exclude covertly taped recording allegedly containing admissions said to be produced in derogation of appellant's freedom to choose to speak to police.
Compliance with s.21(4) Mental Health (Criminal Procedure) Act - ill-health.
Appeal allowed: new trial ordered on 2nd count in the indictment.
404

PARKES, Damien - CCA, 5.11.2004
Hodgson JA, Hulme J, Smart AJ
Citation: R v Parkes [2004] NSWCCA 377
Conviction appeal and application for leave to appeal against sentence.
2 x improper use of position to gain advantage; + Form 1 (2 x improper use of position to gain advantage).
Total 12m FT.
At the time of sentence for the above offences, appellant was serving a term of 5y with a NPP of 3y for other fraud offences. The sentencing judge imposed an aggregate FT of 12m consecutive on the earlier sentence & he fixed a single NPP of 4y.
Appellant was an officer in control of a company purporting to operate as a merchant bank. He improperly authorised payments of $10,000 & $13,000 from this company to cover an overdraft of a trust incurred for the deposit on the purchase of a house for his estranged wife & their 4 children. Appellant signed & authorised both cheques. On settlement, he authorised & signed a cheque from the same company for $145,980.85 as part of the settlement monies & a further cheque for $16,555 to pay stamp duty. There was no loan contract or agreement to repay the funds. None of the advances were reported to the directors. None of the monies advanced have been recovered.
Aged 44 at time of offences - priors (fraud & dishonesty) - previous imprisonment.
Plea of guilty - application to withdraw plea dismissed by DC judge - principles applicable on appeal.
Conviction appeal dismissed.
Leave to appeal against sentence refused.
405

NGUYEN, Phuoc Giau - NSW SC, Hidden J, 15.11.2004
Citation: R v Nguyen [2004] NSWSC 1067
Remarks on Sentence.
Murder; shoot with intent to murder.
Both offences were committed during the course of the same incident. The deceased & his friend were together at a hotel the same time as the offender & 2 of his associates. There was no evidence that the offender & the deceased knew each other, however, there was evidence that the deceased's friend knew the offender, but it was not clear how well or in what circumstances. One of the offender's associates flicked a cigarette butt at the deceased's friend, which led to an argument between the friend & the associate. The other 3 then became involved & the argument escalated into a violent exchange. A little later, the deceased & his friend left that area & went to a gaming lounge. Minutes later, the offender & his 2 associates entered the gaming lounge & the offender confronted the deceased & his friend. The offender then drew a handgun from his clothing & shot the deceased twice, once in the stomach & once in the lower back. He then shot the deceased's friend 3 times, wounding him in the right shoulder, left hip & left thigh. The offender was restrained by his associates & all three fled from the hotel. The deceased, who was lying mortally wounded on the floor, pulled a handgun from his clothing & handed it to a witness, asking him to 'get him back'for him. The witness took the gun to the men's toilet & placed it behind a toilet bowl. It was later recovered by police, who found the magazine still fully loaded. The murder weapon was never found. The deceased died from his wounds later that morning. His friend underwent hospital treatment for approx 1 week.
Aged 24 at offences - 'disturbing'criminal record - on parole at time of above offences: see R v Phuoc Nguyen [1999] NSWCCA 207 - born & raised in Vietnam - father left family when offender 3 years old - family very poor - migrated to Australia with mother & 4 siblings after completing primary school - attended high school & left at end of Year 9 - wanted to work to support mother, felt he had endured poverty for too long & wanted a better life - some unskilled employment - began associating with unemployed youths using illicit drugs & began using drugs himself, although drugs not a major problem for him - became involved in criminal activity through this association.
Sentence: Total of 22y with NPP of 16*y (shoot with intent to murder - 12y; murder - 20y, NPP 14*y).
406

CHEN, Pei Lin - CCA, 25.10.2004
McClellan AJA, Studdert & James JJ
Citation: R v Chen [2004] NSWCCA 369
Sentence appeal.
Aggravated BE&S (in company).
4y with NPP of 2*y (special circumstances found).
The sentence was backdated to commence on 6.11.2002.
Applicant is an illegal immigrant & will return to China upon his release from prison.
On 21.11.2001, in company with his co-offender, applicant entered a home & stole 4 gold rings, $1,400 in cash, one prepaid telephone card, a watch & a Medicare card belonging to the occupant. Applicant was not charged in relation to this offence until a year later. On 4.12.2001, he was charged with 53 offences, including goods in custody, aggravated B&E and commit serious indictable offence in company; 2 x conspiracy to commit unspecified offence; B&E with intent (steal). Applicant remained in custody from 5.12.2001 to 5.9.2002 when he appeared for sentence. He was sentenced to 5 days' imprisonment dating from 4.12.2001 in respect of the goods in custody charge. None of the other matters were pursued. On 6.9.2002, applicant was transferred to the Villawood Detention Centre. He was charged with the instant offence on 6.11.2002. On 28.1.2003, he was transferred to protective custody at Silverwater. He was committed for trial on 24.4.2003 & entered a plea of guilty on 2.9.2003.
Aged 37 - Chinese national - one of 8 children - educated to Chinese equivalent of HSC - some experience operating small businesses - chronic gambling problem.
Whether error in failure to take into account or have proper regard to time spent in custody - whether failure to properly apply totality principle - whether sentence manifestly excessive.
Appeal dismissed.
407

DODD, Alan William - CCA, 2.11.2004
Barr & Buddin JJ, M W Campbell AJ
Citation: R v Dodd [2004] NSWCCA 374
Sentence appeal.
BE&S (aggravated). 8y with NPP of 5y.
Applicant broke into a house & stole a bum bag, a black purse, credit cards, personal papers & $4,500. The circumstance of aggravation was that he knew that there was someone inside the house at the time.
Aged 18 at time of offence - Aboriginal - guilty plea - deprived childhood, marred by violence & alcohol.
Whether sentence excessive.
Appeal allowed: resentenced to 5y with NPP of 2*y.
408

BRETT, Adam Eric - CCA, 27.9.2004
Wood CJ at CL, Barr & Hoeben JJ
Citation: R v Brett [2004] NSWCCA 372
Sentence appeal.
Maliciously inflict GBH with intent to cause GBH; malicious wounding.
Total of 10y with NPP of 7y.
Applicant pleaded guilty to the above offences. The maliciously inflict GBH with intent was in the alternative to causing GBH with intent to murder.
Contrary to the terms of an AVO, applicant entered the home of his former de facto partner at night. He armed himself with a filleting knife (21cm blade) & stabbed the victim in the chest, abdomen, left wrist & head, resulting in a hemothorax, collapsed lung & damage to the transverse colon. The victim also suffered head injuries as a result of the applicant kicking her, as well as a compound fracture of the left wrist. The injuries sustained required a number of surgical operations. The malicious wounding offence was committed upon the former de facto's male partner.
Aged 33 at time of offences - guilty plea - priors (5 x assault; assault & rob; 2 x AOABH; maliciously inflict ABH; 2 x larceny; 2 x mid-range PCA; 2 x offensive conduct; 5 x railway offences) - previous imprisonment.
Poor legal representation - matters not placed before court - 10% discount for guilty plea - claimed was told he would receive 25% discount - mental health - general deterrence - whether sentence excessive.
Guilty plea to alternate charge not to be regarded as late - strength of Crown case irrelevant in assessing utilitarian value of plea.
Appeal allowed: resentenced to 9y with NPP of 6y 3m.
409

DAVIES, Glenn John - CCA, 21.9.2004
Wood CJ at CL, Kirby & Buddin JJ
Citation: R v Davies [2004] NSWCCA 319
Sentence appeal.
1 x aggravated B&E and commit serious indictable offence (AOABH); 1 x malicious damage to property.
Total of 4y 9m with NPP of 3y 3m.
Appellant & 2 male companions (one his son) spent part of the day drinking. They discussed a missing credit card belonging to appellant'ss de facto wife. The card had been used to withdraw money from her account & the 3 men decided they knew the woman (the victim) who was responsible. Appellant armed himself with a block of wood & his co-offenders armed themselves with a cricket bat & a baseball bat, then went to the suspect's home. The woman was at home with her 9 year old son & 17 year old male boarder. Hearing the sound of breaking glass, the woman went to the front door where she was confronted by the 3 armed men who entered the house, then proceeded to smash her property. Her son & the young man fled the house. The woman was then struck across the forehead & began bleeding profusely. She retreated up the hallway & the 3 men followed, demanding to know what she had done with the card. The woman denied any wrongdoing. The 3 men continued to physically attack her with their weapons as she retreated into the kitchen. They also smashed the stereo & a number of windows in the kitchen. A small refrigerator was knocked over & struck the woman. All 3 men started punching her. She was dragged out of the house onto the front lawn. The cricket bat had broken & one co-offender stood over the woman, interrogating her about the money with the splintered remains of the bat. The other co-offender pulled his companion from the woman, who ran inside the house. The men then left. Police & an ambulance arrived. Police arrested the appellant & his co-offenders shortly afterwards. The victim had an extensive number of bruises to her back & side, a wound to the head near the bridge of her nose which required 3 sutures & her left wrist was bruised & swollen.
Aged 40 at time of offences - on s.9 bond at the time - some expression of remorse - priors (8 x driving offences; 2 x use offensive language; 2 x assault; contravene ADVO; attempt unlawful entry; criminal damage; unlawfully on premises) - no previous imprisonment.
Strength of Crown case - whether error in taking into account - standard NPP - whether more lenient sentence warranted.
Appeal dismissed.
410

BADANJAK, Josip - CCA, 25.10.2004
Wood CJ at CL, McClellan AJA, Smart AJ
Citation: R v Badanjak [2004] NSWCCA 395
Sentence appeal.
Murder.
16y with NPP of 12y.
Applicant pleaded guilty to the murder of his wife: see R v Badanjak [2001] NSWSC 1041. There was a long history of violence on the part of the applicant due mainly to his resentment over his wife's emerging independence & her complaints about his excessive drinking. He had been convicted of an assault on his wife in 1983 & had committed a number of breaches of AVO's. There had been periods of separation followed by resumption of co-habitation. The deceased died as a result of being repeatedly stabbed, the immediate cause of death resulting from 2 stab wounds to the chest, which pierced her heart, & 2 stab wounds to the neck, which severed her jugular vein. This was a frenzied attack as indicated by the large number of additional knife wounds to the deceased's chest, arms & head, which were apparent at post mortem examination. The sentencing judge found that the murder was premeditated. About 2 hours before the murder, the applicant told an acquaintance that his wife wanted him to move out of their home & said that he was returning home to kill her & his daughter. Applicant had informed another person 2 days prior to the murder that he intended killing his wife if she persisted with her plan to make him leave the home.
Whether special circumstances - whether discount should have been given due to offender's ill health - whether appropriate discount given for guilty plea.
Appeal dismissed.
411

HA, Hong Thai - CCA, 11.11.2004
Giles JA, Buddin J, Smart AJ
Citation: R v Ha [2004] NSWCCA 386
Crown appeal.
Supply trafficable quantity prohibited drug (15 grams pseudoephedrine).
15m PD with NPP of 9m.
Respondent's car was stopped by police after he had made a number visits to various pharmacies & purchased tablets. A search revealed that he had 840 pseudoephedrine-based tablets in his possession. The evidence did not support any suggestion that the respondent was a dealer or manufacturer. A search of his home revealed nothing suggesting any chemical process occurring at his home or any indicia of drug dealing. The respondent was described as a pseudo-runner, purchasing the tablets & then on-selling them. In his summing-up, the trial judge told the jury, without objection, that the real issue in the case was whether or not respondent knew that the tablets contained pseudoephedrine or a prohibited drug.
Almost 26 at time of offence - born & brought up in Vietnam - happy & supportive upbringing - permanent resident of Australia - married with 2 children - good character evidence - hardworking - devoted family man - capacity to express himself & use the English language in any functional sense practically non-existent - priors - serving a sentence of PD at time of supply offence.
Whether sentence manifestly inadequate.
Appeal allowed: resentenced to 2y 3m with NPP of 18m, to be served by way of PD.
412

WHELAN, Andrew Thomas - CCA, 29.10.2004
McClellan AJA, Adams J, Smart AJ
Citation: R v Whelan [2004] NSWCCA 379
Sentence appeal & Crown appeal.
Dangerous drive occasioning GBH.
2y suspended sentence.
The offender was riding a motor cycle & the victim was his pillion passenger. When approaching an intersection the offender braked to avoid a car turning into the intersection. The motor cycle fell on its side, slid across the road & collided with the car. Both offender & his pillion passenger received serious injuries & were hospitalised. At the time of the accident, offender had a blood alcohol reading of 0.122, the bike was unregistered & uninsured & the offender was unlicensed. There was witness evidence that at the time of the accident, the car was traversing the intersection at a very low speed. At trial, the Crown relied heavily on offender's previous record for driving offences which spanned a number of years.
Aged 27 at time of offence - significantly affected by sudden death of mother several years before the accident - remorse - priors (speeding; negligent driving; unlicensed driver; low range PCA).
Whether sentence manifestly inadequate.
Crown appeal dismissed.
Sentence appeal: Failure to fix NPP - no reason given.
Sentence appeal allowed: resentenced to suspended sentence of 2y with NPP of 12m.
413

KISELJEV, John - NSW SC, Dunford J, 21.11.2004
Citation: R v Kiseljev [2004] NSWSC 1030
Remarks on Sentence.
Murder.
At the age of 64, the prisoner married a 22 year old Russian woman (the deceased). It was a marriage of convenience which was suggested by the deceased in order for her to obtain permanent residency & ultimately become an Australian citizen. The plan was to live together as husband & wife for 2 years to satisfy the Immigration Department. Before the marriage, the prisoner & the deceased had gone out socially a few times & had sexual intercourse once before the deceased moved into the prisoner's house. After the marriage, sexual intercourse ceased & the couple occupied separate bedrooms. The relationship deteriorated over a period of a few months & police were called out on 2 occasions prior to the killing. A post-mortem examination of the deceased revealed multiple & extensive injuries to her head & body, as well as severe bruising to the head & body, a broken nose, her 4th, 5th & 12th ribs on the right side were broken, her bowel was bruised, there was a haemorrhage around the left kidney & a small amount of patchy subarachnoid haemorrhage to the brain. The cause of death was blunt trauma to the head & trunk, and asphyxia. Psychiatric opinion was that on the night of the killing, the prisoner was overwhelmed by feelings of frustration & anger towards the deceased because of her behaviour towards him after they were married.
Aged 66 at time of sentencing - guilty plea entered on arraignment - born in Croatia - prior good character - unlikely to re-offend - special circumstances.
Mitigating factors - degree of provocative conduct on part of deceased - offence an angry response.
Sentenced to 16y with NPP of 11y.
414

MAHARAJ, Nilesh Nischal - CCA, 9.11.2004
McColl JA, Howie & Buddin JJ
Citation: R v Maharaj [2004] NSWCCA 387
Sentence appeal.
7 x make false instrument; 7 x use false instrument; 1 x embezzlement; 1 x larceny as a clerk; + 122 similar offences taken into account on Form 1.
Total sentence of 5y with NPP of 3y.
Applicant was employed by a financial planning institution & managed the financial affairs of various clients of that business, which included managing their investment funds & superannuation entitlements. As a result, he had access to the files of all the clients of the business & to the firm's computer database. Applicant dishonestly obtained more than $440,000 from 13 different clients by forging their signatures, altering cheques so that he was named as payee & then diverting clients' monies into accounts over which he had control.
Aged 30 at time of sentence - guilty plea at earliest opportunity - born in Fiji - came to Australia with family when a teenager - close, supportive, loving family - father a Hindu priest - delay of more than 12 months between arrest & sentence - delay in no way attributable to applicant - special circumstances - arteriovenous fistula on left arm - sometimes in severe pain - depression - no priors.
Whether sentence excessive.
Appeal dismissed.
415

GIBBS, Noel George - CCA, 30.9.2004
Wood CJ at CL, Hislop J, Smart AJ
Citation: R v Gibbs [2004] NSWCCA 399
Sentence appeal.
Robbery.
3y with NPP of 16m.
This was a 'bag snatch'type offence. Applicant was standing at the entrance to Redfern Railway Station as the victim walked towards the entrance carrying a brief case. Applicant approached the victim, a struggle ensued & the applicant pushed the victim on the forehead, took the brief case from him & fled. Property & papers to the value of $400 were in the brief case. When the brief case was returned to the victim, it was empty. Sixteen days after the commission of the offence, the applicant handed himself in at Riverstone Police Station, confessed to the crime, was arrested & charged.
Aged 18 at time of offence - guilty plea - Aboriginal - dysfunctional family background - drug & alcohol abuse from early age - ADHD - continued use of drugs whilst on parole - re-offending whilst on conditional liberty - problems with anger management - explosive personality - psychologist report of borderline level of intelligence affecting responsiveness to programmes - little insight into psychological impact of offending upon victims - quite immature for age - poor education & employment record - signs of depression & lack of trust in relation to counselling.
Whether sentencing judge erroneously took into account material not in evidence.
Appeal dismissed.
416

JENKINS - HC, 17.11.2004
Citation: Jenkins v The Queen [2004] HCA 57
On appeal from Supreme Court of Victoria.
5 x obtain financial advantage by deception; 5 x dishonestly furnish false information for purpose of obtaining a loan.
Directions - accomplice warning - prosecution witness pleaded guilty to criminal offences related to charges against appellant - testimony of witness substantially undisputed - defence did not seek to attack credit of witness - defence case relied in part on evidence of witness - no warning sought at trial as to reliability of witness - whether trial judge obliged to warn jury of danger in convicting on uncorroborated evidence of an accomplice - whether trial judge obliged to warn jury that evidence was potentially unreliable & must be subjected to careful scrutiny.
Appeal dismissed.
417

WJW - CCA, 8.11.2004
James, Adams & Bell JJ
Citation: R v WJW [2004] NSWCCA 360
Conviction appeal.
1 x commit act of indecency towards child under 10; 1 x indecently assault child under 10; 1 x common assault; 1 x sexual intercourse with child under 10.
The jury found the appellant not guilty on 2 further counts of sexual intercourse with a child under 10.
The complainant was an 8 year old boy who was the natural son of the appellant. The complainant's mother & the appellant separated when the complainant was 5 months old. The complainant lived with his mother & the appellant had access to him, however, there were disputes between the appellant & the complainant's mother about access. The offences were disclosed progressively by the complainant during a number of interviews with a police officer.
At trial, complainant gave evidence by means of closed circuit TV. In his remarks on sentence, the trial judge described the complainant as 'one of the most convincing child witnesses that I have encountered'.
Whether summing-up unbalanced & unfair - whether verdicts unreasonable & not supported by evidence - whether miscarriage.
Appeal dismissed.
418

WOODSIDE, Dorothy - CCA, 3.11.2004
Studdert, Sully & Greg James JJ
Citation: R v Woodside [2004] NSWCCA 375
Conviction appeal.
2 x common assault.
This matter came before the CCA by way of reference by the Attorney-General pursuant to s.474C(1)(b) of the Crimes Act.
The 1st offence involved a young boy who was throwing a bit of a tantrum. The appellant pushed him firmly by the shoulders, causing him to fall onto the floor. She then picked him up by the ankles & swung him around & dropped him onto a little sofa-bed. The 2nd offence involved the appellant forcing a piece of orange into the mouth of what a witness described as 'a little intellectually delayed little boy'This child only liked bananas & would not eat other fruit that was cut up on a plate & placed on tables for the children to eat. Witnesses gave evidence of both offences.
Whether verdict unreasonable -failure to consider common law defence of lawful chastisement.
Appeal dismissed.
419

MH - CCA, 17.11.2004
Bell & Buddin JJ
Citation: R v MH [2004] NSWCCA 400
Sentence appeal.
Larceny; + Form 1 matters (2 x goods in custody).
Total of 2*y with NPP of 15m.
The larceny offence related to the theft of $83,000, being the property of Brambles Pty Ltd. Applicant was heavily involved in the planning of the offence & the surveillance of the movement of Brambles armoured vans. He liaised with a security guard who was employed by Brambles & delegated tasks to various individuals who ultimately took part in the offence. The offence was carried out as a 'sham hold-up', taking place when a Brambles bag containing $83,000 was delivered to the Commonwealth Bank at Waterloo.
Whether error in describing case as 'worst category of case'- whether sufficient discount given for guilty plea & assistance to authorities - whether sentence excessive.
Appeal dismissed.
420

MOHAMADIN, Tarek - CCA, 17.11.2004
Bell & Buddin JJ
Citation: R v Mohamadin [2004] NSWCCA 401
Sentence appeal.
3 x armed robbery; + Form 1 matters (2 x armed robbery; 2 x robbery in company).
Total sentence of 8y with NPP of 5y.
The facts of the case were that on each occasion, applicant was in the company of at least one other young man. One of them would place an order by phone for the home delivery of pizzas, garlic bread & soft drinks to a nominated address. The address nominated was in most instances near a park where applicant & his co-offender or co-offenders would be waiting. When the food arrived, the delivery person was confronted by the applicant & his co-offenders. Only some of the co-offenders have been identified. The 2 who have been identified are younger than the applicant. In respect of each of the 5 offences of armed robbery (all committed in company), either the applicant or one of his co-offenders was armed with a knife. In each case, the delivery person was robbed of the food and/or money which he was carrying. In all, more than $800 in cash was taken, as well as 2 mobile phones. None of that property has been recovered. Two of the offences of armed robbery were perpetrated upon the same victim. The offences spanned a period of 4 months from 6.12.2002 until 20.4.2003.
Aged just under 19 at time of 1st offence - guilty pleas - born in Australia of Egyptian descent - obtained HS Certificate - undertook business studies course at TAFE - switched to diploma in real estate & doing that course at time of arrest - drug dependence - no priors.
Whether sentence manifestly excessive - sentencing approach - whether erroneous.
Appeal dismissed.
421

SL - CCA, 23.11.2004
Giles JA, Buddin J, Smart AJ
Citation: R v SL [2004] NSWCCA 397
Conviction appeal.
3 x aggravated sexual intercourse without consent (alternatively, incest); 6 x sexual intercourse without consent (alternatively, incest); 1 x abduction with intent to carnally know; 3 x AOABH; 1 x common assault.
Appellant was convicted & is yet to be sentenced. This appeal against conviction was on the ground that the pleas:
' ... were entered in circumstances amounting to a miscarriage of justice within the meaning of section 6 of theCriminal Appeal Act1912 (NSW) in that the appellant's pleas were not free, voluntary and pursuant to a genuine consciousness of guilt'.
All offences were committed upon appellant's sister, who gave birth to 2 children by the appellant.
According to the appellant, the guilty pleas were entered because of representations that he would not be gaoled & would be released to be with his children. He said he was under pressure from his barrister & the solicitor's clerk that he had to plead guilty if he wanted to see his children again.
Appeal dismissed.
422

TEOKA, Tyrone - CCA, 1.11.2004
LLOYD, Aaron Glen
ADM
Grove, Buddin & Hoeben JJ
Citation: R v Teoka & Ors [2004] NSWCCA 373
Sentence appeal.
Robbery with corporal violence (inflicting GBH).
Teoka: 10y with NPP of 6y.
Lloyd: 10y 9m with NPP of 6y 9m.
ADM: 11y with NPP of 7y.
The victim was confronted by 3 men as he was crossing an oval in the Caringbah area. He was knocked to the ground & repeatedly punched & kicked in the head by the 3 applicants. While this was going on, one of the applicants asked where his wallet was, then removed it from the victim. The attack continued & the victim was punched & kicked until he lost consciousness. The applicants then ran off. It was later found that Teoka had initiated the attack but that ADM had removed the wallet. The contents of the wallet were divided amongst the 3 applicants.
The victim was severely injured in the attack, requiring hospitalisation for a number of days. The effects of the attack are permanent, leaving him with a sunken left eye socket, double vision, teeth sensitivity, difficulties in reading, psychological sequelae including sleeplessness, fatigue, quickness to anger, nervousness, lack of trust. He was out of work for 7 months.
Age of offenders - relative culpability - parity.
Appeals allowed: each applicant resentenced to 10y with NPP of 6y.
423

O'CONNELL, Christopher - NSW SC, Davidson AJ, 19.11.2004
Citation: R v O'Connell [2004] NSWSC 1120
Remarks on Sentence.
Murder.
The deceased was aged 15 & the offender aged 18 at the time of the murder. The deceased was visiting the offender, who was her boyfriend, when the killing occurred. A post mortem examination revealed a total of 49 injuries to the body of the deceased, including 10 stab wounds.
Youth - guilty plea - psychological condition of offender.
Sentenced to 35y with NPP of 25y.
424

COX, Kylie Marie - CCA, 25.11.2004
Santow AJ, Hislop J, Smart AJ
Citation: R v Cox [2004] NSWCCA 413
Sentence appeal.
Accessory before the fact to an armed robbery with a dangerous weapon.
3*y with NPP of 1y 9m.
Two of the applicant's co-offenders robbed a pharmacy, while the 3rd co-offender waited for them in a stolen Holden Commodore. The applicant waited in her car, which was parked some distance from the pharmacy. The 3 co-offenders made their getaway in the stolen Holden Commodore then dumped that vehicle & joined the applicant in her car. The 2 co-offenders who had performed the robbery were armed with a shortened .22 calibre rifle & a claw hammer.
Aged 20 at time of offence - guilty plea - on conditional liberty at time of offence - low-self-esteem - dependent on others to take care of her - anxiety, dysthymia, drug dependence, Post Traumatic Stress Disorder - after birth of child suffered post natal depression - multiple priors, including 4 x common assault, 12 x goods in custody, 16 x furnish false/misleading information to licensee.
Objective criminality - parity - exceptional circumstances - depression - causal connection with offence - assistance.
Appeal allowed: resentenced to 3y with NPP of 1y 3m.
425

TAKAI, Teresa Manufekai - CCA, 19.11.2004 - 149 A Crim R 593
Dunford, Simpson & Hidden JJ
Citation: R v Takai [2004] NSWCCA 392
Sentence appeal.
Aggravated dangerous drive causing GBH.
3*y with NPP of 21m.
Applicant was the driver of a car which collided with a wooden power pole. Her female passenger sustained multiple leg & back injuries & was taken to hospital. The applicant was also hospitalised for a short time. Applicant & her passenger had spent some hours drinking alcohol at a hotel prior to the accident. A blood sample taken from the applicant after the accident had a blood alcohol reading of 0.169 grams per 100mls of blood.
Guilty plea - subjective circumstances - application of guideline judgments - level of moral culpability.
Whether sentence excessive.
Appeal allowed: resentenced to 2y 6m with NPP of 1y 3m.
426

TOBAR, Gerardo - CCA, 19.11.2004 - 150 A Crim R 104
JAN
Dunford, Simpson & Hidden JJ
Citation: R v Tobar; R v JAN [2004] NSWCCA 391
Sentence appeal.
1 x armed robbery; 1 x armed robbery with wound; 1 x assault with intent to rob whilst armed; + Form 1 offences 3 x armed robbery).
Tobar: Total of 10y with NPP of 5y.
JAN: Total of 10*y with NPP of 5y.
Applicants committed all offences in company with a co-offender. The co-offender was charged with only the armed robbery & armed robbery with wounding. He was sentenced at the same time as the applicants & a sentence of 11y was imposed with a NPP of 5y. An application by him for leave to appeal against the severity of sentence was successful on 2 grounds & his sentence was reduced to 7y 3m with a NPP of 4y: see R v P [2004] NSWCCA 218. Tobar was aged 19 at the time of the offences & JAN aged 16*.
Guilty pleas - subjective circumstances - parity.
Tobar: Appeal allowed - resentenced to 6y 3m with NPP of 3y.
JAN: Appeal allowed - resentenced to 6y 3m with NPP of 3y.
427

BETTLER, Perry Jeffrey - CCA, 25.11.2004
James, Adams & Bell JJ
Citation: R v Bettler [2004] NSWCCA 418
Sentence appeal.
2 x BE&S.
Total of 4y with NPP of 3y.
The 1st count alleged that on 14.9.2000 applicant broke & entered the Waratah Rugby Club & stole an automatic teller machine containing $44,780. The 2nd charge alleged that on 5.4.2001 he broke & entered the Umina Beach Bowling Club & stole an automatic teller machine containing $22,960. Four further similar offences were taken into account on a Form 1. These occurred at Muswellbrook RSL on 9.11.1999 when $10,000 was stolen, at Emu Plains Sports and Recreation Club on 23.3.2000 when $1,550 was stolen, at Albion Park Bowling Park on 18.5.2000 when $14,930 was stolen & at the Forster Bowling Club on 27.9.2000 when $8,780 was stolen. The crimes were quickly & efficiently carried out & required some planning & a degree of skill.
Guilty plea - married with 3 children (2 of whom are stepchildren) - history of offending - inclined to blame others for his problems - good worker - employer re-employed him after previous imprisonment - wife addicted to gambling.
Whether sentence excessively harsh.
Appeal dismissed.
428

WAQA, Frank - CCA, 26.11.2004 - 149 A Crim R 143
Dunford, Simpson & Hidden JJ
Citation: R v Waqa [2004] NSWCCA 405
Crown appeal.
12 x armed robbery; + Form 1 offences (12 x armed rob; 1 x attempt armed rob).
Total sentence of 7*y with a NPP of 4y 4m.
The offences spanned a period of approx 7 weeks & involved respondent & 2 co-offenders robbing a variety of small businesses (service stations, video & liquor stores, as well as a Woolworths store). Respondent & one co-offender would produce knives to threaten store attendants whilst the other co-offender drove the car in which the 3 men made their getaway. A total of $12,190 in cash & $820 worth of cigarettes was obtained as a result of the matters on the indictment. The Form 1 matters accounted for a further $3,107. All 3 offenders were arrested when their vehicle was stopped by police shortly after the commission of the last of the robberies.
Discount given for undertaking to assist authorities - failure to fulfil undertaking to give evidence - proportion of discount referrable to future assistance - whether sentence manifestly inadequate.
Appeal allowed: respondent resentenced to total of 10y with NPP of 5*y.
429

PEVY, Adrian Charles - CCA, 25.11.2004
Santow JA, Hislop J, Smart AJ
Citation: R v Pevy [2004] NSWCCA 414
Sentence appeal.
1 x aggravated dangerous drive causing death.
5y with NPP of 3y 9m.
A police patrol car was patrolling an area when the applicant's car was seen driving very slowly out of the car park of a hotel. The police car turned & followed the applicant's car in order for police officers to conduct a random breath test. The applicant's car then accelerated with the police following in pursuit. The applicant drove at speeds of 100-110 kph in a 60 kph zone, then collided with another vehicle, killing the driver. The police pursuit lasted for some 5 minutes. A blood sample taken from the applicant almost 2 hours after the accident revealed a blood alcohol reading of 0.126 grams per 100 mls of blood. Expert evidence given at sentence was that at the time of the impact, applicant's blood alcohol reading would have been within the range of 0.115 to 0.175 grams per 100 mls of blood & that at these levels his driving ability would have been significantly impaired.
Aged 22 at time of offence - guilty plea at earliest opportunity - prior offence (demand money with menaces) for which applicant received suspended sentence.
Whether statutory proportion should be varied, with or without reference to special circumstances - whether error in failure to consider & find special circumstances - whether sentence excessive.
Appeal allowed only on NPP: resentenced to NPP of 3y 3m.
430

GRAHAM, Guy - CCA, 26.11.2004 - 62 NSWLR 252
Beazley JA, Wood CJ at CL, Hulme J
Citation: R v Graham [2004] NSWCCA 420
Sentence appeal (extension of time).
Affray.
Applicant was sentenced to a 2y suspended sentence conditional upon entering into a GBB for the term of sentence. He breached the conditions of the GBB & the bond was revoked. The sentencing judge ordered the original sentence of 2y to be given effect from the date of revocation. A NPP of 18m was ordered.
Suspended sentence - revocation of GBB - whether original sentence should be given effect from date of revocation or from date when original sentence imposed.
Extension of time allowed.
Appeal dismissed.
431

MICALIZZI, Carmel Antonio - CCA, 22.11.2004
Hulme, Simpson & Howie JJ
Citation: R v Micalizzi [2004] NSWCCA 406
Conviction appeal.
Supply large commercial quantity prohibited drug (heroin).
Sentence not stated.
The Crown case was that appellant & another man (Lammas) travelled by car to the Haymarket area in Sydney. They left the car & waited for a short time before appellant received a call on his mobile phone from Vincent Fung. Shortly thereafter, appellant met Fung on or near a street corner. They then walked to Fung's vehicle. Both men entered the vehicle & Fung drove along Castlereagh Street to Pitt Street. Appellant then left the vehicle carrying a backpack which had not previously been in his possession. He returned to his own vehicle, placed the bag in the rear of the car then sat in the front passenger seat, Lammas occupying the driver's seat. The car drove off towards the Haymarket area. Shortly thereafter, offenders were apprehended by police. The entire episode had been the subject of police surveillance & photographs were taken. Upon examination, the backpack was found to contain 3,519.7 grams of white powder contained in 5 separate packets. Later analysis showed the powder to be heroin, with a purity of 59-66%. Appellant's phone calls had been monitored for some time & a large number of phone conversations were recorded & transcribed. At trial. there was no dispute as to any of the factual matters. The sole issue was whether the Crown had established, beyond reasonable doubt, relevant knowledge in the appellant. The Crown did not attempt to prove any actual supply of the drug; relying on s.29 of the Act to establish that the appellant's possession of the drug was for that purpose, and on s.3 to translate possession for that purpose into supply.
Directions - possession - element of knowledge - application of s.6(1) Criminal Appeal Act - application of Rule 4 Criminal Appeal Rules.
Appeal dismissed.
432

MARTIN, Lee Joshua - CCA, 29.11.2004
Wood CJ at CL, Hislop J, Smart A
Citation: R v Martin [2004] NSWCCA 416
Sentence appeal.
Robbery in company whilst armed with offensive weapon (replica handgun); + Form 1 (assault with intent to rob; goods in custody).
5y 4m with NPP of 4y.
Applicant approached the victim in the street & asked him for money. When the victim told him he had no money, the applicant produced a replica handgun & pointed it at the victim & demanded that he hand over his wallet. The victim gave him his wallet & the applicant looked through it. Then another man joined them & the applicant gave the wallet to that man, who, after looking through it, said there was nothing in it. The applicant demanded that the victim empty out his pockets & the victim put his backpack on the ground & commenced emptying out his pants pockets. As the victim removed his mobile phone from one of his pockets, the applicant took it from him. Then the other man picked up the backpack & started going through it. The applicant hit the victim on his nose with the handle of the replica gun, then the victim was hit on the back of his head by another person who had come up behind him. The applicant walked away with the victim's mobile phone & the 1st man who had joined them walked away with the victim's wallet & backpack. These 2 men were followed by 2 other men.
Aged just under 21 at time of offence - dysfunctional family background - drug abuse - need for counselling - need for lengthy period of supervision - multiple priors.
Application of s.44 Crimes (Sentencing Procedure) Act - assessment of utilitarian value of guilty plea - whether sentence excessive.
Appeal allowed insofar as NPP reduced to 3y 3m.
433

CLARKE, Allan Clifford - NSW SC, Barr J, 26.11.2004
Citation: R v Clarke [2004] NSWSC 1125
Remarks on Sentence.
Manslaughter.
Offender & deceased lived in adjacent streets in Seven Hills. Offender's daughter lived nearby. The daughter & the offender had a good relationship. On the day of the offence, the daughter was walking with 2 friends near deceased's house. One friend excused herself for a short time & the offender's daughter & the other friend sat down to wait. The deceased, who was intoxicate, was outside the front of his house. He knew the offender's daughter & engaged her in conversation. The conversation became heated & insults began to be exchanged. The conversation was so loud as to attract the attention of people nearby. The argument ended when the deceased threw a beer bottle at offender's daughter, however, it missed her. She then went to the offender's house & complained about the deceased's conduct. She was upset & hysterical. On hearing her complaint, the offender took a hunting knife from his house & went towards the deceased's house. He killed the deceased on the grass verge of the street in front of the deceased's house. The cause of death was a single wound to the chest, which lacerated the heart & the pulmonary artery.
Provocation - excessive self-defence - unlawful & dangerous act - intent to inflict GBH.
Sentenced to 8y with NPP of 6y.
434

AZZI, Eddie - CCA, 26.11.2004
Dunford, Simpson & Hidden JJ
Citation: R v Azzi [2004] NSWCCA 398
Sentence appeal.
1 x attempted sexual intercourse without consent; 4 x indecent assault; + Form 1 offences (commit act of indecency).
Total sentence of 6y with NPP of 4y.
The offences were committed by appellant, who was a hairdresser, upon 4 of his female clients, who were all adult women.
Aged between 38 & 40 at time of offences - born & raised in Lebanon - married & has 3 children - highly regarded & involved in valuable charity work - offences out of character - no priors.
Findings of fact - structure of sentences - whether excessive.
Appeal dismissed.
435

SWADDLING, Karen Marie - CCA, 26.11.2004
Hodgson JA, Hulme J, Smart AJ
Citation: R v Swadling [2004] NSWCCA 421
Sentence appeal.
9 x larceny as a clerk; + Form 1 offences (11x larceny as a clerk).
Total of 7y with NPP of 4y.
Applicant was employed as an accounts clerk in a family company with a substantial business in timber wholesaling & trading in timber products. Applicant's duties included the preparation of accounts payable documentation, the drawing of cheques & preparing electronic transfers of amounts payable. Over a period of 21 months, applicant misappropriated a total of $322,766 for her own benefit.
Guilty plea - whether sentences in accordance with Pearce v The Queen - whether total sentence manifestly excessive.
Appeal allowed: resentenced to total of 6y 3m with NPP of 3y 3m.
436

KNAPP, Ryan - CCA, 25.11.2004
Simpson & Adams JJ, Davidson AJ
Citation: R v Knapp [2004] NSWCCA 419
Sentence appeal.
Deemed supply of prohibited drug (methylamphetamine).
3y with NPP of 18m.
The Crown case was based on evidence of police finding 6 resealable sandwich bags in applicant's underpants. Upon analysis, the substance contained in the bags was found to contain a total of 145 grams of methylamphetamine (estimated street value approx $14,000 for total quantity found).
Aged 21 at time of offence - supportive, loving family - offence out of character - presented as quiet, polite, courteous, diligent & hardworking - prior record consists only of 2 driving offences.
Youth & rehabilitation prospects - statistical evidence.
Appeal allowed: resentenced to 21m with NPP of 9m with an order that applicant be subject to supervision by Probation and Parole Service officer until determined that he is no longer required to be subject to supervision.
437

PICKETT, Michael Wayne - CCA, 12.11.2004
McColl JA, Howie & Buddin JJ
Citation: R v Pickett [2004] NSWCCA 389
Sentence appeal.
Count 1: steal MV - 2y with NPP of 12m (expired at time of appeal);
Count 2: assault police officer acting in execution of his duty thereby occasioning ABH - 4y with NPP of 2y.
Total sentence of 5y with NPP of 3y.
Applicant pleaded guilty to both counts.
Whilst on duty in a police car, a police officer saw applicant driving a MV. Knowing the applicant had been disqualified from driving, the police officer pursued the MV, which had been stolen 3 days earlier. The stolen vehicle collided with a white van at an intersection & 2 passengers immediately alighted from the stolen vehicle & escaped. leaving the left passenger door wide open. The police car pulled up next to the stolen vehicle & the officer got out of the police car & started running towards the back of the stolen vehicle, intending to arrest the applicant. He heard someone yell out & looked over his shoulder to see the stolen vehicle reversing. The police officer was hit by the open door. Only by putting one hand on the stolen vehicle & the other on the police car & lifting himself up over the boot of his car was the officer able to avoid being crushed between the 2 vehicles. Applicant continued reversing the stolen vehicle out of the intersection & up the adjoining street. The police officer suffered a strain to his left wrist, a strain to his back & a strain to his neck, as well as pain in the back of his legs. Damage to the police vehicle caused by the open front door of the stolen vehicle extended from the driver's door to the rear panel.
Aged 43 at time of offences - one of 8 children of Aboriginal descent - tumultuous upbringing - abusive, alcoholic father - left school at age 15 - worked intermittently in unskilled labouring jobs - went on sickness benefits in mid-1980's & has not worked since - has had 2 relationships & has fathered 4 children - long history of serious alcohol & drug abuse - shown marked reluctance in the past to address those problems.
De Simoni principle - delay - relevance of antecedent criminal history - special circumstances.
Appeal allowed in part on count 2: head sentence confirmed, NPP reduced to 18m.
438

ROWLEY, Reggi Robert - CCA, 12.11.2004
Adams & Hislop JJ, Newman AJ
Citation: R v Rowley [2004] NSWCCA 385
Sentence appeal - jurisdiction and procedure.
Applicant sought leave to appeal against various sentences imposed on him by the Drug Court. The question arose as to which of these appeals could be heard by a single judge of the CCA, which by a 2 or 3 judge bench of the Court & which ought to be heard in the District Court.

HELD: (1) Where a "final sentence" for an indictable offence has been imposed by the Drug Court pursuant to s.12 of the Drug Court Act 1998, the right of appeal is governed by s.5AF of the Criminal Appeal Act 1912. This section provides that the appeal is to be heard by a single judge of the CCA. This approach was approved by the Court in R v Ohar [2004] NSWCCA 83 & also extends to summary offences where those offences were included in a single indictment along with indictable offences.

(2) Where an indictable offence was committed prior to an offender entering a Drug Court programme, but sentenced after entry to Drug Court programme, any appeal is governed by s.5(1)(c) of the Criminal Appeal Act & the provisions of s.5AF relating specifically to appeals form the Drug Court do not apply: R v Ohar followed. In those circumstances, the appeal must be heard by 2 or 3 judges of the CCA.

(3) Where any summary offence is sentenced by the Drug Court (other than summary offences included on an indictment with other indictable offences), the CCA has no jurisdiction to hear an appeal. The right of appeal in those circumstances is governed by s.5A of the Justices Act 1902 & the appeal must be made to the DC.

NOTE: See alsoR v Rowley[2004] NSWCCA 388 andR v Rowley[2004] NSWCCA 390 for resolution of appeals against sentence.

439

ROWLEY, Reggi Robert - CCA, 12.11.2004
Adams & Hislop JJ, Newman AJ
Citation: R v Rowley [2004] NSWCCA 388
Sentence appeal.
See also R v Rowley [2004] NSWCCA 385.
Appeal dismissed.
440

ROWLEY, Reggi Robert - CCA, 12.11.2004
Newman AJ
Citation: R v Rowley [2004] NSWCCA 390
Sentence appeal.
See also R v Rowley [2004] NSWCCA 385.
Failure to give adequate weight to guilty pleas & contrition - failure to quantify utilitarian value.
Appeal dismissed.
441

CAITA-MANTRA, Laurentiu & Anor (DPP v) - NSW SC, Howie J, 26.11.2004
Citation: DPP (NSW) v Caita-Mantra & Anor [2004] NSWSC 1127
Relief against justices.
AOABH.
Sentence: 100 hour CSO.
The defendant became involved in an altercation in a hotel at Singleton, during which he picked up a barstool & swung it at the victim. The victim sustained serious injuries including a laceration to the right temple & multiple fractures of the right facial bones & was required to undergo surgery to insert small plates to hold the fractured bones in place.
The Probation and Parole Service made an application to the LC for revocation of the CSO to which the then defendant was subject pursuant to s.115(2) Crimes (Administration of Sentences) Act.The ground upon which the order was sought was that 'having regard to circumstances that have arisen since the relevant Community Service Order was made, it is in the interests of justice to do so'A number of medical certificates & reports were annexed to the application. The magistrate granted the application but determined that it was inappropriate to impose any other sentence upon the defendant. It was that determination that the Director sought to challenge on the basis that the magistrate so far misunderstood the nature of his jurisdiction that, in effect, he failed to exercise it.
Relief against justices - order in the nature of mandamus sought against a magistrate refusing to resentence an offender following the revocation of a community service order.
Held: (1) Error in law in refusing to make any order consequential upon revocation of CSO in accordance with s.115(3) Crimes (Administration of Sentences) Act; (2) Magistrate to hear & determine question of re-sentencing 1st defendant under s.115(3) of the Act according to law & conformably with this judgment; (3) The Court reserves the question of costs. Plaintiff & 1st defendant to file submissions in respect of orders to be made as to costs within 14 days from date of judgment. Either party has liberty to apply within 14 days for hearing on question of costs.
442

CICEKDAG, Ayhan - CCA, 29.10.2004 - 150 A Crim R 299
Grove, James & Hoeben JJ
Citation: R v Cicekdag [2004] NSWCCA 357
Crown appeal.
1 x fire firearm in public place; 1 x malicious wounding; + Form 1 matters (2 x AOABH; drive whilst unlicensed; possess unregistered firearm).
Sentenced to total of 2y 2m with NPP of 12m.
The victim & friends had been drinking for several hours in a hotel. After having been refused entry to a nearby nightclub, they became involved in an altercation with another group of young men. Various persons armed themselves with pieces of wood, a shovel & other implements. At some stage, respondent fetched a small calibre firearm from the car he & his friends had been in & discharged a number of shots, one of which struck the victim in the knee. The Form 1 offences related to incidents that occurred in the course of the same altercation. Respondent had previously been subjected to a CSO for a number of break & enter offences. He was called for sentence upon breach of the CSO after having been sentenced for the present matters & received a 3 month custodial sentence which was wholly subsumed by the present sentences.
Aged 22 at time of offences - offences committed whilst subject to CSO.
Whether sentence manifestly inadequate - objective seriousness of offences - Form 1 matters not adequately taken into account - failure to appropriately address criteria in s.21A Crimes (Sentencing Procedure) Act 1999 - error in not adequately accumulating or partially accumulating sentences - error in finding special circumstances.
Appeal allowed: respondent resentenced to total of 3y with NPP of 2y.
443

TU, Thien - CCA, 17.11.2004
Bell & Buddin JJ
Citation: R v Tu [2004] NSWCCA 403
Sentence appeal.
1 x armed assault with intent to rob; 2 x aggravated kidnapping.
Sentence not stated.
The offences arose during the course of an attempted robbery of a Pizza Hut outlet.
Aged 23 at time of sentence - born in Vietnam - left as an infant with mother - they spent time in refugee camps in Malaysia then emigrated to Australia as refugees when applicant aged 5 - witnessed a stabbing in the MRRC complex - adjusted to prison conditions - undertaken courses.
Failure to give adequate weight to significant subjective circumstances - failure to give adequate weight to relatively minor criminal record & not being previously imprisoned - error in stating maximum penalty as being 25 years instead of 20 years - whether sentence manifestly excessive.
Appeal dismissed.
444

RICE, Colin Ray - CCA, 10.11.2004 - 150 A Crim R 37
Hodgson JA, Hulme J, Smart AJ
Citation: R v Rice [2004] NSWCCA 384
Conviction appeal and Crown appeal.
1 x aggravated B&E with intent to steal - 3y 6m cumulative on sentence for driving offence;
4 x aggravated BE&S - 4y cumulative on sentence for the driving offence.
1 x drive whilst disqualified 12m with NPP of 5m 1w 1d.
All sentences were suspended for the duration of Drug Court programme pursuant to s.7(2) Drug Court Act.
The circumstance of aggravation in each case was knowing a person was inside.
A 77 year old woman went outside her home to sweep some leaves. Upon returning, she saw the offender walk from her bedroom to the hallway. The victim managed to lead him out of the house. No property was taken. A 74 year old woman was gardening in her backyard when she heard the alarm go off in her house. She entered the house to find the offender inside, near the back door. He left the house, taking the victim'ss purse. On the same day, a 73 year old woman was chatting to a friend on her front porch, then she entered the house & saw the offender walk from her bedroom. He had entered the house by cutting a fly-screen door. He left the house & the woman noticed that her purse was missing. Later that day, a 68 year old woman left her house to give her husband, who was working outside, the telephone. She returned to the house without locking the door & soon thereafter noticed the offender in the house. He fled, taking her purse. A week later, a man was in his house & his wife was in the garden when he heard a noise. He went to the back door to find the offender on the porch. The offender left with the man'ss wife'ss handbag.
Aged 36 at time of offences - lengthy criminal record - previous imprisonment.
Correct construction of ss.105A, 112 & 113 Crimes Act - refusing leave to withdraw pleas of guilty when respondent desired to obtain benefit of Drug Court dealing with his matters - appeal by Crown lies from Drug Court to CCA as to initial sentences imposed under s.7 Drug Court Act - meaning of "sentence" in s.2 Court of Criminal Appeal Act - meaning of 'dwelling house'in s.112 Crimes Act - does it include curtilage - Drug Court following impermissible procedure in not sentencing in accordance with Crimes (Sentencing Procedure) Act 1999 & fixing NPP on initial sentence - initial sentences manifestly inadequate.
Conviction appeal dismissed.
Crown appeal allowed in part; matter remitted to Drug Court for sentencing in accordance with law.
445

JNN - CCA, 30.11.2004
Wood CJ at CL, McClellan AJA, Smart AJ
R v JNN [2004] NSWCCA 426
Sentence appeal.
Detain without consent and with intent to obtain advantage in circumstances of special aggravation.
3y 4m with NPP of 20m.
The circumstance of special aggravation was that applicant was in company with other persons & that at the time ABH was occasioned to the victim. The victim was lured to a car, then forced into it & taken to a park where she was severely beaten & kicked by 3 females, while 2 males sat in the car. The victim, a schoolgirl, suffered both physical & psychological injuries, with continuing need for psychological counselling.
Aged 17 years 2 months at time of offence - guilty plea - In Year 10 at the time - no priors.
Due proportionality of all components of sentence with those of co-offender - co-offender sentenced for other offences - effect of partial concurrency & partial accumulation of sentences
Appeal allowed: resentenced to 3y with NPP of 18m with an order that the sentence be served at a Juvenile Justice Detention Centre & that applicant be supervised for period of parole.
446

TOLMIE, Donald James - CCA, 19.11.2004
Tobias JA, Hulme & Adams JJ
Citation: R v Tolmie [2004] NSWCCA 396
Conviction appeal.
Detain with intent to hold for advantage (to steal victim's money);
Sentenced to 12m with NPP of 9m.
The jury returned a verdict of guilty of the above offence (count 1) & verdicts of not guilty on counts 2 & 3 (aggravated sexual intercourse without consent (in company), as well as armed robbery). All offences involved the same victim.
Complainant had been drinking in Kings Cross. She left the premises at about 2.00am. She had been walking for a while when she saw a female passenger in a white panel van waving to her (female offender). The complainant knew the female offender as a casual acquaintance. The complainant asked whether the female & the male driver (appellant) would drop her off at a taxi rank nearby in Macleay St. They agreed & she got into the panel van. However, the appellant did not drop the complainant off but kept driving, telling the complainant in an aggressive manner that she had to wait. The van was eventually driven into a small laneway behind the Hyatt Kingsgate Hotel. The female offender then produced a gun, a struggle ensued & the appellant beat the complainant about the head with the butt of the gun. The van drove off, then stopped at Darling Point, whereupon the female offender removed a $10 note & a 'Scratch It'ticket from the complainant's bra. At the request of the female offender, appellant sexually assaulted the complainant, after which she was pushed out of the van, which then left the scene. Her bumbag, containing keys to her apartment, just over $100 in cash & other personal belongs, was still in the van. An ambulance officer stated that when she arrived at the scene, the complainant was distressed, had blood over her face & in her hair & had a small laceration to the left side of her head & a large lump on her left shoulder blade. She also had glue in her hair.
Whether verdict unreasonable - whether acquittal on one count inconsistent with guilty findings on other counts - whether jury considered complainant's evidence as reliable & accurate - no Markuleski direction given (52 NSWLR 82) - whether direction necessary.
Appeal dismissed.
447

SALCEDO, Jerry Martinez - CCA, 2.12.2004
McColl JA, Levine & Hidden JJ
Citation: R v Salcedo [2004] NSWCCA 430
Sentence appeal.
Import trafficable quantity ecstasy; use passport issued to another person for purpose of travel.
5y 9m with NPP of 3y 9m.
Applicant & his co-offender flew to Paris. While overseas 3 money orders in the amount of $6,000, $6,600 & $4,600 were sent to the applicant from Australia. The money orders came from funds provided by the applicant. Almost a month after leaving Sydney, men returned & were searched by Customs officers. Each had 3 packages of tablets taped to his legs. The gross weight of the packages was 684.2 grams. The estimated total weight of pure ecstasy found on the applicant was 169.9 grams & the total weight of pure ecstasy found on the co-offender was 169.8 grams. Australian Federal Police estimated that the gross weight of the drugs was equivalent to about 3,000 tablets of ecstasy with a total street value of $150,000 or $50 per tablet. While the offenders were in Amsterdam, they became aware that they could buy ecstasy tablets for about $2 per tablet. Some of the money which had been sent in the 3 money orders was used to purchase the drugs. The sentencing judge found both offenders were principals & not couriers, that they imported the tablets for their own use or joint use but that there was an inescapable inference that some tablets would have been sold to finance, in part, the moneys the applicant had outlaid.
The statement of facts presented to the sentencing judge by the Cth DPP alleged that the amount of pure ecstasy imported by the applicant was 339.7 grams. The applicant was then sentenced to 6y with a NPP of 4y. After applicant had been sentenced, the Cth DPP applied to have the matter relisted before the sentencing judge. This was because the Cth DPP had formed the view that the Criminal Code Act 1995 (Cth) did not allow for the application of the doctrine of joint criminal enterprise. When the matter was relisted, the Cth DPP submitted that the applicant should be resentenced on the basis that he had imported only the quantity of pure ecstasy in the tablets strapped to his body (169.9 grams). The sentence imposed upon the applicant was then revised.
The co-offender had pleaded guilty to importing ecstasy & guilty to an offence of importing anabolic steroids. He was sentenced to 5y 3m with a NPP of 3y 6m.
Guilty plea - on protective custody since being assaulted whilst in custody - offence out of character - assistance.
Operation of parity principle - whether sentencing judge failed to have regard to time spent in protective custody.
Appeal dismissed.
448

MOSS, Tina Maree - CCA, 2.12.2004
Sully, Hidden & Howie JJ
Citation: R v Moss [2004] NSWCCA 422
Sentence appeal.
Supply methylamphetamine.
16m with NPP of 12m.
Police found applicant in possession of a resealable plastic bag containing 5.7 grams of methylamphetamine. It was apparent that she intended to sell the drugs. At trial, the Crown relied upon the deeming provision in s.29 Drug Misuse and Trafficking Act. The drug had a purity of 21.5% & was estimated to have a street value of about $1,200.
Aged 31 at time of offence - had been in a number of abusive relationships with men - 3 year old son died of a brain tumour - applicant suffered brain injury in an accident - became addicted to methylamphetamine - priors (dishonesty & traffic offences, supply prohibited drug for which she received non-custodial orders).
Fresh evidence - applicant pregnant at time of sentence - administrative arrangements for care of newborn child whilst in custody - change in circumstances of 3 existing children - whether pregnancy relevant to sentence - whether hardship to other children relevant to sentence.
Appeal dismissed.
449

CATLIN, Brian Sidney - CCA, 24.11.2004
Sully, Hidden & Howie JJ
Citation: R v Catlin [2004] NSWCCA 417
Sentence appeal (extension of time).
Larceny as a clerk.
Applicant was originally sentenced to 4y GBB. The recognizance applicant entered into was for an amount of $500. It was a condition of that recognizance that he repay the stolen $15,740 at the rate of $400 per month, the 1st such payment to be made on or before 6.4.1997. Between 6.3.1997 & 25.2.1998, applicant only paid in total an amount of $600. On 25.2.1998, that recognizance was amended to permit the applicant to re-commence payment on & from a date 4 weeks from 27.2.1998 with monthly payments of $400. However, he paid no further amounts. The recognizance was revoked & applicant was sentenced to 2*y to be served by way of PD. The sentencing judge failed to set a NPP.
Whether sentence excessive.
Appeal allowed: resentenced to 12m with NPP of 17w to be served by way of periodic detention.
450

HARKER, Richard - CCA, 2.12.2004
Santow JA, Bell & Howie JJ
Citation: R v Harker [2004] NSWCCA 427
s.5F appeal by Crown against rulings made by Puckeridge DCJ in the DC.
The rulings relate to evidence the Crown seeks to adduce in a trial listed for hearing before the judge. The respondent was indicted on 18 charges involving child sexual assault offences alleged to have been committed against the male complainant. The complainant was aged between 12 & 14 years at the time of the alleged offences. The evidence the subject of appeal is said by the Crown to be tendency evidence admissible under s.97(1) Evidence Act. The Crown case is that the respondent engaged in homosexual intercourse & other indecent behaviour with the complainant. The complainant's account is that he was introduced to the respondent through a mutual friend (DE) who was about 2 years older than the complainant. Respondent was in his late 20's at that time. The mutual friend is the witness whose evidence is at the heart of the present appeal. The complainant alleges that the respondent engaged in anal intercourse with him on numerous occasions & these & other sexual acts occurred in circumstances where respondent had on occasions shown the complainant pornographic videos & had administered some type of drug to him.
Tendency evidence - failure to give notice - whether trial judge should have dispensed with notice requirements - whether evidence ought to be rejected in exercise of discretion.
Orders: 1 The appeal against the judgment of Judge Puckeridge declining to direct that the tendency rule not apply to the evidence of DE be allowed and the judgment be set aside.
2. The Court directs that pursuant to s 100(1) the tendency rule not apply to the evidence contained in the statement of DE dated 15 November 2004 notwithstanding the failure of the Crown to give notice under s 97(1) on the following conditions:
(a) the trial of charges against the respondent presently listed before Judge Puckeridge be adjourned to a date to be fixed by the District Court;
(b) the Crown pay the costs of the proceedings before Judge Puckeridge relating to the trial and the costs of the adjournment.
3. The Crown appeal otherwise dismissed.
451

YOUKHANA, Moshey - CCA, 30.11.2004
McColl JA, Levine & Hidden JJ
Citation: R v Youkhana [2004] NSWCCA 412
Sentence appeal.
Armed robbery.
6y 4m with NPP of 4y 2m.
After having spent some hours drinking & gambling on poker machines at the Mandarin Club in Sydney, applicant & his co-offender went to the reception desk & asked to speak to the manager about employment as security guards. When the manager came to the foyer, the co-offender produced a replica pistol & the 2 offenders forced the manager & the receptionist into an office adjacent to the foyer. The manager was directed to remove the tapes from the video recorder connected to the surveillance cameras & applicant took possession of them. The manager was made to open 2 safes in the office. The offenders noticed another door from the office leading to the cashier's booth in the poker machine lounge. The manager was ordered to call the cashier into the office & she also was detained. The 3 victims were bound hand & foot with duct tape & the manager's mobile phone was taken. Each of the offenders had held the replica pistol at different times throughout the incident & it was pointed at the manager on several occasions. As the offenders left the office, the co-offender threatened to kill the manager's whole family if anything happened to them. The amount of money stolen was a little over $81,000, which was never recovered.
Aged 32 at time of offence - priors - previous imprisonment.
Sentence accumulated upon existing sentence - whether sentence & NPP reflect principle of totality.
Appeal allowed: resentenced to 5y 3m with NPP of 3y 3m.
452

SMIT, Steven Charles - CCA, 3.12.2004
SMIT, Shiree Anne
TARRANT, Donna Clare
Grove, James & Hoeben JJ
Citation: R v Smit & Ors [2004] NSWCCA 409
Conviction appeals.
Murder.
Steven Smit: 17y with NPP of 13y; Shiree Smit: 17y with NPP of 13y; Tarrant: 14y with NPP of 11y.
The 3 appellants were found guilty of the murder of the deceased. Police received a number of anonymous phone calls & went to the deceased's home to investigate. They found the naked body of the deceased wrapped in 2 blankets & within the blankets were 2 bloodstained jumpers & a cricket bat. There were large amounts of blood & blood staining throughout the flat. On a lounge chair, police found 3 knives, another was found under a lounge chair & yet another on a bed. Some of the knives & other items within the flat were stained with blood identified as that of the deceased. The pathologist who performed the post mortem testified that death was principally caused by a blow to the throat which fractured the larynx, caused swelling, which in turn deprived the victim of oxygen. There were 12 stab wounds, 2 of which could have contributed to the death, one of which was a wound penetrating the lung. The body also displayed numerous signs of trauma. There were 14 areas of bruising, 58 abrasions, 10 lacerations & 8 scratches. There were in excess of 100 injuries, ranging from minor to very serious.
Steven Smit: Aged31 - active participant - long-term drug abuse - history of drug related offences - some evidence of rehabilitation.
Shiree Smit: Aged 31 - active participant - criminal record - long-term drug addiction from emotional trauma - 4 children - evidence of rehabilitation.
Tarrant: Aged 29 - lowest level participant - lengthy record including assaults - long-term drug abuse resulting from significant trauma.
Jury question as to manslaughter - whether particular accused aware of intention of person who did act to kill or cause GBH - need for Stokes v Gifford direction (1991) 51 A Crim R 25 - whether separate trials required - incorrect submission by Crown - direction required - false alibi - consciousness of guilt.
Appeals allowed: new trial ordered for each appellant.
453

TILLMAN, Michael Davison - NSW SC, Dunford J, 3.12.2004
Citation: R v Tillman [2004] NSWSC 794
Remarks on Sentence.
Manslaughter.
The offender was charged with murder, however, he pleaded not guilty to murder but guilty to manslaughter, which the Crown accepted in full satisfaction of the indictment. The deceased died as a result of injuries sustained during a fight with the offender, during which the offender kicked the deceased in the head a number of times. Both were aged 31 at the time; both had been drinking all evening & into the early hours of the morning.
Sentenced to 6y with NPP of 3y 3m.
454

PHA - CCA, 7.12.2004
McColl JA, Levine & Hidden JJ
Citation: R v PHA [2004] NSWCCA 445
Sentence appeal.
Import trafficable quantity ecstasy (169.8 grams); import anabolic steroids without approval.
Total of 5y 3m with NPP of 3y 6m.
Applicant & his co-offender were jointly involved in the importation of ecstasy: see R v Salcedo [2004] NSWCCA 430. Applicant had 169.8 grams of pure ecstasy contained in 3 packages strapped to his body. Applicant sent steroids to Australia, using false sender names. The steroids had an estimated value of $196,000. The amount of pure ecstasy strapped to the co-offender's body was 169.9 grams. The co-offender was charged with importing a trafficable quantity of ecstasy & a charge of using a passport issued to another person for the purpose of travel. Co-offender sentenced to total of 5y 9m with NPP of 3y 9m.
Guilty plea - parity - assistance to authorities.
Appeal dismissed.
455

KING, Phillip Nathan - CCA, 7.12.2004 - 150 A Crim R 409
McColl JA, Howie & Buddin JJ
Citation: R v King [2004] NSWCCA 444
Crown appeal and sentence appeal.
1 x malicious wounding with intent to do GBH.
10y with NPP of 6* (backdated to date of arrest).
The offender & the victim engaged in a single act of consensual sexual intercourse, resulting in the victim becoming pregnant. The offender tried to persuade her to have an abortion, but she refused. When the pregnancy was between 23 & 24 weeks, the offender attacked the victim by punching her in the stomach. The Crown case was that the offender kicked & stomped on the victim's stomach a number of times, which offender denied. The victim was taken to hospital & an ultrasound was performed. No foetal heartbeat was detected & the foetus was delivered stillborn 3 days later. There was forensic evidence of substantial damage to the foetus & the placenta.
Aged 19* at time of offence - guilty plea - behavioural changes since falling off bicycle at age 10 or 11 -bashed by prisoners upon entering prison system - in protective custody for majority of time.
Sentence appeal: Whether sentencing judge treated as aggravating factors matters which were elements of offence - whether leniency should be extended due to time spent in custody prior to sentence - whether sentence manifestly excessive.
Sentence appeal dismissed.
Crown appeal: Principles governing Crown appeals - determining objective criminality of offence - impact upon victim - obligation to state reasons - deterrence - whether sentence manifestly inadequate.
Crown appeal allowed: offender resentenced to 12y with a NPP of 8y.
456

VIRGONA, Vincent John - CCA, 29.11.2004
Wood CJ at CL, Hislop J, Smart AJ
Citation: R v Virgona [2004] NSWCCA 415
Sentence appeal.
Counts 1,4&5: indecent assault; Counts 2&3: indecent assault on person under age of 16 years & under authority - FT of 2y (concurrent with sentences for Counts 6&7);
Count 6: sexual intercourse with person above age of 10 & under age of 16; Count 7: sexual intercourse with person above age of 10 & under age of 16 under authority - 4y with NPP of 3y.
Counts 1-6 related to offences committed upon a young male complainant ('A'), who was a relative of the applicant. Count 7 related to an offence upon a female complainant ('B') who was also a relative of the applicant. The offences were committed during the period 1983-1989.
Applicant also committed a series of sexual offences against another young relative, for which he was sentenced to 6y with a NPP of 4*y. The victim of those offences made statements to police on 2 & 8 May 1996, raising the possibility that 'A'& 'B'may also have been sexually molested by the applicant. 'A'gave a statement to police in late 2001 & 'B'gave a statement to police in April 2002. Applicant was released to parole on 14.11.2002 after completing NPP component of sentence & returned to prison on 21.8.2003 to serve balance of that sentence, as well as being bail refused in relation to subject offences.
Aged 35-41 at time of subject offences - sexually molested as a child - mind full of sexualised thinking about children - sought treatment in 1988 - sought counselling in 1997 - continued to see psychologist on monthly basis, save for periods when in prison - apart from offences, a man of good character - most unlikely to re-offend - rehabilitation achieved.
Whether insufficient regard to impact of delay in complaint - failure to take proper account of consequences of returning applicant to custody more than 9m after release from prison for related offences.
Appeal allowed in part: NPP reduced to 2y 3m.
457

McGRATH, Shane - CCA, 8.12.2004
McColl JA, Howie & Buddin JJ
Citation: R v McGrath [2004] NSWCCA 440
Sentence appeal.
Use offensive weapon to avoid lawful apprehension.
8y with NPP of 6y.
Applicant was driving a stolen vehicle on the morning of 19.1.2002 when he picked up 3 youths who he knew & drove to the car park of a club in Tumbi Umbi where they intended stealing another MV. Applicant entered a vehicle using a screwdriver & tried to start it by tampering with the ignition. The vehicle did not start & applicant got the youths to push the vehicle in an attempt to jump-start it. This was all observed by security guards on closed-circuit TV. The security guards managed to capture & detain the youths. The applicant got into the stolen vehicle he had previously driven & drove out of the car park, then over a grassed medium strip towards the group, almost colliding with the security guards & the youths. He got out of the vehicle then brandished a sharp object that he maintained was a screwdriver & threatened the security guards, swinging the object in their direction, causing them to release the youths. After 2 of the youths entered the vehicle, the applicant drove off. He later dropped off the 2 youths. He then drove into the rear of a patrolling security van. He abandoned the stolen vehicle & was arrested later that morning.
Applicant was a disqualified driver & was on parole at the time of the offence.
Aged 33 at time of sentence - 'appalling criminal history'(stealing MV's, dishonesty & driving offences, violence against the person, assault police officers) - previously imprisoned on numerous occasions.
Guilty plea - failure to properly discount sentence - failure to consider special circumstances - whether sentence manifestly excessive.
Appeal allowed: resentenced to 6y with NPP of 4y.
458

LIVINGSTONE, Kenneth Robert - CCA, 22.11.2004 - 150 A Crim R 117
Simpson, Kirby & Bell JJ
Citation: R v Livingstone [2004] NSWCCA 407
Conviction appeal.
1 x knowingly concerned in the importation of a commercial quantity of cannabis; 1 x pervert the course of justice.
Appellant provided accountancy services to a man by the name of McPhee who operated cake shops in the Frenchs Forest area. McPhee was involved in the importation of cannabis from Thailand. Appellant became involved in the 3rd of these importations after McPhee had told him of what he was doing & how he had taken money out of Australia for payment of the drugs. Appellant told McPhee that his method, which was to carry out large amounts of Australian currency in a suitcase, was dangerous & that he could provide a safer method of funds transfer. He had access to a bank account in the name of an accountancy partnership with whom he had previously been employed. McPhee subsequently handed over $260,000 to the appellant in $50 & $100 notes, $200,000 being for the purchase of the cannabis & $60,000 as payment to the appellant for his participation. Appellant deposited $165,000 in cash into the accountancy firm's bank account, together with cheques, taking the total amount to $190,073.57. He then arranged for the accountancy firm to make the transfer. The importation was completed & McPhee & another were subsequently arrested & charged. Both these men served a term of imprisonment. Appellant's involvement was not known to police at the time. Whilst in prison & after his release, McPhee suspected that appellant had not forwarded all the funds (this was unfounded). McPhee discussed his suspicion with another prisoner & subsequently that prisoner & another man visited the appellant, intending to intimidate him. Appellant responded to the intimidation by reporting the threat to an acquaintance who was also a police officer. In order to conceal the fact that the intimidation concerned the illegal importation of drugs, he fabricated a story that the men had tried to extort money from a football club. Police began an investigation but soon became suspicious of appellant's bona fides & eventually referred his allegations to the NSW Crime Commission, which conducted an inquiry. Appellant was questioned about the source of cash amounting to $165,000 & gave a false account, claiming he had received it from a client who had since died.
Whether miscarriage of justice resulted from failure of Crown to make available copies of documents - prosecution's duty of disclosure - s.165 Evidence Act 1995 - unreliable evidence - directions concerning cross-examination of prosecution witnesses.
Appeal dismissed.
459

MITROPOULOS, Andrew - CCA, 17.11.2004
Bell & Buddin JJ
Citation: R v Mitropoulos [2004] NSWCCA 402
Sentence appeal.
1 x enter dwelling with intent to commit serious indictable offence (AOABH in circumstances of aggravation).
5y with NPP of 3y.
The circumstance of aggravation was that applicant had armed himself with a piece of wood resembling a cricket stump. Applicant entered the home of a female with whom he had previously had a relationship & attacked the female's male friend.
Aged 32 at time of sentence - warm & supportive family - priors (breach AVO; common assault; AOABH) - attended a course whilst in prison for stress & anger management - no expression of remorse/contrition.
Whether undue weight given to prior criminal record - whether sentence manifestly excessive.
Appeal dismissed.
460

LAWRENCE, Wendy Olive - CCA, 23.11.2004
McColl JA, Howie & Buddin JJ
Citation: R v Lawrence [2004] NSWCCA 404
Sentence appeal restricted to 2nd count only.
Count 1: steal from the person; + Form 1 offence - FT of 2y (concurrent with sentence for count 2);
Count 2: provide false information to police with intention to hinder investigation of serious indictable offence - 5y with NPP of 3y.
Total sentence of 5y with NPP of 3y.
Applicant'ss was a witness to her de facto partner severely beating & kicking a man during an altercation. As the man lay unconscious, applicant stole his mobile phone. When police attended, applicant & her de facto denied any wrongdoing. The de facto had some recent injuries & he & the applicant told police they were caused by persons unknown in an unrelated incident. Police commenced investigations almost immediately. The deceased died in hospital the following day. Applicant & her de facto were subsequently charged with murder. The applicant maintained that she knew nothing of the attack. Her de facto was eventually found not guilty of murder but guilty of manslaughter, whereupon the Crown chose not to proceed with the murder charge against the applicant. She was arraigned on the above charges & entered a plea of guilty. Applicant was on bail for other offences at the time of the above offences.
Aged 41 at time of offences - multiple priors (uttering; shoplifting; goods in custody; use false instrument; demand with menaces; steal from person; receiving; 3 x malicious injury; 2 x assault; 5 x driving offences; use offensive language; 3 x resist/assault police; AOABH; breach CSO; PD order; 2 x drug offences; 2 x fail to appear) - previous imprisonment.
Whether sentence excessive.
Appeal allowed: resentenced to 2*y with a NPP of 6m, consecutive upon sentence for count 1.
New total sentence of 4*y with NPP of 2*y.
461

NASR, David - CCA, 8.12.2004
Tobias JA, Sully & Hoeben JJ
Citation: R v Nasr [2004] NSWCCA 441
Crown appeal.
1 x ongoing supply of methylamphetamine; 1 x supply methylamphetamine; 1 x supply cannabis.
Total of 3y with NPP of 1y 8m to be served by way of PD.
Respondent was a member of a syndicate supplying drugs, although not a leading member. His 4 co-offenders played a more prominent part in the syndicate. The offences came to light as a result of a Strike Force established to target the supply of prohibited drugs in the Ashfield & Campsie areas.
At the time of the offences, respondent was subject to a CSO for 150 hours & was also subject to a GBB for 18m.
Aged 23 at time of offences - completed HSC - completed electrical trade course at TAFE - was the victim of a 'drive by shooting'in 1998 & as a result suffered severe form of post traumatic-stress disorder, severe anxiety disturbance - criminal history (relatively minor matters) - no previous imprisonment.
Whether sentence manifestly inadequate - objective gravity of offences - whether prospects of successful rehabilitation given too much weight.
Appeal allowed: respondent resentenced to total full-time custodial sentence of 2y 3m with NPP of 12m.
462

RUGARI, Tony - NSW SC, Barr J, 26.11.2004
Citation: R v Rugari [2004] NSWSC 1126
Remarks on Sentence.
Manslaughter; aggravated robbery; + Form 1 (possess 1 gram cannabis leaf and 3.9 grams pseudoephedrine).
The offender, a very well-built 18 year old, lived at a caravan park, as did a 12 year old girl (X) & a group of other young people. The deceased was 20 years old & lived at Campbelltown. The deceased & X had spoken to one another on the phone a number of times & may also have met. There was evidence to show that the deceased was told that X was 13 years old but that he did not believe it & thought she was 16 years old. The deceased & X arranged that he should visit the caravan park. The offender also spoke to him on the phone & gave him directions on how to get there. The deceased went to the caravan park & was severely beaten by the offender, after which the offender took his gold chain & mobile phone before allowing him to drive away. When the deceased arrived home, he was in a bad way & collapsed in the garage. His mother & his sister went to assist him. They took him to his room & called for an ambulance. He was unconscious upon arrival at hospital & was found to have an acute left-sided extradural haematoma. He underwent 2 operations to relieve pressure on the brain & was kept in the ICU. He died one week later from changes in brain tissue which led to lung failure, possibly associated with cardiac arrest.
Dysfunctional upbringing - violent father often physically abuse offender - removed from parents at age 5 - placed in foster care - diagnosed at early age with ADHD - left school & foster home at age 12 - fathered a child at age 14 - no contact with child - long-time illegal drug use.
Sentenced to total of 8y with NPP of 5y.
463

KALDOR, Andrew Nicholas - CCA, 29.11.2004 - 150 A Crim R 271
Dunford, Adams & Howie JJ
Citation: R v Kaldor [2004] NSWCCA 425
Crown appeal and conviction appeal.
Accessory to the importation of a trafficable quantity heroin.
3y 4m with NPP of 2y.
The offence involved the importation of heroin concealed in a guitar. The case was essential a circumstantial one.
The terms of the indictment against the appellant were:
'[that he] on 21 May 2003 at Sydney in the State of New South Wales did procure the commission of an offence by David Israel Gurvich against s233B(1)(b) of the Customs Act 1901, having imported into Australia prohibited imports to which section 233B of the Customs Act 1901 (Cth) applied, namely, consisting of a quantity of heroin not being less than the trafficable quantity applicable to heroin, contrary to sub-section 11.2(1) of the Criminal Code 1995 (Commonwealth) and paragraph 233B(1)(b) of the Customs Act 1901 (Cth)'.
Adams J said at para 7:
'It is obvious that the terms of this indictment meant that Kaldor could not be convicted unless Gurvich was guilty of the principal offence. It is undisputed that the prosecution case was that Gurvich had not committed any such offence but was the innocent dupe of the appellant. Accordingly, Kaldor could not be convicted of the charge for which he was placed on trial. He appeals from his conviction, however, not upon this ground but upon the ground that the evidence did not justify the conclusion beyond reasonable doubt that he was aware in the relevant sense that the guitar which he gave Gurvich to bring through Customs at Sydney airport contained heroin. Kaldor contends, in terms of s6(1) of the Criminal Appeal Act 1912, that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence'.
Howie J said, at para 67 (Dunford J agreeing):
'... Unfortunately I cannot agree with his Honour's conclusion that the evidence in the Crown case was insufficient to justify the conviction of the applicant and, in particular, I do not believe that the conviction is either unreasonable or that it cannot be supported having regard to the evidence..'.
Sufficiency of evidence of knowledge - whether verdict unreasonable - accused charged as accessory - Crown case that he was actually principal using innocent agent - indictment not amended - whether allegation that agent was principal offender mere surplusage - effect of Criminal Code - whether sentence manifestly inadequate.
Conviction appeal dismissed.
Crown appeal allowed: resentenced to 7y with NPP of 4y.
464

CAHILL, Samuel Hefner - CCA, 29.11.2004
Tobias JA, Hoeben J, Smart AJ
Citation: R v Cahill [2004] NSWCCA 451
Sentence appeal.
1 x fire firearm in manner likely to injure a person; 1 x possess unauthorised firearm.
Total sentence of 5y with NPP of 3y.
Applicant entered into an agreement with a builder to carry out renovations on a house at applicant's rural property situated on Kangaroo Valley Road, Berry. The builder did some of the work & applicant made 2 payments. When the builder sought a 3rd payment, a dispute arose. Because the dispute had dragged on for a while, the builder drove to applicant's property. Seeing that the applicant was asleep in the house, he tried to raise him by knocking on the door & phoning him. He returned to his vehicle & drove it closer to the house to create more noise & parked a short distance from the house. Applicant came to the front door carrying a shotgun & forcefully told the builder to get off his property. On reaching the front of the builder's vehicle, he raised the shotgun & pulled the trigger, but the firearm failed to discharge. The builder reversed his vehicle along the driveway & saw the applicant manipulating the shotgun, raise it & aim it at his vehicle. When the builder reached Kangaroo Valley Road, about 70 metres from the applicant's house, he stopped briefly then started driving east. As he drove past the applicant's property, the applicant fired the shotgun & some pellets struck the builder's vehicle. The builder reported the matter to police & they executed a search warrant at applicant's house. They found a gun in an unsafe, unsecured state leaning against a wall in the study, 3 spent cartridges & an unspent round in a drawer. They also found a box containing 13 unspent cartridges in the unlocked garage. The applicant did not hold a shooter's licence & the shotgun was registered in another person's name. The applicant had borrowed the gun from that person to shoot snakes.
Guilty plea - failure to allow discount - special circumstances - 1st custodial sentence - protection - good prospects of rehabilitation - unlikely to reoffend - not worst case - error in imposing maximum penalty.
Appeal allowed: resentenced to total of 4y with NPP of 2y 3m.
465

LAGI, Meli - CCA, 8.12.2004
Mason P, Barr & Hoeben JJ
Citation: R v Lagi [2004] NSWCCA 443
Conviction and sentence appeal.
Possess firearm without authority - 4y;
Use offensive weapon in company with intent to prevent lawful apprehension - 10y with NPP of 6y.
Total sentence of 10y with NPP of 6y.
The offences relate to the killing of Snr Const McEnallay (see R v Penisini, Lagi & John Taufahema [2003] NSWSC 892).
Whether verdict available on evidence - inconsistent verdicts - whether parity principle observed - whether sentences excessive.
Appeal dismissed.
466

WALSH, Christopher - CCA, 25.11.2004
Howie J
Citation: R v Walsh [2004] NSWCCA 428
Sentence appeal against sentences imposed in the Drug Court.
2 x BE&S - 2y; 1 x BE&S - 12m; 1 x goods in custody - 6m; 1 x steal MV - 12m; 1 x drive whilst disqualified - 2y.
Total sentence of 2y 11m with NPP of 2y 2m.
The sentences were suspended upon applicant entering into a Drug Court programme. He was returned to custody after committing further offences whilst on the programme (steal MV; disqualified driver; larceny).
Failure to take into account pre-sentence custody.
Appeal allowed: sentences imposed in the Drug Court backdated; sentences imposed in the DC adjusted.
467

WALSH, Kerry Michael - CCA, 8.12.2004
Sully, Hidden & Howie JJ
Citation: R v Walsh [2004] NSWCCA 435
Conviction and sentence appeal.
4 x defraud Commonwealth.
Total of 3*y with NPP of 2y.
The offences related to dishonest conduct in relation to applicant's payment of income tax, both on his personal income & that of a company of which he was a director.
Fresh evidence - whether error in sentencing - whether on erroneous factual basis - whether miscarriage.
Appeal dismissed.
468

DAHER, Simon - CCA, 14.12.2004
TOCHEL Tod
Wood CJ at CL, Simpson & Barr JJ
Citation: R v Daher; R v Tochel [2004] NSWCCA 458
s.5F appeal against interlocutory judgment (and application for extension of time).
Applicants were charged with the commercial manufacture of methylamphetamine. When police entered their premises, they found them in the process of manufacturing the drug by heating the contents of a flask. Police seized the flask & its contents & sent them for analysis. The contents weighed 998.7 grams & upon analyses were shown to contain 23.1% pure methylamphetamine.
Each applicant wished to mount an argument that if he had been permitted to finish manufacturing the drug he would have had less than 250 grams for sale. Each applicant wished to argue that s.4 Drug Misuse and Trafficking Act 1985 did not apply to preparations produced during the course of manufacture. That would have involved a challenge to the decision of the CCA in R v R2 (1990) 19 NSWLR 513.
There was frank discussion from the bar table & defence counsel as good as told his Honour that there was no defence to the charge & that a plea of guilty would be entered by each applicant. The only matter of contention was whether the Crown could prove the commercial quantity. The parties wanted his Honour's view about that & defence counsel & the Crown prosecutor told his Honour that if he took a view contrary to the one that was put, it would need to be tested on appeal before the matter went any further. Discussion followed about whether the applicants should be required to enter their intended pleas of guilty, but that never happened. The parties put the relevant statements & certificates of analysis before the court. Although evidence was tendered, the sentencing proceedings were never entered upon & no order adverse to either applicant was made.
Counsel then put their arguments, following which the trial judge expressed the opinion that the decision in R v R2 was binding. His Honour was then invited to certify under s.5F(3)(b) Criminal Appeal Act that the matter was a proper one for determination on appeal, which he did.
The question on appeal was whether s.5F contemplates appeals against advisory opinions or decisions made in advance of a trial on matters affecting the conduct of the trial such as the admissibility of evidence, sufficiency of evidence to prove the charge or questions of law which will arise during the course of the trial.
Held: Applications incompetent and dismissed. Matters remitted to the DC.
469

MALTESE, Guiseppe - CCA, 19.11.2004 - 150 A Crim R 97
Simpson, Bell & Buddin JJ
Citation: R v Maltese [2004] NSWCCA 408
Conviction appeal.
Conspiracy to commit armed robbery; + 1 x possess loaded firearm taken into account.
12m PD.
Appellant, aged 19, pleaded guilty on 3.11.1992 & was sentenced on 1.12.1992. He completed his sentence on 10.12.1993. His only prior conviction was for a driving offence, which attracted a fine.
On appeal, he sought to challenge his conviction, notwithstanding the fact that he had pleaded guilty. In his affidavit, he swore that the ROI was fabricated by interviewing police officers. He said he signed it because he was terrified & was desperate to get away after being struck in the head by M5's partner. He said he was taken by police to bushland near Roseville Bridge where they dug up a parcel which contained the firearm alleged to be owned by him. He swore in his affidavit that he had never before seen the firearm & that he did not direct police to where it was located. He also said he had instructed lawyers to appear on his behalf at a contested committal hearing which occupied 3 days of hearing time. It was clear from the transcript of those proceedings that the voluntariness of the ROI was put in issue. A file note made by a DPP solicitor indicated that appellant's counsel had subsequently foreshadowed that the ROI would be challenged at trial. There was support for appellant's version of events in evidence given by M5 at the Police Integrity Commission. He said he informed his superior officer that he had reservations, having spoken to appellant, as to whether he was involved in any of the armed robbery offences which police were then investigating. He said he was told by his superior to 'load him [the appellant] with a firearm'He & another detective took appellant to the Roseville Bridge area. They had a firearm which they had obtained from the police station. At the scene, they 'dug up'the firearm & photographed the appellant in possession of it. M5 gave evidence that those parts of the interview, which attributed to the appellant admissions as to having possessed the firearm & to the appellant having admitted leading police to where it was located, were fabricated. He also said the other detective had struck the appellant over the head with an old map & that the appellant had signed the interview 'under duress'.
Fresh evidence of police misconduct - whether miscarriage of justice.
Appeal allowed: verdict of acquittal entered.
470

HAYES, Chantelle Jade - NSW SC, M.W. Campbell AJ, 13.12.2004
Citation: R v Hayes [2004] NSWSC 1195
Remarks on Sentence.
Manslaughter.
The offender & 2 other women were involved in the killing of the deceased (see R v Vongsouvanh and Namalauulu [2003] NSWSC 1203; see also R v Vongsouvanh; R v Namalauulu [2004] NSWCCA 158). The 2 co-offenders were in Cabramatta in order to obtain drugs & were joined by the offender. The 3 women went to a block of units where they believed they could obtain some heroin from a dealer, but their attempts to contact him were unsuccessful. They waited for his return in the garage area beneath the block of units. At this point, the victim arrived & joined the women. As the co-offenders were using the cocaine they had earlier purchased, an altercation erupted between the offender & the victim. The co-offenders assisted the offender by holding the victim by the arms & restraining him. All 3 women then became involved in a fight with him, during which a knife was produced & the victim stabbed a number of times. While he was lying seriously injured on the ground, the offender removed his right shoe, took some object from it, then all 3 women ran off. A neighbour, who had witnessed the events from his adjacent apartment, called for an ambulance. The victim was taken to hospital but died.
Aged almost 27 at time of offence - guilty plea - Aborigine - poor self-esteem - remorseful, deeply traumatised - diabetic - need for appropriate treatment whilst in prison - good prospects of rehabilitation - assaulted & victimised in prison - now in protective custody.
Sentenced to 6y 9m with NPP of 4y.
471

MUNGOMERY, Stephen Arthur - CCA, 14.12.2004 - 151 A Crim R376
Spigelman CJ, Hulme & Adams JJ
Citation: R v Mungomery [2004] NSWCCA 450
Sentence appeal and Crown appeal.
3 x defraud as an officer of a company; + 105 similar offences taken into account.
Total sentence of 5y with NPP of 3y 3m.
During a period of almost 4* years, appellant defrauded the company where he was an officer of a total of slightly over $1,000,000.
Aged almost 36 at time of sentencing - held 2 degrees (B Com, BA) - held previous responsible positions with other companies - gambling problem - arrangements to make reparation - no prior convictions.
Guilty plea - error in failure to identify quantum of discount - whether sentence excessive.
Sentence appeal dismissed.
Whether sentence manifestly inadequate.
Crown appeal dismissed.
472

KEIR, Thomas Andrew - NSW SC, M.W. Campbell AJ, 13.12.2004
Citation: R v Keir [2004] NSWSC 1194
Remarks on Sentence.
Offender was found guilty of murdering his wife: see R v Keir [2004] NSWSC 964.
Sentenced to 22y with NPP of 16y.
473

JONES, Derek Louis - CCA, 10.12.2004
Tobias JA, Sully & Hoeben JJ
Citation: R v Jones [2004] NSWCCA 432
Crown appeal.
Robbery whilst armed with offensive weapon.
Sentence of 6m backdated to make it concurrent with previous sentences. The sentence had already expired when it was imposed.
Respondent opened the driver's door of the victim's car & threatened the victim with what appeared to be an empty syringe with an exposed needle. The respondent reached across & grabbed the handbag belonging to the victim's wife. As they respondent tried to flee, the victim managed to grab hold of his hair & a struggle took place, during which the victim was punched in the face, body & legs. Eventually respondent escaped to a waiting get-away car, with a purse from the handbag containing personal items & $420. Respondent had lost a clump of hair during the struggle & this was later tested & found to contain DNA consistent with respondent's DNA.
Aged 33 at time of offence - guilty plea - on parole at time of offence - drug addiction - under influence of drugs at time of offence - lengthy criminal history starting at age 13 - previously imprisoned.
Whether sentence manifestly inadequate.
Appeal allowed: resentenced to 3y with NPP of 2y. Condition of parole: supervision & entry into full-time drug rehabilitation programme approved by supervising parole officer.
474

JOHNSON, Jason Allan - CCA, 8.12.2004
Giles JA, Levine & Hulme JJ
Citation: R v Johnson [2004] NSWCCA 446
Sentence appeal.
Robbery whilst armed with dangerous weapon (power-head spear gun).
9y with NPP of 6y.
This offence involved the robbery of a service station at night. Applicant & a pillion passenger rode an unregistered motorcycle to a service station & parked at the rear. Applicant then entered the service station, wearing a full-faced helmet & a dust coat. The attendants became aware that he was armed when he pulled back his coat to reveal the butt of the weapon protruding from his pants. After the robbery, applicant apologised to the 2 female attendants then walked out & rode off on his motorcycle. Applicant in fact frequented that service station & was acquainted with both the female attendants. Police spotted the motorcycle a short time later & gave chase. While taking a corner, applicant lost control of his motorcycle & it fell. He & his pillion passenger were arrested. Applicant was found to have a blood alcohol reading of 0.275. Although the weapon was a pneumatically operated spear gun, it did not have a spear or power head attached & there was no pneumatic charge in the weapon. Its overall length was 30cm. The butt or grip was made of plastic & looked similar in appearance to that of a handgun.
Aged 36 at offence - guilty plea at earliest opportunity - turbulent childhood - chronic pain due to low back injury - depression - chronic narcotic use - alcohol abuse - priors (2 x drive without licence; 2 x drive whilst licence cancelled; 2 x drive unregistered vehicle; 4 x drive with high range PCA; assault; conspiracy to rob; armed with intent to commit indictable offence; contravene AVO) - previous imprisonment.
Remorse - written letters of apology to victims - whilst in prison has completed Anger Management, Personal Effectiveness & AOD Relapse Prevention programmes - active in educational programmes & work - dealing with psychological/emotional scars arising from childhood - well behaved - good insight into behavioural patterns.
Appeal allowed: resentenced to 4*y with NPP of 2*y.
475

KIPIC, Stephanie Snezana - CCA, 10.12.2004
ELIAS, Roger
Tobias JA, Sully & Hoeben JJ
Citation: R v Kipic; R v Elias [2004] NSWCCA 452
Crown appeal.
Elias: Count 1: supply methylamphetamine on 3 or more occasions - 12m;
Count 2: supply methylamphetamine - 18m with NPP of 15m;
Count 3: supply cannabis - 6m.
Total of 18m with NPP of 15m. Sentence ordered to be served by way of home detention.
Kipic: Count 1: supply methylamphetamine on 3 or more occasions - 3y GBB;
Count 2: supply methylamphetamine - 18m (no NPP set);
Count 3: supply cannabis - 6m (concurrent).
Sentences ordered to be served by way of home detention.
Respondents were involved with a drug supply syndicate. Both entered guilty pleas. The offences came to light as a result of a Strike Force established to target the supply of prohibited drugs in the Ashfield/Campsie areas.
Objective seriousness of offences - whether failure to pay sufficient regard - need for general & personal deterrence - sentences do not follow steps outlined in R v Zamagias [2002] NSWCCA 17.
Appeal allowed, respondents resentenced as follows:
Elias: Count 1: 2*y with NPP of 1y 3m (home detention);
Count 2: 2*y with NPP of 1y 3m (PD);
Count 3: 1y with NPP of 6m (home detention, concurrent with sentence for count 1).
Kipic: Count 1: 2*y with NPP of 1y 3m (home detention);
Count 2: 2*y with NPP of 1y 3m - (PD);
Count 3: 1y with NPP of 6m (home detention, concurrent with sentence for count 1).
Note: This matter has been relisted for hearing in the CCA - see s.7Crimes (Sentencing Procedure)Act1999.
476

HANSEL, Detlef Dietmar - CCA, 6.12.2004
Sully, Hidden & Howie JJ
Citation: R v Hansel [2004] NSWCCA 436
Crown appeal.
Count 1: Manufacture commercial quantity methylamphetamine;
Count 2 (in the alternative): knowingly take part in manufacture of methylamphetamine.
Count 3: Manufacture commercial quantity methylamphetamine;
Count 4 (in the alternative): knowingly take part in manufacture of methylamphetamine.
Respondent pleaded guilty to counts 2 & 4, which the Crown accepted in full satisfaction of the indictment.
Suspended sentence of 12m with NPP of 9m.
Police were investigating applicant's co-accused (Panebianco) when the applicant & 2 others (Michael Novakovic & Frank Porreca) were caught up in the investigation.
Porreca pleaded guilty to a charge of possessing pseudoephedrine & was sentenced to 2y with a NPP of 18m (to be served by way of PD).
Novakovic pleaded guilty to 2 charges & received a sentence of 4y with a NPP of 3y. He was successful in his appeal against sentence & was resentenced to a total of 3y with a NPP of 2y: see R v Novakovic [2004] NSWCCA 437.
Panebianco pleaded guilty to 2 counts & asked that a further 3 matters be taken into account on sentence. He received an effective sentence of 8y with a NPP of 6y.
Applicant was aged almost 60 at time of sentence - guilty pleas.
Whether sentence excessive.
Appeal dismissed.
477

HALKIAS, Fates - CCA, 16.12.2004
Tobias JA, Hoeben J, Smart AJ
Citation: R v Halkias [2004] NSWCCA 429
Sentence appeal.
Malicious damage to property; stealing - 2y with NPP of 1*y (commencing 11.10.2003);
Robbery in company - 3y 9m with NPP of 2y 3m (commencing 11.1.2005).
Total sentence of 5y with NPP of 3y 6m.
Applicant had pleaded guilty to robbery in company & was on bail in relation to that offence when he committed the other offences. Despite the fact that the offences were entirely distinct, the sentencing judge determined that there should be some degree of concurrence. The robbery in company offence involved a male co-offender breaking open a poker machine & applicant attempting to open another poker machine, while the 2 female co-offenders stood near the machine. When a barman challenged the group, the male co-offender threatened him with a long thin object, thought to be a screwdriver. The offenders made their escape, whereupon the barman & another hotel employee followed & saw them get into a motor vehicle which police later discovered belonged to a 3rd man. When interviewed by police, that man said he had arrived & left the hotel alone. The other offences involved another hotel where the applicant & another co-offender used a screwdriver to force open a poker machine door & remove the cash box. The offenders made their getaway in a car. The offence was recorded by a security video & witnessed by a hotel employee. Police were notified. Following a police pursuit, the getaway car came to a stop at a dead-end & the 3 occupants were arrested.
Whether error in sentencing on basis that robbery in company was planned - whether sufficient discount given for assistance to authorities - parity.
Appeal allowed in relation to malicious damage to property & stealing offences; commencement date of sentence for robbery in company adjusted.
New total sentence of 4y 6m with NPP of 3y.
478

AHMAD, Yasser - CCA, 17.12.2004
Dunford & Hoeben JJ, Smart AJ
Citation: Ahmad v R [2004] NSWCCA 460
Conviction appeal.
Maliciously inflict GBH with intent to do GBH.
10y with NPP of 7*y.
The victim was attacked by the appellant in a nightclub. He struck her on the back of the head & in the face with a glass. The victim suffered both internal & external facial injuries.
Photo identification because accused could not be located promptly - effect of comments of victim during sighting of photographs - warnings on identification - summing up - whether line-up should have been held - whether photographs suggestive of persons in custody - whether verdict unreasonable.
Appeal dismissed.
479

NOVAKOVIC, Michael - CCA, 6.12.2004
Sully, Hidden & Howie JJ
Citation: R v Novakovic [2004] NSWCCA 437
Sentence appeal.
Count 2: knowingly take part in manufacture of commercial quantity methylamphetamine; + offences taken into account (supply 23 grams cocaine; goods in custody; 2 x unlawfully possess prohibited weapon) - 3y;
Count 6: possess pseudoephedrine - 4y with NPP of 3y.
Total of 4y with NPP of 3y.
Applicant was charged with 6 counts. He pleaded not guilty to counts 1,3,4&5 & guilty to counts 2 & 6, which the Crown accepted in full satisfaction of the indictment.
Police were investigating applicant's co-accused (Panebianco) when the applicant & 2 others (Detlef Hansel & Frank Porreca) were caught up in the investigation.
Hansel pleaded guilty to 2 charges & received a total suspended sentence of 12m with a NPP of 9m. The Crown was unsuccessful in its appeal against this sentence: see R v Hansel [2004] NSWCCA 436.
Porreca pleaded guilty to a charge of possessing pseudoephedrine & was sentenced to 2y with a NPP of 18m (to be served by way of PD).
Panebianco pleaded guilty to 2 counts & asked that a further 3 matters be taken into account on sentence. He received an effective sentence of 8y with a NPP of 6y.
Parity - objective criminality.
Appeal allowed: In connection with count 6, resentenced to 3y with a NPP of 2y; sentence in connection with count 2 varied by appending a NPP of 2y (concurrent with NPP for count 6).
480

OPA - CCA, 17.12.2004
Giles JA, Levine & Hulme JJ
Citation: R v OPA [2004] NSWCCA 464
Sentence appeal.
Knowingly take part in supply of large commercial quantity MDMA (ecstasy).
8y with NPP of 6y.
Evidence was that applicant & a number of other persons had been under surveillance for a month prior to applicant's vehicle being stopped by police. A search of the vehicle revealed approx 2,000 ecstasy pills. Later that night, police entered an apartment where they found a further 8,500 ecstasy pills. The charge against the applicant involved a total of 3.1 kgs of the drug.
Guilty plea - role in enterprise a substantial one - no priors.
Error in taking into account information not tendered in sentencing proceedings - failure to take into account applicant's contrition - utilitarian value of guilty plea - failure to give sufficient discount - failure to reflect discount for assistance - whether lesser sentence warranted in law.
Appeal allowed: resentenced to 5y 8m with NPP of 4y 3m.
481

SIEVERS, Theo Robert - CCA, 17.12.2004 - 151 A Crim R426
Levine, Simpson & Barr
Citation: R v Sievers [2004] NSWCCA 463
Conviction and sentence appeal.
Murder.
Life imprisonment.
The appellant & the deceased were in a de facto relationship & had been arguing. The appellant claimed the deceased approached him holding a small kitchen knife. He said he took the knife from her, folded his arms about her in order to quieten her down, struggled with her, then totally lost it & stabbed her to death. There were 4 stab wounds to the deceased's neck & back. The appellant wrapped the body in a sheet of black plastic & placed it in the boot of his car. The next day he drew money out of the deceased's bank account & drove up the coast. He dumped the body in bush land where it was later found. The defence case at trial concentrated upon the issue of provocation.
Volatile domestic situation, dysfunctional & violent. Appellant had committed prior serious offences, including the murder of a previous wife for which he was sentenced to life imprisonment in 1980. In 1992 this life sentence was redetermined & a MT of 12*y with an AT of 5y was imposed.
Protective custody - health problems - disturbed & violent childhood - suffers from a personality disorder making him dangerous in domestic situations involving extreme stress.
Provocation - consciousness of guilt - whether error in directions - whether miscarriage - whether sentence excessive.
Appeal dismissed.
482

TUIGAMALA, David - NSW SC, Wood CJ at CL, 17.12.2004
Citation: R v Tuigamala [2004] NSWSC 1254
Remarks on Sentence.
Murder.
Offender had been drinking at a hotel with some associates. He had earlier been drinking at another hotel. He claimed that he was 'not overly affected by alcohol'He placed himself at 5 on a scale of 1-10 of intoxication. The deceased had also been drinking at the hotel & was well affected by alcohol. He returned a blood alcohol concentration reading of 0.285 grams of alcohol per 100 ml blood. He had been drinking with friends for about 9 hours at various establishments. The offence occurred when the deceased walked from the toilet area towards the offender's table. Some words were spoken which led to the offender striking the deceased once to the face with a heavy left hook, resulting in the deceased falling to the ground unconscious. The deceased was a large 39 year old man, 176 centimetres tall, weighing 116 kgs. While hotel security staff assisted the deceased, the offender stepped forward & kicked the deceased savagely to the left side of the face. The deceased was flung back to the ground & although attempts were made to resuscitate him, he died before an ambulance or police arrived. Eyewitness evidence likened the kick to that of a man kicking a football. The force was such as to cause fractures to the left auxiliary sinus, fragmented fractures of the maxillary sinus, a fracture of the inner end of the inferior margin of the left orbit & a comminuted fracture of the left nasal cartilage. A post mortem examination revealed the deceased to have died from the combined effect of asphyxiation due to the presence of blood in his airways & lungs, coming from the nasal & sinus injuries. The offender was aged 29 at the time of the offence & is a large, powerfully built man who had trained, although not fought, as a boxer.
Issues pertaining to intention to cause GBH and provocation - subjective circumstances - s.3A, s.21A, s.44, Division 1A of Part 4 Crimes (Sentencing Procedure) Act 1999.
Sentenced to 26y with NPP of 20y.
483

DANIELS, John Bodie - NSW SC, Hidden J,14.12.2004
Citation: R v Daniels [2004] NSWSC 1201
Remarks on Sentence.
Manslaughter.
The offender killed his partner at the home unit where they were living. The jury found the offender not guilty of murder but guilty of manslaughter on the basis that he killed his partner by an unlawful & dangerous act, but without the intention to kill her or inflict GBH upon her. The deceased died as a result of a sustained & brutal attack upon her, during which she suffered a serious brain injury from which she later died in hospital. It was accepted by his Honour that the brain injury resulted from the offender propelling the deceased's head against a wall. The attack upon the deceased lasted for some time, waking their 2 little children who were in the unit at the time. Neighbours gave evidence of sounds of a commotion coming from the unit. The offender had been drinking prior to the killing, however, there was no evidence as to how intoxicated he was. At one stage during the attack upon the deceased, the offender was heard to say, 'Go in and show the fucking kids your face'It was the Crown case that when he said that the deceased's face was bleeding from her injuries & he intended the children to see her in that condition.
Alternative verdict after trial - spontaneous killing of partner in domestic dispute.
Sentenced to 8y with NPP of 5y.
484

ASLETT, Dudley Mark - NSW SC, Wood CJ at CL, 15.12.2004
Citation: R v Aslett [2004] NSWSC 1228
Remarks on Sentence.
1 x murder; 2 x aggravated sexual assault in company; 8 x robbery whilst armed with dangerous weapon; 2 x robbery whilst armed with offensive weapon; 1 x specially aggravated kidnapping; 1 x aggravated car jacking; 1 x attempt obtain money by deception; 3 x larceny of MV; + 3 Form 1 documents (2 x robbery whilst armed with dangerous weapon; 2 x robbery whilst armed with offensive weapon; 1 x aggravated kidnapping; 1 x being armed with intent to commit a felony; 1 x take & drive conveyance; 2 x being carried in a conveyance).
All the offences, including those on the Form 1 documents, were committed between 3.5.2003 and 20.8.2003.
The charge of murder arose as a result of the fatal shooting of the proprietor of a pharmacy.
Priors - totality of criminality - drug use - deterrence - dangerousness to community.
Sentenced to life imprisonment for the murder & a total of 36y with a NPP of 28y for the other offences.
485

JACOBS, John Lou - CCA, 20.12.2004 - 151 A Crim R 452
MEHAJER, Mazin
Wood CJ at CL, Sperling & Kirby JJ
Citation: R v Jacobs and Mehajer [2004] NSWCCA 462
Conviction and sentence appeals.
Murder; robbery in company with infliction of GBH; robbery in company with wounding.
Mehajer: Total sentence of18*y with NPP of 14y
Jacobs: Total sentence of 17y with a NPP of 13y.
The Crown case was that Mehajer and Jacobs had assaulted a man in the course of a robbery. The man died from the injuries he sustained during that assault.
Joint criminal enterprise - common purpose - constructive murder - conditional indemnity given to witness in exchange for evidence - consciousness of guilt - grounds pertaining to directions to jury.
Appeals dismissed.
486

DICKINSON, Joseph Brian - CCA, 16.12.2004
Wood CJ at CL, Simpson & Barr JJ
Citation: R v Dickinson [2004] NSWCCA 457
Crown appeal.
Malicious wounding with intent to do GBH.
Suspended sentence of 2y with NPP of 12m.
From time to time, respondent made a series of phone calls to the home of his ex-partner of 4 years. When the victim answered the phone, he became agitated. At the time of the above offence, the victim was involved with the respondent'ss ex-partner. The respondent threatened the victim, then drove to the house & attacked the victim with a carving knife. The victim grabbed the knife blade to avoid being stabbed, but still received a light wound to the chest, as well as severe injuries to his hands.
Aged 25 at time of offence - difficult childhood - sexually assaulted as a child - marijuana use - suffers from diabetes & depression - remorse - unlikely to re-offend - no priors
Whether sentence manifestly inadequate.
Appeal allowed: resentenced to fixed term of 2y 2m, to be served by way of PD.
487

CORNELISSEN, Shaun Andrew - CCA, 21.12.2004
SUTTON, Reginald Jeffrey
James, Hidden & Bell JJ
Citation: R v Cornelissen; R v Sutton [2004] NSWCCA 449
Conviction appeals.
Manslaughter.
Cornelissen: 3y with NPP of 18m.
Sutton: 2y with NPP of 1y.
Many of the Crown witnesses were related in some way to other Crown witnesses or to one of the appellants or to the deceased. The facts of the case were that Cornelissen overheard part of a conversation between his sisters wherein one of the sisters alleged that she had been sexually abused as a child by Cornelissen's wife's 2 sons from a previous relationship & concluded that one of those sons would have been the deceased. Cornelissen asked Sutton to accompany him to deceased's house. The deceased was not at home & appellants left. When they returned shortly thereafter, the deceased was there. There were others also present in the house at the time. When the deceased was told that the appellants had come to the house, he went to the front door & a physical altercation between the deceased & Cornelissen took place. A loud noise was heard by the others in the house & they went to the front door to find the deceased lying on the ground in the yard. He then got to his feet, obviously distressed, whereupon Cornelissen punched him & the deceased collapsed. He died a short time after this incident. The punch had caused a tear in one of the blood vessels supplying blood to his brain & this tear had given rise to a subarachnoid haemorrhage. Appellants went to the police station the same night, where Sutton was interviewed in an electronically recorded interview. Cornelissen declined to be interviewed. The Crown case against Cornelissen was that he was guilty of manslaughter by an unlawful & dangerous act. Their case against Sutton was that he was also guilty of manslaughter, either as a party to a joint enterprise or as a principal in the second degree, by knowingly & intentionally aiding & abetting Cornelissen.
Whether error in failure to direct jury not to engage in tendency reasoning with respect to relationship evidence - whether error in directions regarding manslaughter - whether certain evidence inadmissible against one of the appellants - whether error in directions regarding evidence of alleged admissions by one of the appellants - whether error in directing jury as to joint criminal enterprise - whether verdicts unreasonable.
Appeals allowed: convictions quashed, verdicts of acquittal entered.
488

LILLEY, Ronald Steven - CCA, 20.12.2004 - 150 A Crim R 591
Santow JA, Bell & Howie JJ
Citation: R v Lilley [2004] NSWCCA 424
Crown appeal.
1 x supply heroin; + Form 1 (possess heroin; goods in custody reasonably suspected of having been unlawfully obtained - $1,560 in cash).
2*y with NPP of 21m.
Respondent was arrested following the execution of search warrants upon his home. He was co-operative with police & participated in an electronically recorded interview, during the course of which he made full admissions.
Aged 52 at date of arrest - on bail at time of offending - extensive criminal record dating back to when he was a juvenile - drug use since age 18 - previous imprisonment.
Whether sentence manifestly inadequate.
Appeal allowed: resentenced to 6y with NPP of 3y 9m.
489

SILCOCK, Trevor John - CCA, 21.12.2004
James, Hidden & Bell JJ
Citation: R v Silcock [2004] NSWCCA 442
Crown appeal.
5 x indecent assault.
2y suspended sentence.
The respondent pleaded guilty to all 5 offences. The victim of all the offences was a young boy. The 1st offence occurred when the boy was aged 10 & the last offence occurred when he was aged 13*. The 5 offences charged were but a few of the acts of sexual assault committed by the respondent upon the complainant during a 4 year period. Many of the acts had been so similar that the complainant was unable to individually distinguish them. The complainant did not report any of the offences to the authorities until he was aged 29. Further delays then occurred before the respondent was sentenced.
The sentencing judge decided not to impose a lengthy custodial sentence because of previous sentences imposed upon respondent.
Whether sentencing judge failed to comply with principle of sentencing stated in Pearce - whether sentence manifestly inadequate.
Appeal dismissed.
490

CEISSMAN, Adam Stephen - CCA, 20.12.2004
Wood CJ at CL, Simpson & Barr JJ
Citation: R v Ceissman [2004] NSWCCA 466
Crown appeal.
1 x aggravated BE&S in company; + Form 1 (1 x being disguised with intent to commit indictable offence; 1 x being carried in a conveyance without consent of owner).
6y with NPP of 3y.
Two males (Cornett & an unidentified male) approached respondent in relation to a plan they had formulated to carry out a bank robbery in Narrabeen. Respondent agreed to participate, despite having only recently been released from prison. The unidentified male drove them to the bank in a stolen BMW. Cornett gave the respondent a sledgehammer, gloves & a balaclava en route. They conducted surveillance for about 15 minutes, then Cornett & the respondent pulled balaclavas over their faces & ran to the front of the bank. Although the bank had not yet opened, staff were on the premises & had been replenishing the ATM. When respondent (using a sledgehammer) & Cornett (using a crowbar) smashed & pulled out the window next to the ATM to gain access to the bank, the staff retreated to the rear of the bank & activated the security screens & raised the alarm. Cornett directed the respondent to the vaults where he unsuccessfully attempted to smash open a safe using the sledgehammer. He & Cornett then searched the premises, looking for money. They located some stacks of $50 and $20 notes in a room behind the vaults, which they stole before decamping in the stolen getaway car. The total amount of cash stolen was $171,980, little of which was recovered.
Guilty plea - on parole at time of offending - significant criminal history - similar past offences.
Objective seriousness of offence - determination of appropriate starting point for sentence - patent or latent error - whether sentence manifestly inadequate.
Appeal allowed: resentenced to 6*y with NPP of 4*y.
491

HAWAT, Ahmed - CCA, 8.12.2004
Grove, James & Hoeben JJ
Citation: R v Hawat [2004] NSWCCA 393
Conviction appeal.
2 x sexual intercourse without consent.
Appellant did not deny having sexual intercourse with the complainant, but maintained that he had sexual intercourse with her only once & that it was consensual.
Prejudicial publicity during course of trial - failure to discharge jury - failure to adequately direct as to inconsistencies in evidence of complainant & Crown witnesses - whether error in directions on hearsay evidence - whether error in failure to give warnings on identification evidence - whether miscarriage of justice.
Appeal dismissed.
492

DUNN, Robert Joseph - CCA, 21.12.2004
Handley JA, James & Howie JJ
Citation: R v Dunn [2004] NSWCCA 346
Conviction appeal;
Sentence appeal; and
Application for an order directing that an inquiry be held pursuant to Pt 13A Crimes Act.
Multiple paedophilic offences (3 x homosexual intercourse with male person under age of 10; 11 x homosexual intercourse with male person between ages of 10 & 18; 1 x sexual intercourse with person between ages of 10 & 16; 2 x attempted homosexual intercourse with male person between ages of 10 & 18; 2 x indecent assault; 3 x act of indecency with person under age of 16 or of inciting an act of indecency by person under age of 16; 2 x incite act of indecency by person under age of 16; 3 x supply cannabis).
Total sentence of 30y with NPP of 22*y.
Applicant pleaded guilty to all 27 counts.
Deceived into making pleas of guilty - induced to plead guilty by Crown proposing to tender, as evidence in any trial of the applicant, videos which would not have been properly admissible against him - decision in R v Tilley (1992) 109 FLR 155 precluded the conviction of applicant - Finnane J was not impartial, because of an association between his Honour & a TV channel, and should have disqualified himself - prejudicial publicity about applicant before the hearing 'fatally compromised'the Crown case against him - applicant had been unlawfully brought to NSW by being unlawfully expelled from Honduras & then being unlawfully extradited from Florida in the USA.
Conviction appeal dismissed.
Application for inquiry dismissed.
Sentence appeal allowed: resentenced to total of 20y with NPP of 18y.
493

WILKINSON, Ernest John - CCA, 20.12.2004
McColl JA, Levine & Hidden JJ
Citation: R v Wilkinson [2004] NSWCCA 468
Sentence appeal.
Sexual intercourse without consent in circumstances of aggravation + Form 1 (2 x sexual intercourse without consent in circumstances of aggravation).
18y with NPP of 13y.
The 3 offences were committed over a period of 17 months when the complainant was aged between 13 & 14 years. The circumstance of aggravation in each case was that she was under the age of 16. She also suffered from a mild intellectual disability, having a mental age of 8 to 9 years. Applicant had previously had a relationship with the complainant's mother. The 3 offences, together with several other incidents of a similar nature, occurred on occasions when the complainant was staying at the applicant's home. The complainant became pregnant as a result of the 2nd offence. The pregnancy was terminated & police notified, following which the applicant was arrested & interviewed. That offence was the 2nd offence on the Form 1. In his police interview, applicant admitted intercourse on that occasion & also provided the information giving rise to the principal offence & the 1st offence on the Form 1. Without that information, those charges could not have been framed. He admitted having had intercourse with the complainant about half-a-dozen times. The principal charge related to the last occasion upon which he had intercourse with the complainant & the 1st charge on the Form 1 related to the 1st occasion. Prior to applicant's arrest, he attempted suicide by an overdose of prescription drugs when he heard about the complainant's pregnancy.
Whether sentencing judge had regard to standard NPP not applicable to the case - whether proper approach to Form 1 matters - whether adequate weight given to guilty plea, co-operation, poor health, protection.
Appeal allowed: resentenced to 12y with NPP of 9y.
494

EL-KHEIR, Assaad - CCA, 20.12.2004
Tobias JA, Hoeben J, Smart AJ\
Citation: R v El-Kheir [2004] NSWCCA 461
Conviction appeal.
Attempt obtain possession of trafficable quantity of prohibited imports (heroin).
7y 8m with NPP of 4y 8m.
Inside the package brought into Australia were 3 cardboard boxes. Each box was marked 'Volvo'& contained an engine flywheel. Australian Customs Service officers x-rayed the flywheels, inside of which the heroin was concealed. Police subsequently conducted a controlled delivery of the restructured package, as well as surveillance of the premises to which the package was delivered.
Evidence - character - whether adduced by defence - whether evidence given deliberately not inadvertently - conscience decision - propensity - directions - voice identification - quality unreliable - discretion to refuse admission - warning.
Appeal allowed: new trial ordered.
495

HAMZE, Iash - CCA, 29.11.2004
Wood CJ at CL, McClellan AJA, Smart AJ
Citation: R v Hamze [2004] NSWCCA 423
Crown appeal.
Accessory to malicious wounding in company.
2*y with NPP of 6m.
The above offence was committed while respondent was serving a full-time sentence of 6y with a NPP of 4y for an offence of detain for advantage. There had been a disagreement between members of the respondent's partner's family & the victim, whereupon the victim caused damage to the home of the mother of respondent's partner. When this happened, respondent was in prison. He made 3 phone calls from the prison to his partner. These calls were recorded & extracts from the transcripts formed part of the evidence tendered at trial. Those transcripts revealed respondent arranging, through his partner, for the victim to be taught a lesson. About 2 hours later, 5 or 6 men broke into the victim's home & attacked him. He was punched, kicked & hit with a baseball bat & an iron bar & was stabbed in the stomach with a large knife. He managed to struggle free & escape by diving through a closed glass door. He ran & hid in a neighbour's garage, bleeding from the stomach wound. He was taken to hospital & received 15 stitches for the stab wound. Other injuries included a cut to his right hand (3 stitches), bruising to his stomach & back near the kidneys, extensive scratches to his back & arms, as well as grazes to his knees, one leg & left forearm.
Remorse - delay - previous convictions - special circumstances & NPP.
Whether sentence manifestly inadequate.
Appeal allowed: respondent resentenced to 3*y with NPP of 1y 3m.

Amended Orders: R v Hamze [2004] NSWCCA 475.
496

MAILES, Graham Edward - CCA, 3.12.2004 - 62 NSWLR 181; 150 A Crim R 365
Dunford, Adams & Howie JJ
Citation: R v Mailes [2004] NSWCCA 394
Application for leave to appeal against limiting term of 25y following a jury verdict pursuant to s.22(1)(c) Mental Health (Criminal Procedure) Act 1990.
Applicant murdered a 19 year old university student: see R v Mailes [2003] NSWSC 707.
Unfit to be tried - special hearing - finding that accused committed the offence - fixing limiting term - principles - no NPP.
Appeal dismissed.
497

ELMS, David John - CCA, 20.12.2004 - 61 NSWLR 703
McClellan AJA, Adams J, Smart AJ
Citation: R v Elms [2004] NSWCCA 467
Conviction and sentence appeal.
Aggravated BE&S.
5y 4m with NPP of 4y.
The circumstance of aggravation was that appellant was carrying a knife.
Previous representation by missing witness to police admissible upon tender by accused under s.65(8) Evidence Act 1995 - previous representation either inconsistent or capable of being inconsistent with evidence of witness upon whom Crown case substantially depended - previous representation wrongly rejected & could have affected outcome of trial - correct construction of s.105A Crimes Act 1900 - not necessary for circumstances of aggravation to accompany each element of offence - sufficient if, in course of committing offence, an offender is armed.
Appeal allowed: new trial ordered.
498

KWON, Yong Gap - CCA, 16.12.2004
Tobias JA, Hulme & Adams JJ
Citation: R v Kwon [2004] NSWCCA 456
Crown appeal.
Manslaughter.
32m with NPP of 20m.
The deceased died from a brain haemorrhage following an unprovoked beating by the respondent.
Guilty plea - unlawful & dangerous act - had participated in martial arts whilst serving in the Korean army - deportation & loss of business.
Whether sentence manifestly inadequate.
Appeal dismissed.
499

VALE, Ian John (aka Walford) - CCA, 20.12.2004
Santow JA, Bell & Howie JJ
Citation: R v Vale [2004] NSWCCA 469
Sentence appeal.
Dangerous driving occasioning death.
5y with NPP of 2*y; + disqualification of driver's licence for 5y.
The applicant's vehicle was overtaken by another vehicle, whereupon the applicant tailgated that vehicle for 20-30 minutes before commencing to overtake it. While overtaking, the applicant's vehicle veered suddenly to the left & collided with the front off-side of the other vehicle. Both vehicles went out of control in the direction of the left shoulder of the road & then rolled sideways. Applicant's passenger was ejected from the applicant's car & was fatally injured. Both the applicant & the deceased were heavily intoxicated at the time.
Aged 42 - Aboriginal - guilty plea - genuine remorse/contrition - received 25% reduction in sentence.
Error in taking into account circumstances of aggravation which would have warranted a conviction for a more serious offence - De Simoni (1980-81) 147 CLR 383 - error in finding that death of victim an aggravating feature of the offence when the death of the victim was in fact an element of the offence - whether sentence manifestly excessive.
Appeal allowed: resentenced to 4y 3m with NPP of 2y.
500

EL-AZZI, William - CCA, 16.12.2004
Santow JA, Simpson & Sperling JJ
Citation: R v El-Azzi [2004] NSWCCA 455
Conviction and sentence appeal.
2 x conspire with others to manufacture large commercial quantity prohibited drug (methylamphetamine).
Total of 7y with NPP of 5y 3m.
Appellant also faced trial on a charge of knowingly take part in the manufacture of a large commercial quantity of methylamphetamine, however, the jury acquitted him on that count.
Each count involved an allegation that the appellant in some way participated in an enterprise of manufacturing methylamphetamine. Evidence was given at trial directly implicating him in each venture. A co-offender, described as the 'lynchpin of the venture', was the principal Crown witness.
Proper characterisation of the object of the conspiracy - whether permanent stay of proceedings ought be ordered - whether judge ought to have directed the jury they must be satisfied beyond reasonable doubt that the object of the alleged conspiracy was the manufacture of methylamphetamine as distinct from amphetamine - whether separate trial of 1st count ought to have been ordered - admissibility of coincidence evidence - directions concerning evidence admissible on individual counts - effect of doubts concerning credibility of a witness in relation to one count on jury consideration of other counts - directions on circumstantial evidence - evidence of deceased witness read - indemnified witnesses - cross-examination of appellant on matters relevant only to credibility - evidence of prior criminal conviction - evidence of disciplinary proceedings - discretion to grant leave to cross-examine appellant on credibility - unfairness - unreasonable verdicts - whether one accomplice can corroborate the evidence of another - directions on unreliability - jury access to transcripts of counsels's addresses & summing up.
Appeal dismissed.
501

BROWNLOWE, Raymond - CCA, 20.12.2004
Wood CJ at CL, Simpson & Barr JJ
Citation: R v Brownlowe [2004] NSWCCA 465
Sentence appeal.
1 x detain for advantage; 5 x aggravated sexual assault; 1 x indecent assault.
Total sentence of 21y with NPP of 15y.
Applicant & a co-offender kidnapped a young woman in her mid-twenties, handcuffed her, taped a balaclava to her head & took her to applicant's home. She was continually threatened. They eventually removed the handcuffs & then the applicant obtained a gun & some bullets & placed the gun under the complainant's nose so that it was visible to her below the balaclava. He then obtained a knife. The co-offender & the applicant injected amphetamine & forced the complainant to consume amphetamine & bourbon & coke. The offenders then commenced sexually assaulting the complainant. The complainant was continually threatened during the whole episode & was bleeding from the vagina, whereupon she was given soap & a bucket of water to wash herself. The complainant was held for almost 24 hours. She was eventually returned to where she had been kidnapped & released after she promised not to report the offences to police.
Aged 44 at time of offences - extremely dysfunctional childhood & adolescence - very lengthy criminal record, commencing when a juvenile - previous imprisonment - on parole at time of offences.
Whether sentence excessive.
Appeal dismissed.
502

A - CCA, 16.12.2004
Wood CJ at CL, Hulme & Bell JJ
Citation: R v A [2004] NSWCCA 292
Sentence appeal.
1 x import trafficable quantity heroin (316.9 grams).
7y with NPP of 4*y.
Applicant flew into Sydney from Hong Kong wearing a pair of shoes in which the heroin was concealed.
Aged 42 - guilty plea - Vietnamese origin - settled in Australia in 1989 - assistance to authorities - contrition - courier - lowest end of importation - sad & difficult life - traumatised by events experienced in Vietnam war - entered into prostitution to finance escape from Vietnam at age 26 - limited English - no family & few friends in Australia - back problem - rehabilitation - undertaken a number of courses whilst in custody - deterrence - no relevant criminal record.
Whether discount for assistance to authorities given adequate consideration - interpretation pertaining to sentencing discount under repealed s.16G Crimes Act 1914 - whether sentence excessive.
Appeal dismissed.
503

AJP - CCA, 16.12.2004 - 150 A Crim R 575
Simpson, Adams & Howie JJ
Citation: R v AJP[2004] NSWCCA 434
Crown appeal.
1 x sexual intercourse with child under 10; + Form 1 offence (aggravated indecent assault).
3y with NPP of 18m.
The complainant was aged 8 at the time of the offences. The respondent was the uncle of the complainant (her mother's brother). The complainant & her 10 year old brother had been left for the day in the care of the respondent, who lived with his mother. The complainant & her brother were making a noise while playing, resulting in the respondent ordering the brother into a bedroom & the complainant into a rumpus room. He then forced the complainant to perform fellatio upon him, then ordered her to remove her clothes, sat her on his lap & moved her body so that his penis rubbed against her vagina. The offences came to light about a week later when the complainant told her brother what had happened & the brother's subsequent behaviour provoked questions from their mother.
Subjective circumstances - remarks on sentence - applicable sentencing regime - application of Part 4 Division 1A - whether offence in mid-range of objective seriousness - additional offence - plea of guilty to more serious charge than originally faced - protective custody - whether sentence manifestly inadequate.
Appeal allowed: respondent resentenced to 5y with NPP of 2*y.
504

MAHER, Raymond Austin (No.2) - CCA, 16.10.2004
Tobias JA, Hidden & Kirby JJ
Correction to miscalculation of expiry date for NPP: see R v Maher [2004] NSWCCA 177.
505

CHEIKH, Mohammed - CCA, 16.12.2004
HOETE, Adam Ropilia
Giles JA, Levine & Hulme JJ
Citation: R v Cheikh; R v Hoete [2004] NSWCCA 448
Crown appeals; and application by Hoete for leave to appeal against sentence.
Cheikh: 4 x ongoing supply of methylamphetamine; + a further 5 counts on a Form 1. Total sentence of 8y with a NPP of 5y.
Hoete: 4 x ongoing supply of methylamphetamine; + a further 10 counts on a Form 1, including 2 counts of supplying cannabis. Total sentence of 6y with a NPP of 3*y.
Offenders entered pleas of guilty. Both were involved in supplying methylamphetamine. Cheikh & another man managed the drug syndicate & a number of runners worked in day or night shifts. Hoete was a runner. The managers supplied the runners with drugs & mobile phones. Some runners were supplied with motor vehicles. The runners were paid in cash or in kind.
Hoete: Whether sentences excessive. Appeal dismissed.
Crown appeal: Whether error in discount for utilitarian value - whether sentences manifestly inadequate.
Crown appeals allowed on counts 1, 3 & 4. Each respondent resentenced.
506

DUNCAN, Paul - CCA, 8.12.2004
PERRE, Adam John
Wood CJ at CL, Adams & Hislop JJ
Citation: R v Duncan and Perry [2004] NSWCCA 431
Conviction and sentence appeals.
1 x maliciously inflict GBH with intent to do GBH (s.33 Crimes Act 1900 NSW);
1 x affray (s.93).
Each sentenced to 16y with a NPP of 12y for the s.33 offence & concurrent FT of 2y for the s.93C offence.
A fight erupted between 2 groups during which the victim was attacked by a number of assailants with poles, a machete & a wheel brace. This attack resulted in the victim's permanent disability.
Cross-examination regarding visual identification - effect of alcohol consumption - whether proper exercise of legitimate sentencing discretion effected - weight given to favourable subjective circumstances - rehabilitative aspects - directions - whether error - admissibility of evidence pertaining to s 13 Children (Criminal Proceedings) Act 1987 - ss.21A(3) & 44(2) Crimes (Sentencing Procedure) Act 1997 - s.6(1) Criminal Appeal Act 1912 - Rule 4 Criminal Appeal Rules - s.114(1) Evidence Act 1995.
Conviction appeals dismissed.
Sentence appeals allowed only on the charge of maliciously inflict GBH with intent to do GBH. Each appellant resentenced to 13y with a NPP of 9y for that offence.
507

CROAKER, Kristy Lee - CCA, 14.12.2004
Wood CJ at CL, Simpson & Barr JJ
Citation: R v Croaker [2004] NSWCCA 470
Crown appeal.
Count 1: maliciously inflict GBH - 2y with NPP of 6m;
Count 2: malicious damage to property - 6m FT.
Sentences were ordered to commence 5 months later. Respondent was ordered to submit to the supervision of the Probation and Parole Service, attend immediately & remain at the Roy Thorne Rehabilitation Centre & undertake its programme & any further programmes suggested by the Probation and Parole Service, & be of good behaviour.
Both offences were committed during the course of a single episode at a hotel.
Whether sentences manifestly inadequate - aggravating features - evidence of rehabilitation.
Appeal allowed, respondent resentenced as follows:
Count 1: suspended sentence of 2y with NPP of 6m.
Count 1: suspended FT of 6m (concurrent with sentence for Count 1).
508

NASSIF, George - CCA, 16.12.2004
Simpson & Adams JJ, Davidson AJ
Citation: R v Nassif [2004] NSWCCA 433
s.5F appeal against interlocutory decision refusing application for separate trials for different counts.
The indictment contained 9 counts relating to 4 separate episodes of alleged criminality: 3 x take & drive MV without consent; 2 x take person without consent with intent to obtain advantage (aggravated); 2 x indecent assault; 2 x attempt take person without consent with intent to obtain advantage.
Tendency evidence - coincidence evidence - identification evidence - prejudice.
Appeal dismissed.